21 August, 2008

When is a law not a law?

Written by Rhydian Morgan. Wonderful writing, very thought provoking.


Q: When is a law not a law?

It sounds like the opening for a bad pun, but is in fact a genuine question, and not just a legal one. It is a firmly established principle, perhaps the most basic one, of the rule of law, that all are equal under it, and none, including the law-maker, may be set above it. The idea that those in charge are, as individuals, subject to the same laws as the rest is one that has been examined and affirmed consistently in philosophy and jurisprudence, and is stated by Thomas Paine thusly: "For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other." [Common Sense, 1776 (pamphlet)]. The Magna Carta is the first, and perhaps prime example of the rule of law in England, forcing King John to submit to the law, and succeeding in setting limits on feudal fees and duties. Later, the theoretical foundations for this principle were laid down in Rutherford’s Lex, Rex (1644),
and later in Montesquieu’s The Spirit of the Laws (1748). Modern theories of the rule of law, particularly when articulated in common law jurisdictions include: a clear separation of powers, ideas of legal certainty and legitimate expectation (required for any set of laws to be regarded properly as a legal system), and importantly, the equality of all before the law.

When rulers have sought to position themselves above the laws they have set, the results have often been dramatic, violent and bloody. The illegitimate actions of rulers may be the cause of most revolutions around the world, whether refusing to suffer alongside their populations the strictures of circumstance, and imposing privations to which they themselves are not subject, or violating more directly the people’s stated rights, and thereby the rule of law. The French and Russian revolutions are clear examples of this, and other popular revolts too numerous to list here (I do not intend to analyse the myriad causes of such revolts, merely to suggest that the common factor in all is a perception by the people that those in power were acting illegitimately in their perceived oppression of the people). Even the assassination of Julius Caesar was legitimised by the (perhaps false) idea that Caesar was seeking to extend his power illegitimately. It seems incompatible with the notion of justice that heads of state be allowed to commit extra-judicial murder, for example, or to plunder state resources for private benefit. [It is here accepted that there is a clear difference between state mandated action, and the actions of private individuals who are also officers of the state. A President, for example, may order an execution (where such is permitted by the legislature of that state) and maintain the rule of law, whilst the person who holds that office may not choose to shoot someone he believes to be worthy of execution, if the rule of law is to be maintained.]

Is there an argument against this position [that the lawmakers are themselves subject to the laws they set]? There is an argument that belief in a natural justice, or ‘natural law’, does not in fact determine what law is, but what it should be. Legal positivism argues that all that laws require in order to be law properly so called is to be passed according the rules set in a given society for the enactment of legislation. All concerns about the just nature of otherwise of a law are then conveniently pushed to one side, as all that matters is the legality of authority, as opposed to the morality of that authority. But it is rare to find a legal positivist who will argue against the principle that all individuals are, or should be, treated equally under the law, whatever the perceived justice or otherwise of those laws. For Aristotle and Plato, the rule of law included the obligation to obey positive law (that is, law passed according to the rules) and the idea of formal checks and balances on rulers and magistrates [the contrast between the ‘rule of men’ and the ‘rule of law’ may be found in Plato’s Statesmen and Laws, and again in Aristotle’s Politics]. This position had not changed when Dicey wrote his treatise, Law of the Constitution (1959), equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts being identified as the second element of the rule of law. As he states, “... every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen.”

It is also a generally accepted maxim of natural justice that lex injusta non est lex [‘unjust law is no law at all’] [Thomas Aquinas, Summa Theologicae, c. 13th C, after St. Augustine]. That is to say, on a moral level, that laws which violate a sense of natural justice, such as those permitting some to act against the law, or the founding principles thereof, are not laws properly so called. We may call them ‘bad’ law, unjust law, or refuse to give them the title of law at all. On this, the analysis provided by modern jurists on the ‘laws’ of the Third Reich is particularly instructive. Unwilling to accord the system the legitimacy of law properly so called, great work was done exposing the illegitimacy of laws that so fundamentally violate the concept of natural justice, an objective standard by which all law and society may be judged. We continue to apply this objective standard today, as intervention in countries where we might seek to promote democracy is often couched in rhetoric that links that aim inextricably to the establishment of the rule of law.

