Separation of Powers - Essay Example

? Separation of Powers of the of the Concerned 26 February Much progress has to be made before the UK has a satisfactory separation of powers. Critically discuss. Introduction Separation of power is an imperative to assure accountability on the part of a government, to restrain and dilute a trend towards corruption and to protect the fundamental and universal rights of the citizens, from incursions and interference of the governments in power.1 To achieve this cherished objective, it is a must to separate and circumscribe the legislative powers of the parliament to enact laws, the power of the government to manage and govern in the light of the ratified and established laws, and the power of the judiciary to listen to and resolve disputes in the courts of law, according to the recognized and established laws. The separation of powers of the varied aspects of the state that are the legislature, executive and the judiciary is the strongest possible safeguard against the concentration of power and authority in any one single pillar of the British democracy. The separation of powers is also the best possible protection against the possibility of misuse or manipulation of power by specific individuals, groups or institutions for achieving vested interests and gains, to the detriment of the will of the citizens.2 However, realistically speaking, the separation of the powers in Britain is at the best partial and the British state suffers from a blatant overlapping of powers in between the executive, legislature and the judiciary. Much needs to be done before the UK has a satisfactory separation of powers. Separation of Powers: The Concept In a specifically democratic context, the primary role of the varied instruments of state is to protect the rights of the citizens. However, history is replete with examples and instances when the governments went despotic, when the legislature became all powerful and when the judiciary turned corrupt. So, since the dawn of the Western civilization, the political thinkers and philosophers have tried their best to come out with measures and instruments aimed at preventing the pillars of the state power going awry. The concept of separation of powers is actually a model of state governance, in which the authority of the state is segmented into varied branches, with each branch being allocated disparate areas of responsibility and the associated and requisite powers, with no branch enjoying a power greater than any other branch.3 Here, the independence of one branch from other comes with multiple meanings.4 Either it may mean that the selection of each and every branch is independent of other branches or that no branch is dependent on any other branch for its existence. Traditionally speaking, the UK being a parliamentary democracy has been more prone to the fusion of powers. This tendency makes the United Kingdom vulnerable to interference by one aspect of the state into the area of authority of the other. A rather more intimidating possibility is collusion between varied aspects of the state. Separation of Powers: Philosophical Background Separation of powers is a concept that has attracted the attention of academicians, philosophers, architects of constitutions, political thinkers and scientists since ages. In a UK specific context, the debate on the separation of powers has mostly hovered around the possibility as to whether the UK’s un-codified constitution is based on the doctrine of separation of powers, in theory and in practice? It is next to impossible to pinpoint the exact genesis of the doctrine of separation of powers. An analysis of the writings of Greek thinkers, say Aristotle, point towards a preliminary version of the doctrine of the separation of powers. In Politics, Aristotle classifies the elements of the state authority, that are deliberative, which meditate and ponder on the issues of common importance, the officials, which practically run the affairs of the state and the judicial, responsible for dispensing justice.5 In the same work, Aristotle advocates a proper balancing of these three elements of the state, so as to avoid confusion and imbalance. John Locke, a British thinker and political theorist, also classified the state powers into three segments, in his work The Second Treatise of Government. As per Locke, a state has three centres of power that are legislative, federative and executive.6 According to his opinion, Locke considered legislative power to be paramount. Locke believed that though federative power was associated with security and external relations and executive power pertained to the exercise of domestic law, eventually these two powers primarily tend to gravitate towards a common source and authority. Locke did not mention any exclusive judicial power in his writings. Locke also held that an effective exercise of the varied powers of a state should be subservient to public trust and not on a separation of these powers. In fact it was Montesquieu, a French nobleman, whose predilection for travel provided him with sufficient exposure to the court of George II and the English political circles, who in his work The Spirit of Laws, delved on the risks to liberty inherent in the fusion of legislative and executive powers.7 It is this very fear and possibility that had motivated the luminaries throughout the British history to support the separation of powers. The British Constitution Sad but true, the British Constitution developed without the cognizance of the doctrine of the separation of powers. It was primarily owing to the British preference for some fundamental human values like liberty, freedom and the impartiality of justice that the British constitution to some extent succeeded in achieving the objectives upheld by the doctrine of separation of powers. Thus, the separation of powers in the British constitution is at the most partial, with ample provisions for the overlapping of powers. The biggest overlapping of powers is between the legislature and the executive.8 For instance, consider the fact that the British executive is culled out either from the House of Commons or from the House of Lords. This is totally contrary to the American politico-legal arrangement, in which the legislature and the executive are separate and the executive consisting of the secretaries of state and other government officials, are not the members of the Congress, definitively speaking, a complete and visible separation of powers. To its opposite, the executive in the UK does always has a legislative function. Also, considering the usage of administrative tribunals by the executive, the executive in the UK also has a say in the judiciary. In Britain, the Queen is the nominal head of the executive, the legislature and the judiciary. The Queen, along with the state government, is a constituent of both the legislature and the executive. If one somehow ignores the nominal authority of Her Majesty and the overlapping of powers in the executive and the judiciary in the realm of administrative tribunals, the judiciary in the British constitution, to all intents and purposes, is free and independent of the other two branches of state power. This was achieved through a series of legislations and the adoption of relevant conventions.9 Act of Settlement 1700 made the procedure of removal of judges by the legislature and the executive, quiet intricate and complex. House of Commons Disqualification Act 1975 debarred the judges from sitting in the House of Commons. Constitutional Reforms Act 2005 made the upholding