INTRODUCTION
The rule of Law was popularised in the late nineteenth century. A fundamental principle of the English Constitution is the rule of Law. This doctrine is accepted in the Constitution of Pakistan Under Articles 4 & 25.
CROSS-REFERENCE
- Article 4825 of the Constitution of Pakistan 1973
- English Constitution
- American Constitution
MEANING OF RULE OF LAW
The term rule of Law is used as a rule according to Law. It denotes that all men are equal and behave equally, giving supremacy to all Law to man. No constitution of any country can function, and no nation can March along the accurate democratic way of life without a proper and continuous realization of the importance of the rule of Law.
DEFINITION OF THE RULE OF LAW
According to Dicey:
The Rule of Law means the absolute supremacy or predominance of regular Law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness, prerogative, or even broad discretionary authority on the part of the government.
LEADING CASE REGARDING RULE OF LAW
Case Law: Entick vs. Carrington, 1765
Facts: In this case, two messengers of the King were sued for unlawfully entering the House of Entick and, after a search, seizing his papers. The defence they took was a warrant issued by the secretary of state to make the search and seizure.
Held: It was held that without a statute or Judicial Precedent. Upholding the legality of such a warrant, the practice was illegal.
Thus, the importance and need for the rule of Law were laid down in this case. Thus, the rights of the individuals were secured not by guarantee set down in a formal document but by the ordinary remedy of private Law available against those who unlawfully entered with his Liberty, whether citizens or officials. Dicey’s exposition of the concept of the rule of Law contains the spirit of the decision of his case.
DICEY’S EXPOSITION OF THE RULE OF LAW
Dicey, in his book “The Law and the Constitution“, published in 1885, attributed the following three meanings to the said doctrine,
1. SUPREMACY OF LAW
Absence of arbitrary power: Explaining the first principle, Dicey states that the rule of Law means absolute supremacy law or predominance of regular Law as opposed to the influence of arbitrary or broad discretionary power.
Form of government: The rule of Law requires the government to be subject to the Law rather than the law subject to the government.
Punishment according to Law: Man can be punished, arrested, or be lawfully made to suffer in body or goods except by due process of Law.
Principle of natural justice: “Audi Alteram Paterm” is a fundamental principle of natural justice that no one should be condemned unheard of. The rule of Law also stresses that all should have the opportunity to be heard.
2. EQUALITY BEFORE THE LAW
Dicey states that there must be equality or the equal subjection of all classes of people to the ordinary Law of the Land.
3. PREDOMINANCE OF LEGAL SPIRIT
Dicey states that the general principles of the Constitution are the result of judicial decisions of the courts of England. He emphasized the role of the courts as guarantors of Liberty. He suggested that the rights would be secured more adequately if they were enforceable in the courts of Law than by mere declaration in the documents.
CHARACTERISTICS OF “THE RULE OF LAW”
The following are the different characteristics of this term;
- Rule of Law implies that no person should be arrested, detained, or imprisoned without a proper and fair trial in a court of Law
- Procedures adopted either by courts or by administrative authorities should be fair
- His cause can judge no one
- No one can be condemned unheard for natural justice
ADVANTAGES OF DICEY’S CONCEPT
Dicey’s concept of the rule of Law has certain advantages. They are as follows.
1. Regarding administrative power:
Although the complete absence of discretionary powers or lack of inequality is impossible in this administrative age, the rule of Law has been used to spell out many propositions and deductions to restrain an undue increase in executive powers and create controls over it.
2. Keep the government’s powers within bounds:
The rule of Law has been given to the countries following the Common law system, a philosophy to curb the government’s power and to keep it within bounds.
3. Test for Administrative Law:
The rule of Law has provided a touchstone or standard to judge and test administrative Law prevailing in the country at a given time.
DISADVANTAGES OF DICEY’S CONCEPT
Dicey’s concept of the rule of Law has certain disadvantages. They are as follows.
1. Sense of Complacency:
Dicey’s thesis generated a sense of complacency in the English people so that they failed to see the growth & emergence of Administrative Law as such till some powerful voices rudely shook them. The result of this has been that administrative Law as a subject of study came to the scene relatively late in the day.
2. Misplaced trust in the efficacy of judicial control:
The most significant defect of the concept has been the misplaced trust in the efficacy of judicial control as a panacea for all evils and the somewhat irrational attitude generated towards the French system. People still believed that so long as Courts were there, they could control the administration in all its actions. Faith in the courts has stood in the way of adopting other more productive means of controlling the administration outside the judiciary.
3. Punished for nothing:
Englishmen are ruled by the Law and by the Law alone; a man may with us be punished for a breach of Law, but he can be punished for nothing else.
RULE OF LAW AND CONSTITUTION OF BRITAIN
The rule of Law in recent days is based on the following ideas:
1. Accordance with Law:
The Law must do everything. Rule of Law prefers Law and order within the community rather than anarchy.
2۔ Fundamental Rights:
The Constitution protects Fundamental Rights:
- Right to personal freedom
- Right of speech
- Right of public meeting
3. Governmental Obligations:
Government must be conducted according to Law, i.e.
- Ministerial Responsibility: Ministers are responsible collectively for their acts and individually.
- Revenues: Revenues are also collected through the sanction of Law
- Armies: The rule of Law controls the armies.
- Equality in the Eye of Law: No one should be punished except for something wrongfully done by him.
- Officials and Citizens: All officials and citizens would be treated, i.e. they would be subject to the same Law and should have to undergo the same legal process and punishment.
RULE OF LAW AND SUPREMACY OF PARLIAMENT
The rule of Law was one of the fundamental doctrines of the pre-revolution period. It brought about the supremacy of parliament and rejected the authority of one man. On the other hand, these days, no law can limit the parliament’s legislative powers.
RULE OF LAW AND CONSTITUTION OF AMERICA
5th and 14th Amendments deal with the “Due process clause”, according to which the life and Liberty of a person are not subject to uncontrolled powers of the government. This idea found in these clauses has developed from the concept of the rule of Law located in Britain.
RULE OF LAW AND CONSTITUTION OF PAKISTAN
Dicey’s rule of Law has been incorporated into the Constitution of Pakistan.
1. In the Preamble:
The principles of democracy, freedom, equality, tolerance, and social justice, as enunciated by Islam, shall be fully observed.
2. Right of individuals:
Protection by Law is the inalienable right of every city where he may be and of every other person for the time being within Pakistan.
- No person shall be prevented from doing that which the Law does not prohibit.
- Nothing detrimental to the life, Liberty, body, or reputation shall be taken except by the Law.
3. Equality of citizens:
All citizens are equal before the Law and entitled to equal protection.
CONCLUSION
The rule of Law expresses a preference for Law and order within a community rather than anarchy and warfare. It works against the abuse of administrative authorities. In the field of administrative Law, the main object of the rule of Law is to keep the administrative authorities within their limits, to protect the individuals from their abuses, and to enforce the Government of Law rather than men.
FREQUENTLY ASKED QUESTIONS
Explain the concept of the “Rule of Law” in detail.
(2019-A Special Exam)
Elaborate on Dicey’s concept of the “Rule of Law”. Also, discuss its historical background.
(2019-A)
Elaborate on the “Rule of Law” concept under Article 4 of the Constitution of Pakistan, 1973.
(2018-S)
Elaborate on the “Rule of Law” concept in the light of Pakistan, British and American constitutions.
(2017-S, 2018-A)
Elaborate on the historical background and Dicey’s “Rule of Law” concept.
(2017-A)
REFERENCES
- Jurisprudence
- N-Series by M.A. Chaudhary
