DOCTRINE OF RULE OF LAW

1. INTRODUCTION:
Concept of Rule of law is very old. It is an ancient ideal, and ancient Greek
philosophers such as Plato and Aristotle also discussed it. The term ‘Rule of
Law’ has been derived from a French phrase and this French phrase means
principal of legality. Now, Rule of Law is a legal maxim and this maxim
emphasizes on equality before law. According to this maxim, both government
and citizens are subject to known and established laws and are not above law.
Rule of law is one of the unique characteristic of the English Constitution. This
doctrine is accepted in the Constitution of U.S.A and also in the Constitution of
Pakistan. The entire basis of Administrative Law is the doctrine of rule of law.
No Constitution of any country can function no nation can march along the true
democratic way of life without a true and continuous realization of the
importance of rule of law and judicial review of legislative and executive actions.

2. MEANING RULE OF LAW:

The Rule of law means the supremacy of law which provides that decisions
should be made by the application of known principles of laws without the
intervention of discretion in their application.

3. DEFINITION OF RULE OF LAW:

 According to Aristotle Rule of Law defined as “Government by law is
superior to Government by men”.
 According to Wade, Rule of law requires that Government should be
subject to the law rather than law subject to Government.

4. HISTORICAL BACKGROUND OF RULE OF LAW:

The concept of rule of law is of old origin. Its roots can be traced in Magna
Carta 1215, in which it has been said, “No free man shall be taken or
imprisoned or diseased or exiled or in any way destroyed, nor will we go or
 send for him, except under a lawful judgment of his peers and by the law of
land.
However Sir Edward Coke, C.J. is said to be the real originator of this concept.
In a battle against king, he maintained successfully that the king shoud be
under the God and law and he established the supremacy of law against the
executive. Later on The Dicey developed the theory of Coke in his classic book
“The Law and Constitution” published in the year 1885.

5. IMPORTANCE OF RULE OF LAW:

The Rule of Law expresses a preference for law and order within a community
rather than anarchy, warfare and constant strife. The Rule of Law is a
philosophical view of society which is linked with basic just thoughts.
Furthermore, the standard of law communicates a legitimate doctrine of key
significance, specifically, that administration must be directed according to law,
and that disputed cases what the law requires is declared by judicial decision.
Thirdly, the Rule of Law refers to a body of political opinion about what the
detailed Rule of Law should provide in matters both of substance and of
procedure.
Proponents of the Rule of Law are however likely to support constitutional
protection for human rights by such means as a judicially enforceable Bill or
Rights, so that legislation affecting fundamental rights may be subject to review
in the courts.

6. GOVERNMENT ACCORDING TO LAW:

It is a basic rule of constitutional law that the organs of government must
themselves work through law. The doctrine of government according to law
requires that a person directly affected by government action must be able, if
necessary to challenge the legality of that action before a court, and not merely
to register a complaint with the department concerned.
The Rule of Law does however require that public authorities and officials are
subject to effective sanctions if they depart from the law. Often the sanctions
 are that their acts are declared invalid by the courts. But another sanction is the
duty to compensate citizens whose rights have been infringed.

7. RULE OF LAW IN BRITISH CONSTITUTION:

In Great Britain, Rule of Law was developed over centuries. Struggle for
supremacy between British Parliament and British Monarch paved a way for
development of this maxim in Great Britain. Explanation of following points is
important for further study of this maxim as far as Great Britain is concerned:
(a) British Constitution
Rule of Law is a significant aspect of British Constitution and is an
important part of British politics. British constitution recognizes that both
government and people should be subject to law.
(b) Determination of Rights of Individuals
It is an admitted principle in Great Britain that rights of individuals should
be determined by legal rules and not by arbitrary powers. Earlier, it was
arbitrary powers of Monarch, which determined rights of individual, but
now rights are determined by law. For people now possesses right like
right to speech, gather and so on.
(c) No Punishment Unless Breach of Law
It is also a settled principle in Great Britain that there can be no
punishment unless a court decides that there has been a breach of law.
To achieve this goal, judiciary has been made independent.
(d) Subject to law
It is another recognized principle is Great Britain that everyone,
regardless of his/her status in society, is subject to the law. In other
words, government and citizens are not above law. In this way,
government and citizens have been made subject to law and misuse of
powers has been checked.
(e) Equality before Law
This principle i.e. equality before law is strictly observed in Great Britain.
Due to such strict observance all are considered equal before law.
(f) Vicarious Liability of Ministers
 In Great Britain, all ministers are considered responsible for mistake of a
minister. Such vicarious liability of ministers guarantees Rule of Law in
Great Britain.

