Challenges faced by lawyers in lawmaking and interpretation
Discuss about the Administrative Law With Ethics.
A lawyer is faced with various ethical issues in the course of his/her employment. A lawyer is ethically challenged while making laws which are studded with challenges who makes rules or laws that need to be interpreted in the present day context of rights and wrong. Administrative Law concerns itself with moral dilemma where the variable needs to be weighed to come to a conclusion regarding the authenticity of any regulation. Administrative Law sensitizes a lawyer to ethical issues and the area of intersection of administrative law with ethics.
Ethics and law are intertwined and law cannot be understood in isolation without giving due credit to morality and ethical consideration attached to a law (Jacob, Decker & Lugg, 2016). In law enforcement, there are various ethical issues that occur and by giving due credibility to systematic enforcement, it is important that ethics is read in relation to law. This essay deals with the intersection of law and ethics and can be understood by analyzing a few landmark cases that have the potential of threatening human rights (Sorokin, 2017). These cases are landmark in the sense that they have shaped the future of human rights and have made ethics more enforceable by being precedence of strong value. In the case of Suresh v Minister of Citizenship, it was laid down that in cases where there is a threat to the life of a refugee, the individual’s rights need to be preserved and hence should not be transported to a country where the individual might face risks (Hudson, 2016). In the words of the Supreme Court, it was stated that the emphasis should be laid more on the human rights of the individuals and lesser emphasis should be attached to the concerns of national security or emergency. This is considered a landmark judgment because it laid down the principle that human rights have more value and that it shall not be compromised on any account (Bond, 2017). This has been a path breaking judgment because previous to this, concerns of state emergency, national security was given more primacy whereas after this case, human t-rights moved up the charts in priority (Forcese & Roach, 2018). With the case, came the legality of enforcement of the judgment in spirits and letters (Rankin 2015). The judgment has given wide scope to the enforcement of this judgment and the state has been left with wide scope to implement the same and also the state has enough discretion to reflect on the spirit of the judgment (Fox-Decent & Pless, 2017). This case has to be understood along with the case of Ahani v Canada. In both these cases, the rights of the refugees were discussed keeping in mind their human rights. The two refugees in the cases were Suresh and Ahani who were deemed terrorists by the state. Following their conviction, they were decided by the State under Section 53 of the Immigration Act to refoule refugees (Cerna, 2017). The State was given power under the Immigration Act to send the immigrants and refugees back to their own country, the country where they belong. In the cases of these two refugees, the Supreme Court reserved the judgment on the ground that if the refugees are sent back to the country of their nationality, they will face threat to their life and keeping the rights of these refugees in mind, the judgment was delivered (Morris, 2015). The case tried to balance the rights of the refugees in one hand and the preservation of national interest in one hand (Asimow, 2015). Another aspect of the case that is vital in the discussion is that the judgment was passed four months after the twin attacks on the World Trade Centre (McGarrity & Santow, 2017). The decision was agreed on between all the judges unanimously and there was no single dissenting view on this. The Canadian Supreme Court delivered the judgment preserving the rights of these refugees (Rosenbloom, 2018). This was followed by a few other judgments in the same light that gave more emphasis on human rights. The judgment came under severe scrutiny and the role of the judiciary was questioned. Though the Supreme Court is the sole judicial delivery body that is accountable for the judicial privileges that are granted to the people, the ground for scrutiny was separate. By allowing the refugees to stay back and not enter their state of nationality was a very well thought decision of the Supreme Court but the questions that arose were in the interest of the larger picture (Parpworth, 2016). The rights of the refugees are important but being the Supreme Court being the body of apex decision, was it right to exercise the special power (Elliott & Varuhas, 2017). By preserving the rights of the refugees, were the rights of all the citizens compromised was a question that the judiciary had to face. Was the judiciary justified to carry out the role of an independent, autonomous body in protecting the citizens, or it would have been more prudent to send them back. (Leyland & Anthony, 2016) Was the judiciary well under its power to protect the life of a few exposing the others to threat and harm is the question that brings about the relation between morals and law. The Judges took the path of security and liberty in coming to the specific judgment. In steadying their ground, the judges explained their judgment in the light of ethics (Sossin & Green, 2016).
