I refer to the statement by the prime minister that “no one is above the law” in response to the arrests of lawyers who participated in the march in commemoration of Human Rights Day recently. I wonder if the prime minister knows what he is talking about. Does he know the significance of what he said or is just plain ignorant?

When a person says “no one is above the law”, he is in fact stating the rule of law, where all men are equal before the law including himself. The difference between "rule by law" and "rule of law" is important to note. Under the rule "by" law, law is an instrument of the government, and the government is above the law.

However, under the rule "of" law, no one is above the law, not even the government. The core of "rule of law" is an autonomous legal order, where the rule of law has at least three meanings. The first meaning is that the rule of law is a regulator of government power. Secondly, rule of law means equality before the law. Thirdly, rule of law means procedural and formal justice.

Firstly, the rule of law as a power regulator has two functions, i.e. it limits government abuse of power, and it makes the government more rational and its policies more sensible. The opposite of rule of law is rule of person. The rule of person includes tyranny! The common feature of rule of person is the ethos that "what pleases the ruler(s) is law", i.e. under rule of person, there is no limit to what the rulers (the government) can do and how they do things.

In contrast, a key aspect of rule of law is "limitation", i.e., rule of law puts limits on the discretionary power of the government, including the power to change laws. At the core of the rule of law is the idea that discretionary power of the government should be limited.

There are common misconceptions from some people that as long as we have a so-called democracy (‘majority rule’), we have justice and rule of law. These people forget that popular will can rule with or without constitutional and legal limits.

Without constitutional limits, popular will can be destructive or even more destructive than the unfettered discretion of one person. Examples include the terrors of the French revolution, the crimes perpetrated against humanity during the Chinese Cultural Revolution, and maybe even the Nazis, as they were first elected but later brought every institution under totalitarian control.

Specifically, the rule of law requires the supremacy of law as opposed to the supremacy of the government or any political party like Umno. The noted English jurist AV Dicey stated that the rule of law means the absolute supremacy of regular law as opposed to the influence of arbitrary power.

In other words, the rule of law means that a government in all its actions should not punish anyone for a crime not previously defined in law. The rationale for this rule is that the government should not be allowed to abuse its power by punishing individuals for political reasons. It would be grossly unjust and oppressive for a government to arrest a citizen for exercising his democratic right to freedom of assembly under Article 10 of the Federal Constitution, when it was not known to be criminal at the time when this Constitution was enacted.

As such, rule of law is actually a constraint on government power. Without rule of law as a limit, popular will can easily be corrupted by emotions and irrational behaviour. As such, the rule of law is where the Federal Constitution should be given its rightful place of supremacy and respect and not in violation of the human right to basic freedoms guaranteed under the Constitution.

Furthermore, the prime minister has unduly influenced the court and the police by his mere statement and has abused it as a forum to gain cheap political mileage. Can there be justice for those charged? The rule of law also entails natural justice and is the bedrock of our fundamental civil liberties. No man should be condemned unheard, but the prime minister has acted like a judge by manipulating the mass media and depriving the right of the individual to a fair hearing which is a gross injustice.

Moreover, if a civil and democratic society allows for freedom of assembly and expression under Article 10 of the Federal Constitution. How would you construe a walk to be illegal, when there is no threat to security?

This is further strengthened by Article 4 of the Federal Constitution which provides that this Constitution is the supreme law of Malaysia and that any law which is passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void. Doesn't this include the Police Act 1967, which the police have argued as their basis for their arrests and a requirement for a permit which is unconscionably arbitrary and an abuse of power?

I wonder if the prime minister actually knows the meaning of no one is above the law. Because looking at the current situation, it looks more like we are ruled by a dictatorship, where only the prime minister and his cronies are above the law. A government that flouts the rule of law themselves would have lost its moral authority to rule, because absolute power corrupts absolutely.