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THE RULE OF LAW AND A SEPARATION OF POWERS

2 The rule of law and a separation of powers 2.1 A description of the rule of law 2.1.1 The rule of law is capable of many definitions, based on both philosophical and political theories, and hence it is a difficult doctrine to explain definitively. 2.1.2 In basic terms, the rule of law is the supremacy of law over man. As Aristotle explained in the fourth century BC , ‘the rule of law is to be preferred to that of any individual’. 2.1.3 Carroll defines the rule of law as ‘neither a rule nor a law’. It is now generally understood as a doctrine of political morality which concentrates on the role of law in securing the correct balance of rights and powers between individuals and the State in free and civilised societies. 2.1.4 The rule of law can be interpreted as: • an overarching, universal law that applies to everyone, including the executive and legislature; and • that man-made laws should conform to a ‘higher’ law, the rule of law. 2.1.5 The rule of law is consequently often recognised as a means of ensuring the protection of individual rights against governmental power . 2.2 Dicey’s formulation of the rule of law 2.2.1 In the United Kingdom, the general concept of the rule of law has become identified with Dicey’s explanation of the doctrine in his 1885 text, An Introduction to the Study of the Law of the Constitution . According to Dicey, the rule of law was a distinct feature of the UK constitution, with three main concepts. 2.2.2 Firstly: No person is punishable in body or goods except for a distinct breach of the law ( Entick v Carrington (1765) ). This concept attempts to ensure that law is not secret, arbitrary or retrospective, thereby limiting the discretionary power of Government. To comply with the rule of law, laws should be clear, precise, transparent and accessible. 2.2.3 Secondly: Every person, irrespective of rank, is subject to the ordinary law of the land and the jurisdiction of the courts. Dicey based this principle on the UK system as compared with those of the time in, for example, France, where disputes with Government officials were heard in administrative courts separate from the ordinary civil courts and where different rules applied. 2.2.4 Thirdly: The common law creates a system of rights and liberties superior to that offered by any declaration or Bill of Rights. This is because the common law system emphasises remedies for infringement of rights rather than merely declaring the content of those rights. 2.3 Bingham’s view of the rule of law 2.3.1 Much more recently than Dicey’s ideas, there has been a highly regarded dissection of the concept of the rule of law, as proffered by Sir Tom Bingham, a much-loved former Law Lord, in his text The Rule of Law (2010). 2.3.2 In this book, Bingham offered up his own useful, working definition of the rule of law: ‘All persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered by the courts.’ 2.3.3 Bingham also condensed his view of the scholarship on the rule of law into eight vital principles. These serve as a sound checklist to consider before we move on to consider the extent of the operation of the rule of law in the United Kingdom today: (1) The law must be accessible and so far as possible intelligent, clear and predictable. (2) Questions of legal right and liability should ordinarily be resolved by the application of the law and not the exercise of discretion. (3) The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation. (4) Ministers and public officials at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably. (5) The law must afford adequate protection of fundamental human rights. (6) Means must be provided for resolving, without prohibitive cost or inadequate delay, bona fide civil disputes which the parties themselves are unable to resolve. (7) Adjudicative procedures provided by the State should be fair. (8) The rule of law requires compliance by the State with its obligations in international war as in national law. 2.4 Examples of the rule of law as a functional element of the UK constitution 2.4.1 The existence of administrative law, particularly the process of judicial review , enables the courts to ensure power is controlled and the executive is accountable for its actions and is based on the need to ensure the rule of law. 2.4.2 Some examples of cases where the courts have referred to the significance of the doctrine in the constitution include: • Francome and Another v Mirror Group Newspapers Ltd and Others (1984) – where Lord Donaldson referred to the doctrine as one underpinning parliamentary democracy and extending to all citizens; • Merkur Island Shipping Corporation v Laughton and Others (1983) – where Lord Diplock commented on the need for the law to have clarity; • R v Home Secretary, ex parte Venables (1997) – the Home Secretary had considered a campaign conducted in a national newspaper when determining the sentencing of convicted children, rather than basing the decision on their progress/rehabilitation in detention. The action was considered ‘an abdication of the rule of law’; • R v Horseferry Road Magistrates’ Court , ex parte Bennett (1994) – where Lord Griffiths noted that it is the responsibility of the courts to maintain the rule of law, to oversee executive action and to not permit action that threatens basic human rights or breaches the rule of law; • M v Home Office (1994) – where, applying Dicey’s second proposition that every person is subject to the law, the House of Lords held that the Home Secretary could be found in contempt of court by disobeying an injunction; and • A v Secretary of State for the Home Department (2004) – where the House of Lords held that power to detain only foreign nationals indefinitely as suspected terrorists, without charge, under the Terrorism, Crime and Security Act 2001 was a breach of both the European Convention on Human Rights (ECHR) and the rule of law. 2.5 Reconciling a strict view of the rule of law with some legal rules in the United Kingdom today 2.5.1 If we apply Dicey’s concept of the rule of law to the modern UK constitution, we can make a number of observations. 2.5.2 The first concept, that no person may have their body or goods interfered with except for a distinct breach of the law, is in direct contrast to the provisions of some present-day statutes. For example: • the police have powers of arrest, stop and search when they have only ‘reasonable grounds’ for suspecting certain facts in relation to a criminal offence, under the Police and Criminal Evidence Act 1984; • the Government also has power to interfere with a person’s goods/property without any breach of the law, for example, the exercise of compulsory purchase orders when buying land for development and building infrastructure like roads and railways. 2.5.3 The second concept formulated by Dicey was that no person is above the law. However, there are a number of contraventions of this principle in the modern constitution. For example: • the Monarch in her personal capacity is not subject to the jurisdiction of the ordinary courts; • the Crown is also in a privileged position in litigation (Crown Proceedings Act 1947) and cannot be sued in tort for the actions of its servants; • no civil action may be brought in respect of the comments or actions of a judge exercising his or her judicial role ( Anderson v Gorrie (1895)) or in relation to a jury’s verdict ( Bushell’s Case (1670)); • Members of Parliament have rights and immunities beyond those granted to the ordinary citizen, such as freedom of expression and freedom from arrest in certain circumstances. Conversely, there are individuals who are subject to additional legal restraints. For example, under the Armed Forces Act 2006, members of the armed forces are subject to additional legal codes of conduct and offences, such as desertion, and a different judicial system. 2.5.4 The third concept, that common law provides protection of individual rights in the UK constitution, remains the case today, although added protection has been provided by virtue of the Human Rights Act 1998, for example. 2.5.5 The faith Dicey had in the ability of the common law to protect rights and liberties, though, has been criticised. • Dicey failed to appreciate that the effectiveness of the common law in offering such protection can be greatly reduced by the pre-eminence given to statute, a consequence of the supremacy of Parliament. • Hence, while the common law may offer protection in the form of remedies for those whose rights are infringed, statute may remove that protection, as was the case in Burmah Oil v Lord Advocate (1965). 2.5.6 Here are some examples of specific criticisms of Dicey’s view of the rule of law: • Sir Ivor Jennings claimed that Dicey’s standard of the rule of law was influenced by his political views and that the phrase could be used to describe any society where a state of law and order exists. • Consequently, the rule of law is seen to operate ‘best’ in societies that meet Dicey’s standards. Jennings instead claimed that the rule of law may exist in societies that do not meet Dicey’s standards – in other words, that the rule of law can exist in political systems other than those based on traditional Western democratic models. 2.6 Some broader interpretations of what the ‘rule of law’ might entail The rule of law as a political concept 2.6.1 Laws should exhibit particular characteristics and meet minimum standards in terms of the way they are expressed and administered. For example, Raz argues that the making of laws should be guided by the following principles: • laws should be general (i.e. not discriminate), prospective, open and clear; • laws should be relatively stable (i.e. should not be subject to frequent and unnecessary amendment); • making delegated legislation should be guided by clear, stable, open general rules; • there should be a guaranteed independent judiciary; • the application of law should accord with the rules of natural justice (i.e. there should be no bias and there should be the right to a fair hearing); • the courts must have the power to review law-making and administrative action to ensure it is compliant with these rules; • the courts should be easily accessible (i.e. access to justice should not be hindered by excessive delays and expense); and • the discretion of crime-preventing bodies should not be allowed to pervert the law (i.e. agencies such as the police should not be able to choose which laws to enforce and when). However, Raz’s approach has been criticised as placing too much emphasis on procedure as a means of protecting rights, whilst failing actually to identify the nature and extent of the rights themselves.

