Democracy today

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Democracy today

19 Jun 2010

This panel discussion looks at the tensions between the Rule of Law and democracy in Britain, Europe and South East Asia. Examples include the effects of 9/11 on lawmaking in Germany, wearing religious attire in France and the complexities of gaming law in Malaysia.

Professor Paul Craig focuses on the many forms of tension between the rule of law and democracy and the way in which conceptions of deference/respect/according appropriate weight have been used by the judiciary within the Human Rights Act 1998 as a means of maintaining judicial control, while at the same time taking account of the views of the initial decision-maker, whether this be the legislature or the executive. The analysis also reflects on the ways in which other courts, such as the European Court of Justice, achieve similar ends, albeit by different juridical doctrines.

RIOVG Dirk Maresch explains that German Rule of Law is not debated as it is enshrined in the federal constitution of 1949 which contains a declaration of fundamental rights such as human dignity, the right to life, freedom of the person, of faith and conscience, of expression, movement and others.

The Hon Mr Justice Bokhary describes Hong Kong's democracy as evolving and far from fully realised. He believes that where the executive, never the least dangerous branch of government, controls the legislature and is determined to maintain an inroad into fundamentals, no declaration of incompatibility would be effective. And even in fully evolved democracies there have been indications by judges that there can be circumstances in which the courts might revisit the common law’s acceptance of absolute parliamentary supremacy.

Jean-Marc Sauvé begins by expressing the strong need for fruitful dialogue between the common law model and the civil law model which is used in France. Sauvé then goes on to describe the workings and bodies of the French legal system and its history. He describes the significant changes that have been witnessed since the French Revolution, founded upon Rousseau’s concept of general will. These constitutional changes have granted judges a more proactive role in individual cases by allowing them to primarily use Case Law. He also describes further safeguards which have been made to ensure the freedoms and civil liberties of individuals of the French citizenry.

Datuk Justice James Foong begins by saying today's democracy is viewed as a handy and indispensable weapon for use against a concentration of unaccountable power and their obnoxious effects. He outlines several pieces of legislation such as the Sedition Act (1948), the Internal Securities Act and its various enactments to combat terrorism.