Lord Bingham disagreed. In his view, the rules were clear. It expressly referred to the receipt of the application for asylum as decided 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 countered that it was “a cardinal principle” of the rule of law that “clear and unambiguous legislation should be implemented”. The Court`s “aversion” to the Government`s treatment of the applicant could not lead it to give the Regulation “anything other than its clear and obvious meaning”. Nevertheless, the law implicitly referred to conflict-of-law rules between legal doctrine and case-law (Bundesrat, 1997: 134). In other words, the law also referred to something that was not explicitly included in the law. Another example on this point shows that Swiss law is not limited to written law. In the context of the revision of the Federal Constitution in 1999, which was described as a “fundamental reform” and “update” of constitutional law (Bundesrat 1997: 20 and 9), the idea of a substantial constitution was invoked. The adoption of this new text was justified by the fact that the Constitution of 1874 – a formal law – did not cover all Swiss constitutional law. The idea of substantial constitution has been used to designate all the rules and principles that make up constitutional law (Aubert 1993: 101-103). These were constitutional systems without a written constitution, such as those in the United Kingdom or New Zealand.

It then included the practice of the Federal Assembly and the Federal Council, the case law of the Federal Supreme Court and numerous norms of international law to which Switzerland is committed (Federal Council 1997: 17). The constitutional revision did not codify the entire substantial constitution, since “the constitutional text never fully restores substantive constitutional law” (Bundesrat 1997: 19). This conception of the Constitution therefore shows that Switzerland has a “living constitution” that has developed over time, but above all in terms of the scope of its values. Here, the judge plays a major role. Respect for fundamental rights, democracy, separation of powers and federalism represent these Swiss constitutional values and contribute to shaping the activities and borders of the state, including in the Swiss public administration. In criminal law, the principle of legality aims to ensure the rule of law in criminal proceedings.1 min read The principle of legality grants the accused the right to be tried and punished only in accordance with an existing law. This principle is enshrined in Article 50(2)(n) of the Constitution. It obliges the State to punish an act or omission that did not constitute a criminal offence under Kenyan or international law at the time it was committed or omitted. 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. In conflict with the principle of legality, the rule that legal codes must be interpreted reasonably so as not to thwart the legislative process.

The definition of the legal form is an important element in the Swiss public administration, because every public act includes the definition of an instrument of action. However, the distinction between formal and substantive law also exists in Swiss law (Auer et al. 2006: 88 ff.). In fact, several constitutional provisions require the enactment of legislation. This varies depending on the subject, but also according to the degree of limitation of an individual`s autonomy. The general requirement of a law is formulated, for example, in the context of a possible restriction of fundamental rights. It is referred to in Article 36(1) of the Const. The legal requirement is also set out in Article 164 Const. for federal legislation in general. In both cases, the idea of the law is a one-way street. Depending on the circumstances, it is either an act adopted by the Parliament or an act adopted by a decision-making authority.

In the areas of taxation – in accordance with the principle of “no taxation without representation” – (Art. 127, para. 1 Cst.), access to justice (Art. 29a and 30 of the Constitution) and deprivation of liberty (Art. 31 para. 1, rue Saint), the requirement of a law is understood within the meaning of formal law. The extent to which individual autonomy, the cornerstone of the liberal state, is undermined or threatened justifies the public action of a democratically elected body. In addition, Swiss law provides for an exception to the legal obligation: the general policy clause.

This clause allows the government to act without a legal basis and to restrict fundamental rights when it comes to preventing or putting an end to a serious and imminent breach of public order (Aubert and Mahon 2003:325). On the other hand, the principle of legality also applies, that no one can be above the law. This means that ignorance of a law is almost never recognized as self-defense, except in the very rare cases of legal errors. When a law is clearly drafted and thoroughly promulgated, all citizens are bound by it, whether they know it personally or not. Ignorance of a law can lessen the severity of guilt and perhaps reduce the mens rea degree from “knowingly” committing a crime to “negligent,” but criminal law in the United States states that ignorance is almost never the same as 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. At the end of World War II, the status of the principle of legality was mixed worldwide. Although many countries have constitutional provisions that require the establishment of crimes and penalties by law, they do not explicitly require a prohibition on retroactivity. At the same time, there were explicit provisions in many countries. After all, in many countries, legality was not mentioned in the constitution at all. The requirement for a legal basis may take the form of a formal law, but also of a substantive law.

In this dimension, however, the principle of legality represents its most flexible aspect and can therefore correspond to the contours and specificities of public administration. While it is generally accepted that formal law is losing ground to a substantive conception of law, Swiss public law has mechanisms and practices that strengthen the procedural dimension of legislation. From this point of view, these mechanisms and practices reflect a link with the law as the first formal source of law, which is also reflected in the principle of the immunity clause in the context of constitutional review (see Mahon`s chapter). These mechanisms and practices illustrate a trend towards an increasing “proceduralization” of legislation. This can be interpreted as strengthening the democratic legitimacy of the law. It emphasizes the symbolic value of law, even at the risk of favouring a purely formal and non-substantive approach to law. Two elements are part of such a trend. On the one hand, there is the dissemination of a true “legislative culture” by the federal administration and, on the other hand, the instruments of direct democracy. The second element of Gleeson C.J.`s request is that when Parliament interferes with these rights and principles, that interference must be clear. This reflects an essential element of the rule of law: the law must be clear and accessible. If people have to organize their affairs by law or face penalties, then they must be able to understand what it requires.

As Lord Diplock noted in Black-Clawson Ltd v. Papierwerke AG, the second aspect of the principle of legality is commonly referred to as the “reservation of rights”. This is the principle of requirement of the legal basis and means that, except in cases of force majeure, all state activities must be based on legal regulation (Schindler 2014: 118). This aspect of the principle of legality allows individuals to foresee the consequences of their actions, but also ensures that they will be treated equally. Twelve years ago today, the High Court handed down its decision in the case of Electrolux Home Products Pty Ltd v. Australian Workers` Union, remembered today for Chief Justice Gleeson`s historic discussion of the principle of legality. Ultimately, it is unlikely that the legislature will overturn fundamental principles, violate rights, or depart from the general legal system without expressing its intent with irresistible clarity. However, in the Electrolux case, Chief Justice Gleeson stated that the principle of legality “is not merely a reasonable guide to what a parliament in a liberal democracy is likely to have intended; This is a working hypothesis, the existence of which is known to both Parliament and the courts, and on the basis of which the language of the law is interpreted. The assumption is one aspect of the rule of law. Chief Justice Gleeson`s testimony has since been repeatedly upheld by the Supreme Court.