Ananda Devi Dhurjon, LLB, LLM (UWI), LLM (Lond) – Principal Parliamentary Counsel
We often hear politicians and commentators speak of the ‘Rule of Law’. Its phraseology breeds a variety of interpretations, yet everyone agrees this must be a good thing. But this is no hollow cliché; indeed our Constitution gives it pride of place in its preamble that we “forge a system of governance…to develop a viable economy and a harmonious community based on democratic values…and the rule of law.”
A constitution’s preamble animates its provisions, and in some circumstances, one can have regard to it when interpreting its articles. The preambles of the Constitutions of Dominica, Trinidad, Belize and Barbados all state that their respective peoples recognize “that men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law”.
What is it?
The meaning and significance of the term has evolved much since its genesis in 1885 when Professor Albert Vinn Dicey coined the term. To understand the meaning of the ‘Rule of Law’, I would rather start by saying that it is a short phrase out of which many ideas spring forth. It requires that fundamental rights should be enshrined, that the law must be clear, that public officials’ decisions must have good bases. It requires that there must be universal entitlement to the law and universal accountability to it too. It encompasses concepts that are indispensable to a democracy such as the separation of powers, natural justice, procedural and substantive fairness. The rule of law is a compendium of these principles. The following are some of the core values that I prefer to now explain:
he Constitution asserts a large variety of fundamental rights such as the protection of the right to life, the right to work, freedom from discrimination, freedom of expression, and so forth. Too few Guyanese know that one of the finest innovations of the Constitutional Reform Commission of 2001 was to constitutionally provide that six international rights conventions have force of law in Guyana – take for instance, the Convention on the Rights of the Child. What’s more, our Constitution provides for four Rights Commissions to “strengthen social justice and the rule of law” to review human rights’ policies and investigate complaints, among other things. These are the Human Rights Commission, the Women and Gender Equality Commission, the Indigenous Peoples’ Commission and the Rights of the Child Commission. In enshrining these rights constitutionally, we thereby removed the possibility of their unreasonable encroachment and established an irreducible minimum of dignity for all citizens, otherwise the rule of law would be undermined.
Certainty in the Law
Laws must be clear – clearly drafted if it is to be legislation, and clearly articulated if it is to be judge-made principle. What tyranny would there be if one could break a law without anyone reasonably knowing of its existence? In fact, vague laws are likely to be struck down by the Courts for unconstitutionality. One should be able to foresee the consequences of his actions. At the same time, once the law is clear, as the maxim goes, ignorance of the law is no excuse. Part of the requirement for clarity is the need for there to be consistency in the law’s principles as set out by Courts; the law must be predictable. This is why courts’ are guided by their previous decisions – this is the principle of stare decisis – but must yet set new precedent when justice wills it.
Equality Before the Law & Equal Entitlement to the Law
The requirement that justice must be evenhanded is a sine qua non of the rule of law. The rights under the law must accrue to all. The obligations and liabilities of the law, generally speaking, must apply generally. These issues are not trite or dead when problems such as human trafficking, racial discrimination and gender inequality pervade; the sanctity of equal entitlement to the law must be upheld. Even convicted murderers awaiting execution must be allowed a reasonable time for their petitions to an international body to be heard and for the ensuing reports to be considered by the Privy Council before their execution (A.G. v Joseph and Boyce (2006)). Conversely, from the impoverished robber to the President or his Ministers, all must be held liable for their illegalities.
For good governance, governmental authorities are commonly given wide powers under statute. This does not mean that they can make an irrational, emotional or prejudiced decision. Such a decision would be beyond their power or ultra vires and can be quashed by the High Court. All decisions by public authorities affecting public rights must take only relevant matters into consideration and eschew all irrelevant matters. Defined limits on State power are vital to the rule of law. The rule of law requires that decisions by authorities are disciplined and reasonable, otherwise we would be staring oppression in the face. In fact our Judicial Review Act, Chapter 3:06, which, although law awaits being brought into force, would give affected persons the right to apply to an authority for the reasons for its decision. For that provision and others too many to mention, the activation of the Judicial Review Act would be momentous for the rule of law.
We must activate, maintain and strengthen the architecture for the rule of law as highlighted; without spirited enforcement of such Guyana cannot tap into the true potential of those benefits that accrue from the rule of law.
For public consumption, what I have attempted to do is to condense some of the mass of writing on the topic. I trust that, for some, I helped a better appreciation for the rule of law, its meaning and significance. I suggest that interested readers can delve into their own exploration as there is much that I have left unsaid.