Rule of law news: a year in review

Welcome to the Rule of Law Matters podcast. If you're wondering what the Rule of Law means and why it matters, this is the podcast for you. This is our season finale episode. Since September 2020, the Law Society of British Columbia has been bringing you exclusive interviews on how the rule of law impacts our everyday lives. Our mandate is to protect the public by regulating the practice of law but we introduced this podcast to generate dialogue and to raise awareness about the rule of law. Today's episode is a special edition. Our host Jon Festinger will have a conversation with the Law Society's Director of Policy Michael Lucas. They'll be looking back at the past year and recent events that demonstrate just how much the rule of law matters. Here's their discussion.         

Jon Festinger

I'm your host Jon Festinger. I'm a member of the Law Society's Rule of Law and Lawyer Independence Advisory Committee. I'm also a lawyer and I teach at UBC's Allard School of Law and the Thompson Rivers University Faculty of Law. Today, we're having a chat with Michael Lucas. Michael is the Law Society's Director of Policy and Planning. Michael, tell us a little about yourself.

Michael Lucas

Well certainly. And thanks very much, it's good to be, it's good to be involved in one of these podcasts. I, I'm a lawyer, I went to UBC Law School. I came into law maybe a little bit in a roundabout way. I was always very interested in geography and social studies and studied geography in my undergrad. By the time I was in third year, I realized that almost all the courses I was taking had some basis in statute law and I thought well maybe I should go into law school, maybe there's more future in that than geography.

So I went to law school and graduated in 1986 and started articling then, and I was very fortunate in my early years to work with some very senior lawyers who some of whom were involved in the Law Society, some of whom were involved in the Canadian Bar Association but all of whom were very strong ethicists and very attuned to the role of a lawyer in the society and what role the rule of law played in society. And there was, it instilled in me a really strong interest in the rule of law in society and how society was ordered by it. We used to do a lot of work for the Law Society and that eventually morphed into me going to work at the Law Society, first of all in discipline and professional conduct, but when an opportunity came up to move into the policy area, I jumped at it because I thought it would be very interesting to be developing policy at the Law Society and working on some of the issues. 

Jon Festinger

Speaking of the Law Society, you were part of the history of this podcast and how it started in your involvement, through your involvement in the Rule of Law and Lawyer Independence Advisory Committee. Can you talk a little bit about the evolution of that subcommittee and how we got to this podcast now that we are finishing our first season?

Michael Lucas

Well the Rule of Law Committee really started out as the Lawyer Independence and Self-Governance Committee about 20 years ago and that was shortly after the 9/11 attacks and governments were starting to pass some fairly draconian statutes putting various obligations on a lot of people including lawyers. The Proceeds of Crime Act that required lawyers to report suspicious transactions about clients was something of bit concern to a number of people and I'd say people like Jack Giles who wasn't a bencher at the time but he was a proponent of the Law Society trying to take some steps to deal with matters like this as well as David Gibbons. And they were very strong in creating a committee that looked into issues of lawyer independence and self-governance.

Gordon Turriff then became a bencher and took the mantle up and really pursued that mantle to ensure that the Law Society maintained a strong presence with the notion of what an independent lawyer meant in society and that included how that protected the rule of law in society. And they continued working in order to publish and publicize that the notion of what the rule of law meant and what the Law Society's role was in protecting it. That led to some outreach efforts such as the, we have a high school essay contest where we encourage high school students to write about the rule of law. We started a Law Society lecture on the rule of law and gradually our communications director, Jason Kuzminski, thought that perhaps we could branch out and try a podcast effort in order to reach an audience to talk about various issues of the rule of law and that's, I'd like to think that they've been very successful. I think we've reached a number of people and I think we've included some very interesting topics that have brought home to speak you know what the role of the rule of law is and how it's affected in society in various ways.

Jon Festinger

So Mike you've been around for the evolution of this podcast. You know the one editorial comment I'll make is that the podcast for me really evolved out of the materials that the subcommittee would see on, in our regular meetings about rule of law issues around the world. We would always get news stories that you and staff would gather up for us and we would see on a regular basis the dangers to the rule of law that were elsewhere and we often had discussions about those. And in my mind, it is those discussions that really turned into this podcast. So with that background, let's talk a little bit about what we covered in the past 12 episodes and what you think we've established about the need for the rule of law and about the rule of law itself.