Thus it would appear axiomatic that good governance, whether democratic or not, includes the rule of law being adopted and maintained. Criticisms of Mugabe’s regime in Zimbabwe, as well as the actions of several governments around the world (Burma, several former Soviet satellite states that remained under dictatorships, such as Turkmenistan) centred on this failing. If then the rule of law is so important, and one cannot have the rule of law when lawmakers seek to set themselves above the law, why do we let them get away with it?

I am not talking here of a lack of action against Zimbabwe (although that is in itself shameful); I am talking about Presidents and Prime Ministers of what are apparently democracies. During his two terms as President of France, Jacques Chirac relied on a constitutional bar to investigation and prosecution for the President for all crimes short of treason to prevent the enquiries of a juge d’instruction into alleged corruption and other scandals which may have taken place whilst he Mayor of Paris (from 1977 to 1995). [It is interesting to note that, whilst M. Chirac used his office to prevent investigation into allegations of earlier misconduct or impropriety, he needed have no such worries about any illegality that may have been committed whilst in the Palais d’Elysée; according to constitutional expert Guy Carcassonne, speaking to Le Monde, Chirac could be held to account for actions taken while he was Mayor of Paris, but not while he was France's President.]

In a shameful modern echo of this position, Silvio Berlusconi’s government in Italy succeeded this July in passing through the lower chamber a law granting the President, leaders of the upper and lower chambers and Prime Minister [incumbent: S. Berlusconi], the four highest offices of the state, immunity from investigation whilst in office. This is particularly important for Signor Berlusconi, as he was previously under investigation for financial irregularities in a case in which David Mills, husband of the then UK Secretary of State Tessa Jowell, was also questioned. (Ms Jowell and Mr Mills underwent a separation when news of his alleged involvement in the scandal broke in the UK, presumably so that the Labour Government might avoid any taint by association – difficult, given Tony Blair’s acceptance of free holiday accommodation from Signor Berlusconi whilst he [Blair] was Prime Minister.) [Signor Berlusconi had earlier introduced a bill, passed by the Senate on 18th June, freezing for a year all trials started before June 2002 and carrying a maximum possible sentence upon conviction of fewer than ten years’ imprisonment. Conveniently, that included his own, but may also have stopped up to 100,000 criminal trials for offences including manslaughter, theft, kidnapping, grievous bodily harm, extortion, fraud and corruption (source: http://www.telegraph.co.uk/news/worldnews/europe/italy/2152711/Silvio-Berlusconi-suspends-his-own-trial.html).]

This latest law has yet to be passed by the Italian Senate (the upper chamber), although it is likely to do so easily, as Berlusconi enjoys strong support there. It also faces challenge in the Italian courts, and they are due to pronounce on its legality shortly following its (expected) passage through the Senate, and it should be noted that in common with the French law, it does not grant full immunity from investigation or prosecution but only whilst office is held. Thus, it is possible that Signor Berlusconi will face prosecution at the end of his term; possible, although unlikely, as the chances of a proper investigation into financial affairs when those allegedly involved may have had five further years in which to cover any tracks are seriously diminished (see numerous Serious Fraud Office cases, including the collapse of the prosecution of the directors of BCCI, for the difficulties in investigating financial trails years after the event).

But as mentioned above, the question is not merely one of legality, but of politics and philosophy. It is entirely possible that the Italian courts will rule, much as the French courts did, that the due process for the passing of the law has been observed, and therefore it is ‘good’ law, in a positivist sense. Whether it is properly passed or not is irrelevant. The question is: what should we expect of those who govern us? Second, what are we prepared to accept from our lawmakers? These questions are posed not just for the Italian people, but for us all, as Italy’s actions may have ramifications far wider than that peninsula. How can we condemn other regimes when we have failed to put our own house in order, or to apply the same condemnation to our friends and neighbours? We cheapen both our rhetoric and our moral position by allowing those who make our laws to grant themselves immunity from investigation or prosecution when they break those laws.

In recent speech in the U.S. Senate in opposition to the FISA Bill, Senator Dodd (Democrat, Conneticut) spoke these words:

“There is only one issue here. Only one: the law issue. Does the president serve the law, or does the law serve the president? Each insult to our Constitution comes from the same source; each springs from the same mindset; and if we attack this contempt for the law at any point, we will wound it at all points.

