THE RULE OF LAW: IDEALS AND REALITIES

THE RULE OF LAW: IDEALS AND REALITIES

By Sir Sydney Kentridge Q.C

You may well be wondering what more can at this stage be said about the rule of law, with or without capital letters. You may well think any further discussion by me before this legally sophisticated audience can produce nothing new, and when I have finished you will probably feel that you were right. Nonetheless, a century and a quarter after Dicey first placed the concept of the rule of law at the heart of the United Kingdom’s unwritten constitution it has remained a subject of debate. How is it to be defined? In an era of constitutional instruments with explicit bills of rights why do we still need to use an expression so general and undefined as the rule of law?

Yet use it we do. In the United Kingdom the Constitutional Reform Act 2005 provides in its first section that the Act does not adversely affect “the existing constitutional principle of the rule of law”. In a case in the House of Lords in 2005 Lord Hope said “The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based”. Section 1 of the Constitution of the Republic of South Africa (1996) includes among the values on which the state is founded “Supremacy of the constitution and the rule of law”. Within the Commonwealth these examples could be multiplied. The concept has travelled far beyond the Commonwealth. The preamble to the European Convention on Human Rights records that the governments of the European countries which are parties to it have a common heritage of, among other things, the rule of law.

In the United Kingdom and, I think, elsewhere in the Commonwealth the discussion of the rule of law has been re-invigorated by Lord Bingham whose death last year deprived us of the greatest English judge of his generation. His celebrated Cambridge lecture of 2006 was later expanded in his book “The Rule of Law” published in 2010. I am, of course, indebted to that book. Today it is a natural starting point for any further discussion of the concept.

Lord Bingham begins with what he calls a partial definition of the rule of law –

“All persons and authorities within the state, whether public or private should be bound by and entitled to the benefit of laws publicly made taking effect (generally) in the future and publicly administered in the courts.”

Lord Bingham called this only a partial definition because it says nothing about the content of those “laws publicly made”. Taken alone it would cover the publicly made laws of slavery as enforced in the southern states of the USA before the civil war, or the apartheid laws of South Africa before 1994. Indeed, at one time the defense of the apartheid government to accusations that it flouted the rule of law was founded on a similar definition. Detention without trial or legal process, internal exile of whole black communities, enforced racial discrimination – all these measures were authorised by law. Mr. B.J. Vorster, Minister of Justice and later Prime Minister of South Africa said in response to criticism of these infringements of the rule of law that there were as many interpretations of the rule of law as there were people. Mr. Vorster could not be called an enthusiast for the rule of law. Following, if I remember rightly, a rare judgment striking down one of his emergency regulations, he made the immortal statement, “rights are getting out of hand”.

I am not sure that we need worry about finding a precise definition. One recalls the dictum of Potter Stewart J. in the United States Supreme Court in a case about pornography – “I cannot define pornography, but I know it when I see it”. On the whole we know a rule of law state when we see it – or at least we know when the rule of law is absent.

What is certain is that the content of what we mean by the rule of law has expanded. In modern times – say the last fifty or sixty years – there has been a recognition that certain individual rights are “fundamental”, and deserve particular respect from executive, legislature and the courts. This is true even of states within the Commonwealth which have no written constitution. In England quite apart from the Human Rights Act there has been judicial recognition (pioneered by Lord Justice Laws) that some common law rights were to be classed as fundamental. So it is no surprise that Lord Bingham fills out the concept of the rule of law by including in it respect for and enforcement of a now familiar bundle of fundamental rights.

Lord Bingham gives a number of historical examples illustrating the development of the rule of law, mainly but not entirely in England. These include Magna Carta, the Petition of Right of 1628, which established that the King’s order could not of itself justify an imprisonment, and the abolition of the Star Chamber in 1640, the practical effect of which was to abolish any judicial reliance on torture. It was only well into the next century that other European states abolished the practice. Of particular interest is the Habeas Corpus Amendment Act of 1679, which outlawed the practice of sending prisoners to distant places beyond the reach of a writ of habeas corpus – a practice revived in this century by the United States in sending prisoners to Guantanamo Bay - a place not within the sovereignty of the United States and therefore, it was said, beyond the reach of habeas corpus. Fortunately, a majority of the Supreme Court rejected that argument, holding in accordance with English authority cited to the Court that the availability of habeas corpus depended not on legal sovereignty but on the existence of actual power to imprison and release.

