Upholding the rule of law: A reflection

August 14, 2008
Singapore Democrats

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Singapore Democrats

FORMER British prime minister Tony Blair gave a speech about the importance of the Rule of Law at the University of Malaya in Kuala Lumpur two weeks ago. It speaks also to the situation in Singapore. We reproduce excerpts of it here.

If you’re like me and spend time in the company of a young child, you will have watched the wonderful movie Ratatouille about a rat that became a great chef in partnership with a young man in Paris.

The rat’s father is horrified at the fraternising with humans, the enemy: “You can’t change nature,” he shouts at his son.

“Dad,” the son replies, “change is nature.”

Today, the context of change in which the law operates is greater than ever before. From the rise of China and India to the development of whole new business sectors and industries with extraordinary speed – the world has its finger on the fast forward button.

Adapt or fall behind. That is increasingly the message for companies, countries or people.

Into this message, where fits the rule of law? It might be thought that it would be swept away by the same tide of change. Instead, it occupies a place today not less important but more so, in ensuring globalisation is benign in its effects. Far from losing relevance, the rule of law has gained it.

As prime minister, the application of my commitment to the rule of law was sometimes severely tested. You come up against the insistence that the law comes first, and the law is the law interpreted by judges.

Whereas the government wants to go crashing through obstacles, desperate to implement change, the law sometimes stands in the way, hand upraised, saying: Until there is due process, there will be no due progress. Sometimes the law will say No: This far and no further. And it’s all very well to say: That’s obvious. Of course the law should do that; anything else is totalitarian.

But take some specific examples and you will see how open to challenge this is, when you are in the harsh reality of politics.

In the aftermath of Sept 11, 2001, Britain passed new anti-terrorist laws. Some years later, these laws were subject to a legal case under the Human Rights Act. We had sought to say to suspected terrorists: You can leave this country freely; but if you stay in Britain, you stay locked up. We couldn’t be sure that we could successfully prosecute these people.

The British public is greatly attached to the rule of law. But overwhelmingly it supported our position as a government. But the House of Lords held that these anti-terrorism laws were contrary to the Human Rights Act.

I remember being absolutely furious. I could see the terrorist threat. The intelligence about it was daily. The capacity of these people to do evil was manifest. The House of Lords, I felt, seriously misjudged the threat and misunderstood the only practical way of dealing with it.

Indeed, a few months later, terror struck London and over 50 innocent people died in the worst terrorist attack London ever saw.

I recall pacing up and down my study at 10 Downing Street, berating the court and expostulating at the ludicrous way they sought to substitute their judgment for mine. A member of staff concurred and added: “They should be stopped from ruling in these cases.”

Immediately I turned round to him and said: “Oh no. That would be completely wrong. I profoundly disagree with them but I profoundly believe in their right to do it. I think they have made the wrong judgment. But I think it is right that they can; that they are above me, not me above them.”

So there is an essential, perhaps natural, tension, between those exercising political power and the judiciary exercising the rule of law.

For my part, I was frequently angry with what I saw as a creeping judicial tendency to make the law rather than to interpret it. Justice Heydon of Australia has stated that judicial activism, taken to extremes, can spell the death of the rule of law.

But the explosion in administrative law and human rights cases has blurred the lines of demarcation between law and politics. Especially when governments are carrying out their responsibility with regard to national security or making decisions clearly and plainly in the political domain – and doing so not out of caprice but a genuine appreciation of public interest – courts should be reluctant to intervene.

Notice I don’t say: should never intervene. But they should guard against substituting their political judgment for that of the elected politician. Judges simply do not bear any direct responsibility if, as a result of their decisions, government cannot, for example, stop a terrorist attack. The buck stops with government, not the judges. With the ultimate responsibility should come the ultimate power.

So let us be clear: The adherence to the rule of law can give governments a serious headache. And courts are made up of humans, not divines. Their own instincts and beliefs can play a part in their judgment. A 50/50 case can turn on their subjective views, not some objective yardstick, and such views can translate into personal prejudices.

