Principles of Public Law

Class 1B
Constitutionalism and the Rule of Law

Dr Svetlana Tyulkina
Surbhi Karwa
T3 2023
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Recap

Revision
Question from Previous Class?
Today’s Class

 First two week- setting the intellectual context or framework of the

course
 Big Picture and small details
 Two big ideas today
 Both are conceptual and abstract
 Hard to grasp- Professor Krygier- meaning and application of
concept of law
 Both concept often referred in real word- but what is their meaning in
language of constitutional law
Focus Questions

1. What is a constitution? What is its purpose?

2. How would you classify the Australian Constitution and the constitutions of the
States - written/unwritten, flexible/rigid?
3. What is the difference between political and legal constitutionalism? What does
each require to function effectively?
4. Why have a separation of powers? In simple terms, what powers are ascribed to
the three arms of government in Australia?
5. What is the difference between formal and substantive conceptions of the rule of
law?
6. What are the three main elements of AV Dicey's notion of the rule of law? Would
you call Dicey's conception formal or substantive?
7. Why is the existence of the rule of law in Britain said to be a 'puzzle'?
Introducing Constitutionalism
and the Rule of Law
What constitutions are
What primary functions constitution perform
What primary purpose constitution have
All constitutions give effect in different ways to the idea of
constitutionalism
 Constitutionalism and the Rule of Law
Objectives of today’s class:
Slightly different in respect of the two concepts

Note: these concepts form the very foundation

of this course and are often included in mid-
semester assessment or final exam

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 Introducing Constitutionalism
and the Rule of Law
Constitutionalism is a more or less confined
and less radically contested concept.

=> Objective: by the end of the term you should

be capable of talking in confident and
knowledgeable terms about Australia’s
particular brand of constitutionalism.

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 Introducing Constitutionalism
and the Rule of Law

The notion of the rule of law is a very big idea, a political

ideal. It is an exceedingly elusive notion.
=> Objective: by the end of the course you are expected to
be able to draw connections between what we cover and
the concept of the rule of law in a well-informed way

Test your own assumption about democracy, power and

law and ingredients necessary to say that a society has rule
of law

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 To simplify:
- the rule of law is more in the background as an
abiding concern in the discipline and practice of
law, especially in the field of public law.
- constitutionalism is in the forefront of what we
are looking at and at the end of the course you
are expected to have clear and detailed ideas
about Australian constitutionalism.

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ANSWERS?
 Constitutionalism

 Hypothetical example- constitutionalism absent- no rules

defining regulation of power- from the perspective of
individual/ group public power not limited or contained
 Stark example- Limits of power
 Nick Barber- ‘negative constitutionalism’
 Constitutionalism in the negative sense of the word-
reducing, constraining, containing governmental power-
through rules, structures and institutions
 Admin law and Fed Con- accurately describing what
notions of negative constitutionalism is, how limits are
imposed on the exercise of political or govt power
 Constitutionalism

 Negative constitutionalism is the dominant way for lawyers

 Not a full picture
 Look closely- the rules, structures, institutions that limit the
government are also from another angle, in many respects defining
the powers of the govt at the same time
 In this sense rules, structures can be seen in more positive sense
 As confirming the existence of power
 The limits define the boundary and confirm that within the boundary
the power of govt exists to do things
 Constitutionalism

 The concept of constituting a government and empowering it

 Supporting or facilitating the exercise of power by identifying its
source
 BW Pg 2: constitutional establishes ‘a strong governmental chain of
command’
 Or when Italian political scientist Sartori says at Pg 3- constitution is
the ‘formalization of the power structure of the given country’
 In our hypothetical example- there was no rule, structure, or
institution to make building of schools, medical centres possible
 Constitutionalism

