Basic constitutional principles (administrative law)

 

BASIC CONSTITUIONAL PRINCIPLES:

Basic  and fundamental constitutional principles which every constitution must contain.

i. SEPARATION OF POWER:

Separation of power is the constitutional doctrine which operates from the premises that the state has three organs, Namely; the Legislature, Executive and Judiciary. The doctrine emphasized on the non interference in the performance of their respective functions. That one organ should not usurp or merge function belonging to another organ unless otherwise expressly provided or incidental to the power conferred to it. The “Legislature” cannot exercise either “executive or Judicial power”. The “Executive” on the other hand cannot exercise either “Judicial or Legislative power”, likewise the “Judiciary” cannot exercise either “Executive or Legislative power”.

In its classical sense, the theory of “Separation of Power” envisaged personal separation of powers. It is in that same token Montesquieu the  most notable exponent of the doctrine on his book “ De l’esprit des lois” of 1758 translated as “The Spirit of Law” stated that : “ when the Legislature and Executive powers are united in the same person or in the same body or magistrate, there can be no liberty. Again there is no liberty if the judicial power is not separated from the legislature, and executive powers were it is joined with the legislative powers : the life and liberty of the subject would be exposed to an arbitrary control, for the Judge would then be the legislature. Where it is joined with the executive power, the Judge might behave with violence and oppression. There would be an end of everything where the same man (body) exercises these three powers”. It is all about separation of power in organs and people who exercised the power.

James Madison one of the primary authors of the American Constitution in which this doctrine is explicitly entrenched stated that “ The accumulation of powers; legislature, executive and judiciary in the same hands whether of one, a few or many and whether hereditary, self acquainted or elective may justly be pronounced as the very definition of tyranny”. He meant vesting all the three powers in one person is similarly to having dictatorship.

SEPARATION OF POWER IN PRACTICE:

In the modern state the rigid application of Separation of powers has been difficult. If not in practicable though it is still true to acknowledge that the function of the state are divisible into the said three categories i.e. Executive, legislature and Judiciary, it is rather not practical to assign these functions exclusively to the three organs.

The three organs do depend on each other even though they have divisible function. The problem is compounded be the fact that, it is not possible to define the function of the three organs with mathematical precision and say that the business of the legislature is to make law, of the executive to execute them and of the judiciary to interpret and apply law to particular facts. All these impracticability it is because of the complexities of the prevailing circumstances of the modern state.

Therefore due to the impracticability of the doctrine of separation of power as propounded, a distinction is made between essential and incidental powers of an organ of the state.

One organ cannot claim to exercise the powers essentially belonging to another organ, but may without infringement of the principle of separation of power exercise some of the incidental power of another organ. i.e practice.

An eminent writer on Constitutional law one Felix Frank Furter “writing on the public and its government 1950” lucidly expressed the scenario “functions have been allowed to courts with Congress  itself might have legislated. Matter have been drawn from the courts and vested in executive. Laws have been sustained which are contingent, upon executive judgment on highly complicated facts. By this means, congress has been able to move with freedom in modern fields of legislation which they are great. Complexity and shifting facts calling for technical knowledge and skills in the administration. Enforcement of the rigid conception of separation of power would make modern government impossible”. 

Separation of power in practice has relaxed the rigid separation of power.

For instance; in the case of Bi.Hawa Mohamed vs. Ali Seif[1983] TLR 32. The Court interpreted progressively section 114 of the Law of Marriage Act of 1971. Led to a judge made law with an incidental function of the judiciary deviating /departing from the water traditional sense of the doctrine of separation of powers is different from practical part.

Thus in order to function efficiency each organ must exercise some incidental powers which may be said to be strictly of the different character than its essential function. Eg in order to function efficiently, the court must possess the power of making rules regulating the procedure, even though that power may be in the nature of legislative power. The power of making rules of procedure in the courts is not regarded as of essence of the function of the judiciary.

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Civil procedure Code- where there are sections and orders within it, and who enacts what between the section and orders within the Civil Procedure Code?

In spite of that, in interpreting laws and in formulating precedents, the court do in fact perform a function akin to the law making, in particular when dealing within your problem where authority is lacking.

In such circumstances the courts have to create the law even though under the color of interpretation of and deduction from the existing law e.g. in the earlier referred case of Bi. Hawa Mohamed the court stated that the joint efforts and work towards the acquiring of the assets has to be construed as embracing the domestic efforts or work of husband and wife.

Subsidiary legislation is another example a function which is purely legislative but which is delegated upon the executive which are not legislators.

However where as the rigid application of the doctrine does not hold water in modern states, the principles of checks and balances is underlined in this doctrine to ensure that none of the three organs of the state can usurp the essential functions of the other organ.