Michael Lucas

Well there's certainly no shortage of examples and I think the podcasts have covered a great deal of ground. I go back to looking at Dean Dauvergne's analysis of the thick and the thin concept of the rule of law which sounds perhaps a little overly academic but I think that it's really important, I think there's, there's two very important aspects in the rule of law that need to be thought about. One is just the notion of fairness in the fact that everyone should be governed by the same laws whether it's the leader of a country or the head of a corporation or you know a person on the street; everyone should be governed by the same laws and that's sort of what I would call the thin version of the rule of law where the law applies to everyone. But of course if the law applies to everyone, you know you can have very unfair laws that are passed and that wouldn't really be fair in itself. So the other aspect of the rule of law I think is equity, that there's fairness in the laws that are passed so that there's sort of a higher standard that law attains to.

In Canada we're fortunate because a lot of those principles are enshrined in the Charter and the Charter can deal with legislation that's unfair. In other jurisdictions like England where there's no actual constitution, there are still aspects of fairness that allow judges to develop the law in a way that's going to be fairly interpreted for as many people as possible. And I think that those are both very important aspects of the rule of law and both of them should really exist in some form if you're going to have a society that's effectively governed by the rule of law.

Jon Festinger

So let me raise kind of one criticism that I've been reflecting on and I wonder if it applies and whether you think it applies. The rule of law is a very Western concept, you know we make it sound like it applies to all societies worldwide but does it really? At least it's a kind of thicker variation which tends to incorporate the biases of the prevailing culture, whoever is dominant in that culture. You know is the rule of law Western conceit or when you break it down, do you really believe it should apply to all cultures in all times?

Michael Lucas

I mean I like to think that the rule of law is a Western expression of sort of something that's common to humanity. I would like to think that humans, generally speaking, want to have fairness and equity in their life. So even if you live in China or if you live in Russia or if you live in Singapore or you know Zimbabwe, anywhere, you would like the people who govern you to recognize the same laws that they're applying to you so that there's some fairness. And you would like those laws not to be arbitrary, you would like, for some order in your society, you would like something to, to be fair so that the laws that are going to be applied equally, you hope, are going to also be fair laws that aren't going to be overly discriminatory of any specific group or person. Now, I don’t know, because I've never really lived in any of these cultures to know whether or not that's actually a mindset in those cultures but I'd like to think that at some basic level all humans want that sort of outcome in the laws that govern themselves.

And I think maybe sometimes what we have as the rule of law as a Western conceit is that it's just been expressed this way in the west, through Europe mostly, and then coming into North America. And the laws that have been the subject of the rule of law, so where the rule of law is applied, have been largely Western laws, Western European laws, and they've been applied in North America to Indigenous populations and there's probably a sense of unfairness in the sense that these laws are being imposed on populations who didn't ever necessarily accept them in the first place. But that's another aspect of the rule of law is that there are mechanisms to challenge the fairness of the application of those laws and those are being used. They're not used all the time and there are still unfair laws but I think sometimes the fact that the laws that we're trying to enforce are Western laws or European laws that brings the idea that the rule of law is a Western conceit in order to enforce the laws that have been brought in by settlers.

Jon Festinger

Well you know I've obviously thought about this a fair bit. I really agree with your breakdown because if you play the mind experiment of actually applying the constituent elements of the rule of law, not the broad you know Western-based notion, not the philosophical idea, but the actual elements of equality and fairness to any given situation in any given culture, it does seem to me they come out the same way each time. So I think that's part of it. And the other part of the magic, which you alluded to, I would phrase as the rule of law itself is subject to the rule of law. So let's go now to situations around the world and talk about the rule of law internationally and let's start with China and Hong Kong, a subject you and I have, over the years, talked about a lot.   

Michael Lucas

Well I mean what's happened in China and Hong Kong with the rule of law is amazing in the sense of how quickly and how completely the rule of law in Hong Kong was really overtaken. It's an example I think of a regime that has central authority taking its central authority in order to manage and I guess, for want of a better word, manipulate the law to come to a certain outcome. That's, that happened very quickly, it happened very completely. It happened quite violently in some ways and you know I think that we should all pay a fair amount of attention to what's gone on there.

