Constitutionalism & Good Governance: A Dangerous Servant

ABSTRACT:

The idea of constitutionalism developed by John Locke is closely associated with limitation of power of government. This concept brings with it a host of vexing questions of interest not only to legal scholars, but to anyone keen to explore the legal and philosophical foundations of the state. How can a government be legally limited if law is the creation of government? Does this mean that a government can be “self-limiting,” or is there some way of avoiding this implication? It may be so interpreted that the concept of constitutionalism is an essential tool to achieve public accountability, the end of which is good governance. Constitutionalism when achieved it is expected that rule of law is also existent in that context. It refers to ‘a government based on principles of law and not of men’. In other words, the concept of ‘la Principe de legalite’ is opposed to arbitrary powers. Thus, constitutionalism checks & balances the arbitrary actions by government. A despotic ruler may have law in his territory but essentially lacks the essence of constitutionalism & there lies the very idea of good governance. As in a despotic ruling system there is concept of Austinian sovereignty-the endless sovereign power of the ruler. Thus, constitutionalism has its root embedded in a democratic country-to provide good governance to its citizens. Part I of this article addresses the plethora of questions that arises from constitutionalism contending that while it is proper to seek constitutional and other standard-setting channels for securing public accountability and good governance, there remain other structural and strategic dimensions mainly ignored. A cornerstone of good governance being judicial review is critically assessed here. Part II thus offers a moderate view of legal constitutionalism that best captures the legitimacy of judicial review in administrative law, and the role it plays in ensuring a balanced account in the inter-relationship of courts and the political process in delivering accountable government. As it is only well known that the most basic rationale for judicial review is to render public power accountable for which, it seeks to ensure that relevant bodies ‘imbued with a public interest’ complies with conditions laid down in the enabling grant of power, and with certain precepts of good governance, thereby enhancing legitimacy.

Co-authors: Amartya Saha, 2nd year B.A.LL.B(HONS) Gujarat National Law University

And, Devaditya Chakravarti, 2nd year B.A.LL.B(HONS), Gujarat National Law University

CONSTITUTIONALISM & GOOD GOVERNANCE: A DANGEROUS SERVANT OR A FEARFUL MASTER?

Administrative Law: Doctrine

The historical development of this doctrine rests on secure, specific and discrete foundations even though it is an easy prey for criticisms raised on its justifiability, except through abstract concepts such as natural law, public reason and fundamental values. Some of the foundational precepts underlying this body of law are :

Jurisdictional Control, Misuse of Power and Invalidity

It is axiomatic that to render public power accountable, there must be controls by way of legal doctrine to determine whether the power has been used for an improper purpose so as to keep the relevant body within its assigned sphere of power.

However, this still leaves a plethora of issues such as debated concerning the criterion for jurisdictional review, the test for misuse of power where the public body pursues multiple purposes. Resolution of these issues will entail normative assumptions.

Principles of Legality:

It having taken account of moral precepts had as its prime instance, natural justice. It being reflective of both the need to ensure that public bodies remained within their assigned area, since a correct decision was more likely if a person was heard before it was taken, and it also functioned as a principle of legitimate good governance, as reflected in the non-instrumental rationale for natural justice.

The next example would be legitimate expectations, whose reception was resolved in Coughlan [1] , where the court made a principled argument for it, and as such it was premised on certain normative assumptions, including fairness, reliance, trust in government and equality.

Discretionary Power: In pursuance of the belief that good governance demanded some judicial oversight over choices made by the administration, the instrument of limited rationality review [2] was conceived which does accord the judiciary a measure of discretion. So as to assign a more particular meaning to such category, debates rage involving the choice between rationality and proportionality for control over such power.

It is humbly submitted that proportionality is to be preferred because it provides a more structured form of inquiry that enhances both administrative and judicial accountability.

