1 Oct 2012

The Rule of Law

What it is, and how it is abused by successive governments of Trinidad and Tobago.

The rule of law is a concept which, at best of times, is a bit hard to define, though many have tried. A V Dicey is considered the foremost authority, and he put it this way:

  • The State cannot exercise arbitrary power: Dicey put forward that the extent of the State’s power, and the use of those powers, should be controlled by law, to provide a safeguard against the State acquiring and using wide discretionary powers (which can be used arbitrarily).
  • Equality before the law: No one is above the law, regardless of class or rank. Also, the representatives of the State are bound by the same laws as private citizens.
  • Supremacy of the law: That the law is to be known, general, stable, and not made in respect of particular persons. In other words, applying to all and to benefit none in particular.

[The rule of law requires both citizens and governments to be subject to known and standing laws. The supremacy of law also requires generality in the law. This principle is a further development of the principle of equality before the law. Laws should not be made in respect of particular persons. As Dicey postulated, the rule of law presupposes the absence of wide discretionary authority in the rulers, so that they cannot make their own laws but must govern according to the established laws. Those laws ought not to be too easily changeable. Stable laws are a prerequisite of the certainty and confidence which form an essential part of individual freedom and security. Therefore, laws ought to be rooted in moral principles, which cannot be achieved if they are framed in too detailed a manner.] (http://www.ourcivilisation.com/cooray/btof/chap181.htm)

Or, to make it simpler:

  1. No one can be punished or made to suffer except for a breach of law proved in an ordinary court.
  2. No one is above the law and everyone is equal before the law regardless of social, economic, or political status.
  3. The rule of law includes the results of judicial decisions determining the rights of private persons. [http://en.wikipedia.org/wiki/Rule_of_law]

Other theorists such as Hayek, Raz, Thompson, Unger et al have further refined what the rule of law means, but essentially, what is said above remains core to the concept. Raz in particular though has maintained that an independent judiciary (financial independence included) is essential for the rule of law to be maintained.

State intervention usually means the rule of law can be bent, twisted or downright broken. A case in point is the intervention of the State in Germany that led to Nazism and WW2. [See http://en.wikipedia.org/wiki/Nuremberg_Laws ].

Sometimes, to be sitting on the outside of a situation is a good thing, even a great thing. It allows an impartial observation of the events unfolding and an analysis of those events without clouding of the judgement.

When I began to write this, I was told the beginning, the explanation on the rule of law, is too academic. Perhaps so, but I think it is important to get across what the rule of law is, and how important it is to every one of us. A breach of the rule of law affects every single person. I am reminded of Martin Niemoller:

"First they came for the Communists, but I was not a Communist so I did not speak out.

Then they came for the Socialists and the Trade Unionists, but I was neither, so I did not speak out.

Then they came for the Jews, but I was not a Jew so I did not speak out.

And when they came for me, there was no one left to speak out for me."

Let me return to Raz’s point that the financial independence of the judiciary is essential for the rule of law to be maintained. One would recall in 2009, Patrick Manning attempted to ‘muzzle’ the judiciary by strangling it financially:

According to Chief Justice Archie, while some $349 million was requested, only $42.5 million was received and this would affect how the judiciary runs its affairs for the new session. This disclosure caused those in attendance to gasp with many shaking their heads in amazement.

John Jeremie, then Attorney General claimed that it was cutbacks causing the reduced sum to be granted:

Speaking to reporters following Justice Archie's address, Attorney General John Jeremie, who viewed the entire proceedings, said: "It is a difficult year, there have been cuts in budgets. The Prime Minister's Office has been cut by 50 per cent. I am not sure what aspect of the budget was reduced and as a result some projects have been phased and this applies to all ministries."

Yet at that time,

  1. $2 BILLION!!! were found to pay for 4 helicopters that are not needed.
  2. $700 MILLIONS!!! had been spent on a 'stadium' half uncompleted.
  3. $400 MILLIONS had been found to pay for 4 ferries to run from San Fernando to Port of Spain as water taxis.
  4. $11 MILLIONS had been found to pay for repair and refurbishment to the Prime Minister's residence that only the previous year cost $148 M.
  5. $100 MILLIONS were spent on funding to private health facilities.

So, the judiciary was essentially strangled for want of funds, and making it dependent on the executive arm of the State. Never a good moment for the rule of law.

Recently, the rule of law has been taking a beating by this PP government. With the now infamous section 34, things have come round to another galloping dictatorship, and while Lord Acton said “Power tends to corrupt, and absolute power corrupts absolutely," we can see how that corruption of power has changed the characters of those whom we viewed as pillars and exemplars of our society.

Take Prakash Ramadhar. A lawyer by training and profession, he is remarkable silent on the battering the rule of law is taking… except when he can use the words to shore up the position of the government he is whoring himself to.

Anand Ramlogan, having first made his mark as champion of the underdog, now beats those same dogs into submission and obedience, disregarding the rule of law completely. For him, it is rule BY law.

Neither is the premise of rule of law holding everyone equal being recognised… have we forgotten the son of Gilbert Reyes, having bitten a police officer on his chest, was freed following a phone call from his father? Or Vasant Bharath, running over the foot of a woman while intoxicated, has had no sanction to date? Or the son of Tim Gopiesingh, after planassing an older, smaller man, is yet to be even interviewed? These are only 3 examples, I can quote more as documented already on this blog.

Like Animal Farm, where the rules were rewritten in favour of the pigs, the Rule of Law is being slowly rewritten… in favour of pigs.