Rule of law

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;

5^th 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.