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The Rule of Law as a Guiding Principle of State Governance

Although at the Faculty of Laws at the University of Malta we teach our students in Constitutional Law that the State of Malta is governed by the rule of law, this important doctrine is not even mentioned let alone defined in the Constitution of Malta.

Yet it is a fundamental pillar of a democratic society. The rule of law within the context of Administrative Law obliges the state, including the public administration, to respect and observe fundamental principles for the governance of the state. This is because the rule of law is the foundation of a civilized community, establishes a transparent process accessible and equal to all and ensures adherence to principles that both liberate and protect.

The key components of the rule of law are varied. They comprise the following: restraint on state autonomy in inter-state relations; the supremacy of the law; equality before the law; the separation of powers; the independence of the judiciary; the international rule of law in relation to the person; respect for human dignity and safeguarding of human rights and fundamental freedoms; public participation in the decision making process; and due consultation with civil society before major decisions are taken. All of these concepts are ingrained in a democratic society governed by the rule of law.

The law of law requires that the state, including the public administration, is subject to the law; the public administration respects the rights of persons under the rule of law and provides effective means for their enforcement; the judiciary are guided by the rule of law, protect and enforce it without fear or favour and resist any encroachments by Parliament, the public administration or political parties in their independence as members of the judiciary; all members of the legal profession should insist with the state that every accused person living under the rule of law is entitled by law to a fair trial.

There are a number of criteria which have to be satisfied by law in a state under the rule of law. First, the law has to be accessible and so far as possible intelligible, clear and predictable. Second, a law which does not satisfy any of the above criteria should be struck down by the courts of justice. Third, law should be distinguished from discretion. Questions of legal right and liability are ordinarily resolved by application of the law and not through the exercise of discretion.

Other principles which make up the rule of law are equality before the law, proper exercise of powers, and respect for human dignity, human rights and fundamental freedoms. The laws of the land are to apply equally to all, save to the extent that objective differences justify differentiation. The public administration is to exercise the powers conferred upon it in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably. The law has to afford adequate protection to human dignity, human rights and fundamental freedoms. Human rights and fundamental freedoms come in four generations. All four generations of human rights and fundamental freedoms as contained in statutory law have to be protected and respected by the state, including the public administration.

The rule of law has also practical applications. It is not only an abstract theory. Means are provided by the state for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve. Such means of dispute resolution include the courts, arbitration and alternative dispute resolution mechanisms such as mediation.There is no doubt that mediation is an important tool to reduce court cases apart from being expeditious and cheap. Adjudicative procedures provided by the state have to be fair.

The rule of law has also an international dimension – it requires compliance by the State of Malta with its obligations in international law as in national law.

The basic principles of governance recognize and give prime importance to the rule of law. The public administration is obliged to exercise power in accordance with basic principles of governance: sovereignty resides in the people and all government authority emanates therefrom; the State values the dignity of every human person and guarantees full respect for human dignity and for human rights and fundamental freedoms;  civilian authority is, at all times, supreme over the military; the State should by law ensure the autonomy of local government; the right of the people and their organisations to effective and reasonable participation at all levels of social, political and economic decision-making should not be abridged. The State should, by law, facilitate the establishment of adequate consultation mechanisms; the State shouldin a nutshell respect the rule of law.

Codification of the rule of law in Maltese Law is thus the next step to pay homage to this important constitutional principle for our society which distinguishes a democratic society from one whose characteristic feature is the law of the jungle.

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