Liberal Conception of the Rule of Law - Assignment Example

PUBLIC LAW Drawing upon the constitutional and Democratic models you have studied, explain what is meant by the liberal conception of the rule of law. The liberal conception of the rule of law is a philosophy committed to the ideal of limited government and liberty of individuals including freedom of religion, speech, press, and freedom of Assembly. Although the rule of law means literally what it says: The rule of law’s confusion may be evidenced in trying to find the right justification of the rule of law both in the legal and political sense. “….The rule of law is a political ideal which a legal system may lack or may possess to a greater or lesser degree……It is also to be insisted that the rule of law is just one of the virtues which a legal system may possess and by which it is to be judged.”1 There is huge expectation on the part of government to govern within the law to meet the requirements of the rule of law. Government according to the law simply means that the Executive or any civil authority or government official cannot exercise a power unless such exercise of it is authorised by law. In Entick v Carrington2, two King’s messengers, under the authority of a warrant issued by the Secretary of state, broke into Entick’s house and took away his seditious papers. He was alleged to be the author of seditious documents. When the messengers were sued by Entick for trespass to his house and possessions, it was argued that the warrant was legal, as the power to issue such warrants was essential to government as the only means of quieting clamours and sedition. “…….This power, so claimed by the Secretary of state, is not supported by one single citation from any law book extant. It is claimed by no other magistrate in this Kingdom but himself…..”3 His Lordship further concluded that the warrant to seize and carry away the party’s papers in the case of a seditious libel, was illegal and void. Dicey, A.V.4 argues that: “……Every official from the prime minister down to a constable or collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payments of damages, for acts done in their official character but in excess of their lawful authority……..” In M v Home Office5, the Home secretary was held to be accountable for the actions of his department when the court found that the minister in question had acted contrary to a court order. The court further indicated that a government minister may even be held to be personally liable to his own actions, even if they were actions performed as part of his official duties. Lord Bingham argues that the idea of the rule of law as the foundation of modern states and civilizations has recently become even more talismanic than that of Democracy. He further says: “The Rule of law is a phrase much used but little examined.”6 529 Words 2.In A v Home Secretary(No.2)[2006] 2 AC 221 Lord Bingham concludes that the Special Immigration Appeals Commission(SIAC), a superior court of record…Explain the distinction that Bingham LJ presents here, and evaluate whether it conforms to a liberal conception of the rule of law. Bingham LJ’s distinction seems to suggest that the Secretary of state does not act unlawfully if he certifies, arrests, searches and detains a suspect on the strength of what can be ‘conveniently’ called foreign torture. What is ‘foreign torture’ within Bingham LJ’s ‘convenient’ terminology? His Lordship seems to lack a coherent answer to ‘foreign torture’. What he seems to suggest though is that the court would reluctantly admit evidence from a foreign country well known for torture practices. That belief is unconstitutional and inconstant to the liberal conception of the rule of law. Torture is termed torture regardless of where it is committed. The Torture Convention 1987 defines torture as: “For the purposes of this Convention, ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed or intimidating or coercing him or a third person or for any reason based on discrimination of any kind, when such pain……”7 Lord Bingham LJ further seems to suggest that no torture allegations will be taken if a man is tortured and revealed the whereabouts of a bomb in the Houses of Parliament, or any where else as long as the authorities could remove the bomb and, if possible arrest the man who planted the bomb. Any form of torture with a view of obtaining a confession within the meaning of the Torture Convention is illegal and should not be condoned. In R v Governor of Brixton Prison, Ex p Levin8, the court indicated that evidence might be rejected even in extradition if, though technically admissible, it had been obtained through torture or in a way that outraged civilised values. While his Honour believes that his argument springs from what he terms as the tension between practical common sense and the need to protect the individual against unfair discrimination, any soliciting or evidence through torture will arguably be against the liberal conception of the rule of law. He his further adds negative view: “The fact that torture is prohibited by a peremptory norm of international law has other effects at the inter-state and individual levels…..It would be senseless to argue, on the one hand, that on account of the jus cogens value of the prohibition against torture, treaties or customary rules providing for torture would be null and void ab nitio, and then be unmindful of a state say, taking national measures authorising or condoning torture or absolving its perpetrators through an amnesty law.”9 It can be argued that Lord Bingham’s conclusion remarks begs to be revisited. He does not seems be inconsistent to the liberal conception of the rule of law. 514 Words 3.Drawing from Justice Albie Sachs’s “Tales of Terrorism and Torture”, and from Lord Bingham’s reasoning in A v Home Secretary(No 2) [2006] AC 221, present an argument for why any use of torture evidence by the state should be unlawful. The use of torture remains the best way of obtaining evidence by most government agents. The British Government inclusive. Lord Bingham’s conclusion remarks echoes some of the concerns raised by Binyam Mohammed (ex-Guantanamo detainee)against British Agents last year. To believe that evidence of ‘convenience’, whether the confession produced a positive result is in acceptable. “Later decisions make clear that while the inherent unreliability of involuntary statements is one the reasons for holding them to