1. 0 Introduction The rule of law is fundamental in any society where human rights are to be protected. The word rule comes from “regle” and law from “lagu” roughly translating to “supremacy of LAW”. 1IT IS A MECHANISM FOR SAFEGUARDING HUMAN RIGHTS BY GUARANTEEING THEM LEGALLY AND AT THE same time providing a means for redressal where violations occur. The most important application of the rule of law is the principle that government authority is legitimately exercised in accordance with established procedural steps that are referred as to due process.
The principle is intended to be a safeguard against arbitrary governance, whether by a totalitarian leader. Thus, the rule of law is hostile both to dictatorship and to anarchy. Since a democracy is characterized by majority rule whereby the law is whatever the majority says it is, the rule of law as a result is one of the measures taken to prevent tyranny by that same majority. Thus, it can be said that the rule of law protects the rights of individuals from the whims of the majority.
As a consequence, democratic countries require the rule of law due to the fact that it establishes the foundation for certain conditions on which democracy depends unlike authoritarian states which may be governed either by personal power or loyalty. 1. 1 Definition of Rule of Law RULE OF LAW, IN ITS MOST BASIC FORM, IS THE PRINCIPLE THAT NO ONE IS ABOVE THE LAW. IT REFERS to the absolute supremacy or predominance of regular law as opposed to the influence to the influence of arbitrary power and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government. The Rule of Law is linked with basic democratic notions. In democracies, the use of arbitrary power is considered anathema to the rule of law.
Fundamentally, constitutional limits on power, a key feature of democracy, requires adherence to the rule of law. Indeed, the rule of law could be defined as the subjugation of state power to a country’s constitution and laws, established or adopted through popular consent. This is the meaning of the commonly cited phrase “a government of laws, not men,” made famous by John Adams 1 1. 2
Rule of Law & its Principles Rule of law, being a significant pillar of most democracies, has been defined by the influential theorist Joseph Raz, who identifies several principles that may be associated with the Rule of Law. Raz shared common ground with the constitutional theorists A. V Dicey and Friedrich Hayek whereby the principles encompass the requirements of guiding the individual’s behavior and minimizing the danger that results from the exercise of discretionary power in an ARBITRARY FASHION. THE PRINCIPLES ARE: •Laws should be prospective rather than retroactive •Laws should be stable and not changed too often, as lack of awareness of the law prevents one from being guided by it. •There should be clear rules and procedures for making laws (Section 45 of the Constitution).
•The independence of the judiciary has to be guaranteed •The court should be accessible; no man may be denied justice. 1. 3 Importance of Rule of Law in Mauritius Following the issues debated earlier, it can be seen that the rule of law indeed is crucial to the proper functioning of a democratic country, especially a country like Mauritius. First and foremost, the significance of the rule of law in a democratic country is to ensure the protection of the fundamental rights of man.
As per the United Nations, “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”. Supported by several international conventions and treaties (such as the United Nation’s Universal Declaration of Human rights in 1948), these include rights such as right to life, liberty, education and equality before law, and right of association, belief, free speech, information, RELIGION, MOVEMENT, AND NATIONALITY.
In a democracy like Mauritius, fundamental rights and freedoms are entrenched in chapter two, sub-sections 3-16 of the constitution. The provisions guaranteeing fundamental rights and freedoms are modeled on the European Convention of Human Rights. The case of DPP V Mootoocarpen & ors shows the influence of the European Convention ON THE CONSTITUTIONAL LAW OF MAURITIUS. GREAT IMPORTANCE HAS BEEN PLACED ON INTERNATIONAL conventions and their implementation in order to ensure obedience to a universal standard of acceptability (National Human Rights Commission- NHRC).
Another reason for its importance is that the rule of law promotes the expression of a collective will. Law is a means by which the collective will of the people is expressed. Our Constitution enshrines the basic human rights and civil rights that people want protected Another reason for its importance is that the rule of law promotes the expression of a collective will. Law is a means by which the collective will of the people is expressed. Our Constitution enshrines the basic human rights and civil rights that people want protected.
The principle of the rule of law is also said to be important as it upholds a monopoly on the legitimate use of force. Democracy depends on an effective state. The Constitution and statutes give the state the monopoly on the use of force. In addition, the adoption of the rule of law helps to maintain social order in the country. Rule of Law is a significant pillar in a democracy like Mauritius as it provides a stable basis which ENSURES THE PROTECTION OF THOSE RIGHTS LIKE IN THE CASE OF MINISTRY OF HOME AFFAIRS V FISHER, CRITICAL to maintaining an orderly and productive society, creating the conditions that enable a democratic society to develop and thrive.
These rights are essential to maintaining basic social order and discouraging the resort to vigilantism, criminality and violence. They include effective protection of fundamental property and contractual rights, guarantees of freedom of association and civil liberties, ensuring compensation for wrongs, enforcement and regulation of social responsibilities and obligations, protection of individual against predatory business practices, protection from social and economic discrimination and peaceful resolution of disputes.
Such rights are also essential to ensuring economic DEVELOPMENT AND ADDRESSING POVERTY. Furthermore, equal rights of the citizens of Mauritius are highly protected in the presence of the rule of law. Adherence to the rule of law levels the playing field of the political arena. Our Constitution ordains equality among citizens and no person is discriminated on grounds like race, colour, sex, place of origin. For the judiciary to function appropriately in Mauritius, the government must adopt the rule of law.
This is because of the separation of powers that exist between the three organs of a democratic country namely the legislature, judiciary and the executive. Without this doctrine there will be abuse of power and overlaps. The judiciary being independent can intervene on grounds of unconstitutionality, for examples, in Noordally V Attorney General & ANOR AND IN VALLET V RAMGOOLAM. The rule of law is also considered to be important because it prevents laws to be retroactive. This is enacted in our constitution whereby the laws of Mauritius should be prospective in order to protect the accused by allowing him to have a fair trial.
Due to the presence of the theory of rule of law, the presumption of legality is upheld where there cannot be an offence at a time the offence was not committed and no penalty shall be imposed for any criminal offence that is severer in degree. Last but not least, the rule of law is important as without a system to restrain absolute freedom in society there would be chaos and anarchy. Rule of Law provides some possibility for a relatively cohesive set of rules of conduct for a democratic society.
1. 4 Conclusion In the light of the above analysis, it can be found that Rule of law is a sine quanon element in our democracy. Without the rule of law, constitutions and laws are meaningless. The most basic idea underlying the principle of rule of law is that law is supreme. It is law that rules and nothing else. Economists like Milton Friedman have strongly criticised the efficiency of democracy and the rule of law as it leads to political instability. Moreover in Mauritius, the President has got immunities with regards to civil cases. Thus, it can be concluded that for a proper functioning, there should be strict application of the various principles of Rule of Law by the Government as mentioned above.