■Limitation on arbitrariness and tyranny No one should be punished, as Dicey put it, “except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land” This idea can trace back to Hobbes (1588-1679) when he suggested the rule of law meant that the sovereign must rule through law, and that any force that the sovereign wielded outside the law he used as a private person and not by virtue of his sovereignty. Similarly, Rousseau (1844-1910) believes the rule of law was the key to the constitution of the general will. For the rule of law to hold good, the innocent must never be punished; rules must apply to all equally; the discretionary power of government to absolve people from the effects of law or to pardon them for their offences must be limited;
■Justice and Constitutionalism – It is widely accepted that at the heart of the rule of law, is a notion of formal or procedural justice, concerned primarily with the accurate and consistent application of the law to particular cases and with its intelligibility to the citizen, for whom the law is intended to be a guide to his conduct. That is, as Dicey invested with a meaning he called the predominance of the legal spirit. He said “the general principle of the constitution are, with us, the result of judicial decision determining the rights of private person in particular cases brought before the courts.”
Separation of powers
Our modern notions of separation of powers are, in fact, mostly derived from the writings by Montesquieu in the 18th century. He believed that the best safeguard against tyranny was the separation of the executive, legislature and judiciary and a system of balance between them. In his thinking, the judiciary regulates the way in which the executive applies the law, which is created by the legislature. The judiciary would be limited by the legislature, as only the legislature would be empowered to create new law. The legislature could create law, but had no direct powers to apply it. Also it is important to bear in mind under the contemporary theory, the separation of powers doctrine does not insist that there should be absolute isolation between the three institutions. In fact, such arrangement would be unworkable. There must be some interplay among them in order to make the doctrine work more efficiently.
Naturally it is said that in many ways the United Kingdom does not respect the separation of powers principle or that it does so only weakly. However, the United Kingdom does have a long history in this respect. In the UK, the executive comprises the crown and the government, including prime minister and ministers. The role of the executive is to formulate and implement government policy across all governmental activities. Parliament as a whole forms the legislature, while the role of the judiciary is taken by the courts, and perhaps to a certain extent by tribunals, who adjudicates upon conflicts between state institutions, between state and individual, and between individual. Constitutionally, judges are subordinate to Parliament and have no power to challenge the validity of Acts of Parliament.
After I have examined the concept of rule and law and separation of powers, now I will turn to argue the essay question that the separation of powers must be based on the rule of law.
■Executive and Legislature/ Executive and Judiciary
The essence of separation of powers is that there should be a clear demarcation in function between the legislature, executive and judiciary in order that none should have excessive power and that there should be in place s system of checks and balances between the institutions. The rule of law doctrine as a power regulator, it limits government arbitrariness and power abuse. In more specific terms, how is government arbitrariness constrained? The answer lies in several important principles of rule of law. Firstly, rule of law requires the supremacy of law as opposed to the supremacy of the government or any political party. Dicey said that the rule of law in this context means, “…the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even wide discretionary authority on the part of the government". To put in other words, the rule of law requires the government to exercise its power under the law rather than based on the exercise of persons in authority of wide, arbitrary, or discretionary powers of constraint. Here it is worth noting that the opposite of rule of law is rule of person. The common feature of rule of person is the ethos that "what pleases the ruler(s) is law." Under the rule of person, there is no limit to what the rulers (the government) can do and how they do things. The government is the supreme being of all, and it can acts with no restriction on any ground. Therefore, there exist no checks and balance and thus no separation of powers.
Secondly, the rule of law doctrine restricts the government in its exercise of discretion, the government has to follow legal procedures that are pre-fixed and pre-announced by the parliament. As F. A. Hayek puts it, rule of law "means that a government in all its actions is bound by rules fixed and announced beforehand -- rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one's individual affairs on the basis of this knowledge". That is, the government cannot simply define a new crime and apply the new definition retrospectively. In UK, the parliament is the only institutional body that may enact laws to give legal effect. Therefore, the government has to act in accordance with the law enact by the parliament.
In the case of Pedro v Diss , Pedro was convicted with assaulting Diss in the execution of his duty in magistrates. However, the High Court overturned the conviction and sentence. They said that in this case the officer was not acting in the lawful execution of his duty. The police, said Lord Lane, do not have an unlimited power to detain people for question: their powers of legitimate detention and arrest are set down and governed by law.
Conversely, what if a state operates the doctrine of separation of powers without the requirement of the rule of law. Simply, the executive would act either act above the law or act without any regards to the laws set up by the legislature that might create great arbitrariness, hence the democracy would not exist.
■ Judicial Independence and the rule of law
Judicial independence is a key requirement of the separation of powers. The judiciary is independent from both parliament and the executive. It is ordinarily seen as embracing two fundamental principles: the separation of powers and the rule of law.
The judicial independence is functioning by the rule of law from two ways.