of judiciary, incumbent on the government ministers. Besides, ample conventions and traditions in the British political system check the interference by the executive and the legislature in the functioning of the judiciary. Thus this independence of the judiciary, to some extent acts as a beacon of hope that strongly suggests that similar success can be achieved, as far as the task of separating the powers of the executive and the legislature is concerned. Not to mention, that the judiciary itself is not entirely free from the overlapping of powers, at least in practice. Overlapping and Aspersion of Powers The British Constitution and politico-legal system is replete with ample instances and practices amounting to overlapping and aspersion of powers between the three branches of the state. The Executive and the Judiciary In any viable and modern democracy, the judiciary ought to be free, independent and impartial, beyond the interference and control of any other pillar of state power or authority. It is not only a must that the judiciary acts impartial, but also that the judiciary is seen and perceived by the people as acting free of any influence. Simply speaking, the function of the judiciary is to hear legal disputes and to settle those disputes by interpreting laws in the light of the intentions and the spirit of the parliament that enacted the laws. Hence, anyway, the scope of the interpretation of a law by judiciary is already limited by the parliamentary intentions in the first place. Any further interference by the parliament in the exercise of that law by judiciary amounts to a blatant interference in the powers and functions of the judiciary. Actually, it is akin to exercising a control over the judiciary. M v Home Office [1994] is an apt example of the judicial control by the executive.10 M was deported irrespective of an undertaking given by the Home Secretary’s counsel that M would not be deported, pending the hearing of his appeal by the court. The court ordered that the deportation of M was not valid and that M should be taken off the plane on which he was being deported, on its arrival at Paris. However, the Home Secretary blatantly refused to heed and irrespective of the court orders, did not allow M to be taken off the plane at Paris. Explicitly, the Home Secretary did not consider himself bound by the court orders, which was contrary to the very spirit of the rule of law in any sane society. The House of Lords held that though the impunity of the Crown against the injunctions of the judiciary is sanctimonious as per the Crown Proceedings Act 1947, the judiciary can hold an officer exercising power on behalf of the Crown to be guilty of the contempt of court. Consequently, the Home Secretary was held in contempt of the court, yet, no punishment was imposed. With high policy issues such as the appointment of government officials, budgetary allocations, defence issues, external affairs and matters of national security, the judiciary is expected to cede to the authority of the executive. To some extent this imperative is understandable. However, this imperative in many instances qualifies to be labelled a loophole that is or could be used by the executive to infringe on the rights of the ordinary citizens in the name of national interest. Council of Civil Service Unions v Minister for the Civil Service is a typical example of such instance.11 The Prime Minister ordered that the government employees at the Government’s Communications Headquarters be debarred from joining the trade unions in the interest of the national security. This was direct infringement of a right enjoyed by the workers since years. Unions challenged this order in the court of law. The Court of Appeal ruled that it cannot interfere with such order as it was a national security matter. The ruling of the court was in consonance with the ruling of the House of Lords. A lot needs to be done to bring government officers within the purview of the rule of law and to safeguard the breach of the fundamental rights of the citizens by the executive on sometimes flimsy pretexts, while leaving no option for a judicial relief. The Legislature and the Judiciary The power to make new laws and amend old laws is solely vested in the legislature. The judiciary is only expected to interpret the laws made by the legislature in accordance with certain rules of statutory interpretation. However, one blatant example of the precedence of legislature over judiciary is that not only the judiciary is not empowered to legislate, but is also debarred from questioning the rational or validity of any legislation. This gives the legislature a power that is akin to being practically absolute. Pickin v British Railways Board12 well demonstrates the helplessness and inability of the judiciary to question the validity of a provision enshrined in an Act of Parliament, even on the grounds of rationality or inappropriateness. On the flip side, it is a known fact that judges do enjoy a modicum of privilege as to give a new interpretation or meaning to a statutory provision or law. This again amounts to overlapping of power in the sense that it discernibly indicates that judges in a way make law. The arrangements as to the interpretation of laws and the questioning of the validity of a law in a court of law need to be made more rational and transparent, to allow for the maximum separation of powers. The Legislature and the Executive Practically speaking, the government only proposes legislations while it is the parliament that enacts laws. However, it is indeed a strange arrangement. It is a known fact that the Prime Minister and his ministers are also the members of Parliament, who sit and participate in the proceedings of the House of Commons. Now, if a government enjoys an absolute majority in the parliament, than realistically it is possible for a government to look to it that it proposes and passes only such laws as are in agreement with its opinion and agenda. There exist no procedures which assure that the laws proposed by a majority government get scrutinized by the parliament and if necessary or possible, are rejected by the parliament. So, when it comes to practice, there is no separation of powers between the legislature and the executive and any majority government in the UK in a way enjoys an absolute power. This certainly needs to be changed. Conclusion The rule of law, the empowerment on an executive and legislature elected by the people, and a free and fair judiciary, are definitely important. Nobody doubts or questions the validity of this arrangement. However, more important are the rights and the will of the people, for whom the legislature, the executive and the judiciary exist. If the powers on an arm of the state curtail the universal rights of the people, it needs to be put in its place. Separation of powers is one way to avoid such a calamity, but much needs to be done before it becomes a realized ideal. Bibliography Bagehot, Walter. The English Constitution. Oxford Publishers, London, 2001. Campell, Tom. Separation of Powers in Practice. Stanford Law & Politics, New York, 2004. Council of Civil Service Unions v Minister of the Civil Service [1985] AC 765. Fitzgerald, John L. Congress and the Separation of Powers. Praeger Publishers Inc, New York, 1985. King, Anthony. The British Constitution. OUP Oxford, London, 2007. M v Home Office [1994] 1AC 377. Pickin v British Railways Board [1974] AC 765. Strauss, Leo, and Joseph Cropsey. History of Political Philosophy, University of Chicago Press, Chicago, 1987. Read More