Significance and Limitations of the Royal Prerogative - Essay Example

THE ROYAL PREROGATIVE: Its Significance and Limitations The Royal Prerogative is the embodiment of customary powers, privileges, and immunities exercised by the executive (Crown/Monarch), recognized in common law jurisdictions. It originated in the medieval period when the King acted as the head of the kingdom and at the same time, as a feudal lord. Since he needed to continuously defend the kingdom and all places where he exercised jurisdictions, the King has practically all powers, which he could use to protect the public good. These residual powers are technically embodied in the term “Royal Prerogative.” In 1700s, debates regarding the extent of these prerogative powers ensued. This was further aggravated by the execution of one King and the expulsion of Charles I in 1649 and James II in 1688.1 Discussions on the issue culminated with the passing of the 1689 Bill of Rights, which considered the use, and abuse of certain specific royal prerogatives as unlawful. It was concluded that most of the prerogative powers may be exercised only upon the advice of ministers, and although the Monarch retained certain powers which can be exercised independently such as the power of appointment and removal of ministers and ministries, the royal power found it difficult to freely exercise its prerogatives, especially if it is in contravention of the advice of the Parliament2. The following are some of the powers vested under the Royal Prerogative: (1) Calling for and dissolving of the parliament, calling of elections; (2) Giving of royal assent to legislations; (3) Preparing plans to confer benefits to citizens; (4) Granting of clemency, pardoning of convicts, or reducing penalties thereof; (5) Entering into treaties, declaring war and making peace, controlling the issuance of passports and preventing foreigners from entering the country; (6) Controlling, organizing and disposing of the armed forces; (7) Appointing of judicial officers, ministers, and other public officers; (8) Procuring of ships; (9) Printing of authorized versions of the Holy Bible; etc. The royal prerogative to establish and enter into diplomatic relations with other countries or states played a significant role in the formation of strategic alliance that has been an important factor in international relations. The wisdom of determining whether or not the country should befriend another country, and which country or countries it should be, is properly laid on the Crown/Monarch. The latter is in a better position to evaluate the conduct of relations with other jurisdictions. The long process of debates and arguments in the Parliament is considered unnecessary as it involves a purely executive function. Also, since it is the Crown/Monarch who personally engages himself in these functions, it is but proper that such power be exercised by him, to the exclusion of the Parliament. This royal prerogative has played an important role during the time when exploratory navigation of the world has been conducted by the then superpowers. If not for the well-planned tactical alliances made by these superpowers, small countries, which were occupied, could have had a better fight with the occupants and insist their independence. Presently, the exercise of this royal prerogative to exercise diplomacy still plays a huge role in diplomatic relations. For the superpowers, this is necessary to maintain themselves above all the rest of the countries. The influential countries need to unite in order to validate their claim that they have all the things the world needs, especially in security aspects. For the lowly, undermined countries, diplomacy is the key to seek the protection of the superpowers. In case of conflicts, diplomacy would serve as the license to demand assistance. Corollary to this prerogative is the power to declare war and send armed forces without the favorable recommendation of the Parliament. This was properly exercised before, as the Crown/Monarch served as the head of state that was presumed to know the proper undertakings of his kingdom. The royal power was then looked up as the all-knowing moral that lived in the kingdom that subjected its constituents to orders without questions. In 1940, an attempt to dislodge this power from the Crown/Monarch was successfully initiated by Oliver Cromwell, a member of the Parliament. Then King Charles I was stripped off his power to control the navy and army. Years later, it was realized that the action cannot intelligently survive a war without proper finances, so in 1960, the royal prerogative was restored to the Crown/Monarch. In fact, a report was published by the House of Commons’ Public Administration Committee regarding the exercise of the prerogative powers of the Minister. It recommended that should the Minister decides to involve the country in war, whether defensive or aggressive, the same should be validated by the legislature or Parliament. It further detailed that if ever time is of the essence and decision of the Minister is called for immediately, the Minister may decide on the matter, provided that the issue must be raised in an emergency meeting called for the purpose, as soon as possible. The executive however gave a negative reply, claiming that it is not convinced of the justification made by the committee since the royal power can intelligently decide on the same. At present however, the bulwark of opinions tend to transfer this prerogative to the Parliament or legislature. This was instigated when the royal power (Prime Minister Tony Blair) sought the Parliament’s vote before they participated in the 2003 Iraq war. Strictly speaking however, this act was considered under constitutional term as mere “advisory,” as the final decision would still have to be made by the Prime Minister. In addition to these prerogatives relating to international relations is the power to enter into treaties. This means committing the country to treaties, the text of which may not have been printed or published, nor debated or discussed upon by the Parliament. With the same reason as that in the exercise of the prerogative power to conduct diplomacy, the royal power was viewed as the proper person who has the capacity to study and review proposed treaties, and decides whether they should or should not be agreed upon. However, in the latter part of evolution of political powers, the international tendency is to secure the approval of the Parliament or legislature in order to validate the act of the executive; absent of which would