The core values for social equality

The core values for social equality

Following the rule of law is more than imposing blind justice

Members of the Thai National Legislative Assembly attend a meeting at parliament in December last year to vet the revised Computer Crime Act. For Thailand, stronger rule of law may need legislative reform. (Photo by Thiti Wannamontha)
Members of the Thai National Legislative Assembly attend a meeting at parliament in December last year to vet the revised Computer Crime Act. For Thailand, stronger rule of law may need legislative reform. (Photo by Thiti Wannamontha)

Growing up around the world, I have always heard people say that "justice is blind", meaning that justice is supposedly impartial and objective. The allusion here is partly to the Greek goddess of divine law Themis. Every statue of justice wears a blindfold so as not to symbolically treat friends differently from strangers, or rich people better than poor people.

Nevertheless, even in ancient Greek times, there was no firm, secure, rational foundation for this concept of justice. This is perhaps because in one sense, "justice cannot be entirely blind". Contradictions have always abounded among the various claims of justice by different stakeholders.

In my youth, I heard people say repeatedly that the "law is the law". Yet how can an absolute embodiment of justice fail to function to its fullest in any society? How does it become possible that this system of rules, revered by all, fails to uphold the principle of justice for which it has been specifically designed. Since political sense and intuition have always been my preferred modality when making life and career-defining decisions, I can't help dispelling doubts about whether the law is realistically designed to promote a just and equal society.

Yet, does it have to be? Can it ever be? Are we aiming for equality or equity? If the law really is blind and treats all people equally, would there still be people left behind as nations move forward?

Perhaps the sanctity of the law today should be more than the rigorous enforcement of rules by authorities or the ability to command absolute obedience from citizens, and should be about accountability and the fostering of sustainable development and social equality for the benefit and protection of everyone.

By no means is the concept of "rule of law" absolute, for the highest law of the land, or law that is most sacred, may not be as just as it should be. Those who uphold, protect and enforce the law may in turn, with or without their knowledge, be harming the regime they are purportedly trying to support.

In the context of development, the rule of law cannot merely be a law of rules, or turning a blind eye in the name of a set of rules.

There can be no development if one were to apply rules without looking at the context in which they are placed. Because in this sense, law makers and enforcers pay more attention to ensuring that the rule of law is upheld instead of focusing on the law of rules.

One may ask then, whether it is possible to have a fully functioning set of checks and balances by which judges, legislators and law enforcement officers can measure social equality.

Accountability is central to this, and a case in point is where interpreters of the law enforce existing laws by handing out irreversible death sentences.

In such scenarios are we to say they interpreted the rule of law or law of rules? It can be stated that if interpreters and enforcers of law were as accountable as the law itself, their judgement should also encompass the idea of equity and long-term development for society.

I have often heard that legality is held in higher esteem than legitimacy. However, we should always be sceptical about of the legality of the law of rules because this is a human interpretation.

In fact, the legitimacy of applying the law of rules is tied to law enforcers having the ability to develop a rule for using the law.

Although this "rule of law" may seem like a far-off concept, philosophical and too vague for any practical person to grasp, I raise here some hypothetical questions to establish the importance of this concept. In any country, one can always ask whether the law is fair and can empower the weakest and most marginalised people in society.

Does the law only prevent public land encroachment, or does it also recognise the existence of indigenous farming communities that have lived on the land for decades?

Does the law exist to ensure gender equality only on paper while failing to ensure prosecutions are made in cases of discrimination? Is the law and its enforcement, both in the substantive and procedural senses, practical for the informal economy, disruptive technology, and new innovations such as alternative online taxi services and online food delivery; does it answer to the calls of emerging markets which are now mostly smart phone application-based? These fundamental issues and questions should be asked by all citizens seeking democracy and equality and for the law to be made fit for purpose.

One ought to look around and question the law of rules. If the "stock-exchange" bourgeoisie, with their conventional yet overindulgent materialistic fancies, are able to get filthy rich through exploiting legal loopholes, or if the counterfeit music CD vendors are able to earn more money for their children's tuition at the expense of music industry leaders who have intellectual property rights, any system and culture of legality is weakened. Within this culture, however, the rule of law must not be downgraded to the static law of rules.

A person's core values should include compassion and fairness and treat fellow human beings with respect. They should also have a sense of social responsibility.

These principles are basically taught by all religious faiths and this is perhaps what the rule of law is trying to get at -- promoting equity, and not just following justice blindly.

Strengthening the rule of law is therefore one and the same thing when promoting a just and caring society for all men, women and children.

In this context, the rule of law is important for those who are most marginalised, those in vulnerable situations, like children, those who are invisible victims of them criminal justice system, and those who are at risk of not having equal access to justice, such as those discriminated against for their sexual orientation or gender identity.

Women around the world still face legal barriers to accessing justice, discriminatory practices in customary and religious law, as well as social and economic barriers.

Nelson Mandela once said that "A nation should not be judged by how it treats its highest citizens, but its lowest ones". Law in its purest sense may at the same time, be unfair and an oversight of social and ethical contexts.

Change agents and innovative thinkers -- and there are many brilliant ones in Thailand and the region, have worked to address this oversight and narrow the social inequality gap through the use of social enterprises, a soon-to-be new form of legal entity in our society's hopes.

This is possible only under a conducive ecosystem for social enterprise. Legal transparency is also an important part of rule of law, and a "transparency sandbox" to study and lay out the specific regulatory challenges of say, alternative development projects, will go a long way.

A country's rule of law, or lack of it, is a reflection of its society in many ways. For a country like Thailand, strengthening the rule of law may need legislative reform, expansion of an empowerment agenda for the powerless, as well as the prevention of the domination of law-making process by the powerful.

Take for example the fight against corruption as a long-term goal. Managing corruption, and maintaining an awareness and understanding of the effects of preventing persistent corruption are important multipliers in upholding a robust rule of law.

What would a nation look like if law enforcers did not take into account the fact that the rich have more power and are more susceptible to corruption than the poor? How can legislation be drafted to address persistent core problems?

In strengthening the rule of law for the benefit of development, those with power and influence can contribute most effectively if their message is one that supports the building of a culture of lawfulness in all parts of society.

First and foremost, the recognition and awareness of rule of law must be in place among the national and local leadership, as well as among people within the circles of influence.

It remains a challenge for governments here, there and everywhere, to find their way, and to explore new tools like policy or future policy labs, dialogue, or cross-sectorial strategic planning, in order to reduce the social and economic inequality gaps.

In sum, the rule of law is fundamental to, and is a pathway towards sustainable development and we, as global citizens, should become the advocates of it.

The United Nations Sustainable Development Goal 16 captures the notion that without peace, stability, human rights and effective governance, based on the rule of law, we, as a nation, cannot hope for sustainable development and will only stay blind to reality, like a goddess that has fallen from the throne of justice.


Natapanu Nopakun is a 2017 Thailand Institute of Justice (TIJ) Fellow.

Natapanu Nopakun

Reporter

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