Lecture Notes | Constitutional Law - Rule of Law

By Muneeb Zafar

The rule of law is the legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials. It primarily refers to the influence and authority of law within society, particularly as a constraint upon behaviour, including behaviour of government officials.

The phrase can be traced back to 16th century Britain, and in the following century the Scottish theologian Samuel Rutherford used the phrase in his argument against the divine right of kings. The rule of law was further popularised in the 19th century by British jurist A. V. Dicey. The concept, if not the phrase, was familiar to ancient philosophers such as Aristotle, who wrote "Law should govern".

The rule of law means the absolute supremacy or predominance of the regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness or even of wide discretionary authority on the part of the government. – Prof. A. V. Dicey in The Law of the Constitution

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The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law. – Dwight D. Eisenhower – 34th US President

There is no single agreed definition of the rule of law, however, there is a core definition that has near universal acceptance:

“…most of the content of the rule of law can be summed up in two points: (1) That the people (including, one should add, the government) should be ruled by the law and obey it and (2) That the law should be such that people will be able (and, one should add, willing) to be guided by it.” – Geoffrey de Q. Walker on The Rule of Law: Foundation of Constitutional Democracy

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A country that adhere to the rule of law ensures that:

• All persons and organisations including the government are subject to an accountable to the law:

• The law is clear, known, and enforced;

• The Court system is independent and resolves disputes in a fair and public manner;

• All persons are presumed innocent until proven otherwise by a Court;

• No person shall be arbitrarily arrested, imprisoned, or deprived of their property; and

• Punishment must be determined by a Court and be proportionate to the offence.

As a result, it can be said that the rule of law is more than simply the government and citizens knowing and obeying the law. The rule of law involves other concepts, such as checks and balances on the use of government power, the independence of the judiciary, the presumption of innocence, access to justice, and the right to a fair trial. Thus we can say that the relevance of the rule of law, and an understanding of its concepts, can be seen in its effects on society.

Rule of law implies that every citizen is subject to the law, including law makers themselves. In this sense, it stands in contrast to an autocracy, dictatorship, or oligarchy where the rulers are held above the law. Lack of the rule of law can be found in both democracies and dictatorships, for example because of neglect or ignorance of the law, and the rule of law is more apt to decay if a government has insufficient corrective mechanisms for restoring it. Government based upon the rule of law is called nomocracy.

Organisations Promoting The Rule of Law

Various organisations are involved in promoting the rule of law.

International Commission of Jurists

In 1959, an international gathering of over 185 judges, lawyers, and law professors from 53 countries, meeting in New Delhi and speaking at the International Commission of Jurists, made a declaration as to the fundamental principle of the rule of law. This was the Declaration of Delhi. They declared that the rule of law implies certain rights and freedoms, that it implies an independent judiciary, and that it implies social, economic and cultural conditions conducive to human dignity. The Declaration of Delhi did not, however, suggest that the rule of law requires legislative power to be subject to judicial review.

UNO on the Rule of Law

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. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.

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Rule of Law Coordination and Resource Group is the group of nine entities (“actors”). There are, of course, other UN entities will be involved, however the above 9 are to be considered as the major participants.

International Bar Association (IBA)

The Council of the International Bar Association passed a resolution in 2009 endorsing a substantive or "thick" definition of the rule of law:

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. The IBA calls upon all countries to respect these fundamental principles. It also calls upon its members to speak out in support of the Rule of Law within their respective communities.

World Justice Project (WJP)

As used by the World Justice Project, a non-profit organisation committed to advancing the rule of law around the world, the rule of law refers to a rules-based system in which the following four universal principles are upheld:

• The government and its officials and agents are accountable under the law;

• The laws are clear, publicized, stable, fair, and protect fundamental rights, including the security of persons and property;

• The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient;

• Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.

The World Justice Project has developed an Index to measure the extent to which countries adhere to the rule of law in practice. The WJP Rule of Law Index is composed of 9 factors and 52 sub-factors, and covers a variety of dimensions of the rule of law—such as whether government officials are accountable under the law, and whether legal institutions protect fundamental rights and allow ordinary people access to justice.

International Development Law Organisation (IDLO)

The International Development Law Organization (IDLO) is an intergovernmental organization with a joint focus on the promotion of rule of law and development. It works to empower people and communities to claim their rights, and provides governments with the know-how to realize them. It supports emerging economies and middle-income countries to strengthen their legal capacity and rule of law framework for sustainable development and economic opportunity. It is the only intergovernmental organization with an exclusive mandate to promote the rule of law and has experience working in more than 170 countries around the world.