 Side of the same coin

 Dual character
 True nature of constitutionalism is lost sometimes
 BW recognizes both the characters
 Different jurisdictions- different emphasis between the
two dimensions
 US, UK, Australia, China, Russia, India, South Africa:
dimensions of empowerment and constraint
 Constitutionalism in Australia

 how do these views of constitutionalism compete for dominance

here?
 Does one idea tend to prevail over the other?
 BW shows constitutions variety of shapes, sizes
 Some dichotomies can help us understand variety of constitutions of
word-
flexible v. rigid
written v. unwritten
 Constitutions
Before dichotomy important to ask: Why are Constitutions considered
important?
the particular system, design or blueprint for government adopted by a given society.
What can they tell us about a society and its system of govt in the most high-level
macro terms
Adam Tomkins – constitutions establish
- 1. the powers that the institutions of govt have to make laws and
take action
- 2. the place of the people inside a system of govt
- 3. the values which a particular society makes claims to.
Three things to think about in Australian context too
institutions, the place of the people and the values espoused or embedded in the
system
Difference between written and unwritten
constitution?
Anyone? What does the commentary say?
Written v. Unwritten Constitutions

 Where do we find a constitution?

 the constitution is codified in a single document or at least found codified
relatively across coherently across a small series of documents.
 India, SA: written constitution
 New Zealand, UK and Israel : largely unwritten constitutions.
 Bit exaggerated- UK does not have a constitution? – Many parts of the
constitution do exist in written form eg UK has Magna Carta, Bill of Rights
1689, Act of Settlement 1701, Parliament Act 1911, Human Rights Act 1998,
legislation devolving power to Scotland, Nthn Ireland and Wales: ‘functional
equivalent’
 Unwritten constitutional convention entrenched practices and
understandings that are politically very influential but not legally binding on
their own.
What about Australia?

 2 Levels- always think of the two levels in this course the potential relevance
of federalism
Federal level- Yes
 Drafting process in two Constitutional conventions in 1809s
 Enactment inside a UK Act in 1900s
 there is also Statute of Westminster 1931 and Australia Acts 1986 (See
Appendix to BW7)
 supplemented by the common law and unwritten conventions
 At State Level – Constitution Act, 1902 (NSW), supplemented by law and
conventions
Difference between Flexible and Rigid
Constitutions?
Anyone?
Flexible and Rigid Constitutions

 Another distinction about different kinds of constitutions

 James Bryce, British lawyer gave the distinction – He had influence
on Australian drafters through his work on US constitution
 He also influence AV Dicey
 flexible constitution is as easy to change as ordinary legislation:
ordinary process
 rigid constitution is one that requires special and more difficult
procedure to be followed if the wording of the constitution is to be
changed: different process from ordinary laws
What About Australia

 State Constitution of NSW can be amended by state parliament

through passing a law in both houses- written and flexible
 Section 128 of Commonwealth constitution reasonably rigid
 Question in last class
 Only 8/44 successes
 What was the procedure (double majority)
 Constitutionalism

Political v legal constitutionalism - key

differentiating factor (Tomkins, in B&W, 4- 6):

Whether the last say/decisive legal say on

constitutional limits of power is given to the
judiciary or political institutions

All constitutions answer it in some way-

US/UK/India

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 Political v legal constitutionalism
Constitutionalism- provide institutions and means to hold them
accountable-
this can happen politically or legally

Tomkins (p 5) describes two basic models:

PC = where ‘those who exercise political power … are held to

constitutional account through political means and political
institutions’ such as Parliament (5.25)
- debates, asking questions, commissions and inquiries in Parliament
- Govt can hold power only till it has majority- scrutiny by political
opponent, media- thus the idea that politics can be a potent source
of accountability
Political v legal constitutionalism

 LC = where ‘the principal means and principal institution through

which the govt is held to account’ are the law and the courts (5.3).
 judicial review: going to court
 That law will be taken as technique of holding govt accountable
 Constitutionalism
• How do the two models work?
• If either is to make good its claim, then what
assumptions need to be fulfilled, in a practical sense, in
the real world?
• What of the values these models embody?
• How to evaluate the merits and limitations of these
models?

