The rule of law



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THE RULE OF LAW


THE RULE OF LAW
Equality and the Law
The right to equality before the law, or equal protection of the law as it is often phrased, is fundamental to any just and democratic society. Whether rich or poor, ethnic majority or religious minority, political ally of the state or opponent--all are entitled to equal protection before the law.
The democratic state cannot guarantee that life will treat everyone equally, and it has no responsibility to do so. However, writes constitutional law expert John P. Frank, "Under no circumstances should the state impose additional inequalities; it should be required to deal evenly and equally with all of its people."
No one is above the law, which is, after all, the creation of the people, not something imposed upon them. The citizens of a democracy submit to the law because they recognize that, however indirectly, they are submitting to themselves as makers of the law. When laws are established by the people who then have to obey them, both law and democracy are served.


Due Process
In every society throughout history, Frank points out, those who administer the criminal justice system hold power with the potential for abuse and tyranny. In the name of the state, individuals have been imprisoned, 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.
Every state must have the power to maintain order and punish criminal acts, but the rules and procedures by which the state enforces its laws must be public and explicit, not secret, arbitrary, or subject to political manipulation by the state.
What are the essential requirements of due process of law in a democracy?
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.
No person shall be held under arrest without explicit, written charges that 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, under the doctrine known as habeas corpus, if the court finds that the charge is without justification or the arrest is invalid.
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.
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.
Persons cannot be compelled to be witnesses against themselves. This prohibition against involuntary self- incrimination must be absolute. As a corollary, the police 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 to use torture, threats, or other forms of abuse to obtain information, since the court will not allow such information to be placed into evidence at the time of trial.
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.
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.
Defendants may possess additional protections against coercive acts by the state. In the United States, for example, the accused have a right to a lawyer who represents them in all stages of a 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).
A common tactic of tyranny is to charge opponents of the government with treason. For this reason, the crime of treason must be carefully limited in definition so that it cannot be used as a weapon to stifle criticism of the government.
None of these restrictions means that the state lacks the necessary power to enforce the law and punish offenders. On the contrary, the criminal 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.
Judges may be either appointed or elected to office, and hold office for specified terms or for life. However they are chosen, it is vital that they be independent of the nation's political authority to ensure their impartiality. Judges cannot be removed for trivial or merely political reasons, but only for serious crimes or misdeeds--and then only through a formal procedure, such as impeachment (the bringing of charges) and trial in the legislature.



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