The rule of law is the legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials. It primarily refers to the influence and authority of law within society, particularly as a constraint upon behaviour, including behaviour of government officials.
The phrase can be traced back to 16th century Britain, and in the following century the Scottish theologian Samuel Rutherford used the phrase in his argument against the divine right of kings. The rule of law was further popularised in the 19th century by British jurist A. V. Dicey. The concept, if not the phrase, was familiar to ancient philosophers such as Aristotle, who wrote “Law should govern”.
The rule of law means the absolute supremacy or predominance of the regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness or even of wide discretionary authority on the part of the government. – Prof. A. V. Dicey in The Law of the Constitution
The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law. – Dwight D. Eisenhower – 34th US President
There is no single agreed definition of the rule of law, however, there is a core definition that has near universal acceptance:
“…most of the content of the rule of law can be summed up in two points: (1) That the people (including, one should add, the government) should be ruled by the law and obey it and (2) That the law should be such that people will be able (and, one should add, willing) to be guided by it.” – Geoffrey de Q. Walker on The Rule of Law: Foundation of Constitutional Democracy
A country that adhere to the rule of law ensures that:
All persons and organisations including the government are subject to an accountable to the law:
- The law is clear, known, and enforced;
- The Court system is independent and resolves disputes in a fair and public manner;
- All persons are presumed innocent until proven otherwise by a Court;
- No person shall be arbitrarily arrested, imprisoned, or deprived of their property; and
- Punishment must be determined by a Court and be proportionate to the offence.
As a result, it can be said that the rule of law is more than simply the government and citizens knowing and obeying the law. The rule of law involves other concepts, such as checks and balances on the use of government power, the independence of the judiciary, the presumption of innocence, access to justice, and the right to a fair trial. Thus we can say that the relevance of the rule of law, and an understanding of its concepts, can be seen in its effects on society.
Rule of law implies that every citizen is subject to the law, including law makers themselves. In this sense, it stands in contrast to an autocracy, dictatorship, or oligarchy where the rulers are held above the law. Lack of the rule of law can be found in both democracies and dictatorships, for example because of neglect or ignorance of the law, and the rule of law is more apt to decay if a government has insufficient corrective mechanisms for restoring it. Government based upon the rule of law is called nomocracy.
Organizations Promoting Rule of Law:
- International commission of jurists
- UNO on the Rule of Law
- International Bar Association
- World Justice Project
- International Development Law Organization.
Article 4 of the Constitution of Pakistan, 1973, embodies the essence of the rule of law.
It was observed by Muhammad Aleem CJ in Benazir Bhutto v Federation of Pakistan [PLD 1988 SC 416] than any application of a principle of Anglo-Saxon jurisprudence, which might be destructive of the rule of law which is so worded in Article 4 of the Constitution as to give protection to all citizens … national integration and social cohesion by creating an egalitarian society through a new legal order is achieved.
So predominant is the position of Article 4 that it furnishes the only guarantee or assurance to the citizens when the fundamental rights stand suspended, for example, during the martial law, so that no action detrimental to life, liberty, body, reputation or property of any person shall be taken except in accordance with law. – Saad Saood Jan, J in Federation of Pakistan v Ghulam Mustafa Khar [PLD 1989 SC 26]
In Zahur Elahi v Z. A. Bhutto [PLD 1975 SC 383], reference made by the Government of Pakistan against the National Awami Party and its leaders under Sec. 6(2) of the Political Parties Act, 1962 was pending, before the Supreme Court when Mr Bhutto, Prime Minister of Pakistan, made a speech, in which he was alleged to have said that “if the Supreme Court in its wisdom or according to its own understanding gives a decision against us then it will not be my decision or that of the people but will be a decision of the Supreme Court. We will accept this decision but the responsibility for the consequences will be that of the Supreme Court…”. The Supreme Court was then moved for taking action against Mr Bhutto, on the ground that the speech amounted to contempt of the Supreme Court.
One of the grounds raised in defence was based upon Article 248 of the Constitution which grants immunity to the President, a Governor, the Prime Minister and others, so that, among others, they shall not be answerable to any court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions.
And, when in Brig. Imtiaz Ahmad v Govt. of Pakistan [1994 SCMR 2142] it was sought to be argued that the appellant, a former Director, Intelligence Bureau, who had challenged the registration of some criminal cases against him by means of a petition under Article 199 of the Constitution, was not an ordinary man, the Supreme Court thought it necessary to recall, for the benefit of all concerned, the following observations of Wilmot CJ in that historic case, Wilkes v Woods [1769 19 St. Tr. 1406] “The law makes no difference between great and petty officers; thank God, they are all amenable to justice”.
DUE PROCESS OF LAW
Due process is the legal requirement that the state must respect all legal rights that are owed to a person. Due process balances the power of law of the land and protects the individual person from it. When a government harms a person without following the exact course of the law, this constitutes a due process violation, which offends the rule of law.
Due process has also been frequently interpreted as limiting laws and legal proceedings (see substantive due process) so that judges, instead of legislators, may define and guarantee fundamental fairness, justice, and liberty. That interpretation has proven controversial. Analogous to the concepts of natural justice, and procedural justice used in various other jurisdictions, the interpretation of due process is sometimes expressed as a command that the government must not be unfair to the people or abuse them physically.
The term is not used in contemporary English law, but two similar concepts are natural justice, which generally applies only to decisions of administrative agencies and some types of private bodies like trade unions, and the British constitutional concept of the rule of law as articulated by A. V. Dicey and others.
However, neither concept lines up perfectly with the American theory of due process, which, as explained below, presently contains many implied rights not found in either ancient or modern concepts of due process in England.
Due process developed from clause 39 of the Magna Carta in England. When English and American law gradually diverged, due process was not upheld in England but became incorporated in the US Constitution.
SUBSTANTIVE DUE PROCESS
The rules don’t apply, or they’re ridiculous. Standard procedures for managing situations don’t always work. Example: A student is accused of cheating. Substantive due process addresses whether the rules are valid, make sense, and work.
PROCEDURAL DUE PROCESS
The rules. People in charge have to follow them. There are procedures for managing situations when a person is accused of misconduct. Example: A student is accused of cheating. Procedural due process is what they do to prove that, and how they decide to punish him.
