In the light of the recent events surrounding the police search at the former prime minister Joseph Muscat’s residence, as ostensibly ordered by a branch of our judiciary, one ought to recall a basic juridical and political concept – that no one should be above the law – and put it in its proper perspective.
It might sound like a line from the latest Hollywood blockbuster movie, but the idea that “no one is above the law” underpins the whole of today’s legal system.
This is the essence of the rule of law: that no man can be lawfully punished by the authorities except for breaches of law established in an ordinary manner before the courts, that no man is above the law and that everyone, whatever his condition or rank, is subject to the ordinary laws of the land, which in turn are subject to the constitution.
The very concept of upholding rule-of-law values has been challenged by the outcome and reactions to the search. This challenge only brushes the surface of a much wider issue.
Equality under the law essentially means that it does not matter whether one is a citizen or monarch, or a former prime minister or president. One must be treated equally.
Furthermore, an independent judiciary means there is no outside influence in applying the fundamental and ordinary laws fairly and equally.
“I am the law” is a phrase attributed to Frank Hague, the mayor of Jersey City from 1917 to 1947. He was the ultimate political boss in an era when bosses ruled local politics. He was famous for bending the law to his own purposes and wielding absolute power.
His famous declaration echoes the French absolutist king, Louis XIV, who once announced “l’état, c’est moi”. A few decades after Hague’s time, president Richard Nixon expressed a similar sentiment, reasoning he had an executive prerogative that allowed him to break the law or rather, change its definition.
Former presidents and prime ministers are being investigated, prosecuted and even jailed worldwide, be it in Bolivia, Israel, France, South Africa, South Korea, Brazil and even in the US.
The very concept of upholding rule-of-law values has been challenged by reactions to the search
At first glance, prosecuting current or past top officials accused of illegal conduct seems like an obvious decision for a democracy: everyone should be held accountable and subject to the law.
But presidents and prime ministers are not just anyone. They are chosen by a nation’s citizens or their parties to lead. They are often popular, sometimes revered. So judicial proceedings against them are inevitably perceived as political and become divisive.
If the prosecution of past leaders is brought about by a political rival, it can lead to a cycle of prosecutorial retaliation. When it comes to past leaders, both sweeping immunity and overzealous prosecutions can undermine democracy.
Overzealous political prosecution is more likely, and potentially more damaging, in emerging democracies where courts and other public institutions may be insufficiently independent of politics.
The weaker and more beholden the judiciary, the easier it is for leaders to exploit the system, either to expand their own power or take down an opponent. When either one or the other becomes a reality, it indicates the government is incorrigibly corrupt. And when that happens, it becomes easier for politicians and voters to view leaders’ transgressions as a normal cost of doing business.
In mature democracies, prosecutions can hold leaders accountable and solidify the rule of law. But even here, prosecutors or judges can weaponise prosecutions.
A strong democracy, as is ours, should be competent enough, and its judicial system independent enough, to go after politicians who misbehave, including top serving or former leaders. Even if any investigation is eventually followed up by prosecution and conviction, it should never entail the country falling apart.
A conviction does not necessarily end one’s political career. Take Brazil’s Lula, for example. Having been convicted, he was subsequently released from jail in 2019, still enjoying more than 50 per cent of public support.
But even a mature democracy can turn sour with time if a long ruling party establishes a system of patronage and corruption that keeps its members in power and other parties in the minority.
This can also happen when, while making a show of going after smaller fish for corruption and other indiscretions, the party-run legal system does not touch top party officials, even the most openly corrupt.
Correction February 1, 2022: A previous version attributed the quote “l’état, c’est moi” to Louis XVI.