WHAT IS THE RULE OF LAW?
The World Justice Project's definition of the rule of law is comprised of the following four universal
principles:
1. Accountability
The government as well as private actors are accountable under the law.
2. Just Laws
The laws are clear, publicized, stable, and just; are applied evenly;
and protect fundamental rights, including the security of persons and property
and certain core human rights.
3. Open Government
The processes by which the laws are enacted, administered, and enforced
are accessible, fair, and efficient.
4. Accessible and Impartial
Dispute Resolution
Justice is delivered timely by competent, ethical, and independent
representatives and neutrals who are accessible, have adequate resources, and
reflect the makeup of the communities they serve.
These four universal principles constitute a working definition of the
rule of law. They were developed in accordance with internationally accepted
standards and norms, and were tested and refined in consultation with a wide
variety of experts worldwide.
—“What is the Rule of Law?” World
Justice Project
WHAT IS THE DIFFERENCE BETWEEN RULE OF LAW AND RULE BY LAW?
Pranav Manghat
Pranav Manghat, studied Public Administration at Indira Gandhi National
Open University
Answered Aug 17 · Upvoted by Mike Harper, J.D. Law, Florida State
University (2007)
The discussion on the distinction between Rule of Law and Rule by Law is as
old as the concept of Rule of law.
Before answering the question, few basics need to be discussed.
The concept of Rule of Law:
Rule of law is one of the most important principles in law as a field
and practice.
Rule of law, though as old
as civilization, was popularised by A. V. Dicey in 1980s in his Introduction to
the study of law of Constitution. It has three tenets:
Equality before law
Presumption of innocence unless
proven guilty
Primacy of rights over
Constitution
The concept of Rule by law:
Rule by law is ruling as per the law. This implies executive actions
should be confined within the four walls of law drawn by legislature. But if
the walls itself are faulty, there is no remedy there.
Difference between Rule of Law and Rule by Law:
The following point can be considered as the differences
1. The difference can be simply put as
Rule of Law = Rule by law +
Values
Rule of law is a value laden
concept which includes Democratic values of liberty, equality, fraternity, justice, and others. Thus, it
encompasses not only procedural aspects of law but also the substance. While rule by law is merely procedural and value neutral.
For example, the Rowlatt Act of 1918 which was passed by British
Colonisers in British India was a tyrannical law. It allowed the suspension of
writ of Habeas Corpus for 2 years i.e. it allowed detaining people without any
substantial grounds for 2 years. It was an example Rule by law and not Rule of
law. Thus, any Rule by law inconsistent
with legal values is also violation
of Rule of law.
2. Further, Rule of law
encompasses both the
The letter of law
The spirit of law
With much greater emphasis on the spirit over the letter. Rule by law
on the other hand is limited to the letter of law.
—Pranav Manghat, “What is difference between rule of law and rule by law?”
Quora, August 17, 2018
WE HAVE RULE BY LAW, NOT RULE OF LAW
By: Solita Collas-Monsod - @inquirerdotnet
Philippine Daily Inquirer / 05:10 AM November 17, 2018
Philippine Daily Inquirer / 05:10 AM November 17, 2018
Is the Philippines following the Rule of Law, or Rule by Law? Two
prepositions—“of” and “by”. Tiny. Yet
these make all the difference in the world, Reader.
According to Mortimer Sellers in his “What is the Rule of Law and Why
is it so Important?” societies that enjoy rule of law (ROL) are vastly better
situated than societies that do not, because ROL (or its absence) is “the central measure” dividing good
governments from bad governments everywhere.
Do you agree? On the other hand, societies where rule BY law (RBL) prevails, although they claim to follow the
rule OF law, are really de facto
dictatorships.
How can we tell whether a society is following the rule of law or the
rule by law masquerading as the rule of law? Here’s how:
ROL is a value-laden concept which includes democratic values of
liberty, equality, fraternity, justice and others. Thus, it encompasses not
only procedural aspects of law, but also its substance. RBL, however, is the
mere legalism of ROL. Through RBL, one
man, or a faction or a party, rules through positive law to impose
his/her/their will on others.
Still don’t get it, Reader? Let’s try again. ROL encompasses both the
letter and the spirit of the law, with greater emphasis on the spirit. RBL is
limited to the letter of the law.
Or we can use an equation: ROL = RBL + values + checks and balances.
Which means that if we remove the values and the checks and balances from ROL,
you end up with RBL. ROL is RBL Plus.
