Return to the Rule of Law – Part 2

This series is intended to explain the rule of law at a basic level to give a clearer view for easier understanding by the public.

It is by no means a complete view which would be academic in nature.

In the first part, I looked at AV Dicey’s theory on the rule of law. Now I will look at some principles inherent to the rule of law.

 

Last night, my phone rings. Private number. When I answer, the caller is a friend who just asks, “What would you say are the foundations of democratic principles? There is no right and wrong answer in this.”

 

I didn’t respond immediately. Slow and measured thinking is required. This colleague is well-known for trick questions.

 

After a few moments, I answer, “The rule of law and protection of human rights.”

 

Am I right? Well, my colleague concurred. He explained that he was upset by recent goings on here in the UK where ‘freedom of speech’ is being locked down on very important issues. He went on in some distress about people being barred from entering the UK because they intended to deliver a speech at Speakers’ Corner in Hyde Park, in London. The authorities perceived the speech as likely to offend the ‘public good’. His perception is that now people are to be banned from speaking the truth, if it would upset the ‘public good’ [a concept in law]. I checked on these matters, which are real and in the public domain.

 

How those in power deal with restrictions on the freedom of speech, is important because it is both about the exercise of power and potentially impacts on a human right (namely freedom of expression). I thought more about the foundations of democracy and the related principles. My colleague went on to mention George Orwell’s book ‘1984’.

 

If searching online for an answer to my friend’s question, various websites give ideas such as free and fair elections, human rights and fundamental freedoms, open and accountable government, and a ‘civil’ society. These are all true, but any fair-minded analysis of what they are, how they are arrived at, shows that they are primarily derived from the rule of law and protection of human rights. These two pillars - the rule of law, and the protection of human rights, go back over 2000 years. They are twin pillars that are almost fused together.

 

If you would grant me that the rule of law is such a powerful ingredient of democracy, why is it so misunderstood? Dicey’s three principles on the rule of law broadly says: The State cannot exercise arbitrary power; there must be equality before the law; and human rights are recognised from restraints on arbitrary power. Obviously, they throw up more questions that need to be determined. What is arbitrary power? What does equality mean? For that matter, what is law? Or rights?

 

The rule of law is an abstract concept but that means it is difficult to understand. If we try to simplify: How would you like if the government passed a law to empower the police to come into your house and take all your money away and freeze all your bank accounts? A very similar scenario occurred in 1933 in America. President Franklin D Roosevelt used the ‘Trading with the Enemy Act of 1917’ to make gold ownership illegal! This was issued by executive order 6102. The effect of all this was that possession of any gold coin or gold item was punishable by 10 years imprisonment and a fine of double the value of the gold possessed. You should be thinking, ‘What protections would I have? What are my rights? Where are my rights? How can I enforce my rights against that sort of power?’

 

If that above didn’t wake you up, consider how you would feel if your Parliament passed a law that meant you would be taxed at 95% on any and all of your earnings. What would you do? How would you feel about something that was perfectly legal but which would be totally ‘unfair’?

 

It is necessary to dig a bit deeper into the foundations of democracy. There are several different theoretical variants of the rule of law, making it harder to understand what it is and how it works. Prof Joseph Raz pointed out that the rule of law required eight conditions/principles to guide people’s behaviour so that they may act lawfully. The rule of law is not simply ‘the rule of the law’.

 

First, “all laws should be prospective, open, and clear.” The idea of this is quite clear – one cannot obey a law that is not yet written, kept hidden, secret, or opaque. The law must also be accessible.

 

Second, “laws should be relatively stable.” Again, the idea behind this is simple. Stability in the law gives people opportunity to plan their lives, carry out business et cetera. At the same time, laws should not be fixed and unyielding.

 

Third, “the making of particular laws, (particularly legal orders), should be guided by open, stable, clear, and general rules.” The idea behind this is to control discretionary powers granted to State authorities. Citizens should be able to predict how discretionary powers will be applied to their situation. Therefore, the discretionary powers themselves ought to be guided by clear guidance.

 

Fourth, “the independence of the judiciary must be guaranteed.” This is an important point supporting stability of the law. If the judges could not decide cases according to law, but by pressure from some external source, there would be no predictability/certainty in the law and citizens would thus not be able to be guided by it. It is essential to insulate judges from such pressure.

 

Fifth, “the principles of natural justice must be observed.” Natural justice requires that hearings be free and fair from bias, that fair procedures be adopted, that equal opportunity to be heard be given to both parties. Again, this is important so that citizens may know what is required of them to live within the law, and for the law to be applied impartially.

 

Sixth, “the courts should have overview over implementation of these principles.” In other words, the courts should have the power to examine the legality of legislation, the actions, and decisions taken by government bodies.

 

Seventh, “the courts should be easily accessible.” Long delays or excessive costs deny citizens justice, prevent assertion of rights or defence of their actions, and prevent the law from being enforced.

 

Eight, “discretion of state agencies, such as crime prevention, should not be allowed to pervert the law.” The discretion to act or not act against the citizen is built-in into the criminal justice system. This discretion ought not to be systematically used/abused to exempt certain classes of people from obeying the law.

 

These seem to be quite clear at first glance. However, a closer examination of these principles will show that hardly any mention is made regarding the content of the law. These principles are mainly about procedure in making laws and applying them subsequently. This brings the rule of law to a different focus – the substantive element or content of the law, and the formal or procedural element which addresses the way the law was created. But most importantly the rule of law is about restraint in the use of power.

 

Next: looking at the substantive and formal elements of the rule of law.