Ukraine the front line in battle for rule of law

Chris Merritt                 24 February 2022

Published in the Australian Newspaper

As Ukraine faces off against Russia, keep in mind that this is just one part of a growing struggle to defend the rule of law – an idea that lies at the heart of liberal democracy.

This idea is under attack not just in eastern Europe, but right here in Australia.

The fact that Ukraine, a former Soviet republic, is on the front line should surprise nobody. Ukrainians know what it is like to live without rights.

Whatever happens in the weeks ahead, always remember that Ukraine is much more than a far away country of which we know little. These people rejected their authoritarian past and now stand alone on the field of combat, risking annihilation to secure the freedoms that flow from the rule of law.

Those in this country who take those freedoms for granted – or choose to chip away at them – should measure their actions and attitudes against the example of Ukraine.

So is their defiance worth it?

At its heart, the rule of law is not simply about following rules. It is a collection of principles that prevent the arbitrary use of power – something that is anathema to authoritarians.

By turning west, the Ukrainians have chosen a path that leads to democratic law making, independent courts and – most importantly – freedom to use those courts to check the power not just of governments but of the courts themselves.

This doctrine means those in power are just like the rest of us – we are all subject to the law but gain the protection of the law.

Prime ministers and presidents might rule, but they can only do so according to law. Ordinary people, however unpopular, enjoy a presumption of innocence until an independent court rules otherwise – a priceless safeguard against mob rule.

Ukraine is not the only front in this battle. Another struggle is raging just across the border in Poland, which is having difficulty shaking off its authoritarian past.

But Poland, as part of the European Union, is now subject to the jurisdiction of the European Court of Justice. And that court has just strengthened the hand of those Poles who have been trying to protect the independence of a judiciary that has been under attack from the ruling Law and Justice Party.

On February 16, the European Court rejected a challenge from Poland and Hungary to an EU regulation that punishes violations of the rule of law by withholding funds. The court’s logic was sound: if money from the EU is not protected by the rule of law it can more easily go astray.

Poland, supported by Hungary, was pitted against the European Parliament and the Council of the European Union. the judgment is a powerful defence of the rule of law. It says:

“The concept of ‘the rule of law’ requires a system of certain and foreseeable law, where everyone has the right to be treated by all decision-makers with dignity, equality and rationality and in accordance with the laws, and to have the opportunity to challenge decisions before independent and impartial courts through fair procedures.”

That ruling – and the struggle to defend the Polish judiciary – is the subject of a wide-ranging discussion with legal academic Martin Krygier that appears on the website of the Rule of Law Education Centre.  Click here to watch the interview.

It provides a timely benchmark for this country, where the presumption of innocence and the right to a fair trial have long been under attack in the most populous state.

Those in doubt should consider submissions made on February 7 by Geoffrey Robertson QC to the United Nations human rights committee.

That committee is examining the appalling treatment of Sydney businessman Charif Kazal at the hands of the NSW Independent Commission Against Corruption.

If Robertson’s assessment is correct, this country has subjected Kazal to a procedure at ICAC that falls short of the standards required by international law.

His submission, on behalf of Kazal, says the federal government has responded to Kazal’s complaint to the UN with a submission of its own that “quite rightly acknowledges that the complainant’s ‘life and reputation’ have been ‘unfairly damaged’ and that reforms are required to ‘address shortcomings in state integrity bodies’.”

Robertson writes that Kazal has never been convicted or even charged with an offence. Despite this, ICAC published a report in which it concluded he ‘‘could’’ have committed a criminal offence – which Robertson describes as a “speculative executive finding”.

He writes that the proper procedures, when a state organ suspects corrupt activities, is to charge people with criminal offences and conduct a fair trial in accordance with the rights outlined in Article 14 of the International Covenant on Civil and Political Rights.

ICAC, Robertson writes, “constitutes a form of ‘show trial’ with all the trappings of a determination by a judge after examination of witnesses, but without the basic safeguards of pre-trial inquiry, burden of proof, trial by jury, right of appeal, and so on. Unless the Covenant extends to such spectacle, it will be unable to condemn such gross human rights abuses as the Soviet show trials of the 1930s which are universally considered to be gross breaches of human rights”.

He writes that the ICAC Act, which permits findings to be based on whether conduct ‘‘could’’ amount to criminal conduct, fails to uphold the presumption of innocence and in fact does the opposite: it presumes that the targets of its investigation are corrupt and makes findings on this basis.

After the Ukraine example, this country needs to stare down its own authoritarians.