Remarks to the Vietnam-Canadian Business Association

Remarks of the Right Honourable Beverley McLachlin, P.C.
Chief Justice of Canada

We live, the sage said, in interesting times.

And so it is for us. Just when we thought the cold war was over, just when Francis Fukayama proclaimed the end of history, the horror of the bombing of the World Trade Centre shook the world and announced a new scourge, more elusive and terrifying than the old ones – the scourge of radical, organized, worldwide terrorism. Since then, terrorists have struck in diverse parts of the world and in diverse ways. Who, we ask, is next?

Not surprisingly, the main target of the new scourge, the world’s liberal democracies, have responded. Part of that response has entailed the curtailment of the rights and freedoms which those very democracies long espoused and which lay at their very heart. The forms of curtailment are diverse and familiar. Abnormal executive detention outside recognized legal process and abridgement of the ancient right of habeas corpus. Denial of legal service to the detained. Deportations and closed trials. The list goes on.

It is this aspect of the response to terrorism that brings me to my subject today – how liberal democracies should address the dilemma before them – the dilemma of how to maintain security and still preserve the rule-based, rights based societies they hold dear. The dilemma is not new; we are not the first to face it.

Listen to these words of Winston Churchill in defence of the rule of law:

The power of the Executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgement of his peers, is in the highest degree odious and is the foundation of all totalitarian government whether Nazi or Communist … Extraordinary power assumed by the Executive should be yielded up when the emergency declines. Nothing is more abhorrent than to imprison a person or keep him in prison because he is unpopular. This is really the test of civilization. ^{Footnote 1}

Yet this same man, faced with the threat of the destruction of his country, is said to have issued the instruction with respect to enemy aliens, “Collar the lot.” ^{Footnote 2} He did so, conscious of the dilemma between maintaining fundamental rights and preserving his country. In 1940 he wrote of those who had been detained by Executive fiat:

It must be remembered that these political detenus are not persons against whom any offence is alleged, or who are awaiting trial or are on remand. They are persons who cannot be proved to have committed any offence known to the law, but who because of the public danger and the conditions of war have to be held in custody. Naturally I feel distressed at having to be responsible for action so utterly at variance with all the fundamental principles of British liberty, habeas corpus and the like. The public danger justifies the action taken, but that danger is now receding. ^{Footnote 3}

This then is the dilemma that faces liberal democracies in extreme circumstances – how to maintain security as well as individual rights and the rule of law. Canada, like other democracies, is founded on the rule of law and respect for rights. In times of instability or threat, it becomes clear that it may be difficult to maintain our commitment to the rule of law.

And so it is in the aftermath of September 11, 2001. Our assumptions and premises have been shaken. We have seen terrible images of destruction, random violence and the senseless destruction of human life. To those who have grown up in a country ruled by law, terrorism strikes at the root of our sense of a functioning political community. Terrorism is random and unpredictable. It is the embodiment of intolerance. It undermines stability, and renders discourse difficult if not impossible. And worst of all, terrorism denies the dignity of each individual, reducing humans to disposable weapons and targets. Left unchecked, it will destroy our democratic society. But fought too ruthlessly, it holds the potential to destroy the very values that make that society worth preserving.

In the face of such horror, it is tempting to abandon the unfailing respect for human rights that normally characterizes our law enforcement efforts and our judicial activities. It may be tempting to fight terrorism with unimpeded force, to resort to tools that may appear more effective but which run counter to established notions of fundamental justice. Indeed, security is a vital concern. This cannot be and should not be denied. Without a minimum of security, our rights and liberties are incapable of effective exercise. So the dilemma seems intractable. We cannot choose between maintaining security and maintaining rights. We must have them both.

Since we cannot jettison either our security or the rule of law, we must resort to balancing – finding the compromise that maintains security without threatening the values on which our society is based. Lord Bingham, England’s Senior Law Lord, said this recently: “The democratic challenge is to strike as just a balance as possible between the right of the state to preserve itself and its citizens against the risk of defeat, destruction and widespread violence and the fundamental right of the individual not to suffer executive detention.” ^{Footnote 4}

Having said the process is essentially one of balancing, let me make a vital qualification. It is not entirely a matter of balance. There are some values so basic that they must always be maintained – like the basic right of the people to choose those who govern them and an open and independent court system. To these many would add basic human rights, like freedom from torture, murder and indefinite detention without hope or promise of legal recourse. Beyond a fundamental core, however, the curtailment of the rule of law and liberties becomes a matter of balance. The bright lines dissolve. At some point in some circumstances, we may be forced to accept the hard fact the curtailment of rights may be necessary to preserve security. But how much curtailment we need or should permit may be unclear.

Balancing is difficult and controversial. The idea of positing contrary values against each other to the end of cutting each back to find a compromise may be unpalatable to those on either side. Depending on their values, different people will suggest the balance should be struck at different points. Yet for all its flaws, balancing is a technique well known to both the political and legal process. It may be done badly, or it may be done well. I would like to devote the remainder of my comments to the question of how we may best go about the difficult task of balancing security and the rule of law and rights in the democratic dilemma we now face.

