THE RULE OF L Lawyers
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TABLE OF CONTENTS A LETTER FROM THE PRESIDENT............................................2 BREXIT AND ITS EFFECT ON THE RULE OF LAW..................3 IN CONVERSATION WITH JO MURKENS: ARTICLE 50 RULING EXPLAINED...................................................................5 THE DETERIORATION OF THE RULE OF LAW IN MALAYSIA: HOW DID IT HAPPEN AND WHERE DO WE GO FROM HERE? ......................................................................................................9 POPULISM AND THE RULE OF LAW......................................13 INTERNATIONAL HUMANITARIAN LAW, ITS CONSTITUTIVE ‘OTHER’ AND THE WAR ON TERROR: IS THE RULE OF LAW AT RISK?..........................................................16 THE RIGHT TO LIVE V THE RIGHT TO DIE............................21 HOW FAR IS CHINA COMMITTED TO THE ADVANCEMENT OF THE RULE OF LAW?...........................................................24 THE ROLE OF FUNDAMENTAL RIGHTS WITHIN THE EU...27
LSE LAWYERS WITHOUT BORDERS THE RULE OF LAW
A LETTER FROM THE PRESIDENT CHARLES CHANG CHIN TER
“This student journal aims to provide its readers with a more thorough, and hopefully more pertinent, understanding of the concept of the rule of law and how it underpins contemporary global affairs. It will explore briefly, through the lens of our student writers, ongoing social and political issues and attempt to engage with the reader the relationship these issues have with our understanding and application of the rule of law. In doing so, it hopes to encourage and foster a greater awareness and appreciation of the fundamental need for the rule of law to the stability of any democratic society.”
ACKNOWLEDGEMENTS PHILLIP NWAUKONI EDITOR-IN CHIEF
THE RESEARCH TASK FORCE OF LSE LWOB WRITERS OF THE LSE LWOB RULE OF LAW JOURNAL
THE LSE LAWYERS WITHOUT BORDERS COMMITTEE DR JO MURKENS NATALIE TSANG PUBLICATION AND DESIGN EDITOR
Publication and Design Editor Writer
Daniel Tan Writer
Kristyna Muhlfeitova Writer
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Ilaria Minucci Writer
Catherine Fu Writer
Brexit and its Effect on the Rule of Law Natalie Tsang (UK) Background On 23 June 2016, the United Kingdom voted to leave the European Union. Since then, much development has occurred that has dominated the media, politics and everyday conversation in Britain within the past year – perhaps the most significant being the Supreme Court decision made in January, which has redirected the executive’s initial Brexit strategy. At a time of major constitutional importance, it is perhaps necessary to now reflect on the impact it has had and potentially could have on the rule of law, which is a fundamental value in British governance. The principle, whose definition has been subject to much interpretation, has been particularly prevalent recently, as we are witnessing firsthand the beginnings of major constitutional change. Lord Bingham, in The Rule of Law, set out eight sub-rules that constitute the doctrine. More generally, he defines it as ‘that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts’. Miller: The Supreme Court decision With this in mind, we turn our attention to the recent Supreme Court judgment delivered on 24 January, whereby the 8:3 majority dismissed the government’s appeal for Article 50 to be triggered using prerogative powers and held that Parliament must vote on whether the government can start the Brexit process. Both the House of Commons and the House of Lords must vote in favour of it. While Lord Carnwath, dissenting, said that the courts had taken ‘too narrow a view’ of the
issues and that it should have been left to Parliament to decide whether the government could use prerogative to trigger Article 50, Dos Santos, Miller’s co-campaigner, called it a ‘victory for democracy and the rule of law’. Prominent members of the Cabinet who have formulated the Brexit strategy have also had a say in the issue: Lord Chancellor Liz Truss has recognised the need for judicial review, commenting that an independent judiciary is the “cornerstone of the rule of law…while we may not always agree with judgments, it is a fundamental part of any thriving democracy that legal process is followed.” However, it is important not to assume with this decision that there is a chance that the UK will not go ahead with its secession of the EU. Writing for the Law Gazette, Jonathan Goldsmith calls on lawyers to ‘stand up to the new revolutionaries and stress that procedures take priority over outcomes.’ Outcomes should always be respected if the respective decisions that have been made in a procedurally sound manner. (This resonates with the situation in America and the controversy that has arisen from Trump’s election to presidential office.) There has been much criticism of the crowds who have marched on the Supreme Court in a fervent attempt to influence their decision through intimidation – Goldsmith deems this to ‘undermine’ the rule of law. Indeed, it is important for the courts to guarantee a fair and impartial decision on such important constitutional matters.
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Where do we go from here? Parliament now has a pivotal role in Brexit strategy, ensuring that there is some form of check on the executive so that they are not acting ultra vires. The Bingham Centre for the Rule of Law has made recommendations, informing Parliament on how to respect and safeguard the rule of law in the process of giving effect to the people’s decision made in June (available online). It is hoped that these guidelines will be followed and that the process to leave the EU will be both transparent and reflective of the interests of the British majority who voted for Brexit. More recently on 2 February, the muchanticipated Brexit White Paper was published, laying out the government’s 12 ‘principles’, consisting of aims such as control on migration and “taking control of our own laws”. However, it has come under much criticism as being a ‘wishlist disguised as a strategy’. Indeed, the Labour Party said the document “says nothing” and had been produced too late for “meaningful” scrutiny. While the reaction has been pessimistic, it is perhaps reassuring to see that Opposition in Parliament are voicing criticisms in the interests of citizens and holding the executive to account; indeed, this added layer of accountability will help to ensure that ministers exercise powers in good faith (an important aspect of the rule of law). Looking towards the future past the actual process of leaving the European Union, there are additional aspects of the rule of law to consider once Article 50 is triggered. According to Lord Bingham’s conception, the doctrine includes the adequate protection of fundamental rights. It is almost inevitable that Brexit has given further impetus to those who propose a British withdrawal from the European Convention on Human Rights, as both are geared towards removing European influence from our jurisdiction. While it is conceivable that Britain could have a replacement for the Human Rights Act 1998 which builds upon the common law with a decent protection, many commentators are sceptical. In Conor Gearty’s ‘Human Rights after Brexit: still on fantasy island?’ panel discussion, delivered at an LSE
public event, Professor Steve Peers found the concept unlikely, noting that it is ‘not just the press and politicians who alienated EU, but also other academics who pay homage to a mythical idea of human rights in Britain in an earlier era’. At the event, Article 50 ruling explained – in conversation with Dr Jo Murkens, the LSE professor also pointed towards the surprising lack of discussion on the devolution issue that was to be decided alongside the Article 50 question. The courts simply dismissed the significance of the issue i.e. the rights of Northern Irish citizens to challenge the executive on the basis of EU law, suggesting that no rights were being compromised yet. Murkens commented that it was ‘paradoxical’ that the Article 50 question was regarded as major constitutional change that could only be brought about by Parliament, yet at the same time implied that we should not worry, as nothing is being lost at this point. This leaves the door open on the issue of devolved assemblies, especially in light of the fact that the Brexit White Paper also echoes the lack of clear strategy on Northern Ireland. The document merely commits itself to ‘finding a practical solution’ to the problem of maintaining the Common Travel Area – it seems that all we can do is just wait and see. Conclusion The Supreme Court decision was an indispensable reminder that the government must adhere to the unassailable constitutional rules that form the backbone of governance in the United Kingdom. The process of Parliament scrutinising the government’s proposals in the Brexit White Paper is a promising and essential step in securing the rule of law, despite the fact that it appears that there is much substantive improvement to be made. As for issues that could potentially dominate politics following Brexit, such as human rights and the impact on devolved assemblies, Professor Sionaidh Douglas-Scott stresses the importance to ‘keep playing where we can’. For now, the priority is to respect the referendum decision in a way that does not violate the long-established and fundamental features of the British constitution.