8. DICEY OF EXPOSITION OF RULE OF LAW:

As mentioned above the concept of rule of law backs to the time of Aristotle. Aristotle
ruled out the concept of rule under discretion by all means and tried to convey his
followers that given the choice it is always rule of law that scores over rule of
discretion. Though Sir Edward Coke was the originator of this concept, but Dicey
developed this theory. Now it is popularly known as Dicey’s theory of Rule of Law. It
is also known as the Traditional concept of rule of law.

According to Dicey, this doctrine has three meanings:

(a) Supremacy of Law

(b) Equality before law

(c) Predominance of legal spirit

(a) Supremacy of Law: Rule of law in this sense means the absolute supremacy
of regular law as opposed to the influence of arbitrary power or wide
discretionary power. Dicey says, wherever there is discretion, there is room for
arbitrariness and that in a republic no less than under a monarchy discretionary
authority on the part of the Government must mean insecurity for legal freedom
on the part of its subjects.•

(b) 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, there should not be any extra-
ordinary tribunals or special courts for officers of the Government and other
authorities.

(c) Predominance Of Legal Spirit: Dicey emphasized the role of the courts of law
as guarantors of liberty & suggested that the rights would be more secured if
they were enforceable in the courts of law than by mere declaration of those
rights in a document. Dicey’s theory of rule of law was never accepted fully
even in his days. Many scholars criticized his theory.
9. CRITICISM ON DICEY THEORY:

A critical examination of the three characteristic of the rule of law as appointed by

Dicey shows that rule of law is not be found in England in the form in which he
presented it. He was firm proponent of the concept and very influential thinker of his
times. Though the first two principles are still in almost every legal system of world, the
third principle was protested many of jurists of that time. The Dicey in particular
opposed the principle of French system of Droit Administratiff. England at that time was
in fact propounding some quasi legislative and quasi judicial processes which were
taken cognizance of English thinkers of that time; still the whole common law system of
country was blindfolded with the Dicey’s philosophy of “rule of law.”

10. MODERN CONCEPT OF RULE OF LAW:

Recent attempts to formalize its meaning have drawn on this rich history of diverse
understandings. The modern conception of the rule of law has developed as a concept
distinct from the “rule of man”, involving a system of governance based on non-
arbitrary rules as opposed to one based on the power and whim of an absolute ruler.
The concept of rule of law is deeply linked to the principle of justice, involving an ideal
of accountability and fairness in the protection and vindication of rights and the
prevention and punishment of wrongs. Long before the United Nations, States were
working towards a rule of justice in international life with a view to establishing an
international community based on law.

11. SEVEN MODERN PRINCIPLE MEANING OF RULE OF LAW:

Davis gives seven principal meanings of the term Rule of Law• which is known as
Modern concept of Rule of Law. These are as follows:

i) Maintenance of Law & order.

ii) Existence of fixed rules

iii) Elimination of discretion where it is not necessary

iv) Following due process of law or fairness

v) Observance of the principles of natural justice

 vi) Preference for Judges and ordinary courts of law to executive authorities &
administrative tribunals

vii) Judicial review of administrative actions.

12. DEVELOPMENT OF CONCEPT OF RULE OF LAW IN DIFFERENT

COUNTRIES:

(a) Rule of law in United States of America:

Amendment 5th and 14th of American Constitution, 1791 deals with due
process of clause. According to which the life and liberty of a person are
not subject to uncontrolled powers of Government.
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;
i) Against constitution
ii) Inherit goodness of law

(b) 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.”
 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”.

A.K Goplan
Vs
State
AIR 1950 SC 27
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.”

