3. The rule of law

Where the idea comes from

Ancient roots: Aristotle said it is better for the law to rule than any one citizen.

Bracton: The thirteenth-century English jurist Bracton wrote that the King should be under no man, but under God and the law, because the law makes the King.

The Bill of Rights 1689: After the revolution of 1688 the English Bill of Rights confirmed that the Crown was under the law. The Crown had to govern through Parliament, and could not suspend laws or raise money without Parliament's consent.

Entick v Carrington: In 1765 the King's messengers broke into John Entick's house under a warrant from the Secretary of State and took his papers. The court held the search unlawful, because no statute or rule of common law gave the minister power to issue such a warrant. A public officer needs legal authority for what he does.

Dicey's three meanings

A. V. Dicey set out the classic account in his Introduction to the Study of the Law of the Constitution (1885).

Supremacy of regular law: No one can be punished, or made to suffer in body or goods, except for a distinct breach of law proved in the ordinary courts. Regular law rules out arbitrary power and wide discretion. The law must also be clear enough for people to plan their lives. In Sunday Times v United Kingdom the European Court of Human Rights said a rule is only "law" if it is precise enough for a citizen, with advice if needed, to foresee its consequences.

Equality before the law: Every class of person, including officials, is subject to the ordinary law administered by the ordinary courts. In M v Home Office the House of Lords held that even a Secretary of State can be found in contempt of court.

Rights from the ordinary law: In England, Dicey said, the rights of the individual come from court decisions in ordinary cases, not from a written code. Habeas corpus and actions for false imprisonment protect liberty in practice. In R v Lord Chancellor, ex parte Witham the court held that court fees which shut poor people out of the courts were unlawful, because access to the courts is a constitutional right at common law.

Criticism of Dicey

Discretion is unavoidable: Modern government cannot work by fixed rules alone. Officials and judges need discretion. In an emergency the President has wide powers under section 29 of the 1991 Constitution.

Not everyone is treated the same: The law gives special status to many people. The President has immunity from civil and criminal proceedings while in office under section 48(4). Members of Parliament have privileges. Police officers have wider powers of arrest than private citizens. There are juvenile courts for children and courts-martial for soldiers.

Written rights work too: Sierra Leone protects rights in a written Bill of Rights, which the courts enforce. That is the reverse of Dicey's third meaning, and it is not weaker for it.

The rule of law in the 1991 Constitution

Liberty only by law: Section 17 lists the only grounds on which a person may lawfully be deprived of personal liberty, such as carrying out the sentence of a court.

Constitutional supremacy: Section 171(15) makes the Constitution supreme, and sections 124 and 127 let the Supreme Court strike down laws and acts that conflict with it.

Independent courts: Section 120(3) says the Judiciary is subject only to the Constitution and the law, and not to the control or direction of any other person or authority.