The rule of law is an abstract concept but that does not mean it is difficult to understand. Here goes:
Let us suppose 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? How would you like that?
Well, something very similar occurred in 1933 in America. President Franklin D Roosevelt used Executive Order 6102 to effect the ‘Trading with the Enemy Act of 1917’ and make gold ownership illegal. The effect of all this was that possession of any gold coin or gold item was punishable by ten years’ imprisonment and a fine of double the value of the gold possessed.
Are you thinking, ‘What are my rights? Where are my rights? How can I enforce my rights against that sort of abuse of power? What protections would I have?’
It’s not abuse, you say? Well, consider how you would feel if Parliament passed a law decreeing that 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?
I discussed the issue with a friend.
“What would you say are the foundations of democracy? he asked me.
Because I don’t respond immediately, he assured me that there is no right and wrong answer. He nodded approvingly when I finally came up with an answer.
“The rule of law and the protection of human rights,” I said.
He then explained that he was upset by recent goings-on here in the UK, where freedom of speech is under threat. He confessed to being “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 deemed the speech as “likely to offend the public good.”
He was not exaggerating; the matters which he referred to are real and in the public domain.
“So,” he asked me, barely able to contain himself, “people are now to be banned from speaking the truth because it would upset the public good? What are we coming to? Are we going to find ourselves in Mr Orwell’s 1984?”
That conversation made me think some more about the foundations of democracy and the related principles and how those in power deal with restrictions on the freedom of speech. This is important because it is about the exercise of power and also potentially has an impact on freedom of expression, which is a human right.
I visited several websites where I found ideas such as free and fair elections, human rights and fundamental freedoms, open and accountable government and a ‘civil’ society. These are all accurate and valid but any fair-minded analysis of what they are and how they are arrived at shows that they essentially have their roots in the rule of law and the protection of human rights. The history of these twin pillars goes back over 2000 years.
But, I asked myself, if the rule of law is such a powerful ingredient of democracy, why is it so misunderstood? Dicey’s three principles, discussed in Part 1, broadly say that the State cannot exercise arbitrary power, that there must be equality before the law and that human rights are recognised from restraints on arbitrary power. More questions obviously arise: What is arbitrary power? What does equality mean? What is ‘law’ and what are ‘rights’?
So I turned to Prof. Joseph Raz who has pointed out that the rule of law requires eight conditions/principles to guide people’s behaviour so that they may act lawfully.
“All laws,” he begins, “should be prospective, open, and clear.” This means that one cannot obey a law that is secret or opaque, not yet written or kept hidden. The law must be accessible.
Next, he writes, “Laws should be relatively stable.” Stability in the law gives people opportunity to plan their lives, carry out business etc. At the same time, however, laws should not be fixed and unyielding.
Guiding principle number three is this: “The making of particular laws, (particularly legal orders), should be guided by open, stable, clear, and general rules.” The idea here is that there should be some kind of control of the discretionary powers granted to State authorities. Citizens should be able to predict how these discretionary powers will be applied to their situation. Therefore, there ought to be clear principles guiding the drafting of these powers.
Here is number four: “The independence of the judiciary must be guaranteed.” This is an important point supporting stability of the law. If judges cannot decide cases according to law but are pressured by 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 that judges are insulated from such pressure.
“The principles of natural justice must be observed,” says guideline number five. Natural justice requires that hearings be free and fair from bias, that fair procedures be adopted, that equal opportunity to be heard be allowed 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.
Professor Raz argues that the courts should have the power to examine the legality of legislation, the actions and decisions taken by government bodies. He writes, “The courts should have overview over implementation of these principles.” That’s guideline number six.
The seventh principle is this: “The courts should be easily accessible.” Long delays or excessive costs are likely to deny citizens justice, prevent assertion of rights or defence of their actions and ultimately prevent the law from being enforced.
“Discretion of state agencies,” the eighth and final guideline runs, “such as crime prevention, should not be allowed to pervert the law.” The discretion to act or not act against the citizen is built into the criminal justice system. This discretion ought not to be systematically used/abused to exempt certain classes of people from complying with the law.
These eight guidelines all seem to be quite clear at first glance but closer examination reveals that they are mainly about procedure in making laws and subsequently applying them. The rule of law seems on the face of it to be mainly about restraining the use of power or preventing its abuse.
But what about the substantive element or content of the law and the formal or procedural element which addresses the way the law was created. In the next installment, we shall look at both of these.