Constitutional and Administrative Law: Power, Rights and Review
Constitutional and administrative law tests how public power is created, limited and reviewed: constitutional supremacy, separation of powers, fundamental rights, and the legality of administrative action.
Constitutional framework
- The constitution prevails over statute; courts may annul inconsistent legislation or disapply it, depending on the system. Constitutional courts and ordinary courts have different competences - check who can review what.
- Rights may be limited only by law, for a legitimate aim, and proportionately.
Proportionality
- Four steps: legitimate aim; suitability; necessity (least restrictive means); and balance. Weakness at the necessity step is the usual ground for annulment.
Administrative legality
- A decision must have a statutory basis, be taken by the competent authority, follow the prescribed procedure, give reasons, and avoid misuse of power (ulterior purpose, irrelevant considerations, arbitrariness).
- Discretion must actually be exercised; a blanket policy that fetters discretion is unlawful. The right to be heard and legitimate expectations form part of due process.
- Courts review legality, not expediency: they annul and remit rather than substitute their own policy choice, absent a statutory power to do so.
Worked example
A ministry refuses a licence without citing a legal basis, without hearing the applicant, and applying a rule published after the application. Reasoning: no statutory basis is illegality; no hearing is procedural impropriety; retroactive application breaches legal certainty. The decision is annulled and remitted for a lawful re-decision.
Traps
- Confusing legality with the merits of the decision.
- Skipping the exhaustion-of-administrative-remedies requirement.
- Treating a constitutional right as absolute.