Lesson 1: Constitutional and Administrative Law for Postgraduates

SUMMARY

• A constitution establishes state organs, distributes power, and defines state-citizen relations.
• Natural law: law rests on morality; unjust law is not law; foundation of human rights (UDHR).
• Positive law: law is valid because validly enacted (Austin, Kelsen, Hart); the 1991 Constitution is positive law with natural law content.
• SL evolution: 1961 independence; 1971 republic; 1978 one-party; 1991 multi-party restoration.
• TRC: constitutional failure contributed to the war; review attempts (CRC 2017; White Paper) have largely stalled.

3. Constitutional Supremacy and the Rule of Law

3.1 Section 171(15): The Supremacy Clause

Section 171(15) provides that the Constitution is the supreme law of Sierra Leone, and that any other law inconsistent with it is void to the extent of the inconsistency. Three consequences follow. (a) Hierarchy: every legal norm in the country, from Acts of Parliament to bye-laws to executive orders, ranks below the Constitution and draws validity from it. (b) Severability: the phrase "to the extent of the inconsistency" means courts amputate only the offending portion of a statute and preserve the rest, a doctrine of judicial restraint built into the clause itself. (c) Judicial review: someone must decide when inconsistency exists, and that someone is the Supreme Court under s 124, which gives the supremacy clause its teeth. A supremacy clause without a court is a padlock without a key.

3.2 The Rule of Law

The rule of law, in one sentence, means the government must play by the rules it is bound by, and everyone, powerful or weak, answers to the same law before independent courts. The idea is ancient: Aristotle preferred the rule of laws to the rule of men, and Magna Carta 1215 first extracted the promise that the Crown itself is under the law. Dicey gave the classic modern formulation in three limbs: no punishment except for breach of law established in ordinary courts; equality before the law; and the constitution as the result of the ordinary law of the land. Lord Bingham modernised the doctrine into eight sub-rules, including accessibility of law, equality, the lawful exercise of power, protection of fundamental rights, and access to justice. Case Study: Entick v Carrington (1765)

Facts. The King’s Secretary of State issued a warrant to break into the house of John Entick, a writer suspected of seditious publications, and seize his papers. The King’s messengers did exactly that. Entick sued them in trespass. Issue. Could the government defend the raid by saying that state necessity, or the Secretary of State’s own authority, justified it? Decision. No. Lord Camden CJ held the warrant illegal: if the state cannot point to a specific law authorising an invasion of person or property, the invasion is unlawful, however important the government thinks its purpose.

Principle. Government may do only what law permits; the citizen may do anything law does not forbid. Why it matters in Sierra Leone. The case travels through the common law received into Sierra Leone and animates s 22 (privacy of home and property): a police search without legal authority is a trespass, and "orders from above" are no defence.

SUMMARY

• s 171(15): supremacy; inconsistent law void to the extent of inconsistency; implies hierarchy, severability and judicial review (s 124).
• Rule of law: government under law; equality before law; independent courts. Dicey three limbs; Bingham eight sub-rules.
• Entick v Carrington: state action needs positive legal authority; foundation of legality and of s 22 privacy.

Case Study: Liyanage v The Queen AC 259 (PC)

Facts. On 27 January 1962 a group of senior army and police officers in Ceylon (now Sri Lanka) attempted a coup. It failed, and they were arrested. Parliament, anxious to guarantee convictions, then passed extraordinary legislation aimed at these very defendants: it created offences retroactively, altered the rules of evidence for their trials, provided for trial by judges nominated in a special way, and fixed minimum sentences for them. Issues. Could a legislature pass laws aimed at securing the conviction of identified individuals in pending trials? Did the Ceylon Constitution, which contained no express separation of powers clause, nonetheless forbid this?

Decision. The Privy Council, through Lord Pearce, held the legislation unconstitutional and void. The Constitution, read as a whole, impliedly vested judicial power exclusively in the courts; the impugned Acts were a legislative usurpation of that judicial power: a "grave and deliberate incursion into the judicial sphere". Principles. (a) Separation of powers can be implied from constitutional structure. (b) Parliament cannot exercise judicial power. (c) Legislation targeting identified individuals to procure their conviction, retroactive criminal laws and interference with pending trials are constitutionally impermissible. Why it matters in Sierra Leone. Sierra Leone’s constitution likewise contains no single separation clause; Liyanage supplies the argument that the structure of Chapters V, VI and VII does the work, and it stands as authority against any Parliament tempted to legislate against named political opponents.