Rule of law? What rule of law?

As we approach the end of the year, the World Justice Project has released its Rule of Law Index for 2011. The index is a ranking of 66 nations based on their adherence to the rule of law.

As used by the World Justice Project, the rule of law refers to a rules-based system in which the following four universal principles are upheld:
» The government and its officials and agents are accountable under the law.
» The laws are clear, publicized, stable, and fair, and protect fundamental rights, including the security of persons and property.
» The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient.
» Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have
adequate resources, and reflect the makeup of the communities they serve.

The nine factors considered by the WJP in determining how much a nation adhered to the rule of law are:

1. Limited government powers 
2. Absence of corruption 
3. Order and security 
4. Fundamental rights
5. Open government 
6. Regulatory enforcement
7. Access to civil justice
8. Effective criminal justice
9. Informal justice

Limited government powers looks at the "extent to which those who govern are subject to law." In other words, are those in power held legally accountable for their actions?

Absence of corruption would appear to be fairly self-explanatory.

Order and security look at "how well the society assures the security of persons and property."

Fundamental rights looks at the degree to which the government protects fundamental human rights.

Open government looks to the degree to which the law is "comprehensible and its meaning sufficiently clear, publicized and explained to the general public in plain language..." while regulatory enforcement asks how well regulations are "implemented and enforced."

Access to civil justice "requires that the system be affordable, effective, impartial and culturally competent." Effective criminal justice looks to whether the criminal justice system operates impartially while protecting the rights of the accused and accuser.

Informal justice is a measure of "traditional" methods of resolving disputes such as tribal or religious courts and community-based systems.

The data was gathered by use of a general population poll using a sample of 1,000 people in three cities per country (the U.S. was represented by New York, Los Angeles and Chicago); and by a questionnaire sent to  "in-country practitioners and academics with expertise in civil  and commercial law, criminal justice, labor law and public health."

The United States is grouped together with Canada and Western Europe. Of the twelve nations that make up that group, the U.S. ranked near the bottom, while Sweden and Norway ranked near the top in most categories. This despite our deep seated belief that our nation was founded on the rule of law.

Here are the numbers:

1. Limited government powers... 10th of 12
2. Absence of corruption...  10th of 12
3. Order and security...6th of 12
4. Fundamental rights... 11th of 12
5. Open government... 8th of 12
6. Regulatory enforcement...9th of 12
7. Access to civil justice... 11th of 12
8. Effective criminal justice... 11th of 12

It must also be noted that, when compared with the 66 nations as a whole, the United States ranked in the teens in just about every category; ranging from 12th in open government to 21st in access to civil justice.

Most of the nations in the North America/Western Europe group had poor scores when it came to access to civil justice. Anyone who has ever had to sue someone - or been sued - can attest to the expense involved in getting a case before the court.

The report noted that "there is a general perception that ethnic minorities and foreigners receive unequal treatment from the police and the courts."

For a nation that prides itself on its adherence to the rule of law, the results of the survey are surprising. Over the last 40-50 years we have seen our nation devolve into one in which the power and elite are given free passes for criminal conduct while the poor and those without power are made to pay the price for their transgressions.

It's time we return to the day when no man was above the law.

Book review: With Liberty and Justice for Some

In his book, With Liberty and Justice for Some, Glenn Greenwald blows hole in the myth that ours is a nation in which the rule of law is sacrosanct. From high crimes in the White House to fraud in the financial sector to our two-tiered justice system, the rule of law seems a quaint reminder of the long distant past.

Richard Nixon obstructed justice. Richard Nixon was part of a conspiracy to commit a felony. Richard Nixon should have faced not only impeachment, but indictment, for his acts while in the White House. But Gerald Ford didn't see it that way and pardoned the disgraced former president before the criminal (in)justice system could get its hands on him. Mr. Ford told the public that we needed to look forward rather than backward.

Just try telling that to a prosecutor or judge the next time you appear in court with your client accused of committing a crime (in the past). How far do you think that'll get you?

Oh, but the legacy of Gerald Ford lives on.

You remember the Iran-Contra affair, don't you? You remember how under Ronald Reagan a secret structure was erected that sold weapons to Iran and then took the proceeds and funnel them to the right-wing paramilitaries fighting the Sandanista government in Nicaragua? You remember that the Congress had outlawed the funding of the contras? You remember that little concept called checks and balances - where the President asks Congress for money and Congress decides how much to give and for what?

