There has been a lot of buzz about Marie Henein’s superb legal defence of the odious Jian Ghomeshi. The buzz is less about her work in actual court than about her defence of the basic principles of Canadian law in the court of public opinion.
The main thing that stands out from the Justice 101 tutorial that Henein gave to CBC anchor Peter Mansbridge is this:
It is pretty significant, that in one of the highest profile cases, in one of the cases where everybody had an opinion, sitting on their couch tweeting it out in a 140 characters or less, where people expressed opinions not having heard a word of evidence, that you knew you could walk into court, and there would be an impartial person that would decide on the evidence that was heard.
She followed up by saying that this “happens not just in this case, but each and every single day.”
All together now: “Amen!”
It is increasingly tempting in our society to make the law do things it should not, or to supplant the law with a cultural ethos: the collective feeling that those people must be stopped in whatever way possible. Henein’s defence of the law is a reminder that the rule of law is there to protect the common good – to protect you and me. Or, as St. Thomas More (via Robert Bolt) put it: “I’d give the devil benefit of the law for my own safety’s sake.”
This doesn’t just apply to criminal cases, where one’s personal freedom of body and movement is at play. It applies in areas where we might be tempted to sidestep the law to shut down things that we might not like. Why? Because without the rule of law, power gets concentrated, and used, not for the common good but for private gain. And often this means that it gets concentrated in the hands of those who control the levers of the state.
It was barely noticed here in Canada but one week after the Ghomeshi verdict, South Africa’s constitutional court gave us a reminder that a society that ignores the law is more likely to be marked by thuggery and corruption than right-thinking and right-living. In a decision that should find its way into textbooks around the world, the Constitutional Court of South Africa ruled that the law applies to everyone equally, including those who hold the highest office in the country. Ruling against South African President Jacob Zuma in a case of corruption and his flouting of the law, Chief Justice Mogoeng Mogoeng did not hold back:
One of the crucial elements of our constitutional vision is to make a decisive break from the unchecked abuse of State power and resources that was virtually institutionalized during the apartheid era. To achieve this goal, we adopted accountability, the rule of law and the supremacy of the Constitution as values of our constitutional democracy. For this reason, public office-bearers ignore their constitutional obligations at their peril. This is so because constitutionalism, accountability and the rule of law constitute the sharp and mighty sword that stands ready to chop the ugly head of impunity off its stiffened neck.
I’d ask for another “Amen,” but in this case, it makes more sense to heed the words of journalist Madala Thepa writing in the Independent and say “Preach!”
We in the West have a tendency to think we are as removed from this as South Sudan is from Canada. But, if you look at the big picture – that Henein even needed to make the case for the law, that law societies across Canada are willing to limit the freedom of a school not because it is illegal, but because, as the Supreme Court of Nova Scotia puts it, the school has a “university policy to which the [law society] objects,” or that our own government has attempted to limit what people can wear – we might want to think twice before getting too smug.
The rule of law is a jewel of great value. It is the means by which we do public and private justice, which is, as professor ]Paul Brink reminds us, the particular way we love one another in political communities. And, like anything of great value, it’s worth defending.
Brian Dijkema is the Vice President of External Affairs with Cardus.