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Rule of Law and South Asia: A View from the Top

About the Author

Mr. Mohammad Rubaiyat Rahman
Student, LL.M,
South Asian University, New Delhi
rubaiyat007@gmail.com

Introduction:

The term ‘rule of law’ is used as opposed to the concept of ‘rule of man’. The primary meaning of rule of law is that the ruler and the ruled must be bound by the same law. Rule of law in some form may be traced back to Aristotle, and has been upheld by Roman jurists; Natural law thinkers of the medieval era; and also by enlightenment philosophers such as Hobbes, Locke, Rousseau, Montesquieu and the American founders; German philosophers Kant, Hegel.[1] No separate law or system can be provided for the ruler. Law is the cement of society[2], synchronizing all the parts of society in a harmonious way. The debate over the meaning of the term “law” has been going on over a long period of time. In a very simple and generic sense, it is meant to be a set of standards applicable to judge that is related to the quality of welfare as well as protection of dignity of human beings. To explain the rule of law, Waldron makes an analogy with democracy and contends that a state is not a democracy unless it regularly holds free elections to determine who occupies the highest political offices[3].

The International rule of law has long been deemed as a vehicle for promoting economic development. From around 1997, the development community began using this term seamlessly with good governance. The World Bank and the International Monetary Fund (IMF), limited by their Charters from directly dappling in domestic political affairs, have emphasized rule of law and good governance.[4] Developing States have themselves  embraced the rule of law, acknowledging in the 2005 World Summit outcome that ‘good governance and the rule of law at the national levels are essential for sustained economic growth, sustainable development and eradication of poverty.’[5] However, rule of law at the international level has a quite different meaning from the scholastic opinions provided by jurists like AV Dicey. International rule of law may be understood as the application of rule of law principles to relations between States and other entities. Here, the rule of international law could privilege international law over national law.

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If the rule of law envisages Government by law or according to law, then rule of law exists in every country whether it is ruled by a king, or a military dictator or a president. This is because they only rule or had ruled the country according to law,, where moral force cannot be found even in the crevice of those regimes’ tomb.  In this sense the Government of Hitler, Mussolini, Louis XIV, HM Ershad of Bangladesh (a military dictator), General Zia and Parvez Musharraf of Pakistan – all come under the rubric of rule of law. This is an irony as  no man with a minimum conscience will relate  these Governments to the principles of  rule of law.[6] The withering moral force of the South Asia regions transform the concept of rule of law into a myth.

Intimacy between Rule of Law and Moral Force:

As to the relationship between law and morality, it can be stated that law functions as a means to promote and protect moral values, because the realization of justice is simply not possible without regard to such values i.e, right or wrong.  The most famous legal moralist is Patrick Devlin, who argues that a shared morality is essential to the existence of a society. Law for its effective functions and desired results is largely dependent on morality. Many Legal Positivists would agree that law is morally neutral although  it is unclear whether this can serve as a basis for distinguishing legal positivism from natural law. For example, Acquinas seems to agree that human law is morally neutral.  He believes that we have no automatic moral obligation to obey laws made by human beings. Legal obligations have no automatic moral force.[7]

Morality is deemed as a refill which  sometimes need laws to help in filling of the gaps. But the same is also true in reverse. Often law is refilling and needs morality’s help to make it less so. Legal norms, like moral norms, often conflict among themselves, and often such conflicts cannot be resolved using legal norms alone. Indeterminacies of language and intention on the part of law-makers, moreover, can afflict law in such a way as to frustrate its role as a filler of moral gaps. Legal conflict and indeterminacy, require extra-legal resources to overcome them.

Dworkin, in an article, argued that law was best viewed as a social practice with a meaning or point.  Understanding any social practice requires an interpretive attitude, which for Dworkin necessarily requires some perspective internal to the practice.  He began with the claim that most competing conceptions of law could accept the proposition that the meaning or point of law is to justify Government coercion in accordance with past political decisions about when such force is justified.  Interpreters should make sense of law by providing abstract accounts that both “fit” past legal practices and decisions, and “justify” them through the derivation of moral principles that make the best, most attractive sense of those practices and decisions.  Thus, moral principles are part of law.

