Rule of law
Rule of law in England;
Dicey in his classic book, “The law and the
constitution” published in the year 1885, developed this theory. According to
him three meanings to the said doctrine;
1)
Supremacy
of law
2)
Equality
before law
3)
Predominance
of legal spirit
1)
Supremacy of law;
Dicey states that,
rule of law means absolute supremacy of law or predominance of regular law as
opposed to the influence of arbitrary power or wide discretionary power.
According to him the Englishmen were ruled by the law and by the law alone, a
man with us may be punished for a breach of law, but can be published for
nothing else. He said, “No man can be punished or no man can be deprived of his
liberty, except he violate same law, even after violation by courts of law”.
2)
Equality before
law;
Dicey states that
there must be equality before the law or the equal subjection of all classes to
the ordinary law of the land administered by the ordinary law courts. According
to him, no man is above the law. Everyone is subject to law.
3)
Predominance of
legal spirit;
Dicey states, “That
the general principles of the constitution are the results of judicial decisions
determining the rights of private persons in particular cases brought before
the court”. Although in England the constitution is unwritten and not supreme
over parliament, still rights of citizens are protected by courts of law. This
is predominance of legal spirit.
Together these
three principles are known as, “absolute supremacy of law” or same law should
be obeyed by everyone. Law must be uniform.
Wade; in his book, “Administrative law”;
“The rule of law requires that the government should be
subject to the law rather than the law subject to government”.
Case law; “Wilkes vs wood”;
“It was held that an action for damages for trespass
was maintainable even if the action complained of was taken in pursuance of the
order of the minister”.
Case law; “Entick vs Carrington”;
“A publisher’s house and papers were ransacked by
king’s messengers sent by the secretary of state. In an action for trespass,
damages to the tune of 300 pounds were awarded to the publisher”.
Yardley; book, “A source book of English
administrative law” 1970, page 5;
“Almost everybody in this country accepts and
acknowledges rule of law”.
Rule of law in United States of America;
5th amendment in constitution, 1791;
It pertains to the
rule of law, it guarantees due process of law.
“Passed by
Congress September 25, 1789. Ratified December 15, 1791”
Text;“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation”.
After this the
supreme court of united states started judging the validity of laws from the
broader angle of inherit goodness of laws. They can take judicial review on now
two grounds;
a)
Against
constitution
b)
Inherit
goodness of law
Rule of law in India and Pakistan;
In Pakistan, Case law;
Mumtaz ali Bhutto
and others
Vs
Deputy Marshall
Law administrator sector 1, Karachi and 2 others
PLD 1979 kar 307
“In indo-Pak subcontinent, even in
pre-constitution days, the executive was a limited executive that is, an
executive limited by law and it could only act in accordance with law. The
principle of rule of law that the executive cannot act to the prejudice of a
person without the authority of law was a recognized principle as a part of law
of the land and uniformly administered by the courts.”
Rule of law in Indian and Pakistani constitution;
·
Preamble of Indian
constitution
1)
Ideals
of justice
2)
Liberty
3)
Equality
·
Preamble of
Pakistani constitution
1)
Democracy
2)
Freedom
or liberty
3)
Equality
4)
Tolerance
5)
Social
justice
·
Fundamental rights
Fundamental
rights of both countries are guaranteed and provided by their respective constitutions.
·
Principles of
policy
Constitution
of both countries have goals of welfare state in them.
·
Constitution is
supreme
In
both countries, constitution is supreme over parliament. Every action must be
in accordance with law and within constitution. Third schedule, of constitution
of Islamic republic of Pakistan prescribes “protect and preserve the
constitution” to everyone who takes oath under it.
·
Judicial review
Power
of judicial review is available to the higher courts of both countries
judiciary. Both in India and Pakistan, judicial review of administrative as well
as legislative action can be taken, but in English justice system, only
administrative actions are subject to judicial review not legislative one.
·
Security of person
In
both constitutions, security of person is assured through fundamental rights.
