The Decline of Democracy and the Rule of Law:
How to Preserve the Rule of Law and Judicial Independence?

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

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The Trend Away From the Rule of Law

For most of my career as a judge, and probably for most of yours, we have lived in the expectation that the rule of law is strengthening in Canada and throughout the world. We believed that a strong, independent judiciary – the third branch of democratic government – was entrenched in Canada and increasingly accepted elsewhere. History was progressing in a linear fashion toward full acceptance of the rule of law as opposed to the rule of force. It was only a matter of time, it seemed, until all countries, everywhere, would enjoy justice as we conceived it.

We had every reason to hold these beliefs. The iron curtain had been rent, the Berlin Wall had fallen, and all across Eastern Europe independent courts and judges were being established. Throughout Africa, new constitutions guaranteed independent courts and basic individual and democratic liberties. The same was happening across Asia. In North Africa and the Middle East, the Arab Spring promised a shift from courts in the grip of the executive branch of government, to courts that were truly independent. These developments were supported by data from agencies like Freedom House, a U.S. based non-governmental organization (“NGO”) that researches democracy and human rights, which tracked consistent gains in political rights and civil liberties. Spring, even summer – these were the metaphors used to describe the advance of liberty and justice.

The pattern held through the first decade of the new millennium. Then, in 2011, signs began to appear of a slide back into metaphorical winter. Countries where it was thought democratic institutions, including independent courts, were taking hold, began, one after the other, to slide back toward authoritarian regimes – countries like Turkey, the Philippines, Venezuela, Hungary, Poland and Russia. The independence of courts was more and more challenged, both openly by removing judicial powers, and subversively, by ignoring or bypassing the courts. And there are fears the trend will only worsen.

Freedom House reported that in 2016, for the 11th straight year, more countries suffered declines in political rights and civil liberties than experienced gains. Its annual Freedom in the World report detailed gains by populist and nationalist forces in democratic states and brazen aggression by authoritarian powers in 2016. Things have not improved in 2017.

The authors of the Freedom House report sum it up this way:

All of these developments point to a growing danger that the international order of the past quarter-century – rooted in the principles of democracy, human rights, and the rule of law – will give way to a world in which individual leaders and nations pursue their own narrow interests without meaningful constraints, and without regard for the shared benefits of global peace, freedom, and prosperity. ^{Footnote 1}

The Impact of the Trend Away From the Rule of Law on the Courts

What has the decline of democracy and civil liberties as we are witnessing it got to do with courts? Everything. When political rights and civil liberties decline, we can be certain that this is accompanied by a decline in the independence and accessibility of the courts. Independent judges are the guarantors of political rights and civil liberties. So long as courts are accessible, independent and their orders are enforced, political rights and civil liberties are sustained. When the courts are inaccessible or constrained by the government and majoritarian forces, political rights and civil liberties decline. The connection is as simple as it is clear.

Worrisome cases where the judiciary is the target of more drastic measures to undermine or co-opt it are not hard to find. I offer a few examples.

Poland

• Since 2015, Poland is governed by a far right party that has sought to make significant changes to the country’s judiciary.
• In 2015, during what is known as the Polish Constitutional Court Crisis of 2015, President Duda refused to confirm the nomination of judges chosen by the previous government at the Constitutional Tribunal. The newly-elected party also changed the court’s decision-making power by changing the voting basis to a two-thirds majority vote and requiring a quorum of at least 13 of the 15 judges on the Constitutional Tribunal. The appointments and amendments caused domestic protests, and the legislative changes were denounced by the European Union representatives as a threat to the rule of law and to the human rights of Polish citizens. ^{Footnote 2}
• Last July, the Polish parliament voted on three reforms that had the potential to seriously affect judicial independence in the country. First, the nomination process for the presidents and vice-presidents of the common courts would now give a decisive role to the Minister of Justice. Second, the judges of the Supreme Court would retire, except those approved by the Minister of Justice, who would then appoint the new judges. Third, the National Council of the Judiciary, which safeguards the independence of courts and judges, would be put under the control of the parliament. Under considerable pressure from international organizations, the President vetoed the last two reforms.

