When rulers battle the rule of law
By Tom Arms | Published: 17th July 2017 04:00 AM |
The British like to think they invented the law. It is true that thanks to the empire and successful European wars, British law is the foundation of many of the world’s legal systems. It is certainly the cornerstone of the American judicial system and the old imperial countries, including those now in the Indian subcontinent. British lawyers rewrote the law books in Germany following World War Two and contributed heavily to the European Court of Justice, with which they are currently having so many problems.
The principle that the rule of law must underwrite civilised societies dates back to at least ancient Egypt. It is there where we find the first allegorical representation of the Goddess Justice holding the scales in which the rights and wrongs of a case were impartially weighed. The Egyptians called her Anubis. The Greeks called her Dike, and added the sword to represent the finality of legal decisions. The Romans provided the moniker Justitia, or Justice, and the Swiss added the blindfold in the 16h century.
But the British—and by association the US and some of its former colonies—have for centuries been the keenest exponents of what is generally termed “the rule of law.”
They have argued that the laws built on centuries of parliamentary debate, court precedents, seasoned with a bucketful of common sense and administered by judges trained for their impartiality must always be above the variable winds of politics.
Representative politics represents the majority view. The law in the form of an independent judiciary protects not only the majority but also the minority so that all of society is protected, hence the blindfold and scales. All of this makes it surprising that Britain and America, and some say India, appear to be subtly undermining the rule of law and following the examples of authoritarian countries such as Russia and China in trying to subjugate the law to the political will.
In the UK, the latest manifestation is the aftermath of the horrific Grenfell Tower fire, which was apparently the result of local government and contractors saving pennies at the expense of safety. British PM Theresa May has ordered an inquiry and appointed the respected upper crust Cambridge-educated judge Sir Martin Moore-Bick to head it. But Grenfell Tower was public housing. Its residents were from the poorest sections of society who have for years felt exploited by establishment figures such as Sir Martin. They don’t want him. Their acute dislike was echoed by local Labour MP Emma Coad who demanded his replacement and said, “I don’t understand how anybody like that can have any empathy for what those people have been through.”
So why is Sir Martin the right person for the job? Because he is trained to be impartial and make decisions based on facts rather than empathy and social connections. Justice is blind.
The other side of the British class divide is just as guilty of bending the law to their political position, as demonstrated by the legal battles that preceded the invoking of Article 50 of the EU Lisbon Treaty which was needed to start the formal Brexit process. The conservative government claimed the referendum result overruled the sovereignty of parliament. Not so, said the High Court and ruled that the Brexit process could not start until after debate and vote in parliament.
The right-wing, anti-EU tabloid the Daily Mail branded the judges “Enemies of the People”. The government—which is sworn to uphold the law—remained silent for over a day before reluctantly defending the need for an impartial and independent judiciary. Even then, it spent millions appealing the decision in the Supreme Court—where it lost. The journalist who wrote the Daily Mail headline, James Slack, became May’s official spokesperson.
US President Trump is not much better. He undermined the rule of law when he attacked the “so-called” federal judges blocking his Muslim travel ban. He did the same when he abruptly sacked 46 Obama-era federal prosecutors and again when he dismissed FBI director James Comey for being too dogged in his investigation of the Russian hacking scandal.
The courts and their independence are one of the first targets of authoritarian regimes. In China there is no dispute. All laws, court procedures and verdicts are inextricably subject to the diktats of the Chinese Communist Party. One of the reasons for the current financial success of Hong Kong is that the former British colony’s legal system remains separate from the mainland until 2047, thus ensuring companies of a fair hearing in any commercial dispute.
Russia started to inch towards an independent judiciary after the collapse of the Soviet Union. Some say it actually made great strides in that direction before Putin came to power. He quickly realised the advantages of controlling the judicial system. Steven Lee Myers reported in the New York Times, “Russia is still a country where suspects can be detained indefinitely, where arbitrary, politically and even economically motivated prosecutions are common, where coercion of suspects is rampant, where the police can stop anyone on the street without any reasonable cause.”
In Turkey, it is no coincidence that Erdogan’s new constitution which he pushed through in a questionable referendum grants the president the power to appoint judges without reference to parliament. Neither is it surprising that a number of lawyers and judges are now languishing in Turkish prisons.
The authoritarian countries have institutionalised judicial prejudice because the legal system is another instrument for imposing the political will of the government on the people. It is often said that the law is an ass. Personally I would rather be judged by an ass than a political hack. As a former Indian Supreme Court judge once said, “It is not the law, but the lawmakers who are the asses.”
Author of Encyclopedia of the Cold War and editor of Lookaheadnews.com