·
Supremacy of law
In
both countries constitutions, nobody is above the law.
So, rule of law is
enshrined in constitution of both countries. But practically eternal vigilance
of citizens are required for rule of law.
Indian Case laws;
AIR 1931 PC 248
“The executive couldn’t meddle with the liberty or
property of a subject except as authorized by law and upon the condition that
the legality of action could be acquitted before a court”.
AIR 1950 SC 27
A.K Goplan
Vs
State
Supreme
Court observed in Habeas corpus case, and attempt was made to challenge the
detention orders during emergency on the ground that were violated of the
principal of the rule of law as the obligation to act in the accordance with
rule of law is the central feature of the our constitutional system and is the
basic feature of the constitution. The narrow issue before the Supreme
Court was whether there was any rule of law in India apart from Art. 21 of the Constitution. The Majority of bench answered the issue in the
negative. Justice Khanna however did not agree with the majority view and gave a
powerful dissenting Judgment.
He observed;
“Rule of law is anti-aphesis of arbitrariness (it is
accepted) in all civilized societies, it has come to be regarded as the mark of
the free society. It seeks to maintain a balance between the opposite notions
of individual liberty and public order. Even in absence of Art. 21 in the
Constitution, the state have got no power to deprive a person of his life or
personal liberty without the authority of law.”
A.K.Kraipak
V
Union of India
Supreme Court held that the
Constitution the India Embodies the modern concept of the rule with the
establishment of a judicial system which should able to work in the impartially
and free from all influence. The rule of law pervades over the entire field of
the administration and every organ of the state is regulated by the rule of
law. The concept of this rule of law would lose its vitality if the
instrumentalities of the state are not charge with the duty of discharging
there function in a fair and just manner.
AIR 1975, SC 2299
Indra Nehru Gandhi
V
Raj Narayan
There was a great discussion
about rule of law. Justice Mathew observed that according to majority decision
of Keshvananda Bharti rule of law is the part of basic feature of Indian
Constitution apart from democracy. Rule of law prevent the arbitrariness
of all government officer’s. There were so many provisions incorporate in our
Constitution to informant of the rule of law.
AIR 1969 SC 33
Chief settlement
commissioner Punjab
Vs
Om parkash
Page 36;
“In our constitutional system the central and most
characteristics feature is the concept of the rule of law, which means, in the
present context the authority of law courts to test all administrative action
by the standard of legality. The administrative or executive action that does
not meet the standard will be set aside if the aggrieved person brings the
appropriate action in the competent court”.
AIR 1976 SC 1207
A.D.M Japalpur
Vs
Shivkant Shukla
“Even in the absence of article 21 (of Indian
constitution), the state has got no power to deprive a person from his life and
liberty without the authority of law. This is the essential postulate and basic
principle of rule of law and not of men in all civilized nations. Without such
sanctity of life and liberty, the distinction between a lawless society and one
governed by laws cease to have any meaning.”
Meaningful theory of rule of law;
“In modern age rule of law links with human rights”. The purpose of rule of law is to
protect, facilitate, human rights and to provide remedies for their
infringements. Because it is an age of human rights. Rule of law today is not
only a theory, today it’s a purposive theory. Its object is human rights. Today
it’s a meaningful rule of law. Today equality of law means equal human rights,
and equal protection means equal protection of human rights.
Today rule of law
leads us towards a welfare state. Its purpose is welfare of citizens as a
whole. And this change in rule of law is because of administrative law.
Factors of change in rule of law;
1)
Concept
of welfare state.
2)
Delegated
legislation, quasi-executive and quasi-judicial powers.
3)
Administrative
justice.
4)
Vast
discretionary powers.
5)
Immunities
and privileges.
Law is today not
command rather it is to serve people. Consequently in modern age rule of law
liberalize. Today Dicey’s concept of rule law cannot be accepted as a whole but
with some modifications, it is acceptable.