The values we have already listed above. What are the checks and balances that ROL
employs? The most important is that ROL
“requires of us that we remove the
will of public officials as much as possible from the administration of justice
in society.” Public authority is necessary to protect against private
power, but ROL keeps public authorities honest.
I take the above to mean, Reader, that under ROL, public officials cannot
hold themselves above the law, or use the law to attain their private
objectives. No wonder, then, that ROL is the English translation of the Latin
phrase “imperium legum”—the empire of laws and not of men.
Now comes the question, Reader: Is the Philippines under ROL or its
inferior (and dangerous) version? Let’s look at what’s happening in the three
major branches of government.
The executive: Here, you
have a senator who is rotting in detention for almost two years now; a Chief
Justice who, with 12 years to go in her term, was removed from the Court; an
Australian nun with 27 years of service to Filipinos under her belt forced to
leave her chosen country. Common denominator: They are all women, but the
important similarity is that they ran afoul of the President for various
reasons. And were attacked by him publicly. Then the Department of Justice, the
Office of the Solicitor General, the Bureau of Immigration, etc., even
Congress, all went into action, and used or misused the letter of the law, in order
to accommodate him.
…The legislative: Here you
have a branch which has not only aided and abetted the executive, but has also
used or misused the law. Think of its franchise-giving powers, and think also
of the fact that the minority (opposition) floor leader is a member of the
majority (defined as one who voted in favor of the incumbent Speaker). The
members disobey their own rules.
The judiciary: Judges who
accommodate the executive are promoted, and those who disagree are kicked out
one way or another. The Supreme Court leads in the rush to accommodate the
President’s wishes (martial law, burial of Marcos, etc.)
As a result of all this, the private sector is trembling in its boots,
or rushing to accommodate the President’s wishes, too.
Summary, Reader: Everybody and his brother in a rush to defer to or
accommodate the President’s wishes. The independence of the other branches
compromised. No more checks and
balances.
What does that add up to? A de
facto dictatorship. Ergo, Rule by Law. Not Rule of Law.
UN PANEL ASKS PHILIPPINE GOV’T TO FREE DE LIMA
ABS-CBN News
Posted at Dec 12 2018 07:44 PM
MANILA - A working group of the United Nations Human Rights Council’s
(UNHRC) has asked the Philippine government to release Sen. Leila de Lima, who
it said was detained due to her remarks about the administration's war on
drugs, her camp said Wednesday.
The Working Group on Arbitrary Detention (WGAD) also referred the
lawmaker's case to the Special Rapporteur on the promotion and protection of
the right to freedom of opinion and expression, the Special Rapporteur on
violence against women, its causes and consequences and the Special Rapporteur
on the independence of judges and lawyers.
It has adopted an opinion that the legislator's detention was
"arbitrary" and violated various provisions of the Universal
Declaration of Human Rights and the International Covenant on Civil and
Political Rights.
The opinion, published on the website of the Office of the United
Nations High Commissioner for Human Rights and shared by De Lima's staff, said
the panel requested the Philippine government to "take the steps necessary
to remedy the situation of Ms. De Lima without delay and bring it into
conformity with the relevant international norms."
"The Working Group considers that, taking into account all the
circumstances of the case, the appropriate remedy would be to release Ms. De
Lima immediately and accord her an enforceable right to compensation and other
reparations, in accordance with international law, including her reinstatement in the positions from
which she was ousted," it read.
The panel also wants the government to ensure "full and
independent investigation of the circumstances surrounding the arbitrary
deprivation of liberty of Ms. De Lima and to take appropriate measures against
those responsible for the violation of her rights."
De Lima has been detained since February 2017 for drug-related charges.
She has repeatedly denied these allegations, but the Supreme Court voted to
keep her in jail.
https://news.abs-cbn.com/news/12/12/18/un-panel-asks-philippine-govt-to-free-de-lima?fbclid=IwAR0ILpjPQVLQH30O3wpt6Ox9FhdWMimqdC6KsMQl7t4gp5CialerQ7X86g4
—“UN panel asks Philippine gov’t to free De Lima,” ABS-CBN News, December 12, 2018
Incarceration of De Lima: Classic example of Rule
BY Law.
***
“Kangaroo Court, Misrule of Law”
“Dictatorial Duterte and the Misrule of Law”
“Kangaroo Supreme Court”
“The Misrule of Law in the Philippines”
***
“Degrade the rule of law and reap the consequences of a lawless society.”
