Finally - Constitution is the result of the ordinary law of the land
“There is no need for a bill of rights because the general principles of the constitution are the result of judicial decisions determining the rights of the private person.” (Reference in bibliography)
The rule of law lastly means that the general principles of the constitution are the result of judicial decision of the courts in England. In many countries right such as right to personal liberty, freedom from arrest, freedom to hold public meeting are guaranteed by a written constitution; in England, it is not so. Those rights are the result of judicial decisions in concrete cases which have actually arisen between the parties. The constitution is not the source but the consequence of the rights of the individuals. Thus, dicey emphasized the role of the courts of law as grantors of liberty.
Several criticisms have been increase against Dicey's hypothesis of the rule of law. As to his first principle he says that there would be no arbitrary or discretionary power. However even in Dicey's lifetime there were both arbitrary and discretionary powers in Britain. Preventive detention, emergency situation, compulsory acquisition of goods and properties, direct enforcement of administrative decision etc. are the best example of exercise of arbitrary power. Again there is a distinction between arbitrary power and discretionary power which dicey failed to trace.
The second principle of rule of law dicey says that there should be equality before law and all are amenable to ordinary courts of the land. But this principle has many exceptions because equality before law is not possible in every case. The king or the head of the state in other countries are immune from both criminal and civil action; judges are immune from personal responsibility for their official acts even if they might have acted beyond their jurisdiction but not knowingly.
As regards his third principle Dicey says that the fundamental right and liberties originate from judicial decisions. But this is a one-sided view, because in England people have got many rights through the law of parliament and charters issued by the monarchs. Various public authorities, the Crown, the House of Parliament, the court, the administrative authorities have powers and duties and most of these are determined by statute not by the courts. It has been clear that the abolition of discretionary power is not possible fully and also equality before law is not possible in every case. His third principle was abandoned since most other countries in the world have a bill of rights on some description. So the concept of rule of law as propounded by Dicey needs modification. Though it has become a fashion to criticize Dicey's theory of rule of law- the three important things absence of arbitrary power, guarantee of citizens right and the equality before law over which he made emphasis are universally recognized as the core of traditional theory of rule of law.
Today Dicey's theory of rule of law cannot be accepted in its totality. The modern concept of the rule of law is fairly wide and therefore sets up an ideal for any government to achieve. His first views if arbitrary power and wide discretionary authority alike are unacceptable. If it is contrary to the rule of law that discretionary authority should be given to government departments of public officers, then the rule of law applies to no modern constitution. Today the state regulates national life in multifarious ways. Dicey’s second meaning stresses the equal subjection of all persons to the ordinary law. The specific meaning he attached to equality before the law was that all nations were subject to the jurisdiction of the ordinary courts.
Dicey’s third meaning of the rule of law expressed a strong preference for the principles of common law declared by the judges as the basis of the citizen’s rights and liberties. He believed that the common law gave better protection to the citizens than the written constitution. Today it is difficult to share Dicey’s faith in the common law as the primary legal means of protecting the citizen’s independence against the state. Dicey’s view of the rule of law is based on assumptions about the British system of government which in many respects no longer applies.
In Entick V Carrington, two king’s messengers were sued for having unlawfully broken and entered the plaintiff’s house and seized his papers, the defendants relied on a warrant issued by the secretary of state ordering them to search for Entick and bring him with his books and papers before the secretary of state before the examination. The secretary of state claimed that the power to issue such warrants were essential to government. The court held that in the absence of a statute or a judicial precedent upholding the legality of such a warrant, the practice was illegal. Entick V Carrington still exercise influence on judicial attitudes to the claims of government.
The spirit of Entick V Carrington seems to run through Dicey’s arguments, but he expressed the general doctrine of the rule of law in the form of several detailed statements describing the English constitution, some of them derived from authors who immediately preceded him.
Beginning with his first principle, there has been contrast with every system of government by persons in authority or of wide, arbitrary or discretionary powers. A case which explains this is Liversidge v Anderson the House of Lords held that the courts could not review the home secretary’s beliefs that detention without a warrant was justified. Furthermore Entick v Carrington illustrates Dicey’s ideas. Here the courts affirmed that a warrant issued by a home secretary for entry into private property and seizure of allegedly seditious material was against the law and amounted to trespass.
The fundamental constitutional principle of the Rule of Law in the United Kingdom is, and has been, clearly, since the Bill of Rights 1688, the independence of the Judiciary. Parliament has the exclusive power to legislate. The Judiciary has the exclusive power to rule upon what is legal and illegal and what a person's legal rights and obligations are. This exclusive power includes determining guilt and innocence and what legal remedies a person is entitled to or liable to. It also includes making determinations in favor of or against the Executive; the Executive is not above the Rule of Law. This creates a tension between the Executive and the Judiciary, such as existed in an extreme form prior to 1688 and still manifests itself today. There is no such tension between the Legislature and the Judiciary: the Judiciary and the Judicial Oath sworn by all judges are part of the protection the Judiciary gives to supremacy of Parliament. The essence of judicial independence is independence from any direct or indirect interference or influence by the Executive. It is also relevant that independent is the criterion used in the European Convention on Human Rights.
The executive can do anything that is not exclusively unlawful like in the course of the criminal trial of Mr. Malone who alleged that the police were intercepting his telephone calls. After being acquitted of the criminal charges, he brought a civil action against the police claiming that the police interception of his phone calls had been unlawful on the grounds that it constituted a breach of confidence, a trespass, and an unlawful interference with his privacy. Mr. Malone took his case to the European Court of Human Rights which is concerned with privacy against state interference in international law.
"Its object is essentially that of protecting the individual against arbitrary interference by the public authorities in his private or family life." (Reference in bibliography)
The European Court of Human Rights held in the Malone case, that the English practice of interception was insufficiently grounded in law to allow it to be justified.
Conclusion
In summary, constitutionalism forms an institutional foundation for the rule of law, strikes a proper balance between the rule of law and the rule of person, provides a minimal guarantee for the justice of both the content and the form of law and, finally, is itself safeguarded by the rule of law. This, in my view, constitutes a relatively complete description of the relationship between constitutionalism and the rule of law.
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