Amna Hassan is a law student at university of London, she is interested in research work and writing.
The rule of law is one of the most needed system in the world of today that is divided by ethnical conflicts, political wars and a fast paced justice system that needs transparency as to fill the gaps driven by this difference of opinions. There had been constant horn locking between the citizens of the states and their respective governments as to establish a justice system that is without any prejudice as to treatments of the citizens.
Rule of Law definition:
According to the definition of Rule of law, it’s a principle under which all persons, institutions as well as the entities are accountable to the law. According to a recent study of 2020 by world justice project (WJP), they published an expository report in relation to Rule of law. WJP has described Rule of law as a system that “reduces corruption, combats poverty and disease, and protects people from injustices large and small. It is the foundation for communities of justice, opportunity, and peace—underpinning development, accountable government, and respect for fundamental rights.”
History of Rule of law:
Historically in the late roman period, there was this notion of the divinity of kings and accountability to God and therefore the law was seen as below the kings. However it was Magna Carta 1215, which rejected this notion and held that Kings were not above the law. There was strife between the nobles and the king John, where these nobles wanted him to accept the Magna Carta charter. This period of unrest was due to the fact that the Nobles believed that king was exploiting his position and demanding for more taxes only to spend them on wars and not fulfilling his obligation to the citizens. Petition of Rights 1628 was to serve the purpose of reminding the monarch in regards to his obligation to follow rule of law established by Magna Carta. This petition of rights also extended the scope of rule of law and due process and put in some implied terms for Magna Carta. However, one of the most important concepts of Habeas Corpus was something that the Magna Carta was missing and further extended by Petition of Right. According to the Habeas corpus that is an important ingredient of Rule of law, a person who is detained can bring in a claim for the re evaluation of their detention and in such a case the courts reevaluate to determine if they were wronged in any manner .Such judicial and legal scrutiny is known as Habeas corpus and results in ultimate freedom in case the detainees are wronged under the Habeas Corpus Act 1679. The bills of rights 1689 also restricted the crown powers as to uphold the fact that law cannot be made repealed or suspended without the parliament’s will. People who are wronged by the crown were given the power to bring in their claim against the responsible monarchs. The bill also ensured that people have safeguards against violations by the higher ranks. Also to make sure that the Crown doesn’t exercise its power to manipulate the law. This bill also set out the basic and fundamental principles that determine the operation of law.
Impact and establishment of Rule of law:
The real question that arises is why do we need Rule of law? How can the judicators and legislators and the executives ensure that they are working in line with rule of law? But most importantly what remedies for the breach should be provided to the common people?
As we discussed above about how the world is revolving and we need a compatible system to keep up with the fast changing system, for this we need a transparent system that is compatible, accessibility without any discrimination against and individual and safeguards the fundamental human rights. A system that prevents violation against its members and upholds public interest- under the rule of law there is this security from the fact that no one is stripped from the grievance mechanisms. All members have easy access to dispute settlements and can bring in claim for redresses. Rule of law offers both justice and security to the people. Due to these four factors of rule of law, it is one of the best systems that can help in the development of a country immensely. Rule of law delivers the principle of accountability; under this factor everyone is accountable no matter whom. Imagine if a government was held accountable for their every action, this would have deterred them from not only corruption but also for neglecting their citizens. After all the citizens whom they are ruling on play an integral role in their election as the representatives of their states. If such government is incompatible and corrupt the country is bound to suffer. Due to this widespread corruption that can’t be deterred, human rights violation due to passing of bad policies and lack of accountability, poor economy, inflation and high rates of unemployment would some of the most common issues. The voice of these who elected these governments as their representative is going to be suppressed and citizens would suffer in silence due to tyrannical rulers and their policies. Rule of law provides the people with remedies to hold government as well as private actors accountable.
The factor of rule of law is pertaining to just laws- such laws that place the minority of the country on equal footing with the majority. Laws that are acting as a shield for the elites against the poor people whom they exploit should never be the laws in the first place because laws are not made to give advantage to certain handful of people but to offer protection to those who were wronged at the hands of another. Under the law everyone should be equal and accountability of every single individual should be same be it a prime minister of a state or be it an old and poor man, the liabilities and duties stated in these laws should never change even by a fraction. Laws should clear, publicized and stable in their nature. Laws should never be uncertain because such laws should be ambiguous in nature create issues in interpretation for the law makers as well as lay man who need to understand what the actual law is in order for their application .Laws should protect every person fundamental rights such as right to live, exercise free speech, make contracts and offer security of persons. Such clarity is law can be offered by the fact that law is in simple and easy in their content as such content could be made out by even a lay man, law accessibility can be insured by publishing it in books, journals, podcast, broadcasting of the recent law developments as well as use of print media. Since not everyone can access it online these additional measures can make sure that law is accessible to masses. So no one can use ignorance of law as excuse to neglect their duties.