Importance of considering morality and ethical considerations in law
On one hand, there is an ever increasing of terrorism claiming lives of innocents and reigning terror in the hearts of the people (Frese, 2015). The lives of thousands are at risk because terrorist do not spare anybody and lives are lost every day. These terrorists attack the innocents and kill them arbitrarily and it is the duty of the legislature and the judiciary to make sure that these terrorists is driven out of the country so that the citizens can live in peace (Jenkins, 2015). The Ministry, legislature and the judiciary need to rise up to the cause and protect the innocent lives that are lost at the hands of these terrorists. The judiciary has to employ legislative tools to penalize the terrorists and make sure they do not get to inflict torture and take innocent lives (Santana Galego et al., 2016). Keeping the terrorists and their gruesome activities on one hand and on another hand, the same judiciary has to exercise its powers to ensure that fundamental rights of the citizens are kept intact and preserved at any cost (Donnelly & Whelan, 2018). Though the terrorists are the ones who deserve no sympathy, on the other the refugees need the help and support of the state to live a safe and decent life without any threat. The judges have justified their stand on the grounds of preserving and up keeping the spirits of a democratic society (Jones, 2017). Liberty, justice, egalitarianism and rule of law are the basic principles that are inherent to a democratic society which need to be preserved at any cost and it is on the judiciary to make sure they are preserved. The judiciary has to exercise special skills and prudence to ensure that rule of law and natural justice prevails in the state (Hathaway, 2017). The judges in this condition are torn between saving the lives of a few and jeopardizing the security and safety of a larger citizen in the bigger picture. The Canadian Constitution enables the state to ensure that human rights are given primacy over anything that concerns national security (Clapham, 2015). At the heart of the Canadian Constitution lie the basic fundamental principles of human rights. Canada is a signatory to many human rights charter and regulations that are inherent to a civilized and democratic society (Crowley, 2015). The judges have come out in their defense to prove and validate their point by saying that it shall be a loss of democracy if the refugees are made to leave Canada and go to a country where their lives will be threatened and they will face a scare of death. The judiciary, being the protector of the rights of the citizens, along with being the guardian of the democratic society has to weigh both the options and come to a conclusion and justify their stance (Cole, 2017). The aim is to secure a country that is well balanced to secure the rights of the citizens as well as drive away terrorism. To do that, the judges are faced with a moral dilemma, that is, which should be given more primacy, the rights of a few or the rights of the entire population of the country. These both judgments have gone down in the history of Canada as being the landmark judgment that applied morality and stood at the crossroads of morality and justice. By choosing to deliver the judgments in case of Suresh and Ahani, the Supreme Court placed themselves in a moment of history (Martens, 2016).
Relationship between human rights, state emergency, and national security in cases of refugees
In the case of Suresh v Canada, Suresh was suspected to be a member of the LTTE, which is a terrorist outfit. He was assumed to be a terrorist because of his attachment with the World Tail Movement. The Minister was notified by Suresh that if he is deported to Sri Lanka, we would face severe criminal charges and that he will be subject to inhumane torture and when the Ministers did not budge in their decision, Suresh applied for Judicial Review and challenged his immigration to Sri Lanka on the ground that if he deported to Sri Lanka and if he is subject to torture, he would face a risk to his life and that was against the principles of human rights enshrined under Immigration Act. He challenged the deportation and the Minister’s conduct on the ground that his human rights were fundamental and that Canada was obligated to preserve them. Section 7 of Canadian Charter of Rights and Freedoms guarantees to all citizens of Canada that every citizen has the right to live with dignity and the Charter enables every citizen to a right to life, liberty and security of the person. If any person is deprived of a right to life, security and dignity, it shall be a violation of human rights and basic fundamental rights that is a necessity in the light of justice. Suresh also contended that if he deported to a country where he shall face threat to his life shall be a violation of the all the charters, agreements and regulations that Canada is a signatory to. In his submission to the Canadian Supreme Court, he had contended that the terms of terrorism as mentioned in the Immigration Act were not clear and were painted with ambiguity. As mentioned in sections 2(b) and 2(d) of the Charter which talks about freedom of expression and association would be violated if a person is deported to a country based merely on the terms of the Charter. Questioning the constitutionality of the Charter as well as the conduct of the Minister, Suresh had claimed that Minister owned him a duty of care and fairness and by not giving him a fair hearing, the Minister had breached that conduct of ethics and has also acted in violation of his duty (Howard Hassmann, 2018)
The Suresh and Ahani cases are read together to understand the wider implication of fairness and justice followed by the Canadian Supreme Court. In the case of Ahani it was assumed by the Canadian Intelligence Service that Ahani was a trained assassin and that he was a threat to the security of the state. Ahani was also accused of being a member of a terrorist outfit. The facts for consideration before the Supreme Court were identical in both the cases. In the case of Ahani, The International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture (CAT) were applied that prohibits the deportation of any individual knowing very well that the refugee shall be subject to torture and humiliation (Payne & Abouharb, 2016). Both the cases attracted political and judicial attention and both these led to the Supreme Court incorporating a new definition of torture. The CAT incorporated into the Immigration and Refugee Protection Act along with Article 1 of the Convention against the Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment which went ahead to understand torture and human degradation in a new light (Freeman, 2017).
