Fadel Abdulghany
The principle that local administrative orders and instructions must not conflict with the constitution or binding international agreements is a cornerstone of modern constitutional law. Rooted in the theoretical conception of the hierarchy of rules developed by Hans Kelsen and enshrined in numerous constitutions, this principle rests on a robust legal framework that constrains administrative power at all levels, including the subnational and local levels. The hierarchy of legal rules serves essential functions: it safeguards the supremacy of the constitution and the rule of law; it ensures respect for the state’s treaty obligations in accordance with the principle of pacta sunt servanda (the obligation to keep one’s word); and it preserves the structural integrity of federal or decentralized systems by preventing subnational units from undermining the national constitutional framework or international obligations.
The conceptual framework for subjecting domestic administrative orders to constitutional and international standards is based, in large part, on Hans Kelsen’s theory of pure law, which portrays law as a hierarchical system in which each rule derives its legitimacy from a higher one. This hierarchy can ultimately be traced back to a fundamental rule or foundational standard. In this hierarchical structure, the constitution occupies the apex of the domestic legal system as the source of legitimacy for all legislation and its administrative procedures. Legal rules are thus formed in a dynamic normative hierarchy, with the constitution establishing the basic structure of the legal system and setting the boundaries within which lower rules must operate. Laws and treaties occupy an intermediate position, relying on constitutional authorization and remaining bound by its limits. Regulations and administrative decisions occupy the bottom of the normative ladder and are only valid to the extent that they are consistent with the provisions of the constitution and the higher-ranking legal frameworks.
This hierarchical view has a crucial consequence: a lower-level rule that contradicts a higher-level rule is invalid to the extent of that contradiction. This is expressed in the principle that a higher-ranking law restricts or invalidates a lower-ranking law within a single legal system. This principle is universal across legal systems, whether in civil or common law traditions. Therefore, local administrative orders and instructions, as the lowest rung of the normative hierarchy, must conform to constitutional requirements and the international obligations binding on the state.
The Principle of Exceeding Authority and Constitutional Restrictions on Administrative Action
The mechanism for enforcing normative supremacy is embodied in the principle of exceeding authority. This concept refers to the issuance of an administrative decision outside the scope of jurisdiction or in violation of the limits imposed by the constitution or the law. If a local or administrative body issues an order that exceeds its constitutionally granted authority or violates a higher standard, this is considered an overreach of authority, resulting in illegitimacy and the consequent invalidity. This principle operates on multiple levels, addressing substantive, procedural, and jurisdictional defects.
A substantive overreach occurs when an administrative procedure extends into an area not legally authorized or when it conflicts with constitutional rights or guarantees. A procedural overreach occurs when the administrative body neglects the binding procedures imposed by the constitution or the empowering legislation. A jurisdictional defect arises when the administrative body addresses matters outside its purview according to the constitutional division of powers. Comparative jurisprudence has established that the unconstitutionality of empowering legislation, particularly if it conflicts with fundamental rights, extends to any administrative orders and applications based upon it, rendering derived procedures illegitimate, even if they appear to meet all formalities or internal requirements. This underscores that the supremacy of the constitution is not limited to invalidating unconstitutional texts but also extends to invalidating executive effects based on an assumed authority lacking legal basis.
In federal systems, legislative authority is distributed between the federal government and sub-national authorities through constitutional rules known as the division of powers. This division creates multiple constraints on local administrative action, including explicit and implicit limitations, along with the principle of federal supremacy in cases of conflict within shared jurisdiction. Explicit limitations prevent local orders from violating clear constitutional prohibitions, particularly those related to fundamental rights. Implicit limitations prevent measures that undermine essential constitutional structures, even in the absence of an explicit prohibition. The supremacy of federal law ensures that federal rules prevail in cases of conflict within shared or overlapping jurisdictions, thus preserving the unity and consistency of the legal system.
