Lawfare

“Show me the man and I’ll find you the crime” is the famous statement attributed to Lavrentiy Beria, Joseph Stalin’s secret police chief. This is an example of lawfare: the manipulation of legal processes, civil or criminal, to serve political, ideological, or personal interests rather than upholding justice. 

Lawfare involves the misuse of the law by various means including selective enforcement, biased prosecutions, and politically motivated judgments for reasons unrelated to justice. It targets individuals or groups based on their political beliefs, policies or affiliations, and uses the law as a weapon to suppress dissent.

Civil Law

Civil law is traditionally employed to resolve disputes between private individuals or entities. However, it has increasingly become a weapon in the hands of powerful interests to silence critics. Strategic lawsuits against public participation (SLAPP) are a prime example of how civil litigation can be misused. These lawsuits are often filed with the primary aim of intimidating, censoring, or bankrupting individuals or organisations critical of those in power.

Australia’s proposed Misinformation and Disinformation Bill will potentially criminalise free speech.

SLAPP suits typically lack merit but serve as a tool to burden defendants with legal expenses and time-consuming litigation. The fear of financial ruin can force individuals or groups to retract their statements, cease their activities, or settle out of court. 

Criminal law

Governments and powerful organisations have increasingly turned to criminal law to suppress dissenting voices. Laws that criminalise defamation, sedition, or spreading false information can be exploited to target political opponents, journalists, activists, or any individual expressing dissenting views.

Australia’s proposed Misinformation and Disinformation Bill will potentially criminalise free speech. Ostensibly drafted to address the dissemination of false information, the legislation raises concerns due to its broad scope, leaving individuals uncertain about what constitutes a violation. Such ambiguity can be exploited to selectively enforce the law, enabling those in power to target specific individuals or groups based on political motivations rather than the alleged offense.

The absence of precise definitions allows for the manipulation of the law to serve political interests, allowing authorities to interpret and apply it selectively. This raises concerns about the erosion of democratic principles, as those in authority exploit legal measures to silence opposition and stifle public discourse.

One of the key concerns in the misuse of civil and criminal law is the selective prosecution of individuals or groups based on their political beliefs or affiliations. Authorities may use their power to target specific dissenting voices, leaving others untouched, thereby creating a chilling effect on those who oppose the status quo. 

Strategic lawsuits against public participation (SLAPP) are a prime example of how civil litigation can be misused.

An example of this is the prosecution of Donald Trump, who many people believe is being persecuted rather than prosecuted to defeat him as a presidential candidate. Many believe Joe Biden has weaponised the Department of Justice to go after his political opponent, contrasting its treatment of Trump to that of Joe Biden in spite of widespread allegations of Biden’s corruption.

The repeated prosecution of Pakistan’s former prime minister, Imran Khan, is another example. The Pakistan military has used the country’s courts to impose jail sentences that ensure he and his party are unable to participate in forthcoming elections. 

When legal actions are driven by political motivations rather than a genuine pursuit of justice, it erodes the credibility of the legal system. The rule of law is founded on the principles of fairness, due process, and the objective application of legal standards, not on the whims of those in power.

Frivolous civil lawsuits targeting individuals or groups and selective prosecution in criminal law depart significantly from a rule of law approach. In a rule of law framework, legal processes are expected to be impartial, fair, and based on established principles rather than arbitrary decisions or personal biases. Frivolous civil lawsuits, often driven by ulterior motives such as harassment or silencing dissent, abuse the legal system by burdening individuals with unnecessary litigation, straying from the principle of justice and fairness.

Similarly, selective prosecution in criminal law undermines the rule of law by targeting individuals or groups based on political motivations rather than the merits of the case. A rule of law system requires equal application of the law, ensuring that legal actions are not used as tools for persecution or favouritism. When prosecution becomes selective, it compromises the foundational principles of fairness, due process, and equal protection under the law. In essence, both frivolous civil lawsuits and selective criminal prosecution deviate from the rule of law by introducing bias, subjectivity, and personal motivations into legal processes.