The Doctrine of Separation of Power - Case Study Example

LLB CONSTITUTIONAL LAW Introduction Howard’s1 ment is both wrong and right at the same time. The doctrine of separation of power should not be understood in the context of understanding the word separation as it applies in common English grammar. Looking at his comment, one gets the impression that Howard believes that the separation of power is necessarily to mean that these powers work separately. However, even the very doctrine of separation of power recognizes the need for these powers to be able to work together. The separation of power is not necessarily to mean that the powers have been separated, but means that the powers are distributed to more than just one entity, instead of vesting these powers into one single entity, whether it is an individual (such as the queen/king) or an institution such as the parliament2. The doctrine realizes that there are three important areas of power and authority when it comes to government3. These include the creation of laws (this power has been given to the legislature), the governance itself (this has been given to the executive) and the enforcement of laws (this has been given to the courts/judiciary). The doctrine does not necessarily refer to separating these powers but refers to making sure that no one single individual can have all these powers together, but that they are spread over the three arms, with each arm having a specific domain which is as autonomous as it can be made4. As a result, it can be said that Howard’s argument is both incorrect and correct. It is incorrect because in the first part of it, he argues from the wrong understanding of what separation of powers mean, and argues that the principle of decentralization of power is mislead. However, on the last bit of his statement, he says that the UK constitution advocates a fusion, not a separation of powers5. In this regard he is right. But even as he is right in this last bit, he must know that even as the UK constitution exhibit the fusion of power, it still upholds the separation (distribution) of the powers so that they are not vested into one person6. It cannot be argued that the UK constitution supports the vesting of this power into one individual, or one institution such as parliament or judiciary, or even the executive. It does support the fusion of these three powers of governorship, but still upholds the separation of these powers so that they do not rest in just on individual or institution7. However, it is very true that the constitution supports, or even envisions the fusion of these powers, but only in the context where these three powers are held independently by the three different arms of the government. The fusion of these powers can be clearly seen in that the powers and activities of any one of the three arms affect and are affected by the processes of the other two8. For instance, the three roles for each of the arms are as follows; Legislature through parliament and by the authority of the queen makes laws as it deems necessary for the land9. However, even as the legislature makes the laws, it does not implement them, as this is the work of the judiciary10. In this case, it is obvious that the functions of both the judiciary and the legislature are very closely related and even fused together in a sense. The judiciary can only implement the laws made by the legislature and in this case if the legislature makes poor laws, the judiciary has to implement them, because they have to follow the laws in their judgments and rulings11. At the same time, even as the legislature makes the laws, it does not implement them and depends on the courts to implement them12. This mutual relationship between the two arms, that is, the judiciary and the legislature is a very good indication of the fusion of power. There is however some clear separation as it can be seen clearly that not only is the judiciary not allowed to make laws (unless in the rare circumstances where the judiciary makes laws through precedence), but the judiciary is not allowed to oversight or restrain the legislature from making any law as they deem right13. The judiciary on the other hand is not completely limited to just implementing laws14. Through precedence, the judicially can also make, and even amend laws. This means that it indirectly plays the roles of the legislature. There is also a clear fusion between the legislative arm and the executive arm of the government. As has been identified, the executive is responsible for the making of laws, by which the executive must govern. This means that the legislature has powers over how governance in the country is done and on how the government operates. Given the scenario, it is clear that the powers cannot be separated because they work as a continuum of each other15. If the doctrine of separation of power proposes that these powers be completely demarcated from each other, they would become irrelevant and useless. For instance, if the legislature was completely separate from the judiciary, the laws it creates would be rendered useless as there would be no way to implement them. At the same time, if the judiciary was there without the legislature, it would come into situation where it would be ineffective, because new laws are needed constantly in order to deal with new situations16. This means that the three arms are connected together, that is why they are called the three arms in a way to attempt to show that they are organs of the same central element17. In most states where the separation of powers is used as the doctrine that informs the way the constitutional law is made, the doctrine separates the executive from legislature but within the same act enables the judiciary though the Supreme Court to declare invalid some of the actions of the legislature. For instance, the judiciary, it being the arm given the mandate to interpret the laws of the land, has the mandate to nullify a legislation if they find it not in line with the constitution, or of the legislation is seen to have some negative elements that contradict other already existing laws. The government versus the parliament Although the Montesquieus doctrine of the separation of powers between the government (executive) and the parliament (the legislature), it is also good to note that parliament can be regarded as part of the government18. The government can affect the operation of the parliament in that in parliament the majority political party makes the government. In that regard, when the government has a significant majority in the parliament, the government can affect the whole governance process, right from judiciary to legislature through legislation. This is because the laws passed in parliament have to be voted by a majority of votes in the parliament and in this case, when the government has an overbearingly large majority, it can easily pass any legislation without the opposition being able to prevent this from happening19. In a nutshell, given the above four points, it becomes that these powers, that is, the legislature, the executive and the judiciary, are at the very least overlapping, if not fused together. From that perspective, Howard’s argument that the UK constitution envisions a fusion of power is accurate. But the fact that the constitution at the same time clearly creates an environment