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The Rule of law and the separation of powers

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2 First Principles: the Rule of Law and Separation of Powers

• Published: September 2003
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When the idea of the rule of law is interpreted as a principle of constitutionalism, it assumes a division of governmental powers or functions that inhibits the exercise of arbitrary state power. It envisages a fundamental separation of powers between legislator or lawmaker, on the one hand, and those who ‘execute’ or administer the laws, on the other. The rule of law also assumes the generality of law: the individual's protection from arbitrary power consists in the fact that his personal dealings with the state are regulated by general rules, binding on private citizen and public official alike. This chapter discusses the rule of law and equal justice, legislative authorisation of executive power with emphasis on common law rights and public purposes, and procedural legality citing Lon Fuller's ‘internal morality’ of law.

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U.S. Constitution.net

Constitutional topic: separation of powers – the u.s. constitution online – usconstitution.net, constitutional topic: separation of powers.

The Constitutional Topics pages at the USConstitution.net site are presented to delve deeper into topics than can be provided on the Glossary Page or in the FAQ pages . This Topic Page concerns the Separation of Powers. The concept of Separation of Powers is embodied in the Constitution in the 1st Article , in the 2nd Article , and in the 3rd Article . Another Topics Page, on The Government provides details about the make-up of the various branches and may also be of use.

Primary sources for this topic page are Comparative Politics by Gregory Mahler (Schenkman Publishing, 1983) and Comparative Politics by Gregory Mahler (Prentice Hall, 2000). Individual pages from Wikipedia and Canada in the Making were also helpful in keeping this page up to date.

The American Example

Historical Examples

The British Example

The French Example

The Canadian Example

The Mexican Example

Conclusions

The United States Constitution is deliberately inefficient.

The Separation of Powers devised by the framers of the Constitution was designed to do one primary thing: to prevent the majority from ruling with an iron fist. Based on their experience, the framers shied away from giving any branch of the new government too much power. The separation of powers provides a system of shared power known as Checks and Balances .

Three branches are created in the Constitution. The Legislative, composed of the House and Senate, is set up in Article 1 . The Executive, composed of the President, Vice-President, and the Departments, is set up in Article 2 . The Judicial, composed of the federal courts and the Supreme Court, is set up in Article 3 .

Each of these branches has certain powers, and each of these powers is limited, or checked, by another branch.

For example, the President appoints judges and departmental secretaries. But these appointments must be approved by the Senate. The Congress can pass a law, but the President can veto it. The Supreme Court can rule a law to be unconstitutional, but the Congress, with the States, can amend the Constitution.

All of these checks and balances, however, are inefficient. But that’s by design rather than by accident. By forcing the various branches to be accountable to the others, no one branch can usurp enough power to become dominant.

The following are the powers of the Executive: veto power over all bills; appointment of judges and other officials; makes treaties; ensures all laws are carried out; commander in chief of the military; pardon power. The checks can be found on the Checks and Balances Page.

The following are the powers of the Legislature: Passes all federal laws; establishes all lower federal courts; can override a Presidential veto; can impeach the President. The checks can be found on the Checks and Balances Page.

The following are the powers of the Judiciary: the power to try federal cases and interpret the laws of the nation in those cases; the power to declare any law or executive act unconstitutional. The checks can be found on the Checks and Balances Page.

Historically, the concept of Separation of Powers dates back as far as ancient Greece. The concepts were refined by contemporaries of the Framers, and those refinements influenced the establishment of the three branches in the Constitution.

