Definition of Rule of Law :

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 behavior, including behavior 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 popularized 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". 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 .

The term ‘rule of law’ is used as opposed to the concept of ‘rule of man’. The primary
meaning of rule of law is that the ruler and the ruled must be bound by the same law. No separate
law or system can be provided for the ruler. The general conception of the rule of law or rule of
law as a principle of constitutional government has become identified and crystallized with
professor Dicey usage of that phrase in his work ‘the Law of the Constitution’ first published in
18851. He gave three meanings of the concept of rule of law –
(i) the supremacy of regular law as opposed to the influence of arbitrary power and the
persons in authority do not enjoy wide, arbitrary or discretionary powers,

(ii) equality before law, that is, every man, whatever his rank or position, is subject to
ordinary laws and the jurisdiction of ordinary courts, and

(iii) individual liberties legally protected not through any bill of rights but through the
development of common law.
His thesis has been criticized from many angles, but his emphasis on the subjection of every
person to the ordinary laws of the land, the absence of arbitrary power and legal protection for
certain basic human rights remains the undisputed theme of the doctrine of rule of law 2.

The preamble of the Constitution of Bangladesh states ‘rule of law’ as one of the objectives to be
attained. To attain this fundamental aim of the State, the Constitution has made substantive
provisions for the establishment of a polity where every functionary of the State must justify his

1
A.V. Dicey, Introduction to the Study of the Law of the Constitution, 10th Ed, London:
ELBS and Macmillan, 1973, Pg-202
2
Mahmudul Islam, Constitutional Law of Bangladesh, 3rd Ed, Mullik Brothers, Pg-79
action with reference to law (Articles 7 and 31). Article 27 guarantees that all citizens are equal
before law and are entitled to equal protection of law. Article 31 guarantees that to enjoy protection
of law, and to be treated in accordance with law, is the inalienable right of every citizen, wherever
he may be, and of every other person for the time being within Bangladesh, and in particular no
action detrimental to the life, liberty, body, reputation or property of any person shall be taken
except in accordance with law. 18 fundamental rights have been guaranteed in the Constitution
and Constitutional arrangement for their effective enforcement has been ensured in Articles 44 and
102. Articles 7 and 26 imposed limitation on the legislature that no law which is inconsistent with
any provision of the Constitution can be passed. In accordance with Articles 7, 26 and 102 (2) of
the Constitution the Supreme Court exercises the power of judicial review whereby it can examine
the extent and legality of the actions of both the executive and legislative and can declare any of
their actions void if they do anything beyond their constitutional limits. Right to be governed by a
representative body answerable to the people has been ensured under Articles 7(1), 11, 55, 56, 57
and 65 (2) of the Constitution.

However, the modern concept of the ‘ Rule of Law’ is fairly wide and , there, sets an idea
for any government achieve.this concept was del developed by the international commission of
jurists known as Delhi Declaration3, 1959, which was later on confirmed at Lagos in 1961. This
declaration in short puts three ideals of ‘ Rule of the’ as under.

1. The function of the legislature in a free society under the rule of the is to establish and
maintain conditions which will uphold the dignity of man as an individual. this dignity
requires, apart from recognition of civil and political rights, creation of social, economical,
educational and cultural conditions for full development of individual personality.

2. The rule of law depends not only on the provision of adequate safeguards against abuse of
power by the executive but also on the existence of effective government capable of
maintaining law and order and of ensuring economic and social conditions of life for
society . these conditions include national health acheme, and social security , access to
law courts and right to living wage.

3. Independent judiciary and a free legal profession are indispensable requisites of a free
society under the rule of law4. In 1975, university of Chicago held a confenerence of rule
of law as understood in the west. It was attended by eleven countries including two
communist countries.
The secretary of the colloquium described the broad areas of agreement as follows:

3
Journal of the international commission of jurist, spring-summer 1959 and the rule of law in free society
published by the commission in 1960.
4
Garner : Administrative Law,p.20 (3rd end )
 a. Rule of law is an expression of an Endeavour to give reality to something which is not
readily expressible ; this difficulty due primarily to identification of the rule of law with
concept of rights of man- all countries of the west recognize that rule of law has a
positive content , though that content is different in different countries; it is real and
must be secured principally , but not exclusively, by the ordinary courts.

b. The rule of law is based upon the liberty of the individual an as its object the
harmonizing of the opposing notions of individual liberty and public order. The notion
of justice maintains a balance between these notions. Justice has a variable content and
cannot be strictly defined , but at a given time and place there is an appropriate standard
by which the balance between private interest and the common good can be maintained.

