Rule of whose law?

Breaking the rule of whose law? Yusmadi Yusoff 07 August 2008 - Malaysia Today AUG 7 — We have been incessantly reminded by government leaders that we should abide by the law. That, in order for justice to prevail, we should uphold the rule of law. The Prime Minister again reminded us that we should be fair and that the law must allow a complainant to seek legitimate redress. The Prime Minister cautioned the public to "remember" that there is a valid complaint by Mohd Saiful Bukhari Azlan against Datuk Seri Anwar Ibrahim to be entertained. That it was, after all, done in accordance with the dictates of the law. That, again, any public outcry against the charges framed against Anwar is unnecessary and would jeopardise peace and order in society. As we moved into another series of the Anwar Ibrahim trials, reminiscent of the 1998 saga, we have again been given legal tutelage by government ministers. It is assumed that as long as the process involves the court of law, justice would prevail. It is also assumed that a charge can only be framed in the face of credible evidence, as weighed by the institutions of justice. These are the assumptions thrown about in the mainstream media on a daily basis, so that the people understand and appreciate that the fair game of justice is at work. We have been made to understand that we should let the law take its course. Lady Justice, holding the balancing scales, would forever be blinded from prejudices and would decide without fear or favour. The assumption is only theoretically correct, lest we forget that even justice can be a game, with willing pawns, charting its own rules for its own needs. The free use of the terms "rule of law" and "due process" as a means to justify action by politicians demands serious examination. As simple as it sounds, "rule of law" in fact reflects a serious concept which has often been misused and its philosophical and jurisprudential considerations largely ignored. First and foremost, rule of law does not equate to mere application of rule by law, regardless of the substance of the law invoked. Throughout history, laws have constantly been challenged for elements of discrimination and oppression. Hence, even the substance of the law must be examined before the application of the law can be accepted. Secondly, rule of law, even at its most minimal level, demands the application of the law to be devoid of external influences, especially governmental influence and that the institution adjudicating the laws ought to be free from corruption. External influences create ripples of instability, which may grow and endanger the order and legal certainty that is assumed with the rule of law. Rule of law shares an extremely intimate relationship with the other dimensions of a democratic government. In the truest form, it demands an independent judiciary, political rights, civil liberties and mechanisms of accountability to ensure that it remains true to form. Thirdly, we have to understand that rule of law rests on the pillar of democracy. In a society where the word of the minister is often quoted to be the gospel truth, we need to urgently step back and recall Thomas Paine's warning that "in absolute governments, the King is law, so in free countries the law ought to be King and there ought to be no other". Before parading the rule of law to diplomats and the media, as constantly exercised by Home Minister Datuk Syed Hamid Albar, we have to first honestly answer if we have been a free country in our practice of the law. We are hard pressed to honestly answer if we have been a country which protects, strengthens and empowers the agents of the rule of law. Democracy, protection of human rights and protection from bureaucratic caprice and corruption certainly cannot be divorced from the discussion with regards to the rule of law. Any attempt to do so means that the rules which have been promulgated exist within a system which is known only to autocratic despots and German Nazis. The notion that rule of law is an automated system which guarantees justice cannot be true when the substance of the law and its agents are constantly questioned even by the very people governed by the system. Serious doubts and questions were asked by the Bar Council and the public, mainly through the alternative media, on the veracity of the charges made in the police report. Yet, the questions posed were replied by affording denials, almost evasive if one were to recall the media statements made by Hospital Pusrawi on the medical report of Saiful Bukhari. The call by the Prime Minister himself for Anwar to "deliver" his DNA to the authorities is another incident which smacks of legal and scientific ignorance. The public demanded answers and obtained denials. They may have been "answers" but in fact, they created further questions and undoubtedly fuelled further speculation. More damaging, the "rule of law" as practised in Malaysia, now hangs precariously for the whole world to see. The controversial trials of Norita Samsudin and Datuk Norjan Khan and, lately, of Altantuya Shariibuu certainly beg the question of whether the rule of law is in place. In the eyes of the public, the institutions of justice have not "delivered" up to expectations. The lack of public confidence automatically means the lack of "legitimacy". In short, the rule of law cannot exist in the true sense when it is administered by a questionable system. The philosophy of punishment is deterrence. Yet, there would be none should the delivery mechanism be tainted with abuse and doubted by the people it serves. Rule of law demands categorical commitment to democracy and basic protection of human rights. Anything less means that we are not entitled to invoke it as a tool to justify action. The rights of not one but all citizens are at risk without a vigorous application of a truly democratic rule of law. Often quoting or misquoting the "rule of law" in order to justify questionable action in the face of glaring questions is a retrogressive and an unabashed embrace of Machiavellian politics — that the end justifies the means. Getulio Vargas, the former Brazilian President, was reported to have said: "For my friends, everything, for my enemies the law." Such is the power of the law. Yusmadi Yusoff is the Parti Keadilan Rakyat MP for Balik Pulau and currently a Fellow at the Center on Democracy, Development and the Rule of Law at Stanford University, the United States. ...source