EQ - When injustice prevails, Democracy fails. 'The Constitution of Canada is the supreme Law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect' (CA1982, art. 52(1)). The whole body of Common Law falls within the ambit of section 52(1) of the CA1982 (RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, par. 25). Ensuring the supremacy of the Rule of Law therefore requires that Justice be maintained through judicious advancement of valid Law (Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, par. 20, 21).

While the Dicey model of the Rule of Law is a legal standard promoted by the Canadian Charter (CCRF Preamble), its observance is confined to the procedural aspect of Law. Ensuring the safeguard and valorization of Human Dignity and Worth - within the context of good governance - is viewed as a substantive extension to the Rule of Law deemed absolutely necessary for the attainment of humanitarian objectives. Since Canada is signatory to international Human Rights instruments, the 'general principles of constitutional interpretation require that these international obligations be a relevant and persuasive factor in Charter interpretation.' 'The various sources of international human rights law - declarations, covenants, conventions, judicial and quasi‑judicial decisions of international tribunals, customary norms - must ... be relevant and persuasive sources for interpretation of the Charter's provisions.' (Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, per Dickson, par. 57, 59).

'The right to sue and defend in the courts is the alternative of force' therefore, ' [i]n an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government' (Chambers v. Baltimore & Ohio R.R. Co., 207 U.S. 142, 148 (1907)). ' [TRANSLATION] When justice is no longer dispensed in public, it is the emergence of arbitrariness and an invitation to despotism, regardless of the identity of the tyrant' (Southam inc. c. l'honorable Pierre Brassard, Denis Cipriani et d'autres; (1987) RJQ 1841). Where Human/Civil Rights are impaired by arbitrary rule is where customary and international Law both recognize the privilege to exercise rebellion against tyranny and oppression (UN Universal Declaration of Human Rights, Preamble, par. 3). Magna Carta (U.K., 1215); the United States Declaration of Independence (U.S.A., 1776); the French Declaration of Human and Civil Rights (France, 1793) as of various foreign constitutions defend the innate right to life, liberty and security - self-defense being the ultimate legitimate recourse against government unruliness.

'The Constitution is not to be mocked by substituting executive for legislative interference with freedom' (James v. Cowan, [1932] A.C. 542 (P.C. Australia), p. 558; See also: Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, par. 21). 'An unconstitutional act is not a law. It confers no rights; it imposes no duties; it affords no protection; it creates no office. It is, in legal contemplation, as inoperative as though it had never been passed.' (Norton v. Shelby County, 118 U.S. 425 (1886)), p. 442; See also: Air Canada v. British Columbia, [1989] 1 S.C.R. 1161). 'When any court violates the clean and unambiguous language of the Constitution, a fraud is perpetrated and no one is bound to obey it' (See: 16 Ma. Jur. 2d 177, 178; State v. Sutton, 63 Minn. 147, 65 NW 262, 30 L.R.A. 630 Am. St. 459; See also: Watson v. Memphis, 375 US 526; 10 L Ed 529; 83 S.Ct. 1314).

Where Law is a constraining ideal sanctioned by rule is where the Rule of Law governs the prescriptions of laws through regulatory control of their administration.

On Thursday 16th November 2006 the Centre for Public Law held the sixth in the series of lectures in honor of Sir David Williams. The lecture, entitled "The Rule of Law" was given by Late Rt. Hon Lord Bingham (Thomas Henry Bingham, Oct 13, 1933 - Sept 11, 2010) of Cornhill KG, House of Lords, U.K.. Lord Bingham posited, and then analyzed, eight sub-rules comprising the Rule of Law:

• The law must be accessible and so far as possible intelligible, clear and predictable ;

• Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion ;

• The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation ;

• The law must afford adequate protection of fundamental human rights ;

• Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve ;

• Ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers ;

• Adjudicative procedures provided by the state should be fair ;

• The existing principle of the rule of law requires compliance by the state with its obligations in international law, the law which whether deriving from treaty or international custom and practice governs the conduct of nations.

