Rule of Justice over Rule of Law

We need rule of justice, rule of law may not be just and rule of law is not enough. Above all, always be capable of feeling deeply any injustice committed against anyone, anywhere in the world.

Introduction:

The Rule of law which is otherwise called supremacy of law enunciates that law is above everyone and it applies to everyone. Whether governor or governed, rulers or ruled, no one is above the law, no one is exempted from the law, and no one can grant exemption to the application of the law. Even though it is recognized as fundamental to the western democratic order, every democratic State asserts its necessity in order to achieve the rule by the law and with the law. But rule of law cannot be the ultimate solution. There are many significant issues which can threaten the idea of the rule of law in a State. There should always be justice behind every law. We see many instances where the innocent suffer while the guilty escapes; where the honest fail while the dishonest prosper. Rule of justice is a scheme or system of law in which every person receives his or her due from the system, including all rights, both natural and legal. So, rule of law is not enough. With this objective this paper will examine the probable issues with specific references to that can challenge the concept of the rule of law.

The Definition of Rule of Law:

The rule of law does not have a precise definition, and its meaning can vary between different nations and legal traditions. Generally, however, it can be understood as a legal-political regime under which the law restrains the government by promoting certain liberties and creating order and predictability regarding how a country functions. In the most basic sense, the rule of law is a system that attempts to protect the rights of citizens from arbitrary and abusive use of government power.

Rule of law in its modern sense owes a great deal to the late Professor AV Dicey. In his words “rule of law,”1 which forms a fundamental principle of the constitution, has three meanings, or may be regarded from three different points of view,

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 prerogative, or even of wide discretionary authority on the part of the government.

It means, again, equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary Law Courts; the “rule of law” in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals; there can be with us nothing really corresponding to the “administrative law” or the “administrative tribunals” of France.

http://www.uiowa.edu/ifdebook/faq/Rule_of_Law.shtm

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The “rule of law,” lastly, may be used as a formula for expressing the fact that with us the law of the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the Courts.2

Challenges To The Concept of the Rule of Law

Laws and justice systems all over the world are based upon the stern pillars of the rule of law. It acts as a guideline for the government to enact legislations and establishes procedures and regulations which are based on the concept of equality and equal treatment before the eyes of law. The rule of law propounds equal treatment before the law irrespective of caste, creed, sex, color, background, and religion, social, political and economic status. [1] But this principle may be threatened. And there will be an attempt to assess and identify the core of those issues which are fundamental having the likelihood of causing potential threat to the concept of the rule of law in a particular State.

In short, those fundamental issues can be identified thus:

Economic growth

Dictatorial discretion of the Government

Violation of human rights

Violation of due process of law

Arbitrary use of power by the executives

Lack of check and balance in the separation of powers

Absence of independent judiciary

Economic growth:

Rule of law and its co relation with economic growth is very intensive. “Without good governance and a strong commitment to the rule of law and a genuine will to control corruption, all of which are essential for an accountable government, development would be difficult if not impossible. [2] “Legal systems that provide strong legal protection for investors have permitted the development of sophisticated financial markets, which enhances the economy’s ability to bear risk. This ability to spread risk over a multitude of investors is critical for entrepreneurship and economic growth. By weakening property rights, corruption deprives investors of compensation for risk taking and increases uncertainty about potential investment payoffs. This decreases the incentive to invest, which in turn dampens economic growth.

Dictatorial discretion:

Discretion supplants the rule of law which is propped and sustained by constitutional checks which the independence and counterbalancing pressure which the three arms of government provide. In the absence of constitutional governance, the discretion of one dictator forms the basis upon which governance runs.

Violation of human rights:

Human rights are those inalienable rights of human being with which he born and which are universal in nature. Human rights and the rule of law can be considered as two sides of the same coin. If we compare the concept of the rule of law with the cores of human rights we will discover that both have recognized some principles as their fundamentals:

Equal protection of law: All are equal before law and are entitled without discrimination to equal protection of the law. [3]

Effective remedy by the court: Everyone has the right to an effective remedy by the competent national tribunal. [4]

No one shall be subjected to cruel, degrading and inhuman treatment: [5]

No one shall be convicted without being heard: Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. [6]

So violation of these rights certainly challenges the very essence of the rule of law.