You now have sort of a step, not only are laws, have laws been changed in a process that we probably wouldn't call democratic, but the enforcement of those laws has come about in a way that there's really little ability to challenge them. And that's taken down to the stages of the fact that a lawyer, who is representing a client who's challenging a law from the central authority, is likely to find themselves in as much trouble as their client for challenging the law. They could find themselves not able to practice law anymore or they could find themselves arrested. You know those are sort of the heavy handed ways of bringing about change in the rule of law; even though people may have seen it coming, I don’t know if anyone saw it coming that fast.

Jon Festinger

Well the speed and the completeness of the change was stunning. Also, there were promises made which it appears were not kept by the Chinese government and that seems not to be brought up with the passion and vociferousness that I would expect. And the last thing that I think is worthy of observation, especially for us lawyers, is that law and the rule of law itself was a big part of Hong Kong and how it operated and the showcase it was for the world. And now, none of that is present at all and I think you know the, pardon the use of wording here, but the currency of Hong Kong has dropped considerably and so many people have left, want to leave or are trying to and because who wants to live in an oppressive state without the rule of law. And just because we didn't think that would happen to Hong Kong, that was a failure, I would say, of the Western imagination.

Michael Lucas

Well I think you're right Jon. I mean one of the huge advantages of the rule of law is certainty in outcome, you know in transactions. There's laws that govern contracts, there's laws that govern relationships between people and companies. And if those are sort of thrown into the wind where you don’t know anymore whether or not a contract will be honored or you don't know anymore whether or not you would be able to claim damages if someone acted negligently or tortiously towards you. You know if the ability to claim depends on whether or not the government feels like allowing you to, you have really lost an awful lot of ability to conduct business or any human transaction efficiently. And Hong Kong has had the rule of law for a very long time. It has become a very successful economic powerhouse and it will be interesting to see what happens to it over the next few years.

Jon Festinger

Well and I'll just sort of give one practical comment from my real life world and that is if a client is doing something with Hong Kong now, I have to say to them there's no longer any difference between doing a transaction with Hong Kong and doing a transaction with China. And so you have to look at it through that lens and that's not necessarily a very happy lens for a lot of North American companies. Let's move on to Poland and Hungary and very odd relationships that have evolved between governments there and the judiciary which I think have just gotten stranger and stranger over the past number of years.

Michael Lucas

Yeah, Poland and Hungary have taken some very amazing I guess would be a good word for it steps with respect to their judiciary. I think the leadership in Poland in particular but Hungary to a certain degree as well, is suspicious of many of the judges who were appointed before the judge or the government came in to power. They view them as not likely to rule the way that the government wants them to rule, and the government solution for that was to lower the mandatory retirement age for all judges in Poland and give the executive a much greater role in appointing and disciplining judges. So a number of judges, who should have been sitting on the bench for probably another 10 or 15 years, suddenly found themselves mandatorily retired so they lost their tenure so their independence suddenly went out the window on that notion. And the judges who are now being appointed are really being vetted by the executive branch of government in Poland. I'm not exactly quite sure how it's done for the discipline but there's a much larger role in the executive branch for disciplining judges for a number of reasons including basically making decisions that the government doesn't agree with. That obviously very strongly affects the independence of the judiciary in Poland and takes away a very strong protection for the rule of law.

The European Union is, it's an organization that you know has its own problems from time to time, but it is actually acting on this one in order to try to bring some order back into Poland and Hungary on these steps with a view to taking steps to sanction Poland and Hungary through EU processes which has never been done before. This is the first time they've ever tried to use these processes. It doesn't really look like Poland and Hungary care very much and they're just blithely going on and continuing on their path. I think what we can expect to see there is probably further steps over the next year or two in Poland and Hungary to further attack institutions that stand up for the rule of law. I would expect to see lawyers at some point in time targeted somehow by the governments there for representing clients who the government wouldn't agree with or doesn't want to win so that the outcome will be, in a number of years, that trying to get your case heard before an independent judge from, argued by a lawyer whose duty is to the client will probably not happen. You'll probably have a judge who's been hired by the government and a lawyer who's been vetted by the government and the outcome will probably be what the government wants.

