Rule of Law

Introduction:

British Constitution found that different people explain different concepts of rule of law. Rule of law is the classical principal of administrative law. In fact, this principal is one of the principals that act as an obstacle in development of administrative law. Rule of law is now an important part of the modern administrative law. The rule of law is the legal principle, which means that no man is above the law and that every person, whatever his rank or conditions, is subject to the jurisdiction of ordinary courts.

Mr. justice Anwar-ul-Haq:

"Rule of law has now become a universal

obligation/duty and it is not to be thought of as being confined/limited to a

particular system of Government."

Definitions

According to Sir William Wade:

Everything must be done in according to law.

According to Dicey:

In 1885 Dicey said, the absolute supremacy of regular

law no one is above the law and no one is below the law. e.g., if anyone violate the

rules of law then he/she will get punished.

Origin of Rule of Law

French phrase "La Principal De Legalite" which means the principle

of legality.

postulates/ Principles of the Rule of Law:

According to Professor A.V Dicey, for achieving supremacy of law

three principles must be followed, which are as follows:

i. Supremacy of law,

ii. Equality before law and 

iii. Predominance of Legal Spirit

Supremacy of Law:

Which one violate the law will be punished. It means the absolute Supremacy of

law as opposed to the illogical and wide optional powers. In other words, a man may

be punished for a breach of law but he cannot be punished for nothing else.

Equality before Law:

No one above the law even the Prime Minister will face the same

rule whicha vendorface. According to the second principle of Dicey, equality before

law and equal subjection of all classes to the ordinary law of land must be

administered by the ordinary law courts. As stated by Dicey, there must be equality

before law or equal subjection of all classes to the ordinary law of land.

Predominance of Legal Spirit:

Judiciary has no arbitrarypersonal authority towards the citizen.

(According to the third principle of Dicey, general principles of the Constitution are

the result of the decisions of the judiciary which determine to file rights of private

persons in particular cases. According to him, citizens are being guaranteed the

certain rights such as right to personal liberty and freedom from arrest by many

constitutions of the states. Only when such rights are properly enforceable in the

courts of law, those rights can be made available to the citizens. Rule of law as

established by Dicey requires that every action of the administration must be backed

and done in accordance with law.

Historical Background

Strict Liability:

Revenge of murder is murder.

The code of Hammurabi:

Hammurabi was the 6th king in the Babylon. The

earliest written legal code for government was the code of Hammurabi in 1750 BC.

The Code of Hammurabi includes many harsh punishments, sometimes demanding

the removal of the guilty party's tongue, hands, breasts, eye or ear. But the code is

also one of the earliest examples of an accused person being considered innocent

until proven guilty.

The modern understanding of Athens:

In ancient Athens there is a rule that nobody can say anything to

the king and then Socrates in 399 BC. take charge on this and remove this tradition

and then afterwards evolution came and judiciary came into existence.

Roman law:

There is inequality in the tradition and as the rulers came, they take

actions and then equality came in the Roman. They also learned that the negative

laws are not important but moral values are important. There in Romans a rule was

Aristocracy (king). It spread by military. The basic humans' rules also spread by

Romans.

The Magna Carta 1215:

The most important idea in the rule of law as a

concept of governess was the signing of Magna Carta in England in 1215. "signed

by King John" in this document the 1" time king has limited power and disagree to

raising the taxes without the approval of particular elected parliament.

Bill of Rights 1689:

The English Bill of rights recognized the importance of positive rights

e.g., The rights of prisoners.

Latin: Audi Altrem partem (let the other side be heard as well)

Positive rights refer to moral responsibility that is payable to someone. Many English

Philosophers think these positive rights are natural rights such as that all humans

were entitled to positive rights and the state could not violate them.

Petition of Rights 1628:

Petition of Rights 1628 was a petition from the Tycoons to the King to

remind him of the principles of the rule of law established in the Magna Carta. The

Petition of Rights extended the rule of law and due process to encompass(include)

some implied terms of the Magna Carta.

The Habeas Corpus Act 1679:

The right of Habeas Corpus is an essential feature of the rule of law,

and is not explicitly(clearly) mentioned in the Magna Carta but subject to much

future legislation. It matured in legal terms in the Petition of Right. It requires a

detainee(prisoner) to be brought before the court, so the legality(validity) of their

detention(custody) can be determined and if not, the prisoner must be released. The

Habeas Corpus Act 1679 specifically legislated for the fact that a detainee was

entitled to be brought before a court to subject his or her detention too judicial and

hence legal scrutiny.

Dicey's Criticism:

The doctrine of rule of law tells that the dicey was never fully

accepted these are some criticisms on his thesis.

Dicey did not cleared the types such as Criminal law and civil law.

• Dicey ignored the privileges enjoyed by the crown. e.g.. in Pakistan President

is above the law.

He also ignored many statutes (rules) which discuss unrestricted power on the

executives.