c. There is an important difference between the concept of rule of law as the supremacy
of law over the government and the concept of rule of law as the supremacy of law in
society generally . the first concept is the only feature common to the west, cannot as
it does the protection of the individual against arbitrary government – different
techniques can be adopted to achieve the same and rule of law must not be conceived
of as being linked to any particular technique. But it is fundamental that there must
have some techniques for forcing the government to submit to the law; if such a
technique does not exist, the government itself becomes the means whereby the law is
achieved. This is the antithesis of the rule of law.

d. Although much emphasis is placed upon the supremacy of the legislature in some
countries of the west , the rule of law does not depend upon contemporary positive law
it may be expressed in positive law but essentially it consists of values and not
institution ; it can notes a climate of legality and legal order in which the nations of the
west live and in which they wish to continue to live5.
Anyhow the rule of law is a viable concept . it changes with the change in social values.
The basic theme , however, remains the fullest development of individual personality
collectively called society. Without being exhausting, the rule of law concept broadly
includes the following principles-
 All laws should be prospective . they should be accessible and clear.
 Law should be reasonably stable.
 The making of particular law should be guided by open stable, clear and
general rule. It should be utilitarian in approach and contents.
 The independence of the judiciary and the legal professein should be ensured6,

5
Goodhart : the Rule of law and absolute sovereignty , Pennsylvania law review, vol. 106, 946-963. Countries
which attended the conference were : U.k., germany , Italy, Canada, Sweden,turkey,brazil,mexico,Israel, u.s.s.r.
and Poland
6
Independence of the judiciary and independence in administrative adjudication have been elaborated in the
subsequent chapter 4(v).
  The principles of natural justice must be followed. This will ensure objectivity
and impartiality7.
 The court must possess power of judicial review of administrative actions both
legislative and executive.
 The courts should ordinarily be easily accessible . procedural technicalities and
cost of litigation must be checked.
 The discretion of the crime prevention authorities should not be allowed to
prevent the law.
 The freedom of the press must be guaranteed.8

In the speech he sets out his view of the Rule of Law. Lord Bingham’s Eight Principle of
the Rule of Law are:

(1) The law must be accessible and, so far as possible, be intelligible, clear and predictable;

(2) Questions of legal right and liability should ordinarily be resolved by application of the
law and not by the exercise of discretion;

(3) The law should apply equally to all, except to the extent that objective differences
justify differentiation;

(4) The law must afford adequate protection of human rights;

(5) Means must be provided for resolving, without prohibitive cost or inordinate delay,
bona fide civil disputes which the parties themselves are unable to resolve;

(6) Ministers and public officers at all levels must exercise the powers conferred on them
reasonably, in good faith, for the purpose for which the powers were conferred, and without
exceeding the limits of such powers;

(7) Judicial and other adjudicative procedures must be fair and independent; and

(8) There must be compliance by the state with its international law obligations .

Rule of Law v/s Rule by Law

This is the most often confused topic for aspirants except the people with Public Administration
optional. This article focuses on bringing clarity on the two very different concepts which looks

7
Application of principles of natural justice in our administrative life has been discussed in the chapter 4 (II)
8
Joseph raz : the rule of law and its virtue , 93 L.Q.R.195(1977)
similar at face value. Sir Ivor Jennings, the famous constitutional historian, characterised Rule of
Law as ‘an unruly horse’.

First, let’s be clear with what Rule of Law is not?

Rule of Law should not be equated with law and order. The breakdown of law and order is
a temporary phenomenon. Breakdown of Rule of Law means collapse of good governance and
breakdown of constitutional machinery in a State.

Now, let’s see what Rule of Law is?

It may be difficult to define the concept with precision but in essence it signifies commitment to
certain principles and values. Generally, the rule of law is the principle that no one is above the
law and treated equally among citizens. Rule of law symbolises the quest of civilized democratic
societies to combine that degree of liberty without which law is tyranny with that degree of law
without which liberty becomes license.

‘’However high you may be, the law is above you.’’

For instance, One may be the Prime Minister or the Speaker or the Imam or the Archbishop
or a judge or the Sankaracharya or whoever, all are equally subject to the law. That imparts the
element of non-discrimination in the concept of the Rule of Law.

What are the principles of Rule of Law?

It was A.V. Dicey, the English Professor and Constitutional expert, who developed this concept.
He defined 3 principles that govern the rule of law.

Supremacy of Law

No man shall be punished or made to suffer in body or goods except for the violation of law. Such
a violation must be established in an ordinary court of land and in ordinary legal manner.

Equality before Law

No man is above the law and everyone, whatever his condition or rank is, is subject to the ordinary
laws of the land.