The third universal principle deals with the fact that there are open governments; it’s a process by which the laws are enacted, administered and enforced. The laws should be accessible, fair and efficient in nature. When talking about fair laws these laws shouldn’t discriminate against people of ethnic groups, religious group, any specific gender or any political group and neither attack them in whatsoever manner. For this to be possible laws shouldn’t be controversial as to the fact that they are passive aggressive in nature. Laws should be accessible to everyone despite their standing in the community; everyone should have the equal opportunities without hurdles to access law despite their professions or their standing in the society. Laws should be efficient in ways that they can deal with cases at hand and through precedence the judges and lawmakers can easily deduce the sentence and remedies for cases of same nature. There is a dire need to make sure that law not only is consistent but also certain. Laws shouldn’t be stringent in nature but flexible. In criminal laws the laws should be certain and effective in nature as well as the judges should be competent as to protect the people of the state since the criminal nature of cases directly link it to moral aspect of the society and public security which is a very sensitive issue and should be protected at all cost.
Judges should be neutral as to the deliverance of judgments because if the judges are not impartial they can be unjust and grievances of the parties would remain unsolved, hence breaching their rights Justice can be only delivered timely by competent, ethical and independent representatives who are trying to establish a moral and just system without looking out for any benefits. These representatives as discussed should be neutral in their approach without any greed or ulterior motive. Justice should be accessible and not something that should be delayed since a justice delayed is a justice denied. The lawmakers should have adequate resources to grant remedies and it shouldn’t all be just paperwork without any redress to it. The laws should reflect all the communities and not the representative of one certain fraction or the majority. It should consider minorities’ rights and laws protecting them just as important and effective in nature as it would to those that apply to the majority.
As to how we can obtain a rule of law? There are certain ways through which not only we can create a balance in powers but also ensure that everyone had the equal standing under the law. These are some of the listed down ways.
1) Constraint on the government powers can be though the legislature and the judiciary. The government should have certain powers and incase they exceed those powers they should be accountable. There should be a check and balance system on the ruling government there needs to be separation of power between the judiciary, legislature and executive branch to the extent that they can uphold independent judgment in interest of justice without exceeding the power granted to them.
2) Independent surveys and reviews should be carried out to check the government’s affectivity and incase the people are unhappy with their current government progress than they should be replaced by competent governments.
3) Government officials should be sanctioned for misconduct and misuse of their powers by the judicial, legislature and independent bodies that are fair, honest and the results and investigations into the alleged misconduct should be disclosed to the public.
4) Government powers should be subjected to non- government organizations in order to get impartial and honest results. As at times the legislatures, judiciary and government would be aiding each other to receive personal benefits and public has no one to turn to for redress. This measure can also insure high check and balance.
5) Government officials in the executive branch shouldn’t use their public office for private gains in case they do strict actions should be taken against such corrupt officials and they should be immediately replaced.
6) Security officials shouldn’t be corrupt and well trained to carry out their duties. The admission to such offices should be after strict scrutiny and where any such official is found to have misuse his office or had a criminal background such officials should be strictly not allowed to keep any such post since this is an act of corrupting morals. So a background check of all the people in positions is a compulsory act that can discourage them from indulging in wrongful acts. This not only can curb crimes, government but also uphold a honest system without flaw.
7) There should be a yearly report that should contain all the details of the government funding and spending and on such reports there should be an scrutiny by the opposition and relevant financial bodies who should investigate and hold debates as to the government’s spending to see if the money of the tax payers is being spent resourcefully and for the public? Such reports should have the highest level of transparency so as to stop corruption and money laundering – this is one way to ensure that public’s money is being used for their benefit and for development of the country rather than by those in higher positions for themselves.
The judiciary takes rule of law in consideration when deciding on the cases- in the case of Golder V United Kingdom – A prisoner who wasn’t granted the permission by the home secretary as he wanted to consult the solicitor to bring claim against the prisoner officer .Therefore it was held by the courts taking Rule of law in consideration that ‘in determination of his civil rights one is entitled to fair hearing.’ A right to access to a legal advisor falls within the exercising of such powers. The courts have addressed rule of law in the case of Klass v Germany as “the fundamental principle of a democratic society.” In the case of Winterwerp V Netherlands it was stated by the judges as “democratic society subscribe to rule of law.”
As discussed above and established it can be concluded that rule of law is a rule that upholds the democratic societies and work in favor of creating just and crime free society which is morally and politically strong with the people exercising their rights and living a life that has both freedom and justice. Rule of law creates a clear separation of powers and revives the economy of a country. It not only ends the class, gender, ethnical and political gaps but also make sure that people don’t exploit their powers. It is also a system that makes sure that the parliaments are accountable to its voters and not misusing their office for personal gain while taking resources from the people and misusing those resources. Rule of law is one system that insures that taxes are used for the benefit of the society and for development of the country and to aid those who are in need in order to uplift them.
This content reflects the personal opinions of the author. It is accurate and true to the best of the author’s knowledge and should not be substituted for impartial fact or advice in legal, political, or personal matters.
© 2021 Amna Hassan