Law Constitutional and Administrative Law - Executive Prerogative Powers - Essay Example

?Executive Prerogative Powers Introduction Prerogative powers are the honours and ities that inherently accrue to the Crown in its right as provided by the common law, the exercise of prerogative powers may develop when it takes actions outside the framework or provisions of the law, not necessarily, breaking them but acting in a manner not provided by the law. It is important to note that the Crown or the executive can only do what is not within the law or written in statutes of parliament only if its actions would be beneficial to the well-being of the members of that particular society. Therefore, the power of the executive to exercise prerogative powers stems from the fact that the citizens have placed trust in the leadership of the executive and the executive is at liberty to exercise it as long as it uses it fairly and for the good of the society. Executive prerogative is therefore important as through it the state can achieve self-preservation, it also shows the trust that the people have on the Crown or the executive to implement and rule on their behalf. In the United Kingdom and most nations under the commonwealth, the Crown, prime ministers and cabinets, governor-generals or persons on whom executive prerogative powers may be bestowed, may exercise prerogative powers. Examples of prerogative powers exercised by the Crown or its representatives in England include the powers over wars, the prerogative of mercy and the power to call for independent public inquiries. Others may include recognizing states or acquiring and ceding territories. However, at times the exercise of the prerogative powers by the Crown or its representatives through the executive may come under strict scrutiny by members of the public or the citizens. In the United Kingdom and other nations following the common law system, prerogative powers may be exercised by the Crown either by herself or through the prime minister and his cabinet and may be subject to scrutiny or oversight by either the parliament or the judiciary. Parliamentary Oversight of Executive Prerogative Powers The role of the legislature to oversee and question the exercise of prerogative executive powers is one of the important tenets of governance present in countries that appreciate the supremacy of parliament. Through statutes enacted by the parliament, the legislature can abolish a specific statute. For example, the Canadian 1689 Bill of Rights removed some of the Crowns executive orders that were deemed contentious. Parliament can also displace executive prerogative powers by withdrawing a prerogative previously bestowed on the crown and enacting it in the form of a statute while the prerogative power is withdrawn from the crown. Accordingly, when a statute encroaches into roles that had previously been exercised by the crown, it can be said to have supplanted the role of the executive in exercising the prerogative role of the executive, This was held in A.G v De Keyser's Royal Hotel Ltd1 and Lord Advocate v Dumbarton D.C 2. This is where the learned judges stated that where the statute overlaps the role previously carried out by the prerogative power, the power will be held in abeyance and the executive must abide by the provisions of the statute in question (Hogg and Monahan 2000, p.17). Parliament may play its oversight roles in regulating the exercise of prerogative powers by the executive through a number of methods. These may include through parliamentary debates, divisions, questions asked in parliament, select committees and the interpellation method. Voting which is an important prerequisite for any democracy is also effective especially when the opposition can gather enough members to put the government in check. Parliamentary questions are an important mode of getting information from the government in that oral questions may enable the legislators to have a probe on the policies being implemented by the government. Written questions also help in allowing the members of parliament to get detailed responses from the executive. Parliamentary select committees are the most important modes in which parliament have an oversight authority on the exercise of prerogative powers by the executive. The committees play roles in scrutinizing the expenditure and the administration of the executive functions and help parliament in preparing reports that may be useful in debates and the preparation of decisions. The select committees may also face significant challenges in that composition mainly reflects the balance of power in the parliament and at times, the executive may not be willing to provide the response required or may give the wrong or evasive answers. Through a method known as interpellation method, the legislature can ably play its supervisory role in questioning the exercise of prerogative power by the executive in exercise of its functions. This involves a procedure employed by parliament to compel the rationale for exercise of a certain policy by the executive or the government. This may lead to debates on the policy and may result into a vote