CONSTITUTIONAL

LAW

Padam Pal
Ass.
Professor
Concept of Rule of Law
 It is undeniable that the Rule of Law is a significant and
pervasive ideal in contemporary law and politics.
 In fact, it has been called the most important political ideal
today.
 In the eyes of law, 'Rule of Law' refers to the rule according
to law, and it is the fundamental principle of the
constitution.
 It means limited government power and protects individual
rights.
 Universally, rule of law means law is supreme and all
people should be under the law.
Cont…
 The rule of law means openness, fairness and impartial.
The rule of law has two central features-legal certainties
and procedural fairness to focal notions of the rule of law
are;
 Human beings must be ruled by law,
 The law should be such that people should be guided by
law.
 The term Rule of Law means to provide justice, in
accordance with law. It means limited of government power
and protect individual right.
Cont…
 Universally, rule of law means law is supreme and all
people should be under the law. Which is the main spirit of
rule of law and further says that rule of law defines the law.
 It is an ancient ideal, and discussed by ancient Greek
philosopher such as Plato and Aristotle around 350 BC.
 Aristotle also endorsed the concept of rule of law by saying
that law should govern and those in powers should be the
servants of the law.
Cont…
 According to Organ's Dictionary of law, Rule of Law is
general statement and means that is indented that to guide
conduct, applied by government officials and supported by
an authorization source.
 According to Black's law Dictionary, the rule of law is a
legal principle of general application, sanctioned by the
recognition of authorities and usually expressed in the form
of maxim (a short) of logical proposition. The rule of law
sometimes is called the supremacy of law.
Cont…
 According to Cicero, Law is the means of achieving just
government for the maximum liberty of action is best
guaranteed by legal limitation.
 UN definition of Rule of Law is the rule of law 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.
Cont…
 According to Hindu Vedic concept, Happiness be unto all
perfect health being unto all; May all see what is good,
May all be free from suffering.
Cont…
 The rule of law is derived from the French phrase "La
Principle de Legality" which refers to government based on
principle of law, not of man and opposite to arbitrary power
 It means the supremacy of law, by which all element and
authorities derive their power.
 In general, the term, Rule of Law means rule according to
the law. The doctrine of rule of law has initially pronounced
by Prof. A.V. Dicey and it growth with administrative law
in England.
Cont…
 The natural law theorist (Cicero) saying, "Law is the means
of achieving just government for the maximum liberty of
action is best guaranteed by legal limitations. We are slave
of law in order that we might be free."
 Let us, therefore, return to the literal sense of ‘the rule of

law’. It has two aspects:

(1) that people should be ruled by the law and obey it, and
(2) that the law should be such that people will be able to be
guided by it.
Cont…
 The concept of rule of is very old concept. It is originated
and development from the ancient Greek period. We know
that many philosophers, thoughts, principle of jurists,
different declaration have significance role to promote the
rule of law in various law.
 Although credit for popularizing the expression "the rule of
law" in modern times is usually given to A. V. Dicey
, development of the legal concept can be traced through
history to many ancient civilizations.
Cont…
 The ROL is an ancient ideal discussed by both eastern and
western philosophy. It has been develop from ancient Vedic
era in eastern philosophy and ancient natural law school era
in western philosophy in different form.
 In ancient eastern philosophy, Dharm was taken as
synonymous of law. Veda was the main source of religious
law and Shurti, Smritis and Puran like Manusmriti,
Yagyabalkya Smriti, Sukraniti, Mahabharat and so on are
taken as the historical base of rule of law.
Cont…
 The essence of these Dharmasastric legal theories is based
on the existence on higher universal moral order based on
truth, purity of means and non violence which's bind all
man, all place and all time.
A.V. Dicey on Rule of Law (1835 - 1922)
 A.V. Dicey is considered as the founder of the rule of law
concept, who managed this concept in a systematic way
through his lectures in 1885. He presents the three values of
rule of law. The Rule of Law refers to various established
legal principles imposing limitations on governmental
authority. The Rule of Law then, which forms a
fundamental principle of the constitution, has three
meaning, or may be regarded form three different points of
view.
Absence of Arbitrary Power
 The government should be conducted within a framework
of recognized rule and principle, which restrict
discretionary power.
 The absence of arbitrary power means to acceptances the
supremacy of law.
 It is also on the principle of rule of law, not rule of man.
State is always responsible to the supremacy of law.
 A person can only be punished for a breach of an existing
law or regulation.
 Lastly, we say that only those statutes are banishing who
are against the constitution.
Equality Before the Law
 According to this principle, all people are equal in the eyes
of law and they can be proceeded against only in the
ordinary courts and in accordance with ordinary law. Thus
the rule of law guarantees equality before the law, that is,
all persons are subject to the same law.
 This principle laid down that no man is above law, every
man whatever is his rank or condition is subject to the
ordinary law of the realm (kingdom) and accepts the
jurisdiction of the ordinary tribunals.
Cont…
 The principle of equality before law is universally
recognized principle in all liberal democratic countries. The
principle is based on the well-known maxim "however high
you may be, law is above you" and all are equal before the
law.
Constitution; Result of the Ordinary Law of the
Land
 The general principles of the constitution (as for example
the right to personal liberty, or the right of public meeting)
are with us the result of judicial decision determining the
rights of private persons in particular cases brought before
the courts.
 It emphasize on the role of judiciary on the development of
general rule of constitution.
 In this sense, the customs, traditions, precedents and usages
effect constitution. The constitution development is active
as the consequence of court contribution on the area of the
protection of civil rights.
Cont…
 Thus, constitution is taken as result of common law, in the
sense.
 According to Dicey, the first and primary value of rule of
law is that everything must be done according to law.
 In second value of rule of law, he said all men are equal in
eyes of law and they can be proceeded against only in the
ordinary courts and in accordance with the ordinary law.
 The third value of rule of law, he expressed that the rule of
law must be used as a formula for expressing the rule of the
constitution.
Lon Luvois Fuller (1902 – 1978)
 There must be an existence of law; these laws must be
followed by government officials and all others.
 Law must be published.
 Law must not be retrospective.
 The law must be written with clarity.
 The law must not be contradictory.
 The law must not be impossible to follow.
 The law must be flexible enough to amend must be rigid
with time.
 The works of officials should not be against the
promulgated laws.
Cont…
 Fuller’s focus is on the ‘morality of law’. For Fuller, the
requirements of law, lay down the basic minimum
requirements, not just of a system in accordance with the
rule of law, but for the very existence of a system to which
he would accord the label ‘legal’. These basic prerequisites
(foundation) form the ‘morality of duty’ or ‘inner morality
of law’. These principles provide the foundations of a legal
system.
Joseph Raz (1939)
 All laws should be open, prospective and clear
 Laws should be relating stable
 The making of particular laws (particular legal orders)
should be guided by open, stable, clear, and general
principle
 The independence of the judiciary must be guaranteed
 The principles of natural justice must be observed
 The courts should have review powers over the
implementation of the other principles
 The court should be equally accessible.
 The discretion of the crime preventing agencies should not
be allowed to pervert (deprave/change) the law.
Evolution of Rule of law
 The concept of rule of law was first time used by Greek
philosophers to control government.
 Aristotle- government by law is better than government

by men
 Cicero (Roman period) focused on natural law as true

law, it is based on highest reason. According to him we

all are servants of the laws.
 Magna Carta 1215- Rulers are under law
 Petition of Rights, 1628
 Bill of Rights, 1689
 Montesquieu (1748)- the Spirit of Law
Cont…
 A.V.Dicey
 Principle of legality
 Principle of equality
 General rules of Constitutional law are result of ordinary
law of the land
Revolutions towards rule of law:
 British Glorious Revolution, 1688

 Bill of Rights, 1689

Cont…
 American revolution1776
 American Declaration of Independence, 1776
 American Constitution, 1787 and its amendments
 French Revolution, 1879
 Indian Independence Movement
 Universal Declaration of Human Rights, 1948
Leading cases
 On 1803 A.D. in America on the case Marbury v. Madison
{5 U.S. 137, 1 Cranch 137, 2 L. Ed. 60 (1803)} the federal
court of America declared unconstitutional to the judiciary
act, 1789. In this case the Court says that a law repugnant
(disgusting) to the Constitution is void. It established the
concept of judicial review, that the court may oversee,
nullify and abrogate (repeal) the laws which are
inconsistency with constitution.
 It is also established the norms that the rule of bad and
unconstitutional law should not be subject of law.
Cont…
 In the case of Brown v. Board of education, the court
ensured that the student of black and white both can study
in one school. These cases tried to ensure the concept of
equality before law.
 Keshavananda Bharati V. State of Kerala,1973
 the doctrine of rule of law was recognized as a basic
structure of the constitution.
Cont…
 Indian judiciary also has played vital role on different case
to ensure rule of law and its different content. On the case
Menuka Gandhi v. Union of India {I SCC 248: AIR 1978
Sc 597, (1978).}, however judicial review has acquired the
same or even wider dimension as in United States. The
court set that the system of government should be
regularized by reasonable, pure justifiable, process of law.
In this case, court held that, procedure established by law in
article 21 does not mean any procedure lay down by the
legislature but means a fair, just and reasonable procedure.
Cont…
 In the case Indra Neharu Gandhi v. Raj Narayan {AIR 1975
Sc 2295, (1975)} it has been held that the rule law pervades
the constitution as its basic feature and cannot be taken
away even by an amendment of the constitution.
 In the case A.K. kraipak v. Union of India {2 SCC 262, 269
(1969}. the court held that the rule of law pervades the
entire field of administration and regulates every organ of
the state. The concept of rule of law would lose its validity
if the instrumentalities of the state are not charged with the
duty of discharging their function in a fair and just manner.
Basic principles of Rule of Law
 According to world justice project;
 Accountability: The government as well as private actors