Checks and balances as a principle allow for a system based regulation that permits one branch of the state to limit another organ in the exercise of the essential powers. It is designed to let each state organ to restrain interference of essential powers by another organ. Fundamentally therefore it can be stated that, the principles of checks and balances imposes limits on all organs of the state by vesting in each organ the right to amend, correct, voice out or void those acts of another organ that fall within its purview (sphere of operation)

Recommended readings:

Article; 4, 33, 34, 62, 108 and 117 of the Constitution of the United Republic of Tanzania.

Cases:-

Mtikila vs. Attorney General [1995] TLR. 31

LujunaShubiBalonzi  vs. CCM [1996] TLR. 203

Mwalimu Paul John Muhozya vs. Attorney General [1996] TLR. 130

PARLIAMENTARY SUPREMACY

The concept of parliamentary supremacy is based on to close linked assumption i.e.

i. The  parliament is the organ vested with authority to exercise control and supervision over the government  i.e. budget.

ii. The legislature supremacy of parliament which means that the parliament can without an inhibition whatsoever  pass any law on any topic and affecting any person and anything there is nothing in respect of which the parliament cannot at any time pass legislation or amend or repeal it. It derives its legitimacy from its representative character.

21st NOVEMBER 2012.

EVOLUTION OF THE DOCTRINE OF PARLIAMENTARY SUPREMACY:-

Parliamentary supremacy originates in Europe  as part of the bourgeoisie democratic revolution which in Britain came about through  a fairly gradual and non-violent revolutionary process.

Under the feudal order all authority was vested in the crown which sometimes claimed to rule by divine right. With the decline of the feudal order, the power of the monarchy  to rule by divine right came under challenge as Kings found themselves increasingly dependent on merchant capitalists. As they depend for funds from them which the Kings need to fight in wars, and keep themselves in power.

Money became so much important to run the monarch i.e. conquering so as to maintain their power within the monarchy.

In due course the power of the Monarch to grant monopoly rights and concession and to impose taxes at will were challenged. Ultimately the principle of parliamentary supremacy developed  as a result of successful challenge to the king’s right and power to raise revenue and control public spending.

At page three- Wood Philips 

Wood Philips and P. Jackson  in their book titled “Constitutional and Administrative Law, (1987) at page 45 have written: “ one of the central themes of English Constitutional theory was the gaining of control of taxation and national finances in general by the parliament  and in particular the commons. For this control it means that the King was not able to govern for more that short periods without summoning the parliament and parliament would insist on grievances being remedied before it granted the king supply of fund. Hence parliamentary supremacy first emerged by taking over the control of taxation and public finance control  from the Crown.

It made the crown dependent   upon parliament for authority to raise revenue essentially for the crowns government to function as no government can function without funds. In times of war, the Kings attempted to use their prerogative to defend the Kingdom by sanctioning taxation without the approval of the parliament but the parliament was quick to declare through legislation that, such practices were illegal. These therefore mark the triumph of bourgeoisie democracy and parliamentary supremacy in English history.”

PARLIAMENTARY SUPREMACY AS APPLIED IN TANZANIA;-

In Tanzania the principle or the doctrine of Parliamentary Supremacy was firstly introduced by the Tanganyika Constitution Order in Council of 1961 commonly known as “independent Constitution”. It introduced some Constitutional principles which were not known to operate as conventions in the British Constitutional practice.

Such provisions included the power of the parliament to pass a motion of no confidence in the government and collective ministerial responsibility (Art 53 (2) of the CURT of 1977 as amended.

Barely a year later i.e. 1962 the independent constitution  was replaced by the Republican Constitution  of 1962 which left out those provisions (a motion of no confidence to the minister) instead it gave the executive enormous powers even making the tenure of parliament dependent upon the pleasure of the parliament dependent upon the pleasure of the Chief Executive (president)

The Constitution amendment of 1965 by which one party state and party supremacy were I ntroduced gave another severe blow to the parliamentary supremacy doctrine and eroded the parliamentary authority even further.

Regarding the control of the rights and power of the government to raise and spend public fund, the power of parliament has been through successive constitutions seriously limited. 

The parliament is prohibited from deliberating of some financial matters except on a motion by the government as clearly provided under Article 99 of the Constitution of the United republic of Tanzania of 1977 as amended.

The written constitution is itself an effective limitation on the powers of the parliament in that no motion or legislation, which contravenes or is inconsistent with the Constitution of the United Republic of Tanzania of 1977 as amended; can be passed and remain valid. Some of the positive trends (Warioba Commission).

