The Rule that shields humanity with one stroke

Excerpt from the keynote speech given by Desmond Fernando, PC to The Hague Institute of International Law at The Hague Peace Palace on 26th October, 2007

The Rule of Law in some form may be traced back to Aristotle. However, it was in his influential book "The Law of The Constitution" that Professor A.V. Dicey brought the concept into modern discourse. To him it was one of the two important features of the English Constitution (The other being the supremacy of Parliament). He stated "England is a country governed, as is in no other part of Europe, under the Rule of Law". Foreign observers such as Voltaire and de Tacqueville were also struck by this aspect of the Rule of Law, which contrasted with the arbitrary rule in other countries including France.

Dicey stated , "In England the idea of legal equality, or of the universal subjection of all classes to one law administered by the ordinary courts, has been pushed to its utmost limit. With us every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen".

Nelson Mandela adopts the definition of the Rule of Law given by Professor A.S. Mathews. "Material or substantive justice is a praiseworthy goal, but the late Professor A.S. Mathews, one of the leading writers on the subject of the rule of law in South Africa, warned that the concept of the rule of law should not be defined so widely that it has no meaning. On the other hand, Mathews recognised that procedural justice is impossible unless certain basic rights are recognised. Accordingly he defined the rule of law as follows:

Government according to the rule of law means, that with a view to the preservation of the basic rights, enumerated in (b) the relevant laws shall take the form of pre-announced, general, durable and reasonable precise rules administered by regular courts or similar independent tribunals according to fair procedures.

The basic freedom of person, conscience, speech, information, movement, meeting and association shall be equally guaranteed by the law to all citizens of the society. Any limitations on the civil rights of freedoms enumerated in (b) shall be in the form of rules conforming to the requirements of legality expressed in (a). Furthermore, restrictions on the basic freedoms shall be limited in scope and, except in times of genuine crises or emergency, shall not encroach upon essential content of such freedoms".

Significantly by 1948 the relationship between Human Rights and the Rule of Law came to be recognised. The preamble to the Universal Declaration of Human Rights states "whereas it is essential if man is not to be compelled to recourse as a last resort, to rebellion against tyranny and oppression, that Human Rights should be protected by the Rule of Law.

Nelson Mandela, by quoting Professor A.S. Mathews included certain rights set out in the Universal Declaration of Human Rights as being incorporated in the Rule of Law.All these definitions are stipulative definitions: they state that this is what the Rule of Law ought to be. There may also be lexical definitions namely, how the Rule of Law has been understood.However, the relationship between the Rule of Law and Human Rights must now be addressed as stated in the preamble to the Universal Declaration of Human Rights, namely that human rights should be protected by the Rule of Law. I shall base my views on the paper by Professor Jeffrey Jowell titled 'The Rule of Law Today'.

The first of these qualities was certainty. The virtue of rule-bound conduct was principally that it allowed affected persons to know the rules before being subjected to them retrospectively. However, it was also a principle of justice under which no person should be condemned without a presumed knowledge of the rule alleged to have been breached.

There is a principle contained in the Rule of Law that individuals should not have decisions made about their vital interests without an opportunity to influence the outcome of these decisions. The English Courts have affirmed the principle of procedural fairness even where the statute conferring the power to decide was silent on the matter.

No person is exempt from the rights granted by the Universal Declaration. The Rights are enjoyed by all: rich and poor. The role of equality in the Rule of Law is instrumental: it is there to buttress the central values of certainty. The precise relation today between the Rule of Law and Human Rights is set out in the phrase in the preamble of the Universal Declaration of Human Rights, viz "that Human Rights should be protected by the Rule of Law". The preamble did not go on to define the Rule of Law. Thus, the meaning and definition to be given to the Rule of Law is a lexical one: namely what people in 1948 understood by the phrase "the Rule of Law". Clearly it could not have been or included "Human Rights". This is literally meaningless. We have thus with great respect to disagree with the definition given by Professor Mathews and cited by Nelson Mandela.

Ultimately we have to begin with Dicey and go on to Professor Jowell's paper on "The Rule of Law today in the changing Constitution" in order to ascertain precisely what the Rule of Law means today.

First we have to begin with Dicey's proposition that no one is above the law – not even the highest holder of political office. Then we have to go on to the qualities cited by Professor Jowell and set out in detail earlier in this paper namely certainty, procedural fairness and equality.

The Rule of Law is a developing concept. In recent times, it has been the subject of much study and analysis. The American Bar Association has taken the excellent initiative to quantify the Rule of Law. The International Bar Association is working on the relationship between the Rule of Law and Human Rights.

Today the United Nations has taken great pains to articulate a detailed definition of the Rule of Law. Today, we have to take this definition as authoritative. The definition is as follows:- The "Rule of Law" is a concept at the very heart of the Organization's mission. It refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.

{Desmond Fernando is a Past President of the Bar Association of Sri Lanka, a Past President of The International Bar Association and a Bencher & Barrister-at-Law of Lincoln's Inn and gave the inaugural address to the International Meeting of Experts on the Rule of Law convened by the American Bar Association on 20th September, 2007}