Statement of 88 Students on International Human Rights days

Statement of 88 Students

on the International Human Rights days88-s.jpg

Customary Etiquette of Myanmar Rulers

Student group’s reminder to SPDC Junta

to follow the Myanmar’s traditional

Customary Etiquette of Rulers

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RULE OF LAW Limits the Government’s legal authorities on citizens

RULE OF LAW

Limits the Government’s

legal authorities on citizens     

 

Every official_

  1. from the Prime Minister

  2. or Minister

  3. down to a police officer

  4. or a income-tax officer,

  5. or any government officer

  6. or a peon

  •  
    • is under the same responsibility
    • for every act done
    • without legal justification
    • as any other citizen.

All the officials_

A. From the appointed government officials

B. to elected politicians, alike

C. and all subordinates,

(a) though carrying out the commands of their official superiors

(b) i.e. supposedly or could claim as done or act during performing their official duty

(b) are as responsible for any act which the law does not authorize  

i. as is any private

ii. and unofficial person.

 And they all must be …

i. brought before the courts,

ii. and made,

iii. in their personal capacity,

iv. liable to punishment, or

v. to the payment of damages,

vi. for acts done in their official character

vii. but in excess of their lawful authority.  

— Law of the Constitution (London: MacMillan, 9th ed., 1950), 194.

Another definition can be found at Halsbury’s Laws of England, Vol: Constitutional Law and Human Rights, paragraph 6

 The legal basis of government

Basic principle of legality

( referred to as the rule of law) 

This may be expressed as a number of propositions, as described below.

(1) The existence or non-existence of a power or duty is a matter of law and not of fact,

and so must be determined by reference either to the nature of the legal personality of the body in question and the capacities that go with it, or to some enactment or reported case.  

                 i.    Many public bodies are incorporated by statute and so statutory provisions will define and limit their legal capacities.

                 ii.  Individuals who are public office-holders have the capacities

       that go with the legal personality that they have as natural persons.

                iii.    The Government or Crown is a corporation sole or aggregate and so has general legal capacity, including (subject to some statutory limitations and limitations imposed by European law) the capacity to enter into contracts and to own and dispose of property.

 iv. The fact of a continued undisputed exercise of a power by a public body is immaterial. 

(2) The argument of state necessity is not sufficient to establish the existence of a power or duty  

i. which would entitle a public body to act in a way that interferes with the rights or liberties of individuals.

 ii.  However, the common law does recognize that

in case of extreme urgency,

when the ordinary machinery of the state cannot function,  there is a justification for the doing of acts needed to restore the regular functioning of the machinery of government. 

(3) The doctrine that the existence or non-existence of a power or duty

  • is a matter of law,

  • it should be possible for the courts to determine

 1. either or not a particular power or duty exists,  

2. define its ambit

3. provide an effective remedy for unlawful action.

4. The independence of the judiciary is essential to the principle of legality.

5. The right of access to the courts can be excluded by statute, but this is not often done in express terms.

6. A person whose civil or political rights and freedoms as guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention on Human Rights) have been infringed is entitled under the Convention to an effective right of access to the courts and an effective national remedy.

On the other hand_

  • Powers are often given to bodies other than the ordinary courts,

  • To decide questions of law without appeal to the ordinary courts,

  • And sometimes in such terms that their freedom from appellate jurisdiction extends to their findings of fact or law

  • on which the existence of their powers depends.

(4) Since the principal elements

  • of the structure of the machinery of government,

  • and the powers

  • and duties

  • which belong to its several parts,

    •  
      • are defined by law,

      • its form and course can be altered only by a change of law.  

From the British Laws,

now we look at the father of all the democracies,

American law.

John Adams drafted for the constitution of the Commonwealth of Massachusetts,

The principle of separation of powers: 

In the government_

1. The legislative department shall never exercise the executive and judicial powers or either of them:

2. The executive shall never exercise the legislative and judicial powers, or either of them:

3. The judicial shall never exercise the legislative and executive powers, or either of them:

 To the end it may be a government of laws and not of men. 

— Massachusetts Constitution, Part The First, art. XXX (1780).

The last phrase,

“To the end it may be a government of laws and not of men,” has been quoted with approval by the U.S. Supreme Court and every state supreme court in the United States.

A similar concept is found in Common Sense (1776) by Thomas Paine:

. . . The world may know, that so far as we approve of monarchy,

1. That in America THE LAW IS KING.

2. For as in absolute governments the King is law,

3. So in free countries the law OUGHT to be King; and there ought to be no other.

The concept “Rule of Law” is generally associated with several other concepts, such as:

1. Nullum crimen, nulla poena sine praevia lege poenali – No ex post facto laws 

2. Presumption of innocence

All individuals are “innocent until proven otherwise” 

3. Double jeopardy

Individuals may only be punished once for every specific crime committed.  

 4. Retrials may or may not be permitted on the grounds of new evidence.

See also res judicata.

 5. Legal equality

All individuals are given the same rights

without distinction to their social stature, religion, political opinions, etc.

