The expression ‘the Rule of Law’ is often referred to when democratic liberties are discussed.
The Rule of Law does not merely require a government to act according to the law, but also requires the body of law that exists in a country to be in accordance with certain minimum standards of equity, justice and good conscience.
For the citizen, the Rule of Law is both prescriptive – dictating the conduct required by law – and proactive of citizens – demanding that the government acts according to the law.
As the notion of the Rule of Law is dependent upon the political foundation of a state, it is also dependent on the approach adapted to the concept upon a nation’s economic resources.
The narrow interpretation of the Rule of Law insists simply on a citizen’s compliance with the rule of law.
However, if the Rule of Law implies more than mere regulation by law and is elevated to a theory guaranteeing freedom from hunger, homelessness and the entitlement to a basic decent standard of life, then economic conditions are of paramount importance to conformity with the Rule of Law.
New Delhi Declaration
Such an approach has been adopted by the International Commission of Jurists which in the New Delhi Declaration of 1959, if it exhibits both these features and an absence of discretionary rules or practice.
The Rule of Law has its well-known exposition in the work of the influential British Constitutional lawyer, A.V. Dicey, who in 1885 published his Introduction to the Study of the Law of the Constitution.
His formulation of the Rule of Law, though not accepted without reservation today, is a useful starting point for discussion of this concept.
Dicey emphasized three aspects of the Rule of Law: (i) no one can be punished or made to suffer except for a breach of law proved in an ordinary court, (ii) no one is above the law and everyone is equal before the law regardless of social, economic or political status and (iii) the rule of law includes the results of judicial decisions determining the rights of private persons.
Despite narrow conception by Dicey impeding its growth in some cases, Indian cases stand as pioneering examples of what an imaginative court could do with this notion.
Judicial review
The Rule of Law has provided one of the main conceptual bases for administrative law in most Commonwealth countries.
Judicial review is the means by which administrative authorities with rulemaking and administrative powers are confined by the courts within the powers granted to them by Parliament.
It is for a court to determine whether the body in question has acted intravires or ultra vires. (That is inside or outside its powers). Judicial review represents a means by which the sovereignty of Parliament is upheld and the rule of law applied.
In the United Kingdom Council of Civil Service Unions v Minister for Civil Service, the House of Lords identified the categories of the decisions which could be immune from judicial review and the list is not exhaustive as, the making of treaties, the dissolution of Parliament the appointment of Ministers, declarations of war and peace, and matters relating to granting of honours.
What unites these categories is the fact that each involves matters of high policy which is most appropriately determined in the eyes of the judiciary not by the courts but by the executive.
Where this applies it may be said that the Rule of Law is undermined by respect for the doctrine of separation of powers; an ironic consequence.
The doctrine of judicial review nevertheless, represents the bedrock for the application of the Rule of Law, keeping those with law making and discretionary powers, within the law.
Legal process
For the Rule of Law to be respected and applied the legal process – civil and criminal - must exhibit certain features. These features may be categorised as, accessibility and procedural fairness.
In terms of accessibility, the law must be accessible to all, if rights are to be enforced. Accordingly, not only must there exist a system of courts available locally, but the cost of having recourse to the courts must be such that there is real access to the courts.
For the law to be attainable, adequate legal advice and assistance must be provided at a cost affordable by all. With regard to procedural fairness, justice and the Rule of Law demand that in the conduct of legal proceedings, procedural fairness be observed.
Subsumed within this requirement are many subsidiary conditions. The Rule of law in International Dimension the Universal Declaration of Human Rights of the United Nations adopted in 1948, declares:
“It is essential if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression that human rights should be protected by the Rule of Law”.
The European Convention on Human Rights and Fundamental Freedoms (1950) also recognises the concept of the rule of law.
Rule of Law
The Declaration of Delhi 1959 states: “The Rule of Law is a dynamic concept for the expansion and fulfillment of which jurists are primarily responsible and which should be employed not only to safeguard and advance the civil and political rights of the individual in a free society, but also to establish social, economic, educational and cultural conditions under which his legitimate aspiration and dignity may be realised”.
In S.P Guptha v Union of India (1982), nine Judges of the Supreme Court of India ruled in favour of a public interest suit filed by certain lawyers as a writ petition. In this judgment, Bhagwathi J., stated:
The Rule of Law and the United States, an important aspect of the Rule of Law with regard to its application to the United States of America is the concept of ‘due processes’.
