W.A.

Sanath Sameera Wijesinghe

Lecturer in Law
Attorney –at-Law
Department of Legal Studies
Faculty of Humanities and Social Sciences
Open University of Sri Lanka
 “An independent, impartial judiciary; the presumption of innocence; the
right to a fair and public trial without undue delay; a rational and
proportionate approach to punishment; a strong and independent legal
profession; strict protection of confidential communications between
lawyer and client; equality of all before the law; these are all
fundamental principles of the Rule of Law. Accordingly, arbitrary arrests;
secret trials; indefinite detention without trial; cruel or degrading
treatment or punishment; intimidation or corruption in the electoral
process, are all unacceptable. The Rule of Law is the foundation of a
civilised society. It establishes a transparent process accessible and equal
to all. It ensures adherence to principles that both liberate and protect.”
 Resolution of the Council of the International Bar Association of
October 8, 2009, on the Commentary on Rule of Law Resolution
(2005).
 World Justice Project (WJP), based in Washington DC, in
its 2014 Rule of Law Index has ranked Sri Lanka 48th
among 99 countries assessed by the Project.
 Index assesses nine factors;
 government powers,
 absence of corruption,
 open government,
 fundamental rights,
 order and security,
 regulatory enforcement,
 civil justice,
 criminal justice
 informal justice.
 We are free
because we live
who is to guard under civil laws
the guardians - - Montesquieu
The rule of law Romans
is better than
that of any
individual -
Aristotle
 Antiquity
 Plato - "Where the law is subject to some other
authority and has none of its own, the collapse of the
state, in my view, is not far off; but if law is the master
of the government and the government is its slave,
then the situation is full of promise and men enjoy all
the blessings that the gods shower on a state.

 Aristotle -It is more proper that law should govern

than any one of the citizens: upon the same principle,
if it is advantageous to place the supreme power in
some particular persons, they should be appointed to
be only guardians, and the servants of the laws
(Politics 3.16)
 Middle ages
 In 1215, Archbishop Stephen Langton gathered the
Barons in England and forced King John and future
sovereigns and magistrates back under the rule of
law, preserving ancient liberties by the Magna Carta in
return for exacting taxes
 Modern times
 In 1607, English Chief Justice Sir Edward Coke
“quod Rex non debed esse sub homine, sed sub Deo et
lege (That the King ought not to be under any man but
under God and the law.).“
Rex lex – the king is the law
 (i) The absolute supremacy or predominance of 'regular' law as
opposed to the influence of arbitrary power and the absence of
discretionary authority on the part of the government. No man is
punishable or can be lawfully made to suffer in body or goods
except for a distinct breach of law established in the ordinary legal
manner before the ordinary courts.
 (ii) Equality before the law. All persons whether high official or
ordinary citizen are subject to the same law administered by the
ordinary courts.
 (iii) The constitution in the result of the ordinary law of the
land developed by the judges on a case by case basis. It is thus
woven into the very fabric of law and not superimposed from
above. This is essentially a defense to the United Kingdom's
unwritten constitution.
 Dennis Lloyd – ‘The Idea of Law’
1. Wide Interpretation (New Delhi Principles)
1. Legislative and the Rule of Law
2. Executive and the Rule of Law
3. Judiciary and Legal Profession- Rule of Law
4. Criminal Process and Rule of Law

2. Narrow Interpretation
1. Due process of law
2. Development of rules of Administrative law
 Enshrined Principles
 First, that the individual is possessed of certain rights
and freedoms and that he is entitled to protection of
these rights and freedoms by the State;
 Second, that there is an absolute need for
an independent judiciary and bar as well as for
effective machinery for the protection of fundamental
rights and freedoms; and
 Third, that the establishment of social, economic
and cultural conditions would permit men to live in
dignity and to fulfill their legitimate aspirations.
 the legislature carried out the function of
creating and maintaining conditions that
would uphold the dignity of man.
 recognition of civil and political rights as well
as the establishment of the social, economic,
educational and cultural conditions,.
 The limitations on the legislative should be
enshrined in a constitution and safeguarded
by an independent judicial tribunal.
abstain from enacting retroactive penal legislation 13(6)

not discriminate in its laws between one citizen and another 10,11,12(1),13
14(1), 14A
not interfere with freedom of religious belief 10, 14(e)