Those countries which have a written constitution, the rights of the citizens

are guaranteed by constitution itself and are not as the result of the decisions

of court.

Based on wholly(only) misconception(misunderstanding):

Dicey's exposition of rule is based on wholly misconception. He has

not foreseen(expected) the evolution of system, due to which his thesis not

support administrative law.

Inherent Ambiguity ( doubt )

Decision of parliament always based on majority's decision, in this sense

majority holds arbitrary powers.

If parliament enacted(passed) bad law:

if parliament passes a bad law, then is the rule of law consider it

Supremacy?

Discretionary (optional ) powers:

He did not expect the increasing need for discretionary powers in the

modern State and the need for legal control of such powers. Discretion is now

seen as necessary for the decision making required in an increasingly complex

society. However, discretion should still be constrained(forced) by values of

the rule of law, such as fairness, impartially and equality.

Supremacy of Law:

This first principle also cancels out the fact that, as a matter of essential

competence, many present-day statutes allow police the power to detain

people for a short period of time due only to a reasonable suspicion(thought).

Discretionary Power Arbitrary Power:

New devices have been instituted to give relief to the individual against mal-

administration and subtle abuse of discretionary power such as Ombudsman

(complaint against someone) and Judicial review

Equality before Law:

Members of the police force may be able to exercise considerably more lawful power

over members of society than the average citizen lawfully could. It is not true that

those public officials and private citizens have the same rights, and are thus equal.

Dicey also ignore the privileged protection enjoyed by the crown under the cover

of the constitutional maxim that "the King can do no wrong"

MERIT AND DEMERITS OF THE DICEY CONCEPT

MERITS:

• Help in making limits to the power of administrative authorities.

•A major role in growth and recognition of administrative law.

Act as a scale for the test of administrative action.

DEMERITS:

• His theory was not fully accepted during his era also.

• Failed to distinguish between discretionary and arbitrary power.

Rule of law and its application today:

For the understood of this term we have been classified in three

categories.

•LAW & ORDER BETTER THAN ANARCHY:

A state is better in peace than the anarchy, war and conflict.

GOVT. ACCORDING TO LAW:

In this category it is clear that the government must be conducted according

to law.

RULE OF LAW AS BROAD POLITICAL DOCTRINE:

The rule of law refers to a body of political opinion about what the detailed

rules of law should provide in matter both of substance and procedure.

Constitution tells how much parties we can made e.g., in Pakistan we can

made unlimited parties.

Rule of law under Pak. Constitution:

In order to develop Pakistan's democracy, rule of law has played a great role.

Constitution is considered to be supreme.

Article 4 and 25 of the Constitution of 1973, embodies(expresses) the essence of

the rule of law,

Article 4 of the Constitution of 1973, says; Right of individuals to be dealt with

in accordance with law, etc.

The Rule of law is also given Part I of the Constitution of 1973 in Fundamental

Rights. In case of violation of such rights, one can approach High Court under

Article 199 of The Constitution. The Constitution of 1973, is developed with the

principles of law i.e., justice, equality and liberty. Any law made by legislature

must be complied in accordance with the Constitution. If any law made by the

legislature breaches with the provisions of the Constitution (Fundamental Rights)

then such law will be declared void.

Under Article 199 of the Constitution, the High Court has the power to issue writs

in the nature of Habeas Corpus, mandamus, prohibition, quo waranto, and

certiorari. The power of judicial review is also given to Supreme Court in order

to prevent any ultra vires law so as to preserve The Rule of law.

Equality of citizen under article 25:

All citizens are equal before Law and entitled equal protection.

In preamble:

The principle of democracy, freedom, equality, tolerance, and social

justice as told in Islam shall be fully observed.

Right of individual under article 4 of Pakistan Constitution 1973:

a) No person can cross the limits of law.

b) No-action damage to life, liberty, body or reputation,

except for the law.

Rule of law under British constitution:

Accordance with law

Everything must be done in accordance with law. Rule of law select

law and order within community

Fundamental rights

> Rights to personal freedom.

► Right to speech.

> Right of public meeting.

Governmental obligations:

• Ministerial Responsibility

Revenues

Armies

• Equality in the eye of law

• Officials and Citizens

Rule of law under legal process:

Law must be accessible to everyone.

It should be proper.

Legal advice should be provided.

Judges should be impartial.

Rule of law and Supremacy of Parliament:

Members of parliament made through elections and there is no law that

can limits the legislative powers of the parliament.

American constitution and rule of law

5th and 14th amendment deal with the Due process clause according to

which life and liberty of a person are not subjected to uncontrolled powers of the

government. This idea found in these clauses has developed from the concept of

rule of law found in Britian.

MODERN CONCEPTION ON THE RULE OF LAW:

In the modern sense, the rule of law means supremacy of the

Constitution in the countries with is written Constitution. It also means observance

with the existing law or to be framed which isn't inacceptable to the Constitution. It

also means conforming to the developed modern concepts of constitutional law

which have attained universal acceptance.

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