Rule of Law versus Law of Rule(r)s

 

Remarks by Vitit Muntabhorn

At the closing session of the Asia Pacific Justice Forum (December 8-9, 2022), UN Special Rapporteur Vitit Muntarbhorn called for empathy and "transformative partnership" to expand the rule of law for all. In the remarks and video below, he lays out a vision for advancing the three regional priorities at the heart of the conference: access to justice, judicial independence, and freedom of expression.

The term “rule of law” has a resonant ring which sounds both familiar and distant. It seems familiar because it is employed frequently by lawyers to analyze the makings of a legal system. Yet, it is deemed distant because it sounds legalese, harboring both the thin version and the thick version of its intrinsic self. The thin version covers various legal safeguards for litigants and accused persons, such as fair trial, accompanied by the advocacy of an independent judiciary. The thicker version demands more, namely: adherence to human rights and democracy.

Whatever the version, what is equally important as the middle version is that it needs an adjective in front of it, namely: “international” rule of law rather than “national” rule of law. The former offers an element of objectivity based on international law, while the latter might be a hidden version of a subjective national system that is steeped in constraints on rights and freedoms, a far cry from international standards. The latter might open the door to an overreach of national laws in a setting of over-legislation, as the hinterland for non-democratic elements, alias the “law of rule(r)s” as instrument(s) of authoritarian control.

Declining Rule of Law 

The international trend witnessed by the global Rule of Law Index regrettably indicates a decline of the rule of law internationally, undermined impliedly by the spread of the “law of rule(r)s”. It coincides with the reduced civic and political space witnessed in many parts of Asia Pacific and elsewhere, as a disquieting contraction of the democratic landscape. It is thus timely for key stakeholders, jurists, and more, to coalesce more assertively to strengthen various entry points to open up that space rather than to overlook the global warning of negative seepage inherent in the political climate change. There are at least three gateways of note, namely: access to justice, judicial integrity-cum-independence, and freedom of expression balancing with reasonable limitations.

With regard to access to justice, the challenge is to facilitate access by people to a variety of ways and means to claim their rights, effectively and cost effectively, with a view to redress and accountability. While access to the ordinary courts system is important, that system is at times distant and out of reach for those who do not have the means and who do not have the power. Thus, other options such as administrative courts, specialized courts, arbitration, mediation and local dispute settlement mechanisms, are emerging. The spread of national human rights institutions, such as national human rights commissions, also offers broad outreach to enable affected persons to resort to non-judicial alternatives.

Interestingly, the COVID-19 pandemic has also pressed for a more accessible system via technology, such as online links with the courts to clear the backlog of cases. A number of Asia Pacific countries witnessed constructive developments on this front as a lesson learned during the pandemic. Yet, there is no room for complacency. There is also an inequitable online gap, aggravated by poverty and disparities worsened by the pandemic which needs to be tackled. The overflow of inmates in the prisons of various countries, especially pre-trial cases, is often a testament to the poor being affected more than the rich. Obviously the former have less access to bail which can help to divert them from the detention system, pending trial. The situation is compounded by the fact that a retributive approach towards drugs-related cases pushes many into detention rather than towards rehabilitation. Political shackles imply that those dissenting against the top layer––“ruler(s)”––of the system are incarcerated all too readily by non-democratic regimes that seek to self-perpetuate.

Strengthening the Independent Judiciary

Since justice is in essence a matter of leveraging with the power spectrum, checks and balances vis a vis ruling elites are essential, and a strong civil society, media, community-based/non-governmental organizations and human rights defenders are all critical cogs in the wheels of justice in the face of the spools and spinners of political power.

There is then the issue of integrity and independence of the judiciary. This has to be understood against the political backdrop interfacing with judges and the like. In non-democracies and semi-democracies, members of the judiciary are highly unlikely to be independent from the Executive branch or to embody a genuine sense of integrity, since they are more-of-than-not compliant or subservient to you-know-who. An example of that trend was seen recently in a developing country where a local court (obviously coopted by the “ruler(s)”) ordered the deputy leader of the main opposition party to pay not-far-from a million U.S. dollars for defaming the ruling political party which controls all the seats in the national parliament. The case may thus be called: Strategic Litigation Against Political Participation (SLAPP) as a complement to the other well-known SLAPP used against human rights defenders, namely, Strategic Litigation Against Public Participation (SLAPP). A major cause for concern should be the Double SLAPPS phenomenon!

Yet, advocacy and related action are still needed to press for a quality-based judiciary. Much can be done to improve their selection, education, and training on human rights and democracy. Good remuneration helps to incentivize their work. Monitoring of the judiciary is also important to ensure a sense of transparency. Where there is self-regulation so that the judiciary vets itself, it has to ensure that it complies with international standards and is scrutinized against corruption and biased practices. A simple stipulation to prohibit them from sitting on the executive board of political parties may help to ensure that “Judges are independent and are seen to be independent.”

Nurturing empathy is key to enabling them to reach out mentally to victims and litigants. Revolving the judiciary to different areas of the country and to enable them to witness first hand “how the other (deprived) half lives” helps to create more understanding for socio-economic and other conditions. Judicial education should involve visits to prisons and other detention locations to witness the real conditions beyond the courts. Gender-sensibility also needs to be maximized in the capacity building of judges through practical, ground related casework and exemplars from the very beginnings of judicial training. Inclusion of persons of different ethnicities, with disabilities, with gender-diversity, with pluralistic backgrounds is key to building a judiciary that is at-one with the community. Openness to critical analysis from others is another test for judicial transparency and this invites appraisal and reform of contempt of court provisions in several countries which shield the judiciary excessively from fair comment and fair play.

