Meaning of the Rule of Law:
The Rule of Law is an important contribution of the British Constitution. It means that in the eyes of the law all persons, whether big or small, the highest government official or ordinary citizen, a big capitalist or a poor man, are equal. It also means that in the eyes of law, there is no privileged class.
Irrespective of his or her social status. Everybody will be equally punished for the violation of law. Secondly, nobody is punished in England until his guilt is proved in a law court. Thirdly, there is only one type of laws ordinary laws for deciding disputes between the citizens and the government and there are only one type of courts-Ordinary Courts.
On the contrary, there are separate courts and laws to decide disputes among the citizens, and between the citizens and the government. In France, there are ordinary courts for deciding the disputes between the citizens and there are Administrative Laws and Administrative Courts for deciding disputes between the citizens and the government.
In England, the people attach a great importance to the fact that in their country everybody is equal in the eyes of law and there are equal laws for all the people and no body or class of the people is given any special privilege in this regard.
Even the Queen cannot violate any law because nobody is above the law, but everyone is bound by the law. In England the people have secured this right after a long struggle against the absolute Kings. First of all the people obtained a charter from King John.
This charter is called Magna Carta. Later, people opposed the Kings who violated the rights of the people. During the regime of Charles I, Civil War broke out in England and consequently the Parliament protected these rules.
After the Glorious Revolution and during the regime of Queen Victoria these rules were firmly established. There is no list of Fundamental Rights in the British Constitution and the rights of the people are protected through these rules.
Dicey has given three meanings of the rule of law. According to him, “It means in the first place, the absolute supremacy or predominance of regular laws as opposed to the influence of arbitrary power and excludes the existence of arbitrariness, of prerogatives or even of wide discretionary authority on the part of the Government. Englishmen are ruled by the law and by the law alone a man may be punished for a breach of law but he can be punished for nothing else no man is punishable or can be lawfully made to suffer in body or in goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.”
Further Dicey writes, “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.’ Dicey continues that, “Not only that with us no man is above the law but (what is a different thing) that here every man, whatever be his rank or condition is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.”
Prof. Dicey while elaborating the equality of all before law, says, “With us every official, from the Prime Minister to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen”.
Thirdly, according to Dicey, the Rule of Law 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 the constitutional code, are not the sources but the consequences of the rights of individuals as defined and enforced by the courts….. It means that the main principle of the constitution, such as the right to personal or of public meeting, has been set up on the foundation of the old common law and not as things derived from any general Constitutional Theory. Rights in brief, do not flow from the constitution but from judicial decisions as in the famous Wilkes, case.
It is, therefore, clear that the British are not governed by any individual arbitrarily but by the Rule of the law. The criminal has the right to defend himself. Nobody will be punished without his crime being proved against him.
Exceptions or Limitations to the Rule of Law:
When in 1885 ‘Law of the Constitution’ by Dicey was published for the first time, the primary functions of the state were the maintenance of law and order, defence and foreign relations. But today, since welfare state has been established in Great Britain, the functions of the state and its Discretionary Powers have been increased. Dicey himself felt in 1915 that there was a new danger to the Rule of Law because at that time the First World War was being fought and the British Government was using many discretionary powers.
Since then many limitations have arisen which are as under:
(1) Delegated Legislation:
Today the British Parliament has no time to go into the details of the law, because the number of laws which are introduced in the Parliament, is very high. Secondly, the parliament lacks technical knowledge which is needed for the formulation of complicated laws.
Therefore, the parliament only discusses the outlines and the main principles of the Bills and passes them. The responsibility for framing detailed rules and regulations lies with the cabinet or the executive. This system is called Delegated Legislation. The ministers, with the help of their permanent secretaries, make many rules and regulations for every law.
These rules and regulations remains in operation till they are declared illegal by the courts. Therefore, the power of making rules and regulations for each and every law is a great limitation on the Rule of Law, because this system gives many discretionary powers to the executive, and the citizens very rarely challenge these rules and regulations in the law courts.
(2) Administrative Adjudication:
In England many departments have been given judicial powers. Certain officers are given legal rights under which they decide the departmental disputes or the disputes of the citizens. Administrative officers have been given judicial powers through the parliamentary laws, such as Factory Act, Trade Board Act, Public Health Act, Town and Country Planning Act, etc.
These officials decide many cases in the interest of the citizens and no appeal can be brought into the courts against their decisions. These officers do not follow any legal procedure at the time of deciding such cases.
The people, who are affected by the decisions mentioned above, sometimes do not get the opportunity of producing evidence in support of their cases. In this way the Administrative Adjudication is a great hindrance in the way of the Rule of Law.
