We often hear about the rule of law, and especially about the need for government to ensure that it carries out its functions with due regard and compliance with the law. But what is this thing that we call the rule of law? And is the rule of law the sole responsibility of the government?
Many persons, whenever they hear about the rule of law, feel that it refers simply to an obligation of the government to act in a lawful manner.
The most simplified definition I have come across about the rule of law was given at the 13th Commonwealth Law Conference in April of 2003. Ron Heinrich, the then President of the Law Council of Australia quoted A.V. Dicey in paraphrasing three senses of the rule of law.
First, the rule of law implies that government should not use its coercive power in an arbitrary manner. Second, everyone is subject to the ordinary law, determined in ordinary courts. Thirdly, rights are not just consequences of constitutional statements, but of judicial determination by ordinary courts.
The last two senses reveal the pivotal role that courts play in guaranteeing the rule of law. One sense of the rule of law implies that it is the courts that ‘determine the law’. This refers to the jurisdiction of the court to interpret the law and to adjudicate on disputes relating to the law.
Then there is the sense that we can speak of rights. But these rights do not just flow from constitutions, but from judicial determination by the courts.
It is important that we recognize the role of the judiciary in not only circumscribing rights, but also of determining whether these rights have been violated. Thus, while someone may speak about having freedom of expression guaranteed by the constitution, the courts have determined that this right is not absolute and does not allow someone to shout “fire” in a crowded cinema.
The rule of law is not confined to government. According to Heinrich, “The rule of law is a joint venture of the entire society. Its strength comes from a commitment from all quarters, but that commitment cannot simply be assumed and then ignored. It is in maintaining and building a commitment to the rule of law that lawyers hold a special duty beyond that owed by every participant in civil society.”
Respect for the rule of law extends to members of the Bar. It is for them to test the legality and propriety of executive action in a court of law, and not to simply pronounce on the constitutionality of actions even before they are decided in a court of law. To do so would be to co-opt the powers of the Court. To do so brings the Court into disrepute.
If lawyers can decide on matters even before the Courts have pronounced on them, then why bother going to the courts at all? When a lawyer speaks to his client about rights, he is proffering an opinion. When the courts speak on this issue, it does so authoritatively. The job of lawyers is to advise their clients on the law. It is not for lawyers to hold themselves out as adjudicators of the law, in as much as they may hold an opinion as to the legality or constitutionality of the actions of the executive and the coercive arm of the State.
The rule of law is applied to everyone, and while sometimes decisions of the Courts can be protracted, there can be no substitute for due process, because without it, the very foundation of society ruled by law would collapse.
Within law-based societies, there must be mechanisms within which disputes could be settled. It is hoped that in the years ahead, everyone with an interest in upholding the rule of law, whatever our preferences for specific outcomes in cases, would allow the Courts to adjudicate on the constitutionality and legality of executive actions.
If public pressure or legal opinion takes precedence over due process and the settling of disputes in a court of a law, then the rule of law will be irreparably damaged.
There is much wisdom in urging not just only compliance with a particular law, but moreover in encouraging a culture of lawfulness. Unless this applies to both government and corporate clients, the rule of law would be diminished.
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