Access to Justice and Rule of Law

The Greek philosopher, Plato, believed that law should provide inner harmony and justice in the State and that law and justice could be used as moral educators. Access to justice and the rule of law are interrelated concepts. Rule of law is the tool that we use to facilitate our endeavour to achieve justice. In the last few decades, the rule of law, which connotes equal treatment, equal legal protection and accessible justice for every citizen, has become an integral element of good governance in every democratic State. [1] The establishment of a society based on the rule of law demands development of a set of strategies or ideas for realisation of related ideologies and strategies.

2.1 The concept of rule of law

Rule of law is a fundamental legal principle according to which decisions should be made by applying known principles or laws, without the influence or exercise of arbitrariness in their application. [2] Firstly, two often used and closely associated terms should be clarified in the present context, namely, the doctrine of the rule of law and the popular legal phrase of ‘rule of law.’ Obviously, while rule of law connotes ‘a research paper of what the law prescribes on some particular matter,’ the technical term of ‘rule of law’ signifies ‘the body of particular rules comprising a legal system as a whole.’ [3] The predominant view is that the concept of ‘rule of law’ says nothing about the ‘justness’ of the laws themselves, but simply how the legal system operates. [4] The rule of law is an ancient idea and 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.’ [5]

Likewise, Aristotle endorsed the concept of rule of law through his writing. He wrote that ‘law should govern’ and those in power should be ‘servants of the laws.’ [6] According to political science professor Li Shuguang, ‘the difference … is that under the rule of law the law is preeminent and can serve as a check against the abuse of power. Under rule by law, the law can serve as a mere tool for a government that suppresses in a legalistic fashion.’ [7]

In 1215 AD, a similar development occurred in England when King John placed himself and England’s future sovereigns and magistrates at least partially within the rule of law by signing Magna Carta. [8]

In 1776, the notion that no one is above the law was popular during the founding of the United States. For example, Thomas Paine wrote in his pamphlet Common Sense, ‘that in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.’ [9] In 1780, John Adams enshrined this principle in the Massachusetts Constitution by seeking to establish ‘a government of laws and not of men.’ [10]

Different people have different interpretations regarding what exactly the ‘rule of law’ means. According to political theorist Judith N. Shklar, ‘the phrase the rule of law has become meaningless, thanks to ideological abuse and general over-use.’ Nevertheless, this phrase had specific and important meanings in the past. [11] Among modern legal theorists, most views on this subject fall into three general categories: the formal approach, the substantive approach and the functional approach. [12]

The formal interpretation is more widespread than the substantive interpretation, and formalists hold that the law must be prospective, well known and have characteristics of generality, equality and certainty. Other than that, the formal view contains no requirements as to the content of law. [13] This formal approach allows laws that protect democracy and individual rights, but nevertheless recognises the existence of rule of law in countries that do not necessarily have such laws protecting democracy or individual rights. The substantive interpretation holds that the rule of law intrinsically protects all or some individual rights.

In addition to the formal and substantive interpretation of the term ‘rule of law,’ another leading interpretation can be treated as the functional definition, which is consistent with the traditional English meaning that contrasts the ‘rule of law’ with the ‘rule of man.’ According to the functional view, a society has a low degree of rule of law in which the government officers have a great deal of discretion and a society has a high degree of rule of law in which the government officers have little discretion. The rule of law is thus somewhat at odds with flexibility, even when flexibility may be preferable. [14]

The influential political theorist Joseph Raz identified several principles that may be associated with the rule of law in some (but not all) societies. [15] Raz’s principles encompass the requirements of guiding the individual’s behaviour and minimising the danger of outcomes resulting from the exercise of discretionary power in an arbitrary fashion, and in this last respect, he shares common ground with the constitutional theorists A.V. Dicey, Friedrich Hayek and E. P. Thompson. Raz’s seven principles [16] elaborate that laws should be prospective rather than retroactive. According to Raz, the validity of these principles depends upon the particular circumstances of different societies, whereas the rule of law generally ‘is not to be confused with democracy, justice, equality (before the law or otherwise), human rights of any kind or respect for persons or for the dignity of man.’ [17]

According to Professor Wade rule of law connotes three ideas – 1) it expresses a preference to law and order within a community rather than anarchy, warfare and constant strife; 2) it expresses a legal doctrine of fundamental importance, namely, that government must be conducted according to law and that in disputed cases what the law requires is declared by judicial decisions; and, 3) it refers to a body of political opinion about what the declared rules of law should provide in matters of both substance and procedure. [18] Here, in relation to the scope and extent of such ‘restriction,’ Wade expresses the view of Dicey by attributing a central function to an independent judiciary in upholding the rule of law. He thus writes: ‘The right to carry a dispute with the government before the ordinary courts, manned by judges of the highest independence, is an important element in the Anglo-American concept of the rule of law.’ [19]

