Wednesday, July 30, 2008

The ‘separation of powers’ concept is not a sacred cow

The ‘separation of powers’ concept is not a sacred cow
Kaieteur News. July 30, 2008 | Letter by Prem Misir

Recently, there have been a couple of letters on the ‘separation of powers’ doctine, and I now want to reiterate some positions I previously addressed.

The media and opposition elements became frantic when President Bharrat Jagdeo recently expressed concerns over the Court’s ruling on how the scrutineering funds should be distributed.

And the implication is explicit, too, in that President Jagdeo should not make observations on judicial matters. Such observations constituted a violation of the notion of ‘separation of powers’, according to this misguided group of people.

And so we saw over the past week several communications pouring in, suggesting that the concept of the ‘separation of powers’ is a sacred cow; meaning that the concept must not be infringed; and that the judiciary also is some kind of holy animal.

Indeed, this accepted wisdom is akin to 19th century thinking. But, first, what is this ‘separation of powers’?
John Locke in his Civil Government (1690), second treatise, introduced only legislative and executive powers; and Montesquieu in his L’Esprit des Lois in 1748 included the judicial powers.

And Montesquieu believed that a country’s freedom is predicated on the separation of the three types of power - legislative, executive, and judicial.

Legislative power refers to the power to enact laws and parliament performs this function. Executive power denotes the power to implement laws, and government performs this function.

Judicial power alludes to the power to interpret laws in accordance with the constitution, and the high court performs this function. The U.S. was the first to initiate the concept of ‘separation of powers’ into its written Constitution.

But there is no explicit provision in its