In this blog series, looking behind the contempt of court finding against a Children's Services Director, I have mentioned the concept of the rule of law a number of times. The finding of contempt of court in the case under discussion involves invoking the role of the rule of law and the duty of the state to obey the law.
We don't teach this stuff in school much any more. The concept has to be more than just a cliche in the minds of citizens. So I thought I would spend some of my Sunday and try to explain Rule of Law 101. We all know this innately but here are the main elements.
Rule of Law:
Describes a form of government that holds that no power can be used except within the constraints and in accordance with the law. That concordance goes to process, procedures, principles and practices.
Any citizen (including a minor child) can pursue and achieve redress for a breach of they law that they suffered from the action or inaction of the state or any other citizen. It doesn't matter how powerful or ranking a person is within the state, they are bound by the law just like anyone else. The Foster Mother in the Children's Services contempt case was exercising this legal right in pushing the processes to overrule the Director's decision to remove the child from her home and care.
The law is supreme. That means we need an independent judiciary so the law can be effectively enforced against the state, as in the Children's Services case. The courts have to be able to impose consequence for contempt of court and for other breaches of the law. In the current case the courts imposed jail time for the Director who was found responsible for not obey the outstanding court order. The court also allowed for community service time to be served by the Director personally to avoid prison.
Paradoxes of the Rule of Law:
There is a paradox here because the government/state appoints the independent judges. There are now checks and balances in the judicial review and selection process, including consultation with the Bar and distinguished citizens who make the final appointment recommendations to the government. The usually recommend about three qualified candidates for judicial appointment and the Minister responsible can select one of them or reject them all. Such rejections of all candidates is rare and it merely starts the independent review process all over again. That independent and confidential judicial review and selection process is not perfect but it goes a long way to assure citizens of an independent judiciary.
The other paradox is that the government makes the laws that they are also going to be subject to. They can change them at any time as the legislature and Constitution will allow. If the lawmakers do not like something the law imposes on them, they can change the law. So we citizens have to be very careful who we elect. We have to be on constant vigil to ensure our politicians are serving our best interests and not their own or some "friends" or some special interest group.
The Bill 44 recent changes the Alberta Human Rights Act was serving a special interest group and not the best interests of a secular society as a whole. It also undermines the ability of teachers to provide a quality public education system too. But it is the law and it must be obeyed until political pressure is successful in getting it changed.
Without the rule of law there is a risk of social collapse, corruption, terror and intimidation. A further irony of the rule of law is the state needs to be powerful and forceful enough to subvert those lawless activities also using force and violence. The government must be capable and prepared to revert to the kind of violent extremes needed to overcome other illegal and violent extremes. Some readers will remember Trudeau and the War Measures Act in the FLQ Crisis. This is a perfect example of this paradox.
No body, and nobody is above the law nor can they ignore the law. That includes the lawmakers themselves as our agents and as people in their own right. The rule of law is a fundamental principle of our form of government. It can be subverted over time unless we citizens engage effectively in the politics of our time. Failure, refusals or neglect by citizens to engage actively in their democracy will weaken our rights as citizens to be protected by the state and from the state under the rule of law.
Thus endeth the lesson.