A Constitution Is a Body of Legislation or Statutes - Essay Example

Constitutional Law Constitution is a body of legislation or statutes that establishes how an organization is governed, who administers it and what powers they have to do so.1 An organization could be just a small private group, or it could be as powerful as the national government. The constitution states the powers of individuals and protects the rights of the citizens.2 The constitution may be codified like but some countries such as such as U.K. and New Zealand have no codified laws.3 The focus of this study is to examine the separation of government powers essential for the realization of societal values such as equality, liberty, justice and the sanctity of property. The powers of the government should be controlled in order to ensure that its exercise of such powers does not cause destruction of the values it intended to uphold.4 According to the rule of law, an individual can only be punished in case of breach of the law.5 "Everyone is equal before the law and no one is above the law."6 It is the responsibility of the court to provide a remedy for any breach of an individual right. “The wider concept of rule of law fits with the idea of a codified constitution articulating a form of ‘higher law;’ or a set of shared community values which the people adopting the constitution wish to promote and protect, and against which they wish all other legislation to be measured.”7 The uncodified UK law does not provide these differences, but it affirms to that the government is subject to the law and so it is under the control of the courts.8 Therefore, the court themselves must be free of government’s influence in order to control the government effectively. In order to avoid concentration of too much power to a single body there should be separation of powers between the three government institutions for effective application of law as established in various constitutions recognizing various government institutions.9 The constitutional theorists have recognized the role of government in the society by expressing their determination to put the government under control and establish a limit on how the government exercises its constitutional powers.10 The doctrine of separation of powers remains the main guiding principle for the proper organization of government.11 However, as suggested by the Montesquieu model of separation of power the theory of separation of powers has not been fully implemented. His model suggests partial separation of persons and functions of various branches of the government.12 The UK constitution has not achieved segregation of powers, but instead there has been the fusion of powers of both personnel and functions of the parliament (the House of Commons) and the government (the executive).13 Effort has been made in the legislative branch with no interference of other arms.14 However, Montesquieu model suggests the need for partial separation of powers in order to ensure the no branch maintains absolute control over other arms and no government branch is restricted from exercising its powers.15 Montesquieu was fretful about too much power held by the French Monarch and perceived that having too much power in one arm of the government would result in abuse of power and the oppression of citizens.16 He also believed that in order to avoid such a scenario the power should be shared among the arms of the government to create room for checks and balances of each arm by the others.17 Unlike in codified constitutions like that of America which have specified the powers of the different arms of the government the UK law does not confer specific powers or duties to any particular organ.18 According to Montesquieu’s theory, the executive, legislature and judiciary should act independently of each other in terms of personnel and functions with all branches practicing equal powers.19 It also implies that nobody can perform in more than one branch at a time and no branch should carry out duties of another branch.20 For example, the executive could refuse to enact unjust laws passed by the legislature while the court could restrain the executive from acting unlawfully. The doctrine of separation of power involves establishment and maintenance of political freedom by dividing the government into three branches including legislature, judiciary and executive with each branch having connected identifiable function of the government.21 Each branch is required to carry out its functions without interfering with functions of the other divisions. The members forming the respective government agencies should be kept clear and separate from each other, and none should hold membership in more than one branch.22 In such a state, each branch is can check on the others and no single group of individuals can be able to take control of the government machinery. The theory of separation of power encounter challenges due to the commitments of political freedom or elimination of subjective power.23 The doctrine is associated with negative connotation of political independence with a perception of restraint of freedom instead of focusing more on positive attitude to freedom.24 The measures are undertaken to restrict the state from attacking individual freedom and implementation of strategies that curtails individual capacity to exploit their faculties.25 The doctrine of separation of powers requires every branch to act independently of each other.26 In order to have absolute separation of powers, each branch must carry out its functions independent of each other.27 Also, there should be separation of persons whereby members of one branch are restricted from having membership in other arms. However, there has been no practical separation of power because the Constitution does not stipulate how segregation of powers can be established between functions and persons.28 There has been interference of duties across various branches. For example, in the case of M V Home Office (1993) 3 All ER 537, M was a refuge in U.K. commissioned for deportation to Zaire. His lawyer appealed to the court against deportation, and the court issued an injunction requiring the Home Secretary to stop the deportation until the appeal was heard. However, the Home Office ignored the court’s order and continued with the expulsion. The House of Lords issued a verdict that the Home Office was in contempt of court for disobeying a court order requiring the return of a refugee. Therefore, it is apparent that the court has powers to issue an order to an officer of the crown, and the failure of the officer to comply with such an order is tantamount to contempt of court.29 The court’s decision depicts partial separation of powers in the exercise of functions by the legislature on the executive arm. Therefore, the partial separation of functions suggested by the Montesquieu model demonstrates a misunderstanding of the UK law, which in practice has demonstrated fusion of power as institutions exercise checks and balances