The scheme was patently illegal and Mr. Reagan was complicit. Yet what did George Bush (the elder) do once Reagan's underlings started getting indicted? That's right, he pardoned them. He shielded his former boss from the scrutiny of prosecutors.

Fast forward to the presidential campaign in 2008. Then-senator Barack Obama exclaimed that he would never immunize the giant telecoms for their role in carrying out President Bush's (the younger) illegal domestic spying plan. He also stated that those responsible for the gross violations of human rights carried out in the aftermath of 9/11 should be brought to justice. But, once the nomination was sewn up, Mr. Obama voted to immunize the telecoms; and, once ensconced in the Oval Office, Mr. Obama blocked any efforts by Congress or the Justice Department to investigate President Bush and his minions for torture and other violations of international law. Why? Because it was more important to look forward than backward.

The President of the United States has the duty to see that the laws of the nation are enforced. He also has an obligation to follow those laws. The idea is that no one, not even the president, is above the law. That's what the whole concept of the rule of law boils down to.

But, in these United States, if you sit in the Oval Office, if you run a major financial corporation or if you have money, power and influence, you are above the law. And that's the ultimate betrayal of the principles upon which this country was formed.

Shooting the messenger

Bradley Manning is not a criminal.

He should be praised for shining a light on the underhanded dealings of our government. Instead, he's facing a court martial.

The material he provided to Wikileaks didn't endanger the lives of any Americans. But it sure as hell did embarrass the government. Through his actions he exposed the ways in which the United States government lied both to the American people and its allies.

The cables and correspondence documented the ways in which our government committed war crimes and violated international law. Our government armed repressive governments world wide and turned a blind eye when the weapons were turned on their own people. Our government bombed civilian targets. Our government tortured detainees who have never been charged with a crime.

We condemn those around the world who act in the very manner our government acted.

Sure, it's a dangerous world out there - it's always been a dangerous world - but that doesn't excuse our leaders from breaking the law. Ronald Reagan, George Bush (the elder), Bill Clinton, George W. Bush and Barack Obama are all complicit in atrocities committed against the poor and powerless. Yet none of them will ever be called before the people to answer for their crimes.

Madness in Madras

Two weeks ago, I wrote on these pages about Vasantha Pai, a lawyer, legislator, and freedom fighter in Chennai. All that he stood for, practised, and preached, was repudiated in and outside the Madras High Court this week. As someone who enrolled as an advocate in Tamil Nadu, I hang my head in shame over the last two days' developments. What happened earlier on Thursday evening the High Court grounds is deeply disturbing. No amount of spin can condone it.

Almost 100 years older than the Supreme Court itself, the Madras High Court has been a grand symbol of our country's commitment to justice and the rule of law. As a school boy and law student, I walked through those magnificent Indo-Sarcenic hallways of the High Court that reek with history, grandeur, and tradition. Having spent formative years as a legal intern there, the court is an indelible part of my legal imagination. It has greatly influenced my pride in what I've always considered to be the learned and noble legal profession and, indeed, in my conception of what is just, what is fair, and what is proper. Yesterday's violent incidents shake those long-held beliefs to the core.

This is a Nadiad moment for the Indian legal profession. There will be time for time for introspection on what went wrong. There will be charges and counter-charges about who is to blame and who provoked whom and whether the police used unreasonable force. The inevitable inquiries have been ordered and they will run their course. But now is a time for immediate action. My sincere hope is that the Supreme Court will act on Friday with all deliberate speed to ensure that the Madras High Court's majesty is restored immediately. It must ensure that the all the guilty (whether the police or lawyers) are brought to book and made to account for their despicable actions.

I fear that without the Supreme Court's prompt intervention, or perhaps, inspite of it, I doubt the title "advocate" is likely to command the respect and regard that it did before in my state of Tamil Nadu and, I fear, in other parts of our country.

Official Secrets Act invalid?

A very interesting article in the Outlook claims that the Official Secrets Act, 1923 was never notified in the Official Gazette and is therefore not law. To quote:

'Here's the untold story of the Official Secrets Act (OSA) 1923:
It was passed in April 1923 by the Legislative Council.
The Act was never notified in the Gazette of India.
To become law, every Act must be notified in the Gazette of India. The National Archives of India, ministries of Home and Law say they are not in possession of any such notification. None exists in the 1923 Gazette of India either.
The OSA was amended twice, in 1951 and 1967, and made more stringent. But only the amendments were notified in the 'Extraordinary Gazette of India'.
Legal luminaries say that if an Act is not notified, it is an "invalid" law.'