“Under a tyranny the law is misused as an instrument of injustice, persecution, repression, and oppression.”
“Genuine democracy, which subsists in the democratic values and principles internalized by the people, is subverted when criminal leaders controvert the laws embodying the people’s deepest aspirations for freedom from tyranny.”
“Democracy is a work in progress, fascism a work in regress.”
Photo licensed under Creative Commons: https://creativecommons.org/licenses/by-sa/3.0/deed.en
ReplyDeletePhoto link: https://commons.wikimedia.org/wiki/File:Artists-impressions-of-Lady-Justice,_(statue_on_the_Old_Bailey,_London).png
Gonzalinho
RULE OF, RULE BY
ReplyDeleteBy: Michael L. Tan - @inquirerdotnet
Philippine Daily Inquirer / 05:12 AM January 18, 2019
…Rule of law invokes “law” as a concept that goes back several centuries, arguing that we have to be governed, not by people, but by the principle of fairness. Rule of law assures citizens that the laws are there, protecting citizens in many ways, if we use this principle of fairness.
…Rule of law was part and parcel of revolts against monarchies and, in modern times, dictators, and we can be proud to say we have risen to the challenge of defending rule of law, as in 1986.
But, largely, we remain feudal, our politicians (and, in the private sector, executives and managers) governing much like warlords of medieval societies, with no checks and balances. Many of us accept feudal norms as givens, and this is reflected in our continuing reliance on influence networks, what the Chinese call “guanxi”: Who do you know in the bureaucracy who can get to the big bosses?
In fairness, we’ve been cutting down on those influence networks, as in the phaseout of fixers in many government agencies. But we know, too, how the big-time fixers are still around, exemplified by Janet Napoles who could run off with billions of pesos obtained by creating connections to politicians and conspiring with them to launder their pork barrel. Yes, she’s in prison now, but she just might have her prison sentence reduced by riding on the current “rule by law” trend.
What to do then?
We need to get people to be more aware of the benefits of rule of law as early as possible, in schools and, for adults, through mass media.
But look at how we’re handicapped at the level of language. Our lack of prepositions—“of” and “by” are both “ng” in Filipino—complicates matters. The Chinese lack those prepositions, too, a significant matter in ongoing debates about democracy there.
I did an online translate from English to Filipino and, given online translations’ notoriety for inaccurate and sometimes funny results, I did get results that turned out to be helpful.
“Rule of law” translated as “paghahari ng batas,” and “rule by law” was “nangagpupuno sa pamamagitan ng kautusan.” Certainly needs refining, but we could start there. For starters, I would tackle the difference between “kautusan,” using Marcos’ thousands of presidential decrees as examples, and “batas.”
…Public good, fairness, justice—that’s what rule of law is all about.
mtan@inquirer.com.ph
Read more: https://opinion.inquirer.net/118945/rule-of-rule-by#ixzz5lVssUZW8
Gonzalinho
SWIFT — BUT SELECTIVE — JUSTICE
ReplyDeletePhilippine Daily Inquirer / 05:07 AM January 08, 2019
Maybe it was the P50-million reward money raised by politicians. Or the chest-thumping outrage that boiled over from lawmakers over the killing of one of their own. It could also be President Duterte’s blistering threats on an Albay local official he had publicly intimated was behind the assassination, way before the conclusion of the official investigation.
Whatever it was that gave the police enough impetus to fast-track the case, the killing of Ako Bicol party-list Rep. Rodel Batocabe is now said to be solved. The resolution was achieved in record time — barely two weeks after Batocabe and a police escort were gunned down on Dec. 22 in Daraga, Albay.
The confessed gunman, Henry Yuson, a former militiaman and alleged ex-member of the communist New People’s Army, surrendered, tagged several others, and fingered Daraga Mayor Carlwyn Baldo as the supposed brains behind Batocabe’s murder.
Baldo has denied involvement, saying he is “a convenient scapegoat… an easy target, but that does not make me guilty of the crime.” Nevertheless, the Philippine National Police is confident its case is “airtight.”
What a difference official pressure can make.
The entire weight of officialdom loomed large over this case from the get-go. So unnerved and incensed were lawmakers over the murder of Batocabe — the first killing of a congressman under the Duterte administration — that they immediately raised a huge bounty for leads on the crime and took out newspaper ads denouncing the “senseless killing” and the “assault on Congress” that it represented; the House leader, Gloria Macapagal Arroyo, was also heard to grieve that “life is now so cheap.”
