Canadian Lawyer

September 2010

The most widely read magazine for Canadian lawyers

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LEGA L E THI C S BY PHILIP SLAYTON It is the fundamental ethical obligation of every Canadian lawyer to promote and protect the rule of law. Getting back to basics answer must be, to protect and promote the rule of law. But isn't the "rule of law" one of those I vague concepts that means anything and everything to anybody? All of us, and the state itself, can surely commit to the idea without suffering any inconve- nience. Not so. Here is Tom Bingham's bril- liant and measured new book, The Rule of Law. Bingham is a retired English judge, but not just any retired judge. He has been master of the rolls, lord chief jus- tice, and senior law lord. With elegance and forcefulness, Bingham describes what the rule of law means, and why it is more important today than ever. t's good to get back to basics occa- sionally. What is a lawyer's funda- mental ethical obligation? Surely the Let me pick out three or four points he makes, from among many, that sug- gest some of the ethical responsibilities of the modern lawyer. A recurring theme in Bingham's book is the limits imposed on the state by adherence to the rule of law. For ex- ample, torture is never acceptable, no matter what the circumstances. Bing- ham writes: "There are some practices so abhorrent as not to be tolerable, even when the safety of the state is said to be at risk, even where the price of restraint is that a guilty man may walk free. There are some things which even the supreme power in the state should not be allowed to do, ever." A related point is the sweep of ha- beas corpus. Bingham picks the United Kingdom's Habeas Corpus Amendment 24 SEPTEMBER 2010 www. C ANADIAN Law ye rmag.com Act of 1679 as a milestone on the way to the rule of law. King Charles II's chief minister was in the habit of dispatch- ing prisoners to distant parts of the U.K., where the writ of habeas corpus did not run. This meant prisoners were unable to challenge the lawfulness of their detention, and that, of course, was the whole point. The 1679 amendment act stopped this abuse. Now we have the United States resorting to torture, something "the supreme power in the state should not be allowed to do, ever." Now the U.S. — at Guantanamo Bay where Canadian citizen Omar Khadr is detained — is exactly emulating Charles II's approach to habeas corpus of more than three centuries ago. These are bla- tant breaches of the rule of law. The fundamental ethical obligation of DARCY MUENCHRATH

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