Rule of Law and Separation of Powers - Essay Example

Running Head: RULE OF LAW AND SEPARATION OF POWERS Importance of "Rule of Law" and "Separation of Powers" In UK Constitution By ________________________ "Rule of Law" and the "Separation of Powers" One of the main reasons for calling the British Constitution 'unwritten' seems to be the ancient rules of the Constitution, which are taken as the 'principles' or 'guidelines' to be followed. However, the most vital point of concern is that the same unwritten part of the constitution is often followed by many other countries' legal matters, due to which it has become a critical issue over the years. UK despite amending its constitution umpteen times is still unable to mend its traditional 'rule of law' due to which it has limited boundaries to the 'separation of powers'. UK cannot point to any other country to claim that the country is following UK's constitution. This notion is referred to as 'separation of powers'. Over the years 'the Rule of Law' has gained many critical acclaims due to the traditional ethical values it uphold in the UK constitution. Those set of values are universally accepted and implemented in most of the European states for the rule does not allow any deviation or updation in the 'written' or 'unwritten' part of the Constitution. 'Separation of powers' the word created by a French thinker 1 is today pursued by the doctrine of the separation of powers (SOP) which suggests that SOP is no less important globally than nationally. This refers to the fundamental commitment to the creation and maintenance of independent judicial bodies to interpret and apply diverse areas of international law is essential to international law's continuing integrity 2. SOP refers to that established constitutional principle that believes and negates the notion that, there must not be any accumulation of too much power in a single entity (one person) or decision-making body, instead the power must be distributed among the three branches of the constitution named the Executive, the Legislature and the Judiciary. In case the power is vested in a single authority, it would lead to inefficiency and corruption 3. Entick V. Carrington - The Rule of Law Lord Scarman invoked Entick v. Carrington in support of his conception of 'the importance attached by the common law to the privacy of the home'. The King's messengers were liable for trespass in the absence of authority indicating the legality of general warrants of search and seizure: the 'silence of the books' was held to be authority against them. The House of Lords held that a constable could not lawfully require a person to provide a breath specimen, under the Road Traffic Act 1972, section 8, if he were present on that person's property without permission. Police officers had not been acting in the execution of their duty, as was necessary for a valid exercise of the power, because they were trespassers 4. The Rule of Law indicated in this case provides the foundation of constitutional rights. The legality of the issue and execution of general warrants of search and seizure could not be established, and the King's Messengers were therefore liable for trespass. The judges would see if justification were provided by statute or common law: 'If no such excuse can be found or produced, the silence of the books is an authority against the defendant 5. McGonnell V. UK McGonnell v UK case depicts the violation in the context of separation of power, which the court found guilty of regarding the lack of prejudice in requirement in Article 6(1). "This was mainly because of the personal relations between the judiciary of the Bailiff of Guernsey and his legislative and executive roles. The Bailiff's overlapping functions meant that he had presided over the Guernsey legislature when it had adopted the Development Plan, which was relevant to the applicant's planning application. The Bailiff's attitude in his judicial capacity made clear to the court the applicant's planning appeal, therefore the Court held this to be in breach of the requirement of impartiality in Article 6(1), because it gave legitimate grounds to the applicant for fearing that the Bailiff may have been influenced by his prior participation in the adoption of the development plan" 6. The Role of Lord Chancellor and Attorney General Lord Chancellor acts as a judge, legislator, member of Cabinet, and head of an administrative department. According to Allan, "He is the spectacular exhibit in the museum of constitutional curiosities, he is rightly subject to firm conventions governing his various roles. He is expected to divorce his judicial from his political roles. Similarly, the Attorney General is expected to maintain a similar detachment in deciding whether or not to institute criminal proceedings: his acting at the dictation of government colleagues, or failing to exercise independent and impartial judgement, would clearly be unconstitutional" 7. Overlap of Powers 'Overlap of Powers' is used to exercise inefficiency of any power whether it is between the Federal branches or between the Federal and State Governments. As no Branch has the legal right to use his own power, therefore every branch follows a system of checks and balances, this is usually termed as 'overlap of powers' 8. Jackson (2004) while mentioning the rule of law suggests that it needs to be 'proportional' in order to cope up with a balance structure in the Constitutional laws of Europe 9. Only in this way the law would acquire and gain separate entity in UK. For a state with a common rule