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The principle ignored by failing states

Opinion

Australians need to be vigilant to protect the principle of the rule of law, including by questioning the delegation of executive power, argues legal commentator Morry Bailes.

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Australians enjoy a way of life that is the envy of the world, but it is the idea that underpins our lifestyle that deserves greater recognition: the rule of law.

This was made all the more apparent to me this week in Sydney when I joined lawyers from the Asia Pacific, the Americas, Africa, Europe and the Middle East for the world’s largest conference of lawyers, the International Bar Association.

At the opening ceremony, the Chief Justice of Australia Susan Kiefel, federal Attorney-General George Brandis, and IBA President Martin Šolc all spoke about the importance of establishing and maintaining the rule of law.

As Šolc remarked, lawyers ought to be the “whistle blowers for the rule of law”. It is the role of lawyers to call it out if we see its erosion or, as with many developing countries, encourage its establishment and nourishment.

Many of our near neighbours need our help where legal professions are under threat, such as in Malaysia, or where nascent legal associations require support such as in Cambodia, Timor-Leste and Myanmar. Japan has recently invested time and resources in establishing a legal aid call centre in Côte, d’Ivoire – an example of how a country who observes the rule of law can assist a developing one.

But what is the rule of law and why is it so important?

There is no singular definition. It is the idea that neither citizens nor government are above the law. Everyone, irrespective of office and standing, is subject to the law of the land. It assumes and requires independence of the legal profession and the courts. It requires open government. Independent judges judging without fear, favour or influence are at the heart of the rule of law, ruling on the legitimacy of law and even the constituency of parliament if needed, as is presently happening in our High Court in the politicians’ citizenship case.

What the rule of law enables is utterly independent decision-makers applying the law assisted by independent lawyers. Why is that important?

It plays out in every aspect of our daily lives: business contracts are enforceable; if you are wronged you may seek legal remedies; and if accused of a crime you remain innocent until proven guilty. Why? The rule of law.

The rule of law allows for certainty of outcomes in every aspect of our lives because all are subject to law and none may escape it.

… once the rule of law is removed for those who we know are evil, it is removed for all of us.

Contrast that to countries where judges are subject to the interference of executive governments, or are corrupt in dealings with parties; where some members of society or the government escape the law. In those societies there is uncertainty as there is injustice.

Economies suffer, because businesses fear their commercial dealings will not be protected by independent judicial decisions and their rights enforced. As Mark Woods, a recipient of the Law Council of Australia’s president’s medal said this week, the reason why we don’t see Starbucks and McDonald’s on the street corners in all of these countries is that a business owner cannot know whether their ownership and business will be there tomorrow. They operate at the whim of executive government. Thus individuals can resort to private remedies or remain silent and endure unjust outcomes. There is fear, mistrust and, ultimately, a failure of civic society. The rule of law is that “golden thread” that ties societies together and makes them work. It must be defended at all costs and, often, lawyers are the ones who do it.

I was reminded of that when introduced to former President of the Ghana Bar Association Sam Okudzeto who, in defending these principles, has lost his liberty more than once. In Australia our right to freedom of association and expression makes such an outcome unimaginable, but only because of the rule of law. It is also a reminder that in many countries there is arbitrary arrest, judicial secrecy and unclear laws.

Brandis reminded us that executive government should never infringe on the rule of law. We should constantly question the delegated exercise of executive power to our very many and increasing regulators and Commissioners, and to make certain such power is always subject to judicial oversight. The citizen must always have an independent judicial forum to which to take their complaint, however sinister or dreadful the activity they are suspected of may be. In Robert Bolt’s A Man for All Seasons, Sir Thomas More, patron saint of lawyers, was prepared to give the benefit of law to the Devil “for my own safety’s sake!”  In other words, once the rule of law is removed for those who we know are evil, it is removed for all of us.

Chief Justice Kiefel emphasised the importance of the independence of lawyers. We are largely the means by which people access our courts, so it is essential we remain self-regulated and immune from state influence.

So when you next buy something that is defective, for example, you may have confidence the law is clear, a remedy is available, it is enforceable, and the vendor will know that too. When you are charged with a traffic infringement you know you can challenge it in court. If you are unfairly terminated by your employer, you may seek a remedy from the court. You will not be arrested or held without just cause, and you will always be treated fairly by the courts.

The result of proper operation of the rule of law is open government that makes clear and proper law, equality and accountability before those laws, and interpretation and application of those laws by independent courts. It is the antithesis of governments and societies who ignore the rule of law, which inevitably leads directly to economic disaster and injustice. That is why those eminent lawyers and jurists who opened the IBA conference all put the rule of law as central to the prosperity and wellbeing of nations.

In short, nations with it succeed and those without fail. Failing nation states are synonymous with a lack or a failing of the rule of law. They are often horrible places to live for their poor, impoverished citizens who suffer daily injustice.

Little wonder then that some emerging countries appreciate that for economic success foreign investors require certainty and are gradually embracing the rule of law. However, for us who are now so accustomed to fairness, equity and justice, we must not allow for complacency.

We must be hawk-like in our vigilance when it comes to its protection. Too often governments rationalise the need for protection of the citizenry against a perceived necessity to erode basic rights and principles and to devolve power downward without required and necessary protections. It is at such moments we must bring to mind the absolute importance of the rule of law and demand it not be sacrificed on the altar of expediency, because security and the rule of law go hand in hand.

No one summed it up better than Pope John Paul II, who said: “’When freedom does not have a purpose, when it does not wish to know anything about the rule of law engraved in the hearts of men and women, when it does not listen to the voice of conscience, it turns against humanity and society.”

Morry Bailes is the managing partner at Tindall Gask Bentley Lawyers, president-elect of the Law Council of Australia and is a past president of the Law Society of SA. The opinions expressed in this column are his own.

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