July 19, 2000

MALAYA!
Salbiah Ahmad

Law and legitimacy

Judges and lawyers in the common law tradition are brought up on the Dicey staple, that the rule of law is the limitation of state power. 

Dicey assumes that the courts of law will always find the means of correcting injustices. Is Dicey or the belief in Dicey outmoded?

Legal scholars and activists are concerned with the trend of increasing governmental power and the proportionally less effective controls on that power. There is also a specific concern of the use of governmental power and law towards partisan ends, the increasingly aggressive manner in which this power is exercised and the casual way in which the legal framework for and the legal controls on the exercise of power are treated.

It is said that the rule of law and constitutional conventions as effective checks on government had failed to accommodate or under-estimated the political dimension to the checks and balances doctrine. Dicey himself had expressed considerable scepticism about ministerial responsibility (a constitutional convention) as a feeble guarantee of the rule of law. He, however, placed great hope in the authority of the courts.

Constitutional arrangements on the rule of law, limit what governments may do and how they may do it. The rule of law assumes that the executive, parliament and judiciary are supposed to work within and maintain such a system on the theory that they actually believe in the system. That is, they believe in parliamentary democracy, in checks and balances, in limited government - in the rule of law. 

What happens in the case where the checks and balances fail to adequately control the legal powers of a strong and assertive executive in a vigorous exercise of its power over parliament in a Westminster-type "elective dictatorship" government? Governments may claim, and a submissive judiciary may acquiesce, that since the powers are exercised from a law passed by parliament, what was being done was in accordance with the rule of law and thereby lawful. 

What happens in the case where the judiciary functions as part of the executive to implement state policy and objectives? The judiciary becomes a division of power within the executive rather than as an aspect of the separation of powers. (Kanishka Jayasuria, "Corporatism and Judicial Independence"). Judgements are handed as an extension of the executive decree. 

Lawfulness (legality) and legitimacy are distinguished. Legitimacy does not deal with whether activities of government are lawful as being done according to the law (the narrow literal meaning of the rule of law). Legitimacy is about whether these acts meet with what is generally perceived to be the fundamental ideas of which government is or ought to be conducted. 

This covers such matters as fair and equitable practices, upholding fundamental liberties, recognition of the rights of political opposition and dissent, complying with constitutional conventions, adequate means of redress when it comes to grievances of governmental actions.

Yash Ghai, in "The Rule of Law, Legitimacy and Governance", argues that the notion of a constitution as a neutral framework of political competition and government is misconceived. It is better understood as a weapon in political battles. The frequent disregard and indeed violations of the law by governments in the Third World shows that the rule of law, whatever the lip-service paid to it, does not operate in practice. 

In commenting on several Third World regimes, Ghai states that governments' commitment to the rule of law is confined to the ideological functions of legality, particularly in foreign relations and in dealing with foreign investors. The importance that Western governments and the international economic institutions under their hegemony attach to legality (because it protects their interests) and the sanctions they can impose for its breach compel developing countries, otherwise careless of legality, to adhere to legal forms and rights in relations with foreign investors.

Legitimacy cannot flow from this "selective" legality. The ideological strength of legality comes from the appearance of even-handedness of the legal system and of equal application of the laws to all. The autonomy of the law is undermined when prosecutions are seen to be a matter entirely at the discretion of the government. The protection the law is supposed to provide becomes illusory when the government refuses to accept the law's mandate and discipline. 

Public law lawyers like Ghai do not assume that the courts of law will always find the means of correcting injustices. What is at stake in most of these regimes is the independence and impartiality of the judiciary. When this is impaired, a basic source of the legitimacy of the legal system disappears. The law is seen merely as an opportunistic and convenient instrument of control and domination by the ruling group.

Thus a government which adheres to the rule of law narrowly defined (anything done according to the law) but betrays the practices of the rule of law broadly defined (fair and equitable practices etc.) would give rise to doubts about its legitimacy. In such a dilemma, what is the value of a constitution based on and designed to ensure the maintenance of limited government if it can, quite lawfully and even constitutionally, flout?

Judges and lawyers are both the ideologues and practitioners of the rule of law. The "professional project" of judges and lawyers has been closely intertwined with the advancement of the rule of law. The pertinent question becomes, where do the courts and lawyers stand in the legality vs legitimacy debate? There is some difficulty in the response to this question.

Both ideologues and practitioners have created for themselves a narrow, legal universe of "rules" and "rights". The notion of the rule of law remained rooted in legal values and forms and its discourse is legalistic. Lines are drawn between political and legal matters. 

The simple expedient of drawing the line is unrealistic when constitutional theory is tested only through the political practice of the government in power. The observance or failure of the rule of law cannot be divorced from the socio-political context in which the rule is supposed to operate.

Whether judges and lawyers are advancing the use of legal forms to regulate or to legitimise state power depends on their relationship to the dominant state. But the maintenance of the rule of law is not the sole prerogative of lawyers and the courts. 

Scholars maintain that the rule of law requires constant re-examination and propose that principles of democratic governance must inhere in any political system to constitute the enabling environment for limiting state power. This means guaranteeing fundamental liberties and political participation of the people. The government of the people, by the people and for the people is after all a trust rather than an embodiment of the people's power.