Re-visiting the rule of law and principle of legality : judicial nuisance or licence?

A constitutional democracy is required to embrace a discordancy of concerns in attempting to attain harmony and toleration of differently tuned instrumental values, interests and principles. Daily local and international news editorials testify to overreach of public and private power or functions that impacts unlawfully or unfairly upon the rights and interests of citizens. Our law reports are replete with examples of the latter fact. The proper and lawful exercise of public or private power, irrespective of the nature of the functionary, depends essentially on what is reasonable. Proportionality and rationality must serve as essential ingredients informing reasonableness. Axiomatic to the aforesaid is the role played by the rule of law in general and in particular the principle of legality – a necessary incident of the rule of law. The purpose of this article is to argue first that the principle of legality, employed at its best, offers rich impetus to our administrative law jurisprudence, second, that the improper application thereof poses a risk to subverting the principle of subsidiarity and, finally, examining the possibility of a commodious balance, if any, being struck between the elasticity offered by legality and the requirement of not bypassing national legislation