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 Constitutionalism
Political Legal
Values- open, transparent, Values- not inherent tied to majority
participative, deliberative

Assumption robust and vigorous 1. independence of judges from other

political processes are assumed branches of government is assumed
2. Willingness of judges and society to
use law as tool of accountability
Example- India
Potential concern(s): treatment of Potential concern(s): expense and
minorities by political majorities other to the courts issues, capacity to
Institutions may not truly function as follow-up and enforce own decisions
per theory

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Vulnerabilities of PC

 Institutions may not work as per theory- Parliament is supposed to

act as a check /hold the govt accountable- Executive dominance in
parliament- majority party in the house- Perks, career incentive of
party loyalty- Upper house might be different
 Minorities in a majoritarian system (p 5.10): what political/electoral
levers do they have available; what political/electoral incentives are
there for politicians to be responsive or accountable to minorities?
 Rights may function as check: Rights protection is left to politicians
 accountability criteria may not be rational and enduring values or
principles, may be transient and possibly rash or irrational
Vulnerability of LC

 Would judgements be enforced

 Democratic deficit and legitimacy- elite- unelected judges and
lawyers: not accountable to wider community
 Depends on formal process and access to justice: Suing is
expensive
British System

 Traditionally political constitutionalism – Diecy’s view

 The PC has come under challenge
 Thin rule of law
 Brexit
 The Supreme Court decision holding the advice of Boris Johnson
govt. to shut down the parliament was unconstitutional
 Caused a big stir
What do you think?
Australia- more preference for political constitutionalism?
What are judges saying?
But there exists an American style judicial review- Washminister system?

NEXT CLASS!

BW:
‘one of the recurrent challenges for the HC…is to determine the extent to which it
should defer to politicians and political processes in defining the reach of
governmental power’.
 Separation of Powers

How can we link it to Constitutionalism?

Origin of the ideas of separation of powers;
Theory v practice;
SoP in Australian Constitution;
4th branch?

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Who/What are the fundamental players/institutions in the Australian constitutional
system?

 Three branches- as seen on the board

 SoP idea of separation/differentiation of three different/separate
functions of govt.- three separate institutions
 Descriptive approach to SoP
 As opposed to descriptive as allocation of function, let us think more
normatively- values
 “What does it mean to say that there is a separation of the judicial
branch of government from the other branches and why is that
separation seen as important?”
Separation of Power

 Judiciary has to be independent: one application of idea of

separation of the three powers
 Institution that exercise judicial review on political power has to be
separate from commonwealth- it has role in deciding the limit-
 In federal system- judiciary has to be independent to interpret
powers b/w state and federal level
 Independent umpire
 Thus judicial independence related to written constitution, federal
constitution and judicial review
Separation of Power

 the relationship of the institutions to ‘the people’ is not the same as

the horizontal division of power across the three institutions of govt.
 How our system explain the relationship between these entities in
constitutional terms.
 Not without tension, contest, struggle for power : Dynamic tension
 Separation of power: Origin, Concept

 Old concept- Aristotle- Montesquieu

 1700s- Montesquieu- for maintenance of liberty- fragment power-
do not concentrate it in one hand
 Said in British context- although disputable how far his model
applicable to British context at the time of his writing
 Montesquieu-
“Political liberty is to be found…only where there is no abuse of power.
But constant experience shows us that every man invested with power
is apt to abuse it, and to carry his authority as far as it will go. …To
prevent this abuse, it is necessary from the very nature of things that
there should be check to power”
 Separation of power: Origin, Concept

 British system deliberately blurs the lines of executive and

legislature for responsible govt
 Phillips & Jackson BW and Carney: complete SoP not possible
 Strict separation- no overlap, no coordination- will make matters
unfunctional
 More in sense of protecting against tyranny: system of check and
balance
USA
Institution Power Personnel Check
Congress Power to make laws Elected Presidential Veto
Representatives Judicial Review by
SC
President Executive Power Elected. Senate Ratification
Cannot be member necessary for some
of congress appointments and
treaties/
Judicial Review.
Impeachment by
removal by
congress.

Supreme Court Judicial power- Appointed by Impeachment by

judicial review of President with Congress
legislative and senate ratification.
executive action
Westminster System
Institution Power Personnel Check
Parliament Make Laws Representatives Royal assent and/or
elected to lower expulsion by house
house.
Elected/appointed
to upper house.

