Judicial Independence on Trial: Tensions Andicompromises in Pursuit of the Rule of Law

David PIMENTEL

I. RULE OF LAW

Although the Rule of Law is a very popular concept, its definition is elusive. Generally, it connotes the idea of a government of laws, not of men, or that no one is above the law. If a king or dictator enjoys too much power, his “word is law,” so the law follows his whim. That is the rule of man, not the Rule of Law. Whatever the Rule of Law is, therefore, it is not the rule of man, because it is incompatible with placing anyone above the law.

When Southern Sudan achieved autonomy under its Comprehensive Peace Agreement in 2005, the new chief judge of the Southern Sudan Supreme Court hailed the end of hostilities as a new era of “Rule of Law.” He contrasted it not with the “rule of man” but with the “rule of the gun.” In a region torn by decades of civil war, and other lawless banditry, including the ravages of the infamous Lord’s Resistance Army, the power was exercised at gunpoint, and whoever held the gun made the rules. In this case, it is not the king or dictator, but the person who is armed and threatening violence, who is above the law.

The Rule of Law therefore means that the government and its highest leaders, as well as the armed and dangerous, are subject to the same laws as everyone else, that they must comply with the law, and that they will be held accountable, even punished, for violation of it. But to what degree is it achievable in any society? And who enforces it, to ensure that it happens?