Violation of due process of law:

Due Process of law implies and comprehends the administration of laws equally applicable to all under established rules which do not violate fundamental principles of private rights, and in a competent tribunal possessing jurisdiction of the cause and proceeding upon justice. It is founded upon the basic principle that every man shall have his day in court, and the benefit of the general law which proceeds only upon notice and which hears and considers before judgment is rendered. [7] The essential elements of due process of law are notice, an opportunity to be heard, and the right to defend in an orderly proceeding. [8]

According to the rule of law and due process, everyone who is charged with a criminal case must know the charge against him, he must have the opportunity of defending himself without any reasonable delay and he shall be entitled to the free, fair and impartial trial before the court of the land. And this process cannot be changed even by the legislation. [9]

Arbitrary use of power by the executives:

The rule of law at its very birth enunciates one fundamental principle and that is absence of arbitrary and discretionary power by the executives. Conventionally, there are three branches of government in each polity that makes up the nation.  These are the legislature, the executive and the judiciary. In a country of parliamentary democracy, the judiciary is independent of the other two branches; the executive is dependent on the legislature. Whereas the legislature law enacts, the judiciary law interprets and the ultimate power of enforcement of the law lies in the hands of the executive. So the arbitrary use of power by the executives may be tantamount to challenging the concept of the rule of law.

Lack of check and balance in the separation of powers:

The separation of powers is a model for the governance of democratic states. It means that three governmental branches (executive, legislative, and judicial), each of which has specific powers upon which neither of the others can usurp. These checks and balances are given large credit for the prevention of a tyrant ever seizing power in this country. [10] So this can also be regarded as a fundamental issue challenging the concept of the rule of law.

Absence of independent judiciary:

Independence of the judiciary (also judicial independence) is the principle that the judiciary should be politically insulated from the legislative and the executive power. That is, courts should not be subject to improper influence from the other branches of government, or from private or partisan interests. [11] One of the ground rules of the rule of law is that the judiciary must be independent of the executive and legislative branches of the Government and the judiciary must be free from all influences from the executive to act freely and impartially.

It is worth to be mentioned that all these fundamental issues occur when the administration in the governmental branches suffer from non-accountability & non-answerability, corruption, nepotism and favoritism. And these have the detriment which ultimately results the violation of rule of law in a particular State.

An example regarding major violations of the rule of law:

Recently some prominent newspapers in Bangladesh have published that a young girl of Patuakhali alleged to have been gang-raped by the members of the youth group of the ruling party. According to the credible press reports, the girls’ family was facing a wall of resistance in seeking justice against the perpetrators of this abominable crime, after it was committed. First the local police were reluctant to register a case in this connection. The potentates of the political establishment took recourse to intimidating the family of the victims with all kinds of threat to scare them away from justice. Thereafter, those political bosses forced the victim’s family to sit in a meeting in which the girl was allegedly threatened into signing a statement that she was not kidnapped and raped but only tortured while being detained briefly. [12] This incident clearly shows that how the rule of law is denied in administering justice to everyone equally and justly as well as how the administration is handicapped by corruption.

Some Observations To Alter This Scenario:

To keep intact the ideal of the rule of law there must be some measures which must be taken as the means of mitigation of the severe consequences ensuing from the violation thereof and they may be categorized as such:

A total Separation of judiciary from the executive in order to attain the utmost judicial independence as has been described in the Basic Principles of the Independence of Judiciary proclaimed by the United Nations.

Separation of powers and maintaining check and balance in the administration to prevent the executive usurpation over the legislatives and judiciary.

Human dignity must deserve its utmost worth and their rights should always be respected.

The judiciary must come forward to give effect the true essence of the Rule of Law.

Above all, Accountability and answerability of the Government must be ensured.

Conclusion:

The traditional ideal of the rule of law in a society is straight-forward and that is Law represents the ultimate authority and expression of power of the nation state.   Everyone is taken to be subject to the law. But this ideal when comes into practice sees gulf of differences. The practice says that the law is not equal before law and all are not equally subjected to law. But this ideal of the Rule of Law if is not upheld to the utmost standard, the very objective of equality and justice is denied. Therefore, it can be concluded that, rule of law is not enough and we need rule of justice.