President Duterte and a gaggle of Malacañang officials trooped to Batocabe’s wake to condole with his family, the President all the while bloviating freely and furiously on who might be behind the crime.
These were unmistakable prods and cues the police could ignore only at their peril. The speed with which they worked to collar alleged gunman Yuson and extract a confession from him pointing all the way to Baldo was exemplary, the resulting story sounding plausible enough if too clean-cut: a plot to kill a political rival (Batocabe was running for Albay mayor opposite Baldo), hired killers, a betrayal over unpaid money—and a squeal that’s as plain as can be (Yuson: “Mayor Baldo ordered me to kill Batocabe”).
For now, Yuson’s lone testimony is the scaffolding on which the police have hoisted the entirety of their case. Where is the gun? Has there been a ballistics test? Are there text messages, phone calls or other communications that would definitively link the alleged mastermind to his hired hands, or made mention of money, time, target, etc?
…the police will have to accept their damning implication: SELECTIVE JUSTICE IS AT WORK. The snappy handling of Batocabe’s case merely underlines the very injustice in the PNP’s lumbering, dismal response to thousands of other, mostly obscure, killings.
Were it not for the badgering imposed on it by the agitated political aristocracy for the death of a colleague, would the chips have fallen as fast and as neatly as they seemingly have in this case?
To be continued
ALL CAPS MINE
DeleteGonzalinho
SWIFT — BUT SELECTIVE — JUSTICE
ReplyDeletePhilippine Daily Inquirer / 05:07 AM January 08, 2019
Continued
Even as the PNP basks in the honeyed words and praises by a relieved ruling order, it has yet to disclose its findings on the 22,983 CASES OF KILLINGS OF ORDINARY FILIPINOS CLASSIFIED as DEATHS UNDER INQUIRY (DUI) in its records, from the time President DUTERTE launched his WAR ON DRUGS in 2016.
In a report, the PNP Directorate for Investigation and Detective Management said at least 33 PERSONS were KILLED DAILY from JULY 1, 2016 TO MAY 21, 2018.
Across the Philippines, an AVERAGE OF FOUR PEOPLE are KILLED EACH DAY by RIDING-TANDEM SHOOTERS — the same modus that killed Batocabe.
Do their lives matter as much? That a congressman’s killing got solved in two weeks, while theirs continue to languish, is the bleak, deeply dismaying answer.
Read more: https://opinion.inquirer.net/118741/swift-but-selective-justice#ixzz5lcU1syMD
Gonzalinho
https://opinion.inquirer.net/118741/swift-but-selective-justice#ixzz5lcU1syMD
Delete—“Editorial: Swift—but selective—justice,” Inquirer.net, January 8, 2019
Gonzalinho
COURT RULING AGAINST TRILLANES IS DOUBLE JEOPARDY, SAYS IBP
ReplyDeletePhilippine Daily Inquirer / 07:27 AM January 09, 2019
The decision of the Makati Regional Trial Court (RTC) affirming the issuance of a warrant for the arrest of Sen. Antonio Trillanes IV in connection with the government’s revival of a rebellion case against him smacks of double jeopardy, the Integrated Bar of the Philippines (IBP) said on Tuesday.
Read more: https://newsinfo.inquirer.net/1070822/court-ruling-against-trillanes-is-double-jeopardy-says-ibp#ixzz5lcaGnjXB
Gonzalinho
https://newsinfo.inquirer.net/1070822/court-ruling-against-trillanes-is-double-jeopardy-says-ibp#ixzz5lcaGnjXB
Delete—Jerome Aning, Leila B. Salaverria, Christine O. Avendaño, and Dexter Cabalza, “Court ruling against Trillanes is double jeopardy, says IBP, Inquirer.net, January 9, 2019
Gonzalinho
ALL CAPS MINE
ReplyDeleteSHARED SHAME AND GUILT
By: Edilberto C. de Jesus - @inquirerdotnet
Philippine Daily Inquirer / 05:00 AM February 02, 2019
Many things NEED FIXING in our democratic government, most urgently among them the INSTITUTIONS RESPONSIBLE for CRIMINAL JUSTICE. Court proceedings crawl at a glacial pace. Police commit crimes and escape commensurate punishment. The Supreme Court renders conflicting decisions and judgments spurned by law schools and the Integrated Bar of the Philippines. Far too frequently, THE SYSTEM INFLICTS INJUSTICE.
