Rule of Law Notes

Rule of Law Definition

The rule of law means the law applies equally to all, regardless of rank or status. It is essential for upholding rights and liberties, ensuring justice, and measuring government actions under the law.

Lord Bingham identified eight principles:

• Accessible, clear, and predictable law.
• Legal rights resolved by law, not discretion.
• Equal application, except with objective justification.
• Ministers act within their powers.
• Adequate protection of fundamental human rights.
• Access to justice, especially for resolving disputes.
• Fair court and tribunal processes.
• State compliance with international law.

Aristotle believed the 'Rule of Law' is preferable to any individual's rule. Declarations like the American Declaration of Independence (1776) and the French Constitution (1791) were influenced by Enlightenment philosophy, emphasizing equality and inalienable rights.

The Universal Declaration of Human Rights (1948) and the European Convention for the Protection of Human Rights (1953) are modern pronouncements.

The Declaration of Delhi (1959) identified four fundamentals:

• Legislature ensures good government and upholds human rights.
• Executive ensures delegated functions are subject to judicial review.
• Criminal process ensures fair trials with presumption of innocence.
• Independent judiciary and autonomous legal profession.

Public authorities should be subject to the same laws as ordinary citizens, administered in ordinary courts.

The Supreme Court can review Acts of Parliament and actions of public functionaries. Successful findings for plaintiffs alleging unlawful exercise of authority support the rule of law.

Dicey and the Rule of Law

Professor Dicey defined the rule of law with three principles:

1. No punishment except for distinct breach of law established in ordinary courts.
2. No one is above the law; all are subject to ordinary law and tribunals.
3. General constitutional principles result from judicial decisions determining rights of private persons.

Rule of Law in Commonwealth Caribbean Constitutions

Professor Fiadjoe submits that the Rule of Law means state power is exercised according to law and subjugated to the constitution.

Key aspects include:

• Supremacy of the Constitution: Reconciling Parliament's power with the rule of law.
• Bill of Rights: Provisions for fundamental rights and freedoms with right of redress.
• Separation of Powers: Prevents arbitrary power through checks and balances. $DPP v. Mollison$ exemplifies the separation between judicial, executive, and legislative powers.
• Due Process: Guaranteed protection of procedural fairness.
• Independent Judiciary: Essential for a free society.

Executive Authority and the Rule of Law

In $Hochoy v. Nuge$, the court emphasized that all persons, irrespective of rank, must act within the law.

Legislative Authority and the Rule of Law

The Privy Council held that decisions made by an improperly constituted tribunal were null and inoperative in Bribery Commission v. Ranasinghe.

Judicial Authority and the Rule of Law

In $Maharaj v. Attorney General of Trinidad of Tobago (No. 2)$, the Privy Council ruled that the High Court has jurisdiction to hear claims of infringed fundamental rights and can grant monetary compensation for contraventions.

State Institutions Including the Police and the Rule of Law

The police, like all state functionaries, are subject to the rule of law.

Rule of Law as Equality

Even insurrectionists are entitled to equality in the law.

In $Lennox Phillips v DPP (PC)$, the Privy Council held that applicants who were beneficiaries of a valid pardon were entitled to a writ of habeas corpus.

In Pratt & Morgan v AG of Jamaica (PC), executing a death sentence after unconscionable delay was deemed inhuman, contravening constitutional rights.