According to Lord Bingham, "There has been much debate whether the rule of law can exist without democracy. Some have argued that it can. But it seems to me that the rule of law does depend on an unspoken but fundamental bargain between the individual and the state, the governed and the governor, by which both sacrifice a measure of the freedom and power which they would otherwise enjoy."

CPL | The Rule of Law Lecture - PDF (96Kb - 35 pages)

CPL | The Rule of Law Lecture - Audio file (110 minutes)

RSA | Lord Bingham - The Rule of Law - Video file (29 minutes). One of the most influential judges of the 20th century, the late Lord Bingham makes the case for the Rule of Law as the foundation of a fair and just society.

Human Rights in the Administration of Good Governance

In previous years, attention has increasingly turned towards the parliament as the State institution through which people exercise their right, enshrined in article 21 of the Universal Declaration, to participate in the conduct of the public affairs of the country. Indeed, if human rights are to become a reality for everyone, parliaments must fully play their role and exercise to this effect the specific powers they have, namely legislating, adopting the budget and overseeing the Government. ... Hence, the suggestion that IPU and the Office of the United Nations High Commissioner for Human Rights (OHCHR), the United Nations body specifically mandated to promote and protect the effective enjoyment by all of all civil, cultural, economic, political and social rights, should publish a handbook with basic information about human rights and the international and regional systems designed to promote and protect them. - FOREWORD by the High Commissioner for Human Rights and the Secretary General of the Inter-Parliamentary Union.

EQ Selection: IPU-OHCHR HR Manual for Parliamentarians - PDF (2,741Kb - 198 pages)

Human Rights in the Administration of Justice

The way in which justice is administered in a society is one of the basic indicators of its well-being. As highlighted by the Universal Declaration of Human Rights, ... it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law. It is for national legal systems and the administration of justice to ensure that this goal is achieved. Independent legal professions play a fundamental role in the protection of human rights. They are the guardians of international human rights law, ensuring that it is properly enforced within the judicial process and that individuals whose rights have been violated can find an effective remedy domestically. In order to discharge this responsibility, judges, prosecutors and lawyers need to have access to information on the human rights standards laid down in the main international legal instruments and to the related jurisprudence developed by universal and regional monitoring bodies. - FOREWORD by the Office of the United Nations High Commissioner for Human Rights.

EQ Selection: Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers xxxi - Provided by the University of Minnesota Human Rights Library - HTML

The Judiciary, Human Rights and the Rule of Law

The rule of law was, famously, one of Dicey’s twin pillars of the constitution. The other was Parliamentary sovereignty. His perception of the rule of law was expressly articulated in relation to the role of a parliament which has, ... under the English constitution, the right to make any law whatever, and further, no person or body is recognized by the law of England as having a right to override and set aside the legislation of Parliament. ... In the Attorney-General’s words, "[the Rule of Law] comprehends some statement of values which are universal and ought to be respected as the basis of a free society" - Roger Smith, Solicitor and Director of JUSTICE, LSE, 1st March 2006.

EQ Selection: Changing the rules: The Judiciary, Human Rights and the Rule of Law - PDF (108Kb - 17 pages)

Rule of Law and the role of the Courts

The Venice Commission provides for Constitutional Case Law that greatly facilitates comparative research by practitioners, who can draw on approaches already adopted in other countries, particularly in the field of fundamental rights. Variations in case-law between constitutional courts increasingly reflect conscious rather than accidental differences of approach. The circulation of information is therefore a powerful force for trans-constitutionalism, enabling courts to draw inspiration from the constitutional practice of their counterparts elsewhere.