Lord Bingham’s historical examples included the Act of Settlement 1701 which by giving judges security of tenure helped to establish their independence, and the adoption in 1789, and the adoption in 1789 of the constitution of the United States of America.

I should like to add two examples of my own of the rule of law in action.

My first illustration is from England in the reign of Queen Anne. In 1708 a most unfortunate event took place in London. Blackstone tells the story.

The Russian ambassador to England had been forcibly removed from his coach and arrested for a debt of £50 which he had incurred whilst in London. The ambassador was very soon released but the Czar of Russia greatly resented this breach of diplomatic privilege as an affront to himself. The Czar was Peter the Great, no less, and he demanded that the Sheriff of Middlesex and all others concerned in the arrest should be punished with instant death. Queen Anne, through her secretary, sent a reply in memorable terms. The secretary was directed to inform the Czar that Her Majesty “could inflict no punishment upon any, the meanest of her subjects, unless warranted by the law of the land: and she therefore trusted that His Imperial Majesty would not insist upon impossibilities.” This splendid reply no doubt astonished Peter the Great who would hardly have understood the idea that a monarch’s powers could be limited by law.

I go forward now nearly three hundred years to the Republic of South Africa in the year 1998. The President of South Africa, Mr. Nelson Mandela, had appointed a judicial commission to inquire into the administration of rugby football a subject of great public interest in South Africa. The gentleman who then controlled the sport contested the validity of the appointment of the commission alleging that the President had not properly considered the matter himself, as the relevant statute required, but had merely rubber-stamped the decision of a cabinet member. President Mandela filed a detailed affidavit showing that he had made the decision himself after full consideration of the facts. What happened next was that the judge in the case ordered President Mandela to appear in his court to be cross-examined on his affidavit. This order caused some shock, being seen as an affront to a revered President. It also caused considerable astonishment: not only was there no precedent for such an order against a head of state but there was much precedent against it. (If I may venture a respectful opinion about the Judge who made the order for the cross- examination he was an unreconstructed relic of the apartheid regime.) Mr. Mandela did not move a higher court to set the subpoena aside as he might have done. He did not claim executive privilege. On the contrary, whilst making clear his resentment of what he saw as a insult to his office, he stated that an order of court had to be obeyed by all persons, whatever their positions. He stood in the witness box in the open court room in Pretoria under cross-examination for five hours answering the questions put to him with his customary dignity and courtesy. This was a leader and a teacher demonstrating to his country the meaning of the rule of law.

These examples were, each of them, great forward steps in the progress of civilization. Yet they constitute only a partial version of constitutional history. There is much to set against those victories for the rule of law. In the United Kingdom they did not prevent the Highland Clearances of the early decades of the 19th century or the persecution of dissidents during and after the Napoleonic wars. No rule of law restrained the travesties of justice perpetrated during those times by judicial monsters such as Lord Braxfield in Edinburgh. In 1772 Lord Mansfield in Somerset’s case ruled that no person could be held in slavery in England. Yet slavery continued to be practised and tolerated in British colonies for some 60 years more. The rule of law in the British overseas empire was in general what we might describe as attenuated. It did not prevent or punish the cruelties of Governor Eyre in Jamaica in 1865, nor the massacre committed by General Dyer at Amritsar in 1919. As late as the 1960’s among the last vestiges of direct colonial rule, we saw the forced removal of the small but long-established permanent population of the Chagos Islands, in order to accommodate a United States naval and air force base on the island of Diego Garcia – an act of governmental injustice perpetrated by virtue solely of the royal prerogative without parliamentary or judicial authority.

The rule of law in the United States also had a fitful growth. The Declaration of Independence was a resounding affirmation of liberty under law –

“We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain inalienable Rights; that among these are life, liberty and the pursuit of happiness.”

But in 1857 in the Dred Scott case the United States Supreme Court held with only one dissentient that “all men” did not include black men.

