UNIVERSITY OF PETROLEUM & ENERGY STUDIES, DEHRADUN

SCHOOL OF LAW

PROJECT

RULE OF LAW AND COURTS IN DEMOCRAZING REGIMES:

COMPARATIVE STUDY- UK & CANADA

SUBMITTED BY: SUBMITTED TO:

DIVYANSH BHARGAVA Mr. SAM BABU KC

R154216042 Asst. Professor

B.A. LLB (Constitutional Law) B2, VII SEMESTER

500052812
 CHAPTER- 1

INTRODUCTION

“In simple terms, democracy focuses on how societies select those who will hold power, while
the rule of law is concerned with how political power is exercised. The underlying premise of
rule of law implies that every citizen is subject to and accountable under the law, including law
makers and those in government positions. In this sense, the rule of law seems to encourage
governance through democracy created for and by the people, as much as it stands in stark
contrast to the concepts of dictatorship, autocracy and oligarchy where those in positions of
power and governance conduct their affairs outside and above of the purview of the law. In its
truest sense, rule of law governance is called a “nomocracy”, from the Greek nomos (law) and
kratos (rule). Today, democracy is the most closely aligned with rule of law governance.”

“Building democracy and the rule of law may be mutually reinforcing processes. The rule of law
is a critical factor for the advancement of democracy, rooted in equal rights and accountability.
By strengthening the rule of law, we protect the rights of all people, advance inclusiveness, and
limit the arbitrary exercise of power, which are the cornerstones of modern democracy.”

“The term ‘Rule of law’ is derived from the French phrase ‘la principe de legalite’ which means
the ‘principal of legality’. It refers to ‘a government based on principles of law and not of men’.
In other words, the concept of ‘la Principe de legalite’ is opposed to arbitrary powers. ”

“The ‘rule of law’ refers to a principle of governance in which all persons, institutions and
entities, public and private are accountable to laws that are publicly promulgated, equally
enforced and independently adjudicated, and which are consistent with international human
rights norms and standards.1”
The Principles for the Rule of Law

There are four principles which describe the rule of law as follows:

1
United Nations Security Council, “The rule of law and transitional justice in conflict and post-conflict societies”,
S/2004/616 at para. 6
 1. “Accountability- The government as well as private actors are accountable under the
law. ”
2. “Just Laws- The laws are clear, publicized, and stable; are applied evenly; and protect
fundamental rights, including the security of persons and contract, property, and human
rights.”
3. “Open Government- The processes by which the laws are enacted, administered, and
enforced are accessible, fair, and efficient.”
4. “Accessible & Impartial Dispute Resolution- Justice is delivered timely by competent,
ethical, and independent representatives and neutrals who are accessible, have adequate
resources, and reflect the makeup of the communities they serve.”

There are number of elements of Rule of law which are as follows:

a) Abhorrence of arbitrary power:

“Every person in society is governed by law, including governmental officials and law-
enforcement officials. The court can apply the doctrine of ultra vires equally to every
government agency and official for acts that are outside the authority conferred by law. Also, a
person can only be punished for a breach of an existing law or regulation, and never for breach
of a law not existing at the time doing something. ”

b) Equality before the law:

“Courts must apply laws equally to all people regardless of their race, class wealth, religion, etc.
Every accused person should be entitled to a fair trial, to be informed of the allegations against
have an opportunity to rebut the charge against him, to have an opportunity to rebut the charge
against him and to have his conduct assessed by impartial judges. ”

c) A formal, rational court system:

“Formality and rationality describe a system with much predictability and little discretion, a
system with regular, open and stable procedure. The advantage of such a system is that its
behavior is consistent and objectively verifiable.”

d) Judicial independence and separation of powers:

“The judiciary should be independent of the legislative and executive, and every judge should be
free to decide matters before him without any improper influences, inducements or pressures.”

