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Lawyers working in the public interest

Lawyers working in the public interest

Failure of checks and balances

If you weren’t aware of it before, the last few months have given many a new understanding of lawyers working in the public interest. The reality is that working for the public interest is common for tens of thousands lawyers around the world for much or most of their work day. But the Trump administration has brought to the public attention the importance of public interest advocacy.

A quick discussion of politics and history are required as a background to this post.

We often speak of checks and balances to our system of democracy. The idea is that if you allow too much concentration of power in the hands of the Government, the Government will develop into a tyranny. To control the concentration of power we have elections, multi-layered government such as a parliament and a senate, question period where the Government faces questions from opposition parliamentarians who are protected by privilege. We also have freedom of the press. And we have, as a final resort in most instances, the courts.

These days many people haven’t the time or interest to pay attention to the threats to their democracy. The steam pressure is currently near maximum

Checks and balances

When most of us learned about these structures in school it came with an arrogant subtext, the suggestion that this was some sort of impenetrable system free from falling into tyranny and corruption. The idea was that the checks and balances of the system would always keep things from blowing apart. It was suggested that our system is morally better than those bad systems in far-away foreign countries. The US and Canada were lumped together as examples of countries that simply can’t fall into tyranny because the checks and balances are simply so rigorous.

Not so.

Thinking about this now it’s just another example of western arrogance. And if you disagree with me on that point, look south because the normal checks and balances are not having the expected effect in the United States. At least not so far.

The election of Donald Trump was a result of poor decisions on behalf of the democrats and a rigged election. The Russians managed to publish enough misinformation and lies in a planned campaign that they controlled the outcome. Their basically incompetent agent, Donald Trump, won because the Russians made it happen.

Very quickly we all discovered that the Office of the President came with dictatorial power in the form of executive orders. It turns out that the President can sign executive orders and US government officials will set out to enforce them. Crazy. What can stop a deranged president?

It turns out that in the US the Republicans are so enamoured with holding their little bit of power that few will take issue with a Republican dictator. So their senate and congress are essentially meaningless. What about the media?

What about the media?

Journalists who hold governments to account are akin to saints in my view. But these days they’ve lost most of their influence. Blame the internet. These days people get their news from free sites which provide little by way of support for investigative journalism. Moreover, editorials, once a powerful tool in controlling bad government, are now rarely read and even more infrequently acted upon. News outlets and journalists are now struggling to survive and one of the few supports they have come from government ads and the promise of a future government job in communications.

Traditional media, once our protector from bad government, have all but laid down their sword and capitulated. So what remains?

Lawyers and the Courts

Two executive orders were passed by Trump to ban entry of people on the basis of religion. In both case, lawyers working in the public interest stepped forward to help individuals and challenge the bans.

We in our office were almost moved to tears to see our American colleagues setting up in airports, drafting documents on the fly, filing applications on short notice and forcing the matter before the courts. Public interest advocates did their job as we would hope they would to protect rights under their constitution. It was inspiring. In both cases the orders were struck down within days on applications for interlocutory relief.

Protecting the system

So far the lawyers suing the US Government have had the most success in protecting their democracy. It’s a testament to lawyers. But this isn’t just a USA thing. The Senate, media and opposition failed to stand up in the face of numerous unconstitutional laws passed by our quasi-totalitarian former PM, Stephen Harper. If took courageous lawyers such as North Vancouver’s David Fai to get the matters into court and ultimately to persuade the court that this was the time for the court to step in as a check on the government.

When lawyers step up

We’re the last line of defence when it comes to a check on tyranny. We may not be able to stop it, but lawyers working in the public interest often have the best chance to diminish the damage caused by a tyrannical government. In the end, however, we’re the next barrier to fall. Unless plenty of lawyers hand in hand with the courts step up to stop tyrannical bevahiour, our democracies are perilously close to failing.

The photo above

One particular historic problem with steam engines was controlling the pressure in the boiler and speed of the flywheel. There were two checks and balances in place on most steam engines, the first being a pressure relief valve that would allow steam to escape if the pressure neared the tolerance for the boiler. The second was a governor which was a valve that would open to release pressure if the flywheel was spinning too quickly.

From time to time there were boiler explosions when the pressure check valve failed or a flywheel would explode, usually due to a failed speed governor.

In either case, failure of these checks and balances were catastrophic. Boiler explosions killed may people. Flywheel explosions destroyed buildings, wounded and killed people. There were lengthy engineering texts written on these subjects but accidents still happened. There was a series of law reports at one point that was devoted to these types of engineering failures. The main reason we don’t know about this in our era is because steam as a power source became nearly obsolete. But for decades many people had a clear example of the failure of checks and balances. They were attuned to the danger.

These days many people haven’t the time or interest to pay attention to the threats to their democracy. The steam pressure is currently near maximum and the governor has been removed. Prepare for a wild, unpleasant ride.

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1 Comment

  • Robert Pestes
    Reply April 6, 2017 at 9:03 am

    I agree with your perspective. Too many citizens just blindly trust that “they” will look after our well being and that “the government” won’t let anything bad happen to our country. Democratic government is a force for good, as long as the natural human tendency to concentrate power is kept in check, and right now it seems we only have lawyers and the courts performing this essential function. B.C.’s IRP fiasco is only the beginning of the erosion of our system of checks and balances I fear. Police will always argue the need for more power to “keep us safe”, but that desire doesn’t make it true. Just read a history book.

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