Rights and Legality:

If the courts apply rationality review to control discretionary power, there is good reason for varying its intensity depending on the affected interest. Treating different interests in the same way for rationality review, even though they differed in importance, embodied a normative value judgement, thus a bad one. This requires evaluation of the importance of the interest, and whether it should be recognised as a right, in the manner explicated by, for example, MacCormick and Raz. [3]

Judicial Review in its historical premise:

Adam Tomkins [4] ’ analysis of modern judicial review is premised on what he sees as the failure of legal constitutionalism form a historical perspective. The view of Tomkins is labelled ‘radical’ to connote the degree of change from the existing doctrine. The first difficulty lies in that Tomkins, being as engagingly vituperative as he is, downplays the significance of what are normally regarded as the seminal decisions in Prohibitions del Roy [5] and The Case of Proclamations [6] , for reasons that are not convincing [7] . Whatsoever the broader motivations may have been behind the decisions, they were and have been subsequently affirmed as authority respectively for the propositions that the monarch did not have the autonomous judicial power, nor any general regulatory power that could be exercised independently of Parliament.

Moreover, in Tomkins historical vision, a plethora of material remains overlooked. This is more serious, since there is no mention of the general law of judicial review. To test the history of common law constitutionalism with limited reference only to judicial control over prerogative power is not a balanced picture since wide range of bodies were vested with such prerogative writs as the activities performed by the state were very limited in the 17th and 18th centuries, and even in the 19th century many functions were undertaken by boards, commissions, inspectors and the like. It would be interesting to know the efficacy of political control over such bodies was practically ineffective as most such bodies had no democratic mandate. [8]

Prior to the 20th century, when evaluating the relative efficacy of political and legal constitutionalism, we should be mindful of the real limits of the precept central to political constitutionalist thought that is the normative value of legislative choices expressed by the democratically elected Parliament. [9] Even though the Parliament did make advances in its control over the executive, prior to the 1832 Reforms Act, only approximately 5-10% of the were enfranchised and had any direct ‘political voice’, and that women were not fully enfranchised until 1928.

It is important to note exactly how narrow judicial review would be under the Tomkins’ vision. He is against the irrationality review, proportionality and judicially created principles of legality. The reasons are eclectic: there is no legitimate foundation for such principles, they entail too much balancing, and they intrude on issues that are the preserve of the political process. Thus by parity of reasoning judicial review for legitimate expectations, equality and natural justice are also off-bounds and seem to fall foul of the same strictures, since they exhibit one or more of the infirmities that Tomkins regards as invalidating the doctrine of judicial review that he explicitly refers to. [10]

Thus, Tomkins’ analysis can be questioned in terms of consistency of his thesis on judicial review. While he welcomes the decision in the Belmarsh Prison case [11] , he is overtly critical of the 17th century cases because were too deferential to the executive [12] , regarding this as a failure of legal constitutionalism.

It is difficult to see the ‘fit’ between Tomkins’ general position on judicial review and this as the resolution of equality issues on which the case turned is just as difficult as proportionality, which he regards as off-bounds; and equality cases entail consideration of proportionality.

Secondly, the cases which Tomkins criticizes as being pro-executive, such cases do not even come close to the paradigm of the flouting of a specific rule laid down by the Parliament that Tomkins regards as the legitimate preserve of judicial review. Furthermore, even if the prerogative were, as Tomkins advocates, to be placed on a statutory footing the discretion enjoyed pursuant to the prerogative would simply be replaced by a broad statutory discretion accorded to the relevant minister, and thus given Tomkins’ strictures about the limits of judicial review it is difficult to see how the courts would have any role in controlling its exercise.

Thirdly, the highlight of the difficulties with his approach is the fact that the courts are ‘damned if they do’ and ‘damned if they don’t’. Thus, to take but one example, the courts are castigated as being unsuited to the balancing of issues that arose in cases such as Farrakhan, which are regarded as too complex for judicial determination, and involve value choices that should be left to the executive [13] . They are also chided in equally robust terms for decisions such as Rehman and Shayler [14] that are said to exhibit judicial failure to control the government because the review was insufficiently searching. If, as Tomkins maintains, the courts have no business intervening in the Farrakhan type of cases, it is difficult to square such an argument in favour of Rehman and other decisions where he criticizes the courts for being too reticent.

Though, by way of response, it might be argued that more extensive judicial review should be countenanced in certain particular situations, such as national security, or where those affected had no ‘voice’, such as immigrants, or vulnerable minorities, suffice it would be to say that there is no difficulty in principle in acknowledging the variable intensities of review, real difficulties surface in applying this given the limited judicial review envisaged by Tomkins. It is one thing to say that a recognised principle of judicial review should be enforced with greater intensity to protect special exigencies, it is quite another thing to posit this approach where there is no relevant doctrine to apply, as creating another new head of review that would respond to such special cases would be incident. It is a fortiori difficult to apply rights-based review more intensively to certain situations if the general theory of judicial review is premised on there being no Human Rights Abuse.