Even in the modern era of democracy and human rights governments have not found it easy to live up to the ideal of the rule of law. In the United States, after the terrorist outrages of 9/11, the Bush administration reacted with measures such as indefinite detention of suspects without trial, interrogations under torture and stringent limitations on access to the courts. Within the Commonwealth reactions have been less extreme. There is, as far as I know, no equivalent to the American “Patriot Act”, no Guantanamo Bay. But there have been controversial restrictive measures which I shall say more about in due course.

The truth is that at no time and in no country can we take the rule of law for granted. In the Commonwealth at least this is not necessarily because our governments are wicked or authoritarian. Government in this age is a difficult task. In general human rights are not absolute. They must be balanced against competing rights, and against other public interests. In the age of terrorism there are real threats to public safety. Those who govern us are not all-knowing; they grope for solutions. Sometimes their solution entails overriding individual liberties in favour of other public interests. The courts cannot always resist this. Indeed, honest and independent judges may accept the rationality of the legislature’s view of the proper balance to be struck between conflicting rights.

This should not be too dispiriting. Realism is not to be taken as pessimism. The rule of law continues to have its successes as well as its setbacks. The struggle is an unending one. But in our commitment to uphold the rule of law we should not assume that our government and our legislators must be our enemies. Many, if not most, of the advances in the rule of law have come not from the courts but from the other branches of government. The United Kingdom’s Human Rights Act is an obvious example. Nor does the rule of law require that judges should always find against the government. Even in relation to the rule of law there is room for a sense of proportion.

In an address which he recently gave on counterterrorism and the law, Arthur Chaskalson, the first President of the Constitutional Court of South Africa and former Chief Justice of South Africa, said this –

“Courts cannot be expected to carry the full burden of what might be required. In a democracy parliament and civil society are also defenders of the rule of law and it is essential that they should play their part in its protection.”

We tend to see the rule of law as depending on the process of judicial review. In the celebrated Minerva Mills case in the Supreme Court of India  Bhagwati J. said that if there was one feature of the Indian Constitution which more than any other was fundamental to democracy and the rule of law it was the power of judicial review. That great constitutional lawyer, the late Sir William Wade, wrote that the courts’ inherent power of judicial review was the “fundamental mechanism for upholding the rule of law.” Nonetheless, as Mr. Chaskalson said, the judges alone cannot be expected to bear the whole burden.

I believe that all but two of the members of the Commonwealth have written constitutions. These constitutions either expressly or by implication embody the power of judicial review. But written constitutions are not writ in stone. They may be amended, usually by vote of a special but not unattainable majority. I know that in the Minerva Mills case of 1980 and in several other cases the Supreme Court of India has held that certain of the rights embodied in the Constitution of India are so fundamental that Parliament’s general power to amend the Constitution did not extend to such rights. Among the inviolable features that have been so identified are judicial review and the independence of the judiciary. I believe that the Supreme Court of Mauritius has, in a different context, also held there to be implied limitations on the legislature’s power of amendment under the Mauritius Constitution. The reasoning in these cases is impressive. However, the vital point is that in India and Mauritius the legislative and executive branch accepted these rulings or at least decided to avoid a conflict with the judiciary over them. The political reality which a hard look at the world about us forces us to face is that if a legislature or a government is sufficiently confident of popular support and if the issue at stake is sufficiently important, it may risk a conflict with the judiciary or even in extreme cases (as in Fiji and Zimbabwe) replace an independent judiciary with one to its own liking. One of the authors of the American constitution famously said that the judiciary was the weakest, the least dangerous, branch of government: it possessed neither the sword nor the purse. Thus it must rely for its power on the respect and support of the other two branches and, ultimately of the people whom they represent. As lawyers it is therefore our special duty to foster and strengthen public respect and support for the judiciary in its role as guardian of individual liberty.

Is the rule of law separable from democracy?