In Conversation with Dr. Jo Murkens: Article 50 Ruling Explained Introduction The Miller case concerned the questions whether the executive could trigger Article 50, a provision of the Lisbon Treaty allowing Member States to begin the exit process, using prerogative powers and whether the devolved nations should be consulted. The outcome of the ruling was that Parliament must be consulted and legislation must be passed, however, in 11:0 the Court ruled that the devolved nations do not need to be consulted at this time. We spoke to Dr. Murkens about his thoughts on the judgement. He spoke of revolutionary aspects of the case, devolution and the people. Was it a revolutionary judgement? The Miller judgment has been portrayed as a revolutionary judgement. Dr. Murkens does not see it that way. The relationship between prerogative and statute is not a complicated one, the situation has been ‘clear ever since the Case of Proclamations’ and this was not a revolutionary judgement that would lead to its re-definition. Nevertheless, Dr Murkens did point towards a ‘bomb shell’ dropped by Lord Neuberger in paragraph 61;’ But in a more fundamental sense and, we consider, a more realistic sense, where EU law applies in the United Kingdom, it is the EU institutions which are the relevant source of that law’ . The significance of this comment is that it seems to signify that the Courts now have come to see the relationship between EU law and national in a completely different light. The landmark case which has come to define the relationship between EU law and national law was Thoburn v Sunderland City Council, where Laws LJ had rejected the argument that EU law was an autonomous source of law . Instead Laws LJ famously held that this argument cannot be right as it would infringe parliamentary supremacy, stating that the true source of EU law is its incorporation through Acts
of Parliament such as the European Communities Act 1972 which belongs to a special form of ‘constitutional statutes’ that can only be repealed through express words and are hence impossible to be impliedly repealed. Ever since this case was decided the way national courts have perceived the authority of EU law was as Laws LJ perceived it, as enacted through national law alone, not as an autonomous source of law which would have the effect of infringing parliamentary sovereignty. This interpretation was even mirrored in s.18 of the European Union Act 2011; ) ‘EU Law falls to be recognised and available in law in the United Kingdom only by virtue of that Act’. This was a starkly different approach to that of the national courts of Germany, France, Italy or Ireland which see EU law as an inevitable constitutional requirement. Lord Neuberger in paragraphs 60 and 61 turns this traditional British interpretation of the source of EU law as a product of national statute alone, on its head. According to Dr. Murkens, Lord Neuberger’s obiter goes as far as it mirroring Costa v ENEL, the ECJ judgement that introduced the supremacy of EU law, holding it to be a ‘new legal order’ . He sees it as being truly remarkable that English courts for 40 years of EU membership have insisted on an interpretation denying EU law as a new legal order and giving precedence to the doctrine of parliamentary supremacy, and have upon the point of exit drastically switched their view to align themselves with the rest of Europe.
Dr. Murkens points to this contradiction ofThoburn as a ‘technical revolution’. However, as the only revolution that this judgement has created, otherwise he sees this part of the judgement as an ordinary judgment and has hinted that he feels the first instance and the Appellate decision were images of more confident courts.
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Kristyna Muhlfeitova (CZ)
Devolution Dr. Murkens sees the Court’s attitude towards devolution as disappointing. Although, the Court has been confident in a lot of significant revolutionary cases, Nicklinson, etc, on the issue of devolution in the Miller case they decided to be more cautious in relation to devolution and have even contradicted themselves. He finds it bewildering that whilst on the one hand, the Court held that ‘we cannot accept a major change to the UK constitutional order through ministers alone’ in paragraph 82 when it discussed the triggering of Article 50 with the use of the prerogative, on the other hand, the Court held that triggering Article 50 does not incur any direct consequences and is a reserved matter for the Westminster Parliament anyway when discussing devolution. Dr. Murkens sees this as the Court dodging the question of the role of the devolved legislatures. He points out that the court did not address the issue of rights that would be lost rights, such as the rights of the Northern Ireland assembly under EU law and its right to challenge executive powers on the basis of EU law. ‘It would be incongruous if these rights were taken away other than by statute’, Dr. Murkens points out. The court agrees on this point, however, it underplays the relationship between the rights and the triggering of Article 50, but at the same time leaves the door open for further developments. Dr. Murkens is disappointed by this inconsistency in the judgement; ‘If the Court claims that the triggering of Article 50 would not infringe rights of the devolved nations, then why not let it be triggered by prerogative?’
Dr. Murkens would have preferred a judgement that would have acknowledged that it would be unconstitutional to impose the decision on the devolved nations without their consent. He draws on ‘The New British Constitution’ by Vernon Bogdanor, where it is argued that the UK has underwent a significant constitutional restructuring as the relationship of the devolved nations with Westminster changes. The Court had not recognised this shift. Due to this constitutional restructuring, the vote should not have been counted as one, instead each devolved nation should have counted their votes separately.
The People? Building on the point that the vote should not have counted as one whole, making the referendum a 2:2 split (as England and Wales voted to leave whereas Scotland and Northern Ireland have voted to stay), Dr. Murkens also does not find it plausible to speak of the decision of the people; ‘52% is not the same as ‘the people’, the people is 100% of the whole. It is shameful that British politicians do not grasp this concept, if it was clear to French revolutionaries in the 1700s’. This thinking masks that the country is divided among its constituent parts and implies that those who disagreed with the majority are not part of the people. Either way, he says, any decision will be difficult and contentious; ‘If Article 50 is triggered, how will you explain to the people of Southerland in Scotland, why they have not been listened to, if it is not triggered, how do you explain to the people of Sunderland that they have not been listened to?’. Nonetheless, he acknowledges that the stance on Brexit may change across the country. He points to the fact that eight months ago there were only 50 Brexiters in the House of Commons and 550 choosing to remain, whilst
now it has switched and Kenneth Clarke is the only Conservative MP willing to vote to remain. This shows that the mood across the UK can change making it possible for Scotland to also change its stance and prefer to remain part of the UK outside of the EU rather than seeking independence and continued EU membership. Conclusion Dr. Murkens does not see the judgement as particularly revolutionary, except on the point of Lord Neuberger’s Costa v ENEL- like ‘technical revolution’ in paragraph 60, where he portrays EU law as an autonomous legal order going against 40 years of fidelity of the Courts to the vehicle of the Courts to the vehicle of national law interpretation. The devolution question was left largely unaddressed and the UK’s new constitutional structure was ignored. The Court provided inconsistent reasoning by portraying the triggering of Article 50 as a significant constitutional step but on the other side claiming that devolved nations have nothing to worry about as it does not take away any of their rights. Overall, Dr. Murkens finds the judgement disappointing and unrealistic; ‘At some point Nicola Sturgeon must be listened to’.
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The Deterioration of The Rule of Law in Malaysia: How Did It Happen and Where Do We Go From Here? Daniel Tan (MY) Rule of Law or Rule by Law? In recent times, many feel that the rule of law in Malaysia has become essentially nonexistent with unconstitutional legislation that fails to protect the basic rights of the citizens as well as granting unprecedented powers to the government to act without accountability. This situation takes place on the backdrop of a country that faces multiple political scandals and racial tensions bubbling underneath the surface. The article aims to investigate how the rule of law is now practiced (or not anymore in this case) and how it has developed since the independence of the country in 1957. To understand the current legal climate of Malaysia, it is necessary to look retrospectively into the past to get a proper view of where the rule of law currently stands. This is because previous actions and past reported cases have allowed the rule of law to become increasingly marginalised as a relevant constitutional principle and instead a rule by law has come about in its place.
the rule of law has not been safeguarded and over the years it has diminished. Why the Lack of Respect for Rule of Law? The lack of respect for the rule of law can be traced back to a few underlying causes. It has to be understood that compared to other countries like the USA and the UK, Malaysia is a relatively young country as it has only been independent for about 60 years. With Malaysia taking its legal system from the UK, the flaw with that was that it was implementing a system that came about very organically through common law and case law. Since Malaysia has not had the time for the judiciary to flourish and develop the laws of the country, it is quite foreseeable that a situation like this would take place. Therefore, it can be deduced that possibly the Malaysian legal and political system is still working out the kinks of the system that have also plagued the UK legal system in the past.
When the country first became an independent state in 1957, it largely adopted the English legal system as the legal framework. The only major aspect of the Malaysian legal system that differed from its former colonizers was that the constitution of the state was to be written and codified, like most states around the world. However, even with the Malaysian constitution being grounded on English law,
Moreover, concepts like democracy and the rule of law are not really ingrained in the culture of the country and hearts and minds of its people. Hence the emphasis placed on fair and clean politics has only come about in recent years. It can be inferred that the legal system imposed by our past colonizers requires for a wellestablished and respected judiciary body and an inherent political culture that respects the law strictly. This has not been practiced in the past and even now in the present possibly due to the initial unfamiliarity with concepts that are largely Western in nature and also disregard for these concepts, as they could be perceived as a stumbling block rather than a stepping stone for effective administration. Because of this, we can see that the rule of law was bound to have a hard time to be implemented. Lost Chance for the Judiciary to Play a Meaningful Role The first instance in which the deterioration of the rule of law was set in stone was with the case of Loh Kooi Choon v Government of Malaysia (1977) 2 MLJ 187. In this case, Loh, the appellant, was arrested for a warrant under the Restricted Residence Enactment 1933, i.e. Loh was compelled to move away from his home and stay in a different location with strict travel restrictions. He then sued the government on the grounds that he was denied habeas corpus, arguing that he was unlawfully detained and Article 5(4) of the Constitution guaranteed that right. Before the appeal of this case was heard in Court, Parliament amended the Constitution and added a provision to Article 5(4), stating that “provided that this Clause shall not apply to the arrest or detention of any person under the existing law relating to restricted residence, and all the provisions of this Clause shall be deemed to have been an integral part of this Article as from Merdeka Day (independence
day).” What this meant was that due to the new provision, the appellant was not be able to argue his fundamental right of habeas corpus. This led to the Counsel for the appellant to argue that the retrospective effect of the amendment was not permissible as it would destroy the ‘basic structure’ of the Constitution. This was in reference to the Basic Structure doctrine of the Indian constitution that stipulated that basic features of the constitution couldn’t be altered or destroyed.