Russia

• While noting the extensive judicial reforms under way in Russia since that country joined the Council of Europe in 1996, the Commissioner for Human Rights of the Council of Europe identified four main problems that remain: issues related to non-enforcement of court decisions, obstacles to the international system of human rights protection, insufficient judicial independence and excessive prosecutorial powers. ^{Footnote 3}
• A 2010 report of the International Commission of Jurists noted that the Russian judiciary was not in practice independent, or at least was not perceived to be so. It stated that “[l]ack of judicial independence, despite the Constitution’s recognition of the judiciary as a ‘self-dependent’ branch of state power, seems to be Russia’s ‘Punchinello’s secret’”. ^{Footnote 4}
• Judicial independence in Russia is compromised in the following ways ^{Footnote 5}:
  • The law fails to protect judges from undue influence by state or private interests.
  • The selection and appointment procedures are not transparent and are not free from abuse.
  • Tenure of judges is often not secured and judges can be dismissed for improper reasons.
  • Court presidents enjoy overly broad powers including a decisive role in promotion of judges, disciplinary proceedings and material benefits.
  • Bribery sometimes occurs.
  • Cases are often assigned to particular judges to achieve a needed result or reassigned when judges do not agree to rule in a way required from a judge.
  • The system pressures judges to show loyalty to state bodies or certain officials and to take into account political considerations.
• As a result, the people’s trust in the Russian judiciary is low. Transparency International, an international NGO aimed at combatting corruption, found that a Russian survey reported that 78% of respondents did not expect to find justice in the courts. ^{Footnote 6}

Ukraine

• Since gaining its independence in 1991, Ukraine has been engaged in the process of enhancing its security and developing its legislation, institutions, and practices in line with democratic standards.
• The ability of Ukraine’s courts to deliver fair justice and to protect the rights of citizens is a core precondition to strengthening its security and upholding democracy. The judiciary has had its fair share of troubles.
• In 2005-2006, the Parliament of Ukraine delayed appointing judges to the Constitutional Court, and as a result, the Court’s activities were blocked, for lack of quorum.
• The Constitutional Court of Ukraine has repeatedly attracted attacks from political parties, state agencies, various organizations and the media.
• During the 2014-2016 social and political crisis, the Parliament of Ukraine adopted a resolution criticizing the Constitutional Court for its decisions on constitutional amendment procedures and dismissing three judges for an alleged breach of their judicial oath.
• The Court has been ineffective at having its decisions implemented. Between 2006 and 2016, 11 of the 26 judgments rendered by the Court and directed at public powers were not followed.
• Because of the political instability of two years ago, some have raised the prospect of Ukraine becoming a “failed state”. ^{Footnote 7}

Turkey

• In Turkey, President Erdogan’s government has jailed judges in addition to journalists and opposition politicians in the last two years, and assumed sweeping new powers following a disputed referendum in April.

Venezuela

• Venezuela recently witnessed the alleged subversion of an independent constitutional judiciary. In the constitutional debates that have riven that country over the past year, the current Constitutional Court, the Supreme Tribunal of Justice, has sided with the incumbent regime virtually 100% of the time. People in the opposition have no confidence in the Court’s independence, much less that it will protect political rights, civil liberties or the Constitution.

This is what is happening in the world today. I do not wish to be pessimistic, but we need to face reality – speaking globally, the golden era when the rule of law was taken, if not for granted, then as a universal and laudable goal, is waning. We need to ask ourselves why this is happening and what we can do to stop it.

Surely this does not apply to Canada, you say, where the independence of the judiciary has deep roots and enjoys almost universal support. It is unlikely that measures to curtail the power of the courts like those in Poland, Turkey and Venezuela would ever be suggested here.

But judicial independence can be eroded little by little, by small, seemingly innocuous changes. In the time that remains to me, I would like to discuss two questions: (1) Why the decline in support for the rule of law and judicial independence? And (2) what can we do about it?

Question One: Why the Decline in Support for the Rule of Law and Judicial Independence?

