Current Public Administration Magazine (April - 2017) - The Concept Of The Rule Of Law

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The Concept Of The Rule Of Law

The rule of law, also called supremacy of law, is a general legal maxim according to which decisions should be made by applying known principles of laws, without the intervention of discretion in their application. This maxim is intended to be a safeguard against arbitrary governance (Rawls, 2003:206-207). The word "arbitrary" (from the Latin arbiter) signifies a judgment made at the discretion of the arbiter,rather than according to the rule of law. Generally speaking, law is a body o  rules prescribed by the state subject to sanctions or consequences. The predominant view is that the concept of "rule of law" per se says nothing about the "justness" of the laws themselves, but simply how the legal system operates. As a consequence of this, a very undemocratic nation or one without respect for human rights can exist with a rule of law - a situation which may be occurring in several modern dictatorships.

What is taken as the classical definition of the concept of the rule of law was given by A.V. Dicey (1958). In his conception, the rule of law means: ‘the absolute supremacy of regular law as opposed to the influence of arbitrary power, and exclude the existence of arbitrariness or prerogative or even of wide discretionary authority on the part of government’. This definition perceives the rule of law as a principle that seeks to curb government powers by insisting that governance should be in accordance with the laws of the land and not according to the arbitrary rule of office holders. It also implies that no man can be punished except for a proven breach of law. The other major element of the rule of law is the equality of all classes of people before the law as administered by the ordinary courts.

The rule of law is further defined as the “principle” that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedures. The principle is intended to be a safeguard against arbitrary governance. Today, the concept of rule of law has been expanded beyond the classic formulation provided by Dicey.

The doctrine is now recognised to include:

i. the supremacy of the law including judicial authority over all persons and authority in a state;
ii. the supremacy of the constitution;
iii. the independence of the judiciary;
iv. the right to personal liberty; and
v. observance of democratic practices including conduct of regular, free and
vi. fair elections as a basis for assuming political power

In short, rule of law stipulates that government is instituted and limited to its power according to the law and should be devoted to the preservation of the liberties of individual citizens, all of whom are deemed to be equal before the law. By guaranteeing civil rights, the rule of law also creates the basic conditions in which individuals can pursue their own personal development as they choose. The fundamental human rights of the citizens are defined and enforced by the law of the land. One of the main purposes of the rule of law is to ensure that the civil liberties of the citizens are safeguarded from the arbitrary interference of those in authority.

Limitations of Rule of Law

Thomas Jefferson, the third President of the United States in his Inaugural Address stated “equal and exact justice to all men of whatever state or persuasion, religious or political”. In other words, he was emphasising that all men are equal before the law. Under the portal of the Supreme Court building in Washington, United States, a similar injunction is scribble: “Equal Justice under Law”. These two quotes represent a statement of the desire of the government and citizens of the country but in reality, these precepts may not be observed or may even be reached on the altar of expediency. Abraham Lincoln, another famous American was once quoted to have said: “Let reverence for the laws be breathed by every American mother to the lisping babe that prattles on her lap, let it be taught in the schools, in the seminaries and in colleges”, but he was the first to suspend the habeas corpus in Maryland in the early days of the American Civil War in violation of U.S.’s constitution.

Woodrow Wilson found a precedent in Lincoln’s denial of rights to justify a similar action by the U.S. government during World War I. What happened in the two cases cited in the United States in the mid 19th century and early 20th century is that the two American Presidents abandoned the principle of justice upon which the doctrine of rule of law is based for the principle of expediency. In totalitarian states, there is no pretence about rule of law, because in those states the law and the courts are regarded as instruments of state policy. Put differently, the law is used to serve the interest of the strong to the detriment of the weak.

This is evident that violation of laws or denials of rights for political ends are not peculiar to African and other third world countries. The only difference is that why the abuse and violations are gross in developing societies there are subtle ways by which developed nations dress up or mitigate these denials where they cannot be avoided. We must also note that when compared with the other arms of government the legislature and the executive- the judiciary that is expected to ensure justice, is a cripple. Justice Samuel Miller of the United States once puts it succinctly:

Dependent as its courts are for the enforcement of their judgements upon officers appointed by the executive and removable at its pleasure, with no patronage and no control of the purse or the sword, their power and influence rest solely upon public sense of necessity for existence of a tribunal to which all may appeal...

The principle of equality before the law also has its limitations. The modern state maintains vast paraphernalia for the prosecution of alleged offenders, there is no such organisation for their adequate defence. For example, if a poor person steals conviction follows instantly; if a rich person steals, he is usually set free on the plea of nervous or mental trouble; but if directors of a company in high position pay no attention to the affairs of the company, they are not held responsible when the company is compulsorily liquidated, but if a petty official is confused in his accounts, charges of embezzlement are preferred against him or her. Worse still the legal aid council in Nigeria that is supposed to come to the assistance of the poor does not enjoy the required support from government that can enable it discharge its functions effectively. Fundamental human rights such as rights to life, freedoms of expression, association and movement also have their limitations, and can also be suspended or abridged.

Right to Life

A government can deny or deprive a citizen right to life under the following conditions: For the defence of any person from unlawful violence or for the defence of property in order to effect arrest or to prevent the escape of person lawfully detained and for the purpose of suppressing a riot.

Right to dignity of human persons

This states that no one shall be subjected to torture or inhuman treatment.-No person shall be held in slavery or be expected to perform forced labour except labour necessary in the event of any emergency threatening the life of a people in a state or compulsory labour for the members of the armed forces, compulsory national service which forms part of the education and training of the Nigerian citizens.

Right to personal Liberty

Conditions under which a citizen can be deprived of this right include if one commits a serious crime or fails to obey the order of court; for the purpose of one’s age or if one has infectious disease or is a person of unsound mind or to prevent unlawful entry into Nigerian or effecting expulsion from Nigeria. Under this right, the following factors must be considered in the case of an arrested person or a detainee; avoidance of false evidence against himself. -a detainee must be informed within 24 hours why he has been detained; shall be entitled to compensation and public apology if unlawful arrested.

Right to fair hearing

If for the case of this a tribunal is set up, the following procedures must be followed: the tribunal must seat in public, the person so affected must be allowed representation before the tribunal; the decision of the tribunal must not be influent by the government. For one charged with criminal offence shall be presumed innocent until he is proved guilty; informed promptly in the language he understands the nature of his offence; shall be given adequate time and facilities for the preparation of his defence; shall be allowed to defend himself in person or by legal practitioner of his own choice.

Right to freedom of expression

This emphasizes that individual is entitled to hold opinion, to receive and influence ideas and information without interference. Also every person has right to establish and operate any medium for the dissemination of information, ideas and opinions. Right to peaceful assembly and association, freedom of movement, right to freedom from discrimination and right to own property are also entrenched in the constitution. Most of these rights can be curtailed when a country is under emergency or under an undemocratic government. Also these rights are protected by the judiciary. Anyone whose rights are encroached upon can go to court to seek

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