In the Western world, the view prevails that democracy is a better form of government than any other. Probably it is. But the assertion of the superior moral value of democratic government compared, for example, with the organization of society according to moderate Muslim principles, ought not to be conceded without examination. In the light of Guantanamo Bay, Abu Ghraib, Fallujah, the other horrors of the Iraq war, and the continuing revelations about so-called extraordinary rendition — a fancy phrase for kidnapping — the Muslim world may not be overimpressed with protestations about the rule of law. Muslims generally regard such ideas as self-serving hypocrisy. The scale of the outrage in the world of Islam is enormous. The outcome for world peace and stability is the great question of our time.
From a Western perspective, the question is whether foreign governments have used 9/11 as cover to justify their crackdown on human rights. Mary Robinson, one of the great lawyers and international public servants of our time, said last month of the consequences of 9/11: “Unfortunately, what I saw and heard was undemocratic regimes using the tragedy in the United States of 9/11 to pursue their own repressive policies, secure in the belief that their excesses would be ignored. New laws and detention practices were introduced in a significant number of countries, all broadly justified by the new international war on terrorism. The extension of security policies in many countries has been used to suppress political dissent and to stifle expression of opinion of many who have no link to terrorism ... One ambassador put it to me bluntly in 2002: ‘Don’t you see, high commissioner? The standards have changed.’” It is a contemporary verdict which nobody can seriously challenge.
History has shown that majority rule and strict adherence to legality is no guarantee against tyranny. Hitler came to power by democratic vote. Moreover, in Nazi Germany, amid the Holocaust, pockets of the principle of legality (for what it was worth) sometimes survived. But at or after Nuremberg nobody had any doubt what is torture. That, at the highest levels, the US administration has recently persistently tried to water down what is torture is deeply depressing for our times.
In the apartheid era, millions of black people were subjected to institutionalized tyranny and cruelty in the richest and most developed country in Africa. What is not always sufficiently appreciated is that by and large the nationalist government achieved its oppressive purposes by a scrupulous observance of legality. If the judges applied the oppressive laws, the government attained all it set out to do.
In Chile, following the coup in September 1973, thousands were arrested, tortured and murdered on the orders of Gen. Pinochet. The civilized and constitutionally based legal system of that country had not been formally altered. It was not necessary to do so. The police state created by Pinochet intimidated and compromised the judiciary and deprived citizens and residents of all meaningful redress to law.
These examples demonstrate that majority rule by itself, and legality on its own, are insufficient to guarantee a civil and just society. They demonstrate the dangers of uncontrolled executive power. They also show how it is impossible to maintain true judicial independence in the contaminated moral environment of an authoritarian state.
Britain has become a multicultural society in which the need to protect the rights of minorities has become ever more important. The need to protect individual rights has come center stage. The public is now increasingly looking not to Parliament but to the judges to protect their rights. In this new world, judges accept more readily than before that it is their democratic and constitutional duty to stand up for individuals against the government. The greater the arrogation of power by a seemingly all-powerful executive which dominates the House of Commons, the greater the incentive and need for judges to protect the rule of law.
One’s first instinct may be that undemocratic legislation is unthinkable in our country. We should trust the government. But is that a sufficient answer when the people are entitled to expect objective accountability from those in power? It must also be remembered that absolute power encourages authoritarianism, which is a creeping phenomenon. Our government has been prone to it.
One recent example is section 81(6) of the Asylum and Immigration (Treatment of Claimants etc) Act 2004. The section replaced immigration adjudicators and tribunals with a single-tier appeal tribunal. In isolation it may be unobjectionable. But the section seeks in effect to oust the jurisdiction of ordinary courts in all but limited cases. It will preclude judicial review on the grounds of lack of jurisdiction, irregularity, error of law, breach of natural justice and any other matter. These are the very areas in which the higher courts have repeatedly been called on to assert the sovereignty of the law. The section attempts to immunize manifest illegality. It is an astonishing measure. It is contrary to the rule of law. It is contrary to the constitutional principle on which our nation is founded that Her Majesty’s courts must always be open to all, citizens and foreigners alike, who seek just redress of perceived wrongs. It is a wholly disproportionate approach to the undoubted abuses in the immigration system. Instead of addressing those abuses, the section by and large abolishes justice and due process. If such legislation is effective in this corner of the law — not even involving the endless war against terrorism — what are the portents for our democracy? Why should the section not serve as a model in other areas?
Guantanamo Bay will forever be a historical reference point for our time. It is a stain on American justice. Only the present US administration tries to defend the utterly indefensible. Unfortunately, our prime minister is not prepared to go further than to say that Guantanamo Bay is an understandable anomaly. In its feebleness, this response to a flagrant breach of the rule of law, reminiscent of the worst actions of totalitarian states, is shaming for our country. While our government condones Guantanamo Bay, the world is perplexed about our approach to the rule of law. If the matter were within the jurisdiction of British courts, our judges would unanimously condemn it. Were our government now to condemn Guantanamo Bay, it would at last be a powerful signal to the world that Britain supports the international rule of law.