(3) Lack of Equality before Law:
Many critics are of the view that the principle of equality before law has become a myth in England. They say that in 1947 Crown Proceedings Act, was passed and in spite of that Act, the public servants enjoy certain privileges and immunities. For example, we can quote the Public Authorities Protection Act, 1893. This Act was amended through Section 21 of the Limitation Act, 1939. In this Act, the provision was made that in case a private citizen brings in allegations against the high-handedness of any government servant, the matter will be heard within six months.
Otherwise, no action will be taken in the matter. Secondly, if a citizen fails to win a case against a government servant, that citizen will have to pay a huge sum of money as expenses of the suit, to the government. Therefore, the citizens do not like to file suit against the government servants.
Thirdly, no legal proceedings can be initiated in any law court in England against the judges, whether their decisions are right or wrong. No action can be taken against the judges even if they go beyond their jurisdiction knowingly or unknowingly.
Fourthly, the foreigners and their property have been exempted to some extent in England. It means that diplomats and Embassies, foreign rulers, recognized international Institutions and their staff have been granted certain immunities. It means that they are governed only by the law of their country and not by that of England.
Fifthly, according to Trade Disputes Act of 1906 no action can be taken by anybody against the Trade Union for violation of any legal duty.
Sixthly, the Armed Forces personnel are governed by only Military rules, and they can be tried only in Military Courts and not in ordinary courts.
Seventhly, the Bishops are governed by the Church rules and the doctors remain under the rules made by the General Medical Council.
(4) Discretionary Powers:
Today the administration cannot be run smoothly without giving certain discretionary powers to the government officers. It is in the discretion of the Home Secretary whether to give a certificate of citizenship to a foreigner or not.
In case a foreigner is considered an undesirable person, the Home Secretary can order him to leave the country. In England, the executive issues Passports, but in case of the refusal to issue Passports, no suit can be filed in the court against the authorities.
(5) Rights do not emanate from the judicial decisions alone:
According to Dicey fundamental rights and liberties emanate from the judicial decisions. But this is a one-sided view. The reason for this is that in England the people have got many rights through the laws of the Parliament and the Charters issued by the monarchs. For instance, the right to Unemployment Insurance has been given to the people under the Parliamentary Acts.
Dicey has ignored the rights based on the common Law. For example, the famous Habeas Corpus Act was based on the Common Law but later, it was made effective under the Habeas Corpus Acts of 1679 and 1816. Similarly the Libel Act of 1888 gave certain special rights to the press. In 1936 an important Act, i.e. the Public Order Act, was passed in respect of Public Meetings.
Ordinary and Administrative Courts:
In France and some other European countries there are two types of courts and laws:
(1) Ordinary courts and laws.
(2) Administrative courts and laws.
When there is a dispute between the citizens, the matter is brought before ordinary courts and the courts decide such disputes according to ordinary laws.
Secondly, if there is a dispute between a citizen and a government official, the matter is brought in the Administrative courts and not in ordinary courts, and the judges decide the case according to Administrative law. The reason for this is that in France and in some other European countries the basis of the law is the Roman Law.
In the eyes of the Roman Law, the state was an end and the individual was a means to achieve that end. Therefore, according to that law the government servants had a special position as compared to ordinary citizens and they had special privileges. Thus, when they committed a crime in their official capacity, they were not tried in ordinary courts.
Real Nature of Administrative Law:
There is a great controversy among the students of Political Science regarding the real nature of administrative law. The main reason for this is that the definition of the administrative law given by Dicey is quite confusing.
Dicey considered the administrative law as a body of rules for the protection of officials who have committed abuse of power against the citizen. Good-now defines administrative law as that part of the public law which fixes the organization and determines the competence of the administrative authorities, and indicates to the individual the remedies for the violation of his rights.
Strong writes, “Administrative law is the body of rules which regulate the relations, of the administrative authority towards private citizens and determine the position of State officials, the rights and liabilities of private citizens in their dealings with these officials as representatives of the state and the procedure by which these rights and liabilities are enforced.”
W.B. Munro defines administrative law, as a system of jurisprudence which on the one hand relieves public officials from amenability to the ordinary courts for acts, performed in their official capacity and on the other hand, sets up a special jurisdiction to hold them accountable.”
Munro further says, “The Administrative law deals not only with the liability of the state and its subordinate division for injuries done to private individuals or their property, but with the rules relating to the validity of administrative decrees. It also deals with the methods of granting redress when public officials exceed their legal authority, the awarding of damages to private individuals for injuries which result from acts of omission or commission of the public servants, the distinction between the official and the personal acts on the part of public officers and many kindred matters.”
The definitions relating to the administrative law given above make it clear that through this law the government servants are made free of the responsibility towards ordinary courts and action can be taken against them for lapses in administrative courts.
In the administrative law, distinction is made between the functions performed by the government servants in their individual capacity and in their official capacity. Through this law the relations between the government servants and the private individuals are defined and the rights and duties of the government officials are settled. Through this law the private citizens get an opportunity for getting redress against the excesses of the government officials.