Gavin R. Putland,  BE PhD

Tuesday, August 16, 2016 (Comment)

Separation of powers implied by rule of law

If the coercive power of the state (that is, the executive power) is to be kept under the rule of law, it must not be able to make up the rules to suit itself, and must not be able to adjudicate disputes in its own favour. Therefore the legislative and judicial powers must be independent of the executive power. If the legislative power is to be kept within the limits imposed by the rule of law (or by any written constitution), it must not be the judge of whether it has respected or breached those limits. Therefore the judicial power must be independent of the legislative power. Thus the rule of law implies a separation of powers.

This reasoning does not tell us to what extent the executive branch should be answerable to the legislative branch, as in a parliamentary system, or whether, in addition, ministers should be members of parliament as in the Westminster system (although it warns against any extra baggage that facilitates a domination of parliament by the executive). In other words, it permits, but does not require, the executive branch to be fully independent, as in a U.S.-style congressional system. Neither does it tell us whether investigation is an executive function, as in English-speaking countries, or a judicial function, as on the European continent, or something different from both. But it does tell us that, even in the absence of an explicit constitutional separation of powers, the rule of law provides a minimum implicit separation, which also happens to be the maximum separation permitted by the Westminster system.

It can therefore be argued in court that, just as the rule of law cannot be legally circumvented by any executive or legislative trickery, neither can the implicit separation of powers. If there is an explicit separation of powers, so much the better.

But for the same reason, if a particular violation of your rights breaches the minimum separation of powers, it also breaches the rule of law. Hence, if the constitution provides no explicit separation of powers, or provides a separation that the courts have “read down” in a manner detrimental to your case, it may be better to argue directly from the rule of law.

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