13. RULE OF LAW UNDER CONSTITUTION OF PAKISTAN 1973:

In the constitution of Pakistan 1973 the principle of rule of law was embodied in shape
of article 4 which though is not a part of the fundamental Rights however provides
better safe guard to the individual as even in the emergency this right to be dealt in
accordance with law is not suspended.
(a) Case Laws on Rule of Law in the History of Pakistan

 Jamal Shah Case PLD 1966 SC 1

It was held in this case According to Kaikas Justice Article 4 prevents

the Government from taking any action in their country for which there is
no legal sanction and it at the same time debars the legislature from
creating an authority whose actions are not subject to law.

 Mir Ali Nawaz Bugti vs. Superintendent Jail PLD 1966 sc 357, 360

It was held in this case that It is intended to negative any claim by the
Government that any category of its acts in relation to citizens and other
persons in Pakistan are not subject to law at all

 Brig. Imtiaz Ahmad vs Govt. of Pakistan 1994 SCMR 2142, 2160

In this case, It was sought to be argued that the Appellant the former
director Intelligence Bureau who had challenged the registration of
some criminal cases against him was not an ordinary man, the supreme
court thought it necessary to recall for the benefit of all concerns that “
the law makes no difference between great and petty officers ; thank
God they all are amenable to justice.

 In Federation of Pakistan vs. Ghulam Mustafa Khar PLD 1989 SC

26, 53
It was held that so predominant is the position of Article 4 in the
constitution that it furnishes the only Guarantee assurance to the
citizen when the fundamental rights are suspended. In this way the
Article confers a right which is more basic then fundamental rights
because while the fundamental rights can be suspended the right given
in Article 4 cannot be.
 Manzoor Ellahi vs. federation of Pakistan PLD 1975 SC 66
It was held that Pakistan is governed Rule of Law as embodied in Article
4 and 5 of Constitution. The constitution creates no right and imposes
no duty in vain.

(b) Introduction of Due Process and Fair Trial in form of Article 10-A:

Right to Fair Trial:- For the determination of his civil rights and obligations or in
any criminal charge against him a person shall be entitled to a fair trial and due
process.” After introduction of Article 10-A the due process of law which is
 relatively a wider term than the rule of law has been made the part of
fundamental rights guaranteed by the constitution to the subjects of the state.

Through Article 10-A of the Constitution which is largely inspired by Article 6 of

the European Convention on Human Rights, the legislators have introduced two
fundamental concepts i.e. of due process and fair trial. Interlinked as these are,
due process has a much wider meaning than fair trial. The history of due
process is rooted in the Magna Carta in English jurisprudence and,
subsequently, in the American jurisprudence surrounding the 5th and 14th
amendments to the US constitution.

15. 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:

a) Concept of welfare state.
b) Delegated legislation, quasi-executive and quasi-judicial powers.
c) Administrative justice.
c) Vast discretionary powers.
d) 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.
16. CONCLUSION:
The expression “Rule of Law” connotes the undisputed supremacy of law. No
person can be punished unless and until it is definitely proved that he has
violated some law of the country. There can be no arbitrary punishment of any
individual. No man is above the law. Every man, whatever his rank or condition
is subject to the ordinary law of the country. What is law for the one is also law
for the other. The supremacy of law is designed to give the security to the rights
of the peoples. Furthermore the rule of law as expounded by Dicey needs
modification; however, it is still a principle of the English Constitution.
As for Pakistan, for improvement in the rule of law, the “enforcement wings” of
authorities such as the Federal Board of Revenue, Civil Administrations,
PEMRA, The Pakistan Telecommunication Authority and the Drug Regulatory
Authority etc. need better administration. The media in Pakistan, especially the
electronic media, has the potential to educate the masses regarding their role in
the establishment of the rule of law. Instead, at times, some outlets end up
glorifying non-state actors. Improved rule of law in Pakistan requires an
improved criminal justice system, especially in FATA, Baluchistan, Karachi and
certain parts of KPK. Therefore capacity-building and revamping of the whole
criminal justice system is essential. Reforming one component will not work;
synchronized reforms are the need of the hour.