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Published On: Thu, Jul 25th, 2019

Zakky: Of ‘necessity’ and ‘law’

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el-ZakzakyTHURSDAY Column with Mohammed Adamu

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There is no virtue they say like ‘necessity’. Necessity leaves us with no choice but to do that which we have to do. Reason it is said that ‘necessity does the work of courage’. It leaves us with a ‘have-to’ imperative; or a Hobson’s choice if you will. But only if what we truly want is result. Necessity although a lonesome window, is risk-free. Its return on investment is always guaranteed. We are vain by nature but honest by ‘necessity’. Doing the ‘necessary’ proves our ‘honesty’. And it is the reason they say that ‘necessity’ relieves us of decision making; we do not have to decide ourselves, because a decision is already waiting to be taken. Necessity is Shakespeare’s ‘To be or not to be’; it is Nicolo Machiavelli’s prescription for The Prince –to ‘do or to die’! It is the Afro-American’s ‘a man has gotta do what a man has gotta do’. Necessity is not your legalistic ‘ce cera, cera’ (or ‘what’ll be will be’) that lamely waits on chance. Necessity invents remedies to existential problems. Reason they say it is the mother of invention’.
The law may sometimes be wrong pre-fixing presumptive rules of conduct; but ‘necessity’ is always right dealing only with the ‘here-and-now’. It is –as the Hausas would say- ‘sha yanzu magani yanzu’. The mojo of ‘necessity’ is the instantaneity of its result. Socrates neglected it to die in reverence of the unjust law. Necessity is the ‘ought to’ dimension of law. It is what the law should’ve been but regrettably ‘is’ not. And so whereas ‘necessity’ knows always what the law should be, from what it actually ‘is’, it is not always that the ‘law’ itself knows what should be ‘necessary’ from what should not. Yet although ‘equity’ may be right to always ‘follow the law’, it is meet that those who govern the affairs of men should be guided only by laws that are respecters of ‘necessity’. The law in statute may provide that a chasm be crossed in only two jumps, but ‘necessity’ waits to get to the bridge to figure whether to cross it in one or three jumps. In truth therefore the relationship between ‘necessity’ and the ‘law’ is as that between the Supreme Court and infallibility: the apex Court is said to be ‘final not because it is infallible’, but that ‘it is infallible only because it is final’. Necessity knows what ought to be done not because it knows the ‘law’, but that it knows the ‘law’ only because it knows what ought to be done. Meaning that it is what is ‘necessary’ that should be law, and not that whatever is law should be ‘necessary’.
It is the reason that whenever the law fails, we either return to parliament to re-legislate or resort to the ‘doctrine of necessity’ –a virtual confidence vote for the utility of ‘necessity’. The ‘doctrine of necessity’ even as it is an aberration in law, it has proved always to be redemptive of the law. The provision for the derogation of fundamental rights by the same Constitution that guarantees them is in a sense a legitimation of ‘the doctrine of necessity’; just as the provision for the defense of ‘self-defense’ in criminal law also legitimizes ‘necessity’. The defense of ‘self-defense’ acknowledges the right of individuals –without appearing first before a judge, to prove the existence of threat to their lives- to do whatever is ‘necessary’, including killing, to preserve themselves. And if so then, why should not governments –whenever necessary- restrict or curtail the freedoms of a few in order to guarantee the freedoms of all? Why should not a few erring citizens be inconvenienced in order that the many law-abiding ones may be comforted? Or why should a few deviant ones not be punished –including capitally- in order that the majority who conform are secure? One of Great Britain’s former Prime Ministers, William Pitt was right, “necessity is the argument of tyrants”, yes; but if you ask me I would say ‘a sound argument at that!’ I have asked previously: ‘what manner of ‘law’ would require that Dasuki, be set free by whom a whooping 2.1 billion dollars counter-insurgency funds was stolen, bequeathing to us a debilitating insurgency –the Boko Haram- that has now deteriorated from manageable benignity to intractable malignancy? Or what manner of ‘law’ would require that a man such as El-Zakzakky be set free, by whom a subversive and mutinous religious sect –the Shi’a- is groomed to challenge the sovereign authority of a democratically elected Government? –over its people, its territory including over the right of easement by its armed forces? What sovereign power would be hamstrung by its own laws not to put down –by any means ‘necessary’- an insurrection hoisted by a foreign flag against its authority. Or what manner of ‘law’ will insist that those who defy the laws of the land to steal the patrimony of all or those who disdain the law to invite anarchy on their country, are the most entitled to the ‘just’ treatment of the law without derogation? “Civil dissension” Shakespeare wrote, “is a viperous worm that gnaws the bowels of the commonwealth”.
Barry Goldwater, author of ‘The Conscience Of A Conservative’ was the one who said “extremism in the defense of liberty is no vice (even as) moderation in the pursuit of justice is no virtue”. A president should be out in spite of everything, including the law, and in spite of everyone, including the people, to secure the nation and to preserve its endowments.

They said that the CJN, Justice Ibrahim Tanko Muhammad when he was asked about the vagaries of ‘legal technicalities’ at his recent Senate screening, he chose to speak about ‘planes’ and ‘pilots’. It appeared the analogy was lost on many who did not bother to find out what sense the CJN was laboring to make. Those who know even a modicum of law understood the man perfectly. It was mostly some of the malevolent lay ones that attempted to make a mountain out of a puny little mole hill that they did not understand. The CJN was talking about the province of procedure -as against substantive- law which usually is the area of law fraught with or susceptible to the technical manipulation of lawyers. And he was explaining that whenever the court is seized of a matter that lends itself to the hubris of technicalities, judges usually invite experts in the relevant area of technical knowledge to give what, in ‘The law of Evidence’, is termed ‘expert evidence’. He cited the pilot as example of an expert who judges may invite to educate the Court on flying. And he said that although judges are not a ‘pilots’ they are bound to rely on the evidence of a pilot, to resolve a technical issues related to planes or flying. As for ‘driving’ a plane, a faux pas which many said was unbecoming of a Chief Justice, I say yes, planes are flown; but they are also ‘driven’ -at least to and from the tarmac. Tell me that is called ‘taxiing’ and not ‘driving’ and I will ask: ‘is a plane a ‘cab’ to be taxied’? Besides, a ‘car’ has two gears: a ‘drive gear’ and a ‘reverse gear’. Don’t you think that a ‘plane’ -being both terrestrially driven and aeronautically flown- should have four? That is: a ‘DRIVE gear’, a ‘reverse gear’, a ‘take-off gear’ and a ‘landing gear’? So that contrary to popular view, you can actually ‘drive’ a ‘plane’ even as you fly it. But because it is the white man that calls the ‘driving’ of a plane ‘taxiing’, we have no problem with that usage -the meticulous users of the English language that we are. By the way, we ‘ride’ a car also, yet we say the same thing when we mount a donkey or a horse -ride. But are donkeys and horses cars to be ridden? Then again, what do we say concerning a ship? -’swim it’? Do not be fooled by the haphazard choice of usages in the English language. Allow the CJN the right to poetic license.

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  1. dear sir,
    I am a Business man. we live in Dhaka Bangladesh. Dhaka is my city you may any kind Business with us. Now we started a new Dairy Farm in my village at village: Ghogoa,post office : Tarapur,
    Police station : Sundargonj, district: Gaibandha, Bangladesh
    so you can write or talking any envarment or Business.
    Best Regurd
    MD.Faizar Rahman
    Managing Director
    Sundargonj Agro Complex ltd.

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