be inadmissible there are other compelling reasons also…”10 Any form of torture should be disregarded and those perpetrating torture should be brought before the law. In contrast to Lord Bingham, Justice Albie Sachs condemns any kind of torture as enshrined by the torture convention within the meaning of rule of law. “Once you open that door to diminishing respect for the rule of law, you close the door to the rule of law, to harbeas corpus, to standards of fair interrogation, to the right to a fair trial, the opening or the closing is never enough for the security people.”11 Justice Albie Sachs highlights the importance of rule of law and the process of achieving the respect for human rights within the system of governance. He adds at page 20:”Olover Tambo was deeply thoughtful person who believed that the question of whether a liberation organisation may use torture to protect itself from serious threats to its fighting capacity, raised profound moral and philosophical question.” The use of torture does degrade society, raises anarchy, and leaves society brutalised. And those in power loses the sense to govern. As a judge, he (Albie) shows his regret on the handing over of Mohammed to the USA to be tried for the terrorism offences, which denied the suspect his right to legal assistance in South Africa, and worse still, to be handed over to America where he faced a death sentence once convicted. The facts of the case are that Mohammed entered South Africa with a fake name using a false passport. He further applied for asylum using false information to support the validity of his application. He was later spotted by FBI as a suspect for whom an international arrest warrant had been issued involving the bombings in Tanzania. “The handing over of Mohamed to the United States government agents for removal by them to the United States was unlawful. That is a serious finding…….This principle cannot be put better……In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously….Government is the potent, omnipresent teacher.”12 The Truth and Reconciliation commission was questioned in the Azapo case as to whether it was unconstitutional for the law relating to the organisation’s prevention of victims of atrocious conduct during the apartheid era from suing those involved who came forward and told the real truth to the commission. In defending both the constitution and the commission’s position, the court rejected the challenge saying that the epilogue to the interim constitution clearly envisaged the granting of comprehensive amnesty to individuals in exchange for revealing the truth of their past misconduct. “Secrecy and authoritarianism have concealed the truth in little crevices of obscurity in our history. Records are not easily accessible, witnesses are often unknown, dead, unavailable or unwilling. All that often effectively remains is the truth of wounded memories of loved ones sharing instinctive suspicions……”13 Justice Albie Sachs’s role in upholding the rule is also videnced in the Basson case which he was part of the judges team. The issue on the Basson case was whether a constitutional matter raised by the decision of a trial court to quash charges of conspiracy to murder against the former head of South Africa’s bacteriological and welfare programme. Justice Albie is reportedly to have written in support of the view that a constitutional issue was raised, requiring the court to hear the issue. He stressed that the court had determine the complexity historical and jurisprudential situation in which the South African state had moved-that is from perpetrating grave breaches of international humanitarian law to providing constitutional protection against them. In the judgement, Sachs states: “Nothing shows greater disrespect for the principles of equality, human dignity and freedom than the clandestine use of state power to murder and dispose of opponents. It follows that any exercise of judicial power which has the effect of directly inhibiting the capacity of the state subsequently to secure accountability for such conduct goes to the heart of South Africa’s new constitutional order.” He further highlights the importance of the court’s role in regards to constitutional breaches and the requirement to uphold basic constitutional rights among citizens. “When allegations of such serious nature are at issue, and where the exemplary value of constitutionalism as against lawlessness is the very issue at stake, it is particularly important that the judicial and prosecutorial functions be undertaken with rigorous and principled respect for basic constitutional rights.” When the Kaunda case came up for hearing, Justice Sachs was again involved in hearing whether the South African government was under any legal duty to give protection it could to South African mercenaries captured in Zimbabwe who were facing possibilities if torture and possible execution in Equatorial Guinea. In his judgement, Sachs wrote: “In my opinion, the government has a clear and unambiguous duty to do what ever is reasonably within its power to prevent South Africans abroad, however grave their alleged offences, from being subjected to torture, grossly unfair trials and capital punishment. At the same time, the government must have an extremely wide discretion as to how best to provide what diplomatic protection it can offer.”14 The applicants were however, sentenced under Zimbabwean law to a year each while their leader got seven years behind bars. The y were later put on trial in Equotorial Guinea and found guilty of plotting a coup. They escaped the death sentence and got thirty years in jail. It would be thus, submitted that Justice Albie seems to be on a better footing in addressing the requirements of the rule of law compared to Lord Bingham’s negative stand. 1016 Words Bibliography Alder, J(2009), ‘Constitutional & Administrative Law’, 7th ed. Palgrave Macmillan, London. Allen, M & Thopson,B,(2005),’Constitutional & Administrative law’, 8th ed. Oxford University Press, Oxford. Barnett, H,(2010),’Constitutional & Administrative law’, 8th ed. Routledge, London. Bingham, T(2010),’Rule of Law’, 1st ed. Penguin, London. Bradley, A & Ewing, K.(2010),’Constitutional & Administrative law’, 15th ed. Longman, London. Tamanaha, B,Z.(2004),’On the Rule of Law’, 1st ed. Cambridge University Press, Cambridge. Articles Girvetz, H,K(1973),’The Evolution of Liberalism’ Rousseau, J,J.(1762),’The Social Contract’ Read More