The International Development Law Organization has a holistic definition of the rule of law:

More than a matter of due process, the rule of law is an enabler of justice and development. The three notions are interdependent; when realized, they are mutually reinforcing. For IDLO, as much as a question of laws and procedure, the rule of law is a culture and daily practice. It is inseparable from equality, from access to justice and education, from access to health and the protection of the most vulnerable. It is crucial for the viability of communities and nations, and for the environment that sustains them.

IDLO is headquartered in Rome and has a branch office in The Hague and has Permanent Observer Status at the United Nations General Assembly in New York City.

Bennett v Horseferry Road Magistrates’ Court and another (1993) 3 All E. R. 138

Stands out as an outstanding illustration for the enforcement of rule of law in the modern times at UK. In this case, the House of Lords over-ruled a long line of cases in which the view taken was that the English courts had jurisdiction to try a criminal without going into the legality or illegality of his arrest and the circumstances in which he had been brought to England. The appellant, Bennett, was a New Zealand citizen who was wanted for criminal offences alleged to have been committed by him in connection with the purchase of helicopter in England in 1989. The English police traced him out in South Africa and in collusion with the South African police had him arrested there and then had him forcibly brought to England against his will. It was in these facts that the question arose whether the appellant Bennett could be tried by the Magistrate. In taking the view that the rule of law must prevail, Lord Bridge held as under:

“Whatever difference there may be between the legal systems of South Africa, the United States, New Zealand and this country, many of the basic principles to which they seek to give effect stem from common root. There is, I think, no principle more basic to any proper system of law than the maintenance of the rule of law itself.”

Modern Concept on The Rule of Law

So far from the principle being confined to the common law jurisdictions, the rule of law is now considered as a basic idea which can serve to unite lawyers of many differing systems, all of which aim at protecting the individual from arbitrary government.

If justice is to be done in the process of harmonising the opposing notions of individual liberty and public order, that is achieved ultimately but not exclusively by the ordinary courts.

In the modern sense, the rule of law means supremacy of the Constitution in the countries with written Constitution. It also means observance with the existing law or to be framed which isn’t repugnant to the Constitution. It also means conforming to the developed modern concepts of constitutional law which have attained universal acceptance.

These concepts involve due process of law, equality before law, independence of judiciary, separation of powers and enforceability and justifiability of human rights and civil liberties as propounded in every constitution under the chapter of ‘Fundamental Rights’.

Status in Various Jurisdictions

The rule of law has been considered as one of the key dimensions that determine the quality and good governance of a country. Research, like the Worldwide Governance Indicators, defines the rule of law as: "The extent to which agents have confidence and abide by the rules of society, and in particular the quality of contract enforcement, the police and the courts, as well as the likelihood of crime or violence." Based on this definition the Worldwide Governance Indicators project has developed aggregate measurements for the rule of law in more than 200 countries, as seen in the map below. A government based on the rule of law can be called a "nomocracy", from the Greek nomos (law) and kratos (power or rule).

Europe

The preamble of the European Convention for the Protection of Human Rights and Fundamental Freedoms says "the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law".

In France and Germany, the concepts of rule of law (Etat de droit and Rechtsstaat respectively) are analogous to the principles of constitutional supremacy and protection of fundamental rights from public authorities (see public law), particularly the legislature. France was one of the early pioneers of the ideas of the rule of law. The German interpretation is more "rigid" but similar to that of France and the United Kingdom.

Finland's constitution explicitly requires rule of law by stipulating that "the exercise of public powers shall be based on an Act. In all public activity, the law shall be strictly observed".

United Kingdom

The rule of law is one of the longest established common law fundamental principles of the governance of the United Kingdom, dating to Magna Carta of 1215, particularly jurisprudence following its late 13th century re-drafting. It as a minimum subjects an otherwise absolute monarch (executive) and all free people within its jurisdictions, primarily those of England and Wales, Scotland and Northern Ireland to legal doctrines known as the general principles of law. It has evolved to work only alongside equal application of the law to all free people 'equality before the law' and within the framework of the constitutional monarchy supports the legal doctrine of parliamentary sovereignty. Exactly what it entails beyond this and the way that different aspects of the rule of law principle are applied, depends on the specific situation and era.

