4th Tun Hussein Onn Lecture: A student’s perspective
By : Ramakrishna Tharini
On the 9th of September 2011, members of the BAC Law Society had the privilege of attending the 4th Tun Hussein Onn Lecture held at Shangri-La Hotel, Kuala Lumpur. The lecture was organised by The Honourable Society of Lincoln’s Inn Alumni Association, Malaysia. On this occasion, the lecture entitled “National Security and The Rule of Law – a Lesson from the Past” was delivered by Lord Walker of Gestingthorpe, Justice of the Supreme Court, who is also an alumnus of Lincoln’s Inn.
Before I delve into the contents of Lord Walker’s speech, do allow me to digress and elaborate briefly on the issue of national security and the rule of law which arguably, has permeated all aspects of public discourse not just in the UK, but across the civilised world. In the aftermath of the 9/11 terrorist attacks in the United States, and more recently the London bombings of July 2005, the UK government have taken it upon themselves to fight the scourge of terrorism head-on. The main thrust of the government’s approach has been to enact a series of Acts of Parliament which amongst others increased the power of enforcement authorities as well as creating a raft of new offences criminalising conduct that pose a threat to national security. Perhaps none of these measures have proved more controversial than the provision under Section 23 of the Anti-Terrorism, Crime and Security Act (ATCSA) 2001 to detain indefinitely foreign nationals deemed to pose a security threat and who cannot be deported to their countries of origin for fear that they might be subject to torture.
There has been a large body of opinion consisting of amongst others, human rights activists, politicians and even voices within the judiciary, which regard such provisions as running counter to the rule of law. At this point, one has to ponder upon the meaning of the term “rule of law”. Although often invoked by many, the rule of law has still by and large remained an elusive concept. This has been acknowledged by prominent academicians and judges. Those of a more cynical persuasion have gone a step further by rubbishing the concept, stating that its overuse and abuse by all and sundry has rendered it meaningless. However, the Rule of Law is indeed a fundamental constitutional doctrine. This was affirmed, albeit implicitly, in the Constitutional Reform Act (CRA) 2005. Section 1 of the CRA 2005 provides that the Act does not adversely affect “the existing constitutional principle of the rule of law”. Thus, as Lord Bingham so aptly put it, the rule of law cannot be dismissed as “meaningless verbiage” but must be given effect by a court of law. This however, still sheds no light on what the rule of law actually entails.
There is a school of thought which simply regards the rule of law as a mere procedural device, conferring legal certainty and affirming the supremacy of the law over all other sources of arbitrary and discretionary powers. Thus, the rule of law is simply one of the many attributes of a legal system. Amongst the chief proponents of this idea is Professor Joseph Raz, who argues that a government that denies its citizens basic human rights, discriminates on the basis of gender, religion or race can still uphold the principle of the rule of law. The rule of law is therefore regarded as a morally neutral concept, separate and distinct from democracy, human rights etc. If that argument is accepted, there is no question of the various controversial anti-terrorism measures falling foul of the rule of law, as they are provided for by statute enacted validly. By extension, a country such as apartheid-era South Africa, which despite the various discriminations perpetrated against people of colour, would be regarded as upholding the rule of law as it had a viable common law legal system.
Those who would regard such a proposition as morally repugnant would take comfort in the knowledge that there is another school of thought which regards the rule of law as a broad political/philosophical doctrine, going beyond its role as a mere procedural device. The Declaration of Delhi, formulated in 1959 by the Congress of the International Commission of Jurists recognised that:
“the rule of law is a dynamic concept… to safeguard and advance the civil and political rights of the individual in a free society, but also to establish social, economic, educational and cultural conditions under which his legitimate aspirations and dignity may be realised…”
The above statement with its lofty aspirations and all-encompassing nature is a far cry from the impersonal doctrine advocated by Raz. In addition, Professor Lon Fuller espouses a concept of the rule of law which is diametrically opposite to that advocated by Raz. He argues that the rule of law should have a moral dimension to it. For the law to be worthy of recognition and to impose the duty of obedience upon its members, it must serve the needs of the people. Any legal system to the contrary is likely to fall into abeyance.
In the light of such contrasting views in relation to the rule of law, it is interesting and perhaps even comforting to note that the judiciary in the UK have adopted a largely pro-rights attitude with regard to upholding the rule of law. The judiciary has shown admirable steadfastness in refusing to play ball with the government by repeatedly declaring various legislative initiatives by the government to broaden its powers as unlawful, as illustrated in the following cases.
In A and Others v Secretary of State for the Home Department (2004) UKHL 56, the House of Lords held by a majority decision that the provision of s.2 of the ATCSA 2001 was unlawful and accordingly issued a declaration of incompatibility under s.4 of the Human Rights Act (HRA) 1998 (ironically enough, Lord Walker dissented in that case). Parliament subsequently introduced the Prevention of Terrorism Act (PTA) 2005 which replaced s.23 of the ATCSA with that of “control orders” which was effectively a form of house arrest, to be issued by the Home Secretary against any individual deemed to be a threat to national security. As if on cue, the Court of Appeal in Secretary of State for the Home Department v JJ (2003) held that Control Orders imposed under the PTA 2005 was unlawful. At present, the Terrorism Act 2006 (enacted in the aftermath of the 2005 London bombings) provides for the detention of terrorism suspects for up to a period of 28 days without charge.
