Separation of Powers - Essay Example

Separation of Powers Democracies the world over are functioning on the principle of ‘separation of powers’ between the Executive, Legislature and Judiciary. Inbuilt ‘checks and balances’ in the system accord each branch of government powers to monitor the activities, as well as to limit the powers of the other two branches, either as general policy or in specific cases. This deters potential abuse of power and is intended to, “reduce opportunities for tyranny and to increase the general stability of the government” (Separation of Powers). In the present environment where the omnipresent threat of terrorism is driving domestic and foreign policy, more and more governments all over the world are and seeking to arm themselves with more and more draconian powers under the mantle of ‘national security’ at the cost of human rights and individual liberties. The Judiciary can be a silent spectator or can choose to play a more pro-active role to ensure that of the constitution is upheld in letter and spirit. It is in this context that Lord Steyn’s statement that, “……..it is the democratic and constitutional duty of judges to stand up where necessary for individuals against the government” (2003), assumes significance. In the United States, the aspect of separation of powers is clearly stated in the US Constitution. The President (Executive), Congress (Legislature) and the Supreme Court (Judiciary) are separate and distinct entities. The same is not the case in the United Kingdom, where the Prime Minister (Executive) is also a Member of Parliament (Legislature) as are all other members of the Cabinet. Similarly, the Lord Chancellor and the Law Lords are members of the Executive and Legislature respectively, while also forming part of the Judiciary. This duality results in a situation where the Executive is in de-facto control of the Legislature, as also enjoying the sympathy of the Judiciary. On the basis of the duality, various Home Secretaries have taken judicial decisions from time to time on grounds of national security, whether during war time or in otherwise tenuous situations like the ongoing global war on terrorism. The Constitutional Reform Act 2005 seeks to redress some of these grey areas though there are many who have, “defended the current system on the grounds that it discourage judges from making law by judicial rather than legislative means” (Separation of Powers). Inherent in this argument is the underlying fear that the Judiciary will not allow itself to be led by the nose by an Executive, trying to concentrate power in its hands. One of the concepts on the basis of which the principle of separation of powers functions is that of ‘deference’, which characterise the relationship of the Judiciary towards the Executive and Legislature. This concept pre-supposes that, “ … the Judiciary will always give the Executive a little breathing space, and would never usurp the executive by substituting its own decision for that of the decision maker” (Sayeed S 2005). This latitude was allowed on the basis that the Executive was in a better position to take decisions especially on immigration control, public order and where matters of national security were concerned, since the executive had access to information not normally available in the public domain. However, the “incorporation of the European Convention on Human Rights into UK law … has given the judiciary some powers to enforce them … [by encouraging] … Parliament to amend legislation that conflicts with the Act by a ‘declaration of incompatibility’, and courts can refuse to enforce or ‘strike down’ … legislation” (Constitution of the United Kingdom). In the post 9/11 era, this latitude has come to be taken for granted. Lord Hoffmann is known to have said, “…They are a reminder that in matters of national security, the cost of failure can be high … [underlining] … the need for the judicial arm of government to respect the decision of ministers” on the grounds that, “if the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove” (Hoffman qtd in Sayeed S 2005). While the Judiciary has been at pains to point out that this is no way precludes them from exercising their prerogative of subjecting legislation to judicial scrutiny or review, the fact of the mater is that, “in troubled times there is an ever present danger of the seductive but misconceived judicial mindset that after all, we are on the same side of government” (Steyn J 2003), as evident from Lord Hoffmann’s statement. This does not imply that the Executive can use the cover of national security to usurp power. Where legislation goes against internationally accepted norms, in many instances sponsored by the United Kingdom itself, the Judiciary cannot absolve itself of its responsibility to limit the powers of the Executive. It is in these so called troubled times – wars, insurrections and the like – that the need to uphold the rule of law becomes more paramount as, “amid the clash of arms the laws are not silent” (Lord Atkins qtd by Steyn J 2003). This is necessary to ensure that arbitrary exercise of power is curtailed and national security and stability ensured, through promoting the rights of the individual, which is at the heart of the argument over judicial activism. It is obvious that the judiciary must use its discretion on when to exercise its rights depending upon the subject at hand. However, the distinction made by Lord Hoffmann that in a democracy, the Executive should have the finally say because the people can vote out the government does not hold water. Judges are not elected nor are they answerable to Parliament for a very good reason, namely, so that political or electoral constraints should not deter them from acting as per the dictates of their conscience. The necessity of an independent Judiciary is universally accepted as one of the corner stones of a functional democracy. To say that decisions taken by the courts are ‘undemocratic’ is to question the very basis of the principles of ‘separation of powers’. Hence it is very clear that the Judiciary must intervene whenever it is apparent that internationally accepted conventions are being violated through such, “measure or decision [that] is draconian in effect and strikes at the very core of fundamental rights, … whether it is enacted by Parliament or taken by the Executive”, (Sayeed S 2005). It is upto the Judiciary to exercise self-imposed restraint to ensure that it does not become an impediment to the functioning of government. The current spate of legislation around the world in the wake of terrorist acts are nothing but knee-jerk reactions by governments incapable of addressing the root of the problem – poverty and ignorance, both at home and abroad. Undue deference to the Executive and Legislature by the Judiciary will only erode the cardinal principles that govern democracy. Terrorism has created problems for democracies, but democracies should rise to this challenge whilst simultaneously up holding human rights and individual liberties. Otherwise, there will be no difference between the terrorist and the terrorised. Works Cited Constitution of the United Kingdom, Wikipedia Encyclopaedia. Retrieved from http://en.wikipedia.org/wiki/Constitution_of_the_United_Kingdom.htm Sayeed Sadat, Beyond the Language of “Deference”, 2005, retrieved from www.2gardenct.law.co.uk/index.php/2gt/content/download/971/6253/file/jr_102_Say eed_111to120.pdf Separation of Powers, Wikipedia Encyclopaedia. Retrieved from http://en.wikipedia.org/wiki/Separation_of_powers Steyn Johan, Guantanamo Bay: The Legal Black Hole, Twenty-Seventh FA Mann lecture, 25 November 2003. Retrieved from http://www.rcpbml.org.uk/wdie-03/d03-119.htm Read More