“The power of a government should be spit into three are adequate checks and balances to
minimize the possibility of the abuse of power. All state functionaries must at all times act in
accordance with the law and no act of state should be autocratic, oppressive, capricious or
against the law. ”

WHO MAKES THE LAW IN A DEMOCRATIC SOCIETY?

“In a democracy, the power to make laws is held by a branch of the government called the
legislature. In the legislative chamber, politicians (usually elected to represent the views of the
voters) introduce new laws and debate them. Through discussion and compromise, they try to
gain support for a law and organize a vote on it. The majority of members must approve a law
before it can be put into effect. ”

“The Declaration adopted on 24 September 2012 by the United Nations General Assembly at the
High-level Meeting on the Rule of Law at the National and International Levels reaffirmed that
"human rights, the rule of law and democracy are interlinked and mutually reinforcing and that
they belong to the universal and indivisible core values and principles of the United Nations".2
Indeed, government responsiveness to the interests and needs of the greatest number of citizens
is strictly associated with the capacity of democratic institutions and processes to bolster the
dimensions of rights, equality and accountability. ”

“A common feature of both democracy and the rule of law is that a purely institutional approach
does not say anything about actual outcomes of processes and procedures, even if the latter are
formally correct. When addressing the rule of law and democracy nexus, a fundamental
distinction has to be drawn between "rule by law", whereby law is an instrument of government
and government is considered above the law, and "rule of law", which implies that everyone in
society is bound by the law, including the government. Essentially, constitutional limits on
power, a key feature of democracy, require adherence to the rule of law. ”

2
See para. 5 in "Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National
and International Levels" (A/67/L.1), 19 September 2012,
“A practical example of the importance of the rule of law for democracy building is the fact that
the rule of law is a fundamental principle embraced in most modern democracies. Constitutions
contain the fundamental and, most often, supreme law of the State, and the rule of law dictates
the enforcement of those principles above all other laws. Constitutions also preserve fundamental
principles and values by making the process of amendment burdensome. Some constitutions
ensure the permanence of certain principles and values by prohibiting amendments. The
judiciary, which applies the law to individual cases, acts as the guardian of the rule of law. Thus,
an independent and properly functioning judiciary is a prerequisite for the rule of law which
requires a just legal system, the right to a fair hearing and access to justice.3 ”

“Constitutions do much more than establish a government and regulate its relationships with
citizens. In many countries, they have also become crisis management tools. The benefits of
constitutions designed for conflict-affected and deeply divided States hinge on their ability to
reconcile groups, to address intolerable grievances and to prevent further polarization and
conflict deterioration. Also in this area, national ownership is of the utmost importance. The
choice of process should be left to national constitution builders who are able to prevail in the
local context. Constitutional design suited to the requirements of managing conflict has had some
degree of success. At the same time, other factors such as economic inequality are increasingly
important determinants in new demands for constitution building. ”

“Electoral justice provides another example of the linkages between democracy and the rule of
law. Electoral justice ensures that every action, procedure and decision related to the electoral
process is in line with the law and that the enjoyment of electoral rights is protected and restored,
giving people who believe their electoral rights have been violated the ability to file a complaint,
get a hearing and receive an adjudication. An electoral justice system is a key instrument of the
rule of law and the ultimate guarantee of compliance with the democratic principle of holding
free, fair and genuine elections.4 ”

3
International IDEA, A Practical Guide to Constitution Building: Principles and Cross-cutting Themes, Stockholm
2012, pp. 17-18,
4
International IDEA, Electoral Justice: The International IDEA Handbook, Stockholm 2010, p. 9,
 CHAPTER- 2

THEORITICAL DIMENSION

“The British people strongly believed in the Divine Theory of State. The king was given the
power to govern the people by the Divine Authority (God). This theory propagates that, “King
can do no wrong, king is above law”. Parliamentary Democracy based on the principle of
equality rooted in Britain. All persons are governed by the same law and same set of rules and
regulations is called the Rule of Law.”