Circumstance of Politics:

A premise in the discourse of modern-day states is the need to make collective decisions in a plural society in which people disagree not only as to perceptions of the good, but also as to more fundamental precepts of justice on which society founded. This problem is common to both public and private law. It is to be acknowledged that courts in private law will routinely develop doctrine that is reflective of defensible, albeit contestable, normative assumptions and will often balance competing values. Similarly, the courts develop doctrine within criminal law that is premised on conceptions of moral responsibility and justifiable excuse. They mould contract law by considerations relating to matters such as consent, autonomy, bargain and the like. We need to be mindful of this when considering the premise against judicial review in that courts should not be in general involved in cases where there are contentious value assumptions or difficult balancing exercises then the premise is unsustainable, since it would destroy adjudication across large areas of private as well as public law.

It should moreover not be forgotten that judicial review is built on certain assumptions concerning the relationship between the legal and political branch of government, necessitating the deployment of criteria such as rationality or proportionality, which, it can be accepted, allow room for judicial evaluation.

Moderate Political Constitutionalism, Politics and Legal Constitutionalism:

An emphasis is placed on non-judicial mechanisms here for securing accountability: diminution in legal control can be compensated through increased non-legal checks. There is nothing among the three that denies the significance of non-judicial methods of accountability. Nor is there any inconsistency in maintaining that judicial review is one component in the search for accountability and legitimacy, while being aware of the importance of institutional design, political controls, internal agency organisation etc.

It is readily apparent, as political constitutionalists have rightly emphasised, that Parliament has made many positive contributions to the development of fundamental societal values as one would expect n a democratic society. A more particular meaning would be accorded to concepts such as liberty, security, equality, autonomy and the like, sometimes by the Parliament itself, on other occasions from a symbiotic relationship with the courts, such as in the interpretation of rights-based statutes. Thus, elaboration of particular doctrinal categories in any area will be shaped by values that are central to analogical reasoning and their content will reflect certain normative concepts. [15]

Moderate legal constitutionalism is not premised on the assumption that ‘politics is bad, law is good’, nor are courts are the only institution for the regulation for public power, it is predicated in as much on the assumption that courts are important for legal accountability, while recognizing, as pretty much all legal constitutionalists do, that there are other ways of promoting accountability quite independently of judicial review. [16]

Nor yet again is it premised on the assumption that individuals should, as far as possible, remain free of interference by the government (i.e. liberalism). Commitment to liberalism does not necessarily connote the desirability of a minimal state, nor does the fact that legal constitutionalists speak in terms of autonomy or human dignity, that is to say that precepts of legal constitutionalism developed by the courts are ‘wired’ to that version of liberalism. It is thus therefore perfectly possible to, for example support republicanism, favour legal oversight within administrative law to best effectuate the goals of that theory. [17] A plausible thesis of accountable government circumvents by contrarily propositioning the question as to how would one normatively defend that government interference does not have to be justified by reason. With a bold departure from Tomkins ill-founded criticisms, it suffices to add that the legitimacy of review under the Human Rights Abuse rests on the democratic will of Parliament, and that the application of this review is properly tempered by discretionary area of judgement accorded to the primary decision-maker.

Thus, it is readily apparent from the preceding discussion that political constitutionalists have also challenged non-constitutional review, as this debate has hitherto focused on constitutional review. Thus, a moderate view of legal constitutionalism which best captures the relationship between the courts and politics in a constitutional democracy and a much coherent testimony of evolving legal doctrines is presented here.

Constitutionalism and Rule of Law: Rule of law is the supreme manifestation of human civilisation and justice system. It may be considered to be a new ‘lingua franca’ of modern global liberal and moral thinking. It is an eternal value of constitutionalism and inherent attribution to the fair democratic system and thus uphold the concept of good governance.

The term ‘Rule of law’ is derived from the French phrase ‘la principe de legalite’ which means the ‘principal of legality’. It generally refers to ‘a government based on principles of law and not of men’. In fact this concept is opposed to arbitrary powers.

