The fundamental principles of legality are found in the Universal Declaration of Human Rights, the European Convention on Human Rights, the International Covenant on Civil and Political Rights and the Geneva Convention: fourthly, the principle of legality protects the fundamental elements of a fair trial. Parliament must speak with irresistible clarity in order to renounce the rules of natural justice, the presumption of innocence and privilege against self-incrimination, the criminal standard of proof and the principle that the courts meet in public. On the other hand, the principle of legality also applies according to which no one must be superior to the law. This means that ignorance of a law is almost never recognized as a legitimate defense, except in the very rare cases of legal error. When a law is clearly drafted and promulgated in a thorough manner, all citizens are bound by it, whether or not they have personal knowledge of the law. Ignorance of a law may lessen the gravity of guilt and perhaps reduce Mens Rea`s degree from the “conscious” commission of a crime to the “negligent” commission of a crime, but criminal law in the United States states that ignorance is almost never synonymous with innocence. The principle of legality states that it is not the personal knowledge of the accused that determines what he can and cannot do, but the law of the land. The principle of legality cannot overcome dense or labyrinthine legislation. But it ensures that fundamental rights and principles are not supplanted by general or ambiguous words. Lord Hoffmann noted in R v Secretary of State for the Home Department; Ex parte Simms that there is “too great a risk” that the full scope of general or ambiguous words will not be clear at first sight of the law and therefore “go unnoticed in the democratic process”. The principle of legality means that Parliament cannot hide in the dark recesses of a broad and vague power.
It must set any deviation from the general legal order in the light of “irresistible clarity” so that people look at the law and know what the legal consequences are. There is a tension between these two elements of Chief Justice Gleeson`s testimony in Electrolux. By firmly protecting fundamental rights from legislative interference, courts may be tempted to depart from the principle that a law must mean what it says. The doctrines that make up the principle of legality include the abolition of existing common law criminal doctrines, the prohibition of the judicial creation of new penal codes, special provisions requiring a strict interpretation of criminal laws, the prohibition of ex post facto criminal laws, the prohibition of due process for the retroactive application of judicial interpretations that modify criminal law, and the invalidity of vague criminal laws. by due process. [1] For a person, a notice was essential to challenge an adverse administrative decision in court if he or she chose to do so. The general wording of the Regulation was not sufficient to supplant this fundamental principle. The fact that the government did not make the payments was illegal. The rule of law as a constitutional principle requires that before embarking on a course of action, a citizen be able to know in advance what the legal consequences will be. If these consequences are regulated by law, the source of that knowledge is what the law says.
The principle of legality ensures that no defendant may be punished arbitrarily or retroactively by the State. This means that a person cannot be convicted of a crime that has never been publicly disclosed, either by a law that is not sufficiently vague, or by a criminal law that is passed retroactively to criminalize an act that was not criminal at the time it occurred. It requires judges to always speak in favour of the accused in interpreting the laws and prohibits the pronunciation of guilt without clear and reasonable justification for that judgment. The principle of legality grants the accused the right to be tried and punished only in accordance with an existing law. This principle is set out in Article 50(2)(n) of the Constitution. It requires the State to punish an act or omission that was not a criminal offence under Kenyan or international law at the time of the commission or omission. Gleeson C.J.`s testimony consists of two elements. The first element is that the principle of legality ensures that the courts are slow to restrict the rights and doctrines that are essential in a society governed by the rule of law. Contrary to the principle of legality, there is a rule that legislative codes must be interpreted in a reasonable manner so as not to impede the legislative process. The principle of legality has become part of customary international law. The majority of states have constitutional provisions that establish the right to “no crime or punishment without law.” The majority of those who do not have such constitutional provisions have codified rights through laws and treaties.
Lord Bingham disagreed. In his view, the regulation was clear. It expressly referred to the decision of the application for asylum as determined and not to the notification of the applicant. Parliament had expressly provided for the notification of decisions elsewhere in the Staff Regulations. Lord Bingham acknowledged the importance of the principle of legality for the rule of law, but replied that it was “a cardinal principle” of the rule of law that “clear and unambiguous legislation should be implemented”. The Court`s “reluctance” with regard to the Government`s treatment of the applicant cannot lead to the Regulation being “anything other than its clear and obvious meaning”. The second element of Gleeson C.J.`s assertion is that if Parliament interferes with these rights and principles, that interference must be clear. This reflects a central element of the rule of law: the law must be clear and accessible. If people have to organize their affairs in accordance with the law or face sanctions, then they must be able to understand what it requires.
As Lord Diplock noted in Black-Clawson Ltd v. Papierwerke AG: In the Electrolux case, however, Presiding Judge Gleeson stated that the principle of legality “is not just a common-sense guide to what a parliament in a liberal democracy is likely to have wanted; This is a working hypothesis, the existence of which is known to both Parliament and the courts, and on the basis of which the legal language is interpreted. The hypothesis is an aspect of the rule of law. Chief Justice Gleeson`s testimony has since been confirmed several times by the Supreme Court.