In Gouriet v Union of Post Office Workers [1977] QB 729, the Court of Appeal held the Attorney-General of the day had wrongly exercised his discretion in refusing consent to a plaintiff’s injunction. It was none other than Lord Denning MR who declared at 761H:
“To every subject in this land, no matter how powerful, I would use Thomas Fuller’s words over 300 years ago: “Be you ever so high, the law is above you.”
Denning’s reference is a salient reminder to the emerging populist demagogues of our time that the rule of law is not a fleeting concept, but one that is deeply rooted in jurisprudence. Integral to this legal principle is the idea that no person or cause is so grand that he or it is not subject to the same ordinary laws of the jurisdiction. Yet it is evident, from the extrajudicial killings of drug lords by Duterte to the immigration ban on valid visa holders by Trump, that the rule of law is facing fundamental challenges around the world. The critical question here is, then, what the implications of this are on legal rights and certainty on a global scale.
Behind the rise of populism
It may first be helpful to make sense of the wildly popular populist ideologies that have emerged on both sides of the political spectrum. Populism itself is not a foreign concept — The Economist traces the widespread usage of the term as far back as the 1890s. However, its revitalisation in the 21st century is grounded in the sizeable fraction of the populace that feels increasingly marginalised by the modern economic and social climate.
In the Western world at least, many of these people are the victims of high immigration and advances in technology that have seen significant increases in structural unemployment. At the same time, they are left disillusioned by economic stagnation, rising inequality and rapid social change, all of which have contributed to a dangerous nostalgia for simpler times. It was clear following the Global Financial Crisis that any remaining faith this group of ‘the marginalised’ placed in the political elites was forever shattered. And so came the rise of populism.
It is on this bedrock of economic uncertainty and disdain for the political elite that populist demagogues, the likes of the Philippines’ Rodrigo Duterte, the United States’ Donald Trump and France’s Marine Le Pen, have galvanised the people under a single umbrella of protest. This is perhaps best reflected in the rhetoric of their campaigns — that Trump will “Make America Great Again” or that Le Pen will serve “In the Name of the People” — all sentiments of a cynical and disenchanted society. However, what underlies this prima facie illusion of unity is ironically a dangerous and sinister division within society. It is one that rejects all principles of establishment in favour of uncertainty and disorder.
The populist insurgents and their agendas
One only need look to the ruthless leadership of the Philippine President for an illustration of this. Rodrigo Duterte was elected in June last year on populist rhetoric such as election promises to eliminate the illegal drugs trade within six months, by means including the extrajudicial killings of drug users and criminals. Typical of contemporary populist candidates, he eschewed more than just political correctness in suggesting that he and his police force were immune from prosecution; Duterte went so far as to boast that his “mouth has no due process.”
During his campaign, Duterte would repeatedly make threats against criminals such as that, “All of you who are into drugs, you sons of bitches, I will really kill you.” But instead of regretting these statements as attempts to undermine the rule of law, the public construed them as a welcome protest against the political elite. As noted by the New Yorker, “Duterte had neither the family name nor the party machinery that is typically needed to compete in a Presidential election.” However, in 2016 Philippine presidential election, it was for this exact same reason that Duterte finished with six million more votes than his next closest opponent, Mar Roxas.
The people were and still are drawn to his populist appeal and lack of conformity. Incredibly, half a year after his election, Duterte’s disregard for procedural fairness has still been met with an impressive 83% approval rating. Despite pleas from the United Nations (UN) and threats of a prosecution in the International Criminal Court, Duterte wears these alleged murders as if some coveted badge of honour. In fact, in December 2016 he even threatened to burn down the UN or at least withdraw from the institution. As far as international legal order is concerned, the consequences of this could be disastrous. If respect for the UN ceased to exist, then so would accountability to the UN Charter and international human rights conventions.
If the Philippines were to withdraw from the UN, one could only imagine all the anti-establishment candidates around the world — increasingly eager to distance themselves from ‘the system’ — who might want to follow suit. A comparable pattern has already been seen in the aftermath of Brexit, which as also been described as a populist movement. Similar calls to leave the European Union have been expressed by France’s Marine Le Pen for ‘Frexit’, the Netherland’s Geert Wilders for ‘Nexit’ and Italy’s Beppe Grillo for ‘Quitaly’, all of whom are leading populist candidates in their respective countries. The immense popularity of these politicians is certainly cause for concern vis-à-vis the future of the rule of law.
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Why the radical opposition is making things worse
So far, it has been apparent that populism is neither a liberal nor conservative phenomenon. Politicians on both sides of the political spectrum have succeeded by appealing to the unfettered desires of the public without consideration for the rule of law. Last week’s blog post discussed the most prominent case of populism undermining fundamental legal doctrines on the right — Donald Trump’s immigration order — and so its legality won’t be debated again here. However, there has been a surprising development on the radical left which has only served to further complicate the pursuit of legal order.
Whilst this post makes no attempt to minimise the alleged unconstitutionality of Donald Trump’s executive orders, insofar as the rule of law is concerned, the radical liberals who so self-righteously oppose him by way of violent protest and rioting are indeed no better. Of the most despicable instances include the violent protests against Milo Yiannopoulos’ appearance at the University of California at Berkeley last week. The Guardian reports that “black-clad anti-fascist activists shot fireworks at the speech venue” and that some protesters even vandalised and looted a Starbucks.
From a legal perspective, this is deplorable not least for the fact that the protesters have seemingly committed multiple counts of felony rioting and criminal damage. It would appear that the significance of rule of law has been lost upon these zealots, who are embroiled in a crusade which they have convinced themselves is for the greater good. In doing so, they have estopped the likes of Yiannopoulos — regardless of their message — from exercising their rights within the confines of the law, which is abundantly clear on freedom of speech and freedom of expression.
Granted, the populist regime of Donald Trump naturally gives rise to peaceful objection and protest. However, what it does not warrant are illegal acts of violence and public disorder. As Lord Bingham of Cornhill, the former Chief Justice of England and Wales, notes in his book The Rule of Law, a “belief in the rule of law does not import unqualified admiration of the law.” All that is required of the protesters is that they respect the law and abide dutifully. To do anything to the contrary would render them no better than the cause they are protesting, no matter how sanctimonious they purport to be.
The rule of law must always prevail
The re-emergence of populism in the 21st century has presented formidable challenges to the rule of law. Not only must we contend with the often questionable actions of the populists themselves, we must now also grapple with the radical backlash that these divisive movements elicit. But whilst political opinion will always prove to be contentious, the rule of law will continue to be certain. On these grounds, neither side can be above the established law of the jurisdiction. English philosopher John Locke writing in 1698, provides an apposite warning that “Wherever law ends, tyranny begins.” This includes both the tyranny of a demagogue and of the majority.
by Robert Shu, Events Group
by Robert Shu, Events Group
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