“The judiciary would prefer
not to interfere because they don’t believe it is their duty to distinguish fair and unfair legislation.” However, in the appeal in the Federal Court, Raja Azlan Shah FCJ disagreed and ruled that the Constitution cannot be internally inconsistent and so constitutional amendments were not subject to the inconsistency clause of Article 4(1), which stipulates that any unconstitutional law passed after independence would be void. It has essentially meant that, in instances, the government can pass unconstitutional laws through Parliament. The judiciary would prefer not to interfere because they don’t believe it is their duty to distinguish fair and unfair legislation. According to Azlan Shah FCJ, “the question of whether the impugned Act is harsh and unjust is a question of policy to be debated and decided by Parliament and therefore not fit for judicial determination”. This goes against the nature of the rule of law, which serves to prevent the influence of arbitrary power; this case provided the opening for the use of arbitrary power with this precedent being set.
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Impact of 1988 Constitutional Crisis The deterioration of the rule of law can also be traced back to the 1988 Constitutional Crisis. This was a highly controversial period that involved both politics and legal principles becoming intertwined. There were two incidents that led to the crisis itself. The first being that there were disagreements within UMNO, the main political party in Malaysia, regarding the position of the leader of the party. Under the prevailing conventions, the leader of UMNO will in turn automatically become the Prime Minister of Malaysia. The results of the 1987 UMNO party elections led to rumblings within the party and the Prime Minister at the time, Mahathir Mohamed, sacked the cabinet ministers who did not support him and were instead in favour of his rival Tengku Razaleigh Hamzah. As a result, a lawsuit was filed by disgruntled UMNO members seeking a court order to void the election results. This case became known as UMNO 11. The case became inundated with accusations from both sides and eventually was settled with UMNO being declared as an unlawful society, due to technicalities with Article 41 of the Societies Act 1966, because they failed to register local branches with the Registrar of Societies, thus nullifying the party election results. This decision did not sit well with Mahathir, who became increasingly authoritarian with his executive powers. The second incident was the Operation Lallang 1988 was seen by many as a government strategy by Mahathir to detain political dissidents without trial under the oppressive Internal Security Act. The operation resulted in 106 people being arrested under the impression that it was meant to prevent the occurrence of racial riots. However, the High Court granted leave
to key opposition leaders like Karpal Singh to be released from detention due to the way he had been detained. It signalled for that short period of time that there was a judicial renaissance of some sort and growing judicial independence. Sadly, this was short-lived. Shortly thereafter, the government moved to strip the judiciary of its power of judicial review. Mahathir in a separate but related matter, sacked its highest judicial officer Lord President Salleh Abas and two other Supreme Court judges as well as temporarily suspending the Supreme Court in order to maintain his stronghold over the judiciary. Ever since the 1988 crisis, the judiciary has not been as effective in upholding the rule of law and ruling independently from the executive and legislature. The ability of the executive to wield its powers against the judiciary has meant that the latter may never be truly independent since extreme measures like that were taken. What is the future?: New laws and its impact on the people This leads us now to the present. As we can see with the aforementioned incidents above, the judiciary has been substantially weakened because of the powers of the Prime Minister to be able to remove judges on a whim as well as the rule of law being diminished. What we can see now in the present is that unfair legislation has continued to be passed on a regular basis without much opposition. One piece of legislation that has effectively silenced dissent is the Security Offences (Special Measures) Act 2012 (â&#x20AC;&#x153;SOSMAâ&#x20AC;?). SOSMA has been used to arrest civil rights activists arbitrarily simply due to their active participation in organizing rallies, demanding their rights and for free and fair elections.
There is also the Prevention of Terrorism Act 2015 (â&#x20AC;&#x153;POTAâ&#x20AC;?). Although POTA is meant primarily for the arrest of terrorist suspects, it still gives rise to potential injustice, as it allows Malaysian authorities to detain terror suspects without trial for a period of two years. It also expressly disallows any judicial reviews of detentions. This violates fundamental basic rights of a fair trial and also the right to avoid unlawful detention. This links us back to the Loh case in which the seeds of the deterioration of rule of law were set in place, as the judiciary at the time did not intervene to rule against the unconstitutional amendment to the Constitution itself. More repressive laws? A recent law that was passed was the controversial National Security Council Act 2016. The new law grants the Malaysian authorities the power to carry out warrantless arrests, search and seize property, and impose curfews at will upon any citizen. This is contrary to the rule of law because it grants far too much power to the government. It is likely that it may not be applied fairly as it could potentially be used at will against any political dissident that voices out against the tyranny of the government. What we can see here is that the rule of law within Malaysia is hardly practiced and the
judiciary is in no position to mitigate this or act independently to protect the citizens, since the government has wide powers and the authority to act arbitrarily. Another threat for Malaysian citizens is that its Public Accounts Committee is headed by a member of the ruling party, which goes against the convention of that committee being run by an opposition party member. This has led to incidents such as the 1MDB controversy in which RM2.6 billion was found in Prime Minister Najibâ&#x20AC;&#x2122;s personal bank account. Apart from the legal and political causes that have been expounded upon, the social causes of Malaysia has also played a part in destabilising the rule of law. Historically speaking, when the country was a British colony, the tactic of divide and conquer amongst the races were used in order to prevent the multiracial society from coming together as one to unite against their colonisers. As a result, many were pigeonholed to certain areas and jobs that limited meaningful interaction between one race with another. This has been an underlying issue even to this day because of the lack of understanding between races. It has to be admitted that even the reconciliation back in 1957 was to ensure a working government that could be effective after gaining independence.
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This mentality has carried on now with politics being based on race rather than policy. The government itself is made up of largely racebased parties that are more concerned with looking out for their own race rather than the wider interests of the whole country. It is obviously detrimental as it only creates further animosity for disenfranchised minorities who feel like their voices are not being heard. The emphasis placed on race has reared its ugly head that has caused the May 13 incident and racial tensions to be bubbling ever since. The rule of law has been compromised with this unstable political regime that does not treat every citizen equally through policies. Laws have not been to specifically target and discriminate minority but public authorities have in many instances used their own interpretation of laws (and subsidiary legislation/regulations) to their own advantage to target minority races and religions in the name of upholding public peace.
administration In this respect, the Malaysian Bar must be commended for consistently speaking up courageously and without fear or favour, even on controversial issues to the detriment of its members. Other professionals like doctors, accountants, investment bankers, engineers and architects should not stay on the side-lines but instead speak up for the wider good of society. Yes, for the sake of the future of Malaysia, even the pastors, the priests and the Muslim clergy, too, must speak up.
“A way forward is for Malaysian citizens to continuously speak up about the issues they face in the country.” What else that can be done amongst the Malaysian people is possibly to have a truth and reconciliation commission like the ones South Africa has had. To be truthful with one another may be a necessary extreme solution that needs to be taken in order to air out the racial tensions that has only hampered the country from progressing further as a legitimate democracy with a functioning rule of law. By truth-seeking and reconciling with one another, it would force Malaysians to confront the ugly aspects of their past and hope to move on together united.
Way forward – the citizens must speak up and be counted The prospects for the rule of law in Malaysia seem bleak at this point in time with unchecked powers running amok. There is an urgent need for a stronger judiciary and a more responsible executive. A way forward is for Malaysian citizens to continuously speak up about the issues they face in the country. This may be the only way to garner attention from international bodies or state actors who can place indirect pressure upon the government While this may seem optimistic, it is better than to amend its mistakes. Often, international sticking to the status quo and living under a attention from the media and NGOs play a regime whereby the rule of law is treated as a joke. role in highlighting the plight of a country’s
Populism and the Rule of Law Ashley Seah (MY) As a fundamental pillar of democracy, the rule of law provides checks and balances for the government through an independent judiciary, a free press and separation of powers between the branches of government. By preventing use of arbitrary power, one notion of the rule of law is that it plays a ‘formal’ role instead of a ‘substantive’ one – the law merely adhering to procedural requirements with no need for a moral element. This is arguably the case in a democracy as immoral or disagreeable laws will be dealt with through the demands of the people against Parliament, instead of through courts who can only carry out Parliament’s intention in the statutes. However, as seen in recent global events, this democratic system has been confused with that of the populist movement which claims that it gives effect to ‘the will of the people’ and that it is “inherent to representative democracy” (Cas Muddy). Although all democratic political movements and parties make somewhat populist claims in intending to benefit ‘the people’, the difference seen in populist movements are the abandonment of party pluralism, divisions of power, rights of dissenters, and other key principles of constitutional democracy when these populist leaders do take power. Seen in the 1890s, the term “populist” was first seen to describe the American Populist Party and the Russian Narodniks. Since then, it has been transformed from a description of political parties into a word primarily defined in terms of nationalism, sexism, bigotry, and anti-establishment sentiments. However, as
Early Populists and their Parties
stated by Laclau: “A persistent feature of the literature on populism is its reluctance – or difficulty – in giving the concept any precise meaning”. Attempting to find a common thread, Cas Mudde postulated that populism is a “thin ideology”, one that merely sets up a framework: the people versus a corrupt elite. Although, as with any other political concept, there are a variety of ways in its implementation. Compared to left-wing ‘inclusive populism’ where political integration of excluded social groups and people are allowed - enlarging the boundaries of democracy - right-wing populist movements seen prevalent in the West are exclusionary in nature and work on an anti-pluralistic view.