Origin: The concept of Rule of law is of old origin. It is an ancient ideal, and was discussed by Ancient Greek philosophers such as Plato and Aristotle around 350 BC. Later redefined and restated by John Locke.

In India, the concept of Rule of law also can be traced to Upanishad. It provides that the law is the king of kings. It is more powerful and rigid than the kings. There is nothing higher than law. By its powers the weak shall prevail over the strong and justice shall triumph. Thus, in monarchy, the concept of law developed to control the exercise of arbitrary powers of the monarchs who claimed divine powers to rule. In democracy, the concept has assumed different dimension and means that the holders of public powers must be able to justify publicly that the exercise of power is legally valid and socially just.

Characteristics of rule of law in present day concept: While defining the rule of law it is essential to explain the characteristics of this concept. In a nut shell there are four main characteristics.

Abhorrence of arbitrary power: Every person in society is governed by law, including governmental officials and law-enforcement officials. The court can apply the doctrine of ultra vires equally to every government agency and official for acts that are outside the authority conferred by law. Also, a person can only be punished for a breach of an existing law or regulation, and never for breach of a law not existing at the time doing something.

b) Equality before the law: Courts must apply laws equally to all people regardless of their race, class wealth, religion, etc. Every accused person should be entitled to a fair trial, to be informed of the allegations against have an opportunity to rebut the charge against him, to have an opportunity to rebut the charge against him and to have his conduct assessed by impartial judges.

A formal, rational court system: Formality and rationality describe a system with much predictability and little discretion, a system with regular, open and stable procedure. The advantage of such a system is that its behaviour is consistent and objectively verifiable.

Judicial independence and separation of powers: The judiciary should be independent of the legislative and executive, and every judge should be free to decide matters before him without any improper influences, inducements or pressures. The power of a government should be split into three are adequate checks and balances to minimize the possibility of the abuse of power. All state functionaries must at all times act in accordance with the law and no act of state should be autocratic, oppressive, capricious or against the law.

Rule of Law and John Locke: While discussing the concept of rule of law, it is indispensible to have a deep invasive study about John Locke, as among the modern thinkers he has given the most pervasive view about rule of law and constitutionalism.

Locke might have done more than any other to shape Anglo-American attitudes toward constitutionalism. In the whole English-speaking world, a Lockean theory of rights informs “social & political practices and institutions”. Sometimes academic commentators defend constitutional freedom of association by suggesting that it is an indispensible part to a system in which “the purpose of government is” Lockean. In the same way, some United States Supreme Court cases invalidate laws restating freedom of association as they threat to ‘emasculate’ a basis of Lockean principle-“the distinction between private as distinguished from state conduct”. [18] In legal field, Locke is commonly assumed not to have “expressed his thought about associations in general terms” but rather to have focused his “concern [on] freedom for one kind of association, the church.” [19] While giving a convincing view about the constitutionalism he emphasises on rights and duties of individual and liberty to form private association as this is the most important essence of a state where rule of law is well-established-the freedom of expression and association. Theoretically, the rights and responsibilities Locke recognizes in private societies issue from a more comprehensive meditation on the strengths and weaknesses of liberalism. At first glance, Locke seems to justify the right to private society in a fairly optimistic view of human nature. Society recognizes and builds on men’s natural social and friendly affections, and it does so particularly by encouraging particular associations that reflect their members’ individual characters, needs, and interests. Yet throughout his mature corpus, Locke acknowledges dangers with the wrong sorts of societies. They restrain free thought; encourage partisanship and injustice, authoritarianism and fanaticism; and generally destabilize the common opinions that glue together a liberal political order. Locke’s liberalism recognizes in citizens the rights to think, believe, and associate as they please, but only to the extent that such rights threaten neither the basic material interests that government protects nor the moral and political consensuses that makes liberalism possible.

Constitutionalism and public accountability: In this postmodern era, dedication to the ideals of democracy, rule of law and traditions of accountability, embedded in constitutionalism, and defined in terms of good and responsible governance, has become a core value in measuring the performance of governments and regimes. The prevention of corruption in the public sphere, and the effective monitoring of the fiscal responsibility of one arm of government to another have thus become critical values from which no regime will officially or even consciously shirk.