“The Rule of Law was first originated by Sir Edward Coke, the Chief Justice in England at the
time of King James I. Coke was the first person to criticise the maxims of Divine Concept. He
strongly believed that the King should also be under the Rule of Law. The Rule of Law doctrine
was later developed by A.V. Dicey in his book, “Introduction to the Law of Constitution
(1885).” The Rule of Law according to Dicey means that no man is punishable or can be
lawfully made to suffer in body or goods except for distinct breach of law and no man is above
the law. The term Rule of Law thus, means the paramountcy of Law over Government.”

“Three principles proposed by A.V. Dicey in his book ‘‘The Law of the Constitution (1885)’’

1. Absolute supremacy of Law

2. Equality before law
3. Predominance of legal spirit.”

“Dicey’s rule of law consists of following three meanings:”

1. “Equality before the law: Dicey says it emphasises the impartiality of law. It means that
there shall be no distinction between the rich and the poor, officials and non-officials,majority
and minority, no one can be degraded and no one can be upgraded. Law gives equal justice to
all.”

2. “Rule of Law alone: The Rule of Law rejects all kinds of arbitrary and discretionary powers
of the government or public officials. It implies that a man may be punished for a breach of law
but he can’t be punished for anything else. An alleged offence is required to be proved before the
ordinary courts in accordance with the legal procedure.”
3. “Constitutional Law stems from ordinary law: It is generally presumed that the written
constitution is the source of legal liberties of citizens. However, it is not true as Britain has an
“unwritten Constitution.” Legal spirit is the real source of law in England. The legal spirit is seen
in its customs, conventions and judicial decisions. Dicey opines that the individual rights and
liberties are more safely protected in Britain than France.””

“The basic features of Rule of Law as per Dicey:

a) Law does not recognise any special rights for any individual or group of individuals.
b) Law does not recognise any distinction between one individual and the other on the
basis of religion, race, sex, etc.
c) None is punished without proper trial.
d) All will be tried by the same court under the same law.
e) The rule of law does not give scope to absolute and arbitrary powers to the executive.”

“Today Diecy’s theory of rule of law cannot be accepted in its totality. The modern concept of
the rule of law is fairly wide and therefore sets up an ideal for any government to achieve. This
concept was developed by the International Commission of Jurists. Known as Delhi Declaration,
1959 which was latter on confirmed at logos in 1961.”

“According to this formulation- “The rule of law implies that the functions of the government in
a free society should be so exercised as to create conditions in which the dignity of man as an
individual is upheld. This dignity requires not only the recognition of certain civil or political
rights but also creation of certain political, social, economical, educational and cultural
conditions which are essential to the full development of his personality”.”

According to Davis, there are seven principal meanings of the term “Rule of law:

1. law and order

2. fixed rules
3. Elimination of discretion
4. Due process of law or fairness
5. Natural law or observance of the principles of natural justice
 6. Preference for judges and ordinary courts of law to executive authorities and
administrative tribunals
7. Judicial review of administrative actions.

“So finally it may correctly be said that rule of law does not mean and cannot mean any
government under any law. It means the rule by a democratic law-a law which is passed in a
democratically elected parliament after adequate debate and discussion.”

CHAPTER- 3

WORKING OF RULE OF LAW AND DEMOCRACY CASE STUDY- UK &

CANADA

UNITED KINGDOM

“The Rule of law, in UK, was developed over the centuries as a brake on arbitrary power. The
modern concept of Rule of law owes much to the great battles between the English kings and
their subjects, the struggle for supremacy between parliament and Stuart kings, and finally the
war between the British Empire and its American Colonies. ”

“In UK, Sir Edward coke is said to be the originator of this concept, when he said that the king
must be under the god and law and thus vindicated the supremacy of law over the pretensions of
the executives. Later, Prof. Albert Venn Dicey developed this concept. He was an individualist.
He wrote about the concept of rule of law at the end of the golden Victorian era of laissez faire in
England. That was the reason why Dicey’s concept of the rule of law contemplated the absence
of wide powers in the hands of governmental officials. According to him, wherever there is
discretion, there is room for arbitrariness. ”

