Cecily Zamora
The notion that no one is above the law is a fundamental principle of justice, implying that everyone, regardless of status or power, should be subject to the same laws and treated equally by the legal system. However, the belief that certain individuals or groups are above the law persists, often fueled by factors such as media influence, selective prosecution, and the abuse of power, influence, or status. This perception of being above the law can manifest in various contexts, including high-profile cases with biased media coverage and the selective enforcement of laws based on an individual's position or privilege. While the ideal of equality under the law remains a cornerstone of fair governance, the reality falls short, especially for marginalized groups such as women, who face persistent inequality and human rights abuses.
| Characteristics | Values |
|---|---|
| Definition | "Above the law" refers to the belief or assumption that certain individuals, groups, or entities are not subject to the same laws as everyone else. |
| Reasons | Power, influence, or status |
| Examples | Selective prosecution, media influence |
| Impact | Inequality, human rights abuses, violence, and trafficking |
| Solution | Independent judiciary, equal treatment, access to legal remedies, and transparency of law |
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What You'll Learn
Media influence and public opinion
The media plays a significant role in influencing public opinion and can even shape judicial decision-making. This influence is so powerful that it can have serious implications for democracy, with some arguing that media concentration laws need to be rethought to protect democratic values.
Media platforms have the ability to influence individual opinion formation and public discourse, which is referred to as "opinion power". This power is derived from their role as guardians of information flow, providing a forum for public debate and exchange of viewpoints. However, this influence can be manipulated, especially by interest groups or issue-specific organisations, to make their causes seem more significant than they are.
Public opinion is a crucial factor in judicial decision-making, as courts rely on public support to exercise their power. In hard cases, where the law does not clearly determine the outcome, judges have broader discretion, and the influence of extralegal factors, including public opinion and media influence, becomes more pronounced.
The impact of the media on public opinion and, subsequently, judicial decisions has been recognised, but the exact nature of this relationship is still debated. Some scholars argue that access to a variety of information sources and voices is necessary to sustain a healthy democracy and prevent undue influence from dominant actors in the media ecosystem. This highlights the importance of media pluralism and the need to address structural power relations within the media to ensure equal chances to communicate and participate in the democratic process.
Additionally, specific events or circumstances can trigger changes in public opinion, and the attention given to an issue by the mass media plays a significant role in forming and sustaining public opinion. For example, public opinion on the environment has been influenced by events such as the publication of "Silent Spring" in 1962, the Chernobyl accident in 1986, and more recently, by an Academy Award-winning documentary "An Inconvenient Truth" in 2006. These events, amplified by media coverage, can heighten awareness of underlying problems and shape public opinion, which in turn, can influence judicial decisions and policy changes.
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Selective prosecution and status
In jurisprudence, selective prosecution is a procedural defence that defendants may use to argue that they should not be held criminally accountable for breaking the law because the criminal justice system discriminated against them by deciding to prosecute. In other words, defendants argue that they are being prosecuted not because they are guilty of violating a law, but because of bias based on characteristics such as age, race, religion, sex, gender, or political alignment.
The defence of selective prosecution is rarely successful. For example, in the United States, the Supreme Court ruled in United States v. Armstrong (1996) that the Attorney General and United States Attorneys have broad discretion to enforce the country's criminal laws and that courts should presume they have properly discharged their duties unless there is clear evidence to the contrary. This means that the defendant must present strong evidence that they were targeted for prosecution based on discriminatory reasons.
To successfully claim selective prosecution, a defendant must first show that they have been selected for prosecution while others in similar situations who committed the same acts have not been prosecuted. Secondly, they must demonstrate that the discriminatory selection for prosecution was done in bad faith, based on impermissible considerations such as race, religion, or the desire to prevent the defendant from exercising their constitutional rights.
Courts may consider various factors when deciding whether there are legitimate prosecutorial factors that justify different decisions for each individual. These factors include each person's relative culpability, the strength of the evidence against a particular defendant, and the potential for a defendant's cooperation in exposing more criminal activity.
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Equality under the law for women
In a landmark ruling, the UK's top court has stated that the legal definition of a woman refers to biological sex. This decision was made in the context of determining whether a trans woman with a gender recognition certificate (GRC) is protected from discrimination as a woman under the UK's Equality Act. The court ruled that the Equality Act's definition of a woman does not include transgender women with GRCs. This decision has been welcomed by some as providing clarity and confidence for women and service providers, particularly in the context of single-sex services and spaces. However, it has also been met with concern by transgender rights campaigners who worry about potential discrimination.
