Negotiating the often – volatile forces of globalisation while managing a process of rapid transformation is not an easy exercise in governance. It is a challenge directed not only at the ruling party, but also to the entire spectrum of political forces that have a stake in order stability peace and the welfare of the people. Democratic institutions and practices with the aid of the rule of law need to be strengthened and sustained so that all citizens should enjoy freedom without fear or insecurity.
The rule of law represents one of the most challenging concepts of the Constitution. The rule of law is a concept which is capable of different interpretations by different people. The essence of the rule of law is that of the sovereignty or supremacy of law over man.
The rule of law insists that every person, irrespective rank and status in society be subject to the law. For a citizen, the rule of law is prescriptive – dictating the conduct required by law- and proactive of citizens – demanding that government acts according to law. The rule of law underlies the entire Constitution and in one sense all constitutional law is concerned with the rule of law.
The emphasis on the rule of law is a yardstick for measuring both the extent to which the Government acts under the law and the extent to which individual rights are recognised and protected by law. For the rule of law to be respected and applied, the legal process – civil and criminal – must exhibits certain features. These features may be categorised as accessibility and procedural fairness.
Similar to national level, on an international level too, the rule of law is advanced by international declarations. The expression the rule of law is often referred when democratic liberties are discussed and thus it has become a guarantee of democratic governance. A legal system is viewed as just and in conformity with the rule of law, if it establishes civil and political liberties as well as economic, social and cultural rights.
Article 21 (1) of the Universal Declaration of Human Rights (UDHR, 1948) says:
Everyone has the right to take part in the government of his country, directly or through chosen representatives. (2) Everyone has the right to equal access to public services in his country. (3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine election which shall by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
Article I of our 1978 Constitution (the Republican Constitution of 1978) designates Sri Lanka as a Democratic Socialist Republic. The Preamble to the Constitution refers to the achievement of the goals of a ‘democratic’ republic while ratifying the immutable republican principles of representative democracy.
Democracy is an egalitarian form of government in which power is held directly or indirectly by citizens under a free electoral system. Representative democracy may feature parliamentary or presidential forms. In a democratic country such as Sri Lanka, periodic elections of the chief executive and legislators constitute the principle institutional device for making sure that government derives its powers from the consent of the governed.
Modern democracies are based on two competing visions of the democratic ideal. On the one hand majoritarian principle emphasises democracy as government by the majority of the people, based on a concentration of power. The consensus principle, on the other hand, promotes the idea that democracy should represent as many people as possible and provides for multiple checks and balances – thereby limiting the power of the central government while providing for the representation of a broader array of interests.
To equate democracy with majority rule would be fallacious. It is contended that majority rule might lead to a ‘tyranny of the majority’. The use of super- majoritarian rules and constitutional limits on governmental power has been recommended to mitigate these effects. Another way to safeguard against tyranny of the majority is to guarantee certain rights.
One key element considered essential to democratic governance is the rule of law which this article seeks to examine.
Democratic governance
Constitutions are not only legal instruments embodying the sovereignty of a people. They are also covenants of political association among people living within a sovereign state. In a plural society where ethnic groups make competing claims for rights, the Constitution should be made into social contract. It should carefully balance the multiplicity of interests in society, reflects their democratic aspirations and embody collective visions for the future. Constitution – making in this manner is not easy, yet it is rewarding because a Constitution in a form of a covenant can establish lasting foundations for a stable nation – state.
A well- functioning democracy, with strong political institutions and practices is also one with built- in mechanisms for checks and balances on the exercise of political power. When we recall the political debate in our country during the past several decades, one issue that immediately brings to mind is the sharp public critique of the 1978 Constitution’s central feature, the excessive concentration of power in the hands of the President of the Republic. The constitutional entrenchment of the office of the Executive President resulted in the degradation of the relative position of the legislature.
What features characterise the Sri Lankan political system as democratic? First, the Constitution establishes the representative institution - the Parliament as directly chosen by the people. Second, the Executive Presidency is directly chosen by the People. Thirdly, periodic free and fair elections held by secret ballot for members of Parliament, Provincial Councils and local authorities. Fourth is the institutionalisation of the role of the opposition party in Parliament.
Fifth the requirement that legislation has to pass through Parliament for it to be enacted. Sixth is the accountability of the government to the electorate. Seventh is the right to dissent and criticise the government and representatives.
It is a cardinal principle of modern democratic constitutionalism that the sovereignty of the people should reside in the legislature directly elected by the people guaranteed by the rule of law.
An outline
The expression ‘the rule of law’ is often referred to when democratic liberties are discussed. The rule of law not merely requires that a government should act according to law, but also that the body of law in existence in a country should be in accordance with certain minimum standards of equity, justice and good conscience. For the citizen, the rule of law is both prescriptive – dictating the conduct required by law – and proactive of citizens – demanding that government acts according to law. The rule of law underlies the entire Constitution and in one sense all constitutional law is concerned with the rule of law. The rule of law cannot be viewed in isolation from the political society.