not deny members of society the right to responsible ????? 19th

government Amendment
not place restrictions on the freedom of speech, assembly or 14(1)(a), 14
association;
not impair the exercise of fundamental rights and freedoms of 19th
the individual;
provide the procedural mechanisms to protect the above- 17, 126, due process
mentioned freedoms ("procedure of due process")
 the granting of power by the legislative to the
executive should be undertaken within the narrowest
possible limits and that legislature should define the
extent and purpose of such delegated powers,
 An independent judicial body should be given the
power to review the legislation passed by the
executive (Judicial review).
 the Rule of Law would be strengthened if the
executive were to be required to formulate its reasons
when reaching its decisions, and at the request of a
concerned party, to communicate them.
 an independent judiciary in upholding the Rule of Law.
 The independence of the judiciary would be safeguarded by
certain measures, including co-operation between at least two
branches of the state (i.e. judiciary and legislative) on the
appointment of judges.
 an organized legal profession free to manage its own affairs to be
essential.
 While a lawyer should be free to accept any case which is offered
to him, he should also in some cases be obliged to defend persons
with whom he does not sympathize.
 equal access to the justice. It was perceived to be the primary
obligation of the legal profession to use its best efforts to ensure
that adequate legal advice and representation were provided.
 The state and community would however have the obligation to
assist the legal profession in carrying out this responsibility.
 the minimum necessary to ensure the observance of the Rule of Law.
 retrospective enactment of penal legislation (certainty of the law)
 the principle of presumption of innocence,
 the burden of proof should only be shifted once facts creating a contrary
presumption had been established.
 Concerning the arrest of an individual,
 the power to arrest should be regulated and the arrested person should be
told at once the grounds of his or her arrest. He or she should be entitled to a
legal adviser and be brought before a judicial authority within a short period
of time.
 In relation to pre-trial detention the rights of the arrested, including the right
to apply for bail.
 the requirement that the prosecution not withhold favorable evidence
from the accused.
 that guarantee the physical and psychological integrity of the accused.
 trial in public for criminal cases and the right to appeals and remedies.
 the Rule of Law did not require any particular theory regarding
punishment, but must necessarily condemn cruel, inhuman or excessive
preventive measures or punishments
“… a man may with us be punished for a breach
of law, but he can be punished for nothing
else.”
A.v Diecy, The Law of the Constitution’, 10th Edt.,
McMillan, 1959, at p.202.
 A fundamental, constitutional guarantee that
all legal proceedings will be fair and that one
will be given notice of the proceedings and an
opportunity to be heard before the
government acts to take away one's life,
liberty, or property.
 Also, a constitutional guarantee that a law
shall not be unreasonable, Arbitrary, or
capricious.
 14th Amendment to the USA Constitution
 No State shall make or enforce any law which
shall abridge the privileges or immunities of
citizens of the United States; nor shall any State
deprive any person of life, liberty, or property,
without due process of law; nor deny to any
person within its jurisdiction the equal protection
of the laws.
 Poe v. Ullman (1961)
 [T]he full scope of the liberty guaranteed by the Due Process
Clause cannot be found in or limited by the precise terms of
the specific guarantees elsewhere provided in the
Constitution.
 This 'liberty' is not a series of isolated points pricked out in
terms of the taking of property; the freedom of speech, press,
and religion; the right to keep and bear arms; the freedom
from unreasonable searches and seizures; and so on.
 It is a rational continuum which, broadly speaking, includes a
freedom from all substantial arbitrary impositions and
purposeless restraints, . . . and which also recognizes, what a
reasonable and sensitive judgment must, that certain
interests require particularly careful scrutiny of the state
needs asserted to justify their abridgment
 The imposition of procedural guarantees which ensures
“Due Process of Law”
 Independence of the judiciary
 Speedy and fair trial of accused person
 Judicial control over police (confession Ev. Ord.)
 Safeguard on arrest and detention pending trial (CPC)
 Adequate Legal Aid (LAC)
 Accused right to refuse to make any statement which is
calculated to incriminate himself.
 Advocacy must be free and independence
 The rule against retrospectively
 Recognition of the principle that responsibility if personal and
individual
 Ex post facto Criminal Laws
 Nullum Crimen Sine Lege – there should be no crime without
a previous law, making the deed a crime
 Nulla Peona Sine Lege – there should be no punishment
without previous legal authority
 Calder v. Bull (1798)
▪ Makes act criminal which were innocent when committed
▪ Make crime grater than it was when committed.
▪ Inflict grater punishment for crime
▪ Make conviction easier

 Principle against Double Jeopardy (nemo debt verari in eadem causa)

▪ Autrefois acquit – formally acquitted
▪ Autrefois convict – formally convicted (Section 314 of CPC)
Cont…

 Development of rule of Administrative Law

 Administrative “Discretion”
 Control of administrative discretion
(unreasonableness, bad faith, ulterior motive,
improper motive, irrelevant consideration, acting
arbitrary, irrationality, proportionality.)
 Principles of ‘Natural Justice’
 Remedies of Administrative Law (blending rights
with writs)
▪ Refer Articles 140 and 141 of the Constitution.
 Individuals should be judged by law, and not
by opinions of individual men.
 Criminal law and procedure should be written
down
 Rule against retrospective legislations.
Refer p. 27.

