Canada-China Governance Dialogue Seminar
June, 2005 Ottawa
Introduction:
The Rule of Law is generally understood to have three central features, namely:
- A body of laws;
- The universal application of those laws;
- The impartial interpretation of those laws.
In my view, these features are immutable; the Rule of Law cannot exist without all three of them being present. But the Rule of Law is much more.
Many layers of implications for each of these components are required to make them effective. By “effective,” I simply mean achieving the goals of fairness and justice.
While the central features cannot be changed, the layers of implications are dynamic. They may interact and change and can be addressed differently in different legal and political systems. But it is essential that they be addressed if the Rule of Law is to achieve its goals.
Let me address some of these necessary implications for each of the three central features in turn. My survey will be illustrative rather than comprehensive.
A Body of Laws:
One implication of having a body of laws is that those laws will be respected. This has the further implication that the citizens who are subjected to those laws will have a meaningful role in their creation. Having a body of laws also implies the ability to select the lawmakers through democratic elections and, indeed, the opportunity to persuade your fellow citizens that you yourself should be elected to act as one of their lawmakers.
The manner in which these requirements are addressed may vary in different societies. In Canada, we have extensive laws dealing with elections at all levels of government, and these constantly change to meet new problems. For example, in the past, politicians passed laws to make the electoral boundaries more favourable to the success of the governing political party. This led to the establishment of an impartial process for establishing such boundaries, independent of the Government. Judges are appointed to act as Commissioners for this purpose because of their credibility with the public as being independent and impartial.
However, meaningful access to political participation is an ongoing issue. While public elections are governed by detailed legislation and regulations, being nominated as a candidate is determined by the rules of each political party. While processes are established by those parties, there is occasional criticism of a party leader for exerting undue influence in favour of a particular candidate.
Electoral financing is another major and controversial issue. Again, detailed laws have been enacted to attempt to ensure fairness. However, these have faced constitutional challenges in the courts as being overly restrictive. There is also the problem of political patronage being dispensed by governments with expectations that the favour will be returned through financial contributions. What may have been well-established historically is rapidly evolving into something completely unacceptable to the Canadian people. This issue is currently one of the most visible on the Canadian political stage because of the Gomery Royal Commission.
This leads to another basic implication, namely, freedom of the press and other media. Any meaningful participation in the political (and lawmaking) process would be impossible without an independent press that delights in holding politicians accountable for their bad judgement. Of course, the press also provides a vehicle for informing citizens of political achievements, including any significant changes to the law.
There are also limits on freedom of expression. Libel laws are intended to protect individuals against untrue allegations of improper conduct. Again, courts are relied upon to balance the need for free speech against unfair personal attacks. In some countries, grossly inflated libel awards have been used to silence the critics of corrupt governments with which the courts were complicit.
It is also implicit that laws will be clear and understandable so that citizens may govern their conduct in accordance with them. This includes access to such laws, including judicial precedents. A corrupt judiciary will prefer not to have its decisions made publicly available so that the courts may be more free to reach an opposite conclusion in a future case.
How do human rights and the rights of minorities fit into this broad picture? If the goals of the Rule of Law are to achieve fairness and justice, then it is obvious that laws created by a majority of citizens cannot be used as a vehicle of oppression against a particular minority or group of citizens. In a country with a truly independent and impartial judiciary, the best protection against such a danger is constitutionally entrenched human rights. An independent and impartial judiciary is usually in a better position than elected representatives to make a decision that goes against the popular mood of the public at the time.
The Universal Application of Laws:
The Universal Application of Laws means simply that no one is above the law. The laws are applied equally to all citizens. Unlike the legislative branch of government, which creates laws, it is normally the executive branch of government that is responsible for the application or the administration of those laws. How can the police or other agents of the State achieve the goal of universal and equal application of the laws to all citizens?
The simple answer is that it is impossible. In most societies, there are limited resources for administering laws, so, for example, the police must exercise discretion and set priorities. It is implicit that such discretion will be exercised fairly and objectively. It must not be exercised for some oblique motive such as harassing opponents of the government in power. This, then, implies a degree of independence of the police from the political heads of the executive branch.
Unlike the judiciary, the police cannot be completely independent of the executive branch of government. There must be accountability as well as independence. This requires delicate balancing to achieve a form of “arm’s length” accountability. In Canada, that generally means complete independence in the investigation of offenses and laying of charges, but direct accountability for policies and budgets. Often a commission of citizens is established to act as a buffer between the police and elected politicians.
Of course, the police themselves are also subject to the universal application of the law. A police officer who commits a criminal offense is subject to investigation and prosecution just as any other citizen. However, there is an additional concern. How can the public be assured that the investigation of a fellow police officer will be as objective and rigorous as that involving an ordinary citizen?
In such circumstances, the case will normally be brought to the attention of the police chief, who will ask the police force of another jurisdiction to take over the investigation. Once more, an important mechanism of accountability is a completely independent and vigorous press or other media.
