Volume No. 2 Issue No. 49 - Wednesday August 20, 2008
The rule of Law Vs the Law of the Jungle (part 5)
 Gerald La Touche JP
Gerald La Touche on the left being sworn in as a London magistrate.
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Independence, failed states, emerging economies, and developed nations � where did these concepts come from, what do they mean, how are they determined? In the past four parts of this commentary celebrating Dominica�s 30th anniversary of independence, with the use of a few nations as examples, at the various levels of the post independence scale, I have tried to present a variety of scenarios.
All in an attempt to address the North Vs South divide: Why has post-independence development been so different for the nations of North America Vs those nations in South America?
I began with the exploration of Canada and the U.S.A in the North, Haiti, the Caribbean and South America in the South. And in trying to keep this analysis current I am every so often distracted by the inevitable relevant detour � which I am about to make again.
Before I continue in the America�s I must again make a very relevant detour to Asia. As I write, two countries that were granted independence from Britain on almost the same date, the 14th and 15th of August 1947 respectively, just celebrated their 61st independence anniversary.
These present the perfect scenario/basis for my current study. One is perceived to have emerged and the other is perceived to be heading towards �failed state status�. They are Pakistan, 14th and India 15th.
At this moment, as I write, India is strengthening its economy, strengthening its democracy and strengthening its borders. It is negotiating with China and Pakistan over disputed territories.
It is negotiating with the G8 (failed talks but still negotiating) over its economy and international trade rules. On the contrary, Pakistan, who at this moment is debating whether to impeach its president, has recorded rising inflation at 20%, it is fighting a territorial war with Afghanistan, and an internal war with extremist who want to turn it into an Islamic state ruled by Sharia law.
In his own words, in his resignation speech while defending himself against possible impeachment, President Musharraf of Pakistan said, �If I am impeached Pakistan will become a failed state.�
The president has decided that instead of risking the personal and national embarrassment of impeachment, he will do the honourable thing and resign.
Lest we forget: this is a president who came into office in a coup in 1999; who sacked a Chief Justice; who rounded up his political opponents and to prevent them from challenging him and participating in the election kept them under house arrest; and who opened fire (tear gas and rubber bullets) on unarmed judges and lawyers who took to the street to demand justice! President Musharraf�s resignation marks the end of an era, but still another failed decade, in Pakistan�s history.
So to go back to my opening paragraph sentence, �Independence, failed states, emerging economies, and developed nations � where did these concepts come from, what do they mean, how are they determined?�
We see India and Pakistan as very good representation of this paradigm. However, there is an origin to all of this, all be it one which is often over-cited when it comes to explaining why poor countries remain poor, and that is the �colonial syndrome�.
It is impossible to understand the totality of a nation�s current predicament or achievement without an understanding of its historical context. In the case of the independent, post-colonial nation, that would be an understanding of the �colonial effect� on a nation�s development.
Let us go back then to the colony which was America, before it became the United States of America. Contrary to the usual rhetoric surrounding the why and the how of American independence, there is one fundamental factor which led to the war for America�s independence. A �royal prerogative� which brought the first 13 States of the U.S.A. head to head with the British Crown.
The first 13 States to form the U.S.A. were not seeking independence from Britain! The war often hailed as the American War of Independence did not start out seeking independence.
American merchants were fed up of paying taxes to a British Parliament who did not represent them. While parliament kept raising the taxes on the colonies it denied them the right to vote in the British Parliament.
However, the British merchants in the Americas prided themselves as Englishmen. They were loyalist who loved their King and monarchy. They were not seeking to replace their King. They were not seeking independence from Britain. They were seeking representation in the British Parliament. Remember the phrase �no taxation without representation?�
On being denied a vote in the British Parliament the American merchants decided to set up their own parliament. But even at this stage they had no wish to replace the King. They would set up their own American parliament with the King of England as sovereign.
But this did not go down well in Britain. King George lll was furious. He branded the 13 States traitors. The states wrote to the King insisting that they were not seeking independence. They loved their King.
They were merely seeking to have their own parliament to represent their interest but with the King as sovereign. This did not appease King George lll. He branded them traitors and ordered that they be rounded up, arrested and imprisoned without trial. And this was the straw that broke the camel�s back.
Every English gentleman had a right to a trial, due process, under the law. �Habeas corpus� was the right of every English gentleman. The move by King George lll was interpreted by the Americans as their denial of habeas corpus, a right afforded to every Englishman.
They petitioned the King � that to deny them habeas corpus was a step to far, and when King George lll would not budge, the Americans went to war for �habeas corpus�. Interestingly, later in the U.S.A.�s history, habeas corpus would be suspended on various occasions to allow the State to detain �enemies� without trial.
The Civil War, World War ll, and the War on Terror, all paid witness to the suspension of habeas corpus.
Habeas corpus (ad subjiciendum) is Latin for "you may have the body" (subject to examination) - A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody.
Sir William Blackstone, who wrote his famous Commentaries on the Laws of England in the 18th Century, recorded the first use of habeas corpus in 1305. But other writs with the same effect were used in the 12th Century, so it appears to have preceded Magna Carta in 1215.
But what began as a weapon for the king and the courts became, as the political climate changed, protection for the individual against arbitrary detention by the state. It is thought to have been common law by the time of Magna Carta, which says in Article 39: "No freeman shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor will we send upon him except upon the lawful judgement of his peers or the law of the land."
The Americans went to war between 1775 and 1783, declaring independence in 1776.
I would therefore suggest and purport in my future papers that the individual rights before the state is an absolute and necessary precondition for national development.
Read part 1
Read part 2
Read part 3
Read part 4
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