“The rule of law is a fundamental doctrine by which every individual must obey and submit to
the law, and not arbitrary action by other people of groups. In essence, no one is above the law.
The United Kingdom does not have a written constitution. The United Kingdom is a
constitutional monarchy in which the reigning monarch, either the King or Queen who is the
head of the state and the sovereign, does not make any open political decisions. The
responsibility of making political decisions is left to the government and the Parliament. The
Parliament plays a vital role in upholding the rule of law in the United Kingdom’s constitutional
system. Both House of Lords and House of Commons are important to ensure that the
government is abiding by the rule of law and the proposed legislation is not in the breach of the
rule of law. However, to what extent the United Kingdom upholds the rule of law should be
discussed.”

“In the UK, the rule of law functions in two ways: firstly, that courts should interpret legislation
in a way that gives effect to the rule of law; secondly, that the rule of law determines the validity
of government action and some legislation. This is how the rule of law functions, but opinions
vary on what the concept known as the rule of law means. ”

“The rule of law comprises a number of fundamental principles and values.”

“Legal certainty- The principle of legal certainty means that all laws enacted in the UK must be
applied in a precise and predictable manner. This means when legislation is passed to convey a
particular purpose, this purpose is carried out within the law. Everyone must be able to have their
conduct regulated in a manner that is certain. ”

“Therefore, the laws under which someone is convicted and punished should be passed in the
correct legal manner – and that a person’s guilt should only be established through the ordinary
trial process. ”

“Equality- The rule of law requires that every case which is alike should be treated the same.
Each citizen has the right to be protected from unjust discrimination from the state: the state
cannot say that one person is below or above another in law, regardless of their rank or status.
The law also states that a person cannot be treated unfairly by the state due to their ethnic, sexual
or religious views. ”

“AV Dicey, who first outlined the rule of law and parliamentary sovereignty, believed that
equality before the law was extremely important – that officials should be dealt with by the same
court as the ordinary citizen, demonstrating to the general masses that the government was not
being unjustly lenient on an official. ”
“Fairness- All laws and procedures must be freely available to each citizen, and laws which are
written down must also be legible to ensure clarity, and prevent unfair discrimination and
enforcement. The rule of law also means that the law must be understandable, and the
terminology must not be such that a person cannot understand it; nor should legislation be too
ambiguous that the reason for its enactment be lost. ”

“Retrospective legislation- The rule of law requires that laws must not be retrospective: a
person cannot be tried for an offence if the conduct or behaviour was not an offence when the
person committed it. However, this aspect of the rule of law is being watered down, with some
legislation having retrospective effect. This means some laws can effectively be broken – before
they have even come into force. Two examples are: under the War Crimes Act 1991, and some
laws relating to taxation. ”

“Due process- Due process means a person will be imprisoned, or otherwise punished, if there is
substantial and sufficient evidence of their guilt. Due process is particularly concerned with
people receiving a fair trial rather than proving their guilt. If a person’s liberty is taken away
from them and the courts cannot demonstrate their guilt by evidence, then they may be entitled to
be awarded damages for the loss of their personal liberty. ”

“A notable case that purported to establish the rule of law in the UK was the case of Entick v
Carrington.5 This case showed that the police must show lawful authority (a power conferred on
them by law) to enter a person’s private property and seize personal property. Here, police
officers went into Entick’s property and seized personal papers without having a warrant, leading
to his arrest and loss of his personal liberty. A fundamental value under the rule of law is that a
person cannot lose their personal liberty unless it can be proved that they broke the law. ”

“The United Kingdom (UK) is a democracy. A democracy is a country where the people choose
their government. In the UK there are too many people to ask and too many decisions to take,
therefore representatives are elected to make decisions. Representatives include Members of
Parliament (MPs), Members of the Scottish Parliament (MSPs) (representing the population
living in Scotland) and local councilors.”