I am not sure where the requirement of notification in the official gazette comes from. It is understandable if an Act itself provides, as it often does, that it shall come into force on such a date as notified by the government in the official gazette. In such cases, sometimes governments fail to notify the Act and the legal position is that although the law is 'valid', till such notification, it is 'unenforceable'.

In AK Roy v Union of India the duly enacted 44th Constitution Amendment Act 1978 provided that it shall come into force when notified. The government notified all but Section 3 of the Amending Act which sought to amend Article 22 of the Constitution dealing with preventive detention. The Supreme Court held that it could not issue a mandamus asking the government to notify it and bring it into force. If this is true of a constitutional amendment, it is definitely true of a mere legislation.

Many other duly enacted laws which had similar provisions granting discretion of notification to the Executive have not been brought into force, including the Hire Purchase Act, 1972 (which I think continues to be on the statute books as valid but unenforceable law) and the Freedom of Information Act 2002 (which was repealed by the Right to Information Act 2005). This article documents several others suffering a similar fate.

But the Official Secrets Act 1923 does not have any comparable clause which allows the government the discretion to fix a date of its enforcement by notification. Indeed, it has no clause that specifies when it will come into force. Thus, Section 5 of the General Clauses Act, 1897 must apply:

'5. Coming into operation of enactments.- (1) Where any Central Act is not expressed to come into operation on particular day, then it shall come into operation on the day on which it receives the assent.
In the case of a Central Act made before the commencement of the Constitution, of the governor-general, and in the case of an Act of Parliament, of the President.
Unless the contrary is expressed, (Central Act) or Regulation shall be construed as coming into operation immediately on the expiration of the proceeding its commencement.'

I could not find any requirement anywhere that if the Act itself does not require it, a notification is essential for its validity or enforcement. If someone knows of a law or constitutional provision which provides this, please enlighten.

This, of course, may not be the end of the argument. One of the central requirements of rule of law is that a law is publicised. Without official publication, citizens have no means of finding out what the law is, and therefore cannot be expected to obey it. The Supreme Court has often relied upon the rule of law as a significant constitutional value, underpinning Article 14. This line of argument may be pursued to say that the Official Secrets Act 1923 is unconstitutional because of non-publication.

UPDATE -

Arundhati Katju left this comment:
'The Official Secrets Act was notified in the Gazette of India, 14th April 1923, after receiving the assent of the Governor General on 02.04.1923. The article was somewhat surprising. I would be happy to supply a copy of the notification on request.'

Thanks for pointing this out Arundhati. If true, the response of the National Archive to an RTI application that it did not have a copy of the Gazette notification is surprisingly incompetent (The letter from National Archive is documented in the Outlook story).

I have requested Arundhati for a copy of the notification - will keep everyone posted.

Rule of Law: A commendable judgment

In an interesting article, titled Arms and Men, Soli J.Sorabjee drew our attention to a judgment by a Division Bench of the High Court in the U.K. stopping executive leniency as reflected in its decision to halt investigations into a bribery scandal, under pressure from a foreign Government. According to him, the judgment is a commendable vindication of the rule of law by courageous English judges, Lord Justice Moses and Justice Sullivan, who were not one bit influenced by the horrific consequences painted by the government if the investigations were continued. The judgment is a testimony to their judicial commitment that “the rule of law is nothing if it fails to constrain overweening power.”

He concluded: "In the celebrated judgment of our Supreme Court in Keshavanand Bharati, the rule of law has been declared to be an essential feature of the Constitution and part of its basic structure. However, if the bench comprised timorous judicial souls overborne by the executive’s strident assertions of danger to security and national interests, the rule of law becomes an empty high-sounding slogan. The rule of law in practice derives its vitality from the approach of brave judicial sentinels unafraid to enforce the rule of law and its principles against the high and the mighty, including the government of the day. The UK judgment is certainly worthy of emulation in countries whose legal systems adhere to the rule of law and who pride themselves on an independent judiciary."

The link to the Moses-Sullivan judgment is here.