Life in lockdown land – 7 Doctrine of Necessity

The Parliament stands dissolved. Governance is by presidential decree. We do not know for certain the date of the next elections. The question arises, where are we? We seem to be in some sort of a twilight zone midway between democratic compromise and hard-headed autocratic arbitration

Blaise Pascal, the French Mathematician and philosopher, famously identified what was wrong with us humans. “All of humanity’s problems stem from man’s inability to sit quietly in a room alone,” he wrote in the 16th century. He did not know how accurate he would be in the 21st century when we are in lockdown mode with our smart phones and personal computers. 

I write this missive on a Wednesday morning. Then I ask myself ‘does it matter which day of the week it is?’ It can be any day. No matter what I call it. All days are blurred days. This is the third blurred day of the week which in normal times would be a Wednesday. 

On the first blurred day of the week (that is Monday if you insist on sequential continuity) three senior Attorneys-at-Law and Presidents’ Counsels participated in the ‘Face the Nation’ program of Sirasa TV where the discussion centred on two issues – the date of the next Parliamentary Election and the use of the public purse in the absence of a functional Parliament. The participants were M.A. Sumanthiran PC, U.R. de Silva PC and Razik Zarook PC. 

Two interesting ideas emerged. Exceptional circumstances required exceptional remedies. The second was the Doctrine of Necessity. Opposition stalwart Sumanthiran preferred to be textually precise and preferred to stick by the letter of the law. 

The conundrum was not a complex labyrinth. The President will not revoke his proclamation dissolving Parliament. He will not reconvene the old Parliament. Therefore, a new Parliament must be elected. The pandemic must contained before an election so that the integrity of process would be above reproach. 

Everybody agreed that these were exceptional times. 

I watched the discussion. President’s Counsel Razik Zarook referred to the Doctrine of Necessity with unmistakable authority. He made a passing reference to Justice Thurgood Marshall but did not cite a specific ruling. The mention of Thurgood Marshall worked on my adrenaline. 

As Blaise Pascal accurately predicted, I could no longer wait quietly in my room. I Googled to learn more about the Doctrine of Necessity. My reward was gratifying and immediate. Doctrine of Necessity is usually invoked to settle matters pertaining to bankruptcies. How appropriate, I thought. 

Human behaviour in adversity

Those who have watched Clint Eastwood films ‘Good, Bad and Ugly’ and his other masterpiece ‘For A Few Dollars More’ would remember the implacable whisper, “Necessity is the law when and where it exists” delivered by the hero villain holding the barrel of the gun against the chest of the shivering owner of the tavern or the hapless sheriff of the town. 

The polymath Francis Bacon cites another example of the plea of necessity. It points to the miserable logic of seeking exceptional remedies in exceptional circumstances.

It is the case of Rex vs. Dudley and Stephens (1864). The brief facts of the case are wickedly simple. Dudley, Stephens and Brooks, all able-bodied English seamen, along with a boy of 18 years of age, were compelled to put into a small boat after a shipwreck on the high seas. There was no food or water for seven days. On the eighth day, Dudley and Stephens killed the boy and fed on his flesh and blood to survive.

On the 12th day, they were rescued by passing ship. They were prosecuted for the murder of the boy. The accused pleaded that they acted out of necessity for preservation of their lives. The Privy Council held that the accused were guilty of murder, as there were plenty of chances of getting rescued, and no man would die for starvation for seven days.

There can be instances where necessity overrides the rule. You may demolish some one’s house if it can prevent a great fire engulfing the entire village. But that doesn’t absolve the culprit whose negligence or intransigence set the fire in the first place. The captain of the Titanic interpreted necessity as he deemed necessary. In lockdown mode, my mind wanders far and wide about human behaviour in adversity. 

How the bold endure 

We do not know how long we will have to remain in total lockdown mode. It may be that we will observe some relaxed form where vigilance is high and social distancing mandatory. 

As Arundhati Roy the novelist and essayist points out, the mandarins managing the pandemic are fond of speaking in terms of fighting a war. They don’t even use war as a metaphor, they use it literally. If it was a war, nobody would be short of bunker busters. But here we are short of testing kits, ventilators and face masks. 

But then again, as it has recently occurred in some place called Bandaranaikepura, where the microbe has stealthily made its way into an urban slum or shanty town, what is the bunker buster we can use against an institutional repository of human misery amidst urban modernity? 

Early in the process, we were assured that the lockdown was for our common good. That we must be united to fight the common enemy which now had a name – COVID-19. 

The Parliament stands dissolved. Governance is by presidential decree. We do not know for certain the date of the next elections. The question arises, where are we? We seem to be in some sort of a twilight zone midway between democratic compromise and hard-headed autocratic arbitration. 

COVID-19 is an invisible enemy. That makes the lockdown, necessary and compulsory. “We are at war” is the great call for social solidarity. But the essentials of the Hobbesian edict in his ‘Leviathan’ that explores the structure of society and the form of government is solidly carved in stone. A few governing the many. 

To protest tomorrow we must survive today

Let us face it. What is a lockdown? It is a compulsory regimen we follow because we must. We surrender a good part of our free will and movement.  

A few people tell all others what to do. Since it is to contain the virus and survive the pestilence, its logic we absorb passively and meekly. To protest tomorrow we must survive today. It is the same way that Socrates absorbed his lot in the world.

“If all misfortunes were laid in one common heap whence everyone must take an equal portion, most people would be contented to take their own and depart.” 

But if the few people who are in control of containment use the leverage they possess to tell us or hint at whom to vote for in the pending election, are we different from the cabin boy who was devoured by the two senior shipmates whose plea of necessity was rejected by the Privy Council? 

The pandemic has suspended politics. Politicians have not suspended the pandemic. People are stuck in their homes. One luxury in our democracy is the next election. We can punish politicians for their mistakes by commission and omission. 

The lockdown is all about power and social order. In our predicament some arbitrariness is unavoidable. But how much of arbitrariness? 

I am scared. I am bewildered. There is a sly soundless contest between democratic accommodation and cold-blooded autocratic “sitzfleisch”. It is a German word. It is about one’s capacity to sit out a crisis. It can be either positive or negative. Either way, like it or not, it calls for endurance.