The trend-rule of law
By: Poiya Isaac
Law is “the whole system of rules that everyone in a Country or Society must obey” or with reference to the Black’s Law Dictionary, 8th Edition, Bryan A. Garner, Editor in Chief, page. 900; which is a recommendable authority and I quote; “Law is the set of rules or principles dealing with a specific area of a legal system”. Example; copyright law. And Rule of Law” is derived from the French phrase ‘La Principe de Legality’ (the principle of legality) which refers to a government based on principles of law and not of men in the words of Mark Fathi Massoud, in his book; “Laws’s Fragile State: Colonial, Authorization, and Humanitarian Legacies in Sudan”. And I quote from St. Paul’s letter to Romans: 2:15 “law is written on our hearts” and the fundamental principles of natural law (St. Thomas Acquinas-1226-1276 BC) that; “leaders rule the Society through the authority from God”. The element of law being of divine origin include; “Do good and avoid evil, live honestly, use your own not to injure others, every man must perform his covenants, do justice and man is not a judge in his own cause”. But, this is normally observed by a few who believe in God the Almighty, unlike the non-believers are left out which is a challenge in implementing rule of law and in south Sudan’s legal system. Today, I have taken this time to follow the long trend of rule of law from one generation to another, all the events that happened in the past turning point in human life including the general direction in which rule of law has changed or developed or facts known about rule of law. Reason being; Ubi Societas Ibi Jus, thus Latin Maxim-meaning “where there is a Society, there is law”. This article is relevant to student (s) of Constitutional law, readers, government Officers and researchers. Rule of law is one of the general principles of Constitutional law that is considered to be part and parcel of Constitutionally organized and civilized Country which covers; doctrine of separation of power, fundamental human rights and freedoms and supremacy of the Constitution. To me, rule of law is that of trader (regulate human conducts from one generation to another).
The ancient Greeks: Initially regarded the best form of government as rule by the best men, such as Plato, idealized Philosopher. King; David Clarke, “the many meanings of the rule of law” in Kanishka Jayasuriya, ed. Law, capitalism and power in Asia (New York: Routledge, 1998). Plato never the less hoped that the best men would be good at respecting established laws, and he explained why: where the law is subject to some other authority and has none of its own, the collapse of the State is not far off, but if law is the master of government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that gods may shower on the state. Cooper, John et al. complete works by Plato, page 1402, Hackett publishing, (1997).Aristotle flatly opposed Plato letting the highest officials wield power beyond guiding and serving the laws. In other words, Aristotle advocated for the rule of law; it is more proper that laws should govern than any one of the citizens, upon the same principle, if it is advantageous to the place, the supreme power in some particular persons, they should be appointed to be only guardians and the servants of the laws. The hypothetical question is; are our leaders in South Sudan guardians or servants of the laws? Or are they superior to the laws? If they are guardians or servants, could you and I face all these challenges up to date in this newest country in the whole world? Well, to me this is a normal Constitutional development of any new Country that has emerged from a crisis and searching for freedom.
Roman: A statesman Cicero asserted (106-43 BC); Wormuth Francis. “The origin of Modern Constitutionalism”, page 28 (1949). That, “we are all servants of the laws in order that we may be free”. (In Latin meaning omnes legume servi sumus ut liber esse possumus). During the Roman Republic, controversial Magistrates might be put on trial when their terms of Office expired. Under the Roman Empire, the sovereign was personally immune (in Latin meaning legibus solutes), but those with grievances could sue the Treasury also.In the case of South Sudan; which leader (s) or Officer (s) was procedurally tried in the Court of law when their terms of Office expired for allegations against him or her? If none, why? For we are all servants of the laws that our Parliament enacts.
While for the ancient China: members of the school of legalism during the 3rd century before Christ (BC) argued for using law as a tool of governance, but they promoted “rule by law” as opposed to “rule of law”, meaning that they placed the highest Officials above the law. Guo, Xuezhi, the ideal Chinese political leader: a historical and cultural perspective. Page 152, Munro, Donald, “the concept of man in early China” page 4.In contrast, the Huang-Lao school of Daoism rejected legal positivism in favor of a natural law that even the ruler would be subject to.Do you promote “rule by law” or “rule of law” in South Sudan? Or are our high Officers above the laws? My answer is no. “No one is above the law” thus- the principle of equality before the law and law is supreme. And under article 3 (1) of the 2011, transitional Constitution as amended, “the Constitution shall be the supreme law of the land. It shall bind all persons, institutions, organs and governmental agencies throughout the Country”.
Middle Age: In Islamic jurisprudence, rule of law was formulated before the 12th century, so that no Official could claim to be above the law, not even the Caliph.Weeramantry, C, Justice; without frontiers, page 132 (Martinus Nijhoff Publishers 1997).However, this was not a reference to secular law, but to Islamic religion, law in the form of Sharia law. In 1215, a similar development occurred in England: King John placed himself and England’s future sovereigns and Magistrates at least partially within the rule of law by signing of Magna Carta per the “U.S. National Archives”.