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Therefore, the view that populism and democracy can coincide is not true – at least for right-wing populism. This is because it positively excludes certain groups of society in its’ conception of ‘the people’ - leading to the creation of leaders who threaten democracy and the rule of law by diminishing the independence of the judiciary, the separation of powers and the availability of a free press.
Exclusion and Accusation of the Elite
The problem here, as explained by JanWerner Müller, is due to the first populist step which is ensuring that “the people” are limited to those who share the same conception of the country’s destiny. Anyone who does not support this must either be considered a member of “the elite”, “the establishment” or not “real nationals” - as seen in the cases of immigrants. In effect, this produces a homogeneous type of person and leaves no space for exchange of ideas nor political debate within their sphere. Recent cases have highlighted this attitude: Turkish President Recep Tayyip Erdogan declaring at a party congress in defiance of his critics, “We are the people. Who are you?” and Nigel Farage’s description of the Brexit vote as a “victory for real people” - effectively dismissing half the country who voted against it. Therefore, it is apparent that this exclusion can transform political discourse into an “us
against them” mentality that is detrimental to civil, rational and peaceful discussion which is crucial in a democratic society. While it is argued that this seeks to force elites to discuss issues they prefer to ignore, the populist belief that “the people are always right” pose further problems for the rule of law and more specifically, to the independence of the judiciary. This can be seen in the backlash of the people against the recent UK Supreme Court ruling of R(Miller) which required Parliament’s permission to trigger Article 50 and formalise Brexit. Led mostly by Brexit advocates, they claim that ‘activist judges’ have disrespected the outcome of the referendum, taking a political stance against the government by providing a stumbling block to Brexit. Taking the outcome of the referendum as conclusive instead of being merely a political vote, they seem not to care that the judges came to their final decision by straightforward application of UK constitutional law, preferring instead that the courts and Parliament stay out of the equation.
With obvious disregard of the role of the courts, this raises fears of populist leaders acting in the same way -disrespecting those ‘elite’ in Parliament or in the courts.
Therefore, being in positions of power, populist leaders then pose threats of repressing the authority of the legislature or the courts, slowly blurring the line between the three institutions created by the separation of powers.
With unlimited power to fire and hire top level government officials, the president of the USA, at least, is a plausible example of this fear. Exemplified in his attitude towards immigrants and his recent attempt to ban Muslims from 7 countries from entering North America, Trump shows a blatant disregard of human rights which are protected in the American constitution – and thus, a blatant disregard of the rule of law. The Muslim ban, especially, raised a myriad of legal issues which he repeatedly challenged in court. Discriminating against refugees on the basis of religion, the order was held to be unconstitutional under the refugee convention, a United Nations treaty that is incorporated into United States law. There were also problems with the order’s vague, confusing language, violating constitutional due process protections as well as discrimination in the issuance of visas being prohibited under the Immigration and Nationality Act. Regardless of all these claims against it, Trump constantly addressed the court’s decisions as ‘political’ or ‘wrong’. Recently addressing the judiciary in his tweet to “SEE YOU IN COURT...”, he shows he isn’t afraid to challenge the
court’s powers and thus their independence. While there seems to be a withdrawal to continue litigation in this case after their defeat at the 9th circuit court of appeals marking a win for the rule of law - Trump’s dismissive attitude towards the system of checks on balances raises concerns that he will use his presidential powers as a tool to coerce government officials and even judges into making decisions he wants. With this amount of power, it is plausible to use law enforcement to pressure the media in the way some authoritarian executives do where the rule of law is weaker. Moreover, although rulers have less direct control over judges, other democracies have shown that when a lead executive presses judges publicly and hard enough, those judges often blink. Although merely postulations, this highlights the potential problem with populist leaders. The main thing here is that since populism calls for absolute obedience to the passions and will of the people, once in power, the leaders often manage to manipulate and control people in highly centralised way, enabling them to interfere with elements of democracy. Therefore, the case against right-wing populism is that it threatens the rule of law not only in theory but in practice by ‘anti-elitist’, ‘anti-establishment’ leaders. Although these leaders promise to include the excluded and overturn an elected oligarchy, once in power they usually deploy central government tools to attack the institutions of liberal democracy. This is due to their exclusionary notion of ‘democracy’ which leads populist leaders to blur the line between democracy and anarchy by diminishing the possibility of checks and balances of the rule of law required for proper democratic rule. In short, even though modern exclusionary populist movements are an understandable expression of current malaise in many democratic countries, they cannot lead to any sustainable democratic remedies.
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International Humanitarian Law, its Constitutive ‘Other’ and the War on Terror: Is the Rule of Law at Risk? Ilaria Minucci (IT) The rationale of the laws of war categories of protection, which is funded on the protection of was represented by the nonall and, therefore, it is supposed Europeans or, more simply, the to be all-inclusive. This is ‘tribal savages’ of the colonised undeniable seeing the crucial lands, will be presented. This transformations in the laws of war since 1945. The “International law is not period of decolonisation unlocked the possibility of applicable to uncivilised ratification of fundamental peoples and could have no humanitarian instruments influence upon them. It by numerous recently is merely a body of rules decolonised nations. More importantly, the idea that, and customs that have despite violations by the other grown up among nations party, states should still be more or less similar for bound and, thus, decreased use among themselves” prospects of reciprocity, began to materialise. But what if article will emphasise how international humanitarian law that marginalisation from the was simultaneously inclusive protection of the laws of war and exclusive? Some authors was justified by a particular such as Megret (From “Savages” discourse of ‘savagery’ as the to “Unlawful Combatants”: root for deeming ‘uncivilised’ A Postcolonial Look at populations unworthy of that International Humanitarian protection. Then, it will be Law’s “Other”) and Kinsella illustrated how the ‘war against (Discourses of difference: terrorism’, by using precisely the civilians, combatants, and identical arguments previously compliance with the laws of used to exclude ‘savages’ war) have condemned the fact reveals the persistence of deeply that every protection and status exclusionary features in the laws under the laws of war might be of war. The closing argument regrettably contingent upon the will deal with the question denial of an ‘other’. Specifically, of whether such deliberately the argument that international selective suspension of the humanitarian law has always laws of war with respect to had a constitutive ‘other’, a certain actors impacts the figure excluded from the various notion of rule of law as defined
by the UN Secretary-General. As Megret explains, in order to understand how non-European people were excluded from the protection of the laws of war, and how it may be considered to plausibly persist even in current times, it is crucial to appreciate its basis “in a number of deeply held beliefs about the nature of international law, ‘civilisation’ and ‘savagery’…which… would continue to condition its operation.” It appears then that the non-application of laws of war originally stemmed from the merging of numerous intermeshed and reciprocally reinforcing trends. To begin with, Ringmar (“How to Fight Savage Tribes”: The Global War on Terror in Historical Perspective) reports that all nineteenth-century writers on international law made a sharp distinction between wars fought in Europe and in the colonies. In fact, in Reeves’ words, law professor at the University of Michigan, “international law is not applicable to uncivilised peoples and could have no influence upon them. It is merely a body of rules and customs that have grown up among nations more or less similar for use among themselves.”
It was imperative to elect the ‘non-civilised’, to be found in the territories of Africa and Asia, to maintain ‘civilisation’ as the yardstick. The inescapable corollary was that ‘non-civilised populations’ were incapable of deploying ‘civilised’ means of war, as, in Koskenniemi’s words (The Gentle Civiliser of Nations: The Rise and Fall of International Law), the laws of war refined “the fighting men’s sensibilities so as to bring about those traits of character that were associated with civilised behaviour.” Hence, the driving force behind the suspension of the operation of the laws of war seemed to be a distance that was of course geographic but also civilisational. The laws of war in this sense did not merely serve the purpose to proscribe and forbid violence, but also to fabricate and categorise civilised entities. Beside the idea of racial inferiority, the ‘savage’ was seen as unqualified and incapable to honour the laws of war. In 1927 Captain Colby (How to Fight Savage Tribes), a US army lawyer, was particularly disturbed by the fact that “when natives go to war, they do not observe the individual decencies of civilised regular soldiers”. For instance, they did not seem to respect the principle of distinction between combatants and non-combatants. Colby’s consequential postulation was then that the blatant and simple reality was that “when a tribe on the war-path measures its victories by the number of houses burned and the number of foes, combatant or non-combatant, cut up, you must use a different method of warfare”. “If civilised nations do not put their prisoners to death or devastate cities and countries, it is because intelligence plays a larg[e] part in their methods and has taught them more effective ways of using force than the crude expression of instinct” (Von Clausewitz, On War). As ‘savages’
did not wage ‘civilised war’, ‘civilised warfare’ could not be waged against them. Tribal fighters were thus either too brutal or too imbecile or both to be able to comply with the laws of war. It is interesting then to observe how the ‘barbarian’ appeared to be the emblem from which the laws of war seemed to seek detachment, although it is disputable whether such detachment was eventually accomplished. If waging an equally ‘uncivilised’ war was the only possible way to respond to the attacks and methods of warfare of these ‘savage’ combatants, were the Western nations really distancing themselves from their nemeses? For instance, seeking a more efficient method to defeat the Arabs in Algeria, Bugeaud, the French Governor-General of the colony, established a new scheme of warfare: raids on all resources and assets that supported the lives of the Arab population, such as their plantations, and cattle. He argued that such method was more suitable to African conditions. After all, “savages were impressed only by force; fanaticism could be stopped only through an awesome demonstration of technological superiority” (Mazower, An international civilization? Empire, internationalism and the crisis of the mid-twentieth century). Accordingly, it would not be improper to argue that by attempting to place themselves on a higher pedestal based on their (alleged) civilised manners, Western States were in fact converting into their antagonists. Seeing the crucial transformations in the laws of war since 1945, it could be argued that what Megret eloquently describes as the “rhetoric of the ‘savages’” had dissolved. However, in the wake of the attacks launched on 11 September 2001, several commentators noticed that a pattern has surfaced showing significant similarities to the colonial rhetoric of the ‘savages’.