Dicey, writing on the rule of law in Britain in the late 19th and early 20th centuries took for granted the democratic nature of the British constitution, although universal suffrage in Great Britain only came some 40 years after his great book on the law of the Constitution was first published. You will not, I think, find the word “democracy” in the index. What he saw as distinguishing the English system from the system of government in European countries was not democracy but the fact that in England at least from the end of the 17th century onwards no person could lawfully be made “to suffer in body or goods” except for a distinct breach of the law. Dicey’s paradigm example was the treatment of Voltaire. The literary hero of France, as Dicey calls him, was in 1717 sent to the Bastille for a poem he had not written and whose author he did not know. A few years later he was viciously beaten by the servants of a noble duke in the presence of their master for some real or supposed affront. Far from having any redress, Voltaire, because he complained of this outrage, was again sent to the Bastille. This could not have happened in England.

Dicey, in the last edition of his book, writing in 1914, rather patronisingly (and as we now know extremely optimistically) said that in the 20th century an English observer might well say of most European countries that the rule of law was nearly as well established there as in England. But he continues, foreigners (his word) still rightly saw the absence of arbitrary executive power to be the essential characteristic of the English constitution.

In our world however it is difficult to visualise a state in which the rule of law exists in the absence of genuine democracy. In a lecture given at Oxford in 1951 Mr Justice Owen Roberts, a distinguished Justice of the United Supreme Court, said that the rule of law was an idea recognised by what he called “highly civilised nations.” Asked what countries he would include in that category he said:-

“My test would be; first, a country that has a representative form of government; second, a country where individual liberty and freedom are protected by law; (third,) where there are bounds to what the government can do to an individual.”

This formulation, with democratic government as its starting point, is both attractive and realistic. Naturally it excludes from the category of highly civilised nations a number of states of considerable military and economic importance including some which on other criteria could no doubt be regarded as civilised.

I have not tried to make a list of such countries, but they include powerful and influential countries such as China, the Russian Federation and Iran which, whatever their other claims to civilization, fall outside Justice Roberts’s definition.

Unhappily, even in countries which have democratic constitutions civic unrest, ranging from local uprising to outright civil war, may make the yardstick of the rule of law seem irrelevant. This was a point forcefully made by Johan Kriegler, a former judge of the South African Constitutional Court and an internationally experienced observer and analyst of national elections. His subject was the rule of law in post-colonial Africa, based on his personal visits to and study of a number of countries. One of them was Sierra Leone. Since the ending of the civil war there had been three general elections and relative peace had prevailed. Nonetheless, Mr Kriegler summed up what he saw in these words: 

“In the absence of elementary essential services such as potable water, rubbish and sewage disposal, electricity and trafficable roads, the quality of life for most Sierra Leoneans is so abysmal that speaking of the Rule of Law verges on the obscene.”

There are other countries, in more than one continent whose problems go too deep to be analysed in rule-of-law terms.

There are some aspects of the rule of law on which, among ourselves, we take different views. Trial by jury is one of them. The death penalty is another. But one aspect of the rule of law, on which we would certainly all agree is the independence of the judiciary.

It is secured, in part, by laws which give the judges security of tenure and in part by ensuring as far as possible that they are persons of integrity, appointed on merit rather than by reason of political connection. Independence here means more than independence from government direction. It means also that judges in making their decisions should as far as humanly possible not be influenced by public opinion, or by any sense of obligation to the government or to any individual, party or pressure group.

There is a particular threat to judicial independence which should concern us. That is the growing tendency for politicians and the press to attack in intemperate and even vituperative terms judges who have given decisions with which they disagree.

Newspapers all too often respond to an unpopular decision with personal attacks on the judges concerned. Judges must accept strong criticism, even unfounded criticism. Lord Atkin’s statement that justice is not a cloistered virtue has become a legal cliché. As Lord Judge, the Lord Chief Justice of England and Wales has recently said, one of the attributes we expect of an independent judge in the moral courage to make decisions which will be unpopular with politicians or the media or the public. Judges, it has also been said, must have broad backs, and usually they have. The real mischief of unwarranted attacks on the motives and integrity of the judges, however, is not any hurt to the judge’s feelings it is that they undermine that respect for the judiciary without which, as I have suggested, the foundations of the rule of law are undermined.