Given that the post-World War II institutions of the rule of law and an independent judiciary have proven so important to human flourishing and to social and economic development, it is hard to understand why these institutions that have served the world so well are being rejected and undermined in some parts of the world. Some have suggested a few ideas.

The first is the idea that history is not linear, but reactive (in the Hegelian or Marxist sense), or cyclical, in the sense used by Howe and Strauss in The Fourth Turning ^{Footnote 8}. No value set or idea lasts forever. There are demographic reasons for this. Each generation is shaped by its particular experience. Young people today, people who have never known war and chaos and dictatorship, may not value the rule of law and the ability to obtain redress from an independent court. This may explain why younger people in established democracies may value the rule of law less.

Another explanation cites disappointed expectations. People in countries with no history of democracy and the rule of law may become disappointed that the new model of independent courts has not brought the gains they expected. All over the world, after the period of economic growth that accompanied the rise of the rule of law, economic gains have flattened. This, plus automation and other disruptive factors like climate change may leave people without jobs or hope. The current system isn’t working for them and the so-called rule of law has not transformed their world. The courts aren’t helping them. So they look elsewhere.

Yet another factor may be the increase of cultural and racial diversity. We in Canada by and large see diversity as a good thing. But diversity is just a fact. What matters is how you deal with it. In some parts of the world, the rise of the extreme right and the concomitant attraction of strongman rule is linked to resentment and xenophobia at the “other”. The law is always on the side of the minority, it may seem, leading to a backlash against human rights and courts.

Finally, some blame social media for the weakening of the democratic tradition in which we grew up. Social media reduce the technological advantage of academic and judicial elites, and with it the respect in which they are held. My truth is as valid as your truth. My verdict is as valid as the verdict of this or that judge. This phenomenon is abetted by the fact that social media, moreover, foster intellectual silos. People hit the chat rooms and links they like. Their fears and prejudices are thus reinforced. The voices of those who might challenge them are tuned out.

Critics of the rule of law and of courts like to paint the options in terms of “either-or” – either the rule of law and an independent judiciary or stability and economic progress. I believe the record of the seventy-plus years since the end of World War II disproves the “either-or” premise: as democracy, civil rights and the rule of law have grown, so have personal liberties, life satisfaction, life expectancy and wealth. We should ask ourselves what we can do to stop the decline in support for the rule of law and judicial independence.

Question Two: What can we do about it?

1. We can educate the public and the politicians about what judicial independence means and why it is vital to our democracy and our social well-being.

The best antidote to the causes of the slippage of the rule of law is probably education – education geared at helping people understand the broad sweep of history and the importance of the rule of law and constitutional democracy of which an independent judiciary is a vital part.

More concretely, individuals and governments that respect the rule of law must speak out and act out against its weakening, whether in their own country or in other countries. The move away from democracy can be reversed. In a recent piece in the National Post, Graeme Hamilton noted that “[e]lected populists who have subverted their country’s constitutional system – Erdogan, Hugo Chavez in Venezuela, Hungary’s Orban – have done so only after they were elected to a second term”. ^{Footnote 9} He suggested that it was “important to oppose their re-election before they solidify their powers”. ^{Footnote 10} We in Canada are fortunate to live in a country where public officials speak out against violations of the rule of law. Recently, for example, our foreign affairs minister has spoken out against the jailing of human rights defenders in Turkey, and denounced the arrest of Venezuelan opposition leaders. Similarly, officials in Germany and the European Union have criticized the Polish government for weakening the independence of the judiciary, threatening both the rule of law and the basis for cooperation within the European Union.

More specifically, what can we, as judges, do to ensure the continuance of the rule of law and the independence of the judiciary? We have our constitutional guarantees of security of tenure and remuneration. ^{Footnote 11} But as recent history shows, constitutional guarantees alone are not enough to preserve judicial independence.

It is true that judges cannot write op-ed columns, march in the streets or give speeches on political matters; that is for our citizens and elected politicians. But it does not follow that we can do nothing. Here are some of the things I suggest that we, as judges, can do to keep our constitutional guarantees of rule of law and judicial independence vibrant and strong.

