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The Power of the Rule of Law

  • Ideas

Ganesh Kumar Dangi

Introduction

The concept of rule of law was purposed by Albert V. Dicey in his book “Introduction to Study of the laws of the Constitution, 1885”.Generally, rule of law means rule according to law as well as supremacy of law. The term rule of law is derived from the French phrase “La principle de legality” which refers to government based on principles of law not of men.

The concept assets all the work of government must be done in accordance with the law, any work done against the law is deemed as a disrespect to rule of law. The rule of law demand the people holding authority exercise their power within the framework of well- established public norms rather than in an arbitrary, ad hoc, or discretionary manner on. It emphasizes the government to operate all its activity within the framework of law and be accountable under law when there is a suggestion of unauthorized action by those in power.

Rule of law accepts the supremacy of the constitution. The constitution is the fundamental law of the land and all other laws are sub-ordinate to it. Rule of law is the legal principle that a just law should govern a nation as opposed to be ruled by the will of the ruler. The core theme of rule of law is even the law makers should be the subject of law. Rule of law advocates for equality, before law. The government is based upon the rule of law is democratic. Rule of law ensures the limited governmental power and protection of individual rights. Rule of law insists that every person irrespective of rank and status in society be subject of law. Rule of law depends on the political foundation of a state.

According to Ivor Jennings,

“Rule of law meant a phrase for distinguishing democratic or constitutional government form dictatorship.”

The concept of rule of law lays the basis for the measures to prevent the system of governance from becoming arbitrary. The rule of law is the system of governance by a representative government using justifiable law with discretion. While identifying the basic aspects of the rule of law on the basis of this concept which preferred to the legitimacy of the government, the fairness of the law and discretion of the ruler should be sought.

Origin

The concept of Rule of law is of old origin and is an ancient ideal. It was discussed by ancient Greek philosophers such as Plato and Aristotle around 350 BC. Plato wrote: “Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state”. Likewise, Aristotle also endorsed the concept of Rule of law by writing that “law should govern and that in power should be servants of the laws.”

Aristotle said that there should be the rule of law, not the rule of the individual. The concept of rule of law was at the forefront in Magna Carta 1215. It was stated that: we will sell to no man, we will not deny or defer justice or right to any man either. To this day, many of Magna Carta’s principles are adopted in a democracy.

Sir Edward Coke, the Chief Justice of King James I’s reign was the originator of this concept. He maintained that the King should be under God and the Law and he established the supremacy of the law against the executive and that there is nothing higher than law. 

Later, Albert Venn Dicey (a British jurist and constitutional theorist) developed the concept in his book ‘The Law of the Constitution’ (1885). His writing on the British Constitution (which is unwritten) included three distinct though kindred ideas on Rule of law;

  1. Absence of discretionary powers and supremacy of Law: viz. no man is above law. No man is punishable except for a distinct breach of law established in an ordinary legal manner before ordinary courts. The government cannot punish anyone merely by its own fiat. Persons in authority do not enjoy wide, arbitrary or discretionary powers. Dicey asserted that wherever there is discretion there is room for arbitrariness.
  2. Equality before law: Every man, whatever his rank or condition, is subject to the ordinary law and jurisdiction of the ordinary courts. No person should be made to suffer in body or deprived of his property except for a breach of law established in the ordinary legal manner before the ordinary courts of the land.
  3. Predominance of legal spirit: The general principles of the British Constitution, especially the liberties and the rights of the people must come from traditions and customs of the people and be recognized by the courts in administration of justice from time to time.

The expression ‘rule of law’ is one which, over the years, has been used to convey a wide variety of ideas and has a number of meanings and corollaries including their criticisms. In common parlance it is often used simply to describe the state of affairs in a country where, in the main, the law is observed and order is kept – i.e., as an expression synonymous with ‘law and order’. To public lawyers, however, the phrase conveys something a little more precise. For them, the phrase is inextricably linked with the writings of Dicey. 

Lon L. Fuller, points out eight features which are essential for maintenance of the rule of law.

  1. There must be existence of law
  2. The law must be published
  3. The law must not be retrospective
  4. The law must be written with clarity
  5. The law must not be contradictory
  6. The law must not be impossible to follow
  7. The law must be flexible enough to amend must be rigid with time
  8. The works of officials should not be against the promulgated laws.

In present context, the concept of rule of law is not limited to Britain and America; it has been a matter of concern for government throughout the world. UDHR 1948, Delhi Declaration of 1959 by the International Commission of Jurist has accepted rule of law as a dynamic concept. In particular, issues such as protection of human dignity, the exercise of civil and political rights, establishment of democratic norms, and progress and development of all sectors for the up liftmen of human life were discussed and concluded at the conference. The Delhi Declaration attempted to promote the concept of rule of law through four committees.

  1. Legislature and the rule of law: It was of the opinion that the law should not be made in a way it would harm the rights of the people.
  2. Executive and the rule of law; which advocated for an effective government that would improve socio-economic conditions and maintains law and order.
  3. Criminal Procedure and the rule of law; which covered issues such as the presumption of innocence, control over arbitrary arrest and detention, the right to legal advice, fair hearings, the collecting of witness and evidence, open hearing and the right to appeal.
  4. Independence of Judiciary: the committee covered issues related to the security of judges’ tenure, the judiciary free from the interference of the legislature and the executive, and the process of appointment and retirement of judges.

Development of the rule of law in Eastern philosophy

The development of the rule of law in Eastern philosophy is deeply rooted in ethical and cosmological principles, rather than the Western emphasis on legal institutions and individual rights. In ancient China, Confucianism played a dominant role by promoting the idea that social harmony and order arise from the moral virtue of rulers and the proper observance of hierarchical relationships.