are accountable under the law.

 Just law: The laws are clear, publicized and stable.

Protect fundamental rights, including the security of

persons and contract, property and human rights.
 Open government: The processes by which the laws are

enacted, administered and enforced are accessible, fair

and efficient.
Cont…
 Accessible justice: Justice is delivered timely by
competent, ethical and independent representatives and
neutrals who are accessible have adequate (sufficient)
resources and reflect the makeup of the communities
they serve.
Basic principles of Rule of Law
 Supremacy of law:
 Absence of Arbitrary power
 Legality of governmental action
 Equality before law/equal protection of law
 Principle of bias
 Right to hearing
 Reasoned decision
 Independent judiciary
 Right to judicial review
 Doctrine of ultra-vires
Cont…
 Predictability in-
 Judgment
 Administrative decision
 Consequences of punishment
 Law should be clear, transparent and stable
 Law making process should be open stable clear and guided
by general principle of law
 Respect to principle of natural justice
 Easy access to court
 Free and fair criminal investigation system
 Theory of separation of power and check and balance
Rule of law in Nepal
 More or less, the concept of rule of law was introduced in
our previous constitutions
 The Constitution of Kingdom of Nepal, 1990 and the
Interim Constitution of Nepal, 2007 were included so many
principles of rule of law in Nepal.
 Present Constitution of Nepal:
 Adopted democratic norms and values
 Supremacy of law-Article 1 (Constitution as the
fundamental law)
 Doctrine of ultra vires –(Article 1,133)
Cont…
 Equality before law and equal protection of law –(Article
18)
 Independent judiciary with power of judicial review (Part
11)
 Limited government/responsible and accountable
government
 Protection of fundamental rights (Article-16 to 46
 the state shall make legal provisions for the
implementation of rights…(Article-47)
 Separation of power and check and balance
 Right relating to justice – (Article -20)/perfect criminal
procedure
Some decided cases by Supreme Court
1. Bharatmani Jungam & Others vs. Office of the
President & Others (53 NKP 1 (2068)
 It is unreasonable through the view point of the

constitutional jurisprudence to unusually extend its time

period by the Constituent Assembly itself so as to create a
limitless and uncertain situation.
Cont…

2. Advocate Shree Krishna Subedi and Ram Krishna

Kafle on behalf of INHURED International vs.
President Ram Baran Yadav et al. (54 NKP 1733 (2069)
 The Supreme Court declared that president as the head of

the state neither has constitutional privilege nor immunity

under the Interim Constitution
 Recommending authority should be answerable for any

kind of decision taken by the head of the state

Cont…

3. Balkrishna Neupane vs. Vice-president Paramananda

Jha (51 NKP 562 (2066)
 There is no supreme person above the constitution.
 According to Article 1(2), it is the duty of every person

upholds this constitution.

 Supreme Court declared that oath of Vice President in

Hindi language is void.

Cont…

4. Meera Dhungana et. al. on behalf of FWLD vs.

Ministry of law Justice and Parliamentary Affairs et.
al.,
 The provision in the civil code which allows men to

divorce women on the grounds of women's infertility is

contrary to the Constitutional guarantee to equality. "The
provision in the husband and wife relations section of civil
code has been declared ultra vires.”
 Justices ordered the government to promulgate an equal

law on the husband and wife relation in the civil code.

Cont…

6. Surya Prasad Sharma Dhungel vs. Godawari Marble

Industries et. al.,
 clean and healthy environment is the part of right to file

under Article 12(1) of the Constitution.

 The Supreme Court issued the directive order to enact the

necessary legislation for protection of air, water, sound and

environment and to take action for the protection of
Godawari area.