CONSTITUTIONAL LAW

BY

MUHAMMAD WAQAS HARAL

SECTION OFFICER, ESTABLISHMENT DIVISION, ISLAMABAD/
DEPUTY DISTRICT PROSECUTOR, FEDERAL PROSECUTION DEPARTMENT, ISLAMABAD
 RULE OF LAW

• Origin of Rule of Law

• The origins of the Rule of Law theory can be traced back to the Ancient Romans during the formation of the first
republic;
• Aristotle argued that a state should be governed by laws that are just, clear, and impartial. This principle seeks to
prevent the abuse of power and ensure that decisions are made based on established rules rather than personal
whims.it has since been championed by several medieval thinkers in Europe such as Hobbs, Locke and Rousseau
through the social contract theory.
• • Indian philosophers such as Chanakya have also espoused the rule of law theory in their own way, by maintain that
the King should be governed by the word of law. The concept of Rule of Law is that the state is governed, not by the
ruler or the nominated representatives of the people but by the law. • The expression 'Rule of Law' has been derived
from the French phrase 'la principle de legalite', i.e. a Government based on the principles of law.
 RULE OF LAW

• Definition of Rule of Law

• According to Edward Coke , “Rule of Law means: A) Absence of arbitrary power on the part of the
Government. B) No man is punishable or can be made to suffer in body or good except for a distinct breach of
law established in the ordinary legal manner before the ordinary courts of the land.
• As per Prof. A.V.Dicey, “the rule of law means the absolute supremacy or predominance of the regular law as
opposed to the influence of arbitrary power and excludes the existence of arbitrariness or even of wide
discretionary authority on the part of the government.” (The Law of the Constitution)
• • Dicey regarded rule of law as the bedrock of the British Legal System: ‘this doctrine is accepted in the
constitutions of U.S.A. Pakistan and India.
 DICEY’S RULE OF LAW

• Prof. Dicey, rules of law contains three principles or it has three meanings as stated below:
• 1. Supremacy of Law : The First meaning of the Rule of Law is that 'no man is punishable or can lawfully be
made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner
before the ordinary courts of the land
• 2. Equality before Law : the Second meaning of the Rule of Law is no man is above law
• 3. Predominance of Legal Spirit :Third meaning of the Rule of Law is the general principles of the
constitution are the result of juridical decisions determining file rights of private persons in particular cases
brought before the Court
 RULE OF LAW

• Dicey’s Rule of Law

• The Rule of Law, in its most basic form, is the principle that no one is above
the law. The rule follows logically from the idea that truth, and therefore law,
is based upon fundamental principles which can be discovered, but which
cannot be created through an act of will.
 RULE OF LAW

• Critical Analysis of Dicey’s Rule of Law

• • Rule of Law imposed and helped in imbibing a sense of restraint on administration. The government was bound to
work within the legal framework. Further, by stating that the law is supreme, he made every law made by the
legislature supreme, thus, promoting parliamentary supremacy. There cannot be self-conferment of power as even an
ordinary law is supreme. All laws, public or private, are being administered by the same set of independent and
impartial judiciary. This ensures adequate check on the other two organs. • Nonetheless, on the other hand, Dicey
completely misunderstood the real nature of the French droit administratif. He thought that this system was
designed to protect officials, but the later studies revealed that in certain respects it was more effective in
controlling the administration than the common law system. The reality is that French Conseil d’ Etatis widely
admired and has served as model for other countries as well as for court of justice for European communities. He
also did not realise the need for codification of laws which could lead to more discretion, thus hampering Rule of
Law.
THE MODERN CONCEPT OF THE RULE OF LAW

• In modern sense the rule of law means supremacy of the Constitution in the countries
with written constitution. it also means observance with the law existing are to be
framed which is not repugnant to the constitution. it also means conforming to the
developed modern concepts of constitutional law which have attained universal
acceptance. These concepts involves dew process of law, equality before law,
independence of judiciary, separation of power and enforceability of human rights and
civil liberties as propounded in every constitution.
RULE OF LAW IN USA

• USA constitution rest on the belief that no one in power should be above the law. Even
the legislature, the people’s elected representatives should be bound to respect the
principles and limitations contained in the supreme law of the land. This subordination of
government to law was seen by the framers of constitution as means of protecting
individual’s right to life, liberty and property.
 RULE OF LAW AND INDIAN CONSTITUTION

• The Constitution of India provides that the constitution shall be the supreme
power in the land and the legislative and the executive derive their authority
from the constitution. Any law that is made by the legislative has to be in
conformity with the Constitute failing which it will be declared invalid, this is
provided for under Article 13 (1).
• •Article 21 provides a further check against arbitrary executive action by stating
that no person shall be deprived of his life or liberty except in accordance with
the procedure established by law
 RULE OF LAW AND INDIAN CONSTITUTION
(CONTD)
• Article 14 ensures that all citizens are equal and that no person shall be discriminated on the basis of sex,
religion, race or place of birth, finally it ensures that there is separation of power between the three wings
of the government and the executive and the legislature have no influence on the judiciary. By these
methods, the constitution fulfils all the requirements of Dicey’s theory to be recognized as a country
following the Rule of Law.
• Justice Rajagopala Ayyangar's views on the rule of law ‘that the constitution ensure and guarantees the rule
of law and article 226 is designed to ensure that each and every authority in the state including the
government, acts bonafide and within the limits of its power and we consider that when a court is satisfied
that there is an abuse or missuse of power and its jurisdiction is invoked, it is incumbent on the court, to
afford justice to the individuals.
 RULE OF LAW AND INDIAN JUDICIARY

• •The Indian Judiciary has played an instrumental role in shaping Rule of Law in India. By adopting a positive
approach and dynamically interpreting the constitutional provisions, the courts have ensured that the Rule of
Law and respect for citizens’ rights do not remain only on paper but it is also avalaible in the society.
• In Bachhan Singh v. State of Punjab, it was held that the Rule of Law has three basic and fundamental
assumptions. They are- 1) There must be independent judiciary to protect the citizens against excesses of
executive and legislative power. 2) Even in the hands of the democratically elected legislature, there should not
be unfettered legislative power; and Law making must be essentially in the hands of a democratically elected
legislature;
 RULE OF LAW IN PAKISTAN

• The government in Pakistan is under a written constitution; therefore, the written constitution is the rule of
law.
• Right of individuals to be dealt with in accordance with law, etc. Art 4. (1) To enjoy the protection of
law and to be treated in accordance with law is the inalienable right of every citizen. Wherever he may be,
and of every other person for the time being within Pakistan.
• (2) In particular— (a) no action detrimental to the life, liberty, body, reputation or property of any person
shall be taken except in accordance with law;
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c) no person shall be compelled to do that which the law does not required him to do.
RULE OF LAW IN PAKISTAN

• The former Chief Justice Mohammed Munir in his commentary on the constitution of
1973 stated ‘that constitution conferred the right which is more basic than fundamental
rights because while the fundamental rights can be suspended, the right given by article 4
cannot.’
• Laws inconsistent with or in derogation of Fundamental Rights to be void (Art 8).
• Safeguards as to arrest and detention Art.10.
• Equality of citizens Art. 25