Confucius believed that moral instruction and the development of ren (benevolence) and li (ritual propriety) were more beneficial than laws and punishments (fa). But by supporting stringent regulations and centralized authority to regulate human behavior, the Legalist school particularly during the Qin Dynasty offered an opposing viewpoint and laid the groundwork for a codified legal system. Dharma, which encompasses obligations, rules, and moral responsibilities for both rulers and citizenry, was a guiding notion in Indian philosophy. Early attempts to institutionalize governance within moral and legal frameworks were reflected in texts such as the Manusmriti and Arthashastra, which described the king’s duties, the administration of justice, and the rules controlling society.

Through the concept of the Dharmaraja, or virtuous king, who rules with compassion, wisdom, and obedience to the Dharma, Buddhist thought also helped to shape the Eastern notion of the rule of law. Confucian and Buddhist influences created government structures in Japan and Korea where the law was used to uphold state order and moral standards rather than to defend individual legal rights. All things considered, Eastern traditions created complex forms of government based on ethical principles, where legislation was intended to support moral order, social stability, and the well-being of the community, even though they did not express the contemporary liberal notion of the rule of law.

The constitution of USA promulgated on 1787, and its amendment helped to establish the fundamental rights of citizens. It ensured protection against encroachment of fundamental rights without due process of law and no one shall be punished without due process of law. The constitution clearly adopted the principle of separation of power and an independent judiciary with the power of judicial review. In Marbury vs. Medison, 1803, the Supermen Court of USA using the power of judicial review enforced the concept of rule of law in its judgment. Similarly, in Brown vs. Board of Education (1952), the equality was made between the black and white by ensuring the black and white kids to study in the same school.

Rule of law in Nepal

In Nepal, the concept of rule of law can be traced back to the Upanishad. It provides that law is the king of the king. It is more powerful and higher than the kings and there is nothing higher than law. By its powers the weak shall prevail over the strong and justice shall triumph.

In modern era, the judicial reforms made by the Prime Minister Juddha Shamsher in 1940 separated the judiciary from the executive branch of the government except at the higher law. Pradhan Nyayala become the highest court of land but not the final court since its decisions could be revised by the P.M constituting himself as the court of last reset under established procedures. Any case decided by the P.M would be the end of litigation and the case could not respond. Thus, finality of the judgment was ensured.

Padma Shamsher, who become P.M in 1945 initiated some constitutional reforms including a constitution viz. “the government of Nepal Act, 2004”, which he could not enforce but this Act tried to feature the rule of law by accepting the fundamental rights, equality of the persons and independence, if the judiciary. However, these were more pretentions. The inalienable prime minister ship of Ranas, lack of constitutions remedy was elements against rule of law.

The Interim Governance Act, 1958 (2007 BS) had made provision regarding to equality, freedom and independent judiciary. The Pradhan Nayalaya 1951 was a historic step for the development of rule of law in Nepal.

The Constitution of Kingdom of Nepal, 1959 (2015 BS) was a democratic constitution. The Constitution had mentioned on elected government, accountable government and multiparty democracy. Fundamental rights of citizens with the assurance of constitutional remedy, Constitutional Monarchy etc. are the basic notion of that Constitution.

The Constitution of Nepal, 1962 (2019): it brought active monarch and party less Panchayat system of governance. The Constitution of Kingdom of Nepal, 1990 (2047 BS) this constitution accepted the rule of law as a basic structure and recognized it as an unamendable feature of the constitution. But various incidents can be found that period where rule of law was breached.

Interim Constitution 2007 (2063 BS) had provisioned secular and federal democratic republican state. It prohibited the arbitrary exercise of power by government. Constitutional provisions are in favor of the rule of law.

“The Constitution of Nepal, 2072” is the first constitution of Nepal which was promulgated through the people’s representatives of Nepal;

  • Adopted democratic norms and values
  • Supremacy of law
  • Doctrine of ultra-vires
  • Equality before law and equal protection of law
  • Independent judiciary
  • Limited government
  • Protection of fundamental rights
  • Separation of power and check and balance.

Similarly, new set of civil code and criminal code has been introduced in 2074 B.S replacing the Muluki Ain, 2020. The code has made remarkable changes in existing legal syatem of Nepal. It has tried to transform our legal system through criminalization of professional wrongs, introducing compensation to victim and alternative way of punishment. The civil code has made provision for the eligibility for marriage 20 years for both male and female women can choose surname either maternal family or family after marriage, government approval a must for child adoption by foreigners. Widow can claim husband’s property. Husband can also file for divorce at court etc.

Decided cases of Supreme Court to maintain rule of law in Nepal:

– Bharatmani Jungam and others vs. Office of the President and others

It is unreasonable through the view point of the constitutional jurisprudence to unusually extend its time period by the constituent assembly itself so as to create a limitness and uncertain situation.

 – Bal Krishna Neupane vs. Vice-president Paramananda Jha

There is no supreme person above the constitution. According to Article 1(2), it is the duty of every person upholds this constitution. Supreme Court declared that oath of vice-president in Hindi language is void.

Conclusion:

Thus, the rule of law is a legal doctrine that suggests that no one is above the law and governmental decisions must be made only by applying known legal and moral principles. The rule of law limits the powers of government by judicial defence of laws and the constitution which is based on recognized basic legal values, established in international law. The rule of law is meant to prevent dictatorship and to protect the rights of the people. Rule of law does not mean rule according to statutory law pure and simple, because such a law itself may be harsh, inequitable, discriminatory or unjust.

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