Muhammed Adamu on Thursday

September 20, 2018

Ain’t the ‘Rule of law’a bitch? `(2)

Rule of law

Rule of law

By Mohammed Adamu

I HAVE attempted to use the rules of ‘International Humanitarian Law’ and those of ‘Diplomatic And Consular Law’ to illustrate the fragility of that all-important principle called the ‘rule of law’ -especially when weighed against the exigencies of ‘national security’, or the less hideous term ‘public interest’, or even the more omnibus one, ‘national interest’. Unlike the aesthetic art which exists solely for its appreciation, the ‘law’ does not exist merely for its own glorification. Aesthetic art does no more than just exist to enchant and to sooth the senses –which is why it is described as ‘art-for-art’s-sake’. But law must do more than just exist, enthrall or fascinate the senses of man. It must demonstrate a utilitarian value. The law must work justice. It must establish order; else the law cannot be said to effectively rule, as the term ‘rule of law’ implies.

Rule of law

Rule of law

And which raises the ‘chicken and egg’ question: ‘which should come first, between ‘national security and the ‘rule of law’? The latter is the means by which to achieve a just and ordered society. But there cannot be a just and ordered society except that it is also secure. Thus, ‘national security’, is about the most fundamental object of law. It is what the law must strive always to achieve. In that guarantee alone lies the terra-juris or the environment that the ‘rule of law’ itself requires to thrive. But the object of ‘national security’ although it is also to establish order among others things, it is not necessarily to enforce the ‘rule of law’ –even though doing so may be incidental to it. If ‘national security’ is in jeopardy in spite -or because- of the ‘rule of law’, then the ‘rule of law’ is of no consequence.

The debate about whether or not ‘national security’ should be superior to the ‘rule of law’ is a needless one. Because, in actual fact, it is not so much about the superiority of one over the other as it is about the exigency inherent in ‘national security’ in relation to the abject tardiness of the rule of law. Said the British Prime Minister, Benjamin Disraeli “Protection is not a principle, (as the ‘rule of law’ is) but an expedient”. Yes, the rules of war are imposed on combatants by law, but expediency alone governs when to shoot and how to avoid being shot. The concept of ‘national security’ supersedes the principle of ‘rule of law’ to the extent that the demands of ‘national security’ often cannot brook the lethargy of the ‘rule of law’. It is incumbent on ‘national security’ sometimes to assert itself outside of the due process of law in much the same way that in war situations, the laws are ‘silent amidst the rumblings of arms’.

National security is a veritable sanctuary for all –including for the ‘rule of law’. Everything including the ‘rule of law’ bleeds when the security of a nation is put in harm’s way. But the ‘rule of law’ itself can afford to bleed without occasioning harm to ‘national security’. And so, for all that jurists care, let the ‘rule of law’ forever remain supreme, but let the ‘rule of law’ –the way that in war situations it has accepted to be ‘silent amidst the rumblings of arms- even so, let the ‘rule of law’ keep its reverent peace in the heat of every executive fury to secure the nation. If the exigencies of ‘national security’ must wait on the tardiness of the ‘rule of law’, then it is the law that is served by man and not the other way round.

If the ‘law’ had been allowed to take precedence over the exigency of ‘security’, masterminds of the abduction, in 1984, of fugitive Umaru Dikko, would successfully have brought the former Shagari Minister to Nigeria concealed in a ‘crate’ under the ‘inviolable’ cover of ‘diplomatic immunity’. But the British Police at the Stansted Airport in London, did not, in deference to the due process of law, go first to the courts to secure an order permitting the revocation of ‘immunity’ from the diplomatic ‘crate’, before opening it to expose a most unusual ‘diplomatic item’, in an abduction gambit never contemplated by the wildest stretch of the imagination of those who conceived the laws of immunities and privileges in international law. Yes, the courts are to determine what should constitute threat to ‘national security’; but the executive arm, upon which the duty to secure the nation rests, cannot afford to be in court always, seeking judicial leave to deal even with existential threats to national security that require expedient action. Nor are those affected by executive actions denied the right to challenge them in court.

But on-duty British police officer Yvonne Fletcher was not that lucky. She was, in 1984, murdered in London, by a person shooting from inside the Libyan embassy on St. James’s Square, during a protest mostly by anti-Gaddafi Libyans resident in London. And even as the Libyan sniper had a field day shooting, the British Police, in strict compliance with the Vienna Conventions on Diplomatic and Consular relations, restrained itself from violating the diplomatic sanctity of the Libyan building. Meaning that if the sniper had had enough rounds of ammunition to shoot all day, the premises of the embassy would still have remained inviolable and the British Police would be acting contrary to ‘rule of law’ if they had rushed in to stop him. Besides, even the person of the shooter too, was immune from arrest, detention or prosecution. And so, two weeks after the incident all personnel of the Libyan embassy were safely escorted by the British Police to the airport and allowed to leave London, with all their belongings, including the weapon used in the shooting.

Said Lord Denning, in his book Landmarks In The Law: “All the ordinary people in England were astonished. Why, why were these murderers allowed to go free?” Denning before the House of Lords on May 16, 1984 cited several grounds upon which he thought that the ‘rule of law’ should have taken the back seat in favour of national security or public interest. He argued that although the Vienna Convention makes ‘inviolable’ the premises of the Embassy  and the person of the diplomatic agent, such inviolability cannot be without exception, because Article 41 of the Convention stipulates that “the premises of the mission must not be used in any manner incompatible with the functions of a mission”. The use of the Libyan mission to shoot and kill was not only ‘incompatible with the functions of a mission’, the British Police would’ve been justified to enter the premises to restrain the sniper.

He also cited Article 29 of the Convention on the inviolability of the person of the diplomatic agent, arguing that since the host state is obligated to ‘take all appropriate steps to prevent any attack on his person, freedom or dignity’, there has to exist inherent in that law a corresponding “correlative” to the effect that “If we are to protect him from any attack, surely he (too) is not allowed to attack us; (or) our personal freedom or dignity by firing weapons and guns from the embassy”. Denning also cited the exception of emergency (exigency), asking rhetorically whether a “drunken diplomat with a loaded gun in a public square” is to be left to harm society because not letting him be offends the ego of the law. Again Denning wondered, hypothetically ‘if the premises of the embassy is inviolable, should it retain that inviolability even in the event that it is on fire and that the fire was “likely to spread to adjoining premises unless firemen and or police go in to the embassy and tackle the source of the inferno?

By this implying that a gun man shooting sporadically from within a diplomatic building is as dangerous as a fire outbreak and that if it has to take violating the law to restrain him, so be it!


To be continued