Aristotle favored a mixed government composed of monarchy, aristocracy, and democracy, seeing none as ideal, but a mix of the three useful by combining the best aspects of each. In his 1656 Oceana , James Harrington brought these ideas up-to-date and proposed systems based on the separation of power. John Locke, in his 1690 Civil Government , second treatise, separated the powers into an executive and a legislature. Montesquieu’s 1748 Spirit of the Laws expanded on Locke, adding a judiciary. The framers of the Constitution took all of these ideas and converted the theories into practical applications.

When discussing Separation of Power, is it helpful to contrast the American System to the governments of other nations. This list below is far from a representative sample of nations or systems. The United States, Britain, France, Canada, and Mexico are actually more similar than they are different, especially when the whole range of nations is taken into account. However, sometimes the smaller differences between similar systems can be interesting and illustrative. It is left to the reader to conduct studies of more disparate systems.

The British Parliamentary system works like this: There are two houses of the legislature. The upper house, the House of Lords, has traditionally consisted of the nobility of Britain: dukes, earls, viscounts, barons, and bishops. As of 2005, the very existence of the House of Lords is in question. There are some calling for its abolition, but a combination elected/lifetime appointment system seems more likely. A popular proposal calls for 80% of the body to be elected and the name to change to the “Second Chamber.” In 1999, the House of Lords had over 1300 members. Today, there are just over 700 members. The House of Lords serves a judicial function as a court of final appeal, but as a legislative body, is widely regarded as ineffectual. It can delay passage of bills issued by the lower house, though it cannot veto them.

The lower house, the House of Commons, consists of MPs (Members of Parliament) elected from one of 646 electoral districts. In the Commons, majority rules. The majority party makes all the laws. The minority has little voice. The Prime Minister, Britain’s closest approximation of the American President, is an MP chosen by the majority. The judiciary has no power of review as in the U.S. Since Britain has no formal, written constitution, no law can be unconstitutional.

The head of state, analogous still with the American President, is the monarch (King or Queen). The monarch must approve of all bills, though the process today is little more than a rubber stamp. The Speaker of the House of Commons, elected by the House, acts as the referee in debate between the majority and the minority. The MPs in the House of Commons sit for five years, or until the monarch (at the Prime Minister’s behest) dissolves Parliament and calls for new elections. The Prime Minister also heads the Cabinet.

In Britain, the majority party in the House of Commons holds all of the power. The judiciary has no power of review. The House of Lords holds little more than delaying powers. By tradition, the monarch does not veto bills passed by the Parliament. And the de facto head of state, the Prime Minister, is a member of the Commons.

In France, the President is elected for five year terms by the people to a powerful position. The President can, and has, dissolve Parliament and call for new elections. The President appoints the Prime Minister. Together, the President and Prime Minister head the executive branch. The President does not have veto power over legislation, but can ask Parliament to reconsider a bill. The Prime Minister heads The Government, akin to the American Cabinet. Most bills passed into law originate with the Government. The President presides over the Cabinet, and has vast emergency powers. The French President, de jure does not have many powers, but because of the French election system, he usually has great popular support and is able to leverage that into political power. When the President’s party holds power in the legislature, he is quite powerful, but it is quite diminished when the legislature is not controlled by his party.

The Prime Minister, chosen by the President from the majority party in the National Assembly (the lower house), has power that varies in direct correlation to that of the President. The Prime Minister chooses the members of the Government and is head of the military and the civil service. Deputies of the Assembly are elected by the people for five year terms. There are currently 577 deputies. The Assembly can vote to dissolve the Government, but in reality, such a move is unlikely.

The Senate, the upper house, is more powerful than the House of Lords in Britain, but not by much. Senators are elected by the various local officials from across the country to six year terms. There are currently 321 senators.

There is a written French Constitution. Laws, after passage but before enactment, can be reviewed by the Constitutional Council. Review is either requested (for most laws) or mandatory (for laws affecting the Constitution). Its nine members consist of three appointed by the Government, three by the Assembly, and three by the Senate. The Council is designed almost like the U.S. Supreme Court, but it has little of the power of that court.

For the French, the majority of the power lies in the hands of the Government. If the President is of the same party as the Government, he can also wield considerable power. The Assembly is highly limited to legislate on topics specifically spelled out in the Constitution; the Senate has far less power than the Assembly. The Constitutional Council has not proven to be the force in French government that it appears to have been designed to be.

Canada was a subject of Britain for several centuries, and its system has many similarities with the British system. Until 1982, Canada did not have full control over its own constitution. Prior to 1931, the British Parliament could still legislate for Canada, but in 1931, much of that control was passed to the Canadians. More control passed in 1949, but full control was not gained until 1982, when the Constitution Act of 1982 gave Canada full control over its own constitution. Officially, the monarch of Canada (also the monarch of the United Kingdom) remains the Canadian head of state and is represented in governmental affairs by a governor-general. De facto , however, the monarch has no real control of any kind over Canada. In an interesting circular system repeated throughout the former British commonwealth, the governor-general is “recommended” to the monarch by the Canadian Prime Minister and the governor-general in turn de jure appoints the Prime Minister from the members of the House of Commons.

Canada is a federal system akin to that of the United States, with each of its ten provinces having a great deal of control over internal policy. Canada’s three territories have less autonomy. Canadian federalism differs from American federalism, however, in that the provinces have specific powers reserved to them and all other powers belong to the federal government. The federal government has veto power over all provincial law-making. The branches of government are a mix of the British and American systems. The legislature is parliamentary and bicameral, split between the House of Commons and the Senate. The members of the Senate are recommended by the House of Commons and appointed by the governor-general. Appointment is for life or until age 75. There are currently 105 members. Members of the House of Commons are elected by the people; elections must be held at least once each five years. There are currently 308 members. The executive is composed of a Prime Minister and a cabinet.

A privy council is in place that works to supplement and support the Prime Minister and the cabinet. The members of the council include the Chief Justice of the Supreme Court; the staff is comprised of career public servants, ensuring continuity even when there is a change in the leadership party in the parliament. The Privy Council Office is separate and distinct from the Prime Minister’s Office. The former is concerned with the efficient running of the government and is generally considered non-partisan. The latter is completely partisan and is concerned with the advancement of the platform of the Prime Minister and the ruling party.

