Seperation of Powers and the Rule of Law Essay

The independence of the judiciary from the executive and legislative is said to kept by things like their fixed salaries and sub judice rule. Their salaries ‘are paid from the Consolidated Fund’ and aren’t fixed or changeable by Parliament or the government which keeps the judiciary free from political pressure in terms of finance. The sub judice rule is where the MPs in the House of Commons are unable to comment on current or pending cases. This keeps the judiciary free from political interference and prevents prejudice against judicial decisions. This rule is followed by

Another important point made by the author is, courts have stretched their impact over the official branch, with correspondingly affect controls. The present burdens of the national government have their foundations in decisions around established laws made long back. Hence, the likeliness of change is

The Australian Constitution is a rich amalgam of various classical political principles. The concepts of the Rule of Law and the doctrine of the Separation of Powers evident in Montesquieu’s Spirit of the Laws are both salient examples of political theses that are central to Australian Constitutional Law. The structure of the Constitution itself and decisions of the High Court of Australia unequivocally validate the entrenchment of the doctrine separation of powers in the Commonwealth Constitution . In particular, the High Court has applied this with relative rigour with respect to the separation of judicial power. The separation of the judicial power is fundamentally critical to upholding the rule of law. The High Court in Wilson v Minister for Aboriginal Affairs noted that “the separation of the judicial function…advances two constitutional objectives: the guarantee of liberty and, to that end, the independence of Chapter III judges” . Kitto J in R v Davidson also identified that the judiciary should be subject to no other authority but the law itself . This is a critical aspect ensuring the concept of legal equality is upheld. Therefore, its role clearly extends to providing checks and balances on the exercise of power by the legislative and executive arms of government . This ensures the liberty of the law and limits the abuse of the judicial system. Judicial Power is defined as “the power which every sovereign must of necessity have to decide between its subjects

The power to strike down Acts of Parliament is defined as the power to declare legislation invalid because it is unconstitutional. This paper will critically assess sections 3 and 4 of the HRA 1998 by defining them, reviewing case law surrounding their use, and by evaluating the powers that they give to the judiciary. By doing so, it will demonstrate that section 3 gives judges powers that are not significantly different from the power to strike down Acts of Parliament, whereas section 4 does not.

Some judges in their obiter dicta have declared their inclination to disregard the Parliament’s legislative objectives, and therefore limit parliamentary sovereignty if the rule of law is vulnerable or if the circumstances demand “a principle established on a different hypothesis of constitutionalism” . They have also suggested that, while the British Constitution is dominated by parliamentary sovereignty, “The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based” . This represents a possibility of stretching the dominance of the rule of law in constitutional law so that it becomes more powerful than parliamentary sovereignty in the British Constitution .

Judicial independence requires that judges be independent of the executive and legislative branches,33 and “from other sources of influence”.34 As former Chief Justice of the High Court of Australia, Sir Gerard Brennan, explains, this includes judges being “incorruptible by prospects of reward or personal advancement and fearless in applying the law irrespective of popular acclaim or criticism”.35 Judicial independence is crucial to the maintenance of the rule of law as it is only an independent judiciary that can guarantee the equality of all parties before the law.36 As former Supreme Court Justice Debelle has acknowledged, without an independent judiciary ordinary citizens would be “seriously handicapped, if not prevented, from challenging

The members of the government makes the laws of man, the police enforece them and the lawyers, baristers and solicitors alike practice them.