I will suggest that there are three lessons we should bear in mind as we go about task of balancing – one derived from legal process, one derived from history, and one derived from contemporary experience. The first lesson is that we should be clear on what we put on each side of the balance. The second lesson is that in times of crisis there is greater danger of excessive restriction of liberties than of too little. The third lesson is that it is all too easy to underestimate the importance of preserving liberties and the rule of law – both in terms of principle and practice. Let me deal with each in turn.

The first lesson is that we should be clear on what we put on each side of the balance and be prepared to articulate why, in light of what lies on either side, we make the choice we do. The use of balancing in the legal process teaches us that balancing only works if the person doing it consciously articulates and weighs the factors placed on each side of the balance. Hence the familiar rhetoric of judicial decisions; “on the one hand” and “on the other hand.” Articulation of the competing values forces us to bring the debate into the light of consciousness. It forces us to consider viewpoints which we might find distasteful and values which we might otherwise neglect. It reduces the chance of hidden prejudices and agendas determining the outcome. Balancing, done blindly, may be a cloak for prejudice and blind belief. Done consciously, it is a powerful tool to find intelligent and workable accommodation between conflicting values and interests. Nowhere is this more true than in the balance between security on the one hand and the rule of law and rights on the other. Hence my first caution. When making the choice between security and rights, we must carefully consider what lies one each side of the scale and be sure that the balance chosen is justifiable.

The second lesson, taught by history, is that there is more danger of excessive curtailment of the rule of law and rights in times of crisis than too little. Lord Bingham, in the course of an extensive review of abridgement of rights in times of crisis, offers this conclusion: “Retrospective inquiry tends to show that the infringement of personal liberties thought to be justified at the time were significantly greater than the necessity of the hour required.” ^{Footnote 5}

History bears sad testament to the truth of this statement. The oldest human right is the right to be free from arbitrary arrest and imprisonment. Chapter 33 of the Magna Carta of 1215 banned arbitrary arrest and imprisonment and established the right to call upon a judge to be freed – the right of habeas corpus. Yet part of the history of England is, quite literally, a history of executive arrest and imprisonment. The right to habeas corpus was suspended on 15 occasions between 1688 and 1848. ^{Footnote 6} In British India, Africa and other colonies, it was widely flouted.

More recently, thousands of people in England, the United States and Canada – men, women and children – were locked up in concentration camps without effective legal redress during the Second World War. The press and the government had little concern for their plight, and there was little real examination of whether the incarcerations were indeed necessary. A poll in March 1942 found that 93% of Americans questioned approved of the incarcerations and curfews imposed on Japanese Americans. ^{Footnote 7}

Nor were the courts of much help, as attested by the experience of two Japanese Americans who refused to obey military orders to move. Gordon Hirabayishi, a Seattle resident whose loyalty to the United States was never questioned, was convicted of refusing to obey an order to report to a control centre as a prelude to incarceration and refusing to obey a curfew. He argued that there was no military necessity to justify the orders and that they were racially discriminatory and hence unconstitutional. He lost. ^{Footnote 8} Another objector, Fred Korematsu, appealed his conviction for remaining in the place he lived contrary to military order to the Supreme Court of the United States. The Court affirmed his conviction. It later emerged that the prosecuting authorities had deliberately suppressed information germane to the court’s decision and helpful to the appellants, and had willfully put false evidence before the court. And all this despite the Fifth Amendment.

In 1984, Fred Korematsu was finally successful in having his conviction quashed. ^{Footnote 9} Judge Patel had this to say:

Korematsu remains on the pages of our legal and political history. As a legal precedent, it is now recognised as having very limited application. As historical precedent it stands as a constant caution that in times of war or declared military necessity our institutions must be vigilant in protecting constitutional guarantees. It stands as a caution that in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability. It stands as a caution that in times international hostility and antagonisms our institutions, legislative, executive and judicial, must be prepared to exercise their authority to protect all citizens from the petty fears and prejudices that are so easily aroused.

Hence my second caution. History teaches us that fear and prejudice increase in times of distress. People generalize; people look for scapegoats. In fear they react and say, “Collar them all.” And these reactions, with hindsight, are more often than not revealed to be unfounded and excessive. In assessing where the balance should be struck in the crisis the world now faces, we should bear this lesson in mind. We should, as Judge Patel advised, insist that curtailments of the rule of law and rights are subject to the constraints of scrutiny and accountability. And we should ask ourselves in every case: is this particular infringement necessary?

This brings me to my final caution. We should not underestimate the importance of preserving the rule of law and the greatest amount of liberty and transparency possible. Nor should we underestimate the ease with which these goods can be set aside.

The demands of security are dramatic and insistent. They capture our imaginations. They shout with loud voices. The demands of the rule of law and liberty are quotidian and quiet. Too often their whisper, however insistent, is lost in the clamour of crisis. Yet it is essential to preserve them, even in difficult times.