The judiciary is more powerful in Canada, much like that of the United States; the Supreme Court has nine members which serve for life or until age 75. Each province has its own judicial system as well; these provincial courts work at the lowest level in the system, with the Supreme Court at the highest level and with superior courts in between. Each province has a Court of Appeal, and in all cases, the Supreme Court is a final court of appeal. The federal courts also act as the sole courts of Canada’s three territories. The constitution allows the Supreme Court to be used as an advisory court, issuing opinions on the constitutionality of laws without any actual dispute needing to be in play.

Mexico has had a tumultuous history, as it has had to deal with foreign invaders, poverty, and its strong neighbor to the north. What Mexico has for a political system has evolved with all of these influences. Its current constitution has been in force since 1917 and it has been amended at least 450 times since its enactment. The Constitution is divided into two major parts, the Individual Guarantees and the definition of the structure of the government. One notable feature of the Guarantees is that the freedoms enumerated therein are reserved “by any individual,” regardless of citizenship or status. The Mexican government is explicitly divided into the same three branches as the United States, legislative, executive, and judicial. It is a federal republic like its North American neighbors, with 31 states dividing the varied geography, plus one Federal District. Like U.S. states and Canadian provinces, much of the everyday law is left to the Mexican states’ jurisdiction.

The Mexican legislature, the General Congress, is bicameral and divided between a 128-member Senate and a 500-member Chamber of Deputies. The members of the Chamber are elected every three years. 300 members are elected in an at-large election where seats are distributed to parties on a national proportional basis. The remaining 200 are allocated to the states in proportion to their population. Deputies cannot serve more than one term in succession.

Senators are elected every six years. Each state has four Senators as does the Federal District. Two of the four are allocated to the majority political party; a third is allocated to the next highest minority party; the fourth is selected based on proportional representation. Senators may not be reelected to a seat.

Certain subjects are the exclusive domain of one house of the Congress; others must be agreed to by both houses. Legislation may be introduced by any member of Congress, the President, or a state legislature. A Permanent Committee, comprised of 15 Deputies and 14 Senators, meets when the Congress is in recess.

The Mexican executive is the President, elected to a single six-year term. The President is directly elected by the people. In the case of disability, the Congress can designate an interim President and call for new elections. The President is the head of state and head of government. Constitutionally, he is held to the will of the Congress – he cannot leave the country, for example, without the permission of the Congress.

The judicial system of Mexico divides the national courts into four hierarchical parts. At the top is the Supreme Court of Justice, followed by the Electoral Tribunal, Circuit Courts, and District Courts. The Supreme Court is made up of eleven Ministers; the Court can operate en banc (as a whole) or in divisions of five ministers. The Chief Minister is elected every four years by the ministers from within the Court; no one person can be immediately reelected to the Chief position. Ministers are appointed to the Court for 15 year terms. The federal courts act as courts of appeal for the state courts, and act as courts of appeal for themselves according to the previously noted hierarchy. Only through special rulings known as jurisprudencias can the decision of a higher court become legally binding on all lower courts.

Is the American system superior to any of these, or to any other, system of government? That depends on where you sit. The French and the British might scoff at the fact that our head of state, the President, has no power to make laws. They might cringe at the thought that judges can render the will of the people, in the form of a duly passed law, null and void. Canadians might think that state powers ought to be enumerated; Mexicans might marvel at the longevity of some career American politicians.

Americans might look with amusement at the institution of the British monarchy, and its continued hold, if only on paper, on Canada. Americans might cringe at the British thought of majority rule with no written constitution to be used as a guide or rule book. We might worry that the French Presidency has the potential to turn tyrannical by the misuse of emergency powers. We might worry that a Mexican judiciary, without lifetime tenure or a solid stare decisis system might lead to incoherent judicial policy.

But recall that each of these nations, and the hundred others in this world, have political and social traditions that sometimes date back a thousand years. Despite what Americans might think are odd institutions and traditions in France, Britain, Canada, Mexico, and elsewhere, these are all prosperous nations. The systems work in the context of each nation, even if the details could not work in some others.

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Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction (9th edn)

• Guide to the online resources
• Table of Legislation
• Table of International Treaties and Conventions
• Table of Cases
• 1. Defining the Constitution?
• 2. Parliamentary Sovereignty
• 3. The Rule of Law and the Separation of Powers
• 4. The Royal Prerogative
• 5. The House of Commons
• 6. The House of Lords
• 7. The Electoral System
• 8. Parliamentary Privilege
• 9. Constitutional Conventions
• 10. Local Government
• 11. Parliamentary Sovereignty within the European Union
• 12. The Governance of Scotland and Wales
• 13. Substantive Grounds of Judicial Review
• 14. Procedural Grounds of Judicial Review
• 15. Challenging Governmental Decisions: The Process
• 16. Locus Standi
• 17. Human Rights I: Traditional Perspectives
• 18. Human Rights II: Emergent Principles
• 19. Human Rights III: The Human Rights Act 1998
• 20. Human Rights IV: The Impact of the Human Rights Act 1998
• 21. Human Rights V: Governmental Powers of Arrest and Detention
• 22. A Revolution by Due Process of Law?: Leaving the European Union
• 23. Conclusion
• Appendix Constitutional Implications of the Coronavirus Pandemic
• Bibliography

p. 43 3. The Rule of Law and the Separation of Powers

• Ian Loveland Ian Loveland Professor of Public Law, City, University of London
• https://doi.org/10.1093/he/9780198860129.003.0003
• Published in print: 04 June 2021
• Published online: September 2021

This chapter examines the various meanings that the ‘rule of law’ principle has been accorded in Britain’s post-revolutionary constitution. The chapter suggests that the idea of the ‘rule of law’ may be viewed as a vehicle for expressing ‘the people’s’ preferences about two essentially political issues. The first relates to the substance of the relationship between citizens and government. The second is concerned with the processes through which that relationship is conducted. More simply, the rule of law is concerned with what government can do—and how government can do it. This chapter analyses both the way in which the courts have addressed these issues in a series of seminal judgments, and also explores various critiques of the idea of the rule of law and the role it plays in the modern British constitution offered by legal theorists from the left, right, and centre of the mainstream political spectrum.

