February 14, 2010
When I write, I do not expect that people would take my opinion as sacrosanct. In fact, objective feedback devoid of crass response promotes intellectual discuss and enlightenment which is ideal in times like this. To that extent, the posers I have received in my article, “The Doctrine of Necessity in Perspective” is a welcome development and an assurance that readers would like to know more about this vexing doctrine.
When I write, I do not expect that people would take my opinion as sacrosanct. In fact, objective feedback devoid of crass response promotes intellectual discuss and enlightenment which is ideal in times like this. To that extent, the posers I have received in my article, “The Doctrine of Necessity in Perspective” is a welcome development and an assurance that readers would like to know more about this vexing doctrine.
The Doctrine of necessity is a political philosophy which can be applied in various ways to various situations depending on the nature of the issue to be resolved. The fact that the U.S or other advanced countries have not used the doctrine to resolve political equations does not indicate that they have not used the doctrine one way or another to preserve national security particularly in post 9/11 situations, many of which have significant impact on civil liberty and freedom as guaranteed by the constitution.
When the National Assembly of Nigeria passed the joint resolution empowering the vice-president to act as the acting president and commander-in-chief of the Nigerian Armed forces, both chambers justified their actions by the doctrine of necessity. For sure, not many Nigerians understand the doctrine of necessity which had been used several times by the Nigerian military to justify its incursion into Nigerian politics even though, it is illegal and unconstitutional to take over power by forceful means. This is why the first thing the military do when they overthrow a government is to immediately suspend the constitution and supplant it with their own decree because every successful revolution begets its own legality.
This is not the first time that the doctrine of necessity would be used in the history of Nigeria. This was clearly demonstrated by the scenario in the celebrated case of Lakanmi and Kikelomo V The Attorney-General of Western State of Nigeria and Ors (1971) where the Nigerian Supreme Court held that the voluntary transfer of power by the civilian governmentt to the military in 1966 even though, was strange and never happened in history, it was justified under the doctrine of necessity. In Lakanmi, the Nigerian Supreme Court noted that it was wrong to assume that the constitution made provision for all emergencies, so when any strange development happened, you have to find an answer to it in the constitution. It is therefore not true to say that the doctrine of necessity is an alien concept in Nigerian jurisprudence.
Hence, the idea behind the article is to discuss the doctrine in general perspective and give a few examples where it had been applied in recent times including Nigeria. Therefore, instead of attacking the doctrine, the proper question should have been whether it was appropriate for the National Assemly of Nigeria to use the doctrine to defeat the constitutional process. As I stated above, the doctrine has been used in different ways to justify various government action that sometimes infringe upon the rule of law and peoples liberty in addition to using it to resolve critical political equations all in attempts to prserve national security and safeguard democracy even in advanced democracies. .
9/11 and Civil Liberty
In his recent book, Not a Suicide Pact: The Constitution in a Time of National Emergency, Richard A. Posner, a highly regarded Law Professor and U.S Circuit Court Judge presents a “pragmatic response” “to the pressing, unsettled question of how national security and constitutional rights should intersect in this perilous, post-9/11 age. He specifically argues that in a balance between national security and competing constitutional interests such as individual liberty, the former invariably takes precedence during times of war. Viewed from this lens, Posner indicates that civil libertarians must tolerate security measures—including torture implemented to protect the homeland from catastrophic terrorist events, even if those measures infringe upon constitutional rights or depart from established legal rules”.
“Posner also contends that the boundaries of executive power are expansive and that the role of the judiciary as a check on the executive is limited in times of war. Surveillance and profiling of Muslims, he argues, are constitutional, as are coercive interrogation techniques. Posner’s pragmatic response logically culminates with the assertion that the Constitution is flexible to the extent that the executive may permissibly invoke a “law of necessity” (emphasis supplied) to authorize extra-constitutional acts. See WARTIME AMERICA AND THE WIRE: A RESPONSE TO POSNER’S POST-9/11 CONSTITUTIONAL FRAMEWORK By Dawinder S. Sidhu. Mr. Sidhu is a Visiting Researcher at the Georgetown University Law Center and co-author of the CIVIL RIGHTS IN WARTIME: THE POST-9/11 SIKH EXPERIENCE (Ashgate).
Posner further argues that there may be some situations in which the president has “the moral and political duty . . . to authorize torture” and “[There is abundant evidence that torture is often an effective method of eliciting true information . . . .“Almost everyone . . . accepts the necessity of resorting to [torture] in extreme situations….and “O]nly a die-hard civil libertarian will deny the propriety of using a high degree of coercion to illicit” information from a suspect.Posner posited further that “[C]ivil libertarians . . . are reluctant to acknowledge that national emergencies in general, or the threat of modern terrorism in particular, justify any curtailment of civil liberties that were accepted on the eve of the emergency. They deny that civil liberties should wax and wane with changes in the danger levels.”).
