THE BASIC CONSTITUTIONAL PRINCIPLES

• Definition of constitutional law.

– constitutional law is the body of law which define the
role, powers, and structure of different entities (the
executive, the parliament/legislature and the judiciary)
within a state as well as the basic rights of citizens.
– In the federal state it further determine the
relationship between the central government and the
states.
 CONT…
• Constitutional law is the law relating to
constitution.
• That is to study constitutional law first we need to
discover what a constitution is?
• There are many competing definition of
constitution which may include those of the clubs,
organisation and other grouping.
• However our concern is the constitution of the
national state.
 SCOPE OF CONSTITUTIONAL LAW

• constitution sets out the relationship between

subjects/individuals and the state that govern in
our name.
• it defines the powers of the state and its agencies,
national, regional and local government, the
judges and the law makers.
• It specify who should do what and what is the limit
of their powers.
THE CONSTITUTIONAL PRINCIPLES OF ADMINISTRATIVE LAW

• Obviously, there are two basic constitutional

principles of administrative law. Which
includes:

• The doctrine of Rule of Law .

• The doctrine of Separation of Power.

 THE DOCTRIN OF THE RULE OF LAW

• The British constitution is founded on the rule of law and that is

the area where this principle is to be seen in its most active
operation.
• The primary meaning is that every thing must be done
according to the law.
• When this applied to the powers of government, this means that
every government authority which does some act which would
otherwise be a wrong or infringe a man’s rights must be able to
justify its action as authorised by the law.
• on the other hand, every act of the government power which
affects the legal rights duty and liberty of any person, must be
shown to have a strict legal pedigree.
 CONT…
• An affected person may always resort to the court of law to seek
remedy.
• That is, the sovereign is required to work under the maxim
“quod principi placuit legis habet vigorem” which means the
sovereign’s will has the force of law.
• Therefore many rules of administrative law are rules for
restricting the wide powers which Act of parliament (legislations)
confer very freely on ministers and other authorities.
• For example, planning authority to issue permission subject to
the condition as it think fit.
• The court will not allow these powers to be in a way that
parliament is not thought to have intended.
• The rule of law is the corner stone of the entire
administrative law.
• The doctrine was propounded by Sir Edward Coke who
had by then submitted that “the King should be under
the God and the law” and he established the supremacy
of law under the executives.
• The concept was also portrayed in the Magna Carta in the
early 1215 when it was held that “No free man shall be
taken or imprisoned or disseized or exiled or in any way
destroyed, nor will we go or send for him, except under a
lawful judgment of his peers and by the law of the land”.
 CONT…

• The doctrine of rule of law entails three major

aspects, namely:

• Supremacy of law

• Equality before the law

• Predominance of legal spirit

 FUNCTION OF THE DOCTRINE

• The essential role of the rule of law is to prevent

the abuse of the discretionary powers.
• Thus, the rule of law requires that the court should
prevent the abuse of the powers.
• As in the word of Lord Steyn in the case of R V.
Home Secretary ex p. Pierson (1998)AC 539 when
he said; “…unless there is the clearest provision to
the contrary, parliament must be presumed not to
legislate contrary to the rule of law”.
 THE BASIC PERINCIPLES OF THE RULE OF
LAW
• The principles of rule of law requires that the
government as well as private sectors are
accountable under the law.
• The laws are clear, publicized and stable, and are
applied evenly, protect fundamental rights,
including the security of persons and contract,
property.
• The three basic principles are:
 SUPREMACY OF LAW
• The absolute supremacy of the regular law as opposed to the
influence of arbitrary power or wide discretionary power.
• It excludes the existence of the arbitrariness, prerogative or even
wide discretionary authority on the part of the government.
• A number of writers have represented their views with respect to
this paradigm.
• Dicey “Englishmen are ruled by the law and by the law alone; a
man with us may be punished for a breach of law, but can be
punished for nothing else”.
• Wade “the rules of law require that the government should be
subject to the law, rather than the law being subjected to the
government”.
 EQUALITY BEFORE THE LAW

• There must be equality before the law or the equal subjection of

all classes to the ordinary law of the land administered by the
ordinary law courts.
• All people are subject to one and the same law, and there were
no extraordinary tribunals or special courts for officer of the
government and other authorities as opposite to Deroit
administratif which was described as negation of equality.
• Lord Denning has once said “our English law does not allow a
public officer to shelter behind a deroit administratif ”.
• In his submission he intends to show that all the subjects are
equal before the law and they should not be discriminated or
divided in classes for acquisition of their rights.
 PREDOMINANCE OF LEGAL SPIRIT
• This is the result of the judicial decision of the court where in many
country rights of personal liberty, freedom from arrest is guaranteed
in the written constitution.
• In England, it is not so. Those rights are the result of judicial decisions.
The role of court is as the guarantor of the people’s rights.
• Therefore, the rights can be secured more by the court then by mere
declaration of the documents where can be easily ignored, curtailed
or trampled.
• Dicey once said “our constitution in short is judge made constitution
…… mere inclusion of certain rights in the written constitution is of
little value in the absence of effective remedies of protection and
enforcement”.
• for example, Habeas corpus has declared no principle and defined no
rights; they are just for practical purpose.
 OTHER PRINCIPLES
• Accountability to the law. Those who have
been given power to execute the law must be
accountable.
• Fairness in the application of the law.
• Participation in decision making.
• Legal certainty.
• Avoidance of arbitrariness.
• Procedural and legal transparency
 APPLICATION OF THE DOCTRINE ENGLAND

• One can file a suit for damages as in the case of

Wilkes v. Wood; it was held that an action for
damages was maintainable for trespass, even if
the action complained was taken in pursuance of
the order by the minister.
• Even the police can be brought in to the action
individually for the wrongful action.
 APPLICATION IN TANZANIA/ ZANZIBAR
• Reference should be made to the constitutional provisions and
executive and judicial undertaking.
COMMENTS
• It is an effective instrument to control administrative authority within
their limit.
• The doctrine was never full accepted in England even during his days.
Crown enjoys immunity under the principle “the King can do no
wrong”.
• Dicey fail to distinguish discretionary power and arbitrary power. He
says where there is discretion; there is a room for arbitrariness. Hence
administrative authorities should not be given discretionary powers.
• That is, though arbitrary power is inconsistence with the rule of law,
discretionary power is not.
 DEROIT ADMINISTRATIF CONCEPT
• IT Involves two types of courts and laws independent from one
another.
• Ordinary courts administer the ordinary civil law as between
subjects and subjects.
• Administrative courts administer the law as the subject and state.
• Administrative authority or officials is not subject to the jurisdiction
of ordinary civil courts exercising power under the civil law in
dispute between the private individuals.
• It was criticized as it does not protect individual against the state.
Lord Denning has once said in the case of Ministry of Housing and
Local Government V. Sharp (1970) 2 QB 223 that “ Our English law
does not allow a public officers to shelter behind a deroit
administratif”. BUT it was also agued to provides better outcome
than English system.