Perhaps, however, the most unequivocal statement reflecting the judiciary’s stand on the inextricable link between the rule of law and human rights was made by Lord Bingham, speaking extra-judicially at the Sir David Williams Lecture in 2006. In his speech, Lord Bingham (then the Senior Law Lord) stated that one of the key attributes of the rule of law is that it must uphold human rights. He draws support for his statement by quoting the Universal Declaration of Human Rights which states that if man is not to resort to rebellion as a means of last resort in the face of rebellion and tyranny, the rule of law must uphold human rights. In the context of the UK, the “gold standard” of human rights would be the provisions of the European Convention on Human Rights (ECHR) as a result of the Human Rights Act (HRA) 1998 which gives effect to the ECHR within the English legal system.
Nonetheless, as any student of law can attest to, there is always an exception to the general rule. The rule of law is certainly not exempt from this maxim; as attested to by Lord Bingham in his speech. He stated that under certain circumstances, it may be necessary to derogate from the rule of law; however any such derogation must be carefully considered and clearly justified. A similar line of reasoning was used by Lord Walker in A and Others in his dissenting judgment, where he held that discrimination on the basis of nationality can be justified on the basis of “sound, rational grounds for different treatment”.
Against this background, I had expected Lord Walker’s speech to be in a similar vein to that of Lord Bingham’s in 2009, albeit with a greater focus on the apparent irreconcilability between the need to uphold the rule of law and the need to maintain national security. Perhaps like many others, it then came as a surprise to me when Lord Walker said at the very outset that his speech would be about two cases heard in the late 18th century where the main protagonist in both the cases was Thomas Erskine (a Lincoln Inn alumnus) who eventually rose to become Lord Chancellor under the Ministry of all the Talents led by the Whig politician Lord Grenville. Lord Walker spoke at some length about Erskine’s early background; the poverty he faced in his early years and his subsequent meteoric rise as a barrister. In the words of Lord Walker, it was a classic case of “rags-to-riches”. The cases in question involving Erskine were that of Thomas Paine for seditious libel (he had already fled to France at the time, and therefore tried in absentia) and Thomas Hardy, the secretary of the London Corresponding Society (a radical movement advocating parliamentary reforms) who was being tried for high treason.
Unexpected it may have been, but Lord Walker’s speech certainly did not disappoint; it was highly illuminating with a good dose of history thrown in, peppered with characteristic dry British humour. Lord Walker began his speech by providing an insight into the prevailing socio-political situation at that point in time. England was caught in the midst of monumental socio-political changes taking place on both sides of the Atlantic. At the time of Thomas Paine’s trial, France was in the midst of a revolution and it had only been just under ten years since Britain’s defeat in the American War of Independence. The loss of its American colonies was a huge blow for Britain’s pride and shifted the focus of the populace from the issue of monarchical power (which had been dominant for much of the preceding century) to that of parliamentary reform. Parliament was then regarded by some as inept and corrupt, and much of the blame for Britain’s loss of its colonies was directed at Parliament.
As a result, in 1794, the government of William Pitt, fearful of revolution, suspended habeas corpus and begun detaining members of radical societies and charged them with a variety of offences which amounted to high treason. One of those arrested was Thomas Hardy, who was defended by Erskine. This came as a revelation to me; I had hitherto believed that a writ of habeas corpus was always available to a detainee under all circumstances since the passing the Habeas Corpus Act 1640. Detention without trial is therefore not something new. Previous governments had used it before, albeit more for reasons of self-preservation rather than national security!
Coming back to the case of Thomas Paine, Erskine went against the advice of his friends and took up the defence of Paine in his trial for seditious libel. His willingness to take on the establishment was hardly surprising; even in his formative years as a barrister, Erskine showed a fearless streak. In a case involving the Greenwich Hospital for Seamen, he earned a rebuke from the judge for an attack on Lord Sandwich, who was then first lord of the Admiralty, calling him “the dark mover behind the scene of iniquity”. Unfortunately for Erskine, despite his best efforts in arguing for the need to have a free press, the jury in Paine’s case returned a verdict of guilty without even retiring. Erskine’s decision to defend Paine cost him dearly; he lost his position as legal adviser to the Prince of Wales.
Nonetheless, Erskine remained unfazed. Three years later, he took on the defence of Thomas Hardy who was charged with high treason. The trial was characterised by various procedural irregularities; documentary evidence was not provided and dubious evidence was introduced. This time around though, Erskine was successful, Hardy was acquitted and Erskine was hailed as a hero by the common people. Apart from his unflinching commitment towards the rule of law, Erskine was arguably ahead of his time by virtue of his belief that the rule of law should uphold human rights (a concept that has only come into existence recently). During such a turbulent period, it could have been very easy for Erskine to simply justify the government’s actions in suppressing dissent on the basis of necessity. At this juncture, it would be appropriate to quote William Pitt’s statement made in Parliament whilst he was still in the opposition ranks:“Necessity was the plea for every infringement of human freedom. It was the argument of tryrants; it was the creed of slaves.” A fine statement indeed, but rather ironic in hindsight considering that Pitt’s government was later responsible for clamping down on dissent and violating the rule of law in the process.
On the whole, I believe that the gist of Lord Walker’s speech is that in times of national emergency, the Rule of Law should not be disregarded. As such, the events that took place during the late 18th century is not simply a matter of historical interest, but serves as a salutary lesson to everyone who believes in the sanctity of the rule of law. Lord Walker’s speech can be construed as a message to the judiciary and by extension, to those in the legal fraternity, to be vigilant at a time when the government, in their zeal to combat threats to national security, do not surreptitiously usurp basic human rights and freedoms.
