Definition by jurists:
Montesquieu:
"When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty...Again, there is no liberty if the power of judging is not separated from the legislative and executive. If it were joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. If it were joined to the executive power, the judge might behave with violence and oppression. There would be an end to everything; if the same man, or the same body, whether of the nobles or the people, were to exercise those powers, that of enacting laws, that of executing public affairs, and that of trying crimes or individual causes."
Aristotle:
"There are three elements in each constitution in respect of which every serious lawgiver must look for what is advantageous to it; if these are well arranged, the constitution is bound to be well arranged, and the differences in constitutions are bound to correspond to the differences between each of these elements. The three are, first, the deliberative, which discusses everything of common importance; second, the officials; and third, the judicial element."
John Locke:
"The three organs of the state must not get into one hand...It may be too great a temptation to human frailty..."
Strict sense: There should be a clear demarcation of functions between the legislature, the executive and the judiciary. None should have excessive power and there should be in place a system of checks and balances between the institutions
Liberal sense: It would mean that let there be overlaps in function and membership between the legislature, the executive and the judiciary but on condition that there should be checks and balances between the institutions.
Whether Separation of Powers is followed
Legislature and Executive
Membership
-YDPA is the ceremonial executive and a part of the Parliament (Art. 44)
- PM and his Cabinet are required by the FC to be members of either Houses of Parliament.
Functions
- Executive has the power to make delegated legislation
-Executive controls Parliament. Party Whip – Executive will make sure all MPs do not oppose the Bill that needs to be passed.
Checks and Balances
- Legislature scrutinizes the executive through parliamentary procedures like question time, debates and select committees.
- YDPA acts on the advice of the Cabinet. The YDPA is guided by the FC dealing with the requirement of a Royal Assent to the Bill.
-Parliament may oust a government through a vote of no-confidence.
However,
- The Government usually has a two-thirds majority in Parliament and tends to dictate the Legislative branch
- Weaknesses of Parliamentary procedures such as question time, debates and select committees.
-Opposition lack of equal information in the Parliament
Legislature and Judiciary
Membership
-The highest court in UK was also the highest house of Parliament, House of Lords. Now the highest court in UK is Supreme Court.
Functions
- Legislature regulates its own composition and procedures like enforcement of breach of parliamentary privilege or contempt of Parliament. E.g. Stockdale v Hansard.
-Judicial organ makes law through the doctrine of judicial precedent.
-Judges are not supposed to make law. When judges make the law, they may not have made proper studies on the issue yet. Laws made by the judges are up to the personal preferences of the judge. Law made by Parliament will be balanced out because there are over 100 or 200 people in Parliament. Judge made law is automatically retrospective, can never be prospective. A judge can only make the law when the case comes to court. When the case comes to court, the event already happened.
-Judicial organ interpret statutes through differently, altering the literal meaning of the statutes. Purposive approach and mischief rule, judges may end up making law under the term of statutory interpretation.
- Parliament can pass laws that apply retrospectively in civil cases (Art.7)
-YDPA is from the Parliament, and appoints judges
Checks and Balances
-No MP can hold judicial office and vice versa to maintain independence of the judiciary
- Judiciary can declare an Act of Parliament as unconstitutional.
-Conduct of judges cannot be discussed in State Legislative Assemblies. Conduct can only be discussed in Parliament on a substantive motion of which notice has been given by not less than one quarter of the total number of members of that House
- Judiciary can control delegated legislation by declaring any subsidiary legislation inconsistent with any Act of Parliament or State Enactment void to the extent of the inconsistency.
- Parliament can pass laws to overwrite judge-made law
-Parliament can remove judges, by forming a tribunal and deciding.
Whether checks and balances are effective
- Not really, because the Executive dominates the Parliament, and the Parliament is forced to carry out its functions on behalf of the Executive. For example, passing a Bill containing policies of the Executive
Executive and Judiciary
Membership
-Indirect. Executive appoints the judges of the superior courts.
Functions
-AG who is part of the Executive, performs a judicial function,i.e. power to prosecute or not to prosecute
-Judges of Session and Magistrate courts are members of the judicial and legal service. They are transferable from the Bench to the AG’s Chambers and the government departments
- Chairpersons of administrative tribunals are not judges, but they perform the role of a judge.
- Statutory Interpretation. Judges will end up questioning policies even though they are not supposed to do so. Policies are done by the Executive. Purpose of the act can be equated to the policies.
-Under the Executive, the Home Minister can detain anyone without trial under the ISA. It prevents the courts from performing their functions.
Checks and Balances
-No Member of Executive can hold judicial office and vice versa
-Judges can only be removed from their office for misbehavior or inability to properly discharge the functions of their office
- Art.123 provides safeguards for the appointment of judges by the Executive by prescribing qualifications
- FC contains express provisions to secure independence of the judiciary from interference either from the Executive or Legislature.
Whether check and balances are effective
- Judicial powers of the Courts have been removed by the Executive
-Latent threats, the financial and other resources necessary for the judiciary to function properly is under the Executive
-PM can insist on appointment of a judge even if the Conference of Rulers disagree
-PM can pass laws inconsistent with the Constitution under Art.149 and Art.150
-PM can pass laws inconsistent with the Constitution under Art.149 and Art.150
Whether there are overchecking and overbalancing
-Judiciary seldom performs judicial review, especially after the 1988 Judicial Crisis.
-Executive dominates the Parliament. Majority of the MPs comes from the Executive.
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