Quintessentially great majority of the members of the international community would like to be counted as practicing democracy or a blend of it. It is however debatable how far they have allowed the foundation of law and orderan essential precursor to institutionalization of democracy- to take place in their countries where people can aspire to get justice from the irrational and illegal, if so interpreted by the court of law, of acts of the government and its supporters of the moment.
In the progress of democracy the world has travelled a thorny path from Magna Carta to the British Bill of Rights to the US Bill of Rights to the end of colonization to UN Convention on Human Rights to a position which professes absolute predominance or supremacy of law and its application regardless of the socio-political station of the citizens of a country. Professor A. V. Dicey in his 1885 book ‘Introduction To The Study Of Law Of The Constitution,’ observed that it is based on three principles: (1) legal duties, and liability to punishment, of all citizens, is determined by the ordinary (regular) law and not by any arbitrary official fiat, government decrees, or wide discretionary-powers, (2) disputes between citizens and government officials are to be determined by the ordinary courts applying ordinary law, and the (3) fundamental rights of the citizens (freedom of the person, , freedom of association, freedom of speech) are rooted in the natural law, and are not dependent on any abstract constitutional concept, declaration or guarantee (Business Dictionary. Com). But then almost daily reports on crimes, some sensational and some involving important people which capture media attention are often forgotten because 15 minutes fame is not infinite and some allegedly due to the corruption in the judiciary that automatically goes to the advantage of the rich.
The sources of law is equally important in the dispensation of justice. Among the sources are religion, ideology, social conditions prevailing in any particular society and the political system e.g. absolute monarchy, despotic rule under the garb of democracy. If, for example, under communism property rights are denied because the state owns all the property and people so deprived cannot go to courts because expropriation has already been legalized then the dispensation of law would be different from other countries yet perfectly legal in that country.
If one were to take ideology as the source of law then it is no longer a science of ideas as claimed by nineteenth century French thinker Claude Destutt de Tracy but “Ideology today is generally taken to mean not a science of ideas, but the ideas themselves, and moreover ideas of a particular kind. Ideologies are ideas whose purpose is not epistemic, but political. Thus an ideology exists to confirm a certain political viewpoint, serve the interests of certain people, or to perform a functional role in relation to social, economic, political and legal institutions. Daniel Bell dubbed ideology ‘an action-oriented system of beliefs,’ and the fact that ideology is action-oriented indicates its role is not to render reality transparent, but to motivate people to do or not do certain things. Such a role may involve a process of justification that requires the obfuscation of reality” (Law and Ideology-Stanford Encyclopedia on Philosophy). A more critical appraisal of law’s relations with ideology was made by Marx and Engels who posited that ideas are shaped by material world and hence is subject to change. Marxists would argue that when legal ideology becomes the tool in the hands of the rich and the powerful then laws can be enacted to the detriment of the powerless and would result in the domination of one over the other. Such a situation can happen without ideological conflict where one organ of the state through extra-judicial process captures power and one of the first acts by the new rulers is the abrogation of the country’s constitution from which flows the fundamental laws of any nation.
Influence of religion as a source of law has been tremendous throughout the history of the world. This has been keenly felt when scientific discoveries were found to be in conflict with canonical laws and depending on the strength of the religious leaders the “guilty” were punished. When the scientists discovered that the earth and not the sun moves on its orbit it conflicted with then accepted “truth” that earth was the center of the universe and any pronouncement to the contrary was regarded as heresy.
The on-going sectarian conflict between Shias and Sunnis in Islam for example has both political and legal dimensions. The sectarian struggle has been going on between the Catholics and the Protestants for ages and found legal expression even in secular world of the twentieth century where marriage of royalty, for example in England, could only take place when both parties belonged to the Church of England that was founded when British King Henry the eighth did not get papal sanction for annulment of his marriage. In today’s Saudi Arabia, branded by Bernard Lewis for its rejection of modernity in order to go back to its sacred past, the constitution is the Holy Quran and the laws are based on Sharia. The laws are immutable and sacrosanct and must be obeyed to the letter. But then of the 57 members of the Organization of Islamic Cooperation only a few follow the Sharia laws completely though by and large Muslims, as we have seen after the Arab Spring, generally prefer Sharia laws to be the basis of judicial philosophy but with modification needed by the demands of modernity. For example, ban on women to drive cars or going out without being accompanied by male relatives are considered anomalous with modern life. The ‘purists” would argue that the compromise with “modernity” as they understand is a compromise with degenerate Western way of life and incompatible with the true spirit of Islam.
