The courts are the backbone of the rule of law
March 19, 2007
We often hear about the Rule of Law and especially about the need for government to ensure that it carries out its functions with due regard and compliance with the law. But what is this thing that we call the Rule of Law? And is the Rule of Law the sole responsibility of the government?
Do you recall the Rule of Law marches? These marches, in zeroing in on the death squad issue, obscured the more fundamental meaning of the Rule of Law. And so many out there, whenever they hear about the Rule of Law, simply feel that it refers to an obligation of the government to act in a lawful manner.
The most simplified definition I have come across about the Rule of Law was given at the 13 th Commonwealth Law Conference in April of 2003. Ron Heinrich, the then President of the Law Council of Australia quoted A.V. Dicey in paraphrasing three senses of the Rule of Law.
Firstly, the Rule of Law implies that government should not use its coercive power in an arbitrary manner. Secondly, everyone is subject to the ordinary law determined in ordinary courts. Thirdly, rights are not just consequences of constitutional statements but of judicial determination by ordinary courts.
The last two senses reveal the pivotal role that courts play in guaranteeing the Rule of Law. One sense of the Rule of Law implies that it is the courts that determine the law. Then there is the sense that we can speak of rights but these rights do not just flow from constitutions but from judicial determination by the courts.
Thus, while someone could speak about having freedom of expression guaranteed by the constitution, the courts have determined that this right is not absolute and does not allow someone to shout “fire” in a crowded cinema. It is thus important that we recognise the role of the judiciary in not only circumscribing rights but also of determining whether these rights have been violated.
According to Heinrich, “The Rule of Law is a joint venture of the entire society. Its strength comes from a commitment from all quarters, but that commitment cannot simply be assumed and then ignored. It is in maintaining and building a commitment to the Rule of Law that lawyers hold a special duty beyond that owed by every participant in civil society.”
Respect for the Rule of Law extends to members of the Bar. It is for them to test the legality and propriety of executive action in a court and law and not to simply pronounce on the constitutionality of actions even before they are decided in a court of law. To do so would be to co-opt the powers of the Court. To do so brings the Court into disrepute.
If lawyers can decide on matters even before the Courts have pronounced on them, then why bother going to the courts at all? When a lawyer speaks to his client about rights he is proffering an opinion. When the courts speak on this issue it does so with legitimacy. The job of lawyers is to advise their clients on the law. It is not for lawyers to hold themselves out as adjudicators of the law, in as much as they may hold an opinion as to the legality of constitutionality of the actions of the executive and the coercive arm of the State.
The Rule of Law is applied to everyone and while sometimes decisions of the Courts can be protracted, there can be substitute for due process because without it the very foundation of society ruled by law would fall apart.
I therefore would like to urge that the Rule of Law be respected and nothing be done to undermine this most important principle of good governance.
Within law-based societies there must be mechanisms within which disputes could be settled. It is hoped that in the years ahead everyone with an interest in upholding the Rule of Law, whatever our preferences for specific outcomes in cases, would allow the Courts to adjudicate on the constitutionality and legality of executive actions.
If public pressure or legal opinion takes precedence over due process and the settling of disputes in a court of a law, then the Rule of Law will be corroded and irreparably impaired.
There is much wisdom in urging not just only compliance with a particular law, but moreover in encouraging a culture of lawfulness. Unless this applies to both government and corporate clients, the Rule of Law would be corroded.