Monday, November 2, 2009

On the rule of law - form vs. substance

The concept of the “rule of law” generally means that the law is above every person, and it applies equally to every person.

Whenever criticised about human rights issues in Singapore, the ruling PAP government likes to bring up mention that there is “rule of law” in Singapore. However, it must be noted that there is no precise definition for the expression “rule of law”, and its actual meaning varies with different people. So what the PAP government likely means when it talks about the “rule of law”, is a formal, positivist interpretation, i.e., there is a system of man-made laws which are enacted and carried out by the government.

But this is no big deal. Practically all countries today with functioning governments will possess the “rule of law” in this sense. As a matter of fact, some of the worst atrocities in human history were committed by Hitler’s Nazi government under legitimately enacted laws. Yet, after World War II ended, Hitler’s government was subsequently tried and convicted for crimes against humanity.

So, as seen, the formal view of the rule of law contains no requirements whatsoever as to the content of the law. There is no inherent or necessary connection between the validity of the law and ethics or morality, and critics have noted that such a system creates a ruling elite that has the power to manipulate through the law. It has thus been observed that consequently, the law cannot serve as an effective barrier to a government’s abuse of power because power structures in society, not the law itself, determine the outcome of legal issues and problems.

There is, however, another higher interpretation of the phrase, “rule of law”. This is known as the substantive interpretation, which holds that the rule of law intrinsically protects human rights. The concept of natural justice comes into play here, and whereas a formal, positivist view would claim that a law can be unjust without it being any less a law, a substantive, naturalist view would observe that there is something legally deficient about an unjust law. As mentioned, individual human rights (i.e., the basic rights and freedoms to which all humans are entitled, such as the right to life and liberty, freedom of expression, and equality before the law) are protected under a substantive rule of law system, and an unfair, oppressive or unjust law is in a sense regarded as no law at all.

To put it in the local context, for example, Article 14(b) of the Singapore Constitution provides that all citizens have the right to assemble peaceably and without arms. The right of peaceful assembly is generally considered to be an important civil right for citizens. There is a caveat to this right of peaceful assembly, and that is, parliament may impose such restrictions as it considers necessary or expedient in the interest of national security or public order.

The PAP government had, based on this caveat, enacted rigorous laws (in particular, the Public Order Act) to restrict the holding of public assemblies. One notable aspect of these restrictions is that the PAP government had delegated responsibility for public assemblies to the police, and any person wanting to hold a public assembly is required to obtain a police permit. Unfortunately for the opposition parties in Singapore, the police categorically outlawed all outdoor political events and will not ever grant public assembly permits for such purposes. This in essence deprives a group of citizens of their fundamental right to peaceful assembly. In this scenario, there is rule of law in the formal sense, whereby a government enacts certain laws and carries them out to the letter. But the question is, is there substantive application of the rule of law?

In order for the PAP government to truly address any criticisms of human rights transgressions, it must be able to demonstrate that Singapore has the rule of law not only in the formal sense, but also, in the substantive meaning of the phrase.

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