of law, it is easy to have a relatively robust policy, which, with the exception of a few crises, such as the Cromwellian Republic and Irish secession, has been remarkably resilient compared with many of its major European neighbours. For sure, there have been periods when elements of the constitution, such as the Monarchy or the House of Lords have come under threat, but, still the political system and constitutional machinery have remained largely intact in a relatively successful, though extremely anachronistic mode of governance 10. The very conservative nature of the UK policy is reflected in the largely bipartisan nature of the political party system and the undemocratic and deferential nature of the Monarchy and upper chamber. There have been a number of changes in the political and constitutional structures and systems that are worthy of brief consideration. No doubt changes have taken place over the years in UK constitution but only in the development of the democratic system through extension of the franchise, the increase in the power of the House of Commons over the House of Lords and the Monarchy, the increase in the power of the Prime Minister and Cabinet over the Commons and the developments that made the UK one of the most centralised states in the developed world 11. The importance of and reason to unchanged 'Rule of Law' can be determined from the example given by Dicey in Jenkins (2003) article: Irrespective of the authority to mould the legal power of a constitution, Dicey believed that the lawmaker is unable to take any action against certain fundamental ideals, not because of any political or democratic pressure but because such notions are central to his own belief-system. For example, Dicey wrote that a Muslim ruler would never think to outlaw the practice of Islam, just as Louis XIV would never have imagined carrying out a Protestant Reformation. In the United Kingdom, those internal checks have traditionally come from deep-rooted values, such as respect for representative government, democratic accountability, and the rule of law 12. Thus Democratic ideals uphold a great influence and esteem while taking actions of Parliament due to their internal influence of belief system 13. If one measures the depth which lies with the notion of an 'unwritten constitution', one can analyse that there are sources of law in constitutional negotiation that cannot be traced to the text of the written constitution; these sources include precedent and interpretive rules, as well as, more generally, past practices and practical considerations. It is from these reliable sources that 'unwritten constitution' is trusted for 14. On one hand UK constitution is adhered to the boundaries set by the 'Rule of Law' while on the other hand it is governed by the 'separation of powers' (SOP). According to Jenkins (2003) "Constitutionalism is bounded by two basic values that impose some form of SOP, and sometimes-substantive restrictions on government authority. These values can lead to different conclusions about the form of the constitution, as illustrated by arguments both supporting and rejecting judicial review due to SOP. In order to understand this form of constitution, one must properly understand the relation build up between democracy and the rule of law, i.e., one must think optimistically that democracy is for the common good, rather than a means for the most efficient attainment of whatever objectives a present majority desires, there is no opposition between democratic government and the rule of law: each is a necessary and equally valuable 'higher-order' principle whose ultimate goal is a justice that all can recognise and endorse" 15. UK Constitution according to Dicey is laid on the grounds of two fundamental rules of which the 'rule of law' is the second one. It governed the relationship between the courts and the executive 16 but remain unable to adopt any single doctrine or theory. Historical analysis of UK Constitution reveals that democracy in the past agreed in requiring a certain established system of government, comprising the three elements of specialised functions, temporary functionaries, and ultimate responsibility (under some forms or other). There were, umpteen capital distinctions between one government and another, in respect to the qualification of the citizen, the attributes and efficiency of the general assembly, the admissibility to power, etc.; and men might often be dissatisfied with the way in which these questions were determined in their own city. But in the mind of every man, some determining rule or system something like what in modern times is called a constitution was indispensable to any government entitled to be called legitimate, or capable of creating in the mind of a common man a feeling of moral obligation to obey it. The functionaries who exercised authority under it might be more or less competent or popular; but his personal feelings towards them were commonly lost in his attachment or aversion to the general system. If any energetic man could by audacity or skill, break down the constitution, and render himself permanent ruler according to his own will and pleasure, even though he might govern well, he could never inspire the people with any sentiment of duty towards him: his sceptre was illegitimate from the beginning, and even the taking of his life, far from being interdicted by that moral feeling which condemned the shedding of blood in other cases, was considered meritorious 17. This gave rise to the decision making of the Constitution that showed a general