That is why I’m here today: Retroactive immunity is on the table today; but also at issue is the entire ideology that justifies it, the same ideology that defends torture and executive lawlessness. Immunity is a disgrace in itself, but it is far worse in what it represents. It tells us that some believe in the courts only so long as their verdict goes their way. That some only believe in the rule of law, so long as exceptions are made at their desire. It puts secrecy above sunshine and fiat above law.”

[Full text of this speech, including video can be found at http://dodd.senate.gov/index.php?q=node/4476, the Senator’s home page, and I am indebted to Chris Jones for posting this link on his page.]

The FISA (Foreign Intelligence Surveillance Act), enacted 1978, was originally introduced following President Nixon’s use of illegal surveillance of political opponents and their supporters as revealed during the Watergate scandal, and has been amended substantially, in particular by the 2001 U.S. Patriot Act, 2006 Terrorist Surveillance Act, and the Protect America Act of 2007. [I will make no comment on the use of terms such as ‘Protect America Act’, or indeed ‘Patriot Act’, by the Bush administration. Readers are invited to draw their own conclusions about what such nomenclature does in attempting to divert criticism of the provisions of the Acts in question.] The current bill grants retrospective immunity to telecommunications companies involved in the illegal wiretapping of domestic citizens provided they can show documentation which shows the act received prior authorisation from the White House. To quote the Senate Intelligence report:

“Beginning soon after September 11, 2001, the Executive branch provided written requests or directives to U.S. electronic communication service providers to obtain their assistance with communications intelligence activities that had been authorized by the President.

… The letters were provided to electronic communication service providers at regular intervals. All of the letters stated that the activities had been authorized by the President. All of the letters also stated that the activities had been determined to be lawful by the Attorney General, except for one letter that covered a period of less than sixty days. That letter, which like all the others stated that the activities had been authorized by the President, stated that the activities had been determined to be lawful by the Counsel to the President.

Under the legislation before us, the district court would simply decide whether or not the telecommunication companies received documentation stating that the President authorized the program and that there had been some sort of determination that it was legal.”

Thus we see that even in the most vocal and vociferous critic of rogue regimes, of undemocratic government, and of failure to implement the rule of law, a fundamental principle of that rule, that all be treated equally under the law, is easily pushed to one side. The FISA Bill and the so-called ‘Alfano law’ (after the Italian Minister of Justice) are merely the most striking and recent manifestations of this contempt for the rule of law in modern Western democracies; presidential pardons in numerous countries are permitted, overturning safe convictions and preventing prosecutions. Why then do we allow this?

Signor Berlusconi claims the law is necessary to prevent his being hounded by a biased and politically motivated judiciary; Jacques Chirac used much the same argument. Berlusconi also claims as legitimacy the argument that all states have such laws. Apart from being a demonstrably false assertion, even if it were true, it would not in itself provide a philosophical justification for the existence of such laws. George Bush’s administration uses the rhetoric of ‘extraordinary measures being required in extraordinary times’, the idea that, during a time of conflict, special powers must be granted in order to ‘get the job done’, a favourite phrase of despotic regimes everywhere. It might very well be true that, in times of war, certain rights may be temporarily suspended (such as the right of freedom of movement, even to the level of internment), but the fact of the matter is that neither M. Chirac nor Signor Berlusconi can rely on that. The FISA Bill concerns the illegal surveillance of U.S citizens, not noticeably part of the ‘axis of evil’. It seems clear, therefore, that each of these bills, and any bill which seeks to grant immunity to holders of high office, is a self-serving permission to act outside the law with impunity, and therefore an unjustified assault on the rule of law, one that should not be tolerated in any democratic society. If anyone can provide a justification for immunity laws, I should like to hear it. Until I do, I will continue to speak against such laws, and would urge others to the same.


Law Minx said...

An excellent piece, as you quite rightly point out, Maid, highlighting the many problems that both national and international law face when it comes to the issue of immunity.

Tom Evans said...

Fluffy arguments... I once devoted many random moments on this sort of concept in an old blog: www.neutralworld.blogspot.com. (I promise I'm not a bot!) (Mind you, I could be a bluffot...)