Book Review on Tom Bingham’s Rule of Law with Cogent

Constitutional Provisions and Case laws

The Rule of Law is the topic of this era called the modern age, which
one cannot properly discus without measuring the name Tom
Bingham if one wants to do justice to the topic. The contents of the
book (THE RULE OF LAW) reach 174 pages and the preface which
takes three (3) pages within the pages of the content discloses the
motive behind and naming the subject as an existing constitutional
principle. A note spread over 22 pages and an index of 17 pages at the
end the book turned out to be of 213 pages. Each page having 37 lines
maximum and 13 words maximum i.e each lines and words shining
like a diamond set in the most beautiful manner.

The writer was blessed with clarity of impression that charms the reader from
whatever angle he reads the book. Sincerity speaks itself in every sentence in
the book. This book is divided into three parts.

Part One (1) deal with two subjects namely;

1. The Importance of the Rule of Law

2. History of the Rule of Law

Part Two (2) deals with eight (8) subjects, namely;

1. The Accessibility of the Law

2. Law not Discretion
3. Equality before Law
4. The Exercise of Power
5. Human Rights,
6. Dispute Resolution
7. A Fair Trial
8. The Rule of Law in International Legal Order

Part Three (3) deals with two subjects, namely;

1. Terrorism and the Rule of Law

2. The Rule of Law and the Sovereignty of Parliament

By Joseph Papa-Lee Kabia

Beginning the book the writer said that “Credit for coining the expression ‘the
rule of law is usually given to Professor A.V Dicey, the Vinerian Professor of
English Law at Oxford, who used it in his book called ‘Introduction to the study
of Law of the Constitution’, published in 1885. Dicey developed three pillars in
supporting the rule of law, these pillars are important factors in the
development of the rule of law. The first of Dicey’s pillars is the believed that
‘No punishment without a breach of the law’, the second pillar is that
‘Everyone is equal before the law’ and the third is that ‘Right are best
protected under the common law.’ One author has traced the idea back to
Aristole, who said that “It is better for the law to rule than one of the citizens
and he continues ‘so even the guardians of the laws are obeying the laws.
Aristole was focusing on the supremacy of the rule of law which is also in
content within the Sierra Leone 1991 Constitution of Act No. 6 Chapter Two
(Fundamental Principles of State Policy) to be more specific, Section 6 sub-
section 4 which state that “the state shall protect and defend the liberty of the
individual, enforce the rule of law and ensure the efficient functioning of the
government services.” Mr. Justice Blackburn state that “it is contrary to the
general rule of law to make a person judge in his own cause” the principle of “
Nemo Jude in Sua Causa” meaning nobody may be a judge in his own case.

Writing the above lines in the introduction pages the writer concludes that
Dicey have enormously influence the ideas of the rule of law but the rule of
law have enjoyed it supremacy long before A.V Dicey published his book. The
writer put forward not one but three point to prove that the rule of law have
enjoyed it supremacy long before A.V Dicey;

1. In cases without number judges have referred to the rule of law when
giving their Judgement
2. The references to the rule of law are now embedded in international
instruments of high sanding
3. Reference is now made to the rule of law in British Statute

The author traces the history of the rule of law by embarking upon the
following;

 Magna Carta of 1215

 Habeas Corpus; the Challenge of unlawful detention

By Joseph Papa-Lee Kabia

  The abolition of Torture
 The Petition of Rights, 1628
 Sir Matthew Henry Hale’s resolutions

The rules composed by Hale are masterpiece of Legal ethics. This is as follows;

 In the administration of justice, I am entrusted for God, the King and

Country and therefore
 That is to be done Uprightly, Deliberately and Resolutely
 That I rest not upon my own understanding or strength, but implore and
rest upon the direction and strength of God.
 In the execution of Justice, I carefully lay aside my own passions and not
give way to them even when am provoked to do so.
 I am wholly intent upon the business I am about, remitting all other care
and thoughts as unseasonable and interruptions.
 Thai I suffer not myself to be prepossessed with any judgement at all, till
the whole business and both parties is heard.
 That I never engage myself in the beginning of any cause, but reserve
myself unprejudiced till the whole be hard.
 In business capital, though my nature prompts me to pity, yet to
consider that there is also pity due to the country
 I am not too rigid in matters purely conscientious, where all the harm is
diversity of Justice.
 I am not biased with compassion o the poor, or favour to the rich in
point of justice.
 That popular or court applause or distaste, have no influence in to
anything I do in point of distribution of Justice.
 Not to be solicitous what men will say or think, so long as I keep myself
exactly according to the rule of Justice.
 In criminals that consist merely in words when no more harm ensues,
moderation is no injustice.
 In criminals of blood, if the fact be evident, severity in Justice is no
injustice
 To abhor all private solicitations of whatever kind so ever and by
whomsoever in maters depending

