Rule of Law or Rule by Law?
All animals are equal, but some animals are more equal than others
In 2010, a woman in Hong Kong was sentenced to 12 months probation for slapping a police officer. This was the third time she was convicted for assaulting police officers. While the offence would usually result in a custodial sentence, the Magistrate had been more lenient in consideration of several factors.
The Magistrate was quoted as saying, “The defendant has a good background, a well-off family, good education and outstanding academic achievement” and “a first-class honor in bachelor of business administration.”
It is a wonder that the Magistrate had missed the irony in his words. The defendant has a “good background” indeed. She is Amina Bokhary, niece of Kemal Bokhary, a judge of Hong Kong’s highest court.
The lenient sentence drew flak in the city, which has one of the widest rich-poor gap in the world. Hong Kongers were outraged at what appeared to be a justice system that favors the rich and well-connected. Opinion polls showed that public confidence in the fairness and impartiality of the Hong Kong judicial system took a beating after the incident.
Eventually, Bokhary was sentenced to six weeks’ jail, not because the judge’s decision was overturned upon appeal, but because the defendant herself breached the conditions of her probation order. Reports of the case may be read here and here.
What is the Rule of Law?
One set of law for ordinary people, another for the privileged. This perception that some are more equal than others before the law is why the Amina Bokhary case had so incurred the wrath of Hong Kongers.
Equality of all before the law is one of five ends or goals which the “rule of law” is supposed to serve. The other end goals are: a government bound by law, law and order, predictable and efficient rulings, and human rights. These ends are interdependent, complementary but also often in tension.
(1) When it is widely held in society that there is no equality before the law, ordinary people do not even bother to bring their case against the more powerful before the court, in the belief that the court will simply serve the interest of the powerful and uphold the existing social power structure.
(2) A government bound by law means that the government is not above the law. In executing its decisions, it must abide by existing laws; in changing laws, it must do so through established legislative channels.
(3) Law and order is of utmost importance in protecting the lives and property of citizens. When citizens feel that there is no redress under the judicial system for the wrongs they suffer, they may take justice into their own hands and punish wrongdoers through their own means.
(4) “Justice delayed is justice denied.” Efficient rulings prevent the subversion of justice when delays tilt the balance towards one party and disadvantage the other before a judgment is made. Cass defines predictable rulings as: (i) fidelity to rules, (ii) of principled predictability, (iii) embodied in valid authority, (iv) that is external to government decision makers.
(5) The rule of law, by imposing limits on what the State can legally do, is essential in protecting human rights and constraining violations by the State.
The Rule of Law and Democracy
The rule of law is a key pillar of a democracy; some say it is a precondition for a liberal democracy. While a true democracy cannot exist without the rule of law, can the rule of law exist without democratic conditions?
We can address this question by looking at what is essential to upholding the rule of law – an independent judiciary, i.e. judges have to able to adjudicate under no pressure from a political party, popular opinion or the influences of other interests. If a judge can be demoted or removed from office by the executive for not ruling in its favor, then clearly there is little judicial independence to speak of.
How may such executive interference in the judicial process be impeded or forestalled?
The simple answer is to have a system of checks and balances in the government, such that no individual can have absolute power and be above the law. A U.S. style “separation of powers” in the legislative, executive, and judicial branches of government is one such framework.
Rule by Law
This leads us to the concept of “rule by law,” which has increasingly been used to describe the judicial system in non-democratic states.
Under “rule by law,” the government, the ruling party, or the rich and powerful are above the law. China exemplifies this, as many reported cases here show. The Chinese Communist Party applies the law arbitrarily and instrumentally against what it sees as its enemies and critics, while the Party itself is not bound by the law. The injustice of such a system is for all to see.
If you are still pondering if there is a necessary relationship between the rule of law and democracy, here’s some food for thought from James Madison:
If men were angels, no government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
Is your country run by angels? I think not.