A Review of Barak's Formal Rule of Law

Note on A Review of Barak's Formal Rule of Law by Legum


In this piece, A. Barak set out to discuss the rule of law and the supremacy of the constitution. This section focuses on the formal rule of law.

Understanding the Rule of Law:

The term rule of law is an English expression also referred to as Government under law by Americans. To understand the term rule of law, Barak distinguishes between three aspects of the rule of law. The formal rule of law, the essential rule of law, and the doctrinal rule of law. This note discusses the formal rule of law.

Formal Rule of Law:

Formal rule of law is the idea that every individual, group, institutions of the State must act according to the dictates of the law, and that any contravention of the law must be punished. In the formal sense, the content of the law is immaterial, it must simply be obeyed even if its contents are unworthy of being obeyed.

Barak then examined how the formal rule of law applied to individuals and the State.

The Rule of Law and the Individual:

The following are some key directives of the rule of law for individuals:

1. Individuals must act according to the law. These include paying taxes as instructed, obey traffic regulations, obey rules governing State activities like voting amongst others.

2. Individuals can only demand that others obey the law if they themselves obey the law.

3. An individual must not violate the law even if obeying it runs counter to his or her worldview or interest. Read Socrates’ Crito to see his view on this.

The Rule of Law and the State:

The following are some key directives of the rule of law for the State:

1. The State has no existence outside the law, as it was a creation of the law.

2. State activities must only be performed within the limits of law. The State has several institutions which perform specific functions for the State. The relationship between the rule of law and these institutions shall be discussed now.

The rule of law and Executive in Ghana:

The Executive only has powers it is granted. In chapter 1(1) of the 1992 constitution, the powers of Government are exercised in the name of the people of Ghana. According to Barak, a key difference between the individual and government is that “the individual is granted freedom unless legally denied. The government has no power unless legally granted it.”

In chapter 8 of Ghana’s constitution, the powers and limitations of the executive are specified. Article 58 (in chapter 8) stipulates that “the executive authority of Ghana shall vest in the President and shall be exercised in accordance with the provisions of this Constitution.” Thus, all the exercise of the executive functions of the president by the president must occur according to the dictates of the constitution and the limits imposed by it. The president for instance in article 59 cannot leave Ghana without prior notification in writing to the Speaker of Parliament.

Barak also asserts that every executive member must respect the law. According to Barak, “the executive authority and all its branches are subordinate to the law. Every public figure-whether in the central or municipal government-must realize that the law is as incumbent upon him as it is upon every citizen.” For example, article 1(2) stipulates that any contravention of the constitution shall be void to the extent of contravention. This applies to ordinary citizens and all members of the executive. See the case of Npp versus Attorney General where it was held that an injunction can be imposed on the president just as it can be imposed on any other citizen.

The Legislature in Ghana:

Article 93(2) of the 1992 constitution vests parliament with legislative powers. These powers ought to be exercised in accordance with the constitution. The constitution also places some limitations on parliament. For instance, in article 3(1), parliament cannot make a law establishing Ghana as a one-party state. A legislator is also expected to obey the laws he or she makes. Any law by parliament which contravenes the constitution shall be declared void as was done in the case of Mensima versus Attorney General.

The Judiciary in Ghana:

The judiciary in Ghana is tasked with administering justice in Ghana. In article 125 of the constitution, justice is said to emanate from the people, the independence of the judiciary is guaranteed, and the exercise of judicial power is to be subject only to the constitution. A key limitation of the judiciary in Ghana is that they only interpret the law but cannot enforce it. Further, even the justices of the Supreme Court are forbidden from violating the law and are not above the law. Judges in their interpretation of the law are also expected to do so objectively and without fear or favour. This commitment is reflected in the independence of the judiciary in Ghana in article 127.

Barak asserts that judicial criticism is essential for the effective existence of the law. When any act by anybody or institution of government violates the laws, it ought to be criticised as stipulated in article 2(1) of the constitution. The criticism could be in the form of a judicial decision nulling and voiding the act. Barak states that “the ability to petition the court is the cornerstone of the rule of law”

Further, the judiciary itself is not exempt from criticism. The very existence of appeals is based on the idea that judges are themselves fallible. An appeal can thus be construed as criticism of a court’s decision. The Supreme Court in Ghana for instance in article 129 and 131 can be used to appeal decisions of lower courts, it can review its own decisions in article 133.

The Rule of Law and the Preservation of the Law:

The rule of law is needed to preserve law and order in society. To achieve this objective, the rule of law requires that when an action contravenes the law, it must be met with negative consequences or a sanction. These consequences can be a simple declaration of the action as null and void, and can also be a criminal or civil act.

According to Barak, the police and legal authorities are the main body for enforcing the law. The police must act objectively and justly. In the performance of their duty, Barak asserts that the police must look for the truth and not necessary incriminating evidence.

Barak also states that Attorney General is the main authority for enforcing the law. Like the police, the attorney general ought to be objective and independent in the performance of their functions. The attorney general, although appointed by the political authorities, is not subordinate to those authorities.