Jon Festinger

Well you know again, you get to levels of instability, especially in the context of economic unions, that you really wonder whether people and companies and entities will want to do business in an environment that doesn't have the predictability that the institutional aspects of the rule of law provide. You can get certainty you know if your deal is with the government but at that point, every deal is with the government and governments change and governments can be mercurial and governments can be overthrown. So you know again, you see the instability and you can look at it in terms of democracy and you can look at it in terms of kind of day-to-day life, but when you also add economics in, I think there's a kind of a three dimensional aspect to why the rule of law is important.

Let's move on to kind of one of the stranger sort of maybe the thing that you would think a country or any entity that purports itself to be within the rule of law would never do and that's Zimbabwe literally ordering lawyers around and telling them what cases they could take and not take.

Michael Lucas

Yeah, I mean Zimbabwe has not been a poster child for the rule of law for a number of years I would say. And but Zimbabwe has also gone through some government changes over the last five years or so that I think people were hoping would change the direction of the country. However, not that long ago, Zimbabwe ordered a prominent human rights lawyer not to represent a client. That client was a journalist who had been reporting on ministerial corruption. Obviously preventing a lawyer from taking a case on behalf of a client who's advancing ministerial corruption means that it's less likely that the ministerial corruption will come to the fore.

So you know I think what we find from this is that there does get to be a culture in government in some places where even when you're changing from one regime to another regime that's supposed to be better, old habits die hard. And this is I think an example of that. It's a shame, I mean I think there was a lot of hope that some changes would happen in Zimbabwe when Robert Mugabe was no longer leading the country but it seems that that hasn't taken place and Zimbabwe's falling back into some old habits that really affect the independent of the bar. There isn't a bar in Zimbabwe, there's a law society in Zimbabwe. It does its best to try to regulate the legal profession in an independent manner but obviously it's facing very different realities than we do in Canada.

Jon Festinger

Well, you know, words are cheap and there were promises made in the wake of Mugabe's demise about what the improvements would be and this is just so off the page and it also speaks to why we need an independent bar and why people should always have the choice of the lawyers they want. We think of that as so fundamental and so impossible to erase in an North American context so it is pretty meaningful to look around and realize that you know with a stroke of a pen completely arbitrary and in fact completely illogical things can happen like saying you can't be represented by a certain member of the bar. Like how can that even be to our minds yet it happened in Zimbabwe and it's happened to other places directly and indirectly.

Let's talk about the reality that even in countries that have or purport to have a very robust rule of law, the checks and balances aren't perfect and aren't immune from arbitrariness and let's talk about some of the perhaps surprising things that have happened in the US, the UK and then we'll end on Canada.                              

Michael Lucas

Well I mean there are some things that have been happening of course over the last year in the US and the UK. I mean the United States has had some very public difficulties over the last four years with respect to governance and the way that the judicial system operates not because I think the judicial system is operating badly there. I mean I think actually Mr. Trump found that a number of the judges that he appointed because he thought they'd do what he wanted them to do did what the law required them to do and he still maybe doesn't quite understand that that's what they were expected to do in the first place. But you know there have been concerns about the efforts of the past administration to direct institutions to take action or not take action in the interests of the administration as opposed to the public interest. So you know there were examples of directions or instructions not to prosecute certain people in the States over the last little, well last couple of years, and you know that's something

 I think you discussed with Mr. McPherson in the last go-round of this podcast is you know the prosecutor has to make a decision in the basis of the public interest as to whether or not there should be a prosecution, it's not at the direction of the president or the prime minister or the attorney general, it's in the direction of the public interest in the prosecutor's mind. And that's something that I think fell apart a little bit in the United States over the last while.

Jon Festinger

Yeah, and it was hugely comforting to hear Chris McPherson say with a certain amount of very real determination in his voice that no, he makes these calls and he makes them in the public interest and you know there are systems in place that protect his discretion as long as he's doing his job based on the public interest. Now the UK situation is a little bit different. It's, there's been a lot of lawyer baiting, for lack of a better term, maybe lawyer trolling going on by the UK government. So maybe tell us a little bit about that and walk us through it.

