LONDON – “Wherever law ends, tyranny begins,” declared the English philosopher John Locke in 1690. Power corrupts and if democratic institutions are to survive the law must be paramount and no one, whether prime minister or president, should be above the law.
A private individual recently brought a case in the High Court in London against the British government, accusing it of trying to use the royal prerogative to invoke Article 50 of the EU Treaty to secede from the European Union without first obtaining authority from parliament. The two judges who heard the case found against the government. The government appealed to the British Supreme Court. The court of 11 senior judges upheld by a significant majority the original judgment. As a consequence, the government were forced to seek specific authority from Parliament.
Some Brexit-supporting newspapers criticized the judges as “enemies of the people” for ignoring the results of last year’s referendum. This criticism was wholly unjustified. The judges made their decision solely on legal and constitutional grounds. The government, which accepted the judgment, and in particular the minister of justice, should have been quicker and more forthright in condemning press slurs of the judiciary.
The recent executive order of U.S. President Donald Trump barring nationals of seven Middle Eastern and African countries from entering the United States even if they had valid visas or green cards was halted by a federal judge who questioned its legality. Three appeal judges later unanimously upheld this judgment when an appeal was made on behalf of Trump. The president must either appeal to the U.S. Supreme Court where the justices are divided and where he might lose again or redraft his executive order to make it conform with the law. He now says he’ll do the latter.
Tump has intemperately criticized the judges as politically biased (he referred to one judge as a “so-called judge”) and appears to be attempting to put political pressure on them to interpret the law to suit him and undermine their independence. As an English legal expert, the late Lord Justice Bingham, once declared: “A truly independent judiciary is one of the strongest safeguards against executive lawlessness.”
Trump has made other public statements or remarks on Twitter, such as those supporting torture of terror suspects, which suggest that he is contemptuous of the U.S. Constitution and the nation’s laws, even though he has sworn to uphold them.
He is a populist who seems to believe that as a smart businessman he can do a deal with Russian President Vladimir Putin that will underpin his “America First” slogan and support his aim to “make America great again.” Many observers fear that in this belief Trump is suffering from a dangerous delusion and that in his search for a deal he may sacrifice the interests of America’s allies as well as long-term American interests. Putin aims to re-establish Russian prestige and influence, and pursues his aims with ruthlessness and disdain of international norms.
It is vitally important for the U.S. and the world that Trump is persuaded to recognize the threat that Russia poses to Western and American interests.
In Britain, the U.S., Western democracies and Japan, the rule of law still prevails. This depends on parliaments making laws that are both reasonable and in accordance with the principles underlying our democratic way of life. It also depends on qualified, incorruptible and impartial judges being selected and appointed to oversee our courts. With occasional exceptions, this has been achieved, but it is imperative that any attempts to undermine the principles behind the rule of law be stopped.
We have only to look at Russia and China to see what can happen when the courts submit to “advice and guidance” from the government. Opponents and critics are arrested and jailed on trumped-up charges (although Trump cannot be accused of direct involvement in these cases!).
The rule of law can be undermined in many ways. One is by slandering judges and parliamentarians, As Don Basilio in Rossini’s opera “The Barber of Seville” so wonderfully explains in the famous La Calumnia aria, rumors can easily be spread to slander someone who stands in the way. Social media sites including Facebook, Twitter, Snapchat and Messenger facilitate rumor-mongering, especially in a world where some politicians and media peddle false news and repeat arrant lies.
Rumors can prompt exhaustive investigations, which may be unable to unearth any real evidence against the person slandered, but their reputation will inevitably have been damaged as the rumors inevitably evoke the comment that “there is no smoke without fire.” The U.K. has had its crop of rumor mongering and the reputations of such leading figures as the late Sir Edward Heath have been damaged by accusations of sexual peccadillos even though no proof has been produced.
Another way in which the rule of law can be undermined is by passing laws designed to boost the authority of the government in power by preventing or deterring individuals from exposing corruption or inefficiency in government. Governments justify secrecy legislation on the grounds that it is necessary to keep the country safe. Up to a point perhaps, but such legislation and its implementation must be subject to strict limitations and public scrutiny.
Maintaining democratic institutions requires a free press. That means legislation that attempts to limit free speech in the interest of privacy should generally be ruled out. The press needs the courage to stand up to political bullying from overly sensitive politicians such as Donald Trump, who seems incapable of accepting any criticism.
Trump’s first weeks in office have done little to allay fears about how U.S. policies under his leadership may develop. We must hope that the checks and balances in the U.S. Constitution and institutions, reinforced by wiser councils from his more experienced team, will restrain his bullying and persuade him to respect the rule of law at home and abroad.
Hugh Cortazzi was Britain’s ambassador to Japan from 1980 to 1984.
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