Constitutional and Administrative Law - Essay Example

?Constitutional and Administrative Law Introduction Constitutional law relates to the study, interpretation, administration and practice of laws outlined in a country’s constitution. According to Barnnet (2005) any form of legal subjects that are related to constitutional rights or violations form part of constitutional law, it deals with the distribution and exercise of government’s power1. However there are those countries that do not have universal constitution, in such states a number of imperative and consensual rules such as customary law, judge made law, international rules, convections, norms among other statutes are used. Some of such countries as pointed out by Wade and Philips, 1997 by UK, Israel and New Zealand, according to the two the constitution plays distinctive functions in a state; these are; outlines the state and legal structures, defines legislative procedure and protects human rights2. In the United Kingdom, the constitution forms the set of laws and principles from which the Kingdom is governed, the UK constitution is different from other nation‘s because it is not continued in one document, it has a de facto constitution that is embodied in court judgments, treaties and within statues3. One of the cases pointed out by As pointed out by Allen and Thompson, 2008, that gives the rule of law authority over statutory law is that of Malone v. MPC4 ,it was held that it was it is the right of an individual to be protected against arbitrary interference from public authorities in his private life. On the other hand ,administrative law forms part of the law that runs activities within government agencies, a government agency is body that has been mandated to make rules ,adjudication and the enforcement of given regulatory agenda5. Administrative law is directly related to public law, which deals with making decisions in various administrative units of the government such as commissions, boars and tribunals. Administrative law ensures that all the sectors of the economy are well coordinated and that the constitution is upheld in all the procedures in the nation. In the United Kingdom, the Ombudsmen, the judicial review and the tribunals are the bodies that take charge of administrative law, for example the Ombudsman plays the role of investigating complaints that come from maladministration. Both the administrative and constitutional laws are important to the sovereignty of a country, it economic growth, protection of human rights, prevention of mal administration, economic growth among others6. Body One of the roles of the constitution is to stipulate the state’s legal structure; it is the main body that makes rules which governs the excising of power within the government .It governs the relationship between the executive, the legislature and the judiciary bodies under its authority. The constitution defines various hierarchies and their relationship to power, in cases where it has established federal states; there will be several levels of government working together with shared or exclusive areas of jurisdiction in relation to lawmaking, its application and enforcement. Protecting of its people also form an important role of the constitution, human rights and civil liberties take care of the individuals rights against that of the state. Constitutional law alongside administrative law should ensure that its citizens are protected against exploitation by any body or organisation, in Prescott v Birmingham Corp, any decisions made in relation to public in interests should be carried with an aim contributing to the overall public good. 7 The Universal declaration of human rights that is found under the UN charter forms the basis of human rights element in most constitutions. In the UK, human rights provisions are provided from the statutes, convection and case law. For example in Entick v. Carrington8, where Entick accused Carrington over trespass and abuse of his human rights, in the ruling Lord Camdem declared that every man has the right to secure his property in fact that is the underlying factor of the society, however when such a right is taken away by a perceived public law, then the plaintiff has the right to implicate the defendant. Constitutional law describes the right procedure that the parliament should follow in performing legislative duty .The process that bills should be passed through in coming up with laws, specific number of majorities that may be met to change the constitution and the life of a sitting parliament before fresh elections can be carried out.According to Doe, on the judicial doctrine of mandate implies that the government should and is expected by the electorate to implement all the policy contents as declared during campaigns and that even though the member forming the government need to be treated as dignitaries that have the responsibility of delivering their election promises to the electorate, this was spelled out in the case of R. v. Waltham Forest London borough Council, ex parte Baxter and Others (1987) 9 There are at least there historical three historical arguments based on the constitutional justice, the first is in a bid to capture and think in the context of the framers when coming up with the original constitution, does the constitution take are of people who lived ages back, this was captured by Brest during the misconceived quest for the original understanding 10 . Law makers who believe in ongoing history point out that the constitution should be hanged in accordance with the changes in social practice, technology and morality11. The type historical argument is connected to the judicial doctrine and this approach has been adopted by a vast number