Among recognised academics in this field are Albert Dicey, Joseph Raz (building on thoughts by Friedrich Hayek) and Trevor Allan, who have proposed contrasting ideas about the scope of the rule of law: specifically, whether the emphasis is on legal form or substantive content and normatively if it should be.

The rule of law is emphasised through many separate ideas. Among them are that law and order in contrast to anarchy; the running of government in line with the law (i.e. "legal government") and normative discussion about the rights of the state as compared to the individual. Albert Venn Dicey described the rule of law as acting in three ways: the predominance of regular law as opposed to the influence of arbitrary power; equality before the law; and, that constitutional laws are not the source but the consequence of the rights of individuals.

The specific checking of arbitrary power is its oldest and most definitive concept as a consequence of Magna Carta and its by-product, the first representative Parliament of England (and soon officially thereafter known as of England of Wales), which denied for the first time from the King the completely unfettered powers formerly exercised by the most powerful absolute monarchs on the throne. The key clause in the document has been consistently translated from identical, though abbreviated, Latin.

To no one will we sell, to no one deny or delay right or justice.

This was by the 14th century interpreted by Parliament as guaranteeing trial by jury.

Similarly, in Scotland a Parliament evolved. Before its union with England and Wales in 1707 it was long portrayed as a constitutionally defective body that acted merely as a rubber stamp for royal decisions, but research during the early 21st century has found that it played an active role in Scottish affairs, and was sometimes a thorn in the side of the Scottish crown.

The enforcement of the doctrine of habeas corpus was widely achieved in the 17th century, however with slavery primarily in the colonies continuing, it was not until the successes of abolitionism in the United Kingdom, the Slave Trade Act of 1807 and Slavery Abolition Act 1833, that equality before the law throughout the Empire was in a formal legal sense achieved in this respect.

The Bill of Rights 1689 and two most recent Acts of Settlement (1701 and 1703) imposed constraints on the monarch and it fell to Parliament under the doctrine of Parliamentary sovereignty to impose its own constitutional conventions involving the people, the monarch (or Secretaries of State in cabinet and Privy Council) and the court system. All of these three groups of institutions have proven wary of upsetting or offending the others, adopting conventions designed to ensure their long-term integrity and hence self-preservation.

After ordinary executive decisions were delegated, such as to a recognised Prime Minister and cabinet system from the mid-18th century, following on from the Bill of Rights 1689 in the Glorious Revolution, the highest courts laid down jurisprudence entrenching the growing doctrines of the Enrolled bill rule and Parliamentary sovereignty. In return Parliament has acquiesced in the senior courts' ability to declare unlawful new legislation based on older Treaty-based legislation for instance the Merchant Shipping Act 1988 in the Factorame I and IV decisions and executive actions in judicial reviews often based on the Human Rights Act 1998 (and in turn or separately the Universal Declaration of Human Rights and International Covenants). These developments have entrenched the doctrine of the rule of law as part of the constitution.

Public authorities must act within the law assigned to them, a second approach to the rule of law. Any actions taken outside the law are ultra vires and cannot be sanctioned by the courts. Entick v Carrington was a landmark case in terms of the English law, with the famous dictum of Camden LJ: "If this is law it would be found in our books, but no such law ever existed in this country". Joseph Raz identifies government following the law as a tautology: if the will of those inside the government were expressed outside their legal constraints, they would no longer be acting as the government. He therefore characterises this legal form argument as one of mere obedience to the law; ensuring those in government follow the laws as those outside it should. He rejects that as the sole conception of the rule of law. In the 2008 case of R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs, an Order in Council of the British government was found to have no basis in law by a minority of judges on final appeal. Additional powers can be granted to actors on behalf of the government only through parliament. In the United Kingdom, sanctions for departing from these rules come through ordinary court procedure; in other countries they may be assigned to designated courts. Government departments are directly liable for damage caused by their acts; however, the sovereign retains immunity from prosecution. This immunity runs wider that the Head of State of other countries, for example, the President of the United States may be impeached then put on trial. In M v Home Office the Home Secretary was found to be liable for contempt of court. On the other hand, Acts of Parliament that contravene basic rights – such as the indefinite detention without trial of suspected terrorists – whilst adhering to this concept of the rule of law.

