Arguably, one of the most important principles of the Rule of Law is that powers should be exercised by those on whom specific powers are authorized by statute or law and not by any other claiming some kinship or liaison with those in power.
by Dr. Ruwantissa Abeyratne in Montreal
Who the cap fits, let them wear it. Your worst enemy can be your best friend; your best friend can be your worst enemy ~ Bob Marley
One of the first phenomena we were taught in law school was the majesty of the law as the queen of humanities and the elegance of the Rule of Law as the foundation of humanity. The Rule of Law was the hallmark of democracy, we were advised. Regrettably, at the present time, the aspirations people had of equal rights and representation by the people of the people for the people have gradually eroded into a quagmire of ambivalent populism that is shrouded in mendacious and self-serving casuistry. A whole new phenomenon called illiberal democracy has been identified by the intelligentsia as a definition of this phenomenon. The hallmark of illiberal democracy is the ignoring by those democratically elected by the people – in many instances those that have been re-elected or reaffirmed through referenda - of constitutional limits on their power, thereby depriving their citizens of basic rights and freedoms.
Fareed Zakaria, a CNN commentator, in an article in Foreign Affairs published in 1997 says: “around the world, democratically elected regimes are routinely ignoring limits on their power and depriving citizens of basic freedoms. From Peru to the Philippines, we see the rise of a disturbing phenomenon: illiberal democracy. It has been difficult to recognize because for the last century in the West, democracy--free and fair elections--has gone hand in hand with constitutional liberalism--the Rule of Law and basic human rights. But in the rest of the world, these two concepts are coming apart. Democracy without constitutional liberalism is producing centralized regimes, the erosion of liberty, ethnic competition, conflict, and war... Today, illiberal democracy, which has been defined as a governing system in which, although elections take place, citizens are effectively precluded from gaining knowledge about the activities of those who exercise real power because of the lack of civil liberties; thus it is not an "open society".
The first casualty in an illiberal democracy is the Rule of Law, which has no known written definition in any statute book. As an idealistic youngster aspiring to an honourable legal career in our beautiful but bemused land, I was taught that the concept of the Rule of Law prevailed even as far distant a past as when a righteous king ordered his son to pay with his life for having run over another negligently with his chariot. Although this tale is shrouded in myth and legend, it portrays the value that an ancient community in my land placed on the basic Rule of Law principle - that no one is above the law. R.M.B. Senanayake, writing in the Colombo Telegraph says it succinctly:” The concept of the Rule of Law arose during ancient times. It was there even in the Code of Hammurabi. Aristotle said more than two thousand years ago, “The Rule of Law is better than that of any individual.” The ancient Romans raised the question “who is to “guard the guardians”? What if those who are appointed to guard us misbehave and deprive us of our freedom. They came up with the principle of the Rule of Law. “We are free because we live under civil laws.” — said Montesquieu later on. In Plato’s dialogue, the Athenian Stranger declares that a city will enjoy safety and other benefits of the gods where the law “is despot over the rulers, and the rulers are slaves of the law.” In other words, the ruler and his retinue as well as government officials are to be the servants and not the masters of society and the Law should be supreme”.
The historical perspective of the Rule of Law is thus clear. That having been said, its current context - in the face of illiberal democracy - is worthy of discussion. Lord Bigham, one of the most authentic scholars on the Rule of Law, says in his book published in 2010 that the fundamental postulate of the Rule of Law is that “all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts”. This brings to bear not only the fundamental principle of liberal democracy i.e. transparency of law, but also the compelling need for laws to be clear, accessible and above every individual of society whatever their station in life is, whether gained by election or appointment. This statement also says that laws should not apply ex post facto i.e. retrospectively.
Although the Rule of Law has no formal definition, it is recognized as being entrenched and embodied in any democratic Constitution. To this end Lard Bingham has attempted a definition of the Rule of Law thus: “all individuals and organizations within the State, whether public or private, are bound by, and entitled to the benefit of laws prospectively promulgated and publicly administered in the courts”. This definition can be expanded to several corollaries. Laws should be intelligible. They should not be couched in a plethora of pages in convoluted language and expanded to hundreds of regulations. Nor should they be orally delivered through speeches and pronouncements. Any written amendment to a law should be brought to the attention of the people. A society should be governed by law and not by discretion granted to or assumed by public officials. Additionally, they should be equally applied. To expand further, laws should not favour a particular category of individual. Past examples are the depravity of slavery, servanthood and the arbitrarily perceived inferiority of women in some jurisdictions.
Arguably, one of most important principles of the Rule of Law is that powers should be exercised by those on whom specific powers are authorized by statute or law and not by any other claiming some kinship or liaison with those in power. Dispute resolution should be by the tribunals, or courts appointed for that purpose and not by those who assume power that has not been granted.
Human rights form an essential component of the Rule of Law and the basic principles of The Universal Declaration of Human Rights of The United Nations must be adhered to. Finally, the State should perform its obligations under international law, particularly in the context of the treaties that the State has ratified, and not subjugate the principles of a ratified treaty below any conflicting domestic laws of that State.
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