Firstly, the judiciary has to follow the principle of “equality before law”. No nation can claim to be judicially independent unless the laws are applied equally to all. That is, to use the word of Michael Walzer, unless:
“Citizen come into the forum with nothing but their argument”
Secondly, judges must be seen to be politically impartial. The judicial function is to interpret Parliament’s intentions as expressed in legislation and to ensure – through judicial review. – That any delegated legislation is consistent with the scope of power granted by Parliament. The rule of law also requires that judges ensure the legality of government action; this function could not be fulfilled if the judges’ independence was in doubt. For example: In Wilson v Minister for Aboriginal and Torres Strait Islander Affairs, the High Court of Australia held that a judge of the Federal Court of Australia could not be appointed by a minister of the Crown to prepare a report where the report was a condition precedent to the power of the Minister to make a declaration under a statute.
Separation of powers as a safeguard to the rule of law
Firstly, separation of powers makes the rule of law possible. I mentioned previously that one core meaning of the rule of law is "limitation;" that is, law has to place certain limits on what the government can do and prescribe how the government conducts its business. How are limits placed on the government? The only time-tested way is through a constitutional structure that includes separation of powers, checks and balances and judicial independence. Separation of powers, as a system of institutional arrangements designed to empower and limit the government at the same time, forms an institutional foundation for the rule of law. In particular, the constitutional mandates of separation of powers, checks and balances, independent constitutional review and an independent judiciary provide the institutional basis for judges to find and articulate laws independently, for laws to place meaningful constraints on government behaviour, and for established procedures to be followed.
Secondly, the separation of powers provides a minimal guarantee of the justice of both the content and the form of law, which is the requirement of the third limb of the rule of law that I have discussed above. Constitutional government provides a minimal safeguard for the form of law to be just. In order to have procedural justice, specific procedures have to be either written into statutes by legislators or articulated by independent judges in case law. A constitutional mandate and culture of rights protection is necessary for the establishment of fair and transparent procedures. In addition, there must be independent judges dedicated to legal reasoning to see to it that well-established procedures are complied with. A constitutional structure of separation of powers, checks and balances and independent judiciary is necessary for the effective and consistent implementation and enforcement of well-established procedures.
Conclusion
There will be no attempt to present an all-sided linkage between the doctrine of the rule of law and the principle of separation of powers above. Three connected points may, however, be made by way of conclusion.
First, the rule of law doctrine as a power regulator limits government arbitrariness and power abuse. That is, no institution has more power above the other. Furthermore, it restricts the government in its exercise of discretion, the government has to follow legal procedures that are pre-fixed and pre-announced by the parliament. Secondly, the rule of law set up the preliminary condition for the implementation of judicial independence from two aspects. Conversely, however, the separation of powers acts as a safeguard to the rule of law through two ways.
Whatever the shape of future of constitution reform, the rule of law and the separation of powers are two important fundamental principles in democratic running UK.
References
Cases
Pedro v Diss [1981] 2 All ER 59
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1
Articles
Allan T.S.R. ‘The Rule of Law as the Rule of Reason: Consent and Constitutionalism (1999) The Law Quarterly Review 221
Barendt E. ‘Separation of Powers and Constitutional Government’ (1995) Public Law 599
Craig P.P ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’ (1997) Public Law 467
Books
Hilaire Barnett Constitutional & Administrative Law 4th ed Cavendish Publishing Limited, London
Richard A.Cosgrove The Rule of Law (1980), The University of North Carolina Press
Edited by Martin Krygier and Adam Czarnota The Rule of Law after Communism 1999, MPG Books Ltd, Bodmin, Cornwall
Jeremy Waldron The Law 1990 Richard Clay Ltd, Bungay
Hobbes gave us the first account of the logic of the modern state in his masterpiece Leviathan (1651)
Richard A. Cosgrove The rule of law 1980 The University of North Carolina Press
6 Excerpt from Howard Zinn's A People's History of the United States Chapter Sixteen: "A People's War?"
Dicey, 1956 Introduction to the Study of the law of the Constitution, Macmillan, London p188
Bob Fine, Democracy and the rule of law of law,
Allan T.S.R. ‘The rule of law as the Rule of Reason’ (1999) The law Quarterly Review 221 at 225
Richard A. Cosgrove The rule of law (1980) Chapel Hill, The University of North Carolina Press, p79
In his book The spirit of law
See Eric Barendt Separation of Powers and Constitutional Government (1995) Public Law 599
After all, Montesquieu based his exposition of the doctrine on his understanding of the British constitution. The Spirit of the laws (1748).
Hilaire Barnett Constitutional & Administrative law 4th Ed
J. Debeljak, ‘Judicial Independence: A collection of Material for Judicial Conference of Australia’, Judicial Conference of Australia, 5th Colloquium, Uluru April 2002
Spheres of Justice: A Defence of Pluralism and Equality Basic Books 1990