This is identified by Dicey as part of his first conception: "a man may with us be punished for a breach of law, but he can be punished for nothing else".

United States

All government officers of the United States, including the President, the Justices of the Supreme Court, state judges and legislators, and all members of Congress, pledge first and foremost to uphold the Constitution. These oaths affirm that the rule of law is superior to the rule of any human leader. At the same time, the federal government has considerable discretion: the legislative branch is free to decide what statutes it will write, as long as it stays within its enumerated powers and respects the constitutionally protected rights of individuals. Likewise, the judicial branch has a degree of judicial discretion, and the executive branch also has various discretionary powers including prosecutorial discretion.

Scholars continue to debate whether the U.S. Constitution adopted a particular interpretation of the "rule of law," and if so, which one. For example, John Harrison asserts that the word "law" in the Constitution is simply defined as that which is legally binding, rather than being "defined by formal or substantive criteria," and therefore judges do not have discretion to decide that laws fail to satisfy such unwritten and vague criteria. Law Professor Frederick Mark Gedicks disagrees, writing that Cicero, Augustine, Thomas Aquinas, and the framers of the U.S. Constitution believed that an unjust law was not really a law at all.

Some modern scholars contend that the rule of law has been corroded during the past century by the instrumental view of law promoted by legal realists such as Oliver Wendell Holmes and Roscoe Pound. For example, Brian Tamanaha asserts: "The rule of law is a centuries-old ideal, but the notion that law is a means to an end became entrenched only in the course of the nineteenth and twentieth centuries".

Others argue that the rule of law has survived but was transformed to allow for the exercise of discretion by administrators. For much of American history, the dominant notion of the rule of law, in this setting, has been some version of A. V. Dicey's: "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 of the land". That is, individuals should be able to challenge an administrative order by bringing suit in a court of general jurisdiction. As the dockets of worker compensation commissions, public utility commissions and other agencies burgeoned, it soon became apparent that letting judges decide for themselves all the facts in a dispute (such as the extent of an injury in a worker's compensation case) would overwhelm the courts and destroy the advantages of specialization that led to the creation of administrative agencies in the first place. Even Charles Evans Hughes, a Chief Justice of the United States, believed "you must have administration, and you must have administration by administrative officers". By 1941, a compromise had emerged. If administrators adopted procedures that more-or-less tracked "the ordinary legal manner" of the courts, further review of the facts by "the ordinary Courts of the land" was unnecessary. That is, if you had your "day in commission", the rule of law did not require a further "day in court". Thus Dicey's rule of law was recast into a purely procedural form.

James Wilson said during the Philadelphia Convention in 1787 that, "Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect". George Mason agreed that judges "could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as judges to give it a free course". Chief Justice John Marshall (joined by Justice Joseph Story) took a similar position in 1827: "When its existence as law is denied, that existence cannot be proved by showing what are the qualities of a law".

According to the American jurists the Constitution is the embodiment of the founders’ belief in the rule of law. The idea is that government and society can be regulated by law, not subjected to the whims of powerful but potentially capricious rulers. The Constitution rests on the belief that no one in power should be above the law. Even the legislature, the people’s elected representatives, should be bound to respect the principles and limitations contained in the “supreme law of the land”.

It must be understood that the Constitution imposes limits on government action. Private actions are beyond the scope of constitutional law. Individuals are subject to the constraints of the civil and criminal law. In addition to imposing constitutional limitations on government, the rule of law requires that citizens who’re wronged by others have opportunities to seek justice through the courts. – Otis H. Stephens on American Constitutional Law

Asia

East Asian cultures are influenced by two schools of thought, Confucianism, which advocated good governance as rule by leaders who are benevolent and virtuous, and Legalism, which advocated strict adherence to law. The influence of one school of thought over the other has varied throughout the centuries. One study indicates that throughout East Asia, only South Korea, Singapore, Japan, Taiwan and Hong Kong have societies that are robustly committed to a law-bound state. According to Awzar Thi, a member of the Asian Human Rights Commission, the rule of law in Thailand, Cambodia, and most of Asia is weak or non-existent:

Apart from a number of states and territories, across the continent there is a huge gulf between the rule of law rhetoric and reality. In Thailand, the police force is an organized crime gang. In Cambodia, judges are proxies for the ruling political party ... That a judge may harbour political prejudice or apply the law unevenly are the smallest worries for an ordinary criminal defendant in Asia. More likely ones are: Will the police fabricate the evidence? Will the prosecutor bother to show up? Will the judge fall asleep? Will I be poisoned in prison? Will my case be completed within a decade?