<It means a person can sue or be sued in a court of law>

Predominance of Legal spirit

The result of the ordinary law of the land is constitution. It indicates that the general principles of
the constitution are the result of judicial decision of the courts in England.
 <However, this principle does not apply in case of written constitution. It stands modified in India,
where it reads that the constitution is the supreme law of land & all other laws in order to be legally
valid shall conform to constitution>

What is the importance of Rule of Law?

‘’Rule of Law is essential for the protection of human rights.’’

This concept changed the mode of administration from “King was Law” to “Law is King”. It is
quite essential for the healthy functioning of democracy. In its path breaking judgment in
Keshavanand Bharti’s case, our Supreme Court ruled that Rule of Law is part of basic structure of
the constitution.

The Constitution in order to preserve the rule of law, has conferred the writ jurisdiction under Art.
32 and Art. 226 on Supreme Court and High Court respectively.

How Rule of Law is different from Rule by Law?

It is important not to confuse Rule of Law with rule by law.

The existence of a law is necessary but that is not sufficient. The law must have a certain core
component which guarantees the basic human rights and the human dignity of every person. Rule
by law can become an instrument of oppression and it can give legitimacy to the enactment of laws
which may grossly violate basic human rights.

Let’s see with examples, how rule by law can be misused

Nazi Germany put Jews in concentration camps and thereafter sent them to the gas chambers. The
justification offered was that there was a law which empowered such acts to be done. But that was
rule by law, not Rule of Law. During the apartheid regime in South Africa, repressive and racially
discriminatory laws against the black majority were sought to be justified on the basis of enacted
laws.

Professor A.V. Dicey offered a neutral description of the rule of law. He argued that the
rule of law has three aspects. Firstly, no one can be punished except for a distinct breach of law.
Secondly, irrespective of rank, everyone is equal and subject to one law. Thirdly, courts are the
better protectors of human rights and freedom. However, the principles are controversial and
criticized by other jurists. On the other hand, in today’s world of increasing terrorism, due to
national security and the evolution towards greater equality in the development of law, the
Parliament may somehow contradict the orthodox theory by legislating and the courts may make
decisions against the theory. By evaluating the doctrine of the rule of law and illustrating the
challenges posed to the traditional theory, we will see how the theory is relevant today.

The first principle of the rule of law is no one can be punished except for a distinct breach
of law. It was designed to protect the individual from any secret or arbitrary laws because secret
or arbitrary laws are incapable of justification. The element also implied that no retrospective penal
law can be legislated. If such law is imposed, the individual is placed in the position where his
conduct was lawful at the time of his action but, subsequently, he is convicted as if his early
conduct was unlawful. This is contrary to the first element – No man can be punished except for a
distinct breach of law. Wright J in Re Athlumney stated

‘…unless that effect cannot be avoided without doing violence to the language of

the enactment…it ought to be construed as prospective only.’

The courts employ the presumption of statutory interpretation against retrospectivity. In

Waddington v Miah (1974), the House of Lords denied retrospective effect in relation to criminal
offences by interpreting the Immigration Act 1971 in a different manner with the Parliament. In
Burmah Oil v Lord Advocate (1965), the House of Lords awarded compensation to the claimant
for the destruction of oil installment during wartime. Meanwhile, the Parliament speedily enacted
War Damage Act 1965 in order to nullifying the decision. This illustrated that the court cannot
uphold the rule if Parliament expressly provided for retrospectivity.

However, the court may interpret for retrospectivity if the rule was anachronistic or absurd
due to evolution towards greater equality. In the case of R v R (1991), the House of Lords argued
that the rule against the liability of rape within marriage was anachronistic then convicted the
defendant. The defendant appealed to the European Court of Human Right on the basis that it
infringed Article 7 of the Convention, which makes retrospectivity unlawful. The Court of Human
Right rejected his argument and ruled that sweeping off the immunity of husbands from the
liability of rape is an evoluation towards great equality.

Notwithstanding, since 2001, plenty of Acts which contradict the first element of rule of
law passed in order to protect the nation from terrorism. For example, the Anti-Terrorism, Crime
and Security Act 2001 provides for internment without charge or trial for suspected of links with
terrorism. The Terrorism Act 2006 which provided 28 days pre-trial detention. These Acts
contradict to the rule that no one can be punished except for a distinct breach of law.

The second principle emphasizes everyone, including the government, irrespective of

rank, shall be subject to the same law and courts. This element is interpreted to be misguided and
facing bundle of criticisms. In fact, by reason of maintaining the law and order in the society, there
are actually exceptions such as the Crown, police, Members of Parliament. The Crown may
exercise prerogative powers which may defeat the rights of individuals. The police have powers
over and above the citizen. Members of Parliament have immunity from the law of defamation.
One of the jurists who criticized on Dicey’s second element of the rule of law is Sir Ivor Jennings.
He points out that no citizens are absolutely equal:

“…pawnbrokers, money lenders, landlords…and indeed most other classes

have special rights and duties.’