Role of the judiciary in balancing the rights of refugees with the preservation of national interest
These cases brought to light the constitutional validity of human rights and how administrative law has to be applied to ensure there is no breach of fundamental rights of humans. These cases have tried to balance Canadian security and refugee’s rights to a safe and healthy life. The cases raise the level of accountability that is important in assessing human rights. After the contention of Suresh was admitted that the word danger was constitutionally ambiguous, the Canadian judiciary went ahead to include a clause which said that whenever it is seen that the term “danger to the security” of Canada has to read to mean an imminent danger that is so gravely threatening that the State is left with no other option but to deport the refugee (Portillo, 2017). That should be seen as a rare condition because placing reliance on the regulations that the rights of the individuals are paramount. The interpretation of the phrase “danger to the security of Canada” has to be seen with many flexibilities and no strict action should be taken because it is left to the proof of the State. If a refugee is deported to his state of nationality knowing very well that his life is at risk, that would be against the constitutional principles of Canada and do breach constitutional principles, it would be a violation of democracy. No deportation shall be initiated on hearsay or casual evidencing (Velikonja, 2017). It has to be done after following proper procedure and after ensuring that the threat is so grave that the security of the nation is at stake. The danger to security has to be substantiated through serious probe and no casual conjectures.
These two cases are based on two important pillars of administrative law, which are- Judicial Review, Standard of Review, Ministerial decisions and Procedural Fairness. The Minister in conducting trial, has to conform to the principles of fairness and should follow the proper steps that are needed in evaluating a case. In cases of deportation, it is incumbent on the Ministers to ensure a full process of evidence is undertaken and the Minister has to provide a substantial ground for coming to a specific conclusion in fixing the liability. The Minister has to present proper grounds on which he is basing his views and also has to substantiate his stance (McCorquodale, 2017). The threat as envisaged by the Minister has to be properly proved by the Minister while conducting the investigation. In the above mentioned cases, the Minister did not function up to his mark and did not exercise duty of care in conducting the investigation. This case poses a severe threat to the functioning of the Ministers and there shall be not much of a necessity in reviewing the decision of the Minister, the court has to adopt a different treatment on the deportation on the ground that the threat defined by the Minister is not well founded. The faith has to be placed mostly on the evidence collected by the Minister but it has to be done to ensure that no fundamental rights of the citizens are violated. Though the court has the discretion to interfere in matters of fundamental rights, it should not be done merely for the purpose of interference and it should be done to meet the ends of justice.
In understanding administrative law in the light of legislative functions, it is important to check that the law should not interfere with basic human rights. Administrative law places tremendous reliance on fairness and natural justice. The main aim of administrative law is to check the administration and the role of the administrators in executing their duties. Much of administrative law is seen to be dealing with execution of public function and how the execution should be in the light of fair procedure. The role of the government should include but not limit itself to only dealing with administrative functions but also to look at the enforceability and enhancement of the administrative function. The administrators, mostly, the public agents should create legal tools for proper implementation of legal frameworks and the Ministers should also be liable in cases when the regulations are not executed to ensure that human rights is violated. The realm of administrative law has to include human rights and no discrimination. Rule of law and fairness are two principles of administrative law because preservation of human rights should be the primary goal of ever legislature. Along with the governmental agencies, the judiciary has to also play the role of up keep of the human rights.
Baker V Canada is another landmark judgment that deals with Canadian Administrative law. This case, along with Suresh v Canada and Ahani v Canada, deal with the principles of procedural fairness and important and inalienable principles of human rights. This case is important because it established the rules regarding procedural fairness and laid down the ground under which judicial review should be sought where the administrative decisions seem to be faltering. The case of Baker v Canada was regarding illegal domicile and the role of Minister of Citizenship in dealing with the case of Baker, who was a domestic caretaker. Baker was an immigrant who was working as a domestic help. Baker was a Jamaican immigrant who was working illegally and had been living in Canada for 10 years without the interference of any one. Her illegal immigration came to light when she needed medical help. The Minister of Citizenship and Immigration decided that by virtue of being an illegal immigrant, Baker had to be deported to the country of her nationality. Baker was charged with illegal immigration and employment. The Minister of Citizenship and Immigration had come to the conclusion regarding the deportation of Baker under section 114(2) of the Immigration Act. The section had a clause of humanity and compassion. The section states that while interpreting the terms of the section, humanitarian and compassionate grounds needs to be established. An appeal was preferred against the decision of the Minister and the Supreme Court was faced with the daunting task of interpreting the actions and decision of the Minister on the ground of humanity. The Supreme Court had to decide the jurisdiction in allowing the appeal and also had to judge the stance iof the Ministers. The Court applied the principle of procedural fairness and also said that in its opinion, the best way to judge the compassionate and humanitarian approach of law, procedural fairness needs to be applied. The judges allowed the appeal on the ground of judicial review and procedural approach. The Supreme Court of Canada laid down the factors that should be vital in considering the appeal. The factors should include- the nature of the decision, the schemes that are pursuant to the body applying the rules, the essence the judgment shall hold, the expectations of the parties and the administrator’s choice to undergo any procedure they wish. The decision reached by L’heureux-Dube first analysed the substantive laws, that is section 83(1) of the Immigration Act and came to the conclusion that to reach a valid judgment, it was enough to decide the case on the grounds of administrative law. The judges were of the opinion that the issues could be resolved by applying administrative law. The party had contended that the Ministers had not followed proper procedure, that is, the Ministers did not give proper evidence and there was no oral interview conducted which is a prerequisite in such cases. Duty of fairness mandates that fair procedure needs to be followed in coming to a conclusion and that the Ministers need to follow just procedure in enabling that a person is an illegal immigrant and that he should be deported. All the grounds that were held to be vital in coming to the conclusion were answered in the light of procedural fairness and it was held that the greater procedural protection was necessary. Procedural fairness also includes in its ambit that there shall be no apprehension of bias, that is, the decision shall be made by a body that is not personally invested in the case and that the decision maker should be fair and not biased. To eliminate the apprehension of bias, it is essential that the decision maker is neutral and has no personal interest in the case. The Ministers in concluding the decision shall not be unreasonable and shall apply pragmatic and cognitive thought process.