According to Dawinder S. Sidhu, Posner’s argument has two prongs to it: First, he argues that identifying whether security responses to 9/11 are constitutional requires a straight balancing of civil liberties and security. Second, he effectively contends that ensuring security is more important than safeguarding civil liberties.62 Put differently, according to Posner, the post-9/11 world requires a balancing of civil liberties and security responses which must come out in favor of enhancing security at the cost of limiting liberty. Sidhu further argues that “the terrorist attacks of 9/11, according to Posner, “demand a recalibration of the “constitutional balance between liberty and safety[.]”. In short, in the context of post-9/11 America, Posner believes that “the proper way to think about constitutional rights in a time such as this is in terms of the metaphor of a balance.”
Sidhu writes: “ Posner argues that the terrorist attacks of 9/11 have created an opportunity in which the balance between liberty and security must be modified”. “The challenge,” Posner writes, “is to [strike at] the balance between liberty and safety. Posner also noted that “[a] national emergency, such as war, creates disequilibrium in the existing system of constitutional rights and liberty must recede in post 9/11 climate”.
However, Posner is a very influential author and jurist; hence when he talks people and authority listen. To this effect the establishment of Guantanamo Bay, Military Tribunals and other security measures aimed at protecting the homeland are some of the doctrine of necessity responses to terrorism by the U.S government. After t he U.S Justice Department advised that the Guantanamo Bay Detention Camp could be considered outside the U.S legal jurisdiction, prisoners captured in Afganistan were moved there beginning 2000. After the Bush administration asserted that the detainees were no entitled to to any protection of the Geneva conventions, the U,S supreme Court ruled in Hamdan v Rumsfeld on June 29, 2006 that they were entitled to limited protection listed under common Article 3 of the Geneva Conventions. It is a fact that prisoners at the Guantanamo bay were subject to one of the world’s most form of torture and inhuman treatment until very recently when the policy was reversed. At the time, human rights groups called for an independent public enquiry into the deaths at the Bay. Amnesty International said the apparent suicides were the tragic results of years of arbitrary and indefinite detention and called the prison an ‘indictment” of the George W. Bush administration’s human rights record. See Wikipedia Guantanamo Bay Detention Camp .
Similarly, many EU including countries have adopted policies that have far reaching implications on rule of law and human rights all in their response to protect the safety and security of persons in post 9/11. For further reading, see Jeffrey Rosen, Overcoming Posner, 105 YALE L.J. 581, 610 (1995) (calling Posner “the most prolific and creative judge now sitting on the federal bench.”), Ronald J. Krotoszynski, Jr., The Perils and the Promise of Comparative Constitutional Law: The New Globalism and the Role of the United States in Shaping Human Rights, 61 ARK. L. REV. 603, 611 (2009); Richard A. Clarke, The Trauma of 9/11 is No Excuse, WASH. POST, May 31, 2009, available at http://www.washingtonpost.com/wpdyn/content/article/2009/05/29/AR2009052901560.html (rejecting the notion that the trauma of 9/11 and the high-level responsibilities that arose from the attacks justify the government’s response to the terrorist threat).
The Doctrine of necessity is a political philosophy which can be applied in various ways to various situations depending on the nature of the issue to be resolved. The fact that the U.S or other advanced countries have not used the doctrine to resolve political equations does not indicate that they have not used the doctrine one way or another to preserve national security particularly in post 9/11 situations, many of which have significant impact on civil liberty and freedom as guaranteed by the constitution.
When the National Assembly of Nigeria passed the joint resolution empowering the vice-president to act as the acting president and commander-in-chief of the Nigerian Armed forces, both chambers justified their actions by the doctrine of necessity. For sure, not many Nigerians understand the doctrine of necessity which had been used several times by the Nigerian military to justify its incursion into Nigerian politics even though, it is illegal and unconstitutional to take over power by forceful means. This is why the first thing the military do when they overthrow a government is to immediately suspend the constitution and supplant it with their own decree because every successful revolution begets its own legality.
This is not the first time that the doctrine of necessity would be used in the history of Nigeria. This was clearly demonstrated by the scenario in the celebrated case of Lakanmi and Kikelomo V The Attorney-General of Western State of Nigeria and Ors (1971) where the Nigerian Supreme Court held that the voluntary transfer of power by the civilian governmentt to the military in 1966 even though, was strange and never happened in history, it was justified under the doctrine of necessity. In Lakanmi, the Nigerian Supreme Court noted that it was wrong to assume that the constitution made provision for all emergencies, so when any strange development happened, you have to find an answer to it in the constitution. It is therefore not true to say that the doctrine of necessity is an alien concept in Nigerian jurisprudence.
Hence, the idea behind the article is to discuss the doctrine in general perspective and give a few examples where it had been applied in recent times including Nigeria. Therefore, instead of attacking the doctrine, the proper question should have been whether it was appropriate for the National Assemly of Nigeria to use the doctrine to defeat the constitutional process. As I stated above, the doctrine has been used in different ways to justify various government action that sometimes infringe upon the rule of law and peoples liberty in addition to using it to resolve critical political equations all in attempts to prserve national security and safeguard democracy even in advanced democracies. .
