Rule of Law : the Backbone of Economic Growth
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Rule of law : the backbone of economic growth (A lecture delivered by Deemster David Doyle at the Oxford Union on 17 July 2014 as part of the Small Countries Financial Management Programme) Introduction “By this Book and the Holy Contents thereof and by the wonderful Works that GOD hath miraculously wrought in Heaven above and in the Earth beneath in Six Days and Seven Nights; I David Charles Doyle do swear that I will without respect of favour or friendship, love or gain, consanguinity or affinity, envy or malice, execute the Laws of this Isle justly betwixt Our Sovereign LADY THE QUEEN and Her Subjects within this Isle, and betwixt Party and Party as indifferently as the Herring Backbone doth lie in the midst of the Fish. So help me God. And by the Contents of this Book” That was the judicial oath I first took in 2003 when I was appointed Second Deemster and again in 2010 when I was appointed First Deemster. I am sharing it with you this evening because it embodies the essentials of the rule of law. Lord Hope, the former Deputy President of the Supreme Court of the United Kingdom, was kind enough to refer to the Manx judicial oath in the chapter he contributed to Judge and Jurist Essays in Memory of Lord Rodger of Earlsferry (2013 Oxford University Press) at pages 75-76. Justice must be delivered according to the law, without surrendering to any improper influences and delivering equal treatment to everybody, “without respect of favour or friendship, love or gain, consanguinity or affinity, envy or malice”. It is interesting that this extract from my oath is a list of some of the feelings and failings that make us human. So in many ways you could say that the rule of law must protect us from ourselves. To make this possible no-one can be above the law, and there must be an adequately resourced independent and impartial judiciary who decide cases fairly according to the law. Definition A useful definition of the rule of law was provided by Tom Bingham, the much lamented former senior law lord, whose mother’s family were, in his words, “entirely Manx”, so that would go some way to explain his significant intellect and outstanding judicial qualities! 1 He asserted, in his excellent book on The Rule of Law (2010 Penguin Books) at page 37, that the core principle of the rule of law was that “… all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.” I did not have the pleasure of meeting Tom Bingham but was privileged to receive an invitation to his Memorial Service in 2011. I will never forget people dancing out of Westminster Abbey at the end of the service to a New Orleans jazz band; a glimpse of the very human side of a man who made the law his life. In my role on the Isle of Man a great deal of my life focuses on the law and the nature of the rule of law. Recently there has been much discussion about the rule of law and economic development. For me, Kenneth Dam, who has served three US Presidents, including a period as Deputy Secretary of the Treasury, raised an important practical point in 2006 when he wrote: “What is this thing we call the rule of law? Advocating the rule of law as a key to development is much too vague a prescription to be meaningful to policymakers in developing countries or to foreign assistance agencies in international organisations and individual developed countries …” [The Law–Growth Nexus : The Rule of Law and Economic Development 2006 Brookings Institution Press at page 13]. He believed that most rule of law discussions were so general and abstract that they could have little direct relevance to the formulation of economic development policies. Professor Dam focused on how the protection of property and the enforcement of contracts could contribute to economic development. He referred, as many people do, to the difficulties in defining the rule of law and conceded that perhaps the rule of law is something that we just know when we see it. However, Professor Dam gathered together [at page 16 of his book] from the vast literature on the rule of law three basic but key ideas that should be turned into a triptych to sit on the desk of every decision-maker worldwide: “1. Legal rules should be written down and available to all residents of the realm : No secret law. 2. Rules should apply, and be enforced, equally and dispassionately for all, regardless of position or status : Nobody is above the law. 2 3. Individuals must have a right to have rules that favor them enforced for their benefit. In other words, they are entitled to access to justice on a non-discriminatory basis no matter who they are and who the defendant may be.” Equal access to justice. Key ideas two and three, in particular, rely on judicial independence. The judiciary must be and must be seen to be independent from the legislature and the executive. Dam was also clear in his findings that the degree of judicial independence is correlated with economic growth. Lord Neuberger, President of the Supreme Court of the United Kingdom and lead judge in the Judicial Committee of the Privy Council, in his lecture entitled Justice in the Age of Austerity (15 October 2013) stated: “2. Of course, the rule of law can mean different things. At its most basic, the expression connotes a system under which the relationship between the government and citizens, and between citizen and citizen, is governed by laws which are followed and applied. That is rule by law, but the rule of law requires more than that. First, the laws must be freely accessible; that means as available and as understandable as possible. Secondly, the laws must satisfy certain requirements; they must enforce law and order in an effective way while ensuring due process, they must accord citizens their fundamental rights against the state, and they must regulate relationships between citizens in a just way. Thirdly, the laws must be enforceable: unless a right to due process in criminal proceedings, a right to protection against abuses or excesses of the state, or a right against another citizen, is enforceable, it might as well not exist.” On 20 June 2014 in a lecture at a conference on The Future of the Bar in Belfast, Lord Neuberger (at paragraph 5) added: “… Lawyers have a special position in society not because they are loved or because they are particularly admirable people, but because they are responsible for the rule of law. That is true whether they administer law as judges, advise on law as legal advisers or act as advocates in courts and tribunals, whether independent, or employed. The rule of law is fundamental to a modern democratic society. The rule of law requires laws which satisfy certain criteria: they must be clear and accessible, they must protect society, and they must recognise the fundamental rights of individuals against each other and against the state. However, such laws are valueless unless they are also a practical reality, and therefore the rule of law also requires that all citizens have access to justice, and by that I mean effective access to competent legal advice and effective access to competent legal representation.” 3 The Canadian Supreme Court in 1998 in the Quebec Secession case [1998] 2 S.C.R 217 at 257-258 stated: “At its most basic level, the rule of law vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs. It provides a shield for individuals from arbitrary state action … the law is supreme over the acts of both government and private persons. There is, in short, one law for all …. The exercise of all public power must find its ultimate source in a legal rule … the relationship between the state and the individual must be regulated by law …” Well that is a clear and distinct view from the well-established West. To get a view from the early risers in the East I would like you to hear what Geoffrey Ma, the well-respected Chief Justice of Hong Kong, had to say at the Chinese University of Hong Kong 50 th Anniversary Lecture last year: “… the rule of law. This term sometimes means quite different things to different people …. My definition of that term is that the rule of law comprises two connected premises: first, the existence of laws that respect the dignity and rights (whether personal, proprietary or what are known as human rights and freedoms) of the individual; and secondly, the existence of an independent judiciary to enforce these rights and liberties.” Though there is a slightly different emphasis it would seem that both East and West are definitely on the same page when it comes to judicial independence. Without it there can be no viable rule of law and, I would contend, without the rule of law there can be no fair societies with sustainable economic growth. I have quoted from Geoffrey Ma partly because I have a high regard for what he has to say, partly because he is the Chief Justice of an economically successful community, and partly because I had the pleasure of meeting him during a personal visit to Hong Kong with my two eldest sons in 2012.