This is a re-print of part of a blog posting I did in late 2010 concerning the “Rule of Law” and what this currently means in Canada. It is a summary of a talk** given by Her Worship Canada’s Chief Justice Beverley McLachlin. This material is offered in case it helps with the creation of a new international Rule of Law, for the upcoming United Nations session next week.)
Madame Justice Beverley McLachlin, originally from here in B.C. is a brilliant, diminutive, clear voiced lady, currently serving as the first female Chief Justice of the Supreme Court of Canada. She described the importance of the “precious and fragile” Rule of Law. In places where the Rule of Law does not yet exist, the challenge is to build it such that it becomes self-sustaining. This can only happen when three basic necessary rules are being followed, in addition to the presence of already-existing domestic laws.
Her Worship proposed the three principles which entrench and make pure the Rule of Law, the three things necessary in order to establish a legal structure which will stand the test of time, transcending changes in local government, sustaining society through growth and change. Here they are:
1. Universality. All people in society are governed by, and subjected to, the same legal norms and nobody is above the law. Every citizen has the right to be protected by the law, and all citizens are equal in the eyes of the law.
2. Legality. The law must be laid out in advance, so that citizens will know their rights and duties. Ex post facto justice, or “justice after the fact”, is forbidden because the law must apply equally to all. This means that “special justice just for you”, often a feature of social inequality, is forbidden. The Rule of Law should help the most vulnerable of citizens above all, because they are the ones who need the most protection.
3. Accountability. The Rule of Law can only be applied by an independent judiciary. This is where the Rule of Law breaks down most frequently. Without independent judges, those in power are rarely held to account. The Rule of Law does not exist yet in places where human rights are being violated, individually and systematically, and where judges are merely doing the bidding of those in power. Independent judges are a crucial part of any functioning civil society.
As Madame Justice McLachlin pointed out, “Rule by Law” is not the same thing as “Rule of Law”. Some countries do have laws on the books concerning “human rights”, however they are not guaranteeing basic human rights to all citizens. Simply having a codified law does fulfill the second criteria (legality) but the first and third basic principles are absent. Some do not enjoy the full benefits of the law, so it is not “universal”. Judges are not acting independently of government, so the law is not “accountable”.
Her Worship pointed out that although we take it for granted here in North America, the Rule of Law is never completely safe. We always have to keep working on it, even here in Canada. In the current “war on terror” human rights are starting to take a back seat to “security”. Her Worship points out that we have to be very careful. We must not lose our grip on the sanctity of the Rule of Law through our efforts to feel safe. We must not do harm to the very principles underlying our society, while trying to save it.
(**Chief Justice McLachlin was talking at the International Symposium on Human Rights, at the International Bar Association’s annual meeting held in Vancouver in October, 2010)