Is the State Subject to the Rule of Law?

Abstract

Sec. 42 of the Interpretation Ordinance [New Version] provides that: “Save as may be otherwise expressly provided therein, no enactment shall affect any right of, or impose any obligation upon, the State.”It is generally accepted that the source of the section lies in the traditional supremacy of the English Crown. Since the Crown is the lawmaker it cannot be fettered by the laws it makes unless there is express provision to that effect. On the other hand where laws confer rights upon the Crown, a contrary rule sometimes operates that a statute is to be interpreted in favour of the Crown, since in enacting it the King's subjects act as grantors of rights and the rule against derogation from grant takes effect. In point of logic, however, even without express provision there is nothing to prevent a lawgiver from placing restrictions upon himself.In Jewish thought indeed although the law emanates from the Almighty, who is indeniably Supreme Authority—”the King of Kings”—it is deemed to apply even to Him.It is surprising therefore to note that even in the United States, that model of democracy where the rights of the individual are so protected, the English approach has been adopted and extended to every government body even in the area of private law.