Secret Law is Not Law

September 16, 2014 permalink

Controversy over American enforcement of secret laws led the Electronic Frontier Foundation to unearth a United Nations covenant on the subject. Under international human rights law, secret “law” doesn’t even qualify as “law” at all.

[regarding the law of speech]

25. For the purposes of paragraph 3, a norm, to be characterized as a “law”, must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly and it must be made accessible to the public. A law may not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution. Laws must provide sufficient guidance to those charged with their execution to enable them to ascertain what sorts of expression are properly restricted and what sorts are not.

Source: International Covenant on Civil and Political Rights

What about child protection law? In Ontario, child protectors operate under authority of the Child and Family Services Act, a published law. So far so good. It is in Section 37 that the act defines a child in need of protection. These are the legal reasons to separate a child from his family. The wording contains vague phrases such as "there is a risk that the child is likely to suffer emotional harm" and "the child has been abandoned". Does abandonment mean dad running off with the secretary and failing to feed the child? Or just mom running into a store for five minutes while leaving her child in the car? After a few years of accumulated decisions, the public could examine cases to find out what courts actually decide. But the administration of that law is entirely secret. Social workers keep their records under lock and key, as do courthouses that store records of protection cases. At hearings, the public is excluded, and only rarely can a journalist view the process. The restriction on reporting the names of parties, a restriction extending even to the parties themselves, keeps child protection stories out of the media. In practice, secrecy prevents parents from knowing what actions they need to take to keep their children out of foster care, thereby disqualifying child protection as law: "Laws must provide sufficient guidance to those charged with their execution to enable them to ascertain what sorts of expression are properly restricted and what sorts are not."