Thoughts from London

Rule of law or lawless rule?
The independence of the judiciary is essential if the rule of law is to be upheld and preserved. The judiciary is the only institution, to which a citizen could turn to seek redress from the abuses of the State and its agencies.

Deprive the judiciary of that independence and the citizen is left to the mercy of the State and the political masters, however benign they may appear to be and in whatever garb they present themselves and their policies.

Last week, the Chief Justice of Britain, Lord Woolf took the political bull by the horns and strongly criticised the increasing encroachment by government on judicial independence.

It was one of the fiercest attacks on a government by the head of the judiciary in Britain in recent years. As though targeting the political establishment was a carefully choreographed event, another senior judge, Lord Steyn, the law Lord, delivered another stinging attack on Prime Minister Tony Blair's government in a speech at the Inner Temple.

Lord Woolf's attack came during a lecture he gave to the law faculty of Cambridge University.

Both judges found common cause in the government's proposed Immigration and Asylum Bill that seeks, among other things, to deprive asylum seekers who have had their claims turned down by immigration tribunals, of turning to the courts for redress.

Lord Woolf said that this clause was "fundamentally in conflict with the rule of law and should not be contemplated by any government if it had respect for the rule of law."

Lord Steyn accused the Home Office of "attacking our democratic institutions". He said Secretary of State David Blunkett's immigration bill was "an astonishing measure" that was "contrary to the rule of law" and to the principle of "open justice for all."

What makes this confrontation even more serious is recent reports that Attorney-General Lord Goldsmith might have been "leant on" by Tony Blair to provide a legal justification for the prime minister's decision to lead Britain to war against Iraq this month last year.

Former cabinet minister Clare Short, who recently declared that Britain and/or the US had bugged the private office of UN Secretary-General Kofi Annan in the lead up to the Iraq war, claimed that it was possible that the Attorney-General had some pressure put on him to give a legal basis for the war.

It was later revealed that British generals wanted a categorical assurance that war was legal without which they were unwilling to order their troops into battle fearing that charges of war crimes might be brought against them.

Only a month ago the former chief justice of Northern Ireland, Lord Hutton, was severely criticised for an Iraq-war related inquiry that completely exonerated Tony Blair and his Downing Street officials and Defence Minister Geoff Hoon of any wrongdoing while blaming the BBC for bad reporting.

Lord Hutton's report was seen by a substantial majority of the public as one-sided and a whitewash of the government.

There are two problems really. One is what is perceived as the growing politicisation of agencies of the state such as the judiciary and the civil service thus undermining their impartiality and independence that has been traditionally been protected.

In fact some believe the pre Iraq-war intelligence that Tony Blair presented to parliament and public as the rationale for leading Britain into the war, was not only flawed but also "sexed up" by the Joint Intelligence Services to please political masters.

So there is growing cynicism about the dangerous nexus between government and civil service officials on the one hand and about the impartiality of some judicial decisions.

The other problem is that attempts by government and ministers to deprive some persons of the right to access to the courts is leading to a confrontation between two arms of the State.

Home Secretary Blunkett said last May: " There has been a rumour that I am not all that pleased with judges - this is completely untrue. I want judges who live in the real world as the rest of us, I just like judges who help us…"

So what does he mean by "judges who help us? Does it mean those who give verdicts in favour of the government? Does it mean judges who are ready to look the other way when an administration encroaches on the rights of the people and are willing to overlook violations of international conventions and treaties that the country is a signatory to?

If the same David Blunkett had his way there would be secret trials for those suspected of terrorist activities with carefully selected judges and equally controlled legal proceedings.

While the erosion of judicial independence is a real and imminent threat, as Tony Blair said of Saddam Hussein's weapons of mass destruction, it is providential that the media are still free to criticise judges and their verdicts without being hauled up for contempt of court, a charge that is being arbitrarily used in some countries to silence critics.

Even in Hong Kong, both before and after it returned to Chinese sovereignty, individuals and the media have criticised judges and judicial decisions without fear of facing contempt charges.

Former Hong Kong University law professor Nihal Jayawickrama wrote a strongly-worded article in the law magazine "The New Gazette" criticising the actions of the then Chief Justice. Mr. Jayawickrama said: "Recent events brought into focus the question of the judgement of the Chief Justice Sir Ti Liang Yang. His inclination to discuss current political issues in public, his attempts to placate the executive and his controversial comments on constitutional law, follow in quick succession. But as hitherto undisclosed facts relating to his conduct continue to emerge, the focus shifts to the question of his independence, impartiality and, above all, his integrity."

Strong words indeed. But no contempt charges. I too had occasion to criticise Sir T.L Yang's successor, Chief Justice Andrew Li for comments he made at the beginning of a new legal year and later when the Court of Final Appeal succumbed to pressure from the Executive which sought interpretation of a provision of the Basic Law from the Standing Committee of the Chinese National People's Congress thus undermining the independence of the Hong Kong judiciary.

Instead of being hauled up before the courts, I won a journalism award for outspoken commentary. But it is not everywhere that the media or citizens have that freedom. Even when that freedom is properly utilised to bring abuses and arbitrary exercise of judicial power to public gaze, punitive measures or threats are used to cow and pressure critics into silence.

What is even worse is when whole or part of the judiciary colludes with the executive to keep themselves in their current positions. This kind of dangerous symbiotic existence not only erodes the rule of law but also leads to lawless rule and the trampling of the rights of the people.

This has happened in Zimbabwe under Robert Mugabe where the executive and the judiciary appear to work hand in glove. One could understand if the judiciary is coerced and intimidated to support the executive as initially happened in Zimbabwe.

But when sections of the judiciary and the executive actually support each other, then there is a real and imminent danger. What happens in Zimbabwe could, and does happen, I suppose, elsewhere too.

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