 6. That is, as Montesquieu would have it, “law should be like death, which spares no one.” 

7. Habeas corpus – in full habeas corpus ad subjiciendum, a Latin term meaning “you must have the body to be subjected (to examination)”.

o A person who is arrested has the right to be told what crimes he or she is accused of. 

o And to request that his or her custody be reviewed by judicial authority.  

o Persons unlawfully imprisoned have to be freed. 

11. The concept of “Rule of Law” per se says nothing of the “Justness” of the laws themselves, but simply how the legal system upholds the law.

12. As a consequence of this, a very undemocratic nation or one without respect for human rights can exist with or without a “rule of law”, a situation which many argue is applicable to several modern dictatorships.

13. However, the “Rule of Law” is considered a pre-requisite for democracy, and as such, has served as_

14. A common basis for human rights discourse between countries such as the People’s Republic of China and the West.

 The Rule of Law is an ancient ideal
first posited by Aristotle
as a system of rules inherent in the natural order.

1. The concept of impartial rule of law is found in the Chinese political philosophy of legalism.

2. Although Chinese emperors were not subject to law, in practice they found it necessary to act according to regular procedures for reasons of statecraft.

3. In the Anglo-American legal tradition rule of law has been seen as

  • a guard against despotism

  • and as enforcing limitations on the power of the government.

4. In the authoritarian and totalitarian states the discourse around rule of law centers on the notion that laws ultimately enhance the power of the state and the nation, which is why the authoritarian and totalitarian states government adopts the principle of rule by law rather than rule of law.

5. Rule of Law is opposed by authoritarian and totalitarian states.

For much of human history,

Rulers and Law were synonymous –

Law was simply the will of the ruler. 

1. A first step away from such tyranny was the notion of rule by law, including the notion that even a ruler is under the law.

2. Democracies went further by establishing the Rule of Law.

3. Although no society or government system is problem-free,

  • Rule of Law protects fundamental political, social, and economic rights

  • and reminds us that tyranny and lawlessness are not the only alternatives.

4. Rule of law means that_

  • no individual,

  • president

  • or private citizen,

stands above law.

5. Democratic governments exercise authority_

  • by way of law

  • and are themselves subject to law’s constraints.

6. Laws should express the will of the people,

not the whims of _

  • kings,

  • dictators,

  • military officials,

  • religious leaders,

  • or self-appointed political parties.

7. Citizens in democracies are willing to obey the laws of their society, then, because they are submitting to their own rules and regulations.

8. Justice is best achieved when the laws are established by the very people who must obey them.

9. Under the Rule of Law_

  • a system of strong,

  • independent courts

  • should have the power and authority,

  • resources,

  • and the prestige

to hold government officials, even top leaders, accountable to the nation’s laws and regulations.

10. For this reason, judges should be_

  • well trained,

  • professional,

  • independent,

  • and impartial.

11. To serve their necessary role in the legal and political system, judges must be committed to the principles of democracy.

12. The laws of a democracy may have many sources:

  • written constitutions;

  • statutes and regulations;

  • religious and ethical teachings;

  • and cultural traditions and practices.

13. Regardless of origin the law should enshrine certain provisions to protect the rights and freedoms of citizens:

14. Under the requirement of equal protection under the law, the law may not be uniquely applicable to any single individual or group.

15. Citizens must be secure from_

  • arbitrary arrest

  • and unreasonable search of their homes

  • or the seizure of their personal property.

16. Citizens charged with crimes are_

  • entitled to a speedy and public trial,

  • along with the opportunity to confront

  • and question their accusers.

17. If convicted they may not be subjected to cruel or unusual punishment.

18. Citizens cannot be forced to testify against themselves.

19. This principle protects citizens from_

  • coercion,

  • abuse,

  • or torture

  • and greatly reduces the temptation of police to employ such measures.

In the Nazi Germany,  the government possesses the inherent authority to act purely on its own volition and without being subject to any checks or limitations.

Dr. Cooray wrote, The Australian Achievement: From Bondage To Freedom:

“All persons_

  1. individuals,

  2. institutions

  3. and government are subject to law.

Supremacy of the law is a fundamental concept in the western democratic order. The rule of law requires both citizens and governments to be subject to known and standing laws. The supremacy of law also requires generality in the law. This principle is a further development of the principle of equality before the law. Laws should not be made in respect of particular persons.

As Dicey postulated, the rule of law-

  • presupposes the absence of wide discretionary authority in the rulers,

  • so that they cannot make their own laws

  • but must govern according to the established laws.

Those laws ought not to be too easily changeable.

Stable laws are a prerequisite of the_

  •  certainty and confidence

  • which form an essential part of individual freedom and security.

Therefore, laws ought to be rooted in moral principles, which cannot be achieved if they are framed in too detailed a manner.

The idea of the supremacy of law requires a definition of law (to which the above principles may go some way).

This must include a distinction between_

  • law

  • and executive administration

  • and prerogative decree.

 A failure to maintain the formal differences between these things must lead to_

  • a conception of law as nothing more than authorization for power,

  • rather than the guarantee of liberty, equally to all.

The rule of law ensures that_

  • individuals have a secure area of autonomy
  • and have settled expectations by having their rights and duties pre-established
  • and enforced by law.”