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New Year- Old Traditions.

January 12th, 2015 | Posted by admin in Legal reflections - (0 Comments)

As the world warmly and enthusiastically welcomed in 2015, and the start of a new year, with new hopes and challenges, some had a more dramatic start to 2015 than others: namely, over in Russia, opposition blogger and Kremlin critic Alexey Navalny. Mr Navalny and his brother Oleg Navalny had previously been found guilty in for embezzling and misappropriating nearly $500,000 of state owned timber a few years earlier- in what Mr Navalny and his supporters claim were fabricated charges. A long-time critic of President Putin and the Russian government, Mr Navalny has in previous years been the architect of anti-Kremlin street protests, and has long campaigned (quite vocally) against government corruption. The beginning of January saw the Navalny brothers being sentenced for the corruption charges. Both were fined heavily, with Alexey Navalny being given a three and half years suspended sentence- and Oleg Navalny been given a three and half years jail term.

Some supporters gathered shortly after, to protest against the severity of the politically motivated sentences (with many also considering that the severity of Oleg Navalny’s sentence was merely a ploy to get to Alexey Navalny). They were joined by a surprise visitor; Alexey Navalny himself. After being returned home, Mr Navalny had promptly and very openly returned to central Moscow to protest against his own sentence. He was equally promptly arrested, and returned home under house arrest. Many fear that the protest in Manezhnaya Square is in itself illegal, as the organisers did not have the time to apply for permission to hold the rally- necessary under Russian law. Once again, President Putin and the Kremlin are seemingly (and very overtly) seeking to crush all form of opposition.

In contrast to Russia, political parties and politicians in the United Kingdom welcome opposition. A vocal opposition is as important as the government of the day. Protesters, opposition group leaders, pressure groups, and similar are very much part of the British political landscape- and are welcomed. Indeed, in an open democracy, such opposition is absolutely necessary. All points of view need to have a voice; critics of the government need to be heard, and their message (even if distasteful) needs to be put out- in an open democracy.

To that end, the complicated and often archaic system and traditions that make up the British legal system safeguard and protect that voice of protest, that opposing point of view. Quite often those in power do not heed that voice of protest, or often turn a blind eye to the will of the people (such as the opposition to the Iraq war); however, that voice of protest is expressed. That voice of protest is not repressed, and those who oppose the government are not arrested on trumped up charges, and sentenced after show trials (such as in the former USSR, or modern China).

The law protects that voice of opposition. The rule of law also serves to protect and uphold certain freedoms- such as the freedom of speech, and expression, and a free and independent press. As tragic as the recent shootings in France at the offices of Charlie Hebdo were, that attack just shows how important that freedom of expression is. Similarly to the voice of opposition, the law serves to protect and uphold such freedoms and rights.

That voice of opposition, the opinions voiced so vocally, often comes, surprisingly and most vocally, from the judges themselves. Over in Russia, many activists have been arrested, and tried. In most cases, their trials have been not fully open or impartial. Quite often, there is some suspicion that the Russian judges might have been influenced by more than the mere facts of the case and the code of Russian law. In the UK, by contrast, the judiciary has always been fiercely independent of Parliament.

For many centuries, the British judiciary has fought to preserve their independence, and their right to call the government to account- and indeed to criticise the government, or to expose and deal with failings of the government. Students of constitutional law will be able to reel off many cases where judges have called Parliament to account, and brought Parliament within the rule of law. Lord Diplock and other exponents of judicial review, Lady Hale’s often subtle criticisms, the much loved Lord Denning, and very recently Sir James Munby’s wrath at the state of the Family Division are but some examples of this fine legal tradition.

The judges often end up examining the actions of government, and calling ministers and MP’s to account. Quite often, the judges have to bring Parliament back into the rule of law, an advise government that their actions- or proposed Acts of Parliament- are illegal. Senior judges have the unenviable task of ensuring that legislation, regulations and Ministerial policies are within the law, either UK law, EU law, or international law (such as UN resolutions and conventions).

Under the Russian constitution and legal code, it is similar for the Russian judiciary. However, it is evident that the Russian judiciary might not be as impartial and independent as they should be; either that, or their application of the law in some cases (such as regarding opponents to the Kremlin) is overly harsh. As regards calling the Kremlin and the Duma (Russian parliament) to account- once again, it seems as if there might be limitations on that particular responsibility, given recent events.

Alternatively, perhaps the Duma and the Kremlin are simply not listening to the judges informing them as regards the rule of law. After all, it is not as if the British government is a paragon of virtue in that regard either. Quite often, the considered legal opinion of senior British judges has similarly fallen on deaf ears in Westminster (once again, the Iraq war serves as a good example).

Be it 1215, or 2015, be it Moscow or London- democratic governments, although held to account by the judiciary and the rule of law, often seem to have proud tradition of acting contrary to the very laws and rules that they themselves create and enact.