He also ruled out that Dicey’s interpretation of the principle is too narrow. A better
interpretation should be – everyone is equal and subject to the same law, the executive and
legislative power may have immunities, but in the sense they should be accountable for their
actions

However, recently, there are several controversial Acts of Parliament which seem to have

contradicted the second principle of the rule of law enacted during the decade. As mentioned, the
Anti-Terrorism, Crime and Security Act 2001 provides for internment without charge or trial for
non-British terrorist suspected of links with international terrorism. This is a specified law against
the non-British people which contradict the second principle of the rule of law. We will see how
the courts protect the human right from unjust act in the evaluation of the third principle.

Dicey believes that the courts are the better protectors of human right. The rights to liberty
and to assembly are determined by the courts in the course of ordinary legal proceedings. In spite
of enjoying rights to liberty such as freedom of speech, citizens must understand all the legal
restraints on freedom of expression. Like the law relating to sedition, to race hatred speech, to
support for terrorist organizations, the law of defamation and so on, citizens may be charged of
breaching the statutes from the Acts of Parliament. However, since 1965 British citizens have had
the right to apply for remedies under the European Convention on Human Rights if they think that
the decisions made under domestic law are unjustified. Nevertheless, most of the Convention rights
are enforceable before the domestic courts. In order to see whether the courts are really the best
protectors of rights from, we will examine the following cases and judicial reviews.

In an early case of Entick v Carrington (1765),the Court of common Pleas held that there
was

no lawful authority for the warrant and the officers entering the defendant’s property were
trespassing. The decision successfully protected the defendant’s right to privacy. However, in the
Ross minster case (1980), the House of Lords rejected Lord Denning’s view in the Court of Appeal
that a warrant must particularize the specific offence which is charged as being fraud on the
revenue because he believed that the requirements of the statute were met.

In Malone v United Kingdom (1984), the Court of Human Rights ruled that the United
Kingdom had violated Article 8 of the Convention (The right to privacy) in reversing the earlier
decision in Malone v Metropolitan Police Commissioner which ruled that no trespass had
committed by the police even they had intercepted the defendant’s telephone calls. In response the
Parliament passed the Interception of Communications Act 1985 which authorizes the interception
on a statutory basis. This indicated that the Court of Human Rights was capable to protect rights
and freedom.
 The following case is a judicial review relating to the Anti-terrorism Crime and Security
Act 2001 which was mentioned. In A v Secretary of State for the Home Department (2004), the
court concerned the power conferred on the Home Secretary to detain foreign terrorist suspects
that the suspects could not be put on trial because much of the evidence against them was acquired.
Moreover, they could not be deported because deportation would violate Britain’s international
obligation. The House of Lords ruled that the power violated Article 5 (The Right to Liberty) of
the European Convention on Human Rights. The court successfully protected human rights and
freedom from an unfair Act. Therefore, under the Human Rights Act 1998, the courts are not
hesitated to protect the human rights whereas the Parliament is eager to protect the commonweal.

To a large extent, Dicey’s principles of the rule of law are accurate even though they are
not exhaustive and uncriticised. The rule of law is very important for people to understand and
conform to. However, although the courts are eager to protect the rule of law, the theory is
theoretical and is difficult to achieve in practice. Especially the role of Parliament, due to National
Security and commonweal, enactments which contradict the rule of law are legislating nowadays.

Lord Bingham argues that there are eight conditions for the rule of law to work:

1. the law should apply equally to all;

2. it should not be accessible only to the rich, meaning that disputes should be solved
relatively cheaply;

3. it must be easy to understand;

4. it must protect fundamental human rights;

5. it must be speedily enforced;

6. the right to a fair trial is a cardinal requirement;

7. public officials should not abuse their powers; and, finally,

8. States should respect international law.

When I began to write this, I was told the beginning, the explanation on the rule of law, is
too academic. Perhaps so, but I think it is important to get across what the rule of law is, and how
important it is to every one of us. A breach of the rule of law affects every single person. I am
reminded of Martin Niemoller:
  First they came for the Communists, but I was not a Communist so I did not speak
out. Then they came for the Socialists and the Trade Unionists, but I was neither,
so I did not speak out.
 Then they came for the socialists and the trade unionist, but I was neither, so I did
not speak out.
 Then they came for the Jews, but I was not a Jew so I did not speak out.
 And when they came for me, there was no one left to speak out for me."

I hope Lord Bingham, one of the most recognized legal minds of our times.