If I were to ask any person who is sane and biologically mature about the concept of the rule of law, certainly the answer would be something like this, “when the game is organized by rules, not whims and desires of a referee; in other words, when the law is in plain language, clear, and leaves no room for interpretation to the extent that there is no way for anyone to affect the verdict. So, even if the ruler is inclined to punish people for political reasons, the law is a barrier because it is clear and judges have no personal power.”
So, judges have no inherent power and the law is clear, exactly like the rules of a soccer game where the judge, meaning, the referee, cannot affect the result of the game no matter how much subjective they may be and no matter how much they are paid. Rules are clear, and the game is fair.
Contrary to a tyranny or dictatorship, which allows the ruler do whatever they want – kill this, murder that, and imprison those who disagree with him, the rule of law guarantees the opposite: the power belongs to the law, not to the ruler or judges. This is perfect.
Hold on a sec! Judges have no power in Canada?! And here is the big, big problem. In Canada, judges have been given virtually unlimited power, which stems from the judicial instrument called discretionary power and from a large body of laws, which are unclear, leave room for interpretation and change frequently. Also, judges enjoy real executive and political power.
The response of the Canadian Government to this objection is that, “you don’t understand; our courts are independent.” If one pushes a little bit more and insists that, “what are the mechanisms to guarantee this so-called independence?” They would say, “come on, trust us, our judges don’t get orders from the politics. They are good.”
Very discreetly, they don’t deny that judges enjoy inherent power, but their job is to somehow justify their verdicts with law article or sections or clauses. It has to look good. Of course, the enormous body of laws gives judges plenty of choices. In the case of discretionary power, the court orders have to be justified by general beautiful words: safety, the best interest, human rights, women’s rights, national interest etc.
This is precisely the big lie and the big problem that the Canadian Government covers up.
I conclude with rhetorical questions:
By giving judges discretionary and subjective power, as in Canada’s case, doesn’t this contradict the very concept of the rule of law, again, RULE OF LAW, not judges.
If judges have power, why don’t we call the system then “the rule of judges?”
If the law, not judges, is above all, then there is no room for abuse; therefore, isn’t then “the judicial independence” redundant because the law is clear?
In fact, judicial independence is an instrument to allow judges have unlimited power, but “trust us, they are good guys.”
Sabri Lushi
