Rule of law, key to Democratic Governance | Page 9 | Daily News

Rule of law, key to Democratic Governance

The expression ‘the Rule of Law’ is often referred to when democratic liberties are discussed. The rule of law not merely requires that a government should act according to law, but also that the body of law in existence in a country should 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 government acts according to 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.

As the notion of rule of law is dependent on upon the political foundations of a state, so too, it is dependent according to the approach adopted to the concept upon a nations 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 and homelessness and entitlement to a basic decent standard of life, then economic conditions are of paramount importance to conformity with the rule of law. Such an approach is adopted by the International Commission of Jurists which in the New Delhi Declaration of 1959 included alongside traditional civil and political rights, the realization of social, economic, cultural and educational standards under which the individual could enjoy a fuller life within the ambit of the rule of law. A legal system is viewed as just and in conformity with the rule of law 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 the law, thought not accepted without reservation today, is a useful starting point for a 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 rule making 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 intra vires 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: they are 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 a 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 categorized as accessibility and procedural fairness. In terms of accessibility the law must be accessible to all if rights are to be enforced. Accordingly, there must not only 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.

Rule of law in international dimension

The Universal Declaration of Human Rights of the United Nations adopted in 1948 declares that: “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 recognizes the concept of the rule of law. On an international level the rule of law is also advanced by the International Commission of Jurists which strives to uphold and improve the rule of law within the legal systems of its members. The Declaration of Delhi 1959 recognized that: ‘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 realized’.

Rule of law and India

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, Bhagawathi J., stated: “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.”

Rule of law and United States

An important aspect of the rule of law in its application to the United States is the concept of ‘due process’. The fifth 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 14th Amendment (1868), that no State shall deprive any person of life, liberty or 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 been descended from the Latin phrase ‘per legem terrae’ (according to the law of the land), in Clause 39 of Magna Carta. (1215). Around ‘due process’ has turned the discussion of many of the basic liberties of the American citizen, and many of the protections which in England would be derived from the general concept of the rule of law are in the United States direct results of the interpretation of ‘due process’. 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.

(The writer is a retired Professor in Law, University of Sri Jayewardenepura.)


 

There is 1 Comment

In this rule of law, minimum standards of equity, justice and good conscience are spelt out. As this professor of law points out, there needs to be equal protection of the law for all uni. registered students in any declarations. There was no breach of law for SAITM medical students, but on the contrary, SLMC was given court verdict, a judicial decision to register them for internship as SLMC had violated the Medical Ordinance. Due to the 10 year terrorist war that had been declared on SAITM by the GMOA, its President has contempt of court case this week and wants to erase SAITM in order to be freed of his violation. Both SLMC and GMOA are receiving the consequences of their own actions. The Executive President with the GMOA agreeing ordered the transfer of SAITM students to KDU after declaring SAITM abolished. But GMOA still needs to collect some innocent SAITM students for their illegal private medical school TWIN COURSE to force into Russia with job agents, knowing well the future chaos for these gullibles. Even if SAITM and KDU may have differences in A/L, since this transfer by President is in a terrorist war situation, he would be justified to put whole SAITM group into KDU as a ONETIME TRANSITIONAL JUSTICE solution to end this conflict. All SAITM students need to go to KDU as one CLASS and be saved from GMOA agenda.

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