 Perspectives of USA, UK and SL

 U.S v. Lovett 328 U.S.303 (1946)
“this provision was unconstitutional as a
‘Bill of attainder, since it inflicted
punishment without the safeguard of a
judicial trial”
 Cummings v. Missouri 4 Wall 277(1867)
“…invalid this provision of the Missouri
constitution, because it constituted a bill
of attainder and was also an ex post facto
law.”
U.S perspectives
Lovett Case
“Those who wrote our Constitution well knew the danger inherent in special
legislative acts which take away the life, liberty, or property of particular named
persons because the legislature thinks them guilty of conduct which deserves
punishment. They intended to safeguard the people of this country from
punishment without trial by duly constituted courts. See Duncan v.
Kahanamoku, 327 U. S. 304. And even the courts to which this important function
was entrusted were commanded to stay their hands until and unless certain tested
safeguards were observed. An accused in court must be tried by an impartial jury,
has a right to be represented by counsel, he must be clearly informed of the charge
against him, the law which he is charged with violating must have been passed
before he committed the act charged, he must be confronted by the witnesses
against him, he must not be compelled to incriminate himself, he cannot twice be
put in jeopardy for the same offense, and, even after conviction, no cruel and
unusual punishment can be inflicted upon him. See Chambers v. Florida,309 U. S.
227, 309 U. S. 235-238. When our Constitution and Bill of Rights were written, our
ancestors had ample reason to know that legislative trials and punishments were
too dangerous to liberty to exist in the nation of free men they envisioned. And so
they proscribed bills of attainder. Section 304 is one. Much as we regret to declare
that an Act of Congress violates the Constitution, we have no alternative here.
 Burma Oil Company v. Lord Advocate 1965 AC. 75
“...although compensation had never been payable at
common law for battle damage whether accidental or
deliberate there was no general rule that the royal
prerogative can be exercised without
compensation….there was no precedent of a claim for
compensation in such case not been paid and it was
therefore payable”
 The War Damage Act 1965
 HL decision is nullified with this.
 The English Common law paws the way to the courts
of law to recognize new criminal offences
 Influence of Common Law
Shaw v. D.P.P. 1962 A.C. 220
…the role of the court as the custodian of public moral and
its duty to preserve the moral welfare of the State. The
person was convicted for conspiring to corrupt public
morals.
Lord Denning,
“we are here to find out the intention of parliament…and we
do this better by filling in the gaps and making sense of the
enactment than by opening it up to destructive criticism”
But in Sri Lanka, Kachcheri Mudaliar v. Mohomed 21 N.L.R.
369……
 Liyanage v. Queen 68 N.L.R. 265
Judicial review + separation of powers + nulla
poene sine lege. (dominium status)
 Kariapper v. Wijesinghe 70 N.L.R. 49 P.C.
“...that is the act contained no declaration of guilt
and because the disabilities which the Act impose
did not have the character of punishment for
guilt…therefore the Act of 1965 was not an Act of
Attainder or a bill of Pains and Penalties.”
Refer Section 75 of the Constitution
(report 01)
Legislature and Rule of Law
Clause I See preamble of the 1978 Constitution
Clause II
free elections Article 93
general legislating process Article 4(d), 75
control of delegated legislations Article 158
independent judiciary Article 107,108, 111(2),112,115,116
fundamental rights Chapter III + Article 17,126
Clause III
limitations on legislative supremacy Article 75, 15(7), 83

(report 02)
Executive and the Rule of Law
safeguard against the abuse of powers
of the executive Article 38 (2), 4(d), 17
(report 03)
Criminal Procedure and Rule of Law
presumption of innocence Article 13(5)
restriction powers of arbitrary arrest Article 13(1)
accused should informed the charge CPC
obtaining creditable evidence CPC (police investigation)
trial should be fair and in public CPC
provisions for appeal CPC

(report 04)
Judiciary, Legal Profession and Rule of
Law
Independence of judiciary 107(2), 108 (2),
Professional ethics Supreme court rules
Access to justice Legal Aid Commission, (HC bail)
 Rule of law in developing countries

 Internal conflicts
 Corruption
 Political instability
 Poverty

 Rule of Law Index ()

 Political sovereignty v. Economic sovereignty
 Fundamental Rights and Rule of Law
 Universal Declaration of Human Rights (1948)
 ICCPR and ICESER , CAT convention
 HR into FR
 Domestic mechanism + independence of the judiciary
 Chapter III
 Article 83
 Article 15
 Refer Dr. Udagama’s article in this regard
 Retroactive legislations and rule of law
 Delhi Conference, first report, Clause III – ‘legislatures
should abstain from retroactive legislation’
 Liyanage v. The Queen 68 N.L.R. p.26 “though the
parliament has power to pass retrospective
legislation; such legislation would be invalid if (i) it
was directed against individuals, (ii) constituted an
grave and deliberate interference with judicial power”
 Finance Amendment Bill (1978), Associated
Newspapers Ceylon Ltd. (Special Provisions) Bill
(1973) – liyanage principles are not applicable under
1972 Constitution.
 1978? Article 4, 75, 80(3) – matter of interpretation!
“in our Constitutional Jurisprudence the scope
for judicial activism is limited. The role of the
Supreme Court is interpretative and not
creative so as to expand the ambit of
fundamental rights.”
Justice S. Sharvananda (1993)