Necessitas facit licitum quod alias non licitur.
Necessity makes that lawful which is otherwise unlawful.
The doctrine of necessity is a controversial legal maxim of extraordinary proportions.It mandates that under certain exceptional circumstances deemed necessary, the state, or an agency of the state, may engage in activities that would otherwise be in contravention of its constitution and consequently illegal. It is a convention that has served as the legitimiser of coups in countries such as Pakistan, Uganda, Nigeria, and Fiji. This idea is inappropriate at adjudicating any action by an agency of the state, let alone deciding upon a case wherein it has struck a blow against the state in a military takeover. This is because of the looseness of the legal definition of “necessity” that permits the unconstitutional act of the uprooting of a government on the grounds of “restoring justice”. Notwithstanding, this principle has been vastly used by the highest courts of law of the aforementioned states in order to legitimise military governments that unconstitutionally withdrew the fundamental rights of their people, including the right to life. For example, the Zia-ul-Haq regime in Pakistan, which seized power from the civil government in 1977, conducted mass arrests of students, journalists, politicians, and activists in the 1980s under the Defence of Pakistan Ordinance 1971 and the Maintenance of Public Order Ordinance 1960. In order to prevent judicial review, the military also suspended the jurisdiction of Pakistan’s superior courts over its military courts and overrode the authority and independence of its judicial system.
The violence inflicted against both the public and the institutional design of the state in the case of Pakistan was a mere illustration of the damage the doctrine of necessity is capable of. Its application is, by any reasonable metric of justice, not a justifiable one. St. Thomas Aquinas’ declaration, “Lex iniusta non est lex” – “an unjust law is no law at all” – comes into picture here. No state that finds itself obliged to provide justice as a public good to its citizenry would be expected to choose this path. Naturally, one might also be forgiven to believe that the doctrine of necessity has no place in the democratic life, for it cannot co-exist with the ideas of constitutional liberalism.
Until it does, albeit in a contorted form.
The evolution of a state governed by a democratic constitution is built around certain rights that its citizens give to themselves and are typically beyond the scope of destruction by any measure available to an agency of the state. These fundamental provisions, rooted in the natural rights of life and liberty, permit citizens to exist in equality and perform activities such as expression, association, religious exercise, and economic occupation without any undue interference by the state. Any legislation or executive ordinances produced by the state that violate this basic structure of the constitution, which is in its essence a manifestation of the social contract that is the foundation of the state itself, is voided by the judiciary as it is found to be without the just character of the law.
The line of control the basic structure attempts to draw, however, blurs when the fundamental rights it attempts to protect are potentially contributory to the possible destabilisation of the state itself, thus compromising the general welfare – and the right to life – of the body politic. Under these circumstances, the state warrants the exercise of emergency statutory and constitutional provisions that permit it to override individual rights, even fundamental ones, in the name of the maintenance of public order. These emergency provisions, therefore, are premised on the doctrine of necessity.
While constitutionally run states cannot exercise emergency powers without a formal declaration of exigency, which in most cases must be sanctioned by the national legislature within a certain period, it is important to note that these provisions have a critical flaw that warrants consideration. States often have constitutional provisions that permit “reasonable” restrictions on the freedom of speech and expression that go beyond the prospects of limiting hate speech and the incitement of violence. The constitutions of India, Bangladesh, and Turkey, for example, allow laws that restrict the freedom of speech and expression on vague grounds such as maintaining state integrity and public morality. Such leeway to restrict civil rights only compounds when dealing with more extreme circumstances that threaten public safety, the most significant one of which is terrorism.
Considered to be a significant criminal offense that entails the simultaneous destabilisation of the state, the incitement of violence within the national community, and the actual commission of violence against members of the community, it is interesting to see how terrorism has been dealt with as an existential threat by states, especially in the context of the 9/11 Attacks and the Global War on Terror. Drawing from Christopher Preble, states have adopted a “zero-risk” policy against the possibility of terrorism and have implemented protocols ranging from preventive detention to digital surveillance to the deployment of military and paramilitary forces within domestic territories. What has also been seen is an increase in the rhetoric of security being treated as a fundamental right. For example, Franco Frattini, the Vice-President of the European Commission from 2004 to 2008, termed the right to security as “A precondition for all other freedoms.” Richard Jackson, in his work on the rhetoric of counter-terrorism, contended that the way in which the public narrative around acts of terror is instrumentalised to permit the strengthening of the punitive power of the state. The state effectively cultivates a narrative wherein innocent civilians are pitted against barbaric monsters and the spirit of the democratic state is at the threat of being put to the sword, thus creating access to emergency powers even easier. This is indicative of a global transition from attempting to balance liberty and general welfare to prioritising public order over all else. Furthermore, since these measures neither fall within the traditional ambit of emergency provisions typically used in the case of insurrection and war, or are used for dealing with problems that would have otherwise had a timeline (thus warranting sunset clauses which would have terminated these powers after the exigent circumstances are dealt with), the state is not as constrained as it would otherwise have been in a conventional national crisis. Consequently, what we have are governments with extensive powers to withdraw the liberties of their citizens with little to no accountability, and this is a problem.
This securitization of the doctrine of necessity is exactly what permits governments to remain authoritarian in a democratic guise today. By creating a worldview for the citizenry wherein the nation is under a constant state of siege against untrustworthy foreigners and disloyal citizens, the executive forces laws that permits it sweeping punitive powers down the throat of the legislature on the grounds of national survival. It then uses these powers to aggressively crack down on dissent: civil society and political opposition are the first to go. A report by Ben Saul, the United Nations Special Rapporteur on Human Rights and Counter-terrorism, warns against the global exercise of anti-terror laws against ordinary citizens without due process or judicial safeguards. This issue worsens when the other branches of the state, especially the judiciary, defer to the executive on counter-terrorism cases. Instead of taking a firm stance on the maintenance of the basic structure, courts globally are more reluctant to rule against the government under these circumstances. In many scenarios, the onus of proving guilt beyond a reasonable level of doubt is also reversed from the prosecution to the accused, case in point being India’s Unlawful Activities (Prevention) Act, 2019: the presumption of innocence thus devolves into the presumption of guilt, which is in itself a perversion of the golden thread principle of criminal law.
In conclusion, the securitization of the doctrine of necessity in the constitutional state presents a paradox – the political order emergency provisions claim to protect may be destroyed by those very safeguards in a time of exigency. Consequently, the question that begs consideration is not whether the state of exception is needed in a national crisis, but rather whether a national crisis is triggered by the declaration of the state of exception itself.