of countries because they take the constitution as the supreme law. Administrative law concedes more with the second and third approach because it abides by the set statutes in the constitution and changes in regard to changing society through judicial reviews and setting up of tribunals to undertake specific mandates12. Constitutional and administrative law work and in hand in governing a country, for example ,administrative law deals with legal mechanisms and compliant mechanism that are put in place to regulate the relationship between the various state organisations mandated to carry out government business and citizens. However administrative law emanates from the constitutional law, it should conform to the various tenets of the constitution. Judicial review processes form a wide area of the administrative law. On the other hand, judicial reviews are often torn between the strict and liberal interpretation and they are certainly exposed to considerable amount of political content. Given that judicial reviews control the use of power by the executives and that it affect the judiciary that is normally drawn forma particular part of the society. The elements discussed there in should be in line with sociologically conservative predisposition, it has recently been faced with strong liberal bias. In one of the Fares Fair Case that involved the Bromely Borough Council v. GLC ,the court gave a verdict that the underground transport should not be subsidized by local authorizes but should be operated on economical basis . The subsidy was held as ultra vires because mere reason that the council would save money was not viable to the sustainability of the transport system13. Judicial review entails the principles that the court are prepare to examine an administrative action that may be ultra vires, the remedies that will be implemented if the court finds it wanting and the method used in conducting the judicial review14. Another area that the administrative law coincides with the constitutional law is the protection of the human rights, when administrative bodies carry out civil wrongs that result tort of negligence, nuisance or breach of contract. In Pamela Helen Phelps v Hilling don BC, where a local education authority was to blame for negligent acts on its employees15. Public law takes care of administrative law that does not satisfactory carry out its roles or exceeds its jurisdiction. In another similar case 16 Entick v. Carrington, the constitution protected the right of an individual that was forcefully ransacked. In yet another case , R v Louise Collins, HS Trust & St. George’s Health Services Trust, ex p (No.2)17, the Habeas corpus was used in obtaining release from detention and at the same time challenge the legality of the detention .In this particular case , a pregnant woman who had earlier refutes to take medication to safeguard the life of the unborn child , the woman was wrongfully detained and later forced to under a caesarean birth. Declaration acts are put in place as a go between parties that fail to comprehended certain clause that lead to denial of a given verdict , declaration often seek to clarify on such laws paving the way for understanding or a common ground. Ultra Vires is used to defend an action that contravenes bye laws ,the judicial manner may come under fire for disobeying rules of natural justice , in Council for Civil Service Unions v Minister of State for Civil Service, in was held that the judicial review that was handing the case might have acted irrationally ,applied procedural impropriety and performed their action in an illegal manger18. Conclusion According to Metzger, a good amount of ordinary administrative law can qualify as constitutional common law, constitutional concern give mandate to core administrative law doctrines and requirements 19. Both constitutional and administrative laws play crucial roles in ensuring that a country’s sovereignty is upheld and that the all operations within it run smoothly. A constitution defines the legislative, executive and judiciary arms of the government and how they should coexist in running a government. However as put it the constitution should be in lace for the benefit of the pep and not the government “sovereignty in itself is ,of course ,not subject to law ,for it is the author and some source of law, but in our system while sovereign power are delegated to the agencies of government , sovereignty itself remains with the people”20 To ensure that the constitution is implemented, governmental agencies are usually instituted to carry out administrative duties in implementing the varied roles and affairs of the government for the common good of the people. Law makers need to ensure that the constitutional and administrative laws correlate with each other for a smooth running of the government. Bibliography Bradley, A , 2011 ,Constitution administrative law , Pearson ,London. Barnett, H. 2005 ,Constitutional and Administrative Law (5 ed.), Cavendish, London. Doe, N The Judicial Doctrine of Mandate, “Liverpool Law Review Vol 11,number 1,89-98.” Giussani, E, 2009,Constitution & administrative law,Thomson sweet & Maxwell, NY. McClain,E and Cooley,T M 2008, A selection of cases on constitutional law,Little, Brown, New York. Metzger, G. Ordinary Administrative Law a constitutional Common Law Accessed on 1st March 2011 at http://www.columbialawreview.org/assets/pdfs/110/2/Metzger.pdf Smith, David L. "Change & Continuity in 17th Century English Parliaments". History Review, 2002. p. 1. Thompson, B and Allen, M 2008, Cases and Material on Constitutional and Administrative Law, Paper Back ,London. Wade ,S E and Phillips,G,1997.Constitutional and administrative law ,Longman,London. Read More