The rule of law is even more important this year

  • Subtitle: Letter from Law Law Land
Written by  Posted Date: June 27, 2016
The rule of law is even more important this yearYou might remember Russian oil tycoon Mikhail Khodorkovsky, who was president and controlling shareholder of oil company Yukos and the wealthiest man in Russia until his arrest in 2003 and subsequent conviction and imprisonment for fraud and tax evasion. It all happened around the same time he sought to create (and fund) a new political party to challenge the rule of Vladimir Putin.

Seven years later, and conveniently on the eve of his eligibility for parole, a new trial was ordered on trumped-up charges of money laundering and embezzlement. He was found guilty again, even though the second conviction was based largely on the same facts as the first conviction.

After two trials and having served 10 years in prison, he was pardoned and released from jail a few weeks before the start of the Sochi Olympics, for public relations and propaganda purposes. (Well, it could’ve been worse. He could’ve been having tea laced with plutonium like Alexander Litvinenko was).

If you dig down deeper into the Khodorkovsky trials, you might also discover the name Natalya Vasilyeva. She was the former senior assistant to Moscow judge Viktor Danilkin, who presided over the first Khodorkovsky trial. Vasilyeva said that Danilkin received telephone instructions directly from his bosses replacing the sentence he was preparing with a tougher one.

“He had begun writing his sentence but it did not please his superiors,” Vasilyeva told Russia’s gazeta.ru newspaper. “As a result he received a different verdict which he was obliged to read out.

“Everyone in the judicial community understands perfectly that this is a rigged case, a fixed trial,” she later said.

Now I’m sure there are some who would say, “Well . . . that’s just how they do things in post-Soviet Russia; a country without a democratic tradition.” And, of course, if you’ve read Peter Pomerantsev’s excellent book about Russia, Nothing Is True and Everything Is Possible: The Surreal Heart of the New Russia, it’s a lot more complicated, corrupt, and deadly than simply a non-democratic tradition.

You need something called the rule of law where no judge or politician is above it. And given what’s going on in the United States these days, we have to be reminded from time to time about why the rule of law is important, and what is lost when politicians and judges sidestep it, attempt to influence it, mock it, or totally ignore it.

The presumptive Republican nominee for U.S. president, Donald Trump, has alleged that Judge Gonzalo Curiel, born in Indiana, and whose parents emigrated from Mexico in the 1940s, has an inherent conflict of interest because of his Mexican heritage and should not preside over a fraud lawsuit involving the defunct Trump University.

Trump explained: “I have a judge who is a hater of Donald Trump, a hater. . . . We’re building a wall. He’s a Mexican. . . . It’s an inherent conflict of interest.”

The interviewer corrected him: “But he’s not from Mexico. He’s from Indiana.”

Said Trump: “Mexican heritage.”

Rational and thoughtful people might ask why a successful federal prosecutor, who became a judge, must be disqualified simply because of the birthplace of his parents. Curiel was born in the U.S.A. A recent piece in the New York Times said he had been targeted for assassination by a Mexican drug cartel when he was a federal prosecutor in California, was required to live in hiding, and dealt with bigger and deadlier bullies than Trump.

According to Trump, a judge of Mexican heritage can’t hear a fraud case involving Trump because Trump wants a wall built between the U.S. and Mexico.

Does that mean that a defendant in another action where Trump is a plaintiff should be able to claim that American-born judges with German last names should be disqualified in any lawsuit where Trump is a plaintiff because Trump’s heritage is German, (it was originally Drumph), and the American judge with the German name is either biased or has a conflict of interest?

Does that mean judges of Asian heritage should be disqualified on matters where one of the litigants is Asian and there would be bias and conflict of interest?

And to return to Trump, should Trump be “pre-judged” in any allegation of sexual assault against him because his grandfather once owned a brothel in the Yukon?

The lesson here is that no one, not even Trump, should be discriminated against or prejudiced by virtue of their race, heritage, skin colour, religion, or sexual orientation. Neither should they be prejudged just because their grandfathers owned brothels or their fathers were racists.

Trump, by thumbing his nose at the rule of law, demonstrates how important it is. In short, it serves to protect society from tin-pot dictators like Trump (or as Samantha Bee calls him, “Casino Mussolini”).

I think the rule of law was best summarized by my colleague and friend Gordon Turriff in a number of speeches he gave around the world while he was president of the Law Society of British Columbia.

The rule of law, he says, is the keystone for order and prosperity in all our communities. It’s a shared commitment to propositions about how people can live together under arrangements that guarantee fairness in all respects, no matter how different those people might be.

In the Trump context, the most important of Turriff’s factors might well be these:
1. That law, not force, or even the power of a personality, should regulate our lives.
2. That no one, including government, is above the law, meaning that, unless expressly excepted, all rules bind all people to whom they could apply.
3. That everyone is equal before the law, meaning that all rules apply the same way to all people.
4. That judges must be impartial and independent, meaning they must not pre-judge the matters they must decide and that their judgments must result from thoughtful consideration only of the evidence led and arguments made before them.

If Trump can somehow force the disqualification of a judge because of the judge’s Mexican heritage, how can it be said that everyone is equal before the law and that all rules apply the same way to all people?

Taking that a step further, how “free” are you in a country where billionaires can somehow force the justice system into giving them a major procedural advantage in legal proceedings?

Admittedly, it’s a far cry from the “assassination by plutonium” of Alexander Litvinenko and the political show trial and imprisonment of Mikhail Khodorkovsky, but politicians who don’t respect the rule of law don’t respect any laws.

Of course, the Trump train wreck seems to get worse every day. On June 13, Trump revoked press credentials for the Washington Post, and therefore the Post’s access to Trump campaign events, effectively thumbing his nose at freedom of the press and the well-respected newspaper that uncovered Watergate.

The Post had apparently printed Trump’s words that had implied that President Barack Obama was somehow complicit in the Orlando mass shootings.

And if you’re still interested about the rule of law, you might think of reading The Rise and Fall of the Third Reich: A History of Nazi Germany by William Shirer this summer at the cottage (just read the “rise” stuff for now). Or, if it’s still on Netflix, Good Night, and Good Luck. Shot in glorious black and white and directed by George Clooney, it shows how CBS journalist Edward R. Murrow spoke truth to power against Joe McCarthy during the dark days of the U.S. senator’s witch hunts in the 1950s.

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Tony Wilson

Tony Wilson is a franchise, licensing, and intellectual property lawyer at Boughton in Vancouver and an adjunct professor at Simon Fraser University. He is a regular business law columnist with The Globe and Mail and other publications. He is also the author of Manage Your Online Reputation, a book written to guide individuals and businesses on how to monitor and protect their personal and corporate reputations on social media. The views expressed are strictly those of Tony Wilson and do not reflect the opinions of the Law Society of British Columbia, CBABC, or their respective members.

Column: Letter from Law Law Land

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