This ruling has significant implications for transgender people in the United Kingdom and has prompted calls for the UK's laws on gender recognition to be rewritten. While the UK government has affirmed its support for the protection of single-sex spaces based on biological sex, it is important to note that the ruling does not change the protections afforded to transgender people under the Equality Act, including protection against discrimination and harassment.
The legal battle leading up to this decision began in Scotland in 2018 when a law was passed requiring half of the board members in all Scottish public organizations to be women. This law included transgender women as long as they possessed a GRC. A gender-critical feminist campaign group, For Women Scotland, challenged this law, arguing that it could impact single-sex services for women. They initially lost their case in the Scottish courts but later won in the UK Supreme Court.
While the UK's top court has ruled on the legal definition of a woman, the broader debate around gender identity and equality under the law for women, including transgender women, is ongoing. This decision highlights the complex nature of balancing the rights and protections of different groups in society and the need for legal clarity in this area. It remains to be seen what further implications and discussions this ruling will have on policy and public discourse surrounding gender identity and equality under the law for women in the UK.
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Human rights abuses by those in power
One example is the Israeli military's displacement of 90% of the Gaza population, or approximately 1.9 million people. Human Rights Watch found that the repeated evacuations, mass destruction, and failure to provide safe passage or access to basic necessities such as food, shelter, and medical care, constituted unlawful displacement and war crimes.
In Ethiopia, the government, along with Eritrean troops and militias, has been implicated in serious human rights violations and war crimes, including rape and sexual violence against civilians. The Ethiopian government has also exhibited indicators for future atrocities, such as ongoing conflict and instability, and a lack of accountability for past abuses.
The Russian Federation has been accused of employing repressive tools in Georgia's regions, including torture, kidnapping, arbitrary detention, and violations of the right to property and education.
Additionally, the State Department's annual human rights reports, which are meant to document abuses such as harsh prison conditions, government corruption, and restrictions on political participation, have been scaled back by the Trump administration. This has weakened the position of human rights defenders and signals a retreat from the United States' role as a global watchdog for human rights.
In Vietnam, the government has increasingly used Article 331 of the penal code to target individuals who speak out on issues such as religious freedom, land rights, indigenous rights, and government corruption. Similarly, Tunisia has been documented to rely on arbitrary detention and politically motivated prosecutions to silence critics. These abuses of power infringe on basic human rights and freedoms.
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Independent judiciary and conflict of interest
An independent judiciary is a cornerstone of a functional democracy. The judiciary, unlike other branches of government, does not command armies, control the purse strings, or pass legislation. Instead, it makes rulings that the public must believe came from competent, lawful, and independent judicial officers. Judicial misconduct can take many forms, including improper demeanour, failure to disqualify oneself when there is a conflict of interest, engaging in ex parte communication, and failure to execute judicial duties in a timely fashion. Behaviour outside the courtroom can also be an issue.
Public confidence in the judiciary is essential, and this confidence is built on the belief that judges are fair and impartial. Judicial conduct reviews are necessary to hold judges accountable for their behaviour and ensure they adhere to legal and ethical standards. However, this must be done without infringing on the independence of judicial decision-making. Implementing a system to protect the public from judicial misconduct is crucial, but it must also safeguard judges' rights to contest ethical charges.
Conflicts of interest are a significant concern in the judiciary. Judges must disqualify themselves from cases when they have a financial interest or a close personal relationship with a party involved. For example, more than 130 federal judges were exposed by The Wall Street Journal for improperly ruling on cases involving companies in which they had a financial stake. In state courts, potential conflicts of interest can arise due to campaign finance issues or when judges are related to powerful politicians.
To maintain the integrity of the judiciary, it is essential to address conflicts of interest and judicial misconduct effectively. Judges must be held to high ethical standards, and mechanisms must be in place to identify and rectify any breaches of these standards. Judicial conduct oversight bodies play a crucial role in this process, ensuring that judges act independently and impartially, maintaining the public's trust in the judiciary.
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Frequently asked questions
Being "above the law" means believing or assuming that certain individuals or groups are exempt from the laws that govern everyone else. This perception can arise due to selective prosecution, where individuals with power, influence, or status may receive more lenient treatment compared to others.
Media attention on high-profile cases can shape public opinion and sometimes lead to biased treatment. The intense scrutiny and public opinion formed through media coverage might result in unequal application of justice.
Allowing individuals or groups to be "above the law" undermines the principle of equality before the law. It leads to unequal treatment, where fundamental human rights may be violated, and justice is not applied fairly or consistently. It is crucial to hold everyone accountable to the same legal standards to ensure a just society.
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