Executive Council Executive Power Ministers appointed Maintain support of

(Cabinet) by crown with the lower house.
support of lower Parliamentary
house and must be accountability.
member of the
Parliament.

Courts Judicial Power Judges appointed by Removal by Crown

executive on as address from
both houses on
certain grounds
Separation of Power in Australia

 Three institutions- three chapters

 Structural separation in text-
Chapter 1 establishes and regulates legislature
Chapter- 2 executive
Chapter- 3 judiciary

This is similar to US influence

Separation of Power in Australia
 Similar to British- not strict separation between executive and
legislature in Australia
 Responsive govt- section 64
 In fact, member of cabinet has to be member of the legislature
 Accountable to parliament
 Sometimes people use legislature and executive to wrongly mean
the same thing
 On the other hand the separation between executive and judiciary is
strict
 Not a bug, but a design feature
4th Branch Institutions

 proliferation of regulatory schemes and institutions

 Emerging branch based around the concept of ‘integrity’.
 Meaning of integrity?
 One meaning is- anti corruption- but integrity more than that-
 Legality, fidelity to purpose, fidelity to public values, accountability
 Broadly standard expected of exercise of public power
 RoL, Liberal democracy
 Examples- Auditor General, Ombudsmen, Information Commission,
Anti Corruption Commissions
 No textual or structural basis in the Constitution
 The structural separation of other three is evident
 This structural separation has influenced thinking of the HC
What rule of law is precondition to? What can it
help to secure?

Views?
 Rule of law
What rule of law can help to secure?
• order, certainty and predictability
• accountable government
• fairness and/or justice
• Individual liberty and freedom
• sustainable economic development: contracts- ex

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 Rule of law
The Rule of Law: An Elusive Concept

- RoL includes protection of individual rights?

- Democracy is part of RoL or RoL is part of democracy?
- RoL is purely formal in nature (laws are set in advance in
general, clear terms, and be applied equally to all) OR
- Broader understanding to include social, economic,
cultural and educational conditions to realize man’s
legitimate aspirations and dignity?
- Fewer to more conditions
- Brian Tamanaha- rescue from complete emptiness

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Rule of Law

 Authoritarian regimes use it in oppressive way- Rule by law (Li

Shuguang)
 Rule by law: law as a mere tool for govt to carry out its suppression
in legalistic fashion- say nothing about content
 Rule of law: Law as a check against abuse of power
 Global endorsement- Tamanaha- even those perhaps authoritarian,
non-liberal- invoke Rule of Law, not exclusive to west- claim to have
it in their system yet ubiquitous
Formal and Substantial Rule of Law

 Formal concept- proper source and form of legality

 Clarity of norm, manner in which it was passed/norms and
procedure, temporal dimension (prospective)
 Slavery- apartheid- segregation-
 Substantive concept- apart from formal also concerned with content-
(justice and moral principles)
 Not to say that formal do not have substantial consequence and that
substantial does not require formal requirements
 We will continue to think of this in coming weeks
 Dicey’s Rule of law

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 Dicey’s concept of the rule of law

1 2 3 Rights of
individuals are
secured through
Supremacy of Equal subjection
the common law
regular law to the law
and Parliament,
not the
Constitution
Dicey’s concept of the rule of law

One of the most influential ones

1. supremacy of regular law, as opposed to arbitrary power : punished alone for

breach of law and law alone

2. equal subjection to law- no matter rank or condition is subject to ordinary law and
ordinary jurisdiction (equality mainly in the sense that officials are not exempt, a
deficit which he attributes to European regimes- France Droit Administratif- bit
peculiar based on British system)
 What do you think Dicey is suggesting as the third meaning of
the rule of law?

- faith in the capacity for rights of individuals to be secured through

normal functioning of common law and parliament
- organic and inherent to the operation of the westminister system
- Not grafted on, top-down, by some codified statement of rights.

