October 15, 2016

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Sufficient corrective mechanisms needed to enforce the rule of law

State Counsellor Daw Aung San Suu Kyi once said at a seminar on the rule of law in her capacity as the Chairman of the committee for the rule of law that she would like to urge the participants to be mindful of the difference between the rule of law and rule by law. She explained that the rule of law is the legal principle that law should govern a nation in opposition to a nation being governed by arbitrary decision of individual government officials.
In fact, the rule of law implies that every citizen is subject to the law inclusive of the law makers i.e. the members of parliament themselves. In this sense, the rule of law is contradictory to an autocracy, dictatorship or oligarchy where the rulers are held above the law. Nevertheless, it is worth remembering that lack of the rule of law can also be found in the democratic countries. Neglect or ignorance of law can make the rule of law decay should a government not have sufficient corrective mechanisms for restoration of the rule of law.
In this regard, it is important that a clear distinction is needed to be made between the rule of law and rule by law. The former is, in fact, an intrinsically moral notion whereas the latter is prudential. One rules by law not because the law is higher than oneself but because it is convenient to do so and inconvenient not to do so. In rule of law, the law is something the government serves while in rule by law, the government uses law as the most convenient way to govern.
While the two phrases— rule of law and rule by law – may seem like a flip-of-the-coin, they actually have very different connotations. Under the system of the rule of law, the power of the political leaders is restricted by laws, rules, regulations, ordinances, by laws and procedures. Besides, rule of law implies fairness and predictable application, says Victor Mair, a professor of Chinese language at the University of Pennsylvania while the rule by law would include, for example, rule under Hitler’s Nuremberg Laws, which were neither fair nor predictably applied. In a country ruled by a dictator or in a country ruled by one party, the law courts, the police and the prosecutors are under the control and command of the communist or socialist party, and thus freedom is shunted aside when it conflicts with the party interests.
To sum up, much of what we call the rule of law today is the rule by law; a very serious equivocation given that they tend in entirely different directions.


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