The Canadian Judicial Council has prepared a kit on judicial independence to assist judges in speaking to community groups and schools. We can do this without getting drawn into partisan politics. Beyond this, we can strengthen understanding of the importance of the rule of law and judicial independence abroad by participating in judicial education in other countries. Many Canadian judges do this.

2. We can work to ensure that ordinary citizens can access the courts and that the courts give them prompt and efficacious results.

Access to justice is not a luxury, not a frill. It is essential to maintaining public confidence in the courts. If people do not have confidence in the courts, they will not support them. They will not care whether judges are independent or not. We are fortunate in Canada that our courts are not corrupt and dispense independent, impartial justice. But justice delayed is justice denied, and justice people cannot afford is no justice at all. We must speed up the delivery of justice and work with governments to improve access to justice.

3. We must encourage independence in court administration.

Most courts in Canada are forced to operate under the executive model of court administration, where provincial governments staff them and house them and provide the computers and supplies they require to do justice. This can result in starving courts of what they need to provide prompt and effective justice. It can also directly and indirectly impact on the perceived independence of decision making. At the Canadian Judicial Council, we have worked to support the adoption of models of court administration that enhance the power of chief justices to do what is necessary to provide justice in a timely and effective manner. We should note that the common law world has witnessed a shift in recent years toward greater autonomy in court administration. Recent reforms in England and Wales have increased judicial independence in the funding and management of courts through a partnership model of court administration. Whatever model of court administration adopted, the courts, through their chief justices, must be in charge of the administration of justice and must be given the resources to run the courts effectively.

4. We must insist on review of judicial conduct by other judges.

This, I believe, is a constitutional imperative. While the actual removal of a judge in Canada remains a prerogative of the Parliament, the judiciary must play the primary role in the actual review of allegations of misconduct. As the international experience demonstrates, when judges can been disciplined and undermined by politicians, judicial independence and public confidence in the judiciary are threatened.

5. We must have independence in judicial education.

In our fast-changing world, judges need initial and ongoing judicial education. But this must be provided by judicial organizations. Governments must support judicial education financially. But they must not dictate the content of the education judges receive. This would impair public confidence in the judiciary. A citizen involved in a lawsuit against the government might rightly fear that the judge was trained or educated in ways that favour the government’s interest, not hers.

6. We should support an appointment process that appoints judges on merit, and not political affiliation.

There are many different models of judicial appointment. What is essential to avoid is the reality or the perception that judges are appointed because they will do the bidding of the government or favour a particular political faction.

7. We must never allow ourselves to be co-opted by governments.

This goes without saying. Yet it is worth remembering that different regimes have tried and sometimes succeeded in reforming or influencing courts in ways that lead those courts to support them. The voting patterns of the Venezuelan constitutional court, mentioned earlier, are clear evidence of this. Resistance, however, is not always hopeless. In Pakistan, a decade ago, judges and the legal profession succeeded in opposing an attempt by then-President Musharraf to subvert the rule of law. President Musharraf had declared emergency rule to prevent the judges of the Supreme Court from pronouncing on the legality of his election. Facing opposition, he had the judges arrested, which sparked intense public protests. Fortunately, the judges were reinstated, and eventually, impeachment procedures were begun against Musharraf, who resigned from office in 2008.

Conclusion

Throughout the world, political rights, civil liberties and the rule of law recently are under siege. While Canada seems safe from these trends, we are not immune. The factors that have led to the decline of these values in other parts of the world are at play here. The danger is that even if we do not experience the sharp assaults on the rule of law and the independence of the judiciary that other countries are experiencing, we may witness a decline in these values over time, leaving the rule of law less vigorous, and leaving the judiciary less respected and less independent. It is up to us to do everything we can to ensure this does not happen.

Canada, in 2017, stands as a shining example of a nation based on the rule of law. Our judges and courts enjoy the highest respect at home and abroad. My hope is that we will be able to say this ten years from now, in 2027.

Remarks of the Right Honourable Beverley McLachlin, P.C.
Chief Justice of Canada
At Saskatchewan and Manitoba Courts of Appeal Joint Meeting
Saskatoon, Saskatchewan
September 28, 2017