By Joseph Papa-Lee Kabia

  To charge my servants; Not to interpose in any business whatsoever, Not
to take more than their known fee, Not to recommend counsel, Not to
give undue preference to cause.
 To be short and sparing at meals that I may be fitter for business.

How full of wisdom is the list given by Hale and how graceful is its restatement
by our writer. “Hale recognized, as we would, that judges are servants of the
public whose important work calls for their serious, single minded, professional
attention. He knew that he should try excluding his personal feelings, avoiding
taking up any a partisan position and suspending judgment til all the evidence
and both parties had been heard. He acknowledged that in the matters of life
and death (“business capital”) the interest of the criminal must be weighed
against those of the public and the victim, and violent crimes might require
severe penalties, but where there is balance he inclined towards acquittal and
mercy. His resolution was to do what was just, irrespective of the public
opinion, he would favour neither rich nor poor. He would receive no private
representation concerning a pending case, and would keep the conduct of
cases in his own personal hands. These are standards which modern judges still
aspire. (The Sierra Leone 1991 Constitution of Act No. 6 THIRD SCHEDULE
(THE JUDICAL OATH)

General Review on the Rule of Law- Tom Bingham Supported with

relevant provisions in the Sierra Leone 1991 Constitution of Act No
6.
The question of what gives a parliament its legitimacy was raised in the book
by the writer. In most developed countries, Bingham points out; it is a written
constitution that gives parliament its legitimacy. The Legal Sovereignty
(Parliament) depends solely on the Political Sovereignty (the People) with
reference to Sierra Leone, Section 5 sub-section 2(a) of the 1991 Constitution
of Sierra Leone state that “sovereignty belong to the people of Sierra Leone
from whom Government through this Constitution derives all its powers,
authority and legitimacy” It is clearly that what Bingham said about the
legitimacy of parliament depending on the written constitution is also
supported in our Constitution. The people enter into social contract with a
limited number of people to represent them. Taking it from content to

By Joseph Papa-Lee Kabia

context! Section 31 of the 1991 constitution Act No. 6 (Sierra Leone) state
that “Every citizen of Sierra Leone being eighteen years of age and above and
of sound mind shall have the right to vote and accordingly shall be entitled to
be registered as a voter for the purpose of public election and referenda”
through his process, the people surrender their power for security, peace and
their welfare to the government. Tom Bingham in his book The Rule of Law’
state that failure to do what the people vote for must result to a courts action
to force the government to perform according to what the people voter for
and also tell the legislature that it has acted beyond its powers. Sadly! In the
context of our constitution these Fundamental Principles of State Policy that
are found in Chapter Two of the Constitution are not justifiable, look section
14 of the same constitution but is was recommended by the then
Constitutional Review committee that fundamental Principles of State policy
must be made Justiciable in Sierra Leone. The Sierra Leone 1991 Constitution
guarantee the protection and Recognition of Fundamental Human rights and
the Freedoms of the Individual in Chapter 3 section 28 sub-section 1 which
sate that “Subject to the provisions of subsection (4), if any person alleges that
any of the provisions of section 16 to 27 (inclusive) has been, is being or is
likely o be contravened in relation to him by any person (or, in the case of a
person who is detained, if any other person alleges such a contravention in
relation to the detained person) then, without prejudice to any other action
with respect to the same matter which is lawfully available, that person, (or
that other person), may apply by motion to the Supreme Court for redress”
The issue is not unreal, for government has more than once in recent years
tried to get Parliament to pass measures which strike at such fundamental
rights as access to the courts or freedom from arbitrary detention said
Bingham. Bring it to the context of Sierra Leone, section 20 sub-section 1 of
the 1991 state that “ No person shall be subject to any form of torture or any
punishment or other treatment which is inhuman or degrading” of the