result to nullity of the treaty with respect to that particular country or state. This new tendency is geared to the avoidance of the country becoming a co-signatory to treaties, which allow the use of nuclear weapons or establishment of military bases without the convenience of neither the constituents nor their representatives. Another royal prerogative is the issuance of public immunity certificates to certain individuals. These certificates will legally allow them to refuse investigations or inquiries by the courts of justice. Attempts to withdraw this power from the Crown/Monarch is still being pursued and studied up to now since it became the root cause of alleged human violations. It is worthy to note however that royal prerogatives remain intact until and unless the Parliament withdraws this expressly or by implication in the statutes. The exercise of the royal prerogatives however is not without limit. For example, ministers remain accountable to the Parliament for their actions. The Departmental Select Committee scrutinizes the exercise of these powers. Add this to the fact that the Liaison Committee questions the Prime Minister twice a year and asks for justifications of his actions during the year. In reality, the royal prerogatives may be displaced and replaced by the Parliament thru the enactment of statutes. If the basis of the royal prerogative is a statute, the royal power must see to it that it acts only within the bounds of the law. Exception however is made if the statute itself expressly preserves the prerogative power. The common law courts during the time of King James I/VI, thru the Case of Proclamations in 1611, ruled that courts have the right to set and determine the limits of the exercise of the Royal Prerogative3. Also, the judiciary incited the use of codification. A concrete example is the persuading to put control in the secret police thru the enactment of a statute giving effect thereto. Together, both Parliament and the common law courts impose limitations to the exercise of the Royal Prerogative by controlling the supply of money, enacting new laws, and granting judicial review of some actions4. This is because the royal power is not capacitated to act unless provided by sufficient funds by the Parliament. The Crown/Monarch cannot disburse money out of the public funds without proper legislative act to justify the same. Judicial intervention in the exercise of the prerogative powers is highly recognized. The inquiry however is limited to the determination of whether or not the prerogative applies or is applicable in the situation and whether it was exercised within its limitations although the latter is hard to determine inasmuch as these limitations are not well defined. It is thus safe to conclude that judicial review is sought only if the matter is considered justiciable. The wisdom or efficacy of the action when appropriate, is considered beyond the power of judicial review and is already within the realm of political questions. In connection with this development, the sovereign immunity of the royal power from suits, whether in its personal or official capacity, continues to be recognized. The cited reason is that the royal power represents the prosecution in criminal cases, either in person or thru the Attorney-General; thus, the royal power cannot logically prosecute itself, or judge its own case. Cases involving purely civil in character was not mentioned nor questioned however. This stand however stands true, not only for states observing a monarchial system, but also with those democratic states. The practical raison dêtre for this is that, the state, as represented by the executive, must have no fear in exercising its powers and performing its functions. If filing of suits against it would be allowed, the executive may find itself burdened, defending itself against suits. This would logically result in withholding of some powers for fear of being prosecuted despite the otherwise since intention to uplift the life of the country. Nevertheless, the royal power, despite its immunity from suit, may not engage in acts or make decisions that would result in the deprivation of the life, liberty or property of any individual. These three are basic human rights derived from the Fundamental Laws of England that cannot be amended nor altered by mere expediency of those in power. In effect, the royal power cannot impose taxes without the consent of the legislature. This limitation sometimes results to frustration of plans despite efforts of the executive, thus, the country’s administration by the executive still, albeit partially, lies at the discretion of the Parliament thru its approving power. With the distribution of most of the royal prerogatives to the Parliament, the three (3) most important prerogative powers that remain under the jurisdiction of the royal power are: First, the appointment of a Prime Minister. Second, is the dissolution of Parliament. And third, the giving of royal assent to legislation.5 Although it can be observed that severe erosion of the royal prerogative has been experienced, it remains unpredictable as to who should rightfully possess it ultimately. Some prerogative powers have been transferred from the Crown/Monarch to the Lords, then from the Lords to the commons, and lastly to the people. The question will boil down as to who shall be accountable to the actions later on. It appears that Royal Prerogatives, albeit diminished by time, still plays an important factor in shaping the future of the country. The intelligent exercise thereof can make or break the dreamt destination of the countrymen. However, no matter how genius the Crown/Monarch is, the later is still susceptible to human errors. Thus, a complete separation of powers of the government must be pursued so that the principle of checks and balances may be observed and implemented for the common good. Without this, no person or institution may correct the otherwise grave shortcomings of the royal power. By then, only history could judge the wisdom of the exercise of the prerogative powers, and probably, the goals or objectives for granting the same may not be attained. REFERENCES: Bradley, A.W. and Ewing, K.D., Constitutional and Administrative Law, 13th Edition, p. 105 & pp. 246-247. Durkin, M. and Gay, O., “The Royal Prerogative.” House of Commons Library. “Royal Prerogative” Answers.com. Retrieved 31 March 2006. http://www/answers.com/topic/royal-prerogative. The United Kingdom Parliament. Retrieved 31 March 2006. http://www.parliament.uk/parliamentary. Read More