Michael Lucas

Well, and I think this comes back to the rule of law in the sense that if you're going to have a robust rule of law you have to have an independent legal profession. The government in England over the last little while has sort of taken to, as you say, baiting lawyers every now and then. They've taken opportunities at the executive level of the government to really condemn lawyers for basically doing their jobs.

There was an example where the Home Secretary criticized lawyers who defended migrants and she linked them directly with traffickers who help asylum seekers crossing the border. And I think the direct quote that, that was reported in the papers was that no doubt those who are well-rehearsed in how to play and profit from the broken system will lecture us on their grand theories about human rights, that those defending the broken system, the traffickers, the do-gooders, the lefty lawyers, the Labour Party, they are defending the indefensible. And you know that's taking a really unfair shot at somebody for doing their job. Sometimes people have rights that the government has actually given them through legislation that they exercise that maybe the government wishes they wouldn't. But that doesn't mean that the lawyer's doing a bad job by representing them to do it.

Jon Festinger

So let me ask you the kind of the core rule of law question here; so this is unfair, this was a cheap shot but the rule of law also protects speech and political speech. So was the rule of law breached or was this merely an attack on the rule of law? And this is sort of my example from earlier of how the rule of law is subject to the rule of law and that's maybe its greatest protection is that it's multi-layer. 

Michael Lucas

You know the government, a minister of the state can say what he or she wants to say, I mean they have a right of free speech, but I think the notion in my mind at least is the fact that ministers of the state shouldn’t be saying things that basically cast aspersions at independent agents who are in the justice system. And there's been some other examples in England. The media has taken a number of shots at judges in England. With the Brexit vote, the headline in The Daily Mirror I think the next day was that the judges were the enemies of the state for making the ruling that they did on the Brexit vote. And really, all the judges did was make a decision on the basis of what they interpreted the law to be that governed the vote.

Recently as well in the UK there have been a couple of prominent QCs who have suffered a lot of social media opprobrium for representing governments, and in this case it's foreign governments, because a lot of British QCs do act for governments in the Commonwealth where there's challenges to legislation and one of them, I can't remember which country it was now but it was, I think it was either a transgender or an abortion law that they were trying to uphold and the lawyer was acting for the government and suffered a great deal of, as I say, opprobrium through social media. She stood up to it, she said no, I mean I'm just representing my client, you don’t visit what my client's trying to do on me. I'm representing my client on the basis of instructions and on the basis of law.

There was another lawyer who was actually representing Hong Kong in some of the prosecutions on the people in some of the demonstrations and he was suffering a great deal through, as a matter of fact, I think he did resign from acting for Hong Kong because of it. There were some differences between the two cases but it's an example of the fact that sometimes I think sentiments and feelings over some pretty profound political issues where lawyers are involved in acting for clients rise up to the fore and the lawyer gets chastened for stepping in to represent someone. And if you have a judicial system that allows everyone legal representation then you really can't blame a lawyer for taking on the case.

As a matter of fact, in England there's sort of almost, well there's some sort of ethical requirement in a way that if you've got the competency to take on the brief you really have to take on the brief whether you agree with the client or not. And you know those are important protections for the rule of law and they're getting thrown a little bit under the bus in England because I think people are getting a little bit overzealous.

Jon Festinger

Well you know you point to lawyers you know speaking back and you know I agree with that point. I mean I think what the Home Secretary said it was inappropriate in attacking lawyers for doing their jobs. That said, it is different than what was done in Zimbabwe, the government didn't step in and say to the lawyers guess what, you can no longer take this case. So let's turn to Canada. Do we have any rule of law concerns in Canada?

Michael Lucas

Well yes, I mean there's always concerns. I mean I think that one of the ones most recently that sort of comes to mind is the SNC Lavalin affair. There you have an example of the executive of government, executive branch of legislature, of government rather, seemingly having put a considerable amount of pressure on the Attorney General to apply the law in a particular way, in a particular way that would benefit or favor a particular entity that the government really wanted to promote.