Strengthening Freedom of Expression

With regard to freedom of expression, the Asia Pacific region is confronted with a morass of laws of a prohibitive and inhibitive kind, entrenching censorship and self-censorship, especially in the face of more authoritarian trends. Those trends overplay the claim of national security, fake news, misinformation and disinformation to enact a vast panoply of laws which fail to comply with international standards. The state thus claims to be the arbiter and “ruler(s)” of the truth—a dangerous, subjective exercise of monopolization rather than pluralization of information sources and opinions. Over-legislation thus sanctifies the survival of those who control the reins of power.

The litany of laws invites vigilance: computer crimes law, online falsehood law, anti-fake news law, electronic transaction law, telecommunications law, internet gateway law, cybersecurity law, emergency decree, martial law, and national security/internal security law, etc. To these can be added the challenging provisions of the criminal code in some settings, such as on sedition, lèse-majesté, and criminal defamation.

Fortunately, international human rights law guides what should be permissible as constraints on the right to freedom of expression, in particular via Articles 19 and 20 of the Covenant on Civil and Political Rights. Although that freedom and some other rights, such as on freedom of peaceful assembly and on privacy, are not absolute, the limitations to be imposed on them must comply with the international three-part test: the authorities must prove that the limitation in question is not arbitrary and is consonant with the international rule of law (“legality”); that it is necessary to respond to the risks (“necessity”); and that it is proportionate to the circumstances (“proportionality”).

In any case, the fact that non-democracies keep the lid on freedom of expression is a root cause of misinformation and disinformation, exemplified by its propagandistic tendency and the discontented rumblings below. The preferred approach is to aim for an educated public, with digital literacy, to cross-check information as part of open, critical analysis. The more convincing entry point is to engender the personal wisdom through liberal education to choose not to believe fake news rather than to comply with the diktat from the top as to what to believe and disbelieve.

In essence, the real risk might be fake (national) security from the authorities rather than alleged fake news from members of the public. After all, international relations analysts tell us that the notion of security is based on three possible threats, namely: actual threats, potential threats and fictitious threats! Fictitious means fake, and what if it emanates from the “ruler(s)” or state itself in terms of its insidious self-justification? Fortunately, the United Nations (UN) human rights system helps to expose many of the discrepancies on this front to pierce the veil of opacity.

Aptly, this leads to the issue of hate speech, especially in today’s social media and related platforms. Is it to be countered by more law? International guidance as above indicates that a law is needed against incitement to hatred which may lead to discrimination or violence (namely: X provokes Y to do something nasty to Z, a triangular relationship) rather than a law against general hate (namely: X tells Y that X hates Y, a bilateral relationship). This is inherent in Article 20 of the said covenant.

Thus other strategies can be explored against hate speech. Again, there is no substitute for an educated population which is also blessed with some empathy towards other people. To some extent, people also have to bear a degree of critique unless the latter is tantamount to defamation (and all countries already have laws on defamation, although internationally, the trend is to decriminalize that law and aim for only civil liability). Friends can offer counter-speech to help protect those who are targeted through hateful messages. There can also be contractual obligations with internet service providers and platforms not to use hate speech, such as homophobia. The latter is also covered by existing self-regulation of the internet industry itself which can take down such content. Care is needed, however, in regard to that content moderation so that it reflects the international standards mentioned and to avoid censorship. In today’ s business world, there are also the UN Guiding Principles on Business and Human Rights which invite due diligence measures from the industry to ensure compliance with human rights, especially via human rights impacts assessments and related mitigation measures to prevent, reduce, and remedy infringements.

Added to that is the balancing act with the right to privacy which today opens the door to notice-and-take down of comments in breach of the right to privacy, otherwise known as the “right to be forgotten”. The situation is all the more futuristic now because digitalization and Artificial Intelligence linked with algorithmic ubiquity, are already among us. Therefore, there are emerging issues of transparency, accessibility, portability, explainability, and accountability, coupled with gender-sensibility and victim-sensitivity, which call for our attention as friends of the rule of law in a momentously rapidly changing world.

Despite all the uncertainties and vagaries of existence, bridging now between the animate and sentient (humans) and the inanimate and non-sentient (robots) used increasingly by authoritarian elements, jurists and related stakeholders who are friends of human rights, democracy, peace, and sustainable development are here to carry the torch of hope and reason in concert and substantively embodying the “rule of law” for all, rather than to be debilitated by the “law of rule(r)s”. It is ultimately a commitment to universal justice, humbly with a sense of consciousness and conscience in our shared partnership and transformative destiny.

Thank you.

Vitit Muntarbhorn is professor emeritus at the Faculty of Law, Chulalongkorn University. He was appointed as the UN special rapporteur on the situation of human rights in Cambodia in March 2021, and previously served as former UN special rapporteur on the sale of children, UN special rapporteur on the Democratic People's Republic of Korea, UN independent expert on protection against violence and discrimination based on sexual orientation and gender identity, chairperson of the UN-appointed Commission of Inquiry on the Ivory Coast, and a member of the UN-appointed Independent International Commission of Inquiry on the Syrian Arab Republic. He is the recipient of the 2004 UNESCO Human Rights Education Prize.

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