recognition that a rule of law or legal obligation is involved and is compatible with the legal ground rules in particular with its subjective element 18. In particular, the rule of law and SOP can be viewed as conflicting authorities, which the English Constitution, has framed. The constitution resides on the principle of choosing a single sovereign authority, and making it good: This is also one of the reasons for why after so many decades 'the rule of law' is still followed as a traditional principle of concern legally binding irrespective of any inequality 19. According to the traditional theory, the goodness of our constitution consists in the entire separation of the legislative and executive authorities, but in truth its merit consists in their singular approximation. The connecting link is the cabinet. By 'cabinet' we mean a committee of the legislative body selected to be the executive body. The legislature has many committees, but this is its greatest. It chooses for this, its main committee, the men in whom it has most confidence. It does not, it is true, choose them directly; but it is nearly omnipotent in choosing them indirectly 20. It is the characteristic of the English Constitution that its dignified parts are very complicated, somewhat imposing, very old and rather venerable 21; while the efficient part, at least when in great and critical action, is decidedly simple and rather modern 22. SOP has also been confronted to many threats and critics of which the most common were how multiple constitutions could enjoy a single principle and that even vested on the grounds of UK constitution. One answer to the critics might be the ignored concern that British Constitution had developed in a peculiar way. According to a seminar on November 2000, "The Constitution is not concerned with a strict separation of powers (SOP), but is keen to create a system, which would sustain its aims and objectives in such a manner (efficient government and individual liberty) that does not take into consideration to practice and follow several powers at once. The point was not to create several powers and allow each one to have its opinion and to be free to pursue it, subject to being checked and balanced by the others, the question was to mix and harmonise the different interests and powers, following the ancient conception of Parliament with its mix of persons king, lords and commons and of functions legislative, judicial and delegating executive" 23. The ethical foundations of the rule of law is vital in UK Constitution as its overarching object, is to facilitate the purposive actions of the individual. It is to ensure that the individual may make informed choices affecting the directions of his or her life, without arbitrary interference by the state. In their interactions with the state and other entities, the rule of law ensures that individuals will be aware of the parameters within which their choices must be framed. The rule of law also marks out a private sphere within which the individual's choices may be pursued. It makes it unlikely that the state will interfere too invasively in this private realm by holding it as a founding principle that laws must apply generally and equally. It is this fact, that all rules apply equally to all, including those who govern, that makes it improbable that oppressive laws will be enacted 24. Today, the principles and practices underlying the operation of the rule of law and SOP are reasonably well understood in national legal systems having a jurisdictionally defined, democratic and constitutional foundation. But their concreteness tends to fracture in the fragmentation, fluidity and contingency of global interconnectedness. So, it requires to ascribe new and appropriate meaning to an 'international rule of law', therefore, there is a need to reconsider and reapply its principal ethical and institutional underpinnings in a new context for which any state can independently decide on its own 25. References & Bibliography Allan T. R. S., (1994) Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism: Oxford University: Oxford Bix H. Brian, (2002) 'Implementing the Constitution' In: Constitutional Commentary. Volume: 19: 2. Page Number: 453+. Case 1, Allan T. R. S., (1994) Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism: Oxford University: Oxford Case2, Accessed from Collier J. G., (2001) Conflict of Laws: Cambridge University Press: Cambridge, England. Jackson C. Vicki, (2004) The Ultimate Rule of Law In: Constitutional Commentary. Volume: 21: 3. Page Number: 803 Jenkins David, (2003) From Unwritten to Written: Transformation in the British Common-Law Constitution In: Vanderbilt Journal of Transnational Law. Volume: 36: 3. Page Number: 863+. Kofman Eleonore, Graham T. David & Hardill Irene, (2001) Human Geography of the UK: An Introduction: Routledge: London. Minivan, 20 Dec 2004 Accessed from < http://www.minivannews.com/news/news.phpid=118> Overlap2007a, Accessed from 'Rule of Law Must Prevail' In: Newspaper Title: Liverpool Echo. (March 1, 2005). Page Number: 10 Seminar, November 2000 Accessed from < http://www.ncl.ac.uk/nuls/research/wpapers/verde1.html> Smith Paul, (2001) Bagehot: The English Constitution: Cambridge University Press: Cambridge, England. Swaine T. Edward, (2002) 'Rational Custom' In: Duke Law Journal. Volume: 52: 3. Page Number: 559+. Tomkins Adam, (2002) 'The English Constitution' In: Constitutional Commentary. Volume: 19: 3. Page Number: 737+. Zifcak Spencer, (2005) Globalisation and the Rule of Law: Routledge: London, New York. Read More