Politics and the Rule of Law
Politics in certain parts of the world has come to be known, as a lucrative, but illegal profession, wheeling and dealing in business, sanctified under the cover of the word ‘politics’, and shielded by the power that is wielded.
Politics actually is intended to deal with the governance of counties and its peoples in terms of the Rule of Law. The Rule of Law means that peoples of countries are ruled by the law, and not by those in governance wielding power, whether it be democratically elected governments through elections, rigged or otherwise, or by dictatorships or monarchies. Those who govern are also subject to the Rule of Law and all are equal before the law, which is supreme.
Therefore Politics and the Rule of Law creates a social contract between the people and the governments and/or the organs of governments, elected or selected, through an electoral process or otherwise. The resources of the country belonging to its peoples, those in governance are fiduciary trustees managing such resources, which ought be managed in trust for the benefit of the people, and not for the enrichment of those in governance, and if this be the case as is often seen, it would tantamount to the breach of the social contract and breach of trust.
Politics and the Rule of law establishes the process through which decisions made by those in governance are implemented according to public policy and in conformity with known legal principles. The Rule of Law mandates that every citizen of the nation is equally subject to the Rule of Law and entitled to the equal protection before the law, and that no one is above the law.
A Seven Member Bench of the Supreme Court of Sri Lanka, presided by the Chief Justice, and also comprised two other Justices, who subsequently assumed Office as Chief Justices,in interpreting the foregoing and the Constitution, as far back as October 2002 determined as follows:
“The People in whom sovereignty is reposed have entrusted the organs of government, being the custodians of the exercise of the power, as delineated in the Constitution. It is in this context that we arrived at the conclusion that any transfer, relinquishment or removal of a power attributed to an organ of government would be inconsistent with Article 3, read with Article 4 of the Constitution”
“The power that constitutes a check, attributed to one organ of government in relation to another, has to be seen at all times and exercised, where necessary, in trust for the People. This is not a novel concept. The basic premise of Public Law is that power is held in trust. From the perspective of Administrative Law in England, the ‘trust” that is implicit in the conferment of power has been stated as follows:
“Statutory power conferred for public purposes is conferred as it were upon trust, not absolutely – that is to say, it can validly be used only in the right and proper way with Parliament when conferring it is presumed to have intended” – (Administrative Law 8th Ed. 2000 – H.W.R. Wade and C.F. Forsyth p, 356)”
“It had been firmly stated in several judgments of this Court that ‘rule of law’ is the basis of our Constitution”.
“A.V. Dicey in Law of the Constitution” postulates that ‘rule of law’ which forms a fundamental principle of the Constitution has three meanings one of which is described as follows:-
“It means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness or prerogative, or even of wide discretionary authority on the part of the government. Englishmen are ruled by the law, and by the law alone …. “
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