5
(1765) 19 St Tr 1030
“The UK Parliament meets in Westminster, London. It has two parts – the House of Commons
and the House of Lords, plus the monarchy. The House of Commons is made up of 650 MPs and
the House of Lords of around 810 Lords or, as they are sometimes known, peers.”

“The UK's political system can be described as a constitutional monarchy with a king or queen
as Head of State. However, it is the Houses of Parliament that make our laws, not the monarch.
The monarch only formally passes legislation - this is known as Royal Assent.”

“When a parliamentary Bill is given Royal Assent it becomes an Act of Parliament. It is then up
to the relevant government department to implement that law. For example, the Transport
department will deal with new Acts relating to transport.”

CANADA

“The “rule of law” is a principle of longstanding constitutional value. It is recognized in the

preamble of the Constitution Act, 1982, and has been utilized by the courts as important
constitutional rhetoric, and also as a doctrine that produced juridical effects in various contexts. ”

“At a minimum, the inspiration behind the “rule of law” is a sense of order and hierarchy. The
modern concept was developed in the nineteenth century writings of A.V. Dicey, and has since
undergone several metamorphoses. In Roncarelli v. Duplessis,6, the Supreme Court of Canada
relied upon the doctrine to assert that all official acts must be authorized by law. ”

“A constitution is essentially a rule book for a government. However, Canada’s Constitution is

not a single document; it is a collection of 25 documents (14 Acts of British Parliament, 4 British
Orders-in-Council, 7 Canadian Acts) and a number of traditions that have either come from the
British system or evolved over time.”

“The theory of the rule of law is interesting. Some argue that the rule of law is a procedural
concept. The rule of law implies a sense of order and hierarchy in the sense that each act of the
authorities must be authorized by legal rules which are legitimate. The only way legal rules can
be recognized as legitimate is if they are procedurally correct i.e. the rule has been stipulated by
the required legal procedure. Thus, for example, the police may only arrest if they are authorized
to do so by some rule of statute or common law. ”
6
[1959] S.C.R. 121
“The Canadian rule of law contains three elements

(1) No one should be punished by the state, except for a distinct breach of law, established by
ordinary court proceedings;

(2) The law should apply to all persons equally, regardless of any person’s rank or condition;

(3) Legal rules must be enforced by the courts.”

“While there is much rhetoric about the rule of law in Canadian jurisprudence, the doctrine has
been pressed into service as an operative principle only rarely. There are but few examples
where the rule of law concept creates a Constitutional standard to which other legal rules must
conform. ”

“In Canada system of government is a constitutional monarchy and a parliamentary democracy.

Government is formed by the party or group of parties that can obtain and maintain the
confidence of the legislature, and that our sovereign (and head of state) is bound by the
Constitution. The Constitution Act, 1867 which forms the basis of Canada’s written constitution,
provides that there shall be one Parliament for Canada, consists of three parts: the Queen,
represented by the governor general; the Senate; and the House of Commons. However, as a
federal state, responsibility for lawmaking in Canada is shared among one federal, ten provincial
and three territorial governments. ”

“The power to enact laws is vested in a legislature composed of individuals selected to represent
the Canadian people. Hence, it is a “representative” system of government. The federal
legislature is bicameral: it has two deliberative “houses” or “chambers” an upper house, the
Senate, and a lower house, the House of Commons. The Senate is composed of individuals
appointed by the Governor General to represent Canada’s provinces and territories. Members of
the House of Commons are elected by Canadians who are eligible to vote. ”

“Many features of the Canadian system of government are not included in the Constitution, such
as: the Prime Minister, political parties, Cabinet, responsible government.”

“Canada is also a constitutional monarchy, in that its executive authority is vested formally in the
Queen through the Constitution. Every act of government is carried out in the name of the
Crown, but the authority for those acts flows from the Canadian people. The executive function
belongs to the Governor in Council, which is, practically speaking, the Governor General acting
with, and on the advice of, the Prime Minister and the Cabinet. ”

“Finally, by virtue of the Preamble to the Constitution Act, 1867, which states that Canada is to
have “Constitution similar in Principle to that of the United Kingdom”, Canada’s parliamentary
system derives from the British, or “Westminster”, tradition.”

