The idea of the rule of law can be traced back to at least the time of Aristotle who observed that given the choice between a king who ruled by discretion and a king who ruled by law, the later was clearly superior to the former. In more recent times, it is Albert V. Dicey who is credited with providing the logical foundation upon which the modern notion of the rule of law is based.
The term ‘rule of law,’ since reformulated by A. V. Dicey in the 19th century, has traditionally meant to include such notions as supremacy of standing law over arbitrary power, equality before the law (which applies also to government officials), and a binding constitutional framework. The rule of law generally refers to two elements; firstly, the recognition that the use of governmental powers should be kept in check to prevent infringement upon civil liberties and secondly, the recognition that law and order should be maintained at all times to ensure a stable upon which the government’s work may be done.
Dicey’s primary principle concerned the rule of law and discretionary powers. No man could be punished or lawfully interfered by the authorities except for breaches of law. In other words, all government actions must be authorized by the law or government must act within its legal powers. He argued that nobody should be punished, except for a specific breach of law; and that every person irrespective of rank be subject to the law. Dicey’s second principle has the resounding title of ‘equality before the law’.
Which means; no man is above the law and everyone, regardless of rank, is subject to the ordinary laws of the land. This reflect the famous quote by Thomas Fuller; “Be you ever so high, the law is above you”. And the final principle concerns individual rights. There is no need for a bill of rights because the general principle of the constitution is the result of judicial decisions determining the rights of the private person. The courts protect them in their decisions by developing the common law in a way that respects individual liberty.
But I do not think the scope of the existing principle can be adequately understood without examining its implications, which may be conveniently broken down into a series of sub-rules. I have identified five such rules, which I shall briefly discuss. First, the law must be accessible and so far as possible intelligible, clear and predictable. This seems obvious: if everyone is bound by the law they must be able without undue difficulty to find out what it is, even if that means taking advice (as it usually will), and the answer when given should be sufficiently clear that a course of action can be based on it.
My second sub-rule is that questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion. The broader and more loosely-textured discretion is, whether conferred on an official or a judge, the greater the scope for subjectivity and hence for arbitrariness, which is the antithesis of the rule of law. This sub-rule requires that a discretion should ordinarily be narrowly defined and its exercise capable of reasoned justification.
These are requirements which our law, in my opinion, almost always satisfies, because discretion imports a choice between two possible decisions and orders, and usually the scope for choice is very restricted. I turn to my third sub-rule, which is that the law must afford adequate protection of fundamental human rights. This would not be universally accepted as embraced within the rule of law. My fourth sub-rule expresses what many would, with reason, regard as the core of the rule of law principle.
It is that ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers. This sub-rule reflects the well-established and familiar grounds of judicial review. It is indeed fundamental So to my fifth and penultimate sub-rule: that adjudicative procedures provided by the state should be fair. The rule of law would seem to require no less. Application of this sub-rule to ordinary civil processes is largely unproblematic, once it is remembered that not all decisions are purely judicial.
As the Chief Justice of Australia has pointed out, “the rule of law does not mean rule by lawyers. ” Finally Nepal has failed historically in complying with the “Rule of Law” in government practices and made itself world renowned for its ongoing tradition of impunity all time in all three branches of government. The question is “why Nepal has to be doomed with such traditions that perpetuate party favoritism, ethnic tribalism, religious superior-ism, familial nepotism, gang criminal-ism, and so on that overrule justice?”
There are many areas of Nepal in the government mechanism need regulations with the implementation logistics, which can bring all under the rule of law, particularly the executor (government official) and executed (the citizen who has violated the law) for justice. Nepal neither will succeed with democracy nor will become prosperous as long as it continues with the tradition of impunity under the domain of party favoritism, ethnic tribalism, religious superior-ism, familial nepotism, and criminal-gang-intimidation (mafia).
Nepal needs to focus on implementation procedures of regulation to address the diminutive issues of the society in everyday existence for both citizen and the government official to make accountable. Thinking only on the so called higher level of political ideologies – socialism and communism will not by long shot establish “Rule of Law” and do away with the tradition of impunity. But it will by setting up mandatory regulation implementation steps to address minor, yet important, issues of society.
Courtney from Study Moose
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