John Rawls  argues that there is a moral obligation to obey law qua law in societies in which there is a mutually beneficial and just scheme of social cooperation. The thing that gives rise to a moral obligation to obey law qua law in such societies is a duty of fair play. Fairness requires obedience of persons who intentionally accept the benefits made available in a society organized around a just scheme of mutually beneficial cooperation. There are a couple of problems in this theory. First, Rawls’s argument does not establish the existence of a content-independent obligation to obey law as the obligation arises only in those societies that institutionalize a just scheme of social cooperation. Secondly, even in such societies, citizens are not presented with a genuine option to refuse those benefits.

Law, unlike morality, is made by someone. ‘Moral’, in this context, is the name given to the kind of obligation that legal obligations are claimed by law to be. Legal obligations are claimed to be obligations that are not merely claimed, and hence  are not merely legal. They are claimed to have a standing beyond law, or to bind (as it is sometimes put) in conscience as well as in law. When a legal norm is morally justified, to generalize, it becomes part of morality.

Rule of Law in South Asian Region:

South Asia is known as one of the largest regions in the world. It is a land of 1.5 billion people, which is approximately one-fourth of the world population.[8] South Asia is a conglomerate of eight countries: Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka. As a region it is unique fromthe rest of the world in its geography, ethnicity, culture,  climate and even in disputes.

Generally, it has been pledged in the preamble of several Constitutions of the South-Asian countries, to realize a society where the rule of law will be secured and gilt edged. Article 27 of the Constitution of Bangladesh guarantees that all citizens are equal before law and are entitled to equal protection of law. Article 31 of the same guarantees that it is an inalienable right of every citizen to enjoy protection of the law, and to be treated in accordance with law, , wherever he may be, and of every other person for the time being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.[1]

The Supreme Court of India makes a remarkable progress in the arena of jurisprudence of rights as well as prevention of abuse of power. Despite the Constitutional safeguard in Article 21 of Indian Constitution and explicit procedures exposed by the guidelines of the Supreme Court, the law enforcement agencies of India are facing allegations of misuse in tandem with abuse of powers. The Malimath Report of 2003, at its para.7.26.2 illustrates the situations very elaborately.[2]  The 154th report of Law Commission of India also states that such misuse is detrimental in all aspects and senses. [3]

KR Narayanan, former President of India, in his address to nation on August 14, 2000 states: ‘…At every social and political level there is a crying need to speak out against crimes and violence of all kinds, but every such rhetoric is absent in India today.’ This statement is sufficient enough to show  how the misuse of power is politically encouraged.[4]

Rule of law implements accountability and representation in order to promote the moral perspectives of the system of governance.[9] In western societies, the citizens are prepared to respect the rights of fellow citizens. Enforcement of law in those societies is secured largely by the preparedness of citizens to uphold the sanctity of law. They take law as a friend protecting their rights. Ironically, citizens of South Asia deem law from a different perspective which is  negative in nature. Rather than notion of obedience, the legal rules are considered as an (Austinian) imperative system of rules.[10] The moral force in rule of law has not yet reached at a very stout level in this South Asian region to consider the image of legal regime as notion of obedience.

According to the recent edition (2012) of a five-year-old index released by the World Justice Project (WJP), South Asia performed most poorly among the major regional blocs, with Pakistan and Bangladesh earning the worst scores. India scored in the top half on limited Government and Government transparency but was among the worst 15 countries on corruption and second to last on order and security.[11] India’s independent judiciary, free-speech protections and relatively open government were countered by corruption and serious security concerns, while Pakistan was hampered by a low level of Government accountability, corruption, a weak justice system and a poor security situation.[12]

The rule of law, with withering moral force, of this South Asia region transforms the concept into a myth. Consequently, people’s faith and trust on the legal system is jeopardized. The situations of South Asia reiterate that the jurisprudence of developed societies cannot address typically unique problems of the developing societies  of this region. It can be stated that rule of law in South Asia is minimal. The long history of influence of authoritarian regime is one of the main reasons behind such pitfall. In such a society, law is deemed as a means of maintaining the social discipline. The freedom and rights of people do not constitute the matter of concern of law.

