LONDON — Politicians in Britain and in Japan often talk glibly about the importance of the rule of law. But how many of them have a clear idea of what this important phrase means?
A book by Tom Bingham titled “The Rule of Law” was recently published in Britain. It ought to be on the bedside table of every politician and will, I hope, be translated into Japanese.
Bingham was lord chief justice of England and senior law lord. He has thus filled the highest judicial appointments in Britain and is highly respected for his legal knowledge and integrity. His book is based on his deep study of the law and his long experience with its practice in Britain. He writes clearly and cogently. The principles he adduces are applicable to all democratic counties even if their legal systems differ from Britain’s.
In a historical introduction, Lord Bingham goes back to first principles. He begins with the Magna Carta in 1215, noting the prohibition in the charter against imprisonment or deprivation of rights except “by lawful judgment of one’s equals or the law of the land.”
He goes on to discuss habeas corpus rules that reinforced the challenge to unlawful detention, the abolition of torture in Britain in the 17th century and the importance of the petition of right of 1628, which ensured that taxes could only be levied by act of Parliament.
None of these stipulations could be effective without an independent judiciary, achieved by the Bill of Rights of 1689 and the act of settlement of 1701. This leads to a discussion of the U.S. Constitution and the U.S. Bill of Rights of 1791 and the French declaration of the rights of man of 1789. His introduction ends with a brief discussion of the law of war and the universal declaration of human rights.
Bingham stresses the importance of the law being accessible to all as well as intelligible, clear and predictable. In this context he is critical of the tendency of British government to believe that problems are best remedied by legislation.
During the past 10 years, some 382 acts of Parliament have been passed and more than 3,000 new criminal offenses created. This has meant delays in the administration of justice and has made it difficult, if not impossible, for the ordinary person to know and understand the law of the land.
Bingham upholds the principle that questions of legal right and liability should be resolved by application of the law and not left to the discretion of appointed officials. He is adamant that the laws should apply equally to all and that no one is above it. Thus ministers and officials must exercise their powers reasonably and not exceed them.
From this he argues that the law must afford adequate protection of fundamental human rights including the rights to life, liberty and security as well as the prohibition of torture, slavery and forced labor. Other important rights are the right to a fair trial and respect for private and family life. Even more important are freedom of thought, conscience and religion, freedom of expression and freedom of assembly and association.
He criticizes the British and U.S. decision to invade Iraq without specific U.N. approval. Regime change might have resulted from disarming Saddam Hussein but regime change “could not in itself be a lawful objective of military action.” The invasion was “a serious violation of international law and of the rule of law.”
Every member of the United Nations agrees to abide by the principles set out in the U.N. Charter, including Chapter 7, which specifies the role of the Security Council in assessing a threat to peace and the measures that may be taken to deal with the threat. Except in self-defense, “force may be used only if authorized by the Security Council but not otherwise.”
Lord Bingham declares that “It is not at all clear to me what, if any, legal justification of its action the U.S. government relied on.”
He dismisses as flawed the arguments of the British attorney general (repeated by Prime Minister Gordon Brown in his March 5 testimony to the inquiry into the Iraq war) that Iraqi failure to comply with Security Council resolutions justified the resort to force without a further resolution. In Bingham’s view, the U.N. weapons inspectors were making progress and should have been allowed time to finish the job.
Bingham is equally forthright about the misuse of powers to deal with acts of terrorism. He quotes with approval the decision by the Council of Europe in 2002: “While the State has the right to employ to the full its arsenal of legal weapons to repress and prevent terrorist activities, it may not use indiscriminate measures which could only undermine the fundamental values they seek to protect.”
The Bush administration’s use of the Guantanamo Bay prison, extraordinary rendition and abhorrent interrogation techniques as well as the erosion of the principles of fair trial have undermined the rule of law. The fundamental erosion of the e rule of law has not gone as far in Britain as it has in the United States, but there have been serious encroachments by the state into the private domain of the citizen in the name of security.
Sadly, Bingham notes that Britain is the most closely watched country in Europe. There are now more than 1,000 laws and regulations that permit officials to force entry into our homes, cars and business premises. Even the great tradition of habeas corpus has been significantly eroded as suspected terrorists can now be held for 28 days before prosecutors must produce them in court. The governments led by Tony Blair and Brown have presided over a sad decline in freedoms in the search for an illusory security.
There is no room for complacency anywhere in the face of the serious erosions of human rights and the rule of law. Japan is fortunately a very different country from what it was 65 years ago, but Japanese justice moves very slowly and the rights of prisoners are too limited.
Hugh Cortazzi, a former British career diplomat, served as ambassador to Japan from 1980 to 1984.