Modern Ages: In a petition to James I of England in 1610, the house of commons said; amongst many other points of happiness and freedom which your majesty’s subjects of this Kingdom have enjoyed under your royal progenitors, Kings and Queens of this realm, there is none which they have accounted more dear and precious than this, to be guided and governed by the certain rule of law both to the head and members that which of right belong to them, and boot by any uncertain or arbitrary form of government. Hallam, Henry, the Constitutional history of England, vol.1. Page. 441 (182).Amongst the first modern authors to give the principle theoretical foundation for rule of law was Samuel Rutherford in lex rex (1644) in his book titled “The Law is King” and reverses the traditional rex lex meaning “the king is the law”. John Locke also discussed this issue in his second treatise of government (1690). Later, the principle was further entrenched by Montesquieu in his book titled “the spirit of the law” (1748). Tamanaha Bria, on the rule of law, page 47. (Cambridge University press, 2004).
Suffice to the above, the known father of the rule of law is Professor All Dicey, he is always kept in memory in Pro tanto-thus Latin Maxim-meaning “to that extent”, in expressing the trend “rule of law” in the modern age; in his Book “The Law of the Constitution (1885)” and his concern was to remove government from the control of power, hungry men and women and to instead impose a rule of principles or rule of law where people were governed on well-known principles of law. He has given the following three elements of the doctrine of rule of law which I found are well provided in our laws; (A)-Absence of arbitrary power, that is, no man is punished except for a breach of law. As per article 19 (1) of the 2011, transitional Constitution as amended, it is the right of an accused person to fair trial where “an accused is presumed innocent until proved guilty according to the law”. And in clause (2) “No person shall be charged with any act or omission which did not constitute an offence at the time of its commission”. Meaning; law is opposed to arbitrary exercise of individual powers by a way of objective quality operating without fear or favour of any individual or authority. (B)-Equality before the law, that is the notion, equal subjection of all citizens to the ordinary law of the land administered by the ordinary law Courts. This is in light with article (14) of the 2011, transitional Constitution as amended. It’s the principle of non-discrimination. (C)-The primacy of the rights of individual, that is, the Constitution is the result of the rights of the individual as defined and enforced by Courts of law, rather than Constitution being the source of the individual rights. This is enshrined in part two; Bill of rights under the 2011, transitional Constitution as amended. Thus a just government. Meaning that; a government not built on justice is a clear violation of the rule of law.
To me; I consider the assertion of Dicey as a good base for a democratic, peaceful and stable government or Society. It provides for the features of a government of the people. And if this three main principles of Dicey are relevant for a democratic and peaceful government or Country in this world of 21st century, then; my hypothetical question shall be; Is there rule of law in the Republic of south Sudan or are these principles well implemented by the authorities concerned. What do you think? Who is at the wrong? I would rather leave this for you to answer logically or hypothetically. It should be noted that although these principles exist in the legal documents, but most Countries apply them with reservations or are not willing or not informed where these laws are found or are faced with a lot of challenges there-with, especially; African Countries. Because they set a government that suit to their social, eco. And political environment of the days and they create an environment of crisis in their Countries with limited peace to their citizens.
Therefore; for the case of the Republic of South Sudan, observance of the Constitutionalism of the principles of rule of law became known or started to exist officially following the last fourteen years- the Interim National Constitution (INC) of the Republic of Sudan, 2005 as was repelled; the interim Constitution of Southern Sudan 2005 as was repelled that established Southern Sudan as a semi-autonomous political body governed by the Government of Southern Sudan (Goss), the peace keeping mission (UNMISS) was created with tremendous aims, goals and objectives to support the 2005 Comprehensive Peace Agreement (CPA) which brought to an end the long civil war between the government of Sudan and the Sudanese People Liberation Army/ Movement (SPLA/M) by helping the parties in the conflict in promoting Constitutionalism and the principles of rule of law, this mandate of UNMISS has been renewed from time to time with the purpose of helping the government in establishing a stable and democratic government and providing humanitarian support to the people of south Sudan that includes among others; an independent Judiciary, Executive, Legislature and the protection of human rights of all mankind with the aim of combating impunity and contributing to long-term peace and stability in accordance with the Security Council Resolution 1590 of 24 May, 2005 and the Report of the Secretary General, “the rule of law and transitional justice in conflict and post-conflict societies”, S/2004/616. And the transitional Constitution of 2011 as amended, established the Republic of South Sudan as an Independent Country, It should also be noted that principles of rule of law are contained in the legislations or Acts enacted by the Legislative Assembly (LA) since 2006 up to date, decrees from the Sudanese People Liberation Army / Movement SPLA / M Chairman and President of South Sudan, customary laws of the Republic of South Sudan ethnic societies, international conventions and treaties ratified by the Republic of South Sudan, international customary laws that are universally applied. Laws of the Sudan as still applicable such as the Trade Mark Act, 1960 including laws of the new Sudan that existed and were applied in the liberated areas of the southern Sudan and are still applicable up to date, example; the Traffic Act, 2003. Not forgetting the 2018, Revitalized Peace Agreement for the end of the crisis in the Republic of south Sudan among others. All these laws if well implemented by the authorities concerned, democratic, and peaceful and a stable government shall be established in south Sudan. I give credits to United Nations Development Program (UNDP) for their assistance on the implementation of the rule of law in the Republic of South Sudan through providing support in research on legal information and data collection, legislative drafting, conducting trainings and legal education to public, advocating for judicial reforms through training Judges, Prison Wardens, Police Constables and legal Counsels and establishing procedures of Alternative Dispute Resolution (ADR) as a way of resolving disputes between parties.
The writer is a practicing Advocate & Commissioner for Oaths, Juba.