The citizen's right of access to the courts to challenge decisions of public authorities by judicial review is an essential feature of our legal system based on the common law. Judicial review by an independent Judiciary is fundamental to the rule of law and enables our rights and freedoms to be fully protected. It is rightly regarded as a distinctive feature of our system under one country two systems. A judicial review challenge cannot be made on political grounds. It must be made on legal grounds. These would include that the challenged decision was inconsistent with statute or the Basic Law, that there had been procedural impropriety in making it and that it was irrational in the sense that it was beyond the range of decisions open to a

Judicial review is recognised as the courts’ primary check on executive and administrative decision-making. Thus the doctrine has considerable legal significance, as it directly engages with the wider constitutional structure. Due to this, to ensure its theoretical and practical legitimacy, it seems essential for judicial review to have a high level of clarity. It is here a critical issue with the current state of judicial review arises. Since its conception it has always been the case that not all decisions are capable of being reviewed, particularly those that dealt with policy or which are not of a public character. However, as the doctrine has developed the traditional New Zealand conceptualisation of judicial review as the High Court’s inherent power to check procedures adopted by public decision-makers has become distorted. The shift to the functional approach to publicness, and to a lesser extent the possible dissolution of the publicness jurisdictional requirement altogether, along with the uncertainty of the grounds of review, and the issue of the justiciability of quasi-substantive matters, have all complicated notions of what decisions made by what entities can be subject to judicial review. The conclusion to be drawn from these matters is the direction judicial review is heading in needs clarification, and the doctrine would benefit from reaffirming its roots as a check on public decision-making.

The landmark case of Entick v Errington marks the triumph of the principle of legality, which provides that a public body, in exercising its power endorsed by authority, must be able to identify the precise legal source of that power. The courts are vested with the duty to correct any abuse of power by the executive and the judges are free to exercise this jurisdiction independently. Since then the courts have not wavered in their effort in correcting any abuse of power by the executive . In practical terms, the courts are rather vigilant in refining the principle of judicial review, a mechanism through which compliance by public authorities with the law can be enforced. Even though judicial review is a modern invention , its effectiveness in identifying unlawfulness is too substantial to be neglected.

It is extremely rare for public authorities to be found guilty of intentional dishonesty: normally they are found to have erred, if at all, by ignorance or misunderstanding. Yet, the courts constantly accuse them of bad faith merely because they have acted unreasonably or on proper grounds. Again and again it is laid down that powers must be

The term ‘strong judicial review’ can be understood by dividing it into two terms. The term ‘judicial review’ refers to the process that allows courts (1) to have substantial independence from other agents in political system, and (2) to be able to address and settle questions of constitutionality (in a constitutional or common law tradition). The term ‘strong’ refers to the specific type of process that holds that the provided resolutions from the courts are regarded as binding on all departments of government including legislative enactments (Michelman, 2004: pp.1407-1408). Theoretically, the ‘strong power’ of judges can be divided into two levels: the normal strong power

These commentators concede that the concept ‘lacks precision’ and that its meaning changes over time. Noted legal philosopher Joseph Raz accepted the necessity for State intervention in society and suggests that the rule of law is essentially a means of controlling, limiting and shaping the exercise of discretion in this intervention, rather than seeking to abolish it entirely (Raz, 1977, p195). Raz clearly appreciated the risks associated with the arbitrary and uncontrolled exercise of discretionary power and envisaged the principle of the rule of law as the primary safeguard against that threat.

In Li CJ’s judgment in A Solicitor v Law Society of Hong Kong [2008] 2 HKC 1, he commented in paragraph 9 that the “rigid and inflexible adherence by this Court to the previous precedents may unduly inhibit the proper development of the law and may cause injustice in individual cases. The great strength of the common law lies in its capacity to develop to meet the changing needs and circumstances of the society in which it functions.” In this essay, this statement would be discussed with reference to the role of the courts and their relationship to the legislature.

Jeremy Waldron in The Law- Theory and Practice in British Politics of Chapter 2 which is titled as Law and Politics talks about ‘the rule of law’ and the two models of law. The facet of the rule of law helps to fetch our thinking of law to life. It also helps us to understand the legal system and the rules which have values attached to it. The Rule of Law is a multi-faceted ideal, but most conceptions give central place to a requirement that people in positions of authority should exercise their power within a constraining framework of public norms rather than on the basis of their own preferences, their own ideology, or their own individual sense of right and wrong (Jeremy Waldron: The Concept and the Rule of Law).