• British constitution
• constitutional law
• rule of law
• Entick v Carrington
• Liversidge v Anderson
• Friedrich Hayek
• Harry Jones
• principles of statutory interpretation

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How do the ‘Rule of Law’ and Separation of Powers’ really work?

In the last few weeks we have been hearing the phrase ‘the Rule of Law’. It is time to examine this and another related concept, the ‘Separation of Powers’. If we do, we will encourage our nation rulers to work better, work more effectively, and work to produce justice. Rule of Law The concept of […]

In the last few weeks we have been hearing the phrase ‘the Rule of Law’.

It is time to examine this and another related concept, the ‘Separation of Powers’.

If we do, we will encourage our nation rulers to work better, work more effectively, and work to produce justice.

Rule of Law

The concept of Rule of Law is easy to understand.  You needn’t be a lawyer to know what it is: you can guess.  It is an idea that lives in all of us.

If there is a law, it must, first of all, be just.  And it must be fair.  Third, any law must be obeyed by all: whether one is a poppadum  seller or a prime minister.  When a policeman arrests someone, he must observe all the law,  whether he is arresting a murderer, a thief or a saint. When the Government does anything, it cannot do what it likes.  It must follow its own laws.  And it cannot make laws that bully people.  Or treat one set of people differently from another.

Separation of Powers

The concept of ‘Separation of Powers’ is not so difficult either. It is a tool that makes the Rule of Law work.

A nation is ‘governed’ by three separate institutions: [1] the legislature [read, parliament], [2] the judiciary [read, the courts] and the [3] executive [read, the administration or ‘Government’].

The one cannot interfere with the other. That is the theory.

Let us see how this works in practice.

Parliament makes law. If a political party has at least two-thirds majority in parliament [or 148 seats or more, out of 222 seats], it can even change the Constitution.  But it cannot change the Constitution so as to fiddle with it, or destroy Basic Rights [e.g. the rights to life, equality, choice or practice of faith, or freedom of expression].

For example, it cannot change the Constitution to make a new law that says, ‘Kill all newborn babies with blue eyes’. That would be to deprive the ‘right to life’.  When parliament does this, such law is unconstitutional.  The Judiciary can knock parliament and declare, ‘Hey! That law is unconstitutional, and we are striking it down.’

As for the second limb—the Judiciary—Judges apply the law obediently. Where there are ‘gaps’ or ‘ambiguities’ in the law, judges fill in the gaps. They put in with what they think parliament intended.  They cannot go beyond that.  To make new law is parliament’s duty and privilege, it is not no province of the courts.

The third arm, the Government, is bound to obey parliament’s laws and the decisions of the Judiciary.

Parliament can say to the judges or to the Government, ‘You people are not interpreting or enforcing the laws we make, the way we want you to.  If we say to you, ‘Hang a fellow who is a drug trafficker, why are you handing out life sentences? [This happened you know!] We are making new laws.  Hanging it is.  You obey.’

And so, both the Government and the Judiciary have to obey. Instead of sending the trafficker to the chokey, he is sent to the gallows.

Sometimes the Judiciary can say, ‘No, we are not listening to parliament or the Government.  What you have done is not fair. A man who has been thrown out of a job must have a right to be heard.  You cannot just kick him out, no matter what you both say’.

So also—quite unlike the previous regime— the Government cannot order parliament or the judges about.  It cannot interfere in their job.

So, these are ‘checks and balances’.

Is there100% separation of powers  or is there a ‘fusion’ of powers’?

In reality, there is no such thing as 100% separation of powers— whether in the UK, US, or other parts of the Commonwealth.

It is a ‘legal fiction’—a cerita.

In Malaysia, parliament and the Government are said to be ‘fused’.

I will explain:

In truth and in substance, those occupying the senior posts in the Government— the Cabinet — must be members of the Dewan Rakyat [Article 43].  And members of the Cabinet control the Government and sit in parliament, and control how laws are passed.

The PM will directly influence who is to be recommended as the Chief Justice, the President of the Court of Appeal, the two Chief Judges of the High Courts of Malaya and Borneo, and every judge: [Article 122B]. So the leader of the Government does wield power over the courts.

Deputy Ministers and Parliamentary Secretaries must be members of either house:[Articles. 43A, 43B].  The Speakers of both the Dewan Rakyat and Dewan Negara are elected by members of each house:[Article.51].   Yet Deputy Ministers and Parliamentary Secretaries form also a part of the Government.

The PM directly influences who are appointed as Ministers, Deputy Ministers or Parliamentary Secretaries.  He or she will indirectly influence who is elected as Speaker of either house.

Who is the lead person who speaks for the Government at parliament? The PM.

Who pays the wages of the judges? Parliament! [Article 125(6)].   So even parliament holds the purse strings of the Judiciary.

This helped the ‘checks and balances’, for power was not monopolised by one man, or one group of persons.

So, it is rather inaccurate to argue that there is ‘absolutely no fusion of powers of the 3 organs of government.’

Compare Malaysian system with the UK and the US

You realise of course that the Malaysian PM and his UK counterpart have the same duties and powers. There is also much commonality in the way the three institutions function in both nations: for they sprung from the same template.

That system has worked well in the UK—for ages now.  It did not all start of as a bed of roses. There were wars.  There were horrid confrontations. Blood was shed.  Off went some heads-in some cases, that of good persons. All that is gone now.  We were lucky. We managed to copy UK’s robust system with a minimal loss of life and suffering—if any.  Our problems started not because of that system—but in spite of it. It all nearly crashed on our heads because some of our past leaders did not follow the rule of law.  They cared not for any separation of powers.  It was all one to them. They used the nation as if it belonged only to them.  They took what they liked, when they liked, and how they liked.  When questions were raised, we were lectured about ‘Bangsa negara, dan agama’ —all of which, in fact, preached love, patriotism, and justice—not a single principle of which the previous regime obeyed.  We were all told we should ‘be grateful’.

You will have noted the poisonous phrase often bandied about by the previous regime: ‘We are the ruling Government’. By this self-serving phrase, they meant they ruled parliament.  They ruled the judiciary. There was no separation of powers.  It became an all devouring, malevolent organism. The querulous nation was smoothed over by sweet words.  And constant gifts stolen from public coffers.

