THE RULE OF LAW IN A CIVILIZED SOCIETY [By: Atty. R.A. Salalima]
THE LATE LORD CHIEF JUSTICE TOM BINGHAM essayed what to me is the Rule of Law. In his book “The Rule of Law” (London, 2010), he cited seven criteria as bases in assessing a good legal system:
1. The law must be accessible and so far as possible intelligible, clear and predictable;
2. Questions of legal right and liability should ordinarily be resolved by application of the law and not by the exercise if discretion;
3. The laws of the land should apply, equally to all, save to the extent that objective differences (such as mental incapacity) justify differentiation;
4. Ministers and public officers at all levels must exercise the powers conferred, without exceeding the limits of such powers;
5. The law must afford adequate protection of fundamental human rights;
6. Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve; and
7. Adjudicative procedures provided by the State should be fair. (See also Niall Ferguson The Great Degeneration [How Institutions Decay and Economies Die], New York, 2014, pp. 79-80)
EASTERN VS. WESTERN CIVILIZATION
ORIENTAL (ASIAN) civilizations pre-dates Western (European) civilization. Centuries back when Asia already had its advanced civilization, Europe was yet divided into tiny warring territories ruled by feudal lords to whom allegiance was owed by the people for their protection. Then came the introduction in old Europe of, among others, science, medicine and the rule of law, the latter particularly with the recognition of property rights/ownership and their protection and later the enactment of popular laws as shield against lese-majeste (law violative of the dignity of the ruler, especially royalty). With these, States with strong governments rose, with the people shifting their allegiance to these States again for their protection. Thus, Western civilization eclipsed the civilization of the East (Asia).
With the success and growing prosperity of Asia, inclusive of the emergent Southeast Asia, writers, economists and social scientists predicted that Asian civilization will once again outmarched Europe’s. Until the Covid pandemic came. And thus our national struggle todate against this terrible pandemic.
A NATION IN CRISIS/THE RULE OF LAW
We are a Nation in crisis as we struggle to contain Covid. DISCIPLINE thus is a must. On this, much is expected from our people. But more from those in government who must lead by example. Policies, resolutions and regulations to address Covid, where express and clear, studiedly issued and well-reasoned in fact and in law, must be obeyed. The crisis and our resolve to contain the same do not, however, diminish in any way our basic human rights intrinsic in man and embedded in our Bill of Rights. Because human right/s is a birthright innate in man as man and as part of humanity (the Sartrean “humane-ness”), and because of the primacy of our Freedom Constitution over national and local legislations!
Our cherished constitutional freedoms and liberties thus remain unimpaired - - our freedom of expression in its manifold aspects now expanded in the new digital freedom of expression, our right to due process and equal protection of the law involving our dear life, liberty and property, our right to privacy (particularly of communications and correspondence) and its inviolability viewed in the greater light of the “Doctrine of Reasonable Expectation of Privacy” first invoked in Katz vs. U.S. (1967), amplified in Riley vs. California (2014) and adopted in Philippine jurisprudence (in re: Reyes-Johnson vs. People (2012) and Vivares vs. St. Theresa’s College, Cebu (2014), our liberty of abode predicated on the unassailable English legal precept in Common Law that my home is my castle into which no King shall intrude (Entick vs. Carrington), our liberties and protection against lese-majeste, that is, the law of the King, the Stonehill vs Diokno (The Fruit of the Poisonous Tree) and the Miranda Doctrines in Remedial and Constitutional Law.
This is where the Rule of Law comes in in our present day-to-day life and governance. It behooves then for all lawyers, in government and in the private sector dealing and practicing in sensitive areas of the Law, as well as the government itself and all citizens, to pay punctilious respect and obeisance to the Rule of Law.
This Rule of Law is NOT the Rule of Lawyers, the latter being markedly different. In an all-too-familiar strain in re “the stifling residues of cronyism and corruption,” the United States System and the need to re-establish the Rule of Law, Niall Ferguson (The Great Degeneration, supra, pp. 109-110) wrote tellingly and with sting:
“xxx But how is the system to be reformed if, as I have argued, there is so much that is rotten within it: in the legislature, in the regulatory agencies, in the legal system itself?
The answer, as I shall argue xxx must come from outside the realm of public institutions. It must come from the associations of civil society. It must come, in short, from us: THE CITIZENS.”
Any civil society or government built on the love and respect of its people which that body politic must earn a priori, which limits its functions only on powers delegated to it by the sovereigns, and which observes with fidelity the Rule of Law, shall progress, succeed and thus shall endure.
The framers of our Freedom Constitution, in its PREAMBLE, had long declared: “We, the Sovereign Filipino People, imploring the aid of Almighty God, in order to build a just and humane society and establish a government that shall embody Our ideals and aspirations promote the common good, conserve and develop our patrimony, and secure to Ourselves and our posterity the blessings of independence and democracy under the Rule of Law and a regime of Truth, Justice, Freedom, Love, Equality and Peace, do Ordain and Promulgate this Constitution.”
Apart from the importance of the Rule of Law in, and as a hallmark of, a civilized state or civil society for that body politic to succeed and long endure, we too must love our Country and its People.
“Breathes there the man, with soul so dead,
Who never to himself hath said,
This is my own, my native land!”
- Scott, Lay of the Last Minstrel
Life, or even a modicum of it, dedicated in the service or for love of country will spell the big difference in shaping the future course of our Country.
FOR MOTHERLAND INDEED. ABOVE ALL, IN GOD WE (MUST) TRUST!