Principal meanings of rule of law; Davis; book,
“administrative law” 1959;
He gives seven principal
meanings of rule of law,
1)
Law
and order
2)
Fixed
and uniform rules
3)
Elimination
of discretion
4)
Due
process of law or fairness
5)
Natural
law or observance of the principles of natural justice
6)
Preference
for judges and ordinary courts of law to executive authorities and
administrative tribunals
7)
Judicial
review of administrative actions
Rule of law is a
global phenomenon.
Segments of rule of law;
1)
Democracy in its true sense. There must not be a sham
democracy.
2)
Independent judiciary.
3)
Discretion should be structured.
4)
Judicial review.
5)
Natural justice principles.
6)
Due process of law; which includes,
a)
Justice
and fair play b) freedom and liberty c) equality and non-discrimination.
Rule of law under constitution of Pakistan;
·
Preamble
of constitution of Pakistan 1973.
·
Ideals
of democracy.
·
Fundamental
rights under constitution.
·
Article
199, power of judicial review and writ jurisdiction of high courts.
·
Article
183(3), for enforcement of fundamental rights, power of supreme court of
Pakistan.
·
Supremacy
of constitution.
·
Oaths
for the preservation of constitution of Pakistan.
All these and many
provisions are incorporated in our constitution regarding the rule of law in
our country.
Current meaning of rule of law;
1)
“It is a fundamental segment of a democratic setup”. Prof wade
2)
“It is universal obligation of every civilized
society”. Justice naseem hassan shah,
book, “constitutional law and pakistan”.
3)
“It means supremacy of law as opposed to arbitrary
authority of government”. Justice naseem
hassan shah, book, “constitutional law and pakistan”.
4)
It precludes discretionary actions in two ways;
a)
Government
has the power to carry out the law and not to do whatever it thinks fit.
(Article 4)
b)
The
executive can’t take away liberty and property of any citizen except by due process
of law. (Article 4)
Theories evolved by rule of law;
1)
Ultra vires;
Ultra vires means
beyond power. An action against law, or not in accordance with law, which is
basic of judicial review.
2)
Natural justice;
Justice according
to the law of nature.
Meanings of rule of law;
1)
Restricted
meaning;
It
means, make a law and act according to it regardless either it is good or bad
law.
2)
Liberal meaning;
It
means, make a good law and act according to it. i.e, U.S.A Supreme Court now
can judge a law on basis of public policy and can declare it good or bad law.
3)
Modern view;
It
means, make a pro-public laws and implement those in a fair, equal and just
manners.
Further requirements of rule of law;
These are as
follows;
1)
All laws should be prospective
2)
All laws must be precise and clear
3)
Law must be stable
4)
Making of laws should be guided by open, stable,
clear, and general rules and independent system of judicial review of courts
5)
Principles of natural justice are observed
6)
Easy access to courts
7)
Free, fair and equal implementation of law
8)
Existence of free press and media
Nexus between administrative law and rule of law;
assignment
Administrative law
is the bye product of growing socio-economic functions of the state and the
increased powers of the government. And the entire basis of administrative law
is the doctrine of rule of law.
Sir Edward coke;
The chief justice
in James 1’s reign was the originator of this concept. He held that;
“King should be
under God and law”.
The administrative
law is that branch of law, which is concerned with the composition of powers,
duties, rights, liabilities, of the various organs of the government.
And,
“The rule of law requires that the government should be
subject to the law rather than the law subject to the government” prof wade, book, “administrative law”
“Administrative law is the law relating to the control
of governmental powers” Jayakumar, book,
“administrative law”
And,
Rule of law simply
means; that “Law Rules”.
There is a close
nexus between administrative law and rule of law. The entire bases of
administrative law is the doctrine of rule of law. Rule of law strengthens
administrative law.