The lack of objectivity on the part of enforcement officers may be more subtle. In Canada, we have had a series of cases over the past decade in which men have been convicted of murders that they did not commit. Many were sentenced to lengthy prison terms before their innocence was established through indisputable scientific evidence.
As a response to each of these tragedies, the government set up public inquiries conducted by a judge or a retired judge to determine what happened and why. This is another example of public credibility of the judiciary being called upon to serve another public purpose besides acting as judges. In the capacity of “Commissioner,” these judges conducted public hearings at which the police, prosecutors, victims, and others testified. After the hearings were completed, a public report was issued in each case.
A common finding on the part of the police, and sometimes prosecutors, was “tunnel vision.” This involves focusing on one suspect early in the investigation and subjectively interpreting all evidence to support the prosecution of that individual. Objectivity is lost because of a strong belief in the guilt of one person, even though that belief is not justified. In some cases, officers deliberately engaged in improper procedures on the strength of an unjustified belief. This is sometimes referred to as “noble cause corruption.”
Lack of objectivity on the part of enforcement may also occur because of unconscious prejudice, a situation that was addressed by a public inquiry into “systemic racism” in the criminal justice system of
Ontario in the mid-nineties. The classic example is a young black male being stopped by a police officer for no other reason than that he is driving an expensive automobile (probably belonging to his mother, who is a brain surgeon). The stereotypical response of the officer is that the wealth displayed by the young man must be the product of criminal activity.
A number of police forces in Canada are taking proactive steps to educate their members about the dangers of tunnel vision and racial stereotyping. These examples illustrate that there is always a human element involved in achieving the goals of the Rule of Law. Failures must be acknowledged and special efforts made to avoid them in future.
Impartial Interpretation of Laws:
The concept of impartiality has two aspects. The first is actual impartiality. The second is the “perception” of impartiality. Judicial impartiality requires that both of these aspects be met. Even if a judge is absolutely satisfied that she is capable of acting with complete objectivity, she must not hear a case if a reasonable apprehension of bias exists on the part of the public. Such a situation might occur, for example, if a litigant in the case is a relative or a recent business partner of the judge. The ultimate issue is public confidence in the judiciary.
Actual impartiality is primarily guaranteed through judicial independence. Judicial independence renders judges completely free from any influence by the executive branch of government. Judges must be completely free to decide cases in accordance with the law and their consciences, without hope of favour or fear of punishment. What are the implications of judicial independence that must be addressed?
The first is security of tenure. In Canada, this means that a superior court judge may hold office until the age of seventy-five. A judge may be removed because of infirmity or serious misbehaviour. The executive branch of government does not have the authority to remove a superior court judge. Under our constitution, a judge may be removed only on addresses of both Houses of Parliament. A Canadian judge has never been removed from office by this process.
Complaints about the conduct of federally appointed judges are dealt with by the Canadian Judicial Council. This body is composed of the chief justices of all the superior courts in Canada. The Council may express to the judge in question its disapproval of her conduct. It may also recommend that he be removed from office. Where such a recommendation occurs, the judge inevitably resigns.
While security of tenure is an implication of judicial independence, there must also be a removal process that does not involve the executive branch. Ideally, it is the judicial branch itself that has the primary responsibility for addressing allegations of judicial misconduct. If the ultimate sanction of removal is required, it should rest with the legislative rather than the executive branch.
The second major implication of judicial independence is the need for adequate financial independence. The Canadian Constitution, as interpreted by the Supreme Court, requires that judicial compensation be determined on the recommendation of an independent commission. The salaries of Canadian judges are well above those of the average Canadian. Regular increases are provided, and there is a generous pension for retired judges and for their surviving spouses.
The importance of financial independence cannot be over-emphasized as being crucial in avoiding judicial corruption. I served on a constitutional advisory committee in relation to the judiciary in Kenya. We found that public confidence in the independence and impartiality of the judiciary had virtually collapsed because of widespread judicial corruption. We reported:
The judiciary must be the one bastion where the citizen may go to challenge the arbitrary or oppressive actions of the state. It must be the safe haven where the most impoverished or abused citizen may find support for his or her legal rights when they conflict with those of the rich and powerful in society. A court of law is the forum where corrupt police officers and government officials may be brought in order to condemn their misconduct and impose punishment for their abuse of public trust. Where justice is not dispensed with impartiality, there is no hope that citizens will be treated with objectivity, fairness, and honesty by other institutions.
In Canada, I cannot think of a single example of judicial financial corruption, although, of course, there has been other misconduct. Without financial independence, judicial independence always will be elusive.
Conclusion:
I have attempted to illustrate that, while there are three core elements to the Rule of Law, their integrity depends upon layers of protections that must be established and supported. Moreover, constantly changing circumstances dictate the need for constant vigilance and ongoing responses to ensure they are effective. My illustrations merely scratch the surface of the underlying texture of the Rule of Law
Ed Ratushny, C.M., Q.C., S.J.D.
President, ICJ Canada
Law Professor, University of Ottawa