Equality before the law and the Rule of Law

- preventing the Rule of the Majority, abuse of power and abuse of process

 

In a democracy politicians are only given legal power to act in the public interest, the interest of all of the public, all of society. They abuse that power if they act out of self-interest by, for example, applying laws unequally, perhaps applying legal restrictions only to their political enemies but not to their friends or themselves. So a fundamental constitutional democratic right is equality before the law, a principle recognized by international law. Equality before the law is referred to as a component of the Rule of Law. Without it democracies tend toward the Rule of the Majority, or Mob Rule, because of the natural tendency of politicians (and all of us) to act out of self-interest. Politicians’ power, and their jobs, depend only on the preferences of the majority of the electorate, not the whole public, so the temptation is always there to treat the majority more favourably than minorities. If political parties promise the majority of voters that they will implement laws unequally, in favour of the majority over minorities, then those parties are more likely to attract a majority of votes and gain power. Equality before the law is intended to prevent this ‘majoritarianism’.

In the US Supreme Court (Railway Express Agency Inc v New York [1949], para 112), Justice Jackson explained why the courts have a duty to prevent the abuse of political power by upholding the right to equality before the law:

There is no more effective practical guarantee against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.

Martin Luther King Jr described inequality before the law as the principle underlying institutionalised discrimination in his Letter from a Birmingham Jail, 1963:

An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal. By the same token, a just law is a code that a majority compels a minority to follow and that it is willing to follow itself. This is sameness made legal.

 

Abuse of power and abuse of process:

Martin Luther King’s quote above describes the abuse of power, how the powerful can force the powerless to comply with unjust laws. Abuse of process is a more subtle form of abuse of power where the process of applying a fair law is unfair. Martin Luther King’s letter described this simply:

Sometimes a law is just on its face and unjust in its application.

A simple example:
Abuse of power: I’m bigger than you so you better give me every piece of cake or I’ll take them by force.
Abuse of process: Let’s be fair and share the cake: one piece for you, two for me; one for you, two for me;…

 

The general claim - drug laws are neutral in principle but discriminatory in practice:

The unequal application of neutral law constitutes an abuse of process before prosecution which prevents a fair trial.

United Nations’ drug Conventions and the UK’s Misuse of Drugs Act 1971 are both neutral in that their legitimate aim is to protect the public from harmful drugs. Neither show any indication in their wording that they are intended to be applied unequally between the majority and minorities. In fact both laws have a ‘procedural safeguard’ against the abuse of political power: independent scientific advisory committees (the World Health Organisation and the Advisory Council on the Misuse of Drugs) are intended to ensure that the laws are implemented objectively and fairly.

However both laws have been interpreted and implemented unequally with respect to consumers and traders involved with equally harmful drugs. Drugs used by the majority of the voting public, alcohol and tobacco, are excluded without reasons while severe restrictions are imposed on those drugs used by minorities.

The inequality before the law contradicts the rule of law and constitutes discrimination contrary to international human rights treaties and the UK’s Human Rights Act.

 

Should responsible citizens comply with unjust laws?

Martin Luther King's letter:

“One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all ".”

“an individual who breaks a law that conscience tells him is unjust and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for the law.”

However the courts would probably disagree. It is the court's job to stand up to governments abusing their power. The solution they would recommend is for the victim to take legal action against those responsible for the injustice.

 

UK case law quotes:

Matadeen v Pointu:

“11. The United Kingdom theory of the sovereignty of Parliament is however an extreme case.  The difficulty about it, as experience in many countries has shown, is that certain fundamental rights need to be protected against being overridden by the majority.  No one has yet thought of a better form of protection than by entrenching them in a written constitution enforced by independent judges.  Even the United Kingdom is to adopt a modified form of judicial review of statutes by its incorporation of the European Convention”. 

Lord Steyn said in his lecture on 2 October 2003 in memory of Chief Justice Dickson in Canada:

“A core characteristic of a constitutional democracy is the protection it offers to the rights of individuals against the majority view as reflected by an elected government. In our new constitutional order Parliament itself has placed this duty on the courts. It permits judicial review of Acts of Parliament. … The courts may not abdicate their responsibilities by developing self-denying constitutional limitations on their powers.”

Lord Woolf said in his recent lecture in Australia:

“The real test of the [Human Rights Act] arises when individuals or minorities attract the antagonism of the majority of the public, when the tabloids are in full cry. Then the courts must, without regard to their own interests, make the difficult decisions that ensure that those under attack have the benefit of the rule of law. At the heart of the HRA is the need to respect the dignity of every individual by ensuring that he or she is not subject to discrimination.”

Chassagnou and Others v. France (1999) ECtHR, para 112:

“pluralism, tolerance and broadmindedness are hallmarks of a 'democratic society'.  Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position”.

Pretty v UK (2002) ECHR, para 17:

“Strong arguments based on the rule of law could be raised against any claim by the executive to exempt individuals or classes of individuals from the operation of the law”.

R v Horseferry Road Magistrates' Court, ex p Bennett [1994] 1 AC 42 at 62:

“the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law”.

AG's Reference No.2/2001 Times Law Report 12th July 2001, Lord Woolf CJ:

“if there has been prejudice caused to a defendant which interferes with his right to a fair trial in a way which cannot otherwise be remedied, then of course a stay is the appropriate remedy. But in the absence of prejudice of that sort, there is normally no justification for granting a stay.”

R. v. Martin (Alan) [1998] 2 W.L.R. 1, at 25, Lord Clyde stated:

“No single formulation [of abuse of process] will readily cover all cases, but there must be something so gravely wrong as to make it unconscionable that a trial should go forward, such as some fundamental disregard for basic human rights or some gross neglect of the elementary principles of fairness.”