on other branches of government.30 The legislative branch of the government has maintained its power to carry out its functions without interference from other arms.31 In the case of Shaw v. Director of Public Prosecutions, House of Lords (1962), the defendant made advertisement by publishing a “ladies directory” to promote the services of the prostitutes by including their contact details and nude pictures to advertise the services provided by those prostitutes. He charged the ladies some fees for adding their details to the directory after which he sold the directory at a cost. The defendant had done that after the court had illegalized any activity soliciting for prostitution under the Obscene Publications Act 1959 thus making it hard for prostitute to continue with their activities. The defendant was charged with a scheme to corrupt public morals. However, the defendant claimed that the charge against him was illegal because there was no such law enacted to punish the crime of scheme to corrupt public morals. Since the issue in the case was to determine whether the court had power to punish the crime of conspiracy to corrupt public morals the court issued that it was the mandate of the judicial court to protect public morals. The acts of the defendant were injurious to the welfare of the society, and the lack of common law against immoral acts does not prohibit the court to enforce its own decision.32 Therefore, the appeal raised by defendant was declined by the court. From the case it is apparent that the legislative power has not been shared with other branches. In the case of Airedale N.H.S. Trust v Bland [1993] A.C. 789 House of Lords, Bland was injured when he was 171/2 years in the Hillsborough Field soccer crisis and left him in a vegetative state. Though he could breathe without an aid, he needed feeding tube and antibiotics in order to survive. His parents requested the doctor to withdraw breathing tube in order to end his life. The doctor agreed to end Bland’s life with the consent of the lower court, but his guardian appealed the lower court’s decision challenging the withdrawal of life support without patient’s consent. However, the appeal was dismissed. The court examined the issue in the case and issued that although the doctor had a duty of care for the best interest of the patient there was no obligation for the doctor to act in a specific way.33 Bland’s condition was not expected to improve hence the doctor would not be acting in the best interest of the patient by administering treatment that would not change the patient’s condition. The use of life support is an aggressive method of treatment that the doctor was not obliged to administer.34 The issue in the case had an implication in the way various branches of the government exercise their powers. The judiciary has the right to act independently of the other arms in making decisions and cannot be deterred from issuing discretion in the absence of direct legislation that applies to an existing issue. However, judiciary has to examine the existing laws that guide. 35 The absolutism theorists emphasized on the single source of power while the “defenders of liberty against arbitrary government stressed the division of power, and the limitations upon a power imposed by the Constitution or a higher law.”36 The idea about the role of government and its structure go along with the view of the nature of autonomy. Some philosophers associated the notion of absolute freedom in which the power is in the people rather than with a monarch.37 They argued that by bestowing absolute power to the people or their agents then it could be denied a connection with arbitrary government and transformed into a mechanism of democratic control.38 An awareness of the nature of bureaucracy contributed further to a drift on the understanding of the government operations under the doctrine of separation of powers and the need for re-evaluation of executive powers.39 There was a new emergence of separation of powers following the request for the establishment of unity between government and the legislature. In the exercise of checks and balances, various branches have intruded the functions of other departments.40 Various branches were given veto power to exercise limited control over the functions of other branches. Since the constitution does not indicate the action to be taken by the branch that will interfere with functions of other branches, the doctrine of separation of power has not been practically implemented.41 For example, an executive branch was given direct power to legislate while the legislative branch was given veto power to impeach.42 The limited power to interfere with the functions of other departments established mixed functions of government and partial separation of functions. In conclusion, the separation of the powers of the governments to different branches improves the protection of individual rights and freedom. It is considered detrimental for group of persons to have absolute power because such powers will be subject to abuse. The separation of power serves to safeguard rights and interests of the public. However, separation of powers should involve the separation of persons and functions. There has been partial separation of powers between the three arms of government with each branch exercising checks and balance on the other branches. Therefore, the arms of the government cannot act independent of each neither can there be absolute separation of powers between the arms of the government. Therefore, Montesquieu’s theory is based on misunderstanding of UK law since the various arms of the government demonstrate and overlap of personnel and functions and not separation of powers. Bibliography Airedale N.H.S. Trust v Bland [1993] A.C. 789 House of Lords Barnett, Hilaire, Understanding Public Law. (USA and Canada: Routledge, 2009) 264. Broadbent, Graeme, Public Law Directions. (New York: Oxford University Press, 2009) 312. Coles, Joanne, Key Cases: Constitutional and Administrative Law. (Routledge, 2013) 160. Faragher Colin, Public Law Concentrate: Law Revision and Study Guide 2nd Ed. (USA: Oxford University Press, 2012) 232. Fenwick, Helen and Phillipson, Gavin; Text, Cases and Materials on Public Law and Human Rights, 2nd Ed. (Routledge, 2013) 1144. Howard, Nick, Beginning Constitutional Law, (USA and Canada: Routledge, 2013) 159. McNaughton, Neil, Edexcel AS Government & Politics Student Unit Guide. (Hodder Education, 2013) 96. M V Home Office (1993) 3 All ER 537 Ryan, Mark and Foster, Steve, Unlocking Constitutional and Administrative Law, 3rd Ed. (Routledge, 2014) 656. Shaw v. Director of Public Prosecutions, House of Lords (1962) Sharma, S.R. Encyclopaedia of Constitutional Law. (Anmol Publications Pvt. Limited, 2003) 1758. Syrett, Keith, The Foundations of Public Law. (UK: Palgrave Macmillan, 2011) 320. Vile, M.J.C. Constitutionalism and the Separation of Powers (2nd Ed.). (Indianapolis, Liberty Fund, 1998) 443. Available at Accessed 26th Dec. 2014. Read More