In countries such as China and Vietnam, the transition to a market economy has been a major factor in a move toward the rule of law, because a rule of law is important to foreign investors and to economic development. It remains unclear whether the rule of law in countries like China and Vietnam will be limited to commercial matters or will spill into other areas as well, and if so whether that spill over will enhance prospects for related values such as democracy and human rights. The rule of law in China has been widely discussed and debated by both legal scholars and politicians in China.

In Thailand, a kingdom that has had a constitution since the initial attempt to overthrow the absolute monarchy system in 1932, the rule of law has been more of a principle than actual practice. Ancient prejudices and political bias have been present in the three branches of government with each of their founding, and justice has been processed formally according to the law but in fact more closely aligned with royalist principles that are still advocated in the 21st century. In November 2013, Thailand faced still further threats to the rule of law when the executive branch rejected a supreme court decision over how to select senators.

Japan had centuries of tradition prior to World War II, during which there were laws, but they did not provide a central organizing principle for society, and they did not constrain the powers of government (Boadi, 2001). As the 21st century began, the percentage of people who were lawyers and judges in Japan remained very low relative to western Europe and the United States, and legislation in Japan tended to be terse and general, leaving much discretion in the hands of bureaucrats.

India

In India, the longest constitutional text in the history of the world has governed that country since 1950. Although the Constitution of India may have been intended to provide details that would limit the opportunity for judicial discretion, the more text there is in a constitution the greater opportunity the judiciary may have to exercise judicial review. According to Indian journalist Harish Khare, "The rule of law or rather the Constitution is in danger of being supplanted by the rule of judges".

The absence of arbitrary power is the first essential of the rule of law upon which the whole of Indian constitutional system is based. In a system governed by the rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. – H. K. Saharay on The Constitution of India

The ‘rule of law’ in India can’t be better described than in the following words of Ayyangar J. in relation to the duty of the superior courts when an allegation is properly raised and established.

“The Constitution enshrines and guarantees the rule of law and Article 226 is designed to ensure that each and every authority in the State, including the government, acts bonafide and within the limits of its power and we consider that when a court is satisfied that there is an abuse or misuse of power and its jurisdiction is invoked, it is incumbent on the court to afford justice to the individual.” – Partab Singh v State of Punjab [AIR 1964 SC 72]

The presumption that when discretionary powers are conferred upon high officials or the government and that such high officials or government would exercise the power reasonably or honestly without adversely affecting the fundamental rights might not be sound. – Durga Das Basu on Human Rights in Constitutional Law

Pakistan

Article 4 of the Constitution of Pakistan, 1973, embodies the essence of the rule of law.

It was observed by Muhammad Aleem CJ in Benazir Bhutto v Federation of Pakistan [PLD 1988 SC 416] than any application of a principle of Anglo-Saxon jurisprudence, which might be destructive of the rule of law which is so worded in Article 4 of the Constitution as to give protection to all citizens … national integration and social cohesion by creating an egalitarian society through a new legal order is achieved.

So predominant is the position of Article 4 that it furnishes the only guarantee or assurance to the citizens when the fundamental rights stand suspended, for example, during the martial law, so that no action detrimental to life, liberty, body, reputation or property of any person shall be taken except in accordance with law. – Saad Saood Jan, J in Federation of Pakistan v Ghulam Mustafa Khar [PLD 1989 SC 26]

In Zahur Elahi v Z. A. Bhutto [PLD 1975 SC 383], reference made by the Government of Pakistan against the National Awami Party and its leaders under Sec. 6(2) of the Political Parties Act, 1962 was pending, before the Supreme Court when Mr Bhutto, Prime Minister of Pakistan, made a speech, in which he was alleged to have said that “if the Supreme Court in its wisdom or according to its own understanding gives a decision against us then it will not be my decision or that of the people but will be a decision of the Supreme Court. We will accept this decision but the responsibility for the consequences will be that of the Supreme Court…”. The Supreme Court was then moved for taking action against Mr Bhutto, on the ground that the speech amounted to contempt of the Supreme Court.

One of the grounds raised in defence was based upon Article 248 of the Constitution which grants immunity to the President, a Governor, the Prime Minister and others, so that, among others, they shall not be answerable to any court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions.

