Seperation of Powers and the Rule of Law Essay

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‘…If you maltreat a penguin in the London Zoo, you do not escape prosecution because you are the Arch-Bishop of Canterbury.’

The rule of law broadly requires; that all are equal before the law , that the government is subject to the law and must exercise its power according to the law, finally that ‘there exist fundamental individual liberties and minimum standards of justice, to which the law must conform’ . The rule of law is problematic to define but put simply it is not ‘the rule of men’ and is evident in societies with functioning judiciaries and a clear separation of powers such as New Zealand. It is one of several intrinsic attributes of our constitutional makeup and overall the Judiciary aid in ‘ensure[ing] that the rule of
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If the judiciary are intentionally straying into matters of governmental policy then they as unelected, impartial adjudicators should only do so when cases arise that call for such action, potentially when governmental action threatens the rule of law – a right afforded to them as a constitutional check on governmental power. While the judiciary can be viewed as in a constant skirmish with the Legislature and the Executive much of the judiciary’s power to interoperate statutes liberally comes from powers delegated to it by parliament .

Administrative Law (dealing with regulations) ‘is essentially judge made law’ and its outcomes are neither predictable nor its case law concise. Therefore while public law offers substantial protections against ‘arbitrary power’ of government it is not easily accessible to all. The courts have no power to strike down legislation (parliamentary law is supreme ) yet their power to strike down regulations is still only limited to acts ultra vires. The judiciary is an effective check on executive power (See Fitzgerald v Muldoon 1976) but its checks on the Legislature are lacking; ‘notorious’ parliamentary privilege show that the courts wish ‘not to adjudicate matters determined within the walls of the
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