that may either approve or disapprove the issue at hand. Judicial Oversight of Executive Prerogative Powers The judiciary can review the executive when it exercises its prerogative powers by imposing remedies if they are done in such a way that they violate the constitution of a country. Before the advent of the twentieth century, the exercise of the prerogative powers by the Crown could not be questioned in a court of law bit now it is possible to question the constitutionality of the orders of the executive (Hadfield 1999, pp.197-232) as shown in the case of Operation Dismantle v the Queen.3 In this case, the judiciary reviewed some executive prerogative orders as they were deemed to be contrary to the provisions of the Canadian constitution and the Charter of Rights and Freedoms (Hogg 2003, p.17). This case gave the courts power to judicially review the decisions of the executive in the exercise of its prerogative powers of the executive as it imposed remedies when the executive seemed to have misused its powers. In the Dismantle case the Supreme Court of Canada was faced with a problem of finding out whether the testing of cruise missiles from America in Canadian territory was a breach to the right of the appellant to life, liberty and the security of Canadian citizens, as it might result into a nuclear war between the United States and the USSR. Although the appeal was dismissed, the court discussed the exercise of prerogative executive powers in relation to the judicial oversight. The court set two precedents in this by holding that the power exercised by the executive is not related to how it can be affected by judicial actions and that the judiciary can take a review of the constitutionality of a prerogative executive power. Superior courts in common law jurisdictions have developed a test for evaluating whether prerogative powers of the executive in exercise of its functions can be scrutinized in a court of law known as the ‘subject matter test’ (Bolt 2008, p.17). This means that if the case involves a higher degree of policy, the courts must determine whether the exercise of the prerogative executive power complies with the constitution. In Canada (Prime Minister) v Khadr4, the Supreme Court of Canada was faced with a question of repealing a ruling that had forced the government to repatriate Khadr who had been detained at Guantanamo Bay by the government of the United States. The courts found that the government had not met its obligations under international human rights law and had breached the provisions of the Charter of Rights and Freedoms. This case offered the appellant chance for review of the prerogative powers that the foreign affairs department had failed to do by its either acts or omissions. The courts have however been reluctant to review cases that touch on the prerogative power of the executive to exercise its functions especially when they fall on the constitutional functions of the executive. Conclusion Although the parliamentary and judicial oversight on the prerogative powers of the executive have been an efficient and effective way of controlling violations by the executive, it is not without problems. This is because in most instances the statutes enacted by parliament have left most of the prerogative powers of the executive untouched or unchanged. Moreover, the courts have also protected the prerogative powers from being supplanted by the legislature thus leaving the executive with the leeway to interpret what powers the Crown should retain and exercise. Several courts as evidenced by the Supreme Court of Canada have also held that the prerogative powers can exist together with the statutes as long as they touch on the same areas of the law. Closely connected to this is the belief by the superior courts in common law jurisdictions that believe that the exercise of prerogative executive authority by the Crown or the executive arms of governments are part of their constitutional functions. Despite these misgivings, parliamentary and judicial oversight of prerogative executive powers remains effective and efficient in ensuring the constitutionality of executive orders by governments. References Bolt, Major Alexander. 2008. The Crown Prerogative as Applied to Military Operations. Ottawa: Office of the Judge Advocate General, Strategic Legal Paper Series. Hadfield, Brigid. 1999. Judicial review and the prerogatives powers of the Crown. In The Nature of the Crown: A Legal and Political Analysis, edited by Maurice Sunkin and Sebastian Payne. Oxford: Oxford University Press. Hogg, Peter W. 2003. Constitutional Law of Canada. Student edition. Scarborough: Thomson Canada. Hogg, P.W., and Monahan, P. 2000. Liability of the Crown. 3rd ed. Toronto: Carswell. Jones, P. 2010. Respect royal prerogative on security matters. Ottawa Citizen, 5 May. Table of Statutes Canadian 1689 Bill of Rights Canadian Charter of Rights and Freedoms Table of Cases A.G. v. De Keyser's Royal Hotel Ltd [1920], A.C. 508 (H.L.) Lord Advocate v. Dumbarton D.C [1989] 3 W.L.R 1346 (H.L.) Operation Dismantle v. The Queen [1985] 1 S.C.R. 441 Canada (Prime Minister) v. Khadr [2010] S.C.C. 3 Read More