International Obligations in the Face of Domestic Law and Local Administration
The principle of exemplary conduct is a cornerstone of international law, enshrined in Article 26 of the Vienna Convention on the Law of Treaties, which stipulates that every treaty in force binds its parties and must be implemented in good faith. This is further reinforced by Article 27 of the same Convention, which states that domestic law cannot be invoked to justify non-performance of a treaty. This has direct implications for local administrative action; neither the state nor its local units can invoke internal constitutional or regulatory structures to justify violating treaty obligations to which they are legally bound.
International jurisprudence has reinforced this trend by emphasizing that a state may not invoke its constitution or domestic laws against another state to evade its international obligations. This underscores the principle that treaty obligations bind the state as a single entity under international law, regardless of the distribution of powers within its borders. Therefore, local administrative bodies, as part of the state apparatus, may not issue orders or take measures that would lead to the state breaching its international obligations.
The status of ratified treaties within the domestic legal hierarchy varies among legal systems. Some grant treaties a position above ordinary legislation but below the constitution, while others equate them with legislation. Still others grant constitutional status to certain human rights treaties, and some legal scholars even argue for the supremacy of certain mandatory rules over domestic law in cases of conflict. Regardless of the internal ranking of treaties, the fundamental principle remains that domestic administrative orders cannot contradict binding international agreements to which the state has acceded and committed.
Peremptory norms of international law, such as the prohibition of genocide, slavery, torture, and crimes against humanity, raise particular challenges in the relationship between the international system and domestic constitutional law. These norms are considered superior to other rules of international law, and one school of thought argues that their very nature necessitates their supremacy over any conflicting domestic rules, since international law does not permit evading fundamental obligations through domestic constitutional or legislative formulations. Conversely, another school of thought emphasizes the necessity of incorporating these norms into national constitutional frameworks and activating them through internal mechanisms, as evidenced by constitutional models that explicitly recognize the binding nature of peremptory norms as a constraint on the legislative process.
Enforcement Mechanisms and Constitutional and Administrative Processing Paths
The enforcement of the hierarchy of constitutional standards depends, in a crucial aspect, on judicial review; and comparative constitutional law shows two main models: a centralized model that grants a specialized constitutional court the power to decide on constitutionality exclusively, as in the German model, and a decentralized model that allows courts to exercise constitutional review within ordinary litigation, as in the American model.
When local administrative orders violate constitutional standards or contravene international obligations, a range of corrective mechanisms are available. Courts may declare the offending order null and void, thereby removing its legal effects. If the unlawful part can be separated from the rest without affecting the substance of the procedure, the annulment may be limited to the flawed portion while preserving the remainder. Courts may also interpret the orders in a restrictive manner to ensure their constitutionality, thus maintaining their validity within legitimate limits. In some systems, the effects of an annulment ruling may be suspended for a specific period to allow the competent authorities time to rectify the situation through constitutional alternatives.
In addition to judicial oversight, some constitutions and laws provide executive oversight mechanisms for local administrative procedures. These may include requiring prior review of certain decisions before they take effect, or granting central authorities the power to annul or suspend local measures within specified timeframes if they are found to conflict with the constitution or higher law. Preventive mechanisms may also include a requirement to submit draft local orders for central review before their adoption, thereby reducing the likelihood of conflict and minimizing constitutional disputes before they arise.
Conclusion
The principle that local administrative orders and instructions must not conflict with the constitution or binding international agreements embodies the logic of normative supremacy and the rule of law. It is based on Kelsen’s concept of a hierarchy of norms and is practically manifested through clauses of supremacy, principles of exceeding authority, and mechanisms of judicial review. This ensures that administration at all levels is subject to constitutional limits and to the obligations the state has internationally accepted. The principle of piety extends this constraint to treaty obligations, preventing local authorities from placing the state in a position of breaching its international commitments. In established federal systems, as well as in post-conflict transitional contexts, maintaining a clear hierarchy of constitutional and international norms in the face of local administrative actions serves essential functions: protecting fundamental rights, ensuring legal consistency across levels of government, and safeguarding international obligations, which are cornerstones of stability and cooperation in international relations.