There is no easy remedy. Contempt of court in the form once known as scandalizing the judges has in many Commonwealth jurisdictions fallen into disuse – although not in all, as the recent prosecution and imprisonment of a writer, Mr. Shadrake, for his criticisms of the application of the death penalty by judges in Singapore has shown. In any event contempt proceedings are an unattractive response to criticisms of the judiciary. What we as a profession can do is to defend the judiciary in its constitutional function – as our colleagues in Pakistan, Uganda, Kenya and elsewhere have tried to do. Yesterday we heard of the stand taken to defend the remnants of the rule of law in Zimbabwe and Fiji by, respectively, Mr. Tinoziwa Bere and Mr. Graham Leung, at considerable personal risk. The least that we can do is to speak for the judges who by custom do not speak in their own defence.

There is another issue which concerns us in many of our countries – the effect on the rule of law of anti-terrorist legislation. I shall speak about the United Kingdom, not because it is unique, but because I am not qualified to discuss developments in other jurisdictions.

Many of you will have been at the session where Lord Neuberger, the Master of the Rolls, and Mr. Tim Otty QC explained and discussed the United Kingdom’s system of control orders, so I shall not go into the details of those measures.

In summary, the problem which arises is that on the basis of confidential intelligence there may be good reason to believe that there is a real risk that a particular person may commit an act of terrorism, but there is insufficient admissible evidence to charge him with any crime. The United Kingdom legislation provides that such a person may be made subject to a control order. A control order is made by a cabinet minister, the Home Secretary.

Very briefly, it is a form of house arrest, of varying degrees of severity. These orders are subject to challenge before a High Court judge. The affected party may be represented by an advocate but the judge may hear and rely on evidence which on national security grounds is withheld from the party and his advocate. To mitigate the obvious unfairness of this procedure special advocates are appointed to act in the affected party’s interest: they have access to all the secret evidence, but they must not disclose it to the party or to his own advocate. The consequence has been that in some cases the person subject to the control order was told little or even nothing of the case against him. Mr. Otty has graphically described his own professional experience of how the system works.

There has been considerable litigation challenging the fairness of the special advocate procedures. The issue came down to this: did the affected person have to be told enough of the case against him to enable him to answer it effectively or could there be cases where the judge was satisfied that the secret evidence was so strong that no disclosure of it could make any difference. The House of Lords following a judgment in the European Court of Human Rights has (fortunately, all or most of us would say) rejected the latter proposition. It has held that details of the secret evidence need not necessarily be disclosed, but the affected party has to be told at least the gist of the case against him - enough to enable him to give effective instructions to the special advocate – that is the irreducible minimum.

That position hardly represents the ideal of a fair trial under the rule of law. But there are some positive features. Bearing in mind that British courts have no power to strike down acts of parliament they have acted vigorously yet thoughtfully to limit the departures from the rule of law. Further, the government and parliament have accepted the decisions of the courts and have not attempted to overturn them by further legislation. A balance has been struck which represents a genuine attempt to reconcile the demands of public safety with the affected individual’s right to a fair procedure. That is some cause for satisfaction – but not of course for complacency. In his judgment in the House of Lords in the case about the special advocates’ procedure, Lord Hope said this:-

“The consequences of a successful terrorist attack are likely to be so appalling that there is an understandable wish to support the system that keeps those who are considered to be dangerous out of circulation for as long as possible. But the slow creep of complacency must be resisted. If the rule of law is to mean anything, it is in cases such as these that the court must stand by principle.”

I would end as I began, with Lord Bingham. At the end of his book on the Rule of Law he asks the question, “What makes the difference between Good and Bad Government?” His own answer is this:

“I would answer, no doubt predictably: the rule of law. The concept of the rule of law is not fixed for all time. Some countries do not subscribe to it fully, and some subscribe only in name, if that. Even those who do subscribe to it find it difficult to apply all its precepts quite all the time. But in a world divided by differences of nationality, race, colour, religion and wealth it is one of the greatest unifying factors, perhaps the greatest, the nearest we are likely to approach to a universal secular religion. It remains an ideal, but an ideal worth striving for, in the interests of good government and peace, at home and in the world at large.”

That may stand as the testament of a truly noble and humane judge.


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[Key note address by Sir Sydney Kentridge Q.C. at CLA Conference, Hyderabad on 9th February 2011]