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Maddox (After the Dust Settles: Military Tribunal Justice for Terrorists after September 11, 2001) observes that “just as the current administration characterises…extremist groups…early American leaders also characterised slaves and Native Americans, through simplification and distortion.” This is echoed by Maguire (Law and War: An American Story): “before there were “ war criminals,” there were “barbarians”…and “savages” who did not qualify as equals in the arena of “civilised warfare”.” It is noteworthy that the rhetoric of the Bush Administration concerning ‘unlawful combatants’ imitates the arguments that were highlighted above as being typical of the earlier exclusion of non-Western peoples from the laws of war. Hence, would it be incorrect to assert that the events surrounding the so-called ‘war against terror’ can be considered a case study of a perceived persistence of discourses of barbarism and civilisation enabling the particular construction of categories of violence, the treatment of which iterates the fundamental opposition of civilisation and barbarism by which the war on terror proceeds? Here, the memorandum of 2002 by Bybee, Assistant Attorney General, academic publications by Yoo, then Deputy Assistant Attorney General, and various subsequent assertions in the press are instructive with respect to such argument. It is striking that Bybee (Memorandum: Application of Treaties and Laws to al Qaeda and Taliban Detainees) begins by deploying the unoriginal argument that the adversary, as was the case with savage tribes, is not a party to the relevant treaties: “Al Qaeda is merely a violent political movement or organisation and not a nation-State. As a result…cannot receive the benefits of a State party to the Conventions.” Nevertheless, as Yoo and Ho (The Status of Terrorists) add, “even if al Qaeda were a nation-state and a party to the Geneva Conventions, its members would still qualify as illegal belligerents due to their very conduct.” Most intriguingly, Yoo argues that “[t]he reasons to deny Geneva status to terrorists extend beyond pure legal obligation.” Accordingly, the author holds that unlawful combatants fail to distinguish themselves, as “they operate… by intentionally concealing themselves among
“Al Qaeda is merely a violent political movement or organisation and not a nationState. As a result…cannot receive the benefits of a State party to the Conventions.” the civilian population…[Therefore]…they deliberately attempt to blur the lines between civilians and combatants.” The argument then proceeds, as was the case with ‘non-civilised peoples’, with the statement that all these defects necessarily lead to the point that unlawful combatants cannot benefit from the laws of war because they cannot conceivably be expected to reciprocate: “the primary enforcer of the laws of war has been reciprocal treatment: We obey the Geneva Conventions because our opponent does the same with American POWs. That is impossible with al Qaeda” because al Qaeda members “are not under the control of a nationstate” which means, crucially, that they cannot be forced “to obey the laws of war.” Therefore, Delahunty and Yoo (Rewriting the Laws of War for a New Enemy; The Geneva Convention Isn’t the Last Word) conclude that the norms contained in the four Geneva Conventions have meaning when war implicates nation states, but that the laws of war do not make sense when applied to “a terrorist group or a pseudo-state.” The Bush Administration appears then to unequivocally underscore the inherent ambiguity of the laws of war which, while are considered to establish the rights of all of humanity, nonetheless are still subject to the legitimisation of the denial of those rights on the basis of the concept of savagery. If otherwise unlawful combatants are to be given the benefit of the laws of war, consequently, it is on a merely discretionary basis, in the same way that the sovereign or the military commander may sporadically have condescended to expand the protection of international humanitarian law to ‘barbarians.’ The exclusionary element of international humanitarian law is an attribute that remains concealed or dormant but which is promptly revived in times of predicament.
All things considered, the potential impact that this conduct of selective exclusion from protection has on the very notion of the rule of law at the international level should be considered. In the words of the UN Secretary-General, the rule of law is “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated”. Moreover, it requires measures to guarantee adherence to the values of supremacy of and equality before the law. Clearly then, at least in theory, within the context of the international community of which they form part, States are held to specific high standards from which derogations are (arguably) hard to be proved justifiable. But if it is accepted that international law eventually developed the way it did by perpetuating itself as the idea of ‘civilisation’ and ‘progress’ in contradiction of the concurrently established ‘barbarity’ of the nonWestern combatant, how can the principles of supremacy and equality be regarded as properly respected and safeguarded? As a matter of fact, international humanitarian law seemed to be the answer to the problem it simultaneously created, allowing States to hide in their legal ivory towers built on the premises that the international body of laws itself has generated and maintained through time. Additionally, it is difficult to deny
the fact that the behaviour of the United States with respect to the war on terror can potentially set a dangerous precedent in relation to the legitimisation of derogations from fundamental bodies of laws. Particularly if such derogations are partially founded on the dogmatic stereotypes of civilisation and sovereignty of nation states. In fact, as Steyn asserts (Guantánamo Bay: the Legal Black Hole), “what must authoritarian regimes, or countries with dubious human rights records, make of the example set by the most powerful of all democracies?”. However, the threat posed to the concepts of equality before and supremacy of the law is not the only outcome of this exclusionary tendency. Another aspect of the pattern of relegation of protections deployed by the United States concerns the treatment of non-nationals detainees at Guantanamo Bay, especially when the prisoners are part of Al Qaeda or Taliban militia. Appalling injustices (such as ‘stress and duress’ methods of interrupting sleep and coercing prisoners to stand for lengthy intervals) have been perpetrated on the grounds of security of the nation on several individuals who had no real recourse to the law: “too often courts of law have denied the writ of the rule of law”.
“Too often courts of law have denied the writ of the rule of law.”
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Steyn therefore criticises the excessively deferential attitude of the courts to the executive in both times of peace and emergencies, leading to a regrettable marginalisation of the law. Writing in 2004, the author comments that extraordinary deference of the United States courts to the executive has destabilised the values and principles of the rule of law and of the commitments to the Magna Carta. The courts would decline to hear an inmate at Guantanamo Bay who provides plausible medical evidence of being tortured and convicts who claim that they were not combatants at all. As a consequence, “the military will act as interrogators, prosecutors, defence counsel, judges, and when death sentences are imposed, as executioners.” Steyn concludes that one of the most powerful democracies in the world is “detaining hundreds of suspected foot soldiers of the Taliban in a legal black hole at the United States naval base at Guantanamo Bay, where they await trial on capital charges by military tribunals”. Guantanamo Bay is then perceived as a place outside the jurisdiction of the United States and outside the possibility of affording protection to the detainees. It is a step out of the law, an ungovernable place outside normal law.
It is evident that if certain States are allowed to adjust, revise or derogate from international laws depending on the context and on the actors involved, the concept of the rule of law as described by the UN Secretary-General would become, at least, a qualified version of its own original form, continuously subjected to the fluctuating political wills of powerful nations. Indeed, Megret opines that “it is this model [of exclusion] that exercises a monopoly over our imaginations about state violence and what can be done about it.” To conclude, I agree with the author affirming that we should therefore ask ourselves what has been lost and what will be lost in accepting a governing model that is so contaminated by the same inherent ideology that generated it, and which is so loyal to the reinforcement of state power.
“It is this model [of exclusion] that exercises a monopoly over our imaginations about state violence and what can be done about it.” Correspondingly, the fact that numerous processes such as illegality of detention, denial of habeas corpus and fairness of due process cannot be considered as pertaining to such ‘lawless external space’ seems an unfortunately coherent and logical statement. In fact, how could these concepts be taken into account in a legal vacuum?