Analysing the three cases in the light of intersection of legal ethics with administrative law at a substantive level is read and understood. All the three cases discussed in the present case deal with procedural law and how substantive law has to be interpreted in the light of ethics and morality to conclude that human rights should be placed at a higher pedestal than national security. All the above mentioned cases have laid the foundation of applying the principles of justice and fairness in substantive laws. There is a great need for substantive review and the laws should be seen in the light of uplifting human rights. The Supreme Court of Canada is praised worldwide for applying the laws of fairness and neutrality in cases of refugees and immigrants. The cases have dealt at length with questions of ethical dilemma and what is incumbent on the state to do in cases of such situations. The Supreme Court was faced with a robust dilemma and had to apply its prudence to come to a conclusion regarding the individual rights and national security. The court set a huge landmark by setting that human rights are more important and that national security comes secondary in comparison to the rights of the individuals. The Court also emphasised that the application of human rights principles should not jeopardize the national security and there shall be no conflict between the two principles.
In the above discussed cases, the Ministers of Citizenship had the duty to investigate the cases and come to a conclusion special attention has to be attracted to protection of human rights. The main principles of administrative law are that of procedural fairness and justifiability. In these cases, three issues were involved, that is, there were three conventions that were involved in the case that dealt with the rights of the refugees. The three conventions in issue are: Convention relating to the Status of Refugees- Article 33(1) of the Convention Relating to the Status of Refugees is a prohibiting clause that says that no person shall be deported back to his country if he has a threat to his life. No person shall be subject to threat and inhuman conditions and it is the responsibility of the state to make sure that the refugee’s freedom is not threatened.
Refugee Convention Article 33(2) is an exception to article 33(1) which says that if it is seen that the refugee is capable of inflicting harm to the society, then in light of the refugee’s ability to “cause damage to the security of the country”. In such cases, the person has to be deported because in the light of the security of the state, it is prudent that he is not allowed to stay in the state.
Torture Convention Article 3(1) of this convention state that no refugee shall be expelled from his state and shall be deported to another state where there is a potential of damage that can be incurred on the refugee.
This case invited the attention of the United National Commission on Human Rights which applauded the decision of the Supreme Court saying that the Court has taken the right stand in analysing ethics in connection with law and has substantiated its stance on the ground of meeting the needs of its refugees. In the present discussion, it is essential to understand the essentiality of the three judgments because they have reinstated that human rights should be preserved at every cost. All the principles of administrative law like fairness, natural justice, procedural fairness, judicial review have been taken into consideration and have been dealt with clear precision. The cases go ahead to prove the stance of the judges that in weighing law and ethics, the importance has to be attached to fundamental rights of the individuals. No authority should be acting in contravention of the principles of natural justice and high level of credibility and trust should be attached to the performance of the ministers. In the above mentioned cases, the Ministers of Immigration and Citizenship failed to carry out their duty of care and that lead to a miscarriage of justice which was later rectified by the Supreme Court. The Supreme Court has gone on record to say that it is morally obligated to preserve the rights of the citizens and being the guardian of the Constitution, the Supreme Court has to ensure that the democracy of the citizens are maintained and preserved. To avoid bias, the rule makers should be neutral and there shall be no discrimination. Rule of Law says that everyone should be treated equally in the eye of law and that there shall be no bias. These are the essential principles of administrative law that have been reinforced in the above mentioned cases that have changed the course of law. These are landmark judgments that bring to light the relation between ethics and administrative law.
References
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Reference
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