The rule of law
November 19, 2002
The rule of law is the basis on which constitutional democracies are founded. It means simply that there are laws in place that govern the conduct of all citizens. These laws are interpreted and pronounced upon by judges and magistrates in cases brought before them, civil and criminal. The ideal is that the law should have the same application to everyone.
Hearing cases, listening to witnesses, deciding what evidence is admissible, reading the relevant case law and applying it to the facts is not easy. Doing it well requires a certain amount of legal knowledge and experience and a suitable temperament. Judges and magistrates being human can make mistakes. But once they do their best to apply the law according to established principles the system will work and the legal basis on which the society exists will be maintained.
Problems arise when there is interference of one kind or another with the judicial process. Historically, the obvious example of this is when governments exert pressure on judges to give decisions favourable to them. That can lead to judges straining their interpretation of the law and betraying their function. The pressure can be direct or indirect. Obviously, pecuniary inducements by citizens to judges or magistrates in an effort to influence their decisions is an example of direct subversion of the legal process. But there can be other less obvious forms of pressure being exerted on members of the judiciary. If, for example, lawyers say publicly that a particular decision will indicate whether the judiciary is independent or free from political interference that is an obvious attempt to interfere with the judicial process by frightening or putting pressure on the judge. If media persons urge crowds to turn up at court for a decision what can that be other than an attempt to pervert the course of justice by putting pressure on the court. What if the decision is unfavourable to the apparent interests of the crowd, will they be requested by those media persons to disperse peacefully and respect the decision?
A decision in legal cases is rarely completely straightforward. Evidence has to be weighed, previous cases have to be interpreted and applied. Once the judicial person makes it clear how he or she has arrived at the decision, which is almost always done (though the quality of the reasoning and presentation may not always be what one might hope for) the only recourse of the losing party should be to follow the prescribed procedures for appeal if available. It is also quite proper to offer structured criticism of a decision as is routinely done abroad in professional journals.
Lawyers have a duty to their clients to present their cases thoroughly and fairly, to the best of their ability. But they have a higher duty to the court (they are officers of the court) to practice their profession dispassionately and with due decorum and to uphold the highest ideals of justice. They should never try to obtain a `victory' in the court by any means other than their presentation of the evidence and the law. The moment they go beyond that they are threatening the foundation of the edifice on which our society rests.