The struggle against Mullah Omar’s Afghanistan and against al-Qaida’s injunctions in North Waziristan should not be confused as war on Islam but as a fight against evil that has to be exterminated. But then question arises as to how laws are to be disregarded when such laws are based on centuries old tradition and revered by the society. Honor killings in some Muslim countries are accepted and the guilty is rarely punished though punishment for murder remains on the statute book. Indeed the killers are feted for regaining the “lost prestige” of the family. If social backwardness depict horrendous picture of weird laws in practice one has to remember that laws instead of being stagnant is like a moving vehicle accommodating changing conditions of society.
Laws have been changed to suit welfare of the people in need to make these as entitlements as citizens. Patient protection popularly known as Obama care or Patient Protection and Affordable Care(PPACA) signed into law in March 2010 has become one of the central points of controversy in 2012 Presidential election. Generally favored by the Democrats the law is opposed by the Republicans on ground that the implementation of the law will increase federal deficit while the supporters contend that the law will reduce the number of uninsured Americans and make medical treatment available to them. The Republicans are also opposed to the law because they believe that it would increase federal bureaucracy. The point made here is not about the merits or demerits of the Obamacare but to show that legislation and law making are ever changing process suiting the exigencies of the situation of a country. Equally precedents of judgments given earlier are often considered in pronouncing judgments.
The increasing influence of religion in the decision making process is putting secularism and multiculturism in jeopardy. A case in point is the blasphemy law which carries death sentence if a person is found guilty. Despite international condemnation of the blasphemy law and Hudood ordinance on adultery as violation of internationally accepted conditions, albeit controversial, of free sex, same sex marriage, unmarried couples living together etc do exist in many countries. Yet some Muslim countries hesitate to strike the laws off their statute books because of hurting the feeling of “devout” Muslims who may constitute a small minority of the electorate but have large following of Islampasands in society. The Hudood ordinance has been criticized as leading to “hundreds of incidents where a woman subjected to rape, or even gang rape, was eventually accused of <http://en.wikipedia.org/wiki/Zina>Zina” (extramarital sex) and incarcerated, and defended as punishment ordained by God and victim of “extremely unjust propaganda”(Wikipedia ).
The question that one may ask is whether there can be universally accepted and enforceable laws in addition to international law. European Union has progressed in unifying laws to a certain degree by surrendering a portion of its sovereignty. But a universally enforceable set of laws do not appear to be possible for several reasons. One impediment will be “American Exceptionalism” that can be defined as, among other things, US refusal to accept extra-territorial jurisdiction over US citizens. It is note worthy that NATO never had a military chief who was not an American perhaps because the US is reluctant that its troops could be judged by laws of other countries. Other reasons inhibiting universal application of laws can be attributed to precedents, customs, legislation, societal structure, ideology, economic conditions, and other factors that differ from country to country. The very fact of the constitution of the UNSC with five veto wielding members demonstrate the differences in global power structure and consequent subordination or otherwise of developed, emerging and other developing countries.
Developing countries, or at least some of them, are reluctant to allow foreign lawyers to appear in its court due to restrictions imposed by Bar Councils or absence of reciprocal arrangements between the host country and the country of origin of the foreign lawyers. But then it would not be factual to state that surrender of sovereignty does not occur when countries enter into agreements with other countries and financial institutions or form customs union, free trade area or economic union. One may argue that international agreements that obligate the signing country to some rules and regulations have to be placed in parliament for ratification. Such ratification that confers legality are often a formality and not result of deep thoughts prior to the signing of the agreements.
Given all these factors the international community should endeavor to have a transparent, enforceable, and non-discriminatory international standard or code of conduct. Rogue states should be warned of consequences if international peace and stability are threatened. At the same time G-8 or its expanded version should be made aware of its duties to avoid the temptation of short term political or economic gains.
Kazi Anwarul Masud is a former Ambassador and Secretary of Bangladesh.