“In the doctrine of parliamentary supremacy in Tanzania, the trend on parliamentary supremacy (positive trend). Somehow started turning back in 1984 when The Constitution was extensively amended.

The said amendment known as  the 5th Constitutional Amendment introduced the Bill of Rights in the Constitution and also made a formal declaration of the principle of separation of power under Article 4 of the Constitution of the United republic of Tanzania of 1977 as amended..

Thereof and virtually throughout the Constitution there was a renewed emphasis on the supremacy of the law under scored the importance of the parliament as the law making body. Art 53(2) of the Constitution declared that Ministers lead by the Prime Minister shall be collectively responsible to the National Assembly.

For the discharge of the function of the government, thus marking the return of the principle of ministerial collective responsibility which was removed in 1962 Constitution.

Article 63(2) of the Constitution, one of the positive trends of the parliamentary supremacy in Tanzania which was amended at its now reads different; “the National Assembly shall be the principle organ of the Republic which shall on behalf of the people supervise and advise the Government of the United Republic and all its agencies in the exercise of their functions in accordance with this constitution”.

The emphasis hence shifted in favor of parliament regains its supremacy as the representative organ of the people, a role which over years had been lost under the pretence.

An important new provision is Article 100 of the Constitution; which declares the parliamentary proceeding to be absolutely privileged and not to e questioned anywhere outside the parliament.

Four years later Article 100 of the Constitution was reinforced by the parliamentary immunities, powers and privileges acts of 1987 which restated that “Nothing said in the National Assembly shall be questioned in any court of law or other place outside the assembly.”

This legislation further gave all the Members of parliament the freedom to hold public meetings in the constituencies and required all respective authorities to facilitate the holding of those meeting whenever required by the Members of the Parliament.

Significance enhancement of parliamentary supremacy was effected by the 8th Constitution amendment act of 1992; which repealed the provisions for the one party state, along with the concept of party supremacy which hitherto inhibited the parliament, it also gave the parliament the power to approve the appointment by the president of the prime Minister  before it can take effect.

In the same year further amendments were made in the constitution through the 9th Constitution amendment Act of 1992 under which the power to censure   the government by passing the resolution of no confidence to the minister was passed. A loss of office by the prime minister for whatever reason also entails automatic loss of offices by all other Ministers (the dissolvement of the whole Cabinet).

This provision gave practical effect to collective ministerial responsibility i.e. Article 53 (a) of the Constitution under the same amendment of 1992 of the president lost the power of dissolving the Parliament at any time, the power he had since 1962.Instead the National Assembly acquired powers by which the president can be removed from office by ‘impeachment’ (Article 46(a) of the Constitution.

The new provision have enhanced the role and stature of the parliament has being supreme over the other organs of the state namely the Executive and Their respective institutions. They even make parliament more powerful than it has been before.

However nowhere in the constitution make an express declaration of parliamentary supremacy in the way it declares the party to be supreme prior to the 1992 amendment.

Supremacy itself whether of parliament or any other institution has not been defined anywhere in the Constitution. Therefore it may be more true and safe to conclude that what we have in Tanzania is the Supremacy of the Constitution and not supremacy of the parliament as it is in Britain 

Why is it so?

This is because the Constitution prescribes limits to parliamentary authority and makes it subject to judicial interpretations which inevitably tend to limit the parliamentary authority even further.

MINISTERIAL RESPONSIBILTY (IES).

Article 53;(Accountability of the executive).

This is one of the aspect of Parliamentary supremacy of the parliament which is to the effect that ministers are responsible both individually and collectively to the parliament. ( article 53 (1) of the Constitution).

 It is a means of making the Government sensitive to the feelings of the electorate. The ministers are called upon to account for their actions of their departmental officers through parliamentary questions (individual ministerial responsibility) debate etc. 

Hand to hand to this is the rule that the Government stands or falls together in that the errors of one minister are regarded as the error of the entire government and whenever things have gone in the cause of the Execution of the collective  cabinet decision, the doctrine requires that no minister should exonerate himself/herself from ensuring criticism rather all of them should be accountable to it.

If a minister is in disagreement with any Government Policy he/she has two options either to try and convince his/her ideas prevail during the deliberation of a given policy shot of that the only other remain resolution /option is to resign.

Upon resignation i.e. the said minister can speak out in public on such disagreement and why he /she resigned.

Furthermore as long as the minister still holds the public office, collective ministerial responsibility demands that the government should speak in one collective voice usually through the prime minister.

RULE OF LAW:

Rule of law according to Dicey A.V is one of the basic features of the English Constitutional system. It has a number of different meanings and corollaries. The origin of the concept of the rule of law is ascribed to Edward Cock in England when he remained that the King must be under the God and Law. In this sense he meant the supremacy of the law over the executive according to him it means: Firstly, absence of arbitrary power on the part of the Government, which means that the administration possesses no discretionary powers apart from those conferred by law.