There are dangers in judicial activism. But they are ultimately outweighed by the benefits of a free and independent judiciary. Fundamentally, we politicians are better below the law than above it.

And this is where the whole question of the rule of law takes on a new and even greater meaning for today’s world. Its proper place in a nation has an impact and import far wider than constitutional principle.

The rule of law means the following: An independent judiciary, one that is independent of government and not dependent on it or subservient to it. Unless the public accepts that the judiciary is independent, they will have no confidence in the honesty and fairness of the decisions of the courts.

This judicial independence has a corollary: a government that accepts such independence and won’t interfere with it. It means judges free from any taint of corruption. A corrupt judiciary is the mark of a country in decline.

As Sultan Azlan Shah has observed, public confidence in the judiciary is based upon a number of criteria. These include judicial independence, the integrity of the adjudicator and the impartiality of adjudication.

The rule of law also means a Bar of quality and integrity, where certain standards are considered not optional but absolute.

These principles are clear and obvious. Less clear and less obvious are those things that go to make up the content of the rule of law. You can have a legal system that is independent of the executive, where the judges are honest but where the processes of justice are slow, ineffective and outdated. This is where reform of the judicial system is not a betrayal of the principles of the rule of law but can often be the only way of salvaging them.

A legal system where cases take years to be heard, where justice is only available to the wealthy, the legally aided or the obsessive is not a capable system. As in the old adage, justice delayed is justice denied.

The rule of law also means laws that are clear, that can be understood. It means rules of procedure that are transparent; rules of evidence that make sense and are fair; and a process that as a whole tends towards the efficient and proper relationship between law and real life.

Why is the rule of law so important today? The answer, very simply, is this: Because today, more than ever, the rule of law is an essential part of stable and good governance – and stable and good governance is indispensable to a modern and successful country.

This arises from the globalised nature of the 21st-century world. Our economies are subject to huge forces of globalisation – creating new industries in place of old, new ways of working, new technologies, new paradigms of success that take root in an unbelievably short space of time. In such a world, a number of consequential developments are happening.

Capital is footloose – vast amounts of it. There has been a huge expansion of financial liquidity, new financial instruments dragging enormous corporate, economic and then social change in their slipstream. You may agree or disagree with these developments but it is impossible to deny their salience.

The global footloose capital is searching for a stable place to invest. It wants to know that its investment will be properly protected by proper rules, properly administered. It wants to be sure that if it enters into a contract, its contractual partner – who can, if things go wrong, be known hereinafter as ‘the defendant’ – is going to have to argue the case on the merits, not be able to purchase it. A business looking to invest wants to know there are laws and they will be obeyed.

Now, of course, resource- rich nations are sufficient honey pots that these strictures can often be laid aside. But increasingly that is not the case. There is a trend, starting with the Extractive Industries Transparency Initiative, which I helped establish as prime minister, towards ensuring global rules for such global players. The players themselves prefer the certain and the fair to the arbitrary and the unfair.

Likewise those young people – the ones who will develop the technological breakthroughs – they will go where they feel at home. And that will be where there are rules; where the rules are the same for everyone and are fairly and evenly applied.

This is an almost utilitarian argument for the rule of law. It argues that from self-interest, the rule of law should be accorded respect. The whole point about globalisation is that it is pushing the world together. The term ‘global community’ is a cliche precisely because it’s true. Such a community only functions, as indeed any community does, through common values.

If this is true, then the global community, no less than national communities, must hold values in common in order to function effectively and cohesively. The rule of law is surely one such value.

A final reflection, however: I would never want to justify the rule of law solely on utilitarian grounds. I believe there is a more profound reason for its centrality.

I believe the rule of law fundamentally dignifies human existence. It lifts us out of the barbarous wastelands governed by brute force and lets us occupy the fertile terrain of predictable justice. It sets an ambition not just for our laws but for our souls. It civilises, it inspires. It takes us to a higher and better place.

In the end these two arguments for the rule of law – the practical and the principled – come together.

The rule of law is an indispensable part of a successful nation state. It is morally right and politically wise.