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Separation of Powers

Separation of powers is the division of the legislative, executive and judicial functions of government among separate and independent bodies. Such a separation, it has been argued, limits the possibility of arbitrary excesses by government, since the sanction of all three branches is required for the making, executing, and administering of laws.”          Encyclopaedia Britannica 2008 Ultimate Reference Suite

 

Derived by Enlightenment philosopher Charles Montesquieu, the separation of powers is a traditional concept of liberalism where, for the sake of limiting abuse of power, the three branches of government remain independent. In modern times the best examples are some American states where all branches have tangible power and, because of separate elections, no branch is appointed by nor can be removed by, another branch.

The term became a national talking point in 1989 when allegedly corrupt Queensland Premier Jo Bjelke-Petersen was being questioned in the Fitzgerald corruption inquiry, and on being asked to explain the doctrine of separation of powers responded by declaring he did not know what it meant.

 

A Public Appointed Judiciary

To manifest a separation of the judiciary from the clutches of both the executive and the legislature, as currently exists in Australia6, might initially leave us with a situation where judges and magistrates become a power unto themselves answerable to no one. This might not necessarily be altogether a great idea.

All power is, in Madison’s phrase, ‘of an encroaching nature.’…Judicial power is not immune against this human weakness.”    J Brennan, ex Chief Justice HCA#

 

The most fundamental tenet of democracy is that those who rule over us must also be accountable to us. Currently there are at least two countries (Japan and the United States) where the people can vote to arbitrarily remove judges, but surprisingly most democracies grant significant law making and other power to members of the judiciary who not only are not elected but also cannot be removed unless they are involved in serious misbehaviour that brings discredit to their office. In Victoria one would be hard pressed to name any judge who has been removed from the bench against his or her will.

As Sir Harry Gibbs said when he was Chief Justice of the Australian High Court:

 “… it is certainly not democratic that decisions on matters of social and economic policy should be made by unelected judges who are not accountable for their decisions except to their own consciences.”

Obviously what would be preferred is the practice, as exists in most American states, where judges who wish to have power over the citizenry, must first get their approval in an election.

As an improvement for democracy as this would be, there still may be a simpler method to attain accountability.

at the behest of the public

 

Rather than an election for every new judge and magistrate who has to be appointed and also removed where it is believed required, why not simply elect a judicial appointments board every election cycle to carry out such duties?

Popularly Elected Judicial Appointment Boards.

 

   Makeup of Board

    • Complement of an odd number: probably seven.
    • No prerequisites for applying such as qualifications, experience, or age1.
    • Members elected by block voting (each voter ticks seven names out of all those applying).
    • To minimise cost, elections run concurrent with parliamentary elections.

  Decisions of Board

    • Appoint and remove judges and magistrates at will2.
    • Decisions of Board members, while within purview of legislation, to be definitely not subject to appeal3.
    • Adjudicate on actual court cases4 where
      • A judge or magistrate is a party.5
      • A judge or magistrate is being challenged for bias.
    • Except where abstaining, every decision of a board member must go on public record together with reason.

 

       appointing and removing the judiciary

 

Notes

1. In practice probably only ex-judges would win the support of the public to be appointed anyway (apart from those with a history of controversy), but the door should always be left open to anyone who might win the confidence of the public.
2. The phrase ‘independence of the judiciary’ is often used in argument to oppose a premier or attorney-general trying to control the actions of certain members of the judiciary. The phrase historically relates to the separation of powers concept which, in turn, means that the executive, the judiciary, and the legislature are all independent of each other. ‘Independence of the judiciary’ does not mean that the judiciary are a power unto themselves and answerable to no one. In a democracy all government officials should be in one way or another, answerable to the people.
3. It would defeat the whole purpose of public accountability, if appeal court judges could quash a decision of the people’s representatives to remove a fellow judge from power.
4. It is not odd for a tribunal to have first instance jurisdiction. (not just reviewing a case but actually undertaking the case from the beginning. The British House of Lords (erstwhile highest appeal court in the UK) could also be a court of first instance.
5. It is a serious conflict of interest at present when judges rule in hearings involving their “brethren”, ie. fellow judges.
6. Any one who claims that the Australian judiciary now enjoy an independence might wish to answer the questions: who appoint them, and who has the power to remove them?

 

“Democracy means the greatest possible engagement by the people in the greatest possible range of communal tasks and public action. As people reclaim control over their own lives, they will develop an appetite and a talent for more. This rejects the prevailing pessimism about the competence of ordinary citizens; their present apathy and disaffection is a product of their current powerlessness rather than any natural infirmity.”*

# Attorney-General (NSW) v Quin  (1990) 170 CLR 1 at 42 per Brennan J quoting Frankfurter J.

* A C Hutchinson and P Monahan The Rule of Law: Ideal or Ideology (Carswell, Toronto, 1987) p.115

Judicial Constitutional Interpretation

As difficult as it may be to read a constitution and accurately understand what it means with regards to the validity and meaning of both common and legislative law, it does not help when those entrusted with this very important duty adopt differing methods to perform this. Differing approaches does not necessarily mean that all judges still arrive at the same outcome, and unfortunately in most cases differing theories lead to differing opinions. The five styles of interpretation can loosely be categorised into two schools.

Legal Traditionalists

  • Literalism,  a.k.a. textualism
    • Simply interpret according to the actual text in the constitution even if there are apparent contradictions in different clauses, or anomalies as to modern and historic meaning of words. 
  • Originalism (original intent)
    • Interpret according to best estimation of what reasonable people at the time of its adoption would think was the meaning in the context of the whole constitution.
  • Doctrinal (stare decisis, the doctrine of precedent. Latin for ‘the decision stands’.)
    • Where a case is the same, with regards to the relevant issues, as a previously decided one the ruling by the earlier court, if of the same hierarchy, must be followed, except in exceptional circumstances where it is believed to be fundamentally wrong in law.

Legal Activists

  • Structuralism
    • Finding principles that aren’t actually in the text of the constitution but declaring they exist because they are implied from an overarching structure / theme of the document. Eg. In the Australian constitution freedom of speech is held to be implied because of the various references to democratic elections; in the US constitution the right to an abortion is held as implied from the 14th Amendment where it refers to no state “ depriv[ing] any person of …liberty …without due process of law”
  • Balancing  (competing interests)
    • Using the argument that over the decades constitutional law evolves to match the times, and rather than causing the cost and trouble of arranging for the constitution to be changed by the people, the judiciary have the alleged authority to take it upon themselves to reinterpret it in a modern manner where all the concerns of parties are taken into account. Thus, there becomes more of a balance between the rich and the poor, the strong and the weak, the prominent and the marginal.   Eg. It would be rare for such a judge to rule against a poor widow with five orphans in litigation against a wealthy landlord.

 

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