Separation of powers: A closer look

GAYATRI DASS

OFTEN USED as an argument in favour of retaining the Privy Council as the highest court of appeal, the separation of powers (SOP) principle is often sprinkled in many public law debates and in the textbooks of law students. What, however, does the separation of powers mean and why is it important? The idea of the separation of powers stemmed from ancient Greece but was given prominence by the French political philosopher Montesquieu in his comparative analysis of forms of government, L’Espirit des lois (1748).

Three branches

The separation of powers denotes that in order to avoid an unnecessary concentration of state power, the following institutions should be separate from one another: (I) the legislative function (law making); (ii) the executive function (governmental); (iii) judicial function (adjudicative and interpretative). As stated by Lord Templeman in M v Home Office and others [1994] 1 AC 377, “parliament makes the law, the executive carries the law into effect and the judiciary enforces the law.”

Separation of powers rationale

(i) To avoid a concentration of public power in one body/institution

As stated above, Montesquieu argued that state power should be divided in order to avoid a concentration of power which otherwise could lead to tyranny and oppression, “when legislative power is united with executive power in a single person…there is no liberty…nor is there liberty if the power of judging is not separate from legislative power and executive power. If it were joined to legislative power, the power over the life and liberty of the citizens would be arbitrary, for the judge would be the legislator…All would be lost if the same man…exercised these three powers: that of making laws, that of executing public resolutions, and that of judging the crime or the disputes of individuals.”

Therefore, if a person making the laws also enforced and implemented these legislative provisions and then determined whether a person had violated that law, this person would effectively enjoy excessive and tyrannical powers, leading inevitably to an abuse of powers and a manifestation of the proverb that absolute power corrupts absolutely.

(ii) To provide a system of checks and balances between the branches of government

The avoidance of a concentration of power is not achieved through an absolute separation and isolation of the three branches, but rather though the creation of a system of checks and balances between these branches. One institution may well interfere with the constitutional function of another to provide a check on that power.

For example, in the Republic of Ireland, the Oireachtas as the legislature is responsible for law enactment. However, under Article 34 of the Irish Constitution, the Irish Supreme Court may declare legislation legally unconstitutional and therefore null and void.

The President may also refer an unsigned bill to the Supreme Court in order to determine its constitutionality. If the bill is deemed unconstitutional, it cannot become law. This therefore frustrates the legislative function, albeit providing a check on legislative power.

(iii) To provide efficient government

By specifically allocating definite functions to specific institutions staffed with particular expertise, for example judges who are arguably experts at assessing evidence and judging, this necessarily aims to provide efficient governance.

(iv) To safeguard the independence of the judiciary

The separation of powers subsumes the fundamental notion that the judiciary should be constitutionally independent. In a democratic society, it is of paramount importance that the judges, who form part of the court system, are independent, impartial and free from interference from other branches of the state, in particular the executive. This complements the notion that the judiciary must be free to determine disputes before them strictly on the law and not due to internal or external pressures.

The overlapping of functions: the executive and judiciary

There are many instances when functions can wrongfully overlap and the result is consequential jurisprudence to set matters straight. In the UK, historically ministers were given powers which were, in effect, judicial in nature. By illustration, the case of R v Secretary of State for the Home Dept, ex parte Venables and Thompson [1997] 3 All ER 97, is instructive.

Facts

On the facts, Venables and Thompson were convicted of the murder of two-year-old James Bulger. The trial judge stated that the minimum period of detention to satisfy retribution and deterrence was a tariff of eight years. The Lord Chief Justice advised a tariff of ten years, but the Home Secretary (equivalent of a minister), in exercising his powers under S35 of the Criminal Justice Act 1991, imposed 15 years.

In reaching his decision the Home Secretary indicated he had regard for the public concern in the case including a public petition of 278,300 signatures, over 5,000 letters and 20,000 coupons from a newspaper that had demanded that the accused be detained for life. The constitutional rationale behind this statutory power was the Home Secretary’s responsibility for public order and maintaining public confidence in the criminal justice system. Venables and Thompson challenged the use of the Home Secretary’s discretion.

Decision

The House of Lords (as it then was) held, among other things, that the Home Secretary had acted unlawfully as he had misdirected himself by giving weight to irrelevant considerations, namely the public protest directed to the detriment of the accused. Lord Steyn posited that, “in fixing a tariff, the Home Secretary is carrying out, contrary to the constitutional principle of the separation of powers, a classic judicial function…the power to fix a tariff is nevertheless equivalent to a judge’s sentencing power. Parliament must be assumed to have entrusted the power to the Home Secretary on the supposition that, like a sentencing judge, the Home Secretary would not act contrary to fundamental principles governing the administration of justice.”

Thus, as the Home Secretary (executive member) was exercising a sentencing power (judicial function), he was required to remain detached from the pressures of public opinion.

Take-away

Constructive relationships between the three branches are essential to the maintenance of the rule of law. The separation of powers is a key constitutional concept and vital in any democratic state. In the event that roles are overreached, the judiciary plays a critical role in checking the exercise of this power.

Gayatri Dass is an attorney and legal counsel

Disclaimer: This column contains general information on legal topics and does not constitute legal advice