The term "rule of law" has been invoked increasingly in recent years as governments and civil society grapple with challenges facing their relationship.
This includes access to justice, democracy and good governance. It is seen as a guarantee against arbitrary use of power, premised on certainty of the law and protection of the rights of individuals and communities. This is reflected in various notable developments in Southeast Asia.
For instance, the notion of "rule of law" takes pride of place in the Thai constitution. Myanmar has established, in its parliament, a rule of law committee. The charter of the Association of South-east Asian Nations (Asean) also cites it as a lynchpin for a rules-based organisation.
That development was further defined clearly by a key resolution from the UN General Assembly at the end of 2012 titled "Declaration of the High Level Meeting of the General Assembly on the Rule of Law at the National and International Levels". In essence, this resolution is anchored on the notion that "all persons, institutions and entities, public and private, including the state itself, are accountable to just, fair and equitable laws and are entitled without any discrimination to equal protection of the law". It advocates the independence of the judiciary, together with its impartiality and integrity; equal access to justice for all; promotion of both formal and informal justice mechanisms to help settle disputes; respect for the rights of women and children; action against impunity; condemnation of terrorism; reforms at the international and national levels to deliver more effective and accountable institutions; and international cooperation. There is an inherent linkage between the rule of law, democracy, human rights, peace and security, and human development.
There are some innovative angles inherent in this resolution which deserve to be underlined to give more content to the notion itself, as follows:
- It is the "international" rule of law which should shape all settings. That perspective is inspired by international standards, such as norms, treaties and practices accepted by the majority of States, with inputs from civil society and other stakeholders, to ensure that the variety of laws, processes and mechanisms at the national level are not too subjective but are measured against international standards. Of direct relevance is the UN charter itself as a benchmark for international peace and security, and the various human rights treaties and other agreements which set the standard for human rights, dispute prevention and settlement, rules of humane conduct during hostilities (humanitarian law), and democracy in an international framework.
- There is a need for checks and balances at all levels to prevent abuse of power. This calls into play the need for a variety institutions and processes, and the involvement of the range of stakeholders, to counter the emergence or presence of "monopoly". At the national level, the three pillars of government _ the executive, parliament and judiciary _ need to be balanced between (and at times against) each other to ensure that there is transparency and accountability in the administration of the state. There is also a need for other institutions, such as human rights commissions, and broad participation of civil society as part of the process of establishing a balance. At the international level, the agenda for the next decade should thus aim for the establishment of a people's assembly or equivalent in the UN structure and facilitating civil society access to the UN in its totality.
- Access to justice, and the enhancement of capacity to access justice, go hand in hand as key ingredients of the rule of law. In this sense, access to justice opens the door to a plurality of mechanisms and processes.
The rule of law is not only about the need for judicial systems and a judiciary that is honest and quality-based; it is also about the judiciary being accessible to and from the public. It is not only about formal institutions such as the courts, but also informal mechanisms, such as mediation and local participation in a dispute settlement.
The next decade may also witness the rise of more regional courts with a broad or specific mandate. Now that Asean has established a regional human rights commission, the next step may be to establish a regional court with a broad or specific jurisdiction. The capacity that needs to be nurtured together with these mechanisms depends upon knowledge and the utilisation of that knowledge through the broadening of education, legal education and legal aid.
- The flag of accountability is raised more prominently and universally today. This is witnessed by the phenomenon that, increasingly, actions against impunity are being promoted in many settings. Where the national setting is unable or unwilling to act, international jurisdiction and mechanisms come into play.
The advent of the International Criminal Court and various special international criminal tribunals are a testament to the international community's search for complementary processes to curb impunity and to ensure at least the responsibility of individuals who commit international crimes such as genocide, crimes against humanity and war crimes. Various political and military leaders have already been apprehended and prosecuted under these mechanisms, even though it may take time to initially arrest them.
- The primary responsibility to render justice rests with the state, while the international system has a key role to ensure that there is "jurisdictional vacuum". International law and relations recognise that the primary responsibility for the protection of individuals and communities, and for enforcing the (national) law, rests with the state; this is part of the age-old national sovereignty principle. However, where the state fails to deliver that justice, the jurisdiction of the international community comes into play, especially if the transgressions impinge upon international peace and security.
There is thus a shared responsibility to ensure that people are protected, wherever they are and whoever they are. This is illustrated daily by the actions which the UN, particularly the Security Council, the General Assembly and the Human Rights Council, are called upon to take more effectively so that the interlink between peace and security, democracy, human rights and development is truly enjoyed at all levels. Therefore, in content, the essence of the rule of law is that there shall be no "protection deficit".
Vitit Muntarbhorn is a Professor of Law at Chulalongkorn University, Bangkok. He is currently a member of the advisory board of the (UN) Human Security Fund and a commissioner of the (UN) Commission of Inquiry on Syria.