EQ Selection: Conference on the Role of the Constitution in Building a State Governed by the Rule of Law, Baku, 11-12.11. 2005. Extracts from the CODICES database - PDF (2,015Kb - 227 pages)

Anti-corruption reform in Rule of Law programs

Absence of meritocracy along with pervasive politicization undermines professionalism and fuels corruption: decisions on recruitment, appointments and promotion of judges tend to be arbitrary. They usually are not based on merit, performance or experience. ... Those parties or partisan factions responsible expect from the judges they appoint passive acquiescence, active cooperation, and even total allegiance. The deference of judges to their political godfathers can be reflected, for example, in the acceptance of suggested legal case leading to predetermined decisions or the speeding up (or slowing down) of certain cases. ... Where every judge has his or her own patrons, be them politicians, superior judges or powerful individuals, formal institutions tend to be easily co-opted by these informal relationships and networks which dominate the political system in which the judiciary inserts itself. While the judiciary is expected to be politically independent, it nevertheless remains a critical political actor itself. Neither the government nor political parties can be solely blamed for undermining judicial independence. The judiciary inserts itself and is part of a broader and complex web of social networks, nourished by familiar, friendship and other social configurations, which vary from country to country. A critical lesson learned after almost two decades of rule-of-law reform is that the naive distinction between politicians and judges must be abandoned. As an Argentinean Supreme Court justice once commented, "all judges are politicians, whether they know it or not" (Abramovich 1992). - Excerpt of Maria Gonzalez de Asis’s chapter to a book providing key findings of the last two decades of international efforts at promoting the rule of law in democratizing countries and transition economies.

EQ Selection: Anticorruption reform in Rule of Law programs - Maria Gonzalez de Asis - PDF (372Kb - 22 pages)

B. Dickson - "The meaning of the rule of law is very simple and well known to us all: the law must stand supreme as the source and fabric of all social organization. It is the law which provides the framework for relations among individuals as well as between the individual and the state: the law delineates the scope of each person’s liberties and responsibilities and defines the powers and duties of government. All obligations imposed on the individual and all restrictions upon his or her liberty must be justified by law. This is the most fundamental guarantee of equality and freedom we have achieved as a society. The Rule of Law protects individuals from arbitrary and capricious treatment at the hands of government and fosters confidence in each of us that the power of government to interfere with our lives is finite and ascertainable. It allows us to live together in freedom and harmony and provides the common ground for social progress and prosperity." - Speech of Chief Justice Brian Dickson ('The Rule of Law: Judicial Independence and the Separation of Powers' - Canadian Bar Association, 21 August 1985. Note: unpublished, archived: National Archives of Canada, MG31 E85 vol. 137 file 27, under 'Rule of Law').

Dickson Info

J. G. Roberts - "The one threat I think to the rule of law is a tendency on behalf of some judges to take that legitimacy and that authority and extend it into areas where they’re going beyond the interpretation of the Constitution, where they’re making the law." (Senate Judiciary Committee - Graham Testimony, 9-13-05). "[W]ithout [ the rule of law ] any other rights that you may agree with as a matter of policy are meaningless. You need to have courts that will enforce the rule of law if you’re going to have rights that mean anything." - Senate Judiciary Committee (Durbin Testimony, 9-14-05).

Roberts Info

M. Gleeson - "[I]n the administration of any law there comes a point beyond which discretion cannot travel. At this point, if a judge is unable in good conscience to implement the law, he or she may resign. There may be no other course properly available. Judges whose authority comes from the will of the people, and who exercise authority upon trust that they will administer justice according to law, have no right to subvert the law because they disagree with a particular rule. No judge has a choice between implementing the law and disobeying it." - Chief Justice Murray Gleeson (p.127 of his Boyer Lectures (2000) "The Rule of Law and the Constitution").

Gleeson Info

M. Kamal - "Good governance, ladies and gentlemen, is an extension of the principle of the rule of law. A society is well governed when there is a rule of law, not a rule of man or woman. A modern state is extensively governed by rules and regulations, by complex guidelines and instructions, by a web of regulations, restrictive, prohibitive and penal procedures. As a fish starts getting rotten from the head, good governance starts sliding from the hands of the people when the top people in parliament, executive and judiciary put rules and regulations aside and start ruling by the rule of the thumb." - Chief Justice Mustafa Kamal, on the 9th International Anti-Corruption Conference, 10-15 October 1999, Durban, South Africa.

Kamal Info