The Right to Live v The Right to Die Krzysztof Stefanowicz (PL) In 2005, Tony Nicklinson suffered from a stroke. Since then he had been paralysed from the neck down, and described his life as a “miserable, dull and undignified existence”. Eventually, he died in 2012 from starvation, which seemed to him to be the only way to end the nightmare that he had been living for 7 years. This was the result of him losing the case in the High Court, which refused the arguments that the current law of assisted suicide and euthanasia, mainly S.2 of the Suicide Act 1961, is incompatible with Article 8 of the European Convention on Human Rights, which speaks about a right to respect private and family life, as well as the rights of autonomy and dignity. It was held that it would not make the doctors immune from the prosecution based on ‘necessity’ defense, if they decided to assist the suicide. Currently, suicide is no longer recognized as a crime under S.1 of the Suicide Act 1961, however, encouraging or assisting a suicide still constitutes a criminal offence under S.2 of the Act. After Nicklinson’s death, his family relatives took the case to the Court of Appeal, which sustained the High Court’s judgment. The appeal was also rejected in the Supreme Court, but Lady Hale and Lord Kerr stated that they were quite ready to issue a declaration of incompatibility by the means of S.4. of the Human Rights Act 1998, which would have returned the question to Parliament, whereas other seven justices,
including the President of the Supreme Court, Lord Neuberger, held that it was not “appropriate” to do so in this particular case, however, Parliament should now consider a change. “Parliament now has the opportunity to address the issue of whether section 2 should be relaxed or modified, and if so how, in the knowledge that, if it is not satisfactorily addressed, there is a real prospect that a further, and successful, application for a declaration of incompatibility may be made”, said Lord Neuberger at para.118 of R (Nicklinson) v Ministry of Justice  UKSC 38. In addition, Lady Hale confirmed her opinion about the incompatibility of the current law at para.300, where she stated: “I have reached the firm conclusion that our law is not compatible with the Convention rights. Having reached that conclusion, I see little to be gained, and much to be lost, by refraining from making a declaration of incompatibility”. Considering further legal proceedings, in December 2014, Tony Nicklinson’s wife wanted to bring the case before the European Court of Human Rights. The court decided that the question of assisted suicide falls within the UK’s margin of appreciation, and it was held that the application was “manifestly ill-founded” and therefore inadmissible, finding that the Article 8 of the Convention did not impose procedural obligations which required the domestic courts to examine the merits of a challenge formed in respect of primary legislation.
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When it comes to the implementation of the Supreme Court judges’ suggestion, no significant decisions have been made by Parliament so far. In June 2015 the Assisted Dying Bill, drafted by Lord Falconer, did not pass in the second reading debate, with 118 MPs voting for and 330 voting against.
themselves a burden to their relatives, and might be persuaded or convinced to undertake the procedure of assisted suicide, when otherwise they would not do so. Even though they emphasized the valid reasons for assisted suicide, they wanted also to protect people who are at most risk.
Why did the Supreme Court judges refrain from issuing the declaration of incompatibility, despite having some relevant doubts whether the law is properly formulated in this matter? On one hand, as Lord Kerr and Lady Hale suggested, it may be argued that cases which concern the matters of the human life, and are of an immense importance for the whole society, should be decided on and resolved by the most supreme and significant decision- making body in the country – Parliament. Therefore, they would have triggered S.4 of the Human Rights Act 1998, and the effect of declaration of incompatibility would have been that the question would be returned to Parliament. However, the majority of the judges, with Lord Neuberger, decided to make a strong statement that reflects the more powerful character of the court, similar to the one of the US Supreme Court. They concluded that the Supreme Court has a role in examining such matters, therefore, they would not have triggered S.4 of the Act. Instead, the decision was to be made by the Lords, however, even the ‘activist’ judges could not have legalised assisted suicide in this case due to the problems that the relaxation of the S.2 of the Suicide Act 1961 may pose. Firstly, the judges stated that the verdict in Nicklinson was shaped by the risk to the lives of vulnerable people, who may feel
From a purely moral perspective, is it right for the state to restrict the will of the individuals? If all people have a right to life under Article 2 of the European Convention on Human Rights, which states that “Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally [...]”, and greatly tightens the circumstances in which life may be lawfully taken (e.g. defending other person from unlawful violence or to prevent the escape of a person lawfully detained), should it not work in reverse as well, and give the power to govern their own lives to the people? Lord Bingham stated in his book “The Rule of Law, where he quoted the Earl of Chatham – The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail – its roof may shake – the wind may blow through it – the storm may enter – the rain may enter – but the King of England cannot enter – all his forces dare not cross the threshold of the ruined tenement! Therefore, the question here is about where is the boundary of state’s interference in our lives located. However, it must be remembered that right to life is a natural inalienable right; therefore, it cannot be lawfully taken by anyone, or be restrained by any human laws. But the case of Nicklinson has shown that the modern society desires a change.
The question is on what grounds and in what circumstances should assisted dying be allowed. According to the survey conducted in 2015 for “The Economist” by Ipsos Mori, there is a strong support across America and Western Europe to allow doctors to prescribe lethal drugs to patients with terminal diseases. Moreover, in 11 out of the 15 countries surveyed, the majority favoured extending doctor-assisted dying to patients who are in great physical suffering but not close to death. There is a clear sign that the law needs to be changed, however, the division within the society, as well as the risks associated with this change, make this issue to be immensely difficult and not every country is ready to make such decision. The question of the right to life being inalienable is one of the greatest legal concerns when it comes to legalising assisted suicide. On one hand, this natural right cannot be lawfully taken away or restricted by any laws, nevertheless, there are certain circumstances in which it is possible. For instance, article 2 of the European Convention of Human Rights recognizes certain exceptions to this rule, e.g. where taking life is absolutely necessary in order to defend another person from unlawful violence. However, right to life cannot be understood as its opposite, i.e. right to choose death. This argument is visible in the case of Pretty v the United Kingdom (2346/02) decided in 2002 by the European Court of Human Rights. The applicant was dying of motor neurone disease, and wished to be able to control how and when she died. Because of her condition, she could not commit suicide alone and wanted her husband to assist her. As the UK authorities refused her request, contrary to S.2 of the Suicide Act 1961, the applicant complained
that her husband had not been guaranteed freedom from prosecution if he helped her die. The Court held that there had been no violation of Article 2 of the Convention, finding that “the right to life could not, without a distortion of language, be interpreted as conferring the diametrically opposite right, namely a right to die.” Although several countries of the European Union, for instance, Germany, France, the Netherlands, Belgium and Luxembourg have decriminalised human euthanasia and assisted suicide, it remains a challenging and controversial topic for the politicians and the judiciary everywhere. In the United Kingdom, it is not certain whether the doctrine of the rule of law is clearly applied in this matter, as there are many arguments for and against restricting the free will of individuals when it comes to deciding on taking away their own lives, as well as whether the prohibition of assisted suicide and human euthanasia is compatible with the European Convention on Human Rights and whether it should be changed, as suggested by the Supreme Court judges in Nicklinson. Nevertheless, this issue will appear again quite soon, as there is a similar case currently considered in the High Court, and we will have an opportunity to observe how the judges and Parliament will react to the challenge this time. In her judgment in Nicklinson, Lady Hale discussed that Parliament may in fact never decide the issue. Does it mean then that judges are the ones who should take the burden of responsibility and make that decision? This social and moral dilemma will persist, as no country has introduced so far a legitimate and universally accepted solution to deal with the issue of assisted suicide and human euthanasia.
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How Far is China Committed to the Advancement of the Rule of Law? Catherine Fu (NZ) Rule of law (Wikipedia definition): ‘the legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials’. As Chinese President and Party Secretary General Xi Jinping proclaimed his commitment to economic globalisation at the Davos 2017 World Economic Forum, attention turned to China as the ‘unlikely guardian of the international order’ against rising protectionism. While China’s role as a major player in the global economy seems clear, its economic growth, to a large extent, is still limited by its inability to adopt a resolute approach to the rule of law, hindering both its domestic development and foreign policy ambitions.
faced by China are directly linked to issues within the rule of law. This acknowledgement of the causal link between law and development, on the surface, appears to demonstrate Beijing’s commitment to effect change.
Reasons behind this novel commitment to the rule of law seems to extend beyond domestic policy. China’s ambition to become an economic super-power can be seen through its ‘One Belt, One Road’ program, which seeks to create economic corridors with nations that contain two-thirds of the world’s population. This cross-border undertaking, however, would require formidable legal structures and expertise capable of dealing with the complex constitutional and jurisdictional issues that arise. Therefore, China’s economic and This article will examine four main issue: firstly, foreign policy has given rise to an increase in the importance of the rule of law and the legal demand for high-quality legal services, and profession to China’s development; secondly, for stability and certainty in its legal system. reasons behind the subversion of the rule of law in China; thirdly, the manifestations Further, China’s lack of compliance with of this subversion in terms of policy and international treaties brings its global economic political suppression; and finally, the extent position into question. Questions such as internet to which the Chinese Communist Party (CCP) censorship, directly linked to issues of rule of is committed to addressing these issues. law and freedom of speech in China, challenged the Chinese government’s ability to meet the By China’s own admission, its economic and social standards of the Trans-Pacific Partnership (TPP), development can only take place upon the solid and resulted in China not partaking in TPP foundation of the rule of law. At the ‘Hundred negotiations. For the first time, internet censorship Jurists and Hundred Lectures’ event, Supreme was also identified as a barrier to trade by the People’s Court Deputy Secretary Jiang Bixin U.S. Trade Representative (USTR) in March 2016. explained that current developmental problems
Moreover, China’s continued failure to follow through with its obligations as a member of the World Trade Organisation (WTO), including the general absence of the rule of law, causes institutions such as U.S. government and businesses to express concern and doubt. With so much of China’s international and domestic objectives hinging on the legitimacy of its rule of law, one might reasonably question why it is still being subverted. Zheng Yongnian, Professor and Director of East Asian Studies at the National University of Singapore, proposes that this question can only be understood within China’s historical and cultural context. Looking at the governance of China throughout its history, it is observed that Chinese legalism has always been used as a tool for government efficiency. In ancient Chinese history, its legal system is characterised as ‘rule by law’, whereby the emperor was not subject to legal restrictions. The courts in turn, were institutions of the executive, and not the independent judiciary that developed in the
West. Thus, the CCP has retained characteristics as an ‘organisational emperor’, often acting responsively to maintain its legitimacy by guaranteeing its domination over society. Mao’s legacy of the Cultural Revolution, moreover, contributed to a division between the political roles of the court and of legal practitioners. While judges tended to develop a close connection with the Party, acting as agents of the state, lawyers, following the implementation of the Lawyer Law 1996, became enthusiasts for democracy, rights, and the rule of law. This led to a conflict of interest, and precipitated the concern that lawyers are politically unreliable, and their loyalty to the Party questionable. This concern became exacerbated as frustrated lawyers used social mobilisation as a method to win appeals and litigation, which was described as ‘[stepping] on the bottom line of the Party’ by challenging the authority of the state. In recent years, this distrust appears to have deepened, with an ever-growing concern to keep lawyers in line.