Defining rule of law;
As expressed by Prof Wade;
“The rule of law requires
that the government should be subject to the law rather than the law subject to
the government”
It may be
specifically defined as;
“A legal principle of general
application, sanctioned by the recognition of authorities, and usually
expressed in form of a maxim or logical proposition. It is called a Rule
because in doubtful circumstances it is a guide or norm for their decision. The
rule of law sometimes called the supremacy of law, provides that decisions
should be made by the application of known principles or laws, without the
intervention of discretion in their application”. Black’s law dictionary
Rule of law is not
a modern term, as it is quoted by Aristotle;
“It is preferable that the law should rule rather than
any single one of the citizens”
As stated by Lord Denning in case,
(1977) 1 QB 729
Gouriet
Vs
Union of post
office workers
“To every subject in this land, no matter how powerful,
I would use Thomas Fullers words over 300 years ago, “be you ever so high, the law is above you.””
So, in essence
rule of law means, that government and its officials, together with citizens
must act under the law.
“Because the essence of rule of law is the ability of
law to impose meaningful limits on the state, an effective administrative law
regime that limits the arbitrary act of the government is essential to rule of
law” Rondall, book, “china’s long march
towards rule of law”
And, “The core task of administrative law is to
impose the rule of law on public authorities”. Trimothy Endicott, Book, “administrative law”.
Rule of law, either weakens or strengthens
administrative law;
The expression
rule of law derived from French words, “la principle de legality” means,
“government based in the principles of rule of law”.
Because of dicey
concept about rule of law, the growth of administrative law is slowed down in
England; “Rule of law means the
absolute supremacy of law as opposed to the influence of arbitrary powers and
excludes the existence of arbitrariness or even wide discretionary authority on
the part of government”. Dicey in 1885.
But, today dicey concept about rule of law is not
acceptable. Today without discretionary power the goal of welfare state cannot
be achieved.
Today concept of
rule of law was given a new meaning, according to the commission in Delhi (india);
“The rule of law depends not only on provisions of
adequate safeguards against abuse of powers by executive, but also on the
existence of effective government capable of maintaining law and order and of
ensuring adequate social and economic conditions of life for the society.
The emphasis is on
the government to pay heed to the welfare of individual. Courts should be
readily available to all and not to only those who can afford to litigate. It
was also pointed out that right to earn one’s living should be recognized and
protected by the law”. Normans Mash, p
4, 6, 8, 11, 12, 14, (1960), “The rule of law in free society”.
According to Friedman;
“Modern jurists have attempted to view rule of law in a
political perspective” Friedman, book,
“law in changing society (1970)”.
The main aim of administrative law is to stand
against the arbitrary government (the government which is contrary to the rule
of law) by imposing the rule of law on executive actions.
And, a community
is not ruled out by law unless;
1)
The
life of a community is governed by clear, open, stable, prospective, general
standards.
2)
Government
officials adhere to those standards. And
3)
There
are independent courts that regulate the conduct of other institutions. Trimothy Endicott, Book, “administrative
law”.
Rule of law as a foundation of administrative law;
In recent years,
the presence of representative of democracy, beneficial social and economic
services and conditions, personal independency (privacy) and independent
judiciary has all taken as indications and elements of the rule of law.
The rule of law
requires that government should operate within the confines of law and in the
aggrieved citizens whose interest have been adversely affected be entitled to
access independent judiciary.
The basic purpose
of administrative law is to control excessive and arbitrary governmental
powers. And this purpose is mainly achieved through the ordinary courts of law
by reviewing and checking the legality of any administrative action.
Therefore
administrative law as the branch of law, is rooted in the principle of rule of
law.
Ultra-vires theory;
Rule of law
underlines that power should be exercised according to law. And ultra vires
goes one step further and states, that any action taken by any official which
is beyond the scope of powers given to him is ultra vires and hence considered
null and void.
According to the wade and forsyth;
“An administrative act that is ultra vires or outside
of jurisdiction is void in law.”
And,
Administrative law
by invalidating the ultra vires act ensures that every administrative action is
in conformity with the law, indirectly
guaranteeing the observance of rule of law.
Hence, administrative law strengthens rule of
law, and rule of law in turn develops administrative law. So both have a close
nexus among them.
