In Defense of Representative Democracy (6)|
Democracy and the Rule of Law:
I've pointed out briefly before, that in every society throughout history those who administer the justice system hold power with the potential for abuse and tyranny. Every state must have the power to maintain order and punish criminal acts, but the rules and procedures by which a given society enforces its laws must be public and explicit, not secret, arbitrary, or subject to political manipulation by those who rule.
In the name of "revolution" or society at large, the current Libyan system of government has imprisoned individuals, had their property seized, and been tortured, exiled and executed without legal justification--and often without any formal charges ever being brought. No democratic society can tolerate such abuses. A common tactic of the Libyan dictatorial state is to charge opponents of the military regime with treason. For this reason, the crime of treason must be carefully limited in definition and scope so that it cannot be used as a weapon to stifle criticism of the government.
The foundation upon which a just and democratic society is built is the principle of the right to equality before the law, or equal protection of the law as it is often called. This means that no one is above the law. Therefore, the rule of law and the unfettered dissemination of legal information are essential to the functioning of democratic society. As I've indicated, legal jurisdictions must employ legislative and judicial processes to create new law and to keep old law up-to-date. It must be emphasized again that, in a true democracy, the role of an elected legislature is crucial, as such a legislature, being chosen by the people in free elections, is the only guarantee for the legitimacy of the law it makes.
Here are most of the essential legal requirements of due process of law in a democracy. These requirements and rights are present in all true democratic constitutions and basic human rights declarations. They were, for example, partially included in our constitution of 1951.
1- No one's home can be broken into and searched by the police without a court order showing that there is good cause for such a search. The midnight knock of the secret police has no place in a democracy.
2- No person shall be held under arrest without explicit, written charges which specify the alleged violation. Not only are persons entitled to know the exact nature of the charge against them, they also must be released immediately if the court finds that the charge is without justification or the arrest is invalid. Individuals or groups have the right to sue the government, if any of their rights is violated.
3- Persons charged with crimes should not be held for protracted periods in prison. They are entitled to a speedy and public trial, and to confront and question their accusers. There is absolutely no place for the so-called special courts in a truly democratic society.
4- The authorities are required to grant bail, or conditional release, to the accused pending trial if there is little likelihood that the suspect will flee or commit other crimes. "Cruel and unusual" punishment, as determined by the traditions and laws of the society, is prohibited.
5- Persons cannot be compelled to be witnesses against themselves. This prohibition against involuntary self-incrimination must be absolute. Furthermore, the arresting authorities may not use torture or physical or psychological abuse against suspects under any circumstances. A legal system that bans forced confessions immediately reduces the incentives of the police or other authorities to use torture, threats, or any forms of abuse to obtain information, since courts will not allow such information to be placed into evidence at the time of trial.
6- Persons shall not be subject to "double jeopardy"; that is, they cannot be charged with the same crime twice. Any person tried by a court and found not guilty can never be charged with that same crime again.
7- Because of their potential for abuse by the authorities, so-called ex post facto laws are also proscribed. These are laws made after the fact so that someone can be charged with a crime even though the act was not illegal at the time it occurred.
8- Defendants may possess additional protections against coercive acts by the state. The accused have a right to a lawyer who represents them in all stages of a legal or criminal proceeding, even if they cannot pay for such legal representation themselves. The police must also inform suspects of their rights at the time of their arrest, including the right to an attorney and the right to remain silent to avoid self-incrimination.
9- Judges may be either appointed or elected to hold office for specified terms or for life. However they are chosen, it is vital that they remain independent of the nation's political authorities to ensure their impartiality. Judges cannot be removed from office for trivial or merely political reasons, but only for serious crimes or misdeeds after bringing of charges and trial in the legislature.
None of these requirements or restrictions means that the society lacks the necessary power to enforce the law and punish offenders. On the contrary, the justice system in a democratic society will be effective to the degree that its administration is judged by the population to be fair and protective of individual rights, as well as of the public interest. Equally important is that governments publish and disseminate official editions of all legal documents and decisions. Citizens of society need access to laws they are expected to respect and obey. The private sector must also play a role in any effective legal information system. Publication of laws and other legal literature promote democracy by affording citizens a ready and affordable means to examine the laws created by their elected officials.
It is worth repeating again that a democratic government cannot guarantee that life will treat everyone equally, and it has no responsibility to do so. However, under no circumstances should the state impose or help create additional inequalities. It should be required to deal evenly and equally with its entire people. I doubt very much that this is the case under the current form of the Libyan regime.
To be continued