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Where does Dicey’s conception of RoL falls?
 Rule of law: Dicey

Dicey’s rule of law: is still highly influential but it has been the subject of
criticism.
- too formalistic
- ignores the dimension of constitutionalism concerned with limits of power
- little concern with substantive equality: (side note: what is substantive
equality?)
Observe its closeness to positivism
First and second- procedural: any content can be law as long as procedure is
followed
Hard to put third one
- attention to the courts’ role in statutory interpretation
- once Parliament has done its job of making the law it falls to the judiciary to
interpret the meaning of statutes
- Small C function- class 7A, 9B

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Rule of Law: British System: ‘A Puzzle’

For most part of its History-

 no written constitution (constitutions provide power and limits)
 no codification of individual rights
 no JR of constitutionality of legislation
Yet considered birthplace of liberalism- bastion of RoL (challenges in
recent past)
Rule of Law: British System: ‘A Puzzle’

 Another reason for considering it a puzzle is because British system is

based on parliamentary sovereignty
 Dicey- Historical view
 What is parliamentary sovereignty?
 2 Factors:
 Absence of Judicial Review: Lord Simon in Pickin v. British Railway Board
(1974)- the courts have no power to declare enacted law to be invalid
 Supremacy of statue over common law
 Class 4
 Dicey claims that parliamentary sovereignty and rule of law is reconciled in
Westminister system
 Important for today’s class: decisive legal say is with parliament not courts
Rule of Law: British System

 More acceptance today of RoL as blend of procedural and

substantive aspect in UK than first half of 20th century
 Lord Bingham’s 8 sub-rule go beyond Diceian idea of RoL
 ECHR, HRA- creeping influence on legal and political culture
 In R (UNISON) case
 Future of ECHR and HRA although debatable
 Concerns remain in some sections re HRA
Tamanaha
The interplay of institutions:
• Historic evolution of system- law sovereign legislative will – 19th century positivism
• Pg 17-19- this story told
• Values of Accountability and rights

Cultural and Attitudinal restraints

• that those in power affirm that they are bound by law, and
• that there is a widely shared assumption in society as a whole that govts are, like
everyone else, bound by law
• that as a matter of routine conduct - the daily operation of the system - the govt
will act within the confines of the law.
• Not just law but attitude about the law

• Rule of law is set of rule and institutional arrangements. We in this course are
focused on rules and institutions : ideas and legal and political culture.
 Rule of law
Other views:
Tamanaha (political cultural norms)
Jennings: SOP, equal law- equally administered- sue/sued-
Lord Bingham (8 sub-rules)
 ICJ: several components beyond very thin notion of
equality-
 ICJ- Two notions- “law itself is based on respect for the
supreme value of human personality.”

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Rule of Law: Other views

 Julius Stone (substantive ethical component)

 Human rights and RoL not competing ideas but dignity, pre-
supposing equality in legal doctrine- part of rule
 Connects RoL as substantively connected to social and economic
development- substantive justice
 Uncomfortable for legal positivist- who see strong separation
between law is and law ought to be
 Legal positivist- law’s definition can be arrived at without resorting to
political morality
 Rule of law
Dicey Bingham Stephen
Supremacy of regular law (cs Accessible, intelligible, clear & Government is under law (ie,
arbitrary power) predictable equal subjection)
Equal subjection to law Rights/liabilities decided by law, Judicial independence – free of
not discretion govt influence
Faith that rights protected Equal application of law: except Access to the courts
through Common Law & objective difference justify
Parliament’s wisdom differentiation
Protection of HR Law = certain, general, equal
Access to process for resolving
civil disputes
Ministers, officials exercise
powers reasonably, in good faith
& intra vires
Fair court procedures
Compliance with international
obligations
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 Rule of law in Australia
Formal or substantive?
strong strain of Diceyan thinking
Consider: Sir Ninian Stephen (ex HC judge (1972-82) and Governor-
General (1982-89)): identifies four principles
Tension in Hybrid system
Fundamental but not very elaborated in the Constitution
Sometimes used as rhetoric
More in formal sense/thin sense/procedural sense
some substantive notion like rights discussed- more as part of legality

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Public Law News Items?
QUESTIONS?
Know that we are going to come back to this.
 Next class

Constitutional Hybrid A
Readings- B&W, Peter Leyland,
Video

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