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This concern is reflected through China’s policy directions on the legal profession and on political dissidents. On 14th June 2016, General Office of the CCP and its counterpart in the State Council published their opinions on ‘strengthening’ the political orientation of China’s lawyers. Proposed policies include increased regulation on lawyers’ standard of behaviour, punitive measures for violations of those standards, and targeting lawyers with propaganda to create a ‘positive atmosphere’. These attempts to systemise the behaviour of legal professionals would essentially embed a sense of political purpose in law, thereby restricting the variety of cases which lawyers can pursue, particularly those against potential interests of the state. Furthermore, the Chinese government frequently uses incarceration and punishment of political dissidents to quash challenges to state power. Less than one year after passing an ambitious reform plan for the rule of law at the fourth plenary session at the 18th Congress, 317 human rights lawyers, activists and their family members were reportedly detained, in the event dubbed as the ‘709 crackdown’ by media in the West. This is an indication of how arbitrary executive power may contravene any rule of ordinary law that protects citizens’ rights in China.
Beijing’s current reform initiatives as ‘not just a window dressing’, pointing to proposals that sever the judges from local political interests, monitor party cadre interventions in legal affairs, and promote professionalism in the judicial system. They claim that the drive behind these changes comes from a recognition for the growing need of an established rule of law system to cope with the ‘increasingly complicated society.’ While it is conceivable that the CCP intends to continue strengthening the rule of law in matters concerning economic and foreign policy, it is likely that it will simultaneously quash dissent and challenges to its rule through executive power. These contradictory legal trends reflect a division between the perceived interests of the state and that of the citizen. They may also signal a gap between Western and Chinese understanding of the rule of law and its purpose: while one sees it as a mechanism for protecting citizens’ rights, the other uses it as a tool for promulgating the objectives of the state.
It must also be noted that the developmentboosting effects of a legitimate rule of law can only be observed in the long run. Yet, without sufficient leadership commitment, independence and autonomy in the legal profession, nor adequate protection of citizens’ rights embedded in law, it is difficult to picture Executive actions such as those raise severe Chinese society reaching a stage where law questions regarding the extent to which the CCP both governs the lives of the ordinary citizen, is committed to improving the rule of law. Views and regulates the power of the executive. on this are divided. Some commentators see
The Role of Fundamental Rights within the EU Kristyna Muhlfeitova (CZ) Introduction The role of fundamental rights within the EU has expanded despite the EU being a primarily economic union. This expansion is seen by the creation of the Charter of Fundamental Rights, the integration of fundamental rights into the Copenhagen Criteria, the mechanisms that the European Council and Commission have developed to ensure that existing member states do not violate the rule of law through the ‘rule of law initiative’ and the ‘rule of law dialogue’ and Article 7 of the Treaty of the European Union allows for the suspension of a Member States EU rights in the event of a serious and persistent breach by a Member State of the values referred to in Article 2. When looking at Article 2, which states that ‘the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities’ together with the fact that the EU has adopted the above measures in relation to compliance with Article 2, it might appear that the EU is not merely an economic union but has also become a quasi-human rights organization. However, this would not be a correct characterization. Unlike human rights instruments such as the European Convention on Human Rights or non-governmental human rights organizations such as Human Rights Watch, the primary purpose of the EU
is not to further human rights and ensure their enforcement. Instead the role of fundamental rights in the EU is to secure effectiveness of EU law. It will be demonstrated that although, this seems to be a functional purpose rather than a principled purpose, it is nonetheless effective in ensuring human rights protection across the EU. This article will firstly explore this proposed role of fundamental rights in the EU by investigating why it is in the interest of the EU to protect fundamental rights, secondly, whether the EU should become a party to the ECHR and lastly it will identify possible reforms to how the EU approaches fundamental rights. Why is it in the interest of the EU to protect Fundamental Rights? The main reason why the EU has evolved in its fundamental rights protection was because a form of fundamental rights protection became essential for the effectiveness of EU law. As mentioned above, despite it being a functional purpose rather than a principled one, the different mechanisms of protecting fundamental rights in the EU are an effective way of upholding fundamental rights across the EU. This is mainly because both the European Court of Justice and national courts serve as a mutual check and balance and are incentivised to uphold fundamental rights as it gives each more power.
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Firstly, in order for EU law to have authority there needs to be a uniformity in application of EU law across member states, this is done through the doctrine of supremacy which the European Court of Justice famously highlighted in Costa v ENEL and more controversially in Internationale Handelsgesellschaft where it ruled that EU law prevails even over national constitutions. As Weiler has pointed out it would be virtually impossible for national courts to accepts this doctrine of supremacy without an an adequate framework of fundamental rights protection at an EU level (Joeseph Weiler 1991).
protect the doctrine of supremacy of EU law, struck down an EU regulation implementing an UN resolution, based on it being against fundamental rights (Article 263 of the TFEU). It was held that EU law and its general principles prevailed over the UN resolution itself, although according to international law the UN resolution should have prevailed. The result was that Kadi whose assets had been frozen without due process under the UN resolution was afforded a higher level of protection under EU law. This demonstrates that although fundamental rights serve a functional purpose to safeguard the supremacy of EU law, a high This was highlighted in Solange by the German standard of rights protection can still be secured. Constitutional Court which stated that so long as (So lange) the integration process has not Secondly, in order to ensure the effectiveness of reached the point of the creation of ‘a catalogue measures such as the European Arrest Warrant, of fundamental rights decided on by a parliament there needs to be a recognition of a minimal and of settled validity, which is adequate in protection of fundamental rights across the comparison with the catalogue of fundamental EU and a mechanism of ensuring a uniform rights contained in the Constitution’, the German standard of rights in relation to the European Court reserves the right to review EU law based Arrest Warrant. This was best demonstrated in on its own constitution. This prompted the the case of Melloni. In Melloni an Italian citizen rise of protection of fundamental rights in the had been convicted in absentia of a criminal EU starting with the European Court of Justice offence in Italy and had fled to Spain where he recognising that ‘fundamental rights form an was arrested. Under the European Arrest Warrant integral part of the general principles of law, the mechanism, he should have been extradited observance of which [the Court] ensures’ (Nold) to Italy, however, in Spain there is a stronger and culminating in adaptation of the Charter of protection of the right to a fair trial than in Italy, Fundamental Rights. Weiler argues that although as there is a right not to be tried in absentia. The the ‘surface language is of human rights the deep Spanish court was unsure whether it should apply structure is about supremacy’ (Joseph Weiler its own higher standard of fundamental rights 1991) showing that the role of fundamental protection or whether it should give primacy to rights in the EU evolved as a functional purpose EU law and extradite him to Italy. In response to safeguard the doctrine of supremacy. to the preliminary reference, the European Court of Justice found that the Spanish court Despite fundamental rights protection serving cannot rely on its higher standard of protection such a functional role, it has proved to be an in this particular case and has an obligation effective tool to uphold a high standard of to extradite him. The court reasoned that both rights protection and ensuring the rule of law. Italy and the EU provide a protection of the Most notably this was demonstrated in the case right to a fair trial, therefore the Spanish court in of Kadi v Commission, where the European relation to the European Arrest Warrant cannot Court of Justice again with the motive to enforce its higher protection of that same right.
