The rule of law is one of the most important underlying principles of a democratic society. This broad principle has many facets with varying conceptions of what it entails among legal philosophers. Some legal philosophers argue that the rule of law embodies certain basic ideas in that laws must be open, clear, accessible, intelligible, predictable, coherent, and stable.
The underlying value of this norm-guidance aspect of the rule of law is to enable citizens to regulate their conduct. Legal norms that do not conform to these requirements tend to be arbitrary because of the sanctity of self-autonomy in a liberal democracy that respects human dignity to make choices.
Another aspect of the rule of law is the imperative of governing all citizens based on laws that are fairly applied and enforced. As such, there has always been a need for public accountability of government agencies exercising the state power. The potentiality of arbitrary exercise of the judicial power, for instance, is mitigated by the duty to comply with procedural requirements such as public hearings of the judicial proceedings.
Open justice is capable of putting a restraint so that judges cannot exercise judicial power arbitrarily in court adjudication. Similarly, parliamentary scrutiny to keep the government in check rests on the same premise that there is no rule of law if there is an absolute concentration of the state powers without any element of check and balance.
Some scholars contend, however, that the rule of law cannot be understood as a matter of principles, standards and institutions only without the right and appropriate culture in the society to support them. The need for cultural aspect of legality has been argued by Brian Tamanaha, for example, who is of the view that “for the rule of law to exist, people must believe in and be committed to the rule of law”.
In addition to the established principles, standards and institutions, the rule of law requires the commitment of all parties in the society, and this has sometimes been referred to as the idea of reciprocal expectation among members of the public.
In a similar vein, Gerald Postema looks beyond the substantive, formal and procedural standards and suggests that to understand “the conditions necessary for the realisation of the rule of law in a polity” the component of legality must be complemented with the ethical aspect of fidelity that is served in two ways.
First, it is served through what he describes as “the culture of a polity, the mutual understandings and associated practices of people in a community in which the rule of law is realised”.
Second, fidelity to the rule of law is served through “the mutual responsibilities borne by members of law’s ethos [the public], including the responsibility to hold each other to the faithful execution of these responsibilities”.
The idea of fidelity as envisaged above is not alien to the Islamic tradition. The acceptance speech of Caliph Abu Bakr after his election as the first caliph, for example, shows that reciprocal expectation exists. Caliph Abu Bakr said, “O people, I have been appointed over you, though I am not the best among you. If I am right, then help me; and if I act wrongly, then correct me. Truthfulness is synonymous with fulfilling the trust, and lying is equivalent to treachery…”
The excerpt of Caliph Abu Bakr speech expounds two things; firstly, there is no room for blind loyalty and absolute obedience to any leader in a just society. We obey leaders so long as they do the right thing, and if there was a mistake, we must advise and remind them of that. The critical loyalty of all members of the public is what makes the country prosperous. Being loyal to our leaders requires us to be critical because the law in the modern context is a system of public rules that reflects not only what officials recognise, but also what the general public accepts.
Secondly, truthfulness should be the basis of all dealings between a leader and his people. There is no room for sycophancy and prevarication in a good society. Responsible citizens are duty bound morally, to tell the truth about the state of affairs in the country to their leaders. Those who attempt to paint a rosy picture of an issue of public interest while it is not, in fact, true are accountable to the nation.
Therefore, in the next five years, all citizens, Muslims and non-Muslims alike must ensure that our representatives who were recently elected in the general election will keep up to their promises and work hard to serve our interests. Malaysian voters have decided, and their will must be respected.
The writer is Research Fellow at IAIS Malaysia, with interests in legal theory and Islamic jurisprudence.
Published in: New Straits Times, Saturday 12 May 2018
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