Upali Jayatilaka

What is RULE OF LAW?

The concept of Rule of Law”, its origin, the present definitions, anomalies in the application of the concept and debates among jurist and Political Scientists as to what factors come within the definition. At present it is perceived to be a Western concept bestowed upon the rest by the civilised world.  It is also promoted as a concept by the West, through the World Bank and or IMF in attempting to instil civilization on underdeveloped and developing countries by the introduction of democracy and accepted norms of the rule of law”.

Dicey’s definition which was used universally.

The theoretical formulation is as follows,

(1) That a citizen’s legal duties and liabilities to punishment should be determined by ‘the regular law’ and not by arbitrary fiat of officials or exercise or wide discretionary power; and

(2) That disputes between a private citizen and the State should be subject to the jurisdiction of the ordinary courts; and

(3)  That the fundamental rights of the citizen should not rest on special constitutional guarantees but should arise from the ordinary law.

In recent years Lord Tom Bingham’s definition has been adopted to negate the deficiencies in Dicey’s definition. ”

Tom Bingham’s Theory on the Rule of Law:

• The Law must be accessible and so far as possible intelligible, clear and predictable.
• The question of legal right and liability should ordinarily be resolved by application of the rule of law and not the exercise of discretion.
• The Laws of the land should apply equally to all save to the extent that objective differences justify differentiation.
• Ministers and public officers at all levels must exercise the power conferred on them in good faith, fairly, for the purpose for which the powers were concurred, without exceeding the limits of such powers and not unreasonably.
• The Law must afford adequate protection of fundamental human rights.
• Means must be provided for resolving without prohibitive cost or inordinate delay bona fide civil disputes which the party’s themselves are unable to resolve.
• Adjudicative procedure provided by the state should be fair.
• The Rule of Law requires compliance by the state with its obligations in international law as in national law.

The World Justice Project, there have been identified 8 key factors against which State performances have been analysed. This is not a definition or theory but eight general concepts to measure maintenance and upholding of the concept of The Rule of Law”.

The factors are

1: Constraints on Government Powers

2: Absence of Corruption

3: Open Government

4: Fundamental Rights

5: Order and Security Factor

6: Regulatory Enforcement

7: Civil Justice

8: Criminal Justice.