EIGHT (8) PRINCIPLES OF THE RULE OF LAW DEVELOPED BY TOM BINGHAM’S

The heart of the book is then devoted to a thorough examination of these

eight principles listed below;

1. Accessibility of the Law:

By Joseph Papa-Lee Kabia

 Bingham’s believed that each law any country must be easily accessible and
clear in all manners. For one to obey the laws of the land, one need to
known the laws and able to access them freely. In the context of Sierra
Leone our laws are found at section 170 sub-section 1(a) (b) (c) (d) & (e) of
our current 1991 constitution of Act No. 6. Section 171 sub-section 15
clearly state that “This Constitution shall be the supreme law of Sierra
Leone and any other law found to be inconsistent with any provision of this
Constitution shall, to the extent of the inconsistency, be void and of no
effect”. Professor Joseph Raz stated that the rule of law can exist without a
legal system pursing moral goods. He further made it clear that the rule of
law must be accessible and independent, not impossible for the people to
adhere to the laws. John Rawl also supports the point of Joseph Raz in his
public statement with regards o the rule of law. John Rawl stated that the
law must be known and it must abide by natural justice.

2. Governed by Law and not Discretion:

Bingham’s said in the context of his book that the state must be rule or preside
over by laws and not by judgement and he provide an example of when a state
is rule by judgement. He made measure of the case of John the Baptist and the
King, because at that that the people are rule by discretion and not laws so the
king have to kill John the Baptist just to keep to his promise to the daughter. In
the content of Sierra Leone, the country is governed by laws found in section
170 of our 1991 Constitution. Lord Hutchinson stated that he rule of law must
be a government of laws not a government of man. In the case of R (ON THE
APPLICATION OF S) V SECRETARY OF STATE FOR THE HOME DEPARTMET 2006
the court held that the Home Secretary had too much discretion about
whether he can deports someone on his own judgement or not, which
undermines the Rule of Law. The lord lords state that the people must be
governed by laws not discretion.

3. Equality before the Law:

Taking it from the stand point of the 1991 Constitution of Sierra Leone, section
23 sub-section 1 to sub- section 11 clearly protect the doctrine of equality
before the law that Bingham’s was explaining in his book. In the case of M V
HOME OFFICE 1993 the home Secretary argued that ministers worked for the

By Joseph Papa-Lee Kabia

crown and the crown could not prosecute itself in its own courts but it was
held that the Home Secretary was guilty of contempt of court- this is to ensure
court rulings are obeyed. The lord lords said that ministers had to act in
accordance with the idea of the Rule of Law; they were under the rule of law in
the same way as everyone else and they are not above the law. On the flip side
Bingham’s in the content of the book state that not everyone is equal before
the law and he made measures of the following people which are not equal
before the law; The Prisoners, Slaves, Judges, President, Non National’s of a
country and in some culture and traditions women are not equal before their
customary laws. Bingham’s teaching of the equality before the law is not in the
same line what A.V. Dicey think equality before the law is. Putting it in the
context of Sierra Leone, Section 120 sub- section 9 of the same constitution
state that “A Judge of the Superior Court of Judicature shall not be liable to any
action or suit for any matter or thing done by him in the performance of his
judicial function”, A head of state in any sovereign state enjoy sovereign
immunity. As long as he/she remains the head of that country, he/she cannot
be held accountable for his/her action during his/her tenure. Section 46 sub-
section 4 of our constitution state that “ While any person holds or performs
the functions of the office President, no civil or criminal proceedings shall be
instituted or continued against him in respect of anything done or omitted to
be done by him either in his official or private capacity”.

4. Exercise of Public Power:

Bingham defined public powers as powers that are found in statues and their
mandate are also found in the same statute. In the context of his book,
Bingham also said that such powers must be use with honesty, reasonableness,
fearlessly and most importantly for the purpose for which they were provided
for by the statue. In the context of Sierra Leone, the constitution provides the
jurisdiction and limitation of all arms of government and all other government
institution that are formed under the 1991 Constitution of Sierra Leone. The
whole of Chapter Five, Six and Seven of the 1991 constitution of Sierra deals
with the three organs of government namely; The Executive, The Legislature
and the Judiciary. The scope and limitation of each organ is addressed in one of
the three chapters.