As the notion of rule of law is dependent on upon the political foundations of a state, it is dependent according to the approach adopted to the concept upon a nation’s economic resources. The narrow interpretation of the rule of law insists simply on a citizen’s compliance with the rule of law.
However, if the rule of law implies more than mere regulation by law and is elevated to a theory guaranteeing freedom from hunger and homelessness and entitlement to a basic descent standard of life, then economic conditions are of paramount importance to conformity with the rule of law. Such an approach is adopted by the International Commission of Jurists which in the New Delhi Declaration of 1959 included alongside traditional civil and political rights, the realisation of social, economic, cultural and educational standards under which the individual could enjoy a fuller life within the ambit of the rule of law. A legal system is viewed as just and in conformity with the rule of law if it exhibits both these features and an absence of discretionary rules or practice.
The rule of law has its well known exposition in the work of the influential British Constitutional lawyer A.V. Dicey, who in 1885, published his Introduction to the Study of the Law of the Constitution. His formulation of the rule of the law, though not accepted without reservation today, is a useful starting point for a discussion of this concept. Dicey emphasised three aspects of the rule of law: (i) no one can be punished or made to suffer except for a breach of law proved in an ordinary court, (ii) no one is above the law and everyone is equal before the law regardless of social, economic or political status and (iii) the rule of law includes the results of judicial decisions determining the rights of private persons.
The rule of law requires that every governmental act is carried out within a framework of legal rules and principles. Dicey took the view that the rule of the law is to guarantee and protect individual freedom against an increasingly powerful and interventionist State. Dicey took an unfavourable view of French administrative law which he regarded as “as body of special rights, privileges or prerogatives, as against private citizens whom he thought were in a less advantageous position when compared with British subjects who remained subject to the ordinary law’ administered by the ‘ordinary courts’. But this is no longer considered a valid criterion for drawing such an inference.
Dicey is considered, in fact, to have misrepresented the French administrative law system, and also failed to take into account the new developments taking place in Britain under which various specialised administrative agencies which had trenched upon the powers and jurisdiction of the ordinary courts. The adverse view which he formed is, perhaps, attributable to his ideological commitment to individualism and his aversion of collective state action.
Despite the prevalence of certain interpretational differences of the type preferred to above, there could be no doubt that the doctrine itself has a powerful resonance in all democratic systems as a bulwark against arbitrariness and the abuse of power which exceed the limits of legal authority.
Scope
The Rule of Law serves two functions. First, it is the principle of institutional morality. As such it guides all forms of law making and law enforcement. In particular, it suggests that legal certainty and procedural protections are at least fundamental requirements of good governance.
Secondly, it serves as a principle that constrains the uninhabited exercise of governmental power. That is particularly important in a country such as the UK which does not have a written constitution. A principle such as the rule of law can be expressly overridden by Parliament. As Dicey required the principle of Parliamentary sovereignty prevails. As a constitutional principle, the rule of law serves as a basis for evaluation of laws and a critical focus for public debate.
The concept of rule of law has grown remarkably in post- war years and various international conferences and conventions have sought to expand the meaning of the concept. Dicey’s basic ideas of freedom from arbitrary interference and guaranteed equality before the law have commanded themselves to the international community as a modern form of the age- old ideas contained in traditional concepts of the law of nature.
The Universal Declaration of Human Rights of the United Nations adopted in 1948 declares that: “It is essential if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression that human rights should be protected by the rule of law’.
The European Convention on Human Rights and Fundamental Freedoms (1950) also recognises the concept of the rule of law. On an international level, the rule of law is also advanced by the International Commission of Jurists which strives to uphold and improve the rule of law within the legal systems of its members. The International Congress of jurists at a Conference in Delhi in 1959 elaborated the concept of the rule of law in the Declaration of Delhi.
The Declaration of Delhi 1959 recognised that: ‘the rule of law is a dynamic concept for the expansion and fulfillment of which jurists are primarily responsible and which should be employed not only to safeguard and advance the civil and political rights of the individual in a free society, but also to establish social, economic, educational and cultural conditions under which his legitimate aspirations and dignity may be realised’. The rule of law, therefore, operates within the legal system in many different ways. If true equality before the law is to be achieved, it is essential that there is the opportunity to have access to law and that legal proceedings are fairly conducted to protect both parties. In addition, it is essential that there is an independent judiciary which operates without bias.
Rule of law and judicial review
The rule of law has provided one of the main conceptual bases for administrative law in most Commonwealth countries. Judicial review is the means by which administrative authorities with rule making and administrative powers are confined by the courts within the powers granted to them by Parliament. Thus, judicial review represents the means by which the sovereignty of the people is upheld and the rule of law is applied.
To be continued