The rule of law, for all?

Abuse or dearth of the rule of law offends our sensibilities and erode trust in our institutions.

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Published by Malay Mail, image from CO—.

It’s an absolute given that the rule of law is one of the fundamental and indispensable principles of any constitution — be it written or uncodified — that in turn forms that nexus of legal and political basis and foundation of a nation without which there wouldn’t exist order and structure. Now, the rule of law can simply be defined as governance and administration of society according to the undoubted principles, maxims and axioms of what we would call, “natural justice” such as the right to be subject to the due process of the legal system and therefore the right to a fair trial and equality under the law, etc.

Abuse or dearth of the rule of law, therefore, not only offends our sensibilities and instincts as humans but could also reverberate throughout the entire complex of a country’s system, eroding trust in our institutions, for example, and finally further exacerbating the plight of the people.

In Malaysia, questions and controversies about the rule of law have been brought to the fore once again following the Attorney General’s (AG) decision not to prosecute Minister of Plantation Industries and Commodities, Datuk  Khairuddin Aman Razali.

One doesn’t need to question the discretionary prerogative of the AG acting in his executive capacity to invoke and evoke the rule of law in this case.

It could be argued that the non-issuance of the mandatory Form 14B requiring an “Order for Surveillance and Observation” or quarantine order as stipulated under section 15(1) of the Prevention and Control of Infectious Diseases Act 1988 — our country’s parent Act relating to public health measures to contain Covid-19 — ought not be decisive in determining the matter.

Some legal experts are of the view that Form 14B should be properly interpreted and understood as issued in the context of those who have come into contact with infected persons which could, among others, either be verified through track and trace or interviews and isn’t the issue to be primarily considered, discretionary or not in relation to the issuing officer from the Ministry of Health.

Whereas the substantive issue is that our Minister of Plantation Industries and Commodities was clearly subject to a mandatory self-quarantine order of 14 days. And it didn’t matter if Turkey was then classified as a red zone country or not.

To restate here, according to the standard operating procedure (SOP) as imposed by the National Security Council which is the highest decision-making body overseeing and coordinating the management of Covid-19 in the country, all returnees are to be tested on arrival and those with negative results must then serve out their 14-day quarantine while those who tested positive are sent to a hospital for treatment and care.

Taking the irrefutable logic further by quoting from Salim Bashir, President of the Malaysian Bar Council, in a press release on the matter: “In light of the severity of the pandemic both at home and abroad, an individual does not only become a person under surveillance (‘PUS’) upon receiving a copy of Form 14B, but even when someone enters Malaysia from abroad”.

Hence, the President of the Bar Council is also of the legal view that “the AG could exercise his constitutional prerogative to reconsider his earlier decision based on the above-mentioned offence provided under the Penal Code”.

At the end of the day, the public don’t buy into the specific policy nuances and academic distinctions on the basis of the use of discretionary authority.

A clear-cut and straight-forward application of the law, i.e. the unabashed upholding of the rule of law will assure the public recoiling with disgust from the perception of differential treatment meted out by the authorities in relation to SOP breaches, especially at a time when the outbreak and transmission of Covid-19 show no signs of relapse abroad or at home but rather on the contrary.

The bottom-line isn’t politics or ideology. It cannot be strongly emphasised that this must of necessity apply equally to all across the political divide.

We can’t afford to have a situation where time and time again, politicians (and again regardless of political stripe) get a pass because of their darjat (status) whilst the rakyat, many of whom are struggling on a daily basis remain squeezed (terhimpit) from all sides precisely because they have to make ends meet, are subject to the strictures of the law.

Instead, the rule of law should now be applied equally and fairly but for the ordinary citizen, there should now perhaps be regard for the law of empathy (paralleling the economics of empathy). And that is, the law will still be applied but the sentencing or penalty shouldn’t be according to the stringency of the letter.

Legal justice, then, should be combined with social justice, especially given the current circumstances and exigencies.

Ironically, the rule of law can then not only be upheld; it’ll also flourish and thrive.

After all, the rule of law is never for its own sake but always and only for the overall and greater good of society which must as ever serve as the paramount consideration.

Jason Loh Seong Wei is Head of Social, Law & Human Rights at EMIR Research, an independent think tank focused on strategic policy recommendations based on rigorous research.

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