The 5th Amendment (1791) provides that no person shall be deprived in any criminal case of life, liberty or property without due process of law and the 14 th Amendment (1868), that no state shall deprive any person of life, liberty or “If there is one principle which runs through the entire fabric of the Indian Constitution, it is the principle of the Rule of Law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective.
It is to aid the judiciary in this task that the power of judicial review has been conferred upon the judiciary.”
Property, without due process of law nor deny to any person within its jurisdiction, the equal protection of the laws. The due process clause of the 5th Amendment was thought to have descended from the Latin phrase ‘per legem terrae’ (according to the law of the land), in Clause 39 of Magna Carta. (1215).
Fair trial, freedom from search and seizure, freedom from self – incrimination and coerced confessions, right to counsel, equal treatment before the law – all these and many more facets of the Rule of Law reach American citizens through the ‘due process’ clauses.
Prior to 1994 the Rule of Law in South Africa was in fact, the rule by law. Legality as part of the Rule of Law required the government to act through the law, that the actions of officials were intravires and that arbitrary actions on the part of officials were prohibited.
Legality in the common law was narrowly construed as a constraint on admistrative actions and it did not reflect a broad normative commitment to the rule of law in the substantive sense.
Supreme Constitution
The advent of constitutional democracy has changed all of this; constitutional supremacy replaced parliamentary supremacy and the Supreme Constitution introduced a justifiable bill of rights.
In addition to this, Section 1(c) of the Constitution lists “Supremacy of the Constitution and Rule of Law” among the founding values of the sovereign, democratic South African State.
The Sri Lankan Supreme Court has also begun to use the Rule of Law in an imaginative way.
In Gunaratne v Petroleum Corporation, the court stated that the principle of equality before the law embodied in Article 12 is a necessary corollary of the concept of the rule of law.
As a result article 12 prohibited arbitrary, capricious or discriminatory action.
In Wickramatunga v Ratwatte , the Court cited the Gunaratne case and observed that Article 12 combines elements of the Rule of Law and elements of the 14 th Amendment of the American Constitution.
The court wondered whether it was because of this link that there had been a proliferation of applications under Article 12.
Respect for the Rule of Law required the observance of minimum standards of openness, fairness and accountability in administration, according to the Supreme Court in Jayawardene v Wijetilleke.
The fact that the Constitution and system of Government was founded on the Rule of Law was referred to in Premachandra v Major Montague Jayawickrama to prevent the erosion of that foundation, was the primary function of an independent judiciary.
Unfettered discretion cannot exist where the rule of law reigns. The Rule of Law demands that discretion be restricted.
Public functionaries
The Supreme Court held that there were no absolute or unfettered discretions in public law. Discretions were conferred on public functionaries in trust for the public to be used for the public good.
The propriety of the exercise of such discretions was to be judged by reference to the purposes for which they were entrusted.
In Priyangani v Nanayakkara, the Supreme Court stated that Article 12 contains ‘safeguards based on the Rule of Law’ which provides against arbitrary and unreasonable action and added that discretionary power can never be treated as absolute and unfettered.
The applicability of the Rule of Law in Fundamental Rights jurisdiction through equality was further expanded and articulated by His Lordship Justice Fernando in the case of Jayawardena v Dharani Wijeyatilake, Secretary Ministry of Justice and Constitutional Affairs and others in respect of the termination of the holder of the office of Inquirer into Sudden Deaths, where it was held that: respect for the Rule of Law requires the observance of minimum standards of openness, fairness and accountability in administration and this means, in relation to appointments and removal from offices involving powers, functions and duties which are public in nature, that the process of making a decision should not be shrouded in secrecy.
The concept of public trust and the abiding principle that the powers of the state and that of its officials, agents and instrumentalities are held in trust for the public is a necessary corollary of the more generic concept of the Rule of Law.
The Rule of Law underlies the entire constitution and in one sense all constitutional law is concerned with the rule of law. The Rule of Law cannot be viewed in isolation from the political society.
(The writer is a retired Professor in Law at the University of Sri Jayewardenepura. He is an Attorney-at-Law, practised in courts and holds a PhD in law)