Variety of definitions and meanings of the rule of law are best mingled in A.V. Dicey’s general and influential approach to the concept. [20] According to him, the basis of the doctrine of rule of law springs from the notion that ‘every man, whatever is his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary courts.’ [21] He emphasised on three aspects of the rule of law: (1) no one can be punished or made to suffer except for a breach of law proved in an ordinary court; (2) no one is above the law and everyone is equal before the law regardless of social, economic, or political status; and (3) the rule of law includes the results of judicial decisions determining the rights of private persons. [22] While summing up the meanings of the ‘rule of law’ that he proposed, Dicey observed that it means, in the first place, the absolute supremacy or predominance ‘of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of the prerogative, or even of wide discretionary authority on the part of the government.’ According to Dicey, government and its officials should not have any special protection of law. Neither should they be exempted from the application of law to them. He did not like the French system where government activities were dealt with by separate administrative courts. He considered this system to be too partial in favour of the government. Under this concept Dicey is not arguing that all persons have equal powers and rights. Dicey’s argument can be split into two aspects: that every one is subject to the same law and that every one is subject to the ordinary courts of the land. [23]

However, these definitions of the rule of law have been frequently criticised as ‘unsatisfactory and incomplete’ and as ‘fairly representative of the common law tradition.’ The emphasis given by Dicey and Wade on the role of independent judiciary has attracted further criticisms. The criticisms refer to the vague notion of the establishment of laws ‘in the ordinary legal manner’ containing no specified requirements regarding their mode of operation. Further criticism of the rule of law is made as the reference, made thereto, is rather limited ‘to a well-known, traditional conception of the courts within the English legal system.’ [24]

It is now desirable to refer to the Anglo-American conception of the rule of law in some other important legal languages. The term ‘rule of law’ seems to correspond quite closely to German terms Rechtssicherheit and Rechtsstaat as well as the Scandinavian terms rettssikkerhet and rettsstat. The Rechtsstaat (the law State) conception of the rule of law has been aptly expressed by Georg Jellinek, a leading nineteenth-century German jurist. Thus, every legal rule also constitutes a guarantee to the legal subjects that the State is itself under an obligation as long as the rule remains in force. Irrespective of how the law originates, the State commits itself to its subjects that it will ensure the application and enforcement of laws through the State mechanisms. [25] Thus, for a State a Rechtsstaat means that, in simple terms, the State comprises an autonomous legal structure, independent of any particular form or political complexion of its government. [26] For Rudolf Gneist, for a State Rechtsstaat, the following four conditions must be fulfilled: everyone must exactly know his duties; no citizen must bear more burdens than his fellows; private law must carry out the protection of the person and of property insistently, jealously and energetically in the various spheres of its functioning; and, finally, the relation between citizen and the State must be subject to control of administrative tribunals. [27]

Thorough evaluation of the basic features of the Constitution of Bangladesh reveals that there are operative presumptions against the exercise of arbitrary authority on the part of the executive and that the State and the executive are restrained from conducting their functions arbitrarily affecting the life and liberty of the citizens. One can see from the preamble of the Constitution, ‘that it shall be a fundamental aim of the State to realise through the democratic process a socialist society, free from exploitation – a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens.’ To attain this fundamental aim of the State, the Constitution has made substantive provisions for the establishment of policies whereby every functionary of the State must justify its action with reference to the law. [28] ‘Law’ does not mean anything that Parliament may pass. Articles 27 and 31 have taken care of the qualitative aspects of law. Article 27 forbids discrimination and provides that all citizens are equal before law, while Article 31 imports the concept of due process, both substantive and procedural, and thus prohibits arbitrary or unreasonable law or State action. [29] The Constitution further guarantees in Part III certain rights to ensure respect for the supreme value of human dignity. Rule of law was enshrined by applying the doctrine of judicial review in a land mark case where the Supreme Court of Bangladesh placed utmost importance on the sovereignty of the people, supremacy of the Constitution, democracy, republican government, unitary State, separation of powers, independence of the judiciary and fundamental rights and observed that they form parts of the basic features of our Constitution [30] and the Supreme Court further went on to add rule of law to the list. [31]