Judicial independence, equal protection and civil liberties are key components
This article is the first in a series of three that explore the components of the rule of law.
By Alexandra Abboud
The rule of law is a fundamental component of democratic society and is defined broadly as the principle that all members of society -- both citizens and rulers -- are bound by a set of clearly defined and universally accepted laws. In a democracy, the rule of law is manifested in an independent judiciary, a free press and a system of checks and balances on leaders through free elections and separation of powers among the branches of government.
Although a written constitution is not a necessary component of democracy – for example, Great Britain does not have one -- in the United States, the rule of law is based primarily on the U.S. Constitution and on the assurance that U.S. laws – in conjunction with the Constitution -- are fair and are applied equally to all members of society.
In the United States, an independent judiciary, with the U.S. Supreme Court as the highest authority, has the ultimate responsibility for ensuring the government respects the rule of law and that all citizens are treated equally under the law.
U.S. Supreme Court Justice Anthony Kennedy, during the American Bar Association’s November 11, 2005, International Rule of Law symposium, outlined what he believes are the three major components of the rule of law:
• The government is bound by the law;
• All people are treated equally under the law; and
• The law recognizes that “in each person, there is a core of spirituality and dignity and humanity.”
A GOVERNMENT “OF LAWS AND NOT OF MEN”
John Adams who, with Thomas Jefferson, drafted the Declaration of Independence, wrote in 1776 in his Thoughts on Government, “a republic is an empire of laws, and not of men.”
In the U.S. legal system, the separation of powers as outlined in the U.S. Constitution ensures that the three branches of U.S. government, legislative (the Congress), judicial (the courts) and executive (the president and his Cabinet) are given certain powers that can be exercised only by one branch. This separation, according to the founders, ensures that one person or group of people cannot concentrate all political power in their own hands, thereby creating a government that is run not by the whim of a few people, but rather by laws that are passed by Congress, a body that is elected by the people.
Practically speaking, for the U.S. government to act, several safeguards are in place to ensure that one branch cannot wield power without deference to the other branches.
Some examples of these safeguards include the president’s ability to veto laws, and the Congress’ authority to override vetoes only with a super majority of votes.
Because the U.S. Congress is a body of elected officials, those officials are charged with carrying out the will of the people who elected them. According to Kennedy, this provision ensures “the government is bound by the fact that the law must originate in the consciousness of the people.”
The Supreme Court, the highest court in the U.S., ensures that laws, both federal and state, do not violate the rights of the people, which are enshrined in the U.S. Constitution. Even when Congress passes a law that is supported by the president, and enacted into law, a person who is affected by the law has a right to petition the courts if he or she believes the law violates rights guaranteed by the U.S. Constitution. But for this system to work, it is necessary to ensure an independent judiciary.
According to Supreme Court Justice Sandra Day O’Connor, establishing an independent judiciary is not an easy task. “Judicial independence just doesn’t happen all by itself,” she said. “It’s very hard to create, and it’s easier than most people imagine destroying.”
An independent judiciary is one that is not subject to the whims of elected officials. Judges and lawyers in the United States are bound by judicial codes of conduct that clearly outline what judges may and may not do.
To ensure judicial independence in the United States, the judicial code of conduct, administered by the Judicial Conference (whose presiding officer is the chief justice of the United States and whose members include top judges from federal circuits and districts), outlines acceptable behavior. The Judicial Conference has committees that enforce the code and call judges to account if a complaint is made. Financial disclosure forms are required to avoid corruption. All of this, says O’Connor, “makes a tremendous difference in enabling the public of the nation to have a little bit of confidence in the impartiality and the fairness and integrity of the judges that are serving.”
But even though judges are required to adhere to a code of conduct and can be called to account for not following the code, they are in no way held to account for independent decisions that they make in cases.
“Judges must be independent not so they can do as they choose, they’re independent so they can do as they must,” said Kennedy.
Editor’s Note: Chief Justice Perrera please take note! As there are many allegations that the Judiciary in Seychelles is not independent. It operates as an extension of the Executive and more specifically an extension of the Attorney General’s Chambers. Our Chief Justice is alleged to be constantly on the phone with the Attorney-General and the Deputy Attorney General discussing pending cases before him! If this is the case, then this arbitrary practice must stop immediately.