Good prime ministers, and good leaders are self-disciplined. They will not stray into, or prejudice, the independence of parliament, or the judiciary.

They understand the Separation of Powers. They will obey its precepts, even if they don’t like it.  They ensure there is a high level of transparency in their dealings, and all-round consultation. Leaders do not mind being raked over the coals. Judges understand their rulings can be flayed.  Members of parliament expect to be rebuked.  That is all part of the discipline.  It goes with the territory.

So even in a ‘fused system’ there is substantial— perhaps a high degree of— ‘separation’ of powers.

Being a little ‘fused’ does not mean the one branch ‘dictates’ to the other.

Even in the United States way the system is almost the same.  The US ‘Congress’ is just like the Dewan Negara and Dewan Rakyat in Malaysia, i.e. ‘bicameral’ [meaning ‘two chambers’].  Two houses make the US legislature: the Senate and the House of Representatives. But there is more ‘formal’ separation. Yet even they copied their system from UK, and the Rule of Law from both UK and Europe.  But in the US, the leaders in parliament and government are different people.  The US Constitution dictates so.  A man cannot be the US President and at the same time sit in Congress—unlike our system.

Suppose the US system is ‘imported’ into Malaysia; then this is what will happen:  for example, assuming Harapan is in power,  Harapan leader Mr. A (or Madam B) will be elected as the leader of the House of Representatives.  Another separate and independent Harapan leader, Mr. C (or Madam D), will be elected as the Malaysian prime minister— by separate elections.

In the US, candidates vying to be judges of the Supreme Court are security-vetted and shortlisted by the White House: [Article 2, US Constitution].  The fruits of their labours are examined under a microscope: their published decisions, their articles, speeches, and other background material.  This provides an idea of the candidates’ core values and their views on constitutional issues. The nominee’s age, health, race, gender—all  figure in the selection process. They are then sent over to, and are independently—and publicly— grilled by the Senate Judiciary Committee.  The Committee reports to the Senate. A vote is taken. Only a simple majority is required. Confirmation hearings may sometimes take months.

How do you think our Court of Appeal and Federal Court judges will fare were they put through this process?  You are right! We will have the best legal minds.  And those who would dare take the ‘test’ will have the courage of a pride of lions.

It is probable, as history has borne out, that the While House backs  candidates who are of the same party as the President.  It is political, but it is still there—this palpable fusion.

Ethical leadership

In the more advanced nations, they are careful to observe the Rule of Law. They are all not saints, but they try not to be funny and defeat it.  Otherwise they’d get thrown out. Their leaders practice ethical leadership. There, leaders of all three institutions are wary of each other. They try not to stray into each other’s spheres of influence.

This is what is called the ‘separation of powers’.

Each institution is not only separate, but ‘independent’.

That is why they are considered ‘more advanced’ than some ‘banana republics’ of the Commonwealth — Malaysia nearly turned into one in the last 5 years— until you came and saved the nation!

The laws and systems of not only Malaysia, but that of the entire Commonwealth—comprised in 53 countries across all continents, with a combined population of 2.36 billion people— follow the UK system.  Ours, like the UK system of government, is a ‘constitutional monarchy.’  It is a democracy with a monarch as its titular head. Without a royal ruler, it is a ‘republic’: there supreme power is held by the people and their elected representatives, its leader is an elected or nominated president.

Some 94% of the citizens of the Commonwealth live in Asia. Of those, 1.26 billion are in India. In other words, almost 33% of the world runs on UK law.  Almost all the rest of the world is run on some form of Rule of Law.  The rest are not based on the rule of law.  They are mere despots.  Or religious regimes.

Over the years, the British and the US systems have worked well.  In the UK, the Judiciary has openly acknowledged its need to be totally independent of the Commons and the Lords. The description ‘.gov’ at the end of the Supreme Court judges’ email was only removed last week!  News of this ‘great emancipation’ was sent out on Twitter, as if hailing a great moral victory— which indeed it was.

Pakatan Harapan has inherited this malformed structure.  Our current leaders need to beat it back into shape, rip off each fused institution—and grant them their separate identities and independence.  Even so, this very minute we can observe all the fawning, right before our own eyes. People have become so acclimatised to the old system, they can’t seem to be able to tear themselves out of it.

Since ‘Five-O-Nine,’ we have a chance to return to the perfect model.  If, we, as a people, are wise, we should strive to make the nation’s governing institutions more and more ‘separate’— and more and more ‘independent’—and more and more just.

This Harapan Government, and the Judiciary and legislature must act, as a ‘government bound by the Rule of Law’.

And one respecting—and upholding— the Separation of Powers.

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Separation of Powers, Parliamentary Sovereignty & the Rule of Law

This short guide explains what the concepts listed below mean and how they relate to our Human Rights Act:

• the constitution
• the separation of powers
• parliamentary sovereignty
• the rule of law

What is a constitution?

A constitution is the established principles and rules for how a state is run. The state is the legal name given to a territory or country. A constitution can be written down in one single law, contained in lots of different laws and documents, or established principles, or a combination; each state will have different constitutions. A constitution explains the rules on how the three parts of the state (usually called the branches of state) should work together.

This is important to make sure that no one part of the state such as the Government has unchecked power.  

“A constitution puts limits on the 3 parts of the state, balancing them all to work well, and sets out the rights of citizens which these branches need to respect.”

The three branches of the state are explained in detail later, but they are:

• parliament (the legislature)
• courts (judiciary) and
• government (executive).

The UK’s constitution

The UK does not have a single written constitution. This means that there is no one document that contains all of the rules and principles. Instead, the UK’s constitution is found through laws passed by Parliament and rules established through practices across hundreds of years, and principles established in court decisions (also known as the common law.)

The Human Rights Act is one of the laws that form part of the UK’s constitution. It exists to set out the rights of each person in the UK and the responsibilities of all the branches of state. It is a crucial part of the UK’s constitution because it sets out the rules by which the state should treat people; with dignity, respect and without discrimination.