Although, this decision has been criticised as taking away autonomy of domestic courts to enforce a higher protection of fundamental rights as under their national constitutions, the reasoning of the court was sensible. The European Arrest Warrant could not be effective and would prove as a futile mechanism, if every member state could get around it by invoking their own interpretations of fundamental rights. When the European Arrest Warrant was created, this conflict with domestic rights protection should have been evident giving member states the opportunity to protest. However, they had chosen to create this form of cooperation and had given up their rights in favour of its effectiveness. The creation of such a system of a common European extradition process would not be possible however, if there was no guaranteed fundamental rights protection at EU level (such as the Charter of Fundamental Rights) since there would be no benchmark of rights that the extradition process would have to adhere to and member states would instead invoke their existing differing levels of fundamental rights protection rendering the mechanism unworkable. Therefore, the role of fundamental rights in such cases, is again a functional one, it serves as a benchmark of fundamental rights protection to which all member states have acquiesced to, allowing the existence of a cooperative program such as the European Arrest Warrant.
conform to the EU agreed benchmark and not to invoke their own standards of protection. In cases where this is not necessary the European Court of Justice has allowed for member states to invoke their higher standards of protection, even if it would lead to something as fundamental to the EU as freedom of movement to be qualified. This is shown in the case of Omega. In Omega the German city of Bonn had banned laser games on the basis that it is contrary to human dignity, a very highly protected right in the German Grundgesetz. As a consequence, a laser game operator had alleged that this was a breach of Article 56 TFEU (Freedom to provide services) as the ban prevented its British equipment supplier from providing them a service. The court held that although there was a prima facie breach of Article 56, it was justified on the grounds of public policy, allowing the German city to invoke a much higher standard of protection of this right than at EU level and in other member states.
It may seem at this point that the ECJ has an ad hoc approach as to when it allows member states to derogate from EU law and apply their own higher standards or protection. Why did the court allow Bonn to apply its own higher standard of protection but forced Spain to rely purely on the Charter? Does this not treat member states differently and hence threaten the principle of equality before the law? The answer lies in the fact that both cases arose under very distinct circumstances. The court The Melloni judgement may create the could not apply the Omega reasoning in Melloni impression that there is inadequate sensitivity to because if it did so it would render the European higher standards of protection of fundamental Arrest Warrant Mechanism unworkable. rights within the EU and hence this might seem to threaten the rule of law within member states as it prevents member states from invoking higher standards of protection. However, as outlined above, this only extends to mechanisms such as the European Arrest Warrant for the functioning of which it is necessary that member states to
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A common system of extradition across the EU could not work if each member state could rely on applying varying rules on extradition, it would effectively go back to the system of extradition as existed before the mechanism was created. Therefore, it can be inferred that this is what the member states intended. On the other hand, in Omega, the fact that a German municipality wishes to apply a stronger protection of the right to human dignity does not threaten the Freedom to Provide Services as a whole, it has a very insignificant impact. Furthermore, unlike in Melloni, it cannot be said that Member States could have foreseen or intended to allow the Freedom to Provide Services principle to override their application of the right to human dignity. Hence, the Court did not treat two ‘like’ cases differently and hence did not undermine the principle of equality before the law in this case. Nonetheless, where the principle of equality before the law seems to be threatened is in Melloni itself. Melloni was not afforded the same level of protection as Spanish citizens (or indeed any citizen from a country not a party to the European Arrest Warrant) by virtue of his nationality. This sort of rights discrimination creates an awkward gap in the process and seems to create two tiers of people facing national courts, those who can afford the states higher protection and those who do not, thereby threatening the rule of law principle-equality before the law. As De Witte points out, although in a different context (when talking about the Josemans case), it is, and should be, that law should apply as attached to a location rather than
to an individual’s nationality (De Witte 2013). As illustrated in the examples used by De Witte, of a French national in Maastricht prevented from smoking in a coffeeshop, whilst a Dutch national would be able to, or of a hypothetical rule allowing only Slovaks in Slovakia to smoke indoors whereas others would be prohibited from doing so. These examples show a glaring awkward gap. An analogy can be drawn to Melloni, where he was subject to different rights in the same jurisdiction as others of a different nationality. This does seem to threaten the rule of law across the EU and creates a seemingly irreconcilable tension between the effectiveness of the European Arrest Warrant and the rule of law. It is up to the Member States and the EU to discuss possible ways of its reconciliation. Nonetheless, it is a pity that the ECJ did not address this issue and at least attempted to resolve it, to prompt the EU and member states for a solution. In cases where the central purpose of a European mechanism cannot be fulfilled without setting aside higher standards of protection within member states such as the case of Melloni, it may seem the contrary. However, it must be noted that member states agree to create cooperative mechanisms such as the European Arrest Warrant that may qualify their right to impose their own standards of protection of fundamental rights, only because there is an adequate protection of human rights at EU level. Furthermore, as both Komárek and Weiler point out, the authority of EU law lies with national courts who choose to follow it, which distinguishes it from weaker international courts that do not have national courts choosing to give their law precedence (such as the ICC) (Komárek 2007)(Weiler 2014).
Hence, if a national court would disagree with the ECJ and deem that the level of protection by an EU measure is inadequate, it would still have the option to invoke its own higher level of protection. For example, in Melloni, if the Spanish court perceived that a conviction in absentia was a significant breach of fundamental rights, it could have adopted the approach of the German Constitutional Court and threatened that it would not follow EU law unless there was an equivalent protection at EU level installed. Thus creating a dialogue with the ECJ and across the EU, which could lead to a reform. As the EU relies on national courts to give EU law authority, it would be in their interest to engage in a dialogue with the member states in such cases and expand the fundamental rights protection where it is needed. Hence, this way national courts serve as an effective external check on the EU and its protection of fundamental rights. Possible reforms of how the EU approaches fundamental rights protection Several reforms in the way the EU approaches fundamental rights protection have been proposed. The most famous proposal is that the EU should accede to the ECHR. This almost became reality as Article 6(2) of the Lisbon Treaty had provided a clause for the EU to accede to the ECHR and the Draft Accession Agreement was concluded in 2013. However, the agreement was rejected by the ECJ in Opinion 2/13, where it highlighted practical arguments, such as the argument that the ECHR could require the EU to adopt a measure beyond its competence, however, the main reason for its rejection was because it threatened their supremacy. It had rejected the
same argument about the need for supremacy of the ECHR over the ECJ, that it had been using to justify its own supremacy over national courts. Many commentators, such as Turkuler Isiksel, do not find the Court’s objections compelling. Isiksel complains of ‘European exceptionalism’ and argues for a need for an external check on the EU. She points out that one of the background behind the foundation of the EU was that of the end of the Second World War where it was though that an external check on European nations should be created to prevent the rise of authoritarian regimes (Isiksel 2016). However, as pointed out above, the nation states and the EU serve as a mechanism that both are an external check on the other. Member States must adhere to the rights in the Charter and if they fall below a certain threshold over time mechanisms such as ‘the rule of law dialogue’ or rule of law initiative’ and ultimately the Article 7 of the TEU, ensure that the Member State is compliant. Conversely, if the EU falls below a fundamental rights threshold, the ECJ is there to review the acts of the EU institutions as well as the acts of Member States when implementing EU law or even creating measures to secure the effectiveness of an implemented directive (Akerberg Fransson), and a check on the ECJ itself are national courts who can threaten to disobey its judgements or threaten to hold the ECJ as acting ultra vires (as the German Constitutional Court has done, most recently in its OMT judgement) if they do not find that it is providing an adequate protection of fundamental rights. Hence, given this existing check and balance system it is not necessary for the EU to accede to the ECHR.
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The perks of accession to the ECHR would not be that it would act as an external check, but that the case law of both courts could become more intertwined and an increased dialogue between both courts would be encouraged. However, this is also already being done as the ECHR has commented on several cases of the ECJ and the ECJ has responded. Most notably in M.S.S v Belgium and Greece the ECHR criticised the ‘mutual trust’ doctrine within the EU in relation to fundamental rights when reviewing Asylum claims, as a response to the cases before the ECJ of N.S and Others. The ECJ acknowledged this criticism by agreeing that states cannot turn a blind eye to fundamental rights violations of another member state.
with the court invoking general principles whilst providing evidence of their widespread use across the EU and basing their judgment on their invocation. This practice is problematic when the ECJ does not provide any legal authority on a widespread use of the general principle it is invoking such as in the case of Mangold. In Mangold the court based its judgment on the general principle of protection against the discrimination on grounds of age, which at the time was only recognised in two Member States (Finland and Portugal). This judgement was highly criticised for this exact reason. Such reasoning creates great legal uncertainty. If such reasoning is common, it may even have the potential of thwarting the rule of law.
Hence, both potential benefits of ECHR membership seemed to already be present within the existing EU framework of protecting rights and an accession to the ECHR although not necessary, would not be problematic either.
Nonetheless, ever since the adaptation of the EU Charter of Fundamental Rights in 2009, the ECJ has not invoked general principles within its judgements and has instead relied on the Charter. However, it would not be fair to say that the Court has abandoned the general principles as a source of fundamental rights. This is important as states who have secured optouts in relation to the Charter, such as the UK, could still be bound by general principles which in substance cover the rights in the Charter.
The main problem with the EU’s treatment of fundamental rights is the ECJ’s way of ‘discovering’ general principles. General principles are a source of fundamental rights in the EU which derive from ‘common constitutional traditions’ across Member States. There is nothing wrong