The Rule of Law — What Does it Mean?

by Dr. Ruwantissa Abeyratne

( February 5, 2016, Montreal, Sri Lanka Guardian) President Sirisena, in his Independence Day message has said inter alia, “…This occasion is of special significance because we commemorate the dawn of freedom at a time coinciding with the taking of clear and resolute steps to firmly establish democracy and good governance, the Rule of Law, and a truly meaningful parliamentary system; to establish a long lasting and stable structure of good governance”.

The term “Rule of Law” is a term most often uttered by leaders and lawyers in a democracy. It is commonly associated with the 19^th century British lawyer Albert Venn Dicey who identified the Rule of Law as the cornerstone and fundamental postulate of the English Constitution. According to Dicey, the Rule of Law was composed of three basic and inviolable principles: that government must follow the law that it makes; that no one is exempt from the operation of the law – that it applies equally to all; and that general rights emerge out of particular cases decided by the courts. While the first two principles are easy to digest, the third brings to bear the fundamental premise that the courts could interpret the general rights of the people with their judgments. In other words, courts could keep tabs on or rather monitor legislation with a view to obviating and effectively precluding collectivist legislation.

The Canadian case of Roncarelli v. Duplessis decided in 1959 by the Supreme Court of Canada best illustrates the second and third principles of the Rule of Law. In the Roncarelli case the court handed down its decision that the Premier of Quebec Maurice Duplessis had acted beyond his authority (ultra vires in legal terms) in unilaterally revoking restaurant owner Mr. Roncarelli’s restaurant liquor licence without the proper legal authority. The ground for revoking the licence was the fact that Mr. Roncarelli was a Jehovah’s Witness. Mr. Roncarelli’s lawyer, Frank Scott – who later became a distinguished Dean of the Faculty of Law at McGill University – summed it up perfectly when he said that no public officer has any power beyond what the law confers upon him and that all are equal before the law.

Essentially the Rule of Law has two dimensions: everyone has equal rights and those rights cannot be arbitrarily taken away; and the courts must essentially play a pivotal role in separating arbitrary power of the legislature from the rights of the citizen. In the context of rights, the basic pronouncement lies in the Universal Declaration of Human Rights. Alan Dershowitz, Felix Frankfurter Professor of Law at Harvard University, in his book “Rights from Wrongs” states that rights do not come from nature, as nature is value neutral, nor do they come from logic or law alone because, if rights emanated from law, there would be no basis to judge a given legal system. Dershowitz maintains that rights come from human experience, particularly experience with injustice.

Our experience has taught us never again to tolerate a holocaust, never to curb freedom of expression and freedom of faith, and from that experience has stemmed the Universal Declaration of Human Rights and the United Nations Charter. These documents, which embody fundamental rights are just pieces of paper if experience is not joined by logic. The marriage of logic and experience in the wisdom of human relations is ingrained in ancient Jewish philosophy, which, according to Isaac Abravanal, recognized that experience is more forceful than logic but logic and experience are not mutually exclusive. Without being applied to experience, logic tends to be hollow and directionless, but without the focus of logic, experience becomes multi directional and out of focus. Good decisions come from experience and experience comes from bad decisions. In other words, rights emerge from wrongs and not from ancient parchments or tomes of wisdom hidden away in a forgotten memory that is subsequently revived.

The essence of a nation should be founded on human rights that are contrived from single instances of wrongs committed against the people. According to this principle, a right becomes something that is legitimately due to a person which he can justly claim as secured to him by law, and which ensures that some wrong committed in the past is effectively precluded by the right so secured. A right should not be confused with power, the former being based on moral justification and expectation and the latter being based on enforceability. Protection by the state of an individual, freedom to attend church or temple, and freedom to educate oneself are examples of a right where as sovereignty of State, authority to censor speech and enforce martial law are examples of power. A wise nation distinguishes between the two and maintains a balance.

Human rights should be viewed as something more than a concept which acts as a cultural artifact. They transcend fundamental rights, which are essentially political and civil rights, and expand to more basic rights such as the right to be equal to anyone with regard to the basic universal need for nourishment, shelter, clothing and education. In order to make sure that they are enjoyed by all of humanity, any community will have to make sure that human rights are a matter of course and are ensured by a guaranteed and contrived effort by all. Human rights and their worth cannot strictly be evaluated.

Traditional modes of evaluation, with which the voter usually goes to the polls in a democratic environment to select the government, are “value for money”, efficiency of service delivery and customer satisfaction. At best, these yardsticks have largely been political and economic abstractions which have prompted some academics and practitioners to consider the subject of governance-evaluation as being immeasurable or too much trouble.

As for the role of the courts in ensuring the Rule of Law, and the impartiality and independence of the judiciary, the finding of the Supreme Court of Canada clearly subsumed the point in the statement of the Chief Justice of Canada in the Provincial Court Judges decision handed down in 1997: “Judicial independence is valued, because it serves important societal goals – it is a means to secure those goals.

One of these goals is the maintenance of public confidence in the impartiality of the judiciary, which is essential to the effectiveness of the court system. Independence contributes to the perception that justice will be done in individual cases. Another social goal, served by judicial independence is the maintenance of the rule of law, one aspect of which is the constitutional principle that the exercise of all public power must find its ultimate source in a legal rule”.

There should be nothing less in the Rule of Law. The author fervently hopes that, on the occasion of the 68^th anniversary of independence in Sri Lanka, these inviolable and precious tenets that make the Rule of Law truly sustain. ESTO PERPETUA.