CHAPTER- 4

GLOBALIZATION WORKING RULE OF LAW & DEMOCRACY

“The most important demand of the Rule of Law is that people in positions of authority should
exercise their power within a constraining framework of well-established public norms rather
than in an arbitrary, ad hoc, or purely discretionary manner on the basis of their own preferences
or ideology. It insists that the government should operate within a framework of law in
everything it does, and that it should be accountable through law when there is a suggestion of
unauthorized action by those in power.”

“The fact that the Rule of Law is a controversial idea does not stop various organizations from
trying to measure its application in different societies. Groups like the World Justice Project
concoct criteria and indexes of the Rule of Law, ranking the nations of the earth in this regard.
Countries like Norway and New Zealand rank at the top of the Rule-of-Law league and countries
like Zimbabwe and Afghanistan at the bottom. The criteria can be hardly be described as
rigorous. But people in business value these rankings as part of their estimation of country risk
for foreign investments.”

“To encourage additional country-specific development, in the early 1990s the World Bank and
the International Monetary Fund (IMF) began conditioning financial assistance on the
implementation of the rule of law in recipient countries. These organizations had provided aid to
support initiatives in legislative drafting, legal information, public and legal education, and
judicial reforms, including alternative dispute resolution. By conditioning funds on the
establishment of the rule of law, the World Bank and the IMF also hope to reduce corruption,
which undermines economic development by scaring away investors and preventing the free
flow of goods and capital. Currently, in its Sustainable Development Goals (SDG), the United
Nations (UN) also champions the rule of law as a vehicle to bring about more sustainable
environmental practices.”

“Some theorists draw a distinction between the Rule of Law and what they call rule by law .
They celebrate the one and disparage the other. The Rule of Law is supposed to lift law above
politics. The idea is that the law should stand above every powerful person and agency in the
land. Rule by law, in contrast, connotes the instrumental use of law as a tool of political power. It
means that the state uses law to control its citizens but tries never to allow law to be used to
control the state. Rule by law is associated with the debasement of legality by authoritarian
regimes, in modern China for example.”

“The concept of law could be understood to embrace the fundamental elements of legality,
though this identification looks less plausible the more substantive the conception of the Rule of
Law is held to be. On this account, a system of governance doesn’t count as law unless it exhibits
the characteristic forms and processes that we associate with legality. Otherwise we lose our
sense of the institutional distinctiveness of law as a way of ruling a society.”

CHAPTER- 5

CONCLUSION

“It is undeniable that the rule of law is an essential element of constitutionalism and upholding
the democratic system of government. The rule of law is also inevitably linked with the
independence of the judiciary as upholding the various principles supporting the rule of law is
one of the constitutional responsibilities given to the judiciary. Thus, the rule of law must be
supported by a judicial system which is free and independent from any extraneous interference
which emphasizing the importance of the doctrine of separation of powers. It had been proven
that many of the countries’ practical of the rule of law are on the wane as they are departing
away from the pathway of upholding the rule of law bit by bit. Proper measures should be taken
in order to uphold the supreme of the rule of law.”
“The Rule of Law means that the decisions should be made by the application of known
principles and rules, such decisions should be predictable and the citizens should know where he
is. It excludes arbitrariness. Its postulate is “Intelligence without passion and reason free from
desire.”

“Rule of law is mostly believed to be a modern concept which is a gift of democracy however it
is something which is fundamental to the very basic idea of good governance.”

“We need to focus on the weaknesses and loopholes so that we can remove or plug them. Having
said this, we cannot resist ourselves from adding that it is not that only the three organs of the
State are to be blamed for the dismal state of rule of law in the society. Other actors like the
media, civil society and even the ordinary citizen cannot run away from their respective
responsibilities. Therefore it is equally important that all the actors of the society ensure for the
maintenance of Rule of Law.”

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