…Aurora Almendral’s recent New York Times piece described the condition of 518 inmates crammed in the Manila City Jail’s Dorm 5 intended to hold 170 prisoners. Most inmates were “pretrial detainees”; they had not been tried or convicted, but will likely spend years in detention until the overburdened courts can resolve their cases. In 2018, PRETRIAL DETAINEES accounted for about 135,000, OR 75 PERCENT, OF THE ROUGHLY 180,000 PRISONERS. CLOSE TO FIVE PRISONERS SHARE FACILITIES MEANT FOR ONE.
One detainee interviewed by Almendral would have merited for his offense a jail sentence of 15 days. Or should have obtained release two months after his arrest, when dental tests confirmed him a minor. He has already served over 21 months in jail. No one is helping him. The story might have prompted assistance from some readers, but he could not be named. We strip him of his freedom and privacy in his detention, but media must protect his confidential data, or face sanctions.
The government prescribes a ratio of one correctional officer for every seven inmates. But the ratio can drop to one officer for 528 for some shifts in the Manila City Jail. To maintain control, the authorities have effectively deputized gang leaders to police the inmates, punish violations according to gang rules, and preserve the peace. Yet, politicians appear horrified to discover imprisoned gang leaders running drugs and other criminal activities in and outside jail.
The prison environment is more likely to brutalize and dehumanize, rather than rehabilitate, inmates. Sadly, these conditions also risk anesthetizing correctional officers to the pain of their prisoners and subjecting them also to the system’s dehumanizing and brutalizing tendencies. We have maintained a penal system where the measure of punishment suffered by prisoners not yet convicted often exceeds what is prescribed by law for the guilty.
We have allowed to endure for decades this cause for collective shame and guilt. Why has this blatant injustice not provoked greater public outrage? The photograph of prisoners packed like sardines mocks the lofty rhetoric proclaiming the goals of the criminal justice system and BETRAYS the CHRISTIAN VALUES we supposedly cherish. Perhaps, the law schools can find among their 40,000 practicing alumni some lawyers who can mobilize a class action suit against the government for inflicting on pretrial detainees cruel and inhuman punishment.
…Edilberto C. de Jesus (edcdejesus@ gmail.com) is professor emeritus at the Asian Institute of Management.
Business Matters is a project of the Makati Business Club.
Read more: https://opinion.inquirer.net/119262/shared-shame-and-guilt#ixzz5lcdUBZ49
Gonzalinho
A country should be judged by how it treats its minorities.
ReplyDelete#JusticeForJenniferLaude
Dr. Winlove Mojica,
@theskinsensei
Philippine Daily Inquirer (September 9, 2020)
Main principles entailed are “Just Laws” and “Equality before law.”
Gonzalinho
Humanitarian considerations for plunderers, pardon for a foreigner convicted of murder…but no mercy for activists even if it means mother and child never get to be with each other. Justice in the Philippines.
ReplyDeleteBarnaby Lo, @barnabychuck
Philippine Daily Inquirer (October 12, 2020)
Gonzalinho
Imelda Marcos was sentenced to serve decades in prison. But the justice system said she was “too old” to go to jail. This is the same justice system that didn’t allow a mother to see her sick 3-month old. #FreeInaNasino
ReplyDelete@misskarmasulu
Philippine Daily Inquirer (October 12, 2020)
Gonzalinho
WHAT IS THE CONDITION OF THE RULE OF LAW IN THE PHILIPPINES?
ReplyDeleteAdvancing the rule of law should move in the direction of improving transparency and accountability, and the protection of political and civil rights. Degrading the rule of law moves in the opposite direction—authoritarianism, co-opting elite privilege, especially their economic advantage, and even allowing corruption and plunder to flourish.
In what direction does the practice of law in the Philippines go? Under the current administration, it has moved in the direction of dictatorship and plunder, which is no surprise—it was obvious from the start. For this purpose, the law has been consistently weaponized or elasticized.
Rule of law is very weak in the Philippines. See:
https://www.bworldonline.com/philippine-rule-of-law-remains-one-of-asias-weakest/
—Bianca Angelica D. Añago, “Philippine rule of law remains one of Asia’s weakest,” BusinessWorld (October 15, 2021)
Gonzalinho