At one point in the much-discussed report of the Venice Commission, on the democratic adequacy of our constitutional safeguards, the author remarks that it’s not just what the laws state that matters. It’s also their implementation in good faith. You might think that was banal but I’m inclined to believe it wasn’t banal enough.
For before you have implementation in good faith you need to have a good understanding of what the very term ‘rule of law’ means. You need such an understanding not only from the authorities but also in those who are expected to hold them to account, the media and civil society more generally.
Yet, what do we find? The term ‘rule of law’ is routinely misused in Maltese public discourse, almost without challenge, not least by government apologists who tend to get away with it.
For example, it’s now usual for NGO protestors, guilty of expecting their candles and protest notices not to be taken down, to be pronounced guilty of not showing respect for the rule of law.
But this is to confuse two different things. Respect for the rule of law is not the same as respect for the law. It’s an important distinction that goes to the heart of the Venice Commission, which was looking at the first but not at the second.
The distinction is easy. To respect the law is to obey it. It’s about following individual rules.
To respect the rule of law, however, is to respect a set of principles that should underlie the entire system of laws: that the framework of the laws should restrict the arbitrary use of power by the authorities. The rule of law has to do with political order.
When kings claimed a divine right to rule, they too had laws. But you did not have rule of law; you had the arbitrariness of the monarch in applying the law. The concept of rule of law was originally invoked to contrast the power of authoritarian states, which have a reputation for seeing that laws are obeyed but no reputation whatsoever for having rule of law.
If the government apologists were right, and breaking a law were the same as not showing respect for rule of law, then the civil disobedience movement led by Martin Luther King Jr., which sometimes led to laws being broken, flouted the rule of law.
Of course, it didn’t. It challenged laws that were considered unjust by appealing – note this – to the rule of law: to the rights of equality guaranteed by the US Constitution.
Generally, it’s possible only for those with the power to apply the law to violate the rule of law – if they ignore the law or apply it only selectively (e.g. by not investigating everyone strongly suspected of having broken important laws). It is sometimes said that the rule of law has broken down in times of civil unrest or mob violence, but that is because it has become practically impossible for the authorities to impose the law.
To respect the rule of law is to respect a set of principles that should underlie the entire system of laws
The weakening of the rule of law always has to do with the weakening of authority and principle, and with their replacement by naked power and arbitrariness. It’s the substitution of the law, understood as the rules of the political game, by the law as one of the weapons deployed in the game.
Under the rule of law, the laws are a defence of the weak. Without the rule of law, the laws are a weapon of the strong, a secular version of the divine right of kings.
With that in mind, you can see why it’s absurd to accuse Occupy Justice (say) of not respecting the rule of law. For the sake of argument, let us assume that its members are guilty of damaging the Great Siege monument (though the government has provided no evidence they did so). Let’s also assume that they have their right to freedom of expression mixed up (although the government has had not a single legal expert explain how, while Occupy Justice has had its interpretation backed by several international freedom of expression lobbies).
Even in this case Occupy Justice can at most be accused of breaking the law. But it’s not challenging the rule of law because it’s justifying its stance by appeal to the Constitution. The activists are not claiming the right to be arbitrary; they’re claiming the right to be protected by law.
The point is so simple that it’s amazing that the government allows it to be made, in its defence, without correcting the apologists’ view. Because if that mistaken view is allowed to be propagated, the confusion about what rule of law means actually undermines the cultural environment you need to support the rule of law.
It’s enough to make you think, perish the thought, that the authorities don’t care so much about having a public sphere in which rule of law is cherished and safeguarded.
The Venice Commission wasn’t wading in these weeds of detail. It looked at whether the very structure of the rules we have – those the Muscat government inherited in 2013 and the rules it added – contribute to facilitating an environment of arbitrariness.
It concluded that our system leaves far too much scope for arbitrary rule, irrespective of the laws. Our Prime Minister, whoever occupies the role, is virtually an executive President – but without the checks that such an executive should have.
The multiple roles of the Attorney General conflict, so the incumbent necessarily must sometimes choose to privilege one role over another. The way judges are chosen also favours the executive.
All this is true irrespective of the virtue of the incumbents of each role. Let alone if the roles were occupied by the unscrupulous or the spineless.
But let’s not forget that the report also finds the media and civil society wanting. The rule of law is not just the constitutional machine. It’s also the environment in which democratic safeguards and watchdogs are supposed to flourish.
Without public education about what the rule of law is, without the media calling out the absurdities uttered by public figures and officials, without a stand taken for basic understanding, you cannot have basic implementation.
ranierfsadni@europe.com
This is a Times of Malta print opinion piece