You know it's a little murky because you know the Attorney General does actually have some power under the statute and I guess you can say at one hand it's really what's wrong with the executive branch going to the Attorney General and saying you know we'd like you to consider this outcome. Looks like maybe it was a little bit more pronounced than that sort of approach. Certainly the Attorney General seems to have felt that it was and she probably did the, well she didn't resign but you know it probably would have been not inappropriate if she had decided to just resign at that point in time because the government was trying to do something perhaps that was trying to sway her exercise of discretion.

And that gets into what Chris McPherson was talking with you last episode is that you know where the discretion is given to one person, it's really not up to the Prime Minister to tell that person how to exercise their discretion. And if the Prime Minister or any other senior member of government tries to do that, you're violating the rule of law and I think that you know that's an example. There are a whole lot of problems with the SNC Lavalin matter but the rule of law issue is one of the foremost I think that comes out for me and is a concern because you would expect senior members of government to know not to do that and apparently they didn't.

Jon Festinger

You know as we started off talking about Hong Kong and just the speed of everything going so wrong and how quickly and easily the rule of law can be lost and so much that was good about that territory can be lost, well that, we're not immune in Canada and so there has to be vigilance on the government's part and if they, even if they don’t think they made a mistake and others do, that needs to be addressed in a way that reaffirms and re-strengthens the rule of law but let's move on to talk about the future and what's on the horizon. So here we are at the end of season one; what do you see coming on the horizon? Are there specific concerns, specific questions, specific vulnerabilities that you want to leave us with?

Michael Lucas

I think the first thing, and Mister Justice Crossin raised this with you in your podcast with him is the frailty of the rule of law and the frightening speed that it can disappear. And Hong Kong I think is the example that we used earlier but you know it doesn't, the rule of law requires protection and it's something that in the hands of someone who doesn't want it, can be got rid of very quickly.

We even see that in you know the United States in the last term. I mean there are a lot more checks and balances in the United States that prevented the dissipation of the rule of law in a mere four year period, but you could certainly see a pathway to losing quite a bit of the rule of law if some of those checks and balances weren't there or if there was another four years where the checks and balances were going to be strained.

I think that one of the other points that we need to keep in mind is that authoritarian rule will usually obliterate the rule of law but it's not just authoritarian states that you know we need to be worried about. And I think from that, what we really need to think about is that the rule of law, it can be lost I think by what I'll call you know good intentions. We had the example over the last 18 months or so of COVID and you know our government in BC really did some strong work to protect and deal with the issues that COVID raised. But even with that, with the good intentions that the government had, there were examples of the government using the emergency power to change legislation which the emergency power didn't allow them to do and the ombudsman you know brought that to their attention and criticized them for it. And you know in fairness to the government, the government accepted what the ombudsman was saying and there was work that was done on it but that's what I would call you know the risk to the rule of law by good intentions. I don’t think anyone was trying to intend to violate the rule of law there, it's just that they went ahead and did what they thought needed to be done without really thinking about what they were doing and how it affected the rule of law.

Jon Festinger

So what we're really coming down to, sort of as a theme for today, is the importance of education of the constituent elements of the rule of law for government, for all citizens, for lawyers, for judges and I suppose that's probably a reasonable note to end on since this podcast is really committed to that kind of education and maybe that's what we achieved best in the first year and that is just reaching out. So with that, I want to thank everybody for listening this season. That's a wrap as they say.

Season two of the Rule of Law Matters will launch in fall of 2021. We will be covering even more topics and we will make them as exciting and interesting and relevant as possible. We will try and show how the rule of law permeates so many aspects of our lives. We're going to try and talk about reconciliation, equity, diversity and inclusion, social justice, protests and a lot more. In the meantime, we welcome your suggestions or comments. Please email us at podcast@lsbc.org.

I really want to thank Michael Lucas for joining us today because he has been a pivotal part of creating this podcast and why we are here. I want to thank Vinnie Yuen for all of her incredibly hard work over the season. There is so much that depends on having a great producer and Vinnie is exactly that for this podcast. If you want to know anything more about the show, the rule of law, please do visit the Law Society's website at lawsociety.bc.ca. Please subscribe. Please leave us a review wherever you get your podcasts. This is Jon Festinger signing off for this season, see you next season.