5. Dispute Resolution:

By Joseph Papa-Lee Kabia

Bingham’s recommends that there should be an independent legal body which
he thinks will provide us with speedy trial system. He did not dispute the fact
that there are other means of Alternative Dispute Resolution which may
include arbitration, reconciliation and negotiation process but he strongly
recommends faster litigation processes. Putting it into context, we have our
court systems which are provided for by the constitution, the local court act
and the court act all for the purpose of dispute resolution.

6. Human Rights:

Tom Bingham’s in the content of his book “The Rule of Law” state that the
human right at every level must be protected by the state. The right to life,
right to freedom of movement and freedom of conscience must always been
protected and made Justiciable. Section 28 of the 1991 Constitution made the
provision of fundamental human rights enforceable and Justiciable. Section 15
of the same Constitution state that “Whereas every person in Sierra Leone is
entitled to the fundamental human rights and freedoms of the individual, that
is to say, has the right, what so ever his race, tribe, place of origin, political
opinion, colour, creed or sex, but subject to the respect for the rights and
freedoms of others and for the public interest, to each and all of the following;

 Life, Liberty, Security of Person, enjoyment of property, and the

protection of law
 Freedom of conscience, of expression and of assembly and association
 Respect for private and family life and
 Protection from deprivation of property without compensation”

7. Fair Trial:

Bingham’s put into content that each state must provide the process of fair
trial. The accused person must be presumed o be innocent until he is proved or
has plead guilty, the accused person must be informed at the time he /she is
charged in the language which he understands and in detail of the nature the
offence he/she is charged for. In the context of Sierra Leone, section 23 sub-
sections 1 (1) to sub-section 11 provides the platform of fair trial under Sierra
Leone Laws. In the land mark case of A AND OTHERS V SEC OF STATE FOR THE
HOME DEPARTMENT (2004) UKHL 56 (THE BELMARSH CASE) this case

By Joseph Papa-Lee Kabia

involved 9 non-British nationalists who had been detained in Belmarsh prison
under a derogation which gave the government extended powers to detain
foreign nationals on terrorism changes without trial, with no real prospect of
being released. The House of Lords looked at the legality of detention of these
people in line with fair trial. In was held that the government had exceeded
their powers by using derogation. The house of lord also held that the
detention was discriminatory and disproportionate. “Indefinite imprisonment
without charge or trial is anathema in any country which observes the rule of
law. (Lord Nichols)

8. Compliance with International Laws:

When explaining this last principle Bingham place the Rule of Law on a
global stage and discuss war since it is a fundamental pre-occupation of
international law. The state must always comply with it duties in
international as well as national laws. Bingham’s stress the point in his book
that, the state must always be in the position to support international
agreement and laws that protect the rights of it citizens, example of such
laws are; European Convention of human rights law, International
Environmental Laws with regards to the protection of our environment and
so many more. Sierra Leone has been working hard to keep to international
agreement and enforce international law in protecting our citizens. In the
context of Sierra Leone, the 1991 Constitution of act No. 6 section 10 (c)
(d) state that “respect for international laws and treaty obligations, as well
as the seeking of settlement of international disputes by negotiation,
conciliation, arbitration or adjudication” Sierra Leone base on it
constitutional provision should always try to comply with international
Laws. Section 40 sub-section 4 (d) (h) of the same constitution clearly show
how international Laws, treaties and convention can be adopted into our
laws and be respected by our court.

Conclusion

Whatever the detail, Bingham has a clear response: critics, he says, must
ultimately answer two questions (questions which voters might well want to
ask their candidates). First, which of the ECHR rights that he describes in his
text would they discard? Second, would they rather live in a country in which

By Joseph Papa-Lee Kabia

these rights were not protected by law?

Bibliography

 Tom Bingham’s Rule of Law Text Book

 Tom Bingham’s public Lecture on the Rule of Law-YOUTUBE
 The Sierra Leone 1991 Constitution
 Stephen Sedley Book Review on Tom Bingham’s Rule of Law-published
on Line 2010.
 Alasdair Palmer Book Review on Tom Bingham’s Rule of Law-Published
on Line 2010
 Warren Pyke Book Review on Tom Bingham’s Rule of Law-Published on
Line March 16th 2012.
 Justice Dr. Munir Amhmad Mughal Book Review on Tom Bingham’s Rule
of Law-Published on Line.

By Joseph Papa-Lee Kabia