The rule of law is a doctrine propounded by its exponents that aims to subject all three branches of the government to the prevailing law. The rule of law has to be read in light of the doctrine of parliamentary supremacy or parliamentary sovereignty and while parliament as a collective body is the sole law-maker in the land, with the exception of common law or judge-made law, its members are still subject to the law.
The rule of law requires that all men be governed by acceptable rules rather than arbitrary decisions made by those in positions of authority. It places the law above all else, including lawmakers, and as per the doctrine only then will “men enjoy all the blessings that are showered on the state” – Aristotle.
Its objective is to curb abuses of power. “Power corrupts and absolute power corrupts absolutely” – Lord Acton. The doctrine has three limbs. They are as follows:-
1. Supremacy of the law
2. Equality of the law, and
3. The predominance of the legal spirit
1. Supremacy of the law – “Wherever there is discretion, there is room for arbitrariness and that in a republic no less than under a monarchy discretionary authority on the part of the government must mean insecurity for legal freedom on the part of its subjects.” – A.V. Dicey.
No man should be punished or should be made to suffer except for a breach of the law. A person can only be fined either in the form or monies or in terms of goods and can only be deprived of his liberty or his right to live as a free man for a breach of the law and nothing else. Everyone has a right to liberty and security of person and no man shall be deprived of his liberty save for the breach of the law – Article 5 European Convention of Human Rights.
2. Equality of the law – “Equality before the law and equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts” – A. V. Dicey.
No man is above the law and all men are equal in the eyes of the law. Regardless of one’s status in life or the office that one holds, as far as the rule of law is concerned, all men are equal. Any power that is exercised, discretionary or otherwise, must be power that is granted by the law.
3. Predominance of the legal spirit – Common law or judge-made law is the best instrument or mechanism to protect the rights of individuals. The rule of law is better served when a matter is brought before the courts and decided on its facts as opposed to say for example a bill of rights.
The law itself has to change with time in order to better serve the people and emphasizing on a set of rules or an enshrined bill of rights, that may become outdated with the passage of time, will make the law overly rigid and deprive it of much needed flexibility, without which, neither the state nor the people would be able to progress.
Copyright © 2019 by Dyarne Jessica Ward