By Vergil Narokobi
Many people have been using the term “rule of law” recently. I think in the last couple of days three phrases have become fashionable in PNG – “Rule of law,” “Politically motivated” and “politically compromised”. I want to focus on the idea of the rule of law in this piece. I have relied on the work by Michael N’Tumy’s Administrative Law of Papua New Guinea (1st edn pages 33-45) to put together this piece by taking his main points and sources.
The rule of law is considered as an important element of a fair and functioning society. The rule of law means that government must be carried out by pre-determined rules of engagement and should not be made up as we go along. It tries to avoid arbitrary judgement of rulers. The same rules govern the ruled and the ruler. The ruler should not change the rules whenever they feel like it. Rule of law is a concept or principle which guides the way governments behave. On its own it is not law, but takes expression in various sections of the Constitution.
Papua New Guinea has adopted its government system from the English Westminster tradition. So it is important to see what some noted commentators from the UK have said about the Rule of Law. The most important is perhaps Dicey. Dicey pointed out three elements that were essential to the rule of law. He associated the rule of law with individual freedom. Two elements that are important for us are:
1. Legality – regular law should govern the conduct of everyone. An example is that someone cannot be punished for something where there is no law at the time the act (or omission) was committed. This idea is inserted in s 37 of the Papua New Guinea Constitution entitled “Protection of the law”. Simply a person cannot be sent to prison for doing something that is not against the law. For example you cannot take a buai chewer in Wewak to court, because their is no law forbidding chewing of buai in Wewak.
2. Impartiality – Everybody is subject to the same law. Dicey’s explains it this was ” not only that…no man is above the law, but…that…every man, whatever be his rank or condition, is subject to the ordinary law of the realm…” This maybe hard for us in PNG where we think that the “Big Man” is not subject to the same law everyone follows. Our Constitution endorses this idea of equality under s 55 of the Constitution.
Since Dicey’s views in the 19th century a number of international meetings of lawyers and judges have further discussed this concept. One of them was the Declaration of the International Commission of Jurists in 1955 in Athens, Greece. This conference identified the following components of the rule of law:
1. The State is subject to the Law.
2. The Government should respect the rights of the individual under the Rule of Law and provide effective means for their enforcement.
3. Judges should be guided by the Rule of Law, protect and enforce it without fear or favour and resist any encroachments by governments on their independence as judges.
3. Lawyers of the world should preserve the independence of their profession, assert the rights of the individual under the Rule of Law and insist the every accused be accorded a fair trial.
This quote from the British Committee on Administrative Tribunals Report 1957 also provides useful explanation on the idea of the Rule of Law:
“The Rule of Law stands for the view that decisions should be made by the application of known principles or laws…On the other hand, there is what is arbitrary. A decision may be made without principle, without any rules. It is therefore unpredictable, the antithesis of a decision taken in accordance with the rule of law”.
A more modern take on the rule of law is from the World Justice Project who advocate the following four factors as important for the Rule of Law:
1. The government and its officials and agents as well as individuals and private entities are accountable under the law.
2. The laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property.
3. The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient.
4. Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.
Hopefully this information will help the readership draw their own conclusions about the threat to the rule of law from the recent political turmoil and how this is reflected in our government system ie the legislature, the executive and the judiciary.