Mob Ruled the Law

Senator Datuk Dr Chin Fook Weng said police had failed to uphold the rule of law to protect the forum on minority rights as provided by Article 11 of the Federal Constitution in Penang last Sunday.

The forum on “Federal Constitution: Protection for All” organised by an umbrella group of 14 NGOs and attended by about 2,000 participants, was cut short by police following a protest by 500 members of the Anti Inter-Faith Commission.

Dr Chin said: “It appears that the mob rule prevailed and that the police had sided with the mob. The rule of law had been undermined to the advantage of a mob. The police approved and gave the permit for the forum and it is their job to ensure everything went peacefully.”

Senator Tay Puay Chuan said: “The police were negligent in their duty.” Article 11 deals with the freedom of religion.

Senator Datuk Omar Faudzar was of the opinion that the country should not place the rule of law above peace and security.

If we agree with Senator Omar, then should the mob of 500 were to try to take over the parliament, it would seem right that parliament should allow the mob to peacefully take over the country's legislature so as to avoid conflict and preserve peace and security. Is this right?

What is the rule of law?

In setting out the meaning of the rule of law, AV Dicey considered 3 distinct elements:

1) The extent of the State's power and the manner in which it exercise such power which should be limited and controlled by the law. This control is aimed at preventing the State from acquiring and using wide discretionary powers which are inherent in discretion and which lies the possibility of it being abused.

2) The second relates to equality before the law. No person should be above the law, irrespective of rank or class and the function of the State are to be subjected to the same law and legal procedures as ordinary citizens.

3) The thrid component relates to the fact that the rules of the constitution were the outcome of the ordinary law of the land and were based on the provision of remedies by the courts, rather than on the declaration of rights in the form of written constitution.

Social thinker Friedrich Von Hayek followed Dicey in emphasising its essential component as the absence of arbitrary power in the hands of the State. According to Hayek in his "The Road to Sefrdom": "Stripped of all technicalities, the rule of law means that government in all its actions is bound by rules and announced beforehand."

According to Hayek, the rule of law implies limits on the scope of legislation, it restricts it to the kind of general rules as formal law; and excludes legislation directly aimed at particular people. Nor should law be aimed at particular goals.

In other words, the government has no place in usurping the authority of individuals by deciding their course of action for them. The job of law is therefore to set boundaries of personal action, and not to dictate the course of such action. Laws should also not be of particular in content or application, but should be general in nature, applying to all and benefiting no one in particular.

EP Thompson in his book 'Whigs and Hunters' (1975), analyses the evolution of the doctrine of the rule of law and conclude that: "the rule of law itself, the imposing of effective inhibitions upon power and the defence of the citizen from power's all-intrusive claims, seems to me an unqualified human good".

Thompson is concerned primarily with the way in which State has progressively lopped branches off the 'liberty tree' by increasingly interfering with civil liberties and rights of individual citizens such as the increases in police powers. The point is that there are general process in which the State had increase their power and at the same time remove exisitng rights from individuals.

Joseph Raz recognises the need for the government of men as well as of laws and that the pursuit of social goals may require the enactment of both general and particular laws. To Raz, the law must be capable of guiding the individuals' behavior and that it must be prospective rather than retroactive. The law should also be clear and open in order to enable people to understand their actions in line with them. Laws should also be relatively stable and that the judiciary independence should be guaranteed. To Raz, the principle of natural justice should be observed and that the courts should have power to review the way in which the other principles are implemented.

However, it can be seen that contemporary State was no longer satisfied simply to provide a legal framework for the conduct of economic activity, but was increasingly, becoming actively involved in the direct co-ordination and regulation of economic activity in the pursuit of its own goals. The replacement of the free market by a planned economy has major consequences for the form of law, as clearly stated, and fixed general laws are replaced by open textured discretionary legislation, empowering State functionaries to take action as and when they considered necessary.

It can be noted that where the rule of law are reduced to a matter of mere parliamentary procedure, it does not go far in protecting individual rights and general civil liberties from legislative encroachment. It is, perhaps, for this reason that there has been the substantial recent pressure for as a means of entrenching civil liberties and providing the safeguard that, arguably, the strict version of the rule of law used to provide.

It is argued that there remains a need for the limitation and control of State activity which, arguably, the rule of law provides, at least in certain formulations.