Not having a single written constitution in the UK means that it can be harder to understand as there’s not one document that sets all the rules for the state. It also means that it can be easier to change the rules, which can be both a good or a bad thing depending on what these changes are and your opinion of what’s good and bad. Changes to the constitution have included:

• the removal of hereditary peers from the House of Lords (hereditary peers are members of the Lords based on their birth and used to be able to pass this on to children upon their death).
• introduction of the Human Rights Act
• devolution to Scotland, Wales, and Northern Ireland, which set up parliaments/assemblies and governments for each nation.
• creation of the Supreme Court, which is the highest court in the UK.

UCL, a university, have a good guide on the UK’s constitution which we have used to help explain it.

What is the separation of powers?

The separation of powers is an idea which is fundamental to how the UK works. It is about having specific and separate powers and functions between the three branches of state. This is supposed to help keep these three branches independent and accountable, by making sure no one part is too powerful.

The three branches of state are:

The legislature makes the laws.

In the UK, the legislature is Parliament, which is mainly the House of Commons (which MPs are elected to) and the House of Lords (which is made up of peers). Both the “houses” of parliament will debate proposals for laws, look at what changes should be made, and pass or reject laws.  When a law is passed, the Crown (currently the Queen) gives it royal assent to make it official. This is ceremonial, as the monarch does not refuse to make laws passed by Parliament official.

Parliament also carries out “scrutiny” work, which examines and challenges the work of the Government. This might be through debates, questions or committees.

We have devolution in the UK, so the legislature also includes the Scottish Parliament, the Welsh Parliament and the Northern Ireland Assembly. These parliaments and assemblies have been given law-making powers by the Houses of Parliament.

The executive is responsible for creating policy, putting proposals for laws to the legislature, and putting laws into effect. We call this the government.

In devolved nations (Scotland, Wales, and Northern Ireland) the executive includes the First Ministers and governments of the devolved nations.

The judiciary decides whether laws are being followed or if they have been made properly. This is done through a system of courts and tribunals.

In the UK, the judiciary is made up of the judges and officers of the courts of law. These are overseen by the Supreme Court,  the highest court in the UK . The courts in the UK can decide on conflicts between state bodies, between the state and individuals and between individuals. In the UK we have 3 legal systems; one each for England and Wales, Scotland, and Northern Ireland. The Supreme Court is the top court for all these systems.

Why is the idea of separation of powers important?

It is important that these branches of government are separate so that one branch of government doesn’t hold all (or too much) power. Each branch is therefore able to check on the other two branches to ensure that they are not overstepping their role. This means that there is a system of checks and balances. This should prevent each branch from abusing their power and helps ensure fairness in our system, making sure every part of the state has to play by the rules.

How does this work in the UK?

In the UK, we do not have a strict separation of powers. The branches of the state are closely linked. For example, the Prime Minister is both head of the executive (Government) and generally the leader of the majority party in the legislature (Parliament). This is because to form the government in the UK a political party has to win more local elections than other parties to have the most MPs. This means the leader of that party will be the head of the Government, the Prime Minister, and will usually have the most MPs who can vote to pass laws in parliament.

 There are still checks and balances in place to ensure that no branch of government has too much power. For example, the legislature can keep check on whether the executive is doing their job through things such as  Ministers questions, debates and investigations by committees . Prime Minister’s Questions is another example of this.

The judiciary (courts) are independent of both the executive and legislature. In the UK judges are not elected (unlike some other countries) so they are not accountable to voters. Judges are selected by the Judicial Appointments Commission, based on their merit; they are independent. People can start a legal case and ask a judge to look at whether the right laws and processes have been followed or broken. This includes bringing cases that are about the actions or decisions of the executive/government. This type of case is usually a judicial review. Judicial review is a tool to examine whether decisions by public bodies have been made in a lawful way, using the correct processes.

You can read our explainer on judicial review here

What is parliamentary sovereignty?

Parliamentary sovereignty is often said to be  ‘the defining principle of the British Constitution’

Parliamentary sovereignty means that  Parliament is the supreme legal authority in the UK . This means that:

• Parliament can create or get rid of any law
• the courts cannot overrule Parliament
• no Parliament can pass laws that future Parliaments cannot change. This is because every Parliament must be as powerful as the ones before and after it.

The Human Rights Act does not limit parliamentary sovereignty. Section 19 of the HRA requires the government to make a statement on whether any laws they are proposing to parliament are compatible with HRA rights; but this is advisory only. This means that the government can say that a proposed law is not compatible with human rights but parliament could still pass this law.

This is because parliament has ultimate authority; the Human Rights Act does not change that. As noted above judicial review means a person or body asks the courts to look at a law (or decision or action) to decide if the right laws and processes have been followed. This includes whether the law, action or decision supports or breaches the rights in the Human Rights Act. If a court decides the Human Rights Act has not been followed or if a law passed by parliament does not support the rights in the HRA then the courts can issue a Declaration of Incompatibility under section 4 of the HRA. This is the court saying that it believes that a particular law is not compatible with the rights in the Human Rights Act. This does not automatically change the law. Instead, it is the responsibility of Parliament to decide whether to change the law or not. This demonstrates how parliamentary sovereignty works.  This means that these declarations are not a strike down power, but a way to flag human rights incompatibility of UK law .

What is the rule of law?

The rule of law is a principle that means that every person and body, whether public or private and including the state, are subject to the law. This means that no one is above the law. The rule of law requires that laws should be:

• publicly made
• widely communicated
• enforced equally
• consistent with human rights
• not retrospective (meaning they don’t go back and change the rules for events that have already happened and then hold people/bodies to account for those events now, according to the new rules) and
• that any disputes about the law should be decided independently

The rule of law means that people can have certainty on what the law is, access that law, and seek accountability when the rules may not have been followed. This includes accountability where the executive/government may have overstepped the mark, and courts play an important role in helping people seek justice and ensure that the rule of law is applied.

The rule of law and our Human Rights Act

Our Human Rights Act is an essential part of the rule of law in the UK, it “brings rights home”, by taking 16 of the fundamental human rights in the European Convention on Human Rights and putting them into our law here in the UK. This means that individuals can challenge the government, including local government and public authorities and services without having to go to the Court in Strasbourg, France. You can read BIHR’s explainer on the ECHR  here .