9/11 and Civil Liberty
In his recent book, Not a Suicide Pact: The Constitution in a Time of National Emergency, Richard A. Posner, a highly regarded Law Professor and U.S Circuit Court Judge presents a “pragmatic response” “to the pressing, unsettled question of how national security and constitutional rights should intersect in this perilous, post-9/11 age. He specifically argues that in a balance between national security and competing constitutional interests such as individual liberty, the former invariably takes precedence during times of war. Viewed from this lens, Posner indicates that civil libertarians must tolerate security measures—including torture implemented to protect the homeland from catastrophic terrorist events, even if those measures infringe upon constitutional rights or depart from established legal rules”.
“Posner also contends that the boundaries of executive power are expansive and that the role of the judiciary as a check on the executive is limited in times of war. Surveillance and profiling of Muslims, he argues, are constitutional, as are coercive interrogation techniques. Posner’s pragmatic response logically culminates with the assertion that the Constitution is flexible to the extent that the executive may permissibly invoke a “law of necessity” (emphasis supplied) to authorize extra-constitutional acts. See WARTIME AMERICA AND THE WIRE: A RESPONSE TO POSNER’S POST-9/11 CONSTITUTIONAL FRAMEWORK By Dawinder S. Sidhu. Mr. Sidhu is a Visiting Researcher at the Georgetown University Law Center and co-author of the CIVIL RIGHTS IN WARTIME: THE POST-9/11 SIKH EXPERIENCE (Ashgate).
Posner further argues that there may be some situations in which the president has “the moral and political duty . . . to authorize torture” and “[There is abundant evidence that torture is often an effective method of eliciting true information . . . .“Almost everyone . . . accepts the necessity of resorting to [torture] in extreme situations….and “O]nly a die-hard civil libertarian will deny the propriety of using a high degree of coercion to illicit” information from a suspect.Posner posited further that “[C]ivil libertarians . . . are reluctant to acknowledge that national emergencies in general, or the threat of modern terrorism in particular, justify any curtailment of civil liberties that were accepted on the eve of the emergency. They deny that civil liberties should wax and wane with changes in the danger levels.”).
According to Dawinder S. Sidhu, Posner’s argument has two prongs to it: First, he argues that identifying whether security responses to 9/11 are constitutional requires a straight balancing of civil liberties and security. Second, he effectively contends that ensuring security is more important than safeguarding civil liberties.62 Put differently, according to Posner, the post-9/11 world requires a balancing of civil liberties and security responses which must come out in favor of enhancing security at the cost of limiting liberty. Sidhu further argues that “the terrorist attacks of 9/11, according to Posner, “demand a recalibration of the “constitutional balance between liberty and safety[.]”. In short, in the context of post-9/11 America, Posner believes that “the proper way to think about constitutional rights in a time such as this is in terms of the metaphor of a balance.”
Sidhu writes: “ Posner argues that the terrorist attacks of 9/11 have created an opportunity in which the balance between liberty and security must be modified”. “The challenge,” Posner writes, “is to [strike at] the balance between liberty and safety. Posner also noted that “[a] national emergency, such as war, creates disequilibrium in the existing system of constitutional rights and liberty must recede in post 9/11 climate”.
However, Posner is a very influential author and jurist; hence when he talks people and authority listen. To this effect the establishment of Guantanamo Bay, Military Tribunals and other security measures aimed at protecting the homeland are some of the doctrine of necessity responses to terrorism by the U.S government. After t he U.S Justice Department advised that the Guantanamo Bay Detention Camp could be considered outside the U.S legal jurisdiction, prisoners captured in Afganistan were moved there beginning 2000. After the Bush administration asserted that the detainees were no entitled to to any protection of the Geneva conventions, the U,S supreme Court ruled in Hamdan v Rumsfeld on June 29, 2006 that they were entitled to limited protection listed under common Article 3 of the Geneva Conventions. It is a fact that prisoners at the Guantanamo bay were subject to one of the world’s most form of torture and inhuman treatment until very recently when the policy was reversed. At the time, human rights groups called for an independent public enquiry into the deaths at the Bay. Amnesty International said the apparent suicides were the tragic results of years of arbitrary and indefinite detention and called the prison an ‘indictment” of the George W. Bush administration’s human rights record. See Wikipedia Guantanamo Bay Detention Camp .
Similarly, many EU including countries have adopted policies that have far reaching implications on rule of law and human rights all in their response to protect the safety and security of persons in post 9/11. For further reading, see Jeffrey Rosen, Overcoming Posner, 105 YALE L.J. 581, 610 (1995) (calling Posner “the most prolific and creative judge now sitting on the federal bench.”), Ronald J. Krotoszynski, Jr., The Perils and the Promise of Comparative Constitutional Law: The New Globalism and the Role of the United States in Shaping Human Rights, 61 ARK. L. REV. 603, 611 (2009); Richard A. Clarke, The Trauma of 9/11 is No Excuse, WASH. POST, May 31, 2009, available at http://www.washingtonpost.com/wpdyn/content/article/2009/05/29/AR2009052901560.html (rejecting the notion that the trauma of 9/11 and the high-level responsibilities that arose from the attacks justify the government’s response to the terrorist threat).
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