April 4, 2016 By BANKOLE CLIFFORD EKUNDAYO MORGAN, HUMAN RIGHTS ADVOCATE
The term ‘rule of law’ can be interpreted as the restriction of arbitrary exercise of power by subordinating it to well-defined and established rules. The rule of law expressly sets standards that no government, and/or branch of government is above the law, and no public official may act arbitrarily. It is absolutely wrong for any government or government official to subject anyone to civil damages or criminal punishment except in strict accordance with well defined laws and procedures. Despite its ancient history, the doctrine of the rule of law requires governments all over the world to exercise their authority within the legal framework of “Rule under the Law, “Rule according to Law” and “Rule according to higher Law”. This write up will attempt to throw light on the three contexts of the rule of law and cite examples of proceedings where judges were firm in following the rule of law.
“RULE ACCORDING TO LAW”
Rule according to law is a guiding principle for governments all over the world. It prescribes that governments must always rule within legal framework. Rule according to law, further states that governments must not be given unfettered discretion to prosecute individuals for violating a law that is of such broad applicability and applied to only few in society. Before a government imposes civil or criminal liability on anyone, a law must be written and apply to everyone with sufficient precision and clarity that a person of ordinary intelligence will be aware that a certain conduct is forbidden. Philosophers of the concept of the rule of law drew a distinction between power, will, and force, on the one hand, and law on the other. When a government acts pursuant to an express provision of a written law, that government is absolutely acting within the scope of the rule of law. But when a government acts contrary to the law, that government does so by sheer force of personal will and power.
GOVERNMENT EXCEEDS ITS LEGAL AUTHORITY TO PUNISH…
The principle of the rule of law forbids a government that seeks to punish someone for an offence he did not commit. Government exceeds its legal authority to punish if that government allegedly punishes someone for a crime he did not commit. This is viewed as a human rights violation and a violation of the rule of law. The rule of law requires that governments impose liability only insofar as the law will allow. For similar reasons, the rule of law is abridged when government attempts to punish someone for violating a vague or poorly worded law. Ill-defined laws confer too much discretion upon the government, which is charged with the responsibility of prosecuting individuals for criminal wrongdoing. The more prosecutorial decisions are based on the personal discretion of a government, the less they are based on law.
“RULE UNDER THE LAW”
Rule under the Law, requires government to exercise its authority under the law. This requirement is sometimes explained with the phrase “no one is above the law”. The rule of law states that no branch of government is above the law, and no public official may act arbitrarily or unilaterally outside the law. The effect is to ensure that even those who are empowered to supervise the proper and diligent operation of the “arbitrary exercise of power by subordinating it to well defined and established rules” are themselves adequately tailored in a bid to secure against the warning that “power corrupts and absolute power corrupts absolutely”
It was recorded that the English monarch during the 17th century was vested with absolute sovereignty, including the prerogative to disregard laws passed by the House of Commons and ignore rulings made by the House of Lords. In the 18th century, absolute sovereignty was transferred from the British monarchy to Parliament.
THE UNITED STATES CONSTITUTION
One of the constitutions I admire so much is the United States Constitution. I like it because it sets proper procedural standards. For instance, the U.S Constitution stipulates that no single branch of government is given unlimited power. According to the U.S constitution, authority granted to one branch of government is limited by the authority granted to the coordinate branches and by the Bill of Rights, federal statutory provisions, and historical practice. The power of any single branch of government is similarly restrained at the state level. This concept of “Rule under the Law” is all about setting standards that government must carry out its duties or exercise it powers under the laws of the land. No government or government officials should be seen powerful than the laws of the land.
SUPREME COURT JUDGES STRICTLY FOLLOWING PROCEDURAL DUE PROCESS
An attempt to act unconstitutionally was seen in the case: UNITED STATES OF AMERICA v NIXON, 418 U.S. This case came before the Supreme Court of the United States and involved former President Richard M. Nixon. President Richard M. Nixon, during his second term in office, tried to place the Executive Branch of the federal government beyond the reach of legal process. When he was served with a subpoena ordering him to produce a series of tapes that were anticipated to link him to the Watergate conspiracy and cover-up, he refused to comply, asserting that the confidentiality of these tapes was protected from disclosure by an absolute and unqualified Executive Privilege. In this case, the Supreme Court disagreed, compelling the president to hand over the tapes because the Constitution forbids any branch of government from unilaterally thwarting the legitimate ends of a criminal investigation.
SUPREME COURT JUDGES STATING THE LAW AS IT IS
The above case is a locus classicus case of the application of the rule of law. The Supreme Court judges were firm in interpreting the U.S constitution in the said matter. The judges stated the law as it is and strictly followed the procedural due process of the law. They ensured that the rule of law is respected, protected, promoted and observed by all, no matter their position. These judges helped me to understand that being a President does not give you the latitude to rule above the law but rather rule under the law. I noticed two things from the above case, firstly, that in interpreting the constitution, judges must not allow government to exceed its authority as interpreters of the law. Secondly, in interpreting the constitution, Judges must not allow themselves to be politically influenced. This is a unique case to emulate when interpreting the constitution in matters relating to an alleged violation of the constitution by a sitting President.
“RULE ACCORDING TO HIGHER LAW”
It is evident that no self made law may be enforced by any government or government official unless it conforms to the constitution. I have found out that a huge legal challenge is often faced by presidents who tend to breach legal principles by acting contrary to “Rule According to Higher Law”. Higher laws are established laws made to regulate the actions of both state actors and non state actors. The legal breach of higher law by government can be viewed as illegal and or unconstitutional. It is my view that all laws must be seen as a necessary consequence of the maxim “no one is above the law”. The rule of law requires that governments treat all persons equally under the law. It is often alleged that some governments give maximum level of attention, respect, and autonomy to a single class of individuals on the basis of their tribal, regional and or party affiliations. This happens when governments categorically deprive other individuals and their regions of their fundamental human rights. Governments should ensure that they “Rule according to Law”, “Rule under the Law”, and “Rule according to higher law”.
(The thoughts expressed in this article are purely and entirely the author’s)