Consider the rule of law and why it should be preserved, even in times of peril and national distress. It stands, scholars suggest, for four values that are as important in times of crisis as in times of peace – legitimacy, universality, rights protection and accountability. Legitimacy: the principle that power must be exercised according to law and not arbitrarily. Universality: the principle of one law for all, and that none are excluded in a discriminatory fashion. Rights protection, the principle that rights must be sustained and can be attenuated only when this is demonstrably necessary to the greater collective interest. Accountability: the principle that all those who exercise power are accountable for that exercise through the law as applied in independent courts. ^{Footnote 10}

The failure to pay sufficient attention to these values lies at the heart of the examples of excessive rights curtailment that mar history. Such episodes tend to share the same characteristics. The exercise of powers by police and the military arbitrarily, rather than by law. The denial of the protection of the law to particular groups. The denial of rights in the absence of rational demonstration that this is necessary. And the lack of accountability for all these actions before the law and in the courts.

Why is it important to preserve the rule of law, even in times of crisis? Let me offer three reasons.

The first is practical rather than esoteric, yet no less important for that. It is the accepted fact that the rule of law is essential to economic health and political stability. Terror is bad for economic health and stability. But we should not forget that the rule of law is also essential. I recently attended a LAWASIA conference in Japan, where one of the topics for discussion was the importance of the rule of law and independent judicial institutions as indicators of prosperity. Speakers form the Asia Development Bank pointed out the correlation between per capita income and compliance with the core principles of the rule of law, between high rates of corruption of public officials and infant mortality. Is the commitment to the rule of law and strong judicial institutions the cause or the consequence of prosperity and security? There is still debate on this question. But the correlation is clear. People live better in countries where state officials are subject to law and accountable to the people; where power finds its source in legal rules; where courts offer fair, just and accessible forums to vindicate rights; where legal rules are public, general and predictable.

The second reason is that the rule of law is essential to maintaining the values we hold dear. Make no mistake: the war against terrorism is not just a war about being safe. It is a war about values. Terrorism is the ultimate denial of the rule of law. It strikes arbitrarily, in a discriminatory fashion, in complete denial of rights and accountability. To weaken the rule of law is to concede to the value system of terrorism. We become like them. They win and we lose.

We may promise that we will pick up the pieces and rebuild the rule of law when terrorism is defeated. But when will that be? This is not an enemy like those of past, that can be finally and decisively vanquished in a single battle, or even two or three. And when, if ever, we finally say terrorism is defeated, what will be left of the rule of law and its activating values – the fundamental human dignity of each person; the conviction that we are rational agents capable of reacting to fixed and announced rules; the belief that we are more than disposable pawns to be pushed and pulled at the whim of the powerful? To allow these values to be attenuated is to diminish ourselves as human actors and as human beings. And once diminished, can we be sure we will rise to the same heights again?

My third reason for urging that we not forget the importance of the rule of law and rights in our time of trouble is that the rule of law offers the best hope, in the long run, for world peace. The rule of law is increasingly accepted by diverse peoples throughout the world. As such, it constitutes a unifying idea that holds promise of a safer, more peaceful future. The rule of law is not materialism or modernism so decried by Osama Bin Laden. Nor does it require adherence to a particular vision of God, particular production structures, or the market. It is tolerant and promotes respect for all. A good case can be made that it represents, not only the Western way, but the best hope for a peaceful world order.

In summary, the rule of law is linked to economic growth and stability, represents the values which we hold most dear, and offers the best chance we have for peace in the world. We should bear its importance firmly in mind as we balance individual rights against the demands of security.

Let me conclude. I began by asking how we can reconcile the need for security in these post 9-11 days with the need to preserve the liberties upon which western democracies are premised. I suggested that beyond a few absolutes, we have no alternative but to engage in the difficult exercise of balancing what on their face appear as conflicting goods – security versus the rule of law and rights. The task of balancing falls to our legislatures, to our courts, and in the final analysis to each citizen. It is not easy; there are no simple recipes. Yet we are not without guides. Law, history and the modern reality of our world offer assistance. We must bear their lessons in mind as we make the choices we cannot avoid. We must remind ourselves of the importance of articulating what lies on each side of the balance and insisting on rational justification of our choice. We must remember that history teaches that in times of crisis fear and prejudice rise, and that spurred by these emotions, there is greater danger of going too far in the curtailment of liberties than of not going far enough. And we must not underestimate the importance of maintaining the rule of law and the rights and liberties it sustains – for economic progress and stability; for retaining the kind of world we wish to live in; and for the hope of peace. Finally, all of us, legislators, judges and every citizen, should remind ourselves of the advice of Judge Patel in the Korematsu case. We, each of us, must be vigilant in protecting our constitutional guarantees. We, each of us, must reject the idea that National security exempts governments from scrutiny and accountability. We, each of us, must reject the petty prejudices and antagonisms that unchecked may lead to actions we will regret in the fullness of time.

Remarks of the Right Honourable Beverley McLachlin, P.C.
Chief Justice of Canada
Ho Chi Minh City, Vietnam
November 28, 2003