Reasons behind South Asia’s Thrombosis of Rule of Law:

The rule of law and legal system is intrinsically connected concepts. Matthew H. Kramer who makes a distinction between jurisprudential phenomenon of the rule of law and moral-political ideal of the rule of law says that as a jurisprudential conception, the rule of law sets necessary conditions for the legal system[13]. Jeremy Waldron states that “some things are green, some are blue; but on the borderlines there are blue or green cases of uncertainty”[14]. The same is applicable to the South Asia region also. However, the following practices, which is very much traditional positivist doctrines of law, should be stopped in South Asian region in order to ensure that the rule of law is spirited with moral force:

  1. Law of the society is made by its State for the purpose of regulating behavior of its citizens.
  2. Citizens comply with the provisions of law because of fears of punishment.
  3. Law, here in South Asia, is prescriptive in nature.
  4. The rigid nature of law turns state into a vanguard of civilized society.

All these points refer negative notion of law; represents authoritarian system of Government.  Hence, no legal system in South Asia can claim that it has respect to the concept of rule of law.[15] Therefore, the entrenching gap between the expectations of the people and the performance of the mechanisms of the legal system depicts the scenario that rule of law is still deficit of moral force  in South Asia.

Conclusion:

Although neither the International Covenant on Civil and Political Rights (ICCPR) nor the International Covenant on Economic, Social and Cultural Rights (ICESCR) mentions rule of law, the Universal Declaration of Human Rights mentions rule of law only in passing in the preamble, suggesting in typically cryptic fashion that “human rights should be protected by the rule of law.”[5] According to Dr. Kamal Hossain, eminent jurist of Bangladesh, for establishing the rule of law there are requirements of good will and consensus amongst people along with appropriate legal frameworks.[16]

In the society of South Asia, law, due to its ineffective applicability of rule of law, fails to flourish peoples’ aspirations; promotion of their creativity; free choice of selecting values and ways of leading life. The participation of common people in producing new norms is tacitly discarded. In the name of law making, South Asian States’ institutions happen to impose their opinions on the shoulder of common people. The blind copying of laws from the developed societies and strategically unplanned observance of principles of law and justice from societies having institutionally and structurally different set up and hence all of these are major  reasons behind the fragile edifice of rule of law in the South Asia region.

References:

[1] Richard Fallon, ‘The Rule of Law as a Concept in Constitutional Discourse’, 97 COLUM. L. REV. 1 (1997)

[2] Williams, Glanville, Learning the Law, Eleventh Edition, (Universal Law Publishing Co. 2009) p.1

[3] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1273005  (Accessed on 24 April, 2013, 4:50 pm)

[4] Thomas Carothers, The Rule of Law Revival, 77 FOREIGN AFF., 2003 pp. 3-13 at 5

[5] Chesterman, Simon (2012), ‘Rule of Law’, in R Wolfrum (ed) The Max Planck Encylopedia of Public International Law, 8:1014-1022

[6] Halim, Abdul, Constitution, Constitutional Law & Politics, Third Edition  (CCB Foundation Press 2010) p. 407

[7] David Lyons,  Ethics and the Rule of Law, (Cambridge University Press 1983) p. 106

[8] M. Dwivedi, South Asia Security, First Edition (Kalpez Publications 2009) p. 244

[9] Sangroula, Dr. Yubaraj, Jurisprudence: The Philosophy of Law  (KSL 2010) p. 32

[10] Sangroula, Dr. Yubaraj, Jurisprudence: The Philosophy of Law  (KSL 2010) p. 281

[11] https://www.ipsnews.net/2012/11/rule-of-law-strongest-in-nordics-weakest-in-asia/ (Accessed on 24 April, 2013, 5:20 pm)

[12] https://www.ttrweekly.com/site/2012/11/rule-of-law-how-asia-stacks-up/ (Accessed on 22 April, 2013, 3:10 pm)

[13] Matthew H. Kramer, Objectivity and the Rule of Law,  (Cambridge University Press, 2007), p.143.

[14] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1273005  (Accessed on 24 April, 2013, 4:50 pm)

[15] Sangroula, Dr. Yubaraj, Jurisprudence: The Philosophy of Law  (KSL 2010) p. 289

[16] https://archive.thedailystar.net/newDesign/news-details.php?nid=262764 (Accessed on 24 April, 2013, 5:10 pm)

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July 19, 2016

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