Tom Bingham (rule of law: Lord Bingham’s Eight Principles) summed up the basic aspects of the rule of law (ROL). They are:
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 the exercise of discretion.
3. Laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.
4. Law must afford adequate protection of fundamental human rights.
5. Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide disputes which the parties themselves are unable to resolve.
6. Ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and w/o exceeding the limit of such powers. (Judicial review)
7. Adjudicative procedures provided by the state should be fair. The ROL would seem to require no less.
8. ROL requires compliance by the state with its obligations in international law- the law which whether deriving from treaty or international custom and practice governs the conduct of nations.
In this issue of Article 2 we carry a summary of the views of participants at a conference held by the Asian Human Rights Commission at which the participants were asked to answer a set of questions on the eight principles mentioned above.
The answers given by the participants in terms of the countries could provide an insight into the state of the rule of law in their respective countries. The answers also helps in gaining an understanding of the problems faced in each of these countries in terms of the public institutions, and how far the functioning of these institutions are based on the principles of the rule of law.
The reader may find the information here, which may at first site be rather depressing. The participants have made stark revelations about the nature of the legal system under which they are living.
A closer look would reveal that the basic organisation of the system of governance and administration in these countries are not based on the rule of law principles. In fact, the systems are developed on principles which are in opposition to the rule of law.
This poses serious questions on the nature of governance in these countries. A democracy cannot function when the basic structures of governance and administration in a particular country is based on principles that oppose the rule of law.
Equally the protection and promotion of human rights also presupposed that the system of governance and administration is designed to function under the principles of rule of law. Where the design itself is based on the principles opposed to the rule of law, the very system is in conflict with the basic norms and standards set out in United Nations Conventions on human rights.
This actual reality is much more important than various public declarations the governments in these countries have made about the nature of their systems of governance and administration.
It is this difference between what is claimed and what is in fact is being practiced that has been revealed in this issue of Article 2.
We hope that these revelations could be a starting point into a proper assessment of what reforms are needed to take place if the liberties of the individuals living in these countries are to be protected.
