The rule of law is fundamental in any society where human rights are to be protected. The word rule comes from “règle” 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
1.2 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...
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