And, when in Brig. Imtiaz Ahmad v Govt. of Pakistan [1994 SCMR 2142] it was sought to be argued that the appellant, a former Director, Intelligence Bureau, who had challenged the registration of some criminal cases against him by means of a petition under Article 199 of the Constitution, was not an ordinary man, the Supreme Court thought it necessary to recall, for the benefit of all concerned, the following observations of Wilmot CJ in that historic case, Wilkes v Woods [1769 19 St. Tr. 1406] “The law makes no difference between great and petty officers; thank God, they are all amenable to justice”.

Due Process of Law

Due process is the legal requirement that the state must respect all legal rights that are owed to a person. Due process balances the power of law of the land and protects the individual person from it. When a government harms a person without following the exact course of the law, this constitutes a due process violation, which offends the rule of law.

Due process has also been frequently interpreted as limiting laws and legal proceedings (see substantive due process) so that judges, instead of legislators, may define and guarantee fundamental fairness, justice, and liberty. That interpretation has proven controversial. Analogous to the concepts of natural justice, and procedural justice used in various other jurisdictions, the interpretation of due process is sometimes expressed as a command that the government must not be unfair to the people or abuse them physically.

The term is not used in contemporary English law, but two similar concepts are natural justice, which generally applies only to decisions of administrative agencies and some types of private bodies like trade unions, and the British constitutional concept of the rule of law as articulated by A. V. Dicey and others.

However, neither concept lines up perfectly with the American theory of due process, which, as explained below, presently contains many implied rights not found in either ancient or modern concepts of due process in England.

Due process developed from clause 39 of the Magna Carta in England. When English and American law gradually diverged, due process was not upheld in England but became incorporated in the US Constitution.

Substantive Due Process

The rules don't apply, or they're ridiculous. Standard procedures for managing situations don't always work. Example: A student is accused of cheating. Substantive due process addresses whether the rules are valid, make sense, and work.

Procedural Due Process

The rules. People in charge have to follow them. There are procedures for managing situations when a person is accused of misconduct. Example: A student is accused of cheating. Procedural due process is what they do to prove that, and how they decide to punish him.

United States

The Fifth and Fourteenth Amendments to the United States Constitution each contain a Due Process Clause. Due process deals with the administration of justice and thus the Due Process Clause acts as a safeguard from arbitrary denial of life, liberty, or property by the Government outside the sanction of law. The Supreme Court of the United States interprets the Clauses as providing four protections: procedural due process (in civil and criminal proceedings), substantive due process, a prohibition against vague laws, and as the vehicle for the incorporation of the Bill of Rights.

Other Countries

Various countries recognise some form of due process under customary international law. Although the specifics are often unclear, most nations agree that they should guarantee foreign visitors a basic minimum level of justice and fairness. Some nations have argued that they’re bound to grant no more rights to aliens than they do to their own citizens, the doctrine of national treatment, which also means that both would be vulnerable to the same deprivations by the government. With the growth of international human rights law and the frequent use of treaties to govern treatment of foreign nationals abroad, the distinction, in practice, between these two perspectives may be disappearing.

Dedication

The instant lecture-note is, wholeheartedly dedicated to my beloved teachers Honourable Chief Justice Supreme Court (Rtd.) Asif Saeed Khan Khosa, Prof Jamal Abbasi and Prof Dr Muhammad Naeem, who've been my great source of inspiration and gave strength when I thought of giving up, who continually provide their moral, spirtual and emotional support during my academic timeframe.

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About the Author

Muneeb Zafar is Managing Partner, Cyber Security Strategist, Systems & Web Connoisseur, Technical Trainer and Visiting Law Professor who've been addicted with Info-Tech since 1982... having passion of integrating business, information technology and law. Over 30 years of experience in Information Systems and Telecommunication Industry, Skilled in both technical and administrative supervision, have worked with distinguished corporate sectors and IT consulting companies, managing LAN / WAN technologies and have gained extensive technological and interpersonal experience from distinct variations of clients. He has proven his abilities to grasp quickly and ideally suited for the projects that are challenging both technically and politically. Apart from above, he has extensible experience in corporate practice i.e. Starting a Business, Contract Enforcement, Corporate Governance, Hiring & Firing of Workers, Trade Agreements and Commercial Contracts. You may follow him at Linked[in]

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