where this power must be shared among the three arms, as opposed to the powers being vested in one individual, like it used to be in monarchies where the king or the emperor used to be the source of the law, the executive and the judge for the nation. The separation of powers therefore has nothing to do with separating the powers, but it only refers to the fact that the powers are distributed, as opposed to them being centralized. In fact, the term separation of powers can be replaced by the phrase decentralization of power, and still not lose its meaning20. In this regard, it is then clear that in his claim that the doctrine of the separation of power is a misunderstanding of the way the UK constitution envisages a governorship system is definitely inaccurate. This idea that the doctrine of the separation of power is misguided and a misunderstanding of the way the UK constitution works is guided by the fact that Howard is concentrating on the grammatical meaning of the word separation as opposed to appreciating the spirit of the word, as used in the defining of how governorship powers must or needs to be handled. The Montesquieus doctrine of the separation of power is not geared towards making sure that the powers work indigently or in isolation of each other, as Howard wants to indicate in his argument, but that the risk of having these powers vested in the same person, or institution is overcome21. Part II, Case law While the judiciary, through its courts is only mandated (at least according to the doctrine of separation of powers) to implement the laws by making case decisions whenever there is a conflict between two entities, it is also seen as part of the legislature because through its case decision, laws are made. This happens under the principle of precedence, which means that if a court makes a certain decision on a certain case, the same court, and those of its level and those inferior to it, have to be bound by the same decision in future cases22. In this regard, the court is able to make laws, without having to involve the legislative arm of the government. This principle of precedence is governed by the principle of stare decisis, which is a basic element of law in any common law jurisdictions23. Precedence as a source of common law or legislation can happen in two instances each of which coming from the two arms of government other than the legislature24. These are as follows; From a judicial ruling The process of making a law through precedence can be made through the main known way of the courts acting on their precedence25. This has been made easy in the UK because of a number of developments that have happened in the UK in the last few hundred years. The first issue is the issue of the hierarchy of courts. Unlike the times when the court systems were not organized in a hierarchical manner, today’s UK justice system is organized in a hierarchical manner and this makes it possible for the principle of stare decisis to be used. The other factor that has made the principle of precedence or stare decisis to be possible is the fact that there are clear laws within the common law system that is being used in UK in the modern days. Unlike in the earlier days where the courts would depend mostly on customary laws, the modern courts use common law which then provides for a way to have the precedence set which can be used in later cases with similar facts and issues. Regardless of this, it is manifest that the judiciary, albeit in a small way, is involved in the creation of laws that then enter the system of laws that is the common law in UK. Apart from making laws from the past cases which make precedence for future similar cases, the use of other ways in the same situation can be used as a way for formulating new laws. Dissenting opinions In most legal cases, especially in higher courts, cases are decided by many judges. If the judges do not reach a unanimous decision, the opinion of the majority of the judges will be handed down and will be the one used as the precedence where necessary, if for instance it is a landmark case/decision. However, the minority judges may want to also deliver their opinion. Their opinion will not affect the decision by the majority but can also be a part of future laws and can also be part of the judiciary’s process of making laws26. A dissenting opinion is written by one of the judges in the minority side of such a case and includes one or both of the following two elements. A dissenting opinion may include an explanation of how the decision could have been under a marginally different interpretation of the issues or facts of the case. It may also be a planting of seeds for a future possible overruling of the majority decision. Through the dissenting opinion, future courts can decide cases based on this. Precedence from executive arm Precedence can also be acquired from a ruling of adjudication from an executive branch of the government. This means that even the executive will also be used as way to develop laws of the land, using this process27. This is allowed by the UK constitution and therefore it is an indication that as Howard says, the UK constituent offers a way fuse the roles of the three branches of the government, as opposed to demarcating hem. Therefore, it can be said that Howard’s statement about the UK relation of the powers of governorship being fused as opposed to being separated is accurate28. It is however beneficial to note that this fusing only appears at the very sublime levels and the courts, while they may create laws through this process of process, the laws that come to being through this process are very small in number29. At the same time, even though the judiciary makes these laws through these methods, the laws are hardly ever new but depend heavily on past legislation made by the legislature30. Because of this, it is hard to ignore the Montesquieus doctrine of separation of powers between the legislature and the judicatory31. As a result, Howard’s argument that this doctrine of separation of powers is misled and a misunderstanding of UK’s constitution is therefore not accurate. The same applies to the case always made through the precedence from adjudication from an executive because even in this case, the laws made as such have to be in line with the constitution and have to comply with the laws made by the parliament. So while the UK constitution envisages a fusion of the powers, it also respects the decentralization of the powers of the government, as a way to avoid a situation where despotism is encouraged32. It is almost common sense to anyone who understands law, and especially constitution law that is influenced by common law that the need to avoid despotism is inherent in any government system33 34. In this regard, the Montesquieus theory of the doctrine of separation of power is not geared towards separating the powers, but is however geared towards decentralizing these powers as a way to avoid a situation where the powers are concentrated into one individual (such as the queen) and thus create a situation of despotism35. Bibliography Abbott, Lewis F. (2006). "Five: "The Legal Protection Of Democracy & Freedom: The Case for a New Written Constitution & Bill Of Rights"". British Democracy: Its Restoration & Extension. Alec Stone Sweet, . 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