In Part 2 of this summary of “The Rule of Law” by Tom Bingham, we will look at the remaining 4 out of 8 of his 8 principles that explore the rule of law more thoroughly.
If you haven’t already, read Part 1 here.
Fifth, the law must afford adequate protection of fundamental human rights. Although a non-democratic legal system based on the denial of human rights would certainly excel in its conformity to the rule of law by suppressing or persecuting sections of people, Bingham roundly rejected this view in favour of a rule of law which embraces the protection of human rights within its scope. As President of the Constitutional Court of the Russian Federation (V.D. Zorkin) said in July 2007, “[…] Law cannot be simply what is dictated by political authority or issued by the state. […]”
He also mentioned that there were 2 legal tragedies that developed in parallel – the first being totalitarian Soviet Communism and the second being German Nazism. In the former, the law was identified with the will (or dictatorship) of the proletariat. In other words, whatever was prescribed by the state was lawful. In the latter, law was an expression of the will of the German nation, which was incorporated in the Führer. The law existed only as a body of statutory laws. These two examples show that it is for states to decide what rights they will protect by law and conversely, what sanctions they will impose for breaches.
However, Bingham reviews the rights most regularly featured in discussions and court decisions, of which the European Convention on Human Rights serve as a useful framework. The Convention sets out each right and freedom that is seen to be basic and fundamental in Articles.
Firstly, the right to life is one such right. This Article tightly restricts the circumstance in which life may be lawfully taken. The European Court of Human Rights accordingly imposes on its member states a procedural obligation such as initiating investigations into any death.
Next, the prohibition of torture and the prohibition of slavery and forced labour, of which the latter is subject to some exclusion such as work in prisons, compulsory military service, and others.
Following that, the right to liberty and security. This Article states, “No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law.” These cases include detention by court order following conviction, detention of a minor for educational purposes, detention following a breach of a court order and others. If they do fall within these categories, there are supplementary provisions. To cite a few, they include being told the reasons for which he has been detained and of any charge against him, as well as being brought before a court promptly.
Next, the right to a fair trial and no punishment without law, where one can neither be punished for something which is not criminal, nor can he receive punishment more severe than what his offence calls for.
Right to respect for private and family life does not guarantee a right to a particular outcome (such as life, freedom, a fair trial)) but a right to respect. Simply put, the state has no business to intrude in one’s private and personal life, save for interference that is in accordance with the law, or directed to one of the specified state exclusions such as in the interest of national security, public safety, and its nature (in that it must be necessary, and not merely desirable or reasonable) for a democratic society.
The freedom of thought, conscience and religion is a fundamental right that should be protected, but should not be absolute. The rights of the individual must be set against the rights of others, and that calls a boundary of some sort to be set. For example, certain acts are generally unacceptable, such as human sacrifice and self-immolation of widows on their husband’s funeral pyres. These include borderline cases as well, such as allowing Rastafarian prisoners to keep their dreadlocks but not being exempt from the prohibition of cannabis use.
The freedom of assembly and association is important as man’s fulfilment depends on the company and support of others, and it is more effective to campaign in a group for causes that individuals believe in. The Convention also states a right to marry, but so far has not been interpreted to include same-sex couples. Linked to the next article, which provides that the enjoyment of the rights and freedom set in the Convention shall be secured without discrimination of any ground such as sex, race, colour, language, religion, political opinion, […] property, birth or other status. One has to show that one has been the victim of prohibited discrimination with regards to one or more of the rights set out in the Convention. The broad reach of this Article also goes to show the principle of equality before the law, especially since unpopular minorities are exactly the people whom charters and bills of rights seek to protect.
Simply put, the rule of law requires that the law afford adequate protection of fundamental human rights.
The sixth principle is the provision of means for resolving, without prohibitive cost of inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve. Legal aid, as Dr E. J. Cohn says, is a service which the modern states owes to its citizens as a matter of principle. Access to justice is barred by expense, as well as delay. Due to the low supply and professional nature of the job, the cost tends to be high. A familiar aphorism goes, “Justice delayed is justice denied.” The latter exacerbates the former, since delays result in higher fees. However, delays are not at all the result of sloth. Instead, it may be put down to 3 reasons: the success of the courts (and thus increased workload), the enlargement of the Community, as well as the burden of translation, which can take around seven months on average.
The seventh principle is the right to a fair trial. This right is applicable in three cases – criminal trials, civil action and hybrid procedures. Rules to ensure fairness include judicial independence and impartiality, which mean judges weighing only the legal and factual merits of the case and nothing else. For criminal cases, the trial should be held and the judgement should be given in public. After all, a defendant is presumed to be innocent until proven guilty, and should therefore be treated as such. For civil cases, litigation takes place ‘with the cards face up on the table’, with both claimant’s and defendant’s claims being clear right from the start. Bingham writes, “The line of battle should be drawn with some precision before the first shot is fired in court.” Naturally, this includes disclosing any documents and statements of witnesses as well – dramatic scenes of witnesses who arrive at the eleventh hour are no more.
Lastly, the eighth principle is that the rule of law requires compliance by the state with its obligations in international law as in national law. Professor Chesterman understands the international rule of law as “the application of rule of law principles to relations between States and other subjects of international law.” Compliance should be followed by member states of the United Nations under the Millennium Declaration too. International law is largely complied with due to rules that suit countries such that they are rules similar to that of a member’s club and not a proprietor’s. The tendency to err on the side of caution, habit and similar outlooks, and – most potently – the sheer necessity of compliance are all reasons for international law compliance. In addition, cross border problems call for cross border solutions, which can be achieved only through a coherent body of enforceable international rules. Notably, the misconception that there is a gap between national and international law is debunked by the osmotic absorption of customary international law into national law. Therefore, this interrelationship proves that the two are far from exclusive.
These 8 principles largely underlie western democracies today, and seek to break down the abstract, or even portentous, concept of “the rule of law”.
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