The Human Rights Act puts legal duties on the state to respect, protect and fulfil our rights. This legal duty must be met at all times, especially during times of crisis. Our Human Rights Act helps to ensure accountability so that no one, including the Government, is above the law. It is our Human Rights Act which says that the state must not treat us in an inhuman or degrading way (Art 3); that our private and family life must be respected (Art 8), our liberty (Art 5) and our right to be free from discrimination (art 14). It is important to note that whilst the rights come from the Convention, they are now applied here at home, and it is the Human Rights Act (not the Convention) which creates the legal duties for people in the UK to hold government and public bodies to account.

The courts also have an essential role due to the Human Rights Act. They must interpret laws as being compatible with the Human Rights Act and if this cannot be done, they can make a declaration of incompatibility. However, as mentioned, this declaration does not change the law. Parliament is the one who decides whether to change laws to ensure that they are compatible with the European Convention on Human Rights.

Watch our video on the Rule of Law

Related topics

Find out more about human rights law.

Find out about the Human Rights Act 1998 and how it applies across the UK.

What is universality?

Read our explainer on the principle of universality and how human rights apply to everyone.

Whats in the European Convention on Human Rights?

A section-by-section guide to the ECHR.

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Trump’s Jan. 6 Case Could Go On Even if Court Limits Use of Obstruction Law

The federal indictment of Donald Trump for plotting to overturn the 2020 election relies in part on the law that the Supreme Court weighed on Tuesday, but was built to survive without it.

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By Alan Feuer

Even though Donald J. Trump was never mentioned during the Supreme Court’s hearing on Tuesday about a federal obstruction statute used against hundreds of his supporters who stormed the Capitol on Jan. 6, 2021, the former president loomed large over the proceeding.

That is because Mr. Trump has been charged under the law in question in an indictment he is facing in Washington that accuses him of plotting to overturn the 2020 election. And the court’s eventual decision on the obstruction law could affect how his case moves forward.

It remains unclear at this point how the court will rule, but at the hearing the justices signaled that federal prosecutors may have interpreted the law too broadly and used it unfairly against many of the rioters who were on the ground on Jan. 6. But even if the court tosses out the use of the law against the Trump supporters who broke into the Capitol, it does not mean that the course of Mr. Trump’s own case will be greatly altered.

Lawyers representing hundreds of Jan. 6 defendants have been questioning the use of the obstruction statute since long before Mr. Trump was charged with it in August. The lawyers have claimed, among other things, that one of the law’s central provisions, requiring the government to offer some proof that documents were destroyed or tampered with, has nothing to do with breaking into the Capitol.

If the Supreme Court ends up agreeing with them, Mr. Trump’s own lawyers will surely seek to have the two obstruction counts he is facing stricken from his indictment.

One of those counts accuses him of conspiring with six others who are unnamed — widely thought to be a group of lawyers close to him — to disrupt the certification of the election that took place inside the Capitol during a joint session of Congress on Jan. 6. The second count accuses him of actually obstructing that proceeding.

In fact, Mr. Trump’s lawyers have already tried to have those charges thrown out. In October, they argued unsuccessfully to the trial judge in the case, Tanya S. Chutkan, that the indictment unfairly used the statute. The lawyers pointed out that the law was initially “directed at the destruction of records in accounting fraud,” but had been applied in Mr. Trump’s case “to disputing the outcome of a presidential election.”

“This stretches the statutory language beyond any plausible mooring to its text,” the lawyers wrote.

Jack Smith, the special counsel handling Mr. Trump’s case, has asserted that the two obstruction counts against the former president would survive even if the justices narrowed the law to cover only crimes that involved tampering with documents or records.

Mr. Trump triggered that provision of the law, Mr. Smith has said, by plotting to create a series of false records: slates of electors pledged to him in several key swing states that he actually lost to President Biden. Mr. Smith has accused Mr. Trump of seeking to use those fake slates to obstruct the certification proceeding by throwing it into chaos and by urging his vice president, Mike Pence, to capitalize on the confusion by blocking or delaying the formal declaration of Mr. Biden’s victory and opening a path to Mr. Trump’s being named the winner.

But even if the obstruction counts were ultimately dismissed from Mr. Trump’s indictment, it might not prove to be a fatal blow to his prosecution.

Mr. Smith has also brought against Mr. Trump two more conspiracy charges that overlap almost entirely with the accusations in the obstruction counts. The other conspiracy counts accuse Mr. Trump of committing fraud by using deceit to subvert the normal course of the election and with plotting to deprive millions of Americans of the right to have their votes properly counted.

Those counts add a layer of redundancy to the indictment, which could survive intact even without the obstruction counts. There would be one downside, from the government’s perspective, to losing the obstruction charges: each carries a hefty maximum sentence of 20 years in prison.

The fraud conspiracy Mr. Trump is facing has a maximum penalty of five years in prison and voting rights conspiracy caps out at 10 years.

Any Supreme Court ruling that found in favor of the on-the-ground Jan. 6 defendants would not automatically strip the obstruction charges from Mr. Trump’s indictment. To get rid of those counts, he and his lawyers would have to first ask Judge Chutkan to do it. Depending on the details of the decision by the justices, she might deny Mr. Trump’s request.

But if the obstruction counts were in fact stricken from the case, it could, in theory, narrow the story that Mr. Smith would like to tell the jury — if and when the case goes to trial.

Mr. Smith has indicated that he wants to show the jury videos of the violence at the Capitol and perhaps introduce witnesses who will testify that they stormed the building believing they were acting on behalf of Mr. Trump.

But that could be more difficult without the obstruction counts given that those charges arguably offer the clearest legal path to introducing evidence about the riot at the Capitol itself. If Mr. Smith wanted to introduce that evidence without the obstruction counts, he would have to base his request on the remaining conspiracy charges, which may prove more challenging.

Alan Feuer covers extremism and political violence for The Times, focusing on the criminal cases involving the Jan. 6 attack on the Capitol and against former President Donald J. Trump.  More about Alan Feuer