From these, follow the corollary that no man is punishable or can be 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.

The rule of law has a number of different means and contexts as follows:-

i. In its primary meeting: the rule of law means that, everything must be done in accordance with the rule of law. Applied to powers of the executives, this rule requires that; every Government authority which does some act which affects the citizen’srights must be able to justify its action as authorized by law which is invariably will be an act of parliament. That every public official or public bodies act must have a legal pedigree or else the affected person may resort to the court of law in order to invalidate the Act. This aspect of the rule of law is known as THE PRINCIPLE OF LEGALITY: To mean every Government action must be backed with a legal provision. 

ii. Absence of arbitrary power on e power of Executive/Government:- i.e. the Government should be conducted with a frame work of recognized and ascertainable rules and principles which restricts discretionary power. In the words of Dicey it means the absolute supremacy or predominance of 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. Discretionary power is nowhere to provided, normally bad if not controlled/necessary evil that we cannot live without. The rules required that: the Government should be subject to the law rather than the Law subject to the Government. Whereas, modern Government cannot be carried on without a great deal of discretionary power, this power is often conferred in excessively sweeping language. ( it has to have limit) the rule of law in this context requires that, the courts must attempt to strike a balance between the needs of the fair and efficient administration, on the one hand, and the need to protect the citizen against arbitrary use of the Governmental power on the other.

iii. The rule of law envisages that, the law should be heavenly handed between the Government or Executive and the citizens notwithstanding the fact that, the Government must necessarily have many special powers. What the rule in this context requires is that, the government or executive should not enjoy unnecessary privileges and exemption from the ordinary law. The government is reduced to an ordinary individual (legal person) and that can be sued through the Government proceedings Act of 1967.this Act (above)  gave an illogical provision for a consent from the Government itself to be sued but the provision was later amended by Act No.40 of 1974 which provided a 90 days’ notice. 

iv. In another context rule of law envisages that no one should be punished except for some legally defined crimes.  A state cannot be said to uphold a rule of law were it is said to be breaking this rule by enacting law with a retrospective effect. Such laws are unjust because that make illegal acts which were lawful at the time when they were committed.

v. The rule of law envisages Equality Before the law:- according to Dicey it means equality before the law. It implies equal subjection of all persons to the ordinary laws of the land as administered by the ordinary courts of law. There is complete absence of any special privileges for a Government official or any other person. Dicey observed that: “not only that no man is above the law but that every man, whatever be his or her rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdictional of ordinary courts…” The most fundamental element in the principle of equality before the law is that, all laws should be general as opposed to particular laws made to deal with particular categories of people already identified above.I.e. any person. (Article 13(1) of the Constitution of 1977 enshrines this principle in the constitution.

vi. Under the same context of equality before the law, there is a presumption that there must be an independent Judiciary capable of safeguarding individual liberties against their encroachment by the stat. that the state should guarantee the tenure, security emoluments and the independence of judiciary ( Article 107 B of the Constitution should be guaranteed).

THE RELATIONSHIP BETWEEN RULE OF LAW VS. ADMINISTRATIVE LAW:-

It is sometime said that the rule of law is negation of Administrative law. In fact, the concept of the rule of law hampered the recognition of the Administrative law in England for a long time because of the influence of Diceyinterpretation.

Dicey had pointed out that administrative law was alien foreign to England because it meant several things, for instance the establishment of administrative courts for deciding disputes between state officials and individuals as they existed in France but not in England. 

According to Dicey all these factors were opposed to the rule of law. Dicey believe, although wrongly, that only England is the sole repository of rule of law. In modern times also, there is a thinking that the growth of administrative powers which was an inevitable consequence of planning and welfare activities of the state has come in the way of the rule of law.

There is a greater degree of public control over so many areas which before constituted the areas of operation of private rights. In carrying out the welfare activities of the state, the administration had to be armed with greater power and in this process a large measure of personal freedoms was bound to be eclipsed.

If rule of law is intended to ensure personal freedoms and right and adequate safeguard against any encroachment on them, then the growth of administrative law seemingly contradicts the rule of law but in fact, the rule of law emphasized upon rule that the Executive must act under the law and not by its own whims and feat. The Executive does not derive the power out of its own accord but derives them from the law.

The rule of law serves as the basis of judicial control over administrative actions (the law is central to all these organs); they complement each other with the same aim to achieve 

Its principle concern like that of the administrative law is to keep the Executive and the operation of its powers be arbitrary hence there incompatibility between the rule of law and administrative law