In contemporary times, the challenge of curbing corruption through formal processes of accountability in the public sphere has assumed prominence at diverse national, regional, inter-governmental, institutional levels, and in normative and policy terms. Numerous frameworks and instruments now exist at those levels addressing the menace of corruption and abuse of fiscal responsibility. [20] It must be mentioned, however, that the approaches each state has adopted to tackle the challenge of corruption in the public sphere varies from state to state.

Certainly, a wealth of scholarly literature exists on the phenomenon of corruption in the African milieu, within which this article is located, and where the incidence is described as “ranging from rare…to widespread…to systemic….” [21] A commentator has even remarked that the vast assemblage of literature on the subject is a mix of “stereotypes and fallacies.” [22] This article does not seek to revisit all that has been written on the subject and makes no pretension about proffering answers to all connected ills in Africa. What is of particular interest to this author is the marked pattern among states of the Commonwealth to establish a parliamentary mechanism that confers on the legislature the power to examine public expenditure within the constitutional context.

Although some latest empirical theories trace the origin of modern political systems from the philosophical ideas of the Greek Republics, it has never been an easy task to delimit the historical ideas of law-ordered societies. [23] Despite the fact that constitutionalism continues to mean different things to different writers in different political contexts [24] , certain notions have become invariable. While some contend that constitutionalism requires a set of codified norms in written form, others have argued that the unwritten constitutional model of the United Kingdom dispenses with the necessity of a written constitution. Various reasons are usually canvassed by constitutionalists for these arguments [25] .

In today’s legal parlance, constitutionalism implies governance according to the rule of law, an important universal norm that negates arbitrary rule [26] . Closely linked to this neo-liberal conception is the existence of a written constitution that stipulates separation of governmental powers; checks and balances; judicial review; accountable governance; rule of law; and, a bill of rights.18 All these ideas converge in giving the basic framework for the concept of public accountability in various legal traditions, the British Commonwealth inclusive.

Recommendations for establishment of constitutionalism: To establish a stable good governance the state should necessarily possess a written constitution by which the rule of law would be established. The constitution must define the powers, duties and functions of the president and cabinet. These must include:

the power to make subordinate laws only according to the guidelines and for purposes contained in the authorizing statute Constitutionalism and the Rule of Law

the duty to consult with parliament and the governor of the central bank to ensure that economic plans and fiscal policies are compatible

the duty to govern in accordance with principles of good governance, exercising powers transparently and in accordance with the rule of law

that appointments to public offices, boards and parastatal committees be made public and if possible through a competitive appointment process

that tendering for the supply of goods and services to the state must be transparent

that there be a duty to furnish reports on request to parliament and to other constitutional bodies such as an ombudsman and a controller-general

that there is a requirement to abide by codes of conduct enacted by parliament

If a directly elected presidential system is adopted, the candidate should be required to win a majority of the votes in a majority of the regions.

that states should adopt a bicameral legislature with the second chamber composed of representatives elected by the regions.

The legislature should be composed only of elected representatives.

Military representation in the legislature should be phased out.

The legislature should enact all legislation, take initiatives in drafting codes of conduct, ratify treaties and review international contracts.

The legislature should exercise oversight over the military

The constitution must provide for a code of conduct to be endorsed by national and regional legislators as well as executive officers.

The legislation providing for a code of conduct should be passed within a prescribed period.

The code of conduct should require a full disclosure of assets before taking office and upon leaving office.

Severe penalties for bribery and corruption must be prescribed by law.

Where parliamentary or executive immunity is provided, such immunity should be limited to acts carried out during the course of duties as a public official, not extended to all acts.

The constitution must rationalize institutions through reform, and this should include the abolition of the Supreme Advisory Council (DPA)

Conclusion: In the present world, it is the most controversial political topic that whether a particular state is lack of constitutionalism and as obvious result of which it lacks good governance or not. It is now well established that to run a peaceful state there should absolute balance and harmony among the prevailing constitutionalism, public accountability and rule of law. However, conflict arises in two ways: firstly, as a protest against lack of constitutionalism and secondly, intervention of third party to establish rule of law.

It is not only enough to conclude about thinking only establishing rule of law but a special reference should also be made regarding judicial review as an effecti