Each country must find a solution which is sensitive to its domestic culture this is the position of Lord Irvine of Lairg on the separation of powers. This can be regarded as a politically correct position on a very discussed topic in that it does not take part in the animated debate around separation of powers. Separation of powers raises both enthusiasm and criticism: enthusiasm as it is regarded as a theory which tends to ensure democracy; criticism because of the application of the theory in the different legal systems. Discussion about the separation of powers refers to the relation between the legislature, the executive and the judiciary. The relation between these constitutional tools can change from one country to another. The separation of powers is found in many modern constitutions however it will have a different meaning according to the state you study. The separation of powers and Montesquieu sound like synonyms. However it is a common mistake to say that Montesquieu invented the separation of powers. In Politics, Aristotle was already distinguishing the deliberative, the magisterial and the judicial. It is on the base of the British Government under George II and from the analysis of English writers and from John Locke, that Montesquieu in the XVIIth century concluded that the Constitution of the United Kingdom was based on a tripartite separation between legislature, executive and judiciary, each independent of the other, which prevented against the tyrannical exercise of power. However some observers have criticised this theory as applied to the United Kingdom.
[...] All these developments have been considered as an “antique and rickety chariot so long the favourite vehicle of writers on political science and constitutional law.” There is recognition of the necessity of a separation of powers but in a reasonable form. In Chapter IV of Constitutionalism and the separation of powers M. J. C. Vile concluded that obviously doctrine of the separation of powers was no longer an English theory; it had became a universal criterion of a constitutional government”. [...]
[...] This constitutes a breach of the separation of powers in that the legislative powers are limited to a list which is to be found in Article 34 of the Constitution: the government has therefore a wider scope of legislative power than in Italy, France, Spain and Germany. Secondly, Article 38 of the Constitution states that the government can ask the Parliament to authorise the government to make ordonnances, which will deal with matters which can cover matters normally reserved to the Parliament. [...]
[...] In such a situation one can therefore speak about a “fusion”. The role played by the opposition is therefore important and will determine the extent to which there is a separation of powers between the legislative and the executive. The opposition must be present in order to prevent the Parliament to be the forum of the only executive. The separation of powers is required to prevent the concentration of all the powers in one arm. However it has to be admitted that the executive, is the arm which is most likely to have a concentration the powers; in this case a particular attention must be paid to the protection of the judiciary from the executive, to preserve the independence of the judiciary. [...]
[...] However as seen with the Recommendation R(94) 12 there is a possible solution in order to increase the separation of persons between judges and the executive. The problems which could be caused by the encroachment of the executive appears to be theoretical; however it could be feared that the executive would base its choice on a political party's membership. The significance of the independence of the judges is that they are free from control or influence by the Government in the administration of justice. [...]
[...] The executive is empowered to respond to a declaration of incompatibility by issuing an Order in Council amending or repealing the relevant statutory provision concerned”. A court which makes a declaration of incompatibility between the content of an act of Parliament and an article on the Human Right Act addresses this incompatibility to the executive and not to the legislature in order to respect its sovereignty and the separation of functions between the judiciary and the executive. However the executive has the power to amend or repeal the law which has been subject of a declaration of incompatibility; in this sense there is obviously encroachment between the executive and the legislative function. [...]
Online readingwith our online reader
Content validatedby our reading committee