Reflections on the Rule of Law

01/15/2013 05:21 EST | Updated 03/15/2013 05:12 EDT

"I don't believe in much," my friend Bob said not long ago, "but I do believe in the rule of law." And so it is with me as well. Forget the remote possibility of various rulers in the sky and elsewhere. I'm more interested in working out the fairness and legitimacy of the rules that speak to reconciling the inevitable tensions that exist amongst individuals, nation states, and the global community.

Not long after flying into Kiev, Ukraine in late November, I began to understand that this was a nation state without any fundamental adherence to the rule of law. The former Prime Minister and oligarch Yulia Tymoshenko is in jail, imprisoned for seven years over a natural gas contract signed with Russia in 2009. The United States, Russia, the U.K., the European Union and NATO have all condemned the charges and her imprisonment as the "selective prosecution" of political opponents. Human rights organizations have, not surprisingly, been similarly critical.

But still it was difficult to feel anything but sympathy for Ukraine. Kiev was totally destroyed by the Mongol invasion in the 13th century and in the intervening centuries the country and the city have been invaded and dominated by the Turks, the Cossacks, the Poles, and the Russians. Since 1991 Ukraine has been an independent state, but good governance has remained elusive. The presidential election of 2004 was widely seen to be rigged, and, despite the initial hope of the Orange revolution of that year, a small group of about 50 wealthy business owners continues to control both the business and the politics of the country. The wealth of these few dozen oligarchs, largely created by the privatization of state owned assets after independence, is estimated to account for 85 per cent of the country's GDP. In contrast, even in the United States, a nation state known for its economic inequality, about 20 per cent of the population - or 60 million Americans - control 85 per cent of GDP.

Shortly after I returned from Kiev, Toronto Mayor Rob Ford was removed from office for violating conflict of interest guidelines. This wasn't a particularly surprising or inappropriate consequence of his violation of the law, but the comments of his brother, Councillor Doug Ford, were quite remarkable, "The people have to speak in a democratic society. Not unelected officials, not council - the people. We don't live in Egypt, having judges decide who is going to be our leaders. We live in Canada. We are going to go to the polls, hopefully".

It's difficult to conceive of a more fundamental misunderstanding of the rule of law - or more specifically in this instance - of the task of the judiciary, in a legal system that has executive, judicial and legislative branches of government. The task of the judge is to determine whether a rule has been broken, and to apply the prescribed penalty - those unhappy with any given judicial decision should not expect that they will have, or ought to have, any kind of immunity because they are elected politicians.

Shortly after the decision to remove Rob Ford from office I was on another airplane, this time invited to a country house near Oxford and three days of meetings dedicated to the question, "Should drug policy change?" It was a stimulating event, bringing together individuals tasked with enforcing the law and those seeking fundamental change: a valuable global amalgam of police leaders, ambassadors, public servants, academics, researchers, politicians, and policy analysts. The meeting took place shortly after Colorado and Washington had voted to "legalize" cannabis, and there was a lot of discussion about the significance and likely outcome of these initiatives.

Again, what was most striking was the relevance of the rule of law, though not in a way that I might have anticipated. It's not particularly surprising that both drug use and drug law have created global harms, but what's striking is that these harms are multiplied in societies without respect for the rule of law -- in societies without good governance. For example, tobacco consumption and lung cancer are increasing in many countries of the developing world, where the state does not or cannot protect public health or the rights of non smokers. The harms that flow from drug laws are similarly influenced. There were less than a hundred individuals killed in drug trade violence in Canada last year, but in Mexico close to 50,000 died. The rates of such violence are similar in El Salvador, Jamaica, and Honduras. The often cited remedy for these scenarios is that of legalization - taking the business out of the hands of often violent dealers. But it's too simplistic a solution for these countries. The problem is not the drugs - they can easily be replaced by another commodity, and the harms, corruption and lack of democratic governance in these states will simply continue.

All of this is not to say that the decisions in California and Washington were bad, simplistic, or insensitive to the global dynamics of the issue. In fact, regulation and taxation of cannabis may well be a good policy, but many critical questions, most of them tied to the impact of law, and to the rule of law, must be considered. Can the black market in cannabis and its occasional violence be significantly diminished if only two of the 50 American states embark upon taxation and regulation? What are the probable costs and benefits of taxation and regulation? What is the legal mandate of the federal government in the US, or in Canada, relative to the states or the provinces? Can the negative consequences of the corporate promotion of alcohol and tobacco be avoided with cannabis - if we accept its taxation and regulation? What impacts will taxation and regulation in two jurisdictions have upon the broader global community? Can the three key international drug conventions of the United Nations, from 1961 and onward, all requiring criminal penalties for use and distribution, actually be amended?

Not easy questions to answer, but if we believe in the rule of law and its importance, these are all critical issues. Finding appropriate answers will improve public health, confidence in justice and, of course, the world as we know it.