Dr. Bahaa Helmy Writes: The Rule of Law and the Police

The Rule of Law and the Police The term «state governed by the rule of law» receives wide attention and currency at both the international and local levels, especially in the fields of rights and freedoms, equality and non-discrimination in democratic systems. Despite the wide use of this expression and the frequent invocation of its lofty principles, its precise meaning and the extent to which its concept is applied remain unclear. Some consider the principle of the rule of law to be part of the mechanisms of democracy and one of the basic conditions for the existence of a democratic system, while others consider democracy to be part of the mechanisms of the rule of law, as one of the fundamental rights and freedoms established by binding legal rules([1]). Everyone is keen to call for democracy, the rule of law and the police's commitment to their duties and responsibilities, especially when they use force to perform that duty, or use their authority to disperse non-peaceful protests, or in emergencies in the face of terrorism, or in any unrest affecting the country's national security. For in a state governed by the rule of law, the power of the State is limited to protecting citizens from the arbitrary exercise of power, citizens enjoy civil liberties legally and can invoke them before the courts, and no country can have freedom or democracy without first being a state governed by law and a constitution. Although the definitions of the rule of law are many and varied, there may be no real disagreement about the concept and meaning of the term «state governed by the rule of law» as the opposite of a dictatorship or a police state. It is clear from the above that the general concept of the rule of law is defined by the subjection of the State, and its restriction in all aspects of its activity, to the provisions of the law; that is, all the powers of the State – "legislative, executive and judicial" – may act only within the limits of the law. One of the most important pillars of the rule of law is the subjection of the State's executive power to the legal rules issued by the legislative power. There are basic elements for the State's subjection to the law, that is, for it to operate under the rule of law; these elements are guarantees and basic principles for establishing the rule of law in any state, namely:-

The constitution:

The constitution is the basic guarantee for establishing a state governed by the rule of law. It sets out the system of government in the State, the formation of the public authorities, the distribution of competences among them and how they are exercised, and it sets out the rights of individuals and the means necessary to guarantee and safeguard them. The constitution is thus a restraint on the powers of the State, as it sets out the limits and competence of each power, so that it cannot exceed them; otherwise it would violate the provisions of the constitution and lose the legitimate basis for its action.

Separation of powers:

This means that the basic powers – "legislative, executive and judicial" – must be separated. Separation of these powers means formal and organic separation: there is a body or authority responsible for the legislative function, another body or authority responsible for the executive function, and a different body or authority responsible for the judicial function, and none of these three powers may encroach on the competences of another.

Judicial review:

Judicial review is the best means of safeguarding and protecting the rights and freedoms of individuals, both as regards the subjection of the executive power to the law and the subjection of the legislative power to the constitution.

Guaranteeing individual rights and freedoms:

The main purpose of subjecting the State to the law is to secure protection for the rights and freedoms of individuals against the arbitrariness of the public authorities; in a state governed by the rule of law, the rights and freedoms of individuals, particularly social, economic and political rights, are supposed to be guaranteed. e- Independence of the judiciary: An independent judiciary is one of the most important pillars for establishing a state governed by the rule of law, as the actual existence of the other elements of the rule of law depends on it. The constitution, the principle of separation of powers and the declaration of individual rights and freedoms are worthless without an independent judiciary and judicial review that ensure respect for the provisions of the constitution and the law, ensure that each power exercises its competences within the limits of the principle of separation of powers, and ensure the protection of individual rights and freedoms; and judicial review is worthless unless it is exercised by an independent judiciary without any interference in its work by the executive or legislative power. There is no doubt that judicial independence is a cornerstone of building a state governed by the rule of law: when the judiciary is independent and impartial in its work, not subject to a ruling party or any other body whatsoever, sanctions can be applied against anyone who violates legal or constitutional provisions, without exception for any body or person, whatever their position in the State. Nor does the concept of the rule of law conflict with the form of the State: a unitary state can be a state governed by the rule of law, such as Egypt and France, and a federal state can at the same time be a state governed by the rule of law, such as the United States of America; and there are mechanisms for strengthening the principle of the rule of law that rely on judicial review and the independence of the judiciary. This means that the principle of the rule of law and its mechanisms form an integrated system of legal rules, reinforced by effective and independent judicial bodies, that allows society to be organized, the performance of authority to be controlled, and fundamental rights and freedoms to be defended and strengthened – as affirmed by international, regional and national instruments, which we review as follows:-

The principle of the rule of law in international instruments:

The Charter of the United Nations affirms in its articles the purposes of the United Nations: settling international disputes in conformity with the principles of justice and international law, developing friendly relations among nations based on respect for the principle of equal rights of peoples, and respect for human rights without discrimination, in addition to the Organization being based on the principle of the sovereign equality of states; all these provisions form the basis of the rule of law in the United Nations([2]). The International Covenant on Civil and Political Rights affirms that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law([3]). The Universal Declaration of Human Rights affirms that "All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination"([4]). The Declaration on the Elimination of All Forms of Racial Discrimination and the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief clearly define the nature and scope of the principles of non-discrimination and equality before the law contained in the Universal Declaration and the two International Covenants([5]). The Secretary-General of the United Nations presented a broad definition of the rule of law in a 2004 report, describing it "as a concept at the very heart of the Organization's mission. It refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards" ([6]). At the regional level, Article 3 of the African Charter on Human and Peoples' Rights states that "Every individual shall be equal before the law. Every individual shall be entitled to equal protection of the law"([7]). We believe that the term rule of law at the international and regional levels refers to the subjection of every natural or legal person, public or private, and of the State, all equally accountable before the law without any discrimination, with everyone submitting to an independent judiciary, and with compliance with national law in a manner consistent with international human rights norms and standards([8]). The instruments issued by the United Nations and the Office of the High Commissioner for Human Rights refer to the responsibility of the police to perform their duty in accordance with the law, in order to protect citizens and society from any acts that threaten safety, tranquility and stability, in a manner consistent with the responsibility this mission requires ([9]).

The principle of the rule of law in national legislation:

The principle of the rule of law comes at the forefront of the articles of the 2014 Constitution: Article (1) affirms that the Arab Republic of Egypt has a democratic republican system based on citizenship and the rule of law. The Constitution also affirms that the rule of law is the basis of governance in the State, as is the independence of the judiciary; that any assault on the public rights and freedoms guaranteed by the Constitution and the law is a crime not subject to a statute of limitations; and that citizens are equal before the law and equal in public rights, freedoms and duties, without discrimination for any reason([10]). The Constitution provides that punishment is personal, that no penalty may be imposed except by a judicial ruling, that the accused is innocent until proven guilty in a fair legal trial, and that litigation is a right safeguarded and guaranteed to all([11]). The Constitution set the general framework for the duties and responsibilities of the Police Authority and its members: as for duties, it guarantees citizens tranquility and security and watches over the preservation of public order and public morals; as for responsibilities, they consist in complying with the duties imposed on it by the Constitution and the law and respecting human rights and fundamental freedoms. The Code of Criminal Procedure provides that judicial police officers are subordinate to the Public Prosecutor and subject to his supervision with regard to their official work([12]); that is, the judicial police officer is subordinate to the Public Prosecutor with regard to judicial police work and subject to his supervision, while administratively he reports to his administrative superiors and is subject to their instructions, in accordance with Article (22) of the same law. It is worth noting how clearly the wisdom of the Egyptian legislator appears, and its keenness to ensure that no judicial police officer exceeds or abuses the authority legally vested in him to perform his duties, through subjection to the supervision of the Public Prosecutor as the representative of society, whose jurisdiction is general, encompassing the powers of investigation and prosecution and extending over the entire territory of the Republic and all crimes committed there, whatever they may be; it is therefore a guarantee that the rule of law is applied to all judicial police officers in their official work([13]). The Police Law affirms the competence of the Police Authority and its obligation to carry out the duties imposed on it by laws and regulations, and that any officer who violates the duties set out in this law or departs from the requirements of duty in his official work shall be subject to disciplinary punishment, without prejudice to civil or criminal proceedings where appropriate, in accordance with Article (47) of the law. Police personnel must therefore comply fully with the Constitution and the law, as law enforcement officials under international charters and instruments and in accordance with national legislation. From the above, it is clear to us that the concept of the rule of law rests on the following characteristics: the subjection of all persons, State institutions and officials to the authority of the law without exception or discrimination, with everyone accountable in case of violation; strengthening the independence and impartiality of the judiciary to achieve the justice sought; national legislation guaranteeing the protection of human rights and fundamental freedoms in line with international standards; and putting in place the mechanisms needed to monitor law enforcement transparently. We therefore believe that a state governed by law means the rule of law in the State, and that the legal basis of the police under the rule of law is the commitment to perform its duties in accordance with the provisions of the Constitution and the law, and to respect human rights and fundamental freedoms in accordance with the international standards accepted by states, while being subject to legal accountability in case of violation.