The rule of law is an observance of the principle that “ours is a government of laws and not of men”. The principle cannot be explained in mathematical formula. It is articulated in various shades and colors but its essence is that all persons, from the highest official of the land down to the lowest level of citizenry, must respect the laws and nobody no matter how great and painful might he have suffered in the hands of his persecutors or oppressors, must resort to the rule of law rather than taking the law into his hands. It is a weapon of reason and civility.
In a democratic society, disputations are heard and settled under the rule of law in the forum of the courts of justice. It is one of the admirable attributes of a system of government that if a person feels he has been aggrieved, he does not have to take the law into his hands or resort to the use of force for the vindication of his injury. The courts are there to hear and act on his complaint. The right to bring action against an adversary is an exhaust valve to relieve the pressures of personal disagreements that might otherwise explode in physical encounter.
It is necessary not only for upholding one’s claims when they are unjustly denied but also for the maintenance of peace among incipient antagonists. Without the right to litigate, conflicting claims cannot be examined and resolved in accordance with one of the primary purposes of government, which is to provide for a just and orderly society (Aguirre 22). In the case of Villavicencio vs. Lukban (39 Phil. 778 at 786 and 787, March 25, 1919) the Supreme Court castigated a City executive for expelling alleged prostitutes from Manila and dumped them against their will in Davao.
The Court said that such act constitutes a wanton violation of the principle that “ours is a government of laws and not of men. ” Said the Court: “Law defines power. Centuries ago Magna Carta decreed that . . . No freeman shall be taken, or imprisoned, or be seized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him nor condemn him, but by lawful judgment of his peers or by the law of the land.
We will sell no man, we will not deny or defer to any man either justice or right . . No official, no matter how high, is above the law. The courts are the forum which functionate to safeguard individual liberty and to punish official transgressors. . . ” (Villavicencio, supra at 786 and 787). The rule of law is one of the characteristics of a representative democracy whose essence is popular representation and ultimate control by the people, one which derives all its powers, directly or indirectly, from the great body of the people and is administered by persons holding their offices for a limited period or during good behavior.
A representative government is one wherein the powers and duties of sovereignty are exercised and discharged for the common good and general welfare of the people by few people, their representatives. That is the essence of democracy. This however is the fear of many people in the wake of the events of September 11, 2001, the erosion of civil liberties in the guise of legimate legislative enactments to increase power in combating terrorism because as perceived as such , rule of law per se has nothing to do with justness or fairness of the laws but simply that the legal system must uphold the law.
The law may be harsh but it is the law and like death, it spares no one. There is a danger that the government will use its power in the furtherance of arbitrary powers rather than genuinely deals with terrorism. Many governments are reviewing their laws and security policies and procedures to do or be seen doing something about terrorism resulting to the aggregation of powers of the executive and conversely, derogation of the fundamental rights of the people. The assault on the civil rights of the people is more serious than the attacks of the World Trade Center.
Accumulation of arbitrary powers by the government to do what it wants over an individual is a threat to the way of life of the people. The feigned attempts to deal with terrorism are overkill, a dangerous accruement of authority and influence. In the United Kingdom, several legislations were passed to combat terrorism in disparagement of a person’s civil liberties. Social Security Act of 2001 attacked rights to privacy and confidentiality of financial records. Without a warrant, government officials are authorized to demand from banks and other financial institutions any information regarding a person.
The rights to presumption of innocence and security of property are also violated by The Proceeds of Crime Act of 2002 where the litigants are not on equal footings because the other party is the government. The government has more resources and access to records during investigation and worst has the authority to freeze the assets of a private individual. The Act authorizes the State to seize property based on probabilities alone that the property were acquired through unlawful means which ordinarily under the rule of law must be established beyond reasonable doubt.
Further, the Prevention of Terrorism Act of 2005 imposes an offense or violation on anyone suspected of involvement on terrorist activities which is regarded by law enthusiasts as an infringement of the right to liberty. Under such law, the government may issue control order set forth authoritatively on someone where the police may conduct arrest and detain a person up to 4 days on mere suspicion thus denigrating Article 5 of the European Convention on Human Rights that entitles a person whose civil or political rights and freedoms have been infringed to an effective right to go to courts for remedy.
As there are no charges imposed, a person subject of a control order does not go to trial. Any accusations and evidences are kept back from the arrested persons or their lawyers. It is indubitably clear that the Act is an attack on the rights of a person protected under the Constitution, such as presumption of innocence, the right to trial and the right of a person to know the accusations or charges and evidences against him.
Furthermore, it was fortunate the proposed bill, The Identity Cards Bill was not passed otherwise, it could have denied a person from the needed services in life because the said proposed bill could have compelled a person to own an identity card required in all dealings including opening a bank account and the government can nullify the card anytime at its caprice under a system of centralized national identity registry, creating a record of the people’s identity and activities.
Under the proposed bill, the government will maintain a database of the peoples’ finger marks and scanned iris and the cards to validate the authenticity of a person. The people of UK could have lived a life under surveillance of day-to-day activities thus, depriving them further of their rights to privacy and presumption of innocence (Hammerton, Prime Recent and Proposed Attacks on Civil Liberties in the United Kingdom – a list). The rule of law is based on the principle of legality that a law to be valid must be in conformity or harmony with reason.
The rule of law is established through the principle of absolute supremacy over arbitrary power. The attacks on the World Trade Center and Pentagon are perhaps a case of utmost urgency to entitle a public entity the power to take actions which intervene with the rights or freedoms of individuals. However, it should not undermine the possibility for the courts to determine whether or not such power exists and if so and found unlawful, provide effective remedies. Judicial decisions provide the means for the determination of rules of law. An independent judiciary is a manifestation of the rule of law.
The ultimate responsibility of securing respects for the law and that the law applies equally to all citizens is enthroned in the judiciary. The rule of law is a basic governing principle under the constitution which precludes individuals and government from transcending the supreme law of the land. It requires both the state and individuals to submit to the supremacy of the law, thereby building protective stratum on individual’s rights and liberties. It cannot be overstressed that in a constitutional government, the rule of law must prevail.
The Constitution is the basic and paramount law to which all other laws must conform and to which all persons, including the highest official of the land, must defer. From this cardinal postulate, it follows that the three branches of the government must discharge their respective functions within the limits of authority conferred by the Constitution. Under the principle of separation of powers, neither Congress, nor the President, or the Judiciary may encroach on fields allocated to the other branches of government.
However, under the doctrine of checks and balances, any excessive exercise of the power given them may be checked by the others in accordance with the mode prescribed by the Constitution. The purpose of the principle of checks and balances is not only to put a halt to the excesses of one department but equally to make the erring department keep itself within the boundaries as mandated by the Constitution.
In this regard, the term “rule of law” serves to regulate governmental powers, free from arbitrariness and abuse for the government to function rationally Rule of law” also means procedural justice. Justice and legality are achieved by consistently applying the rules and procedures that build the legal order. These rules and procedures must be impartial, transparent and consistent. Absence of procedural justice may set a killer free, where evidences were illegally obtained and the prosecution failed to present convincing evidence to prove the guilt of the accused beyond reasonable doubt. In this way, substantive justice must give way to procedural justice.
The end does not justify the means where the basic rights of the accused protected under the Bill of Rights were violated. The Bill of Rights is the first 10 amendments to the U. S. Constitution which are referred to as civil liberties. The ambit of these rights is still subject to debate in numerous cases in the Supreme Court. Nevertheless, these civil rights continue to serve as the central elements of the rule of law that limits government action and protect the fundamental rights of the citizens.
The 9th Amendment protects other rights that a citizen may possess although these rights are not specifically written in the Constitution because it provides that the Bill of Rights is not an exclusive list of rights (Abboud, Civil Liberties Key Component of Rule of Law). In a modern market economy, the rule of law is an essential component. To allocate resources, modern market economy relies on market prices and as its core, the system of free enterprise.
It is important that rule of law must exist to promote a healthy relationship between the state and the economic agents thereby enhancing development and economic efficiency. The rule of law functions as a power regulator in delimiting the state’s discretionary interference on economic activities, and also regulating the behaviour of other economic players, the individuals and the enterprises. The rule of law is fundamental in creating an orderly free enterprise. Contract will be enforced effectively and property rights will be protected.
Sustainable economic growth would ensue. The rule of law plays an important role in the phenomenal economic success of Chinese communities such as Hong Kong and Singapore. The rule of law is not the law itself. While the law is just a component of the rule of law, the rule of law is the excellent component of democracy. It is an ideal, the apotheosis of something that one hopes to attain. It is the reason why the law must be respected, obeyed and upheld. It must be the spirit behind any legislative enactment.
That is why in statutory construction, the law must be interpreted not by its letters but the spirit, by the supposed undying selflessness of intention of the legislators chosen by the people. However, laws should not be construed as the rule of person because rule of law is not rule of person. In a representative democracy, under the rule of person, law is the product of the lawmaking body, the legislators, if left unchecked by the Constitution may lead to despotism or authoritarianism; while under the rule of law, law is the product of the judiciary’s “legal reasoning” (Bo Ll, Constitution and the Rule of Law).
It is all-encompassing. It includes not only the substantive and formal or procedural aspect of law, the extrinsic and extrinsic quality of the law, but it is the embodiment of the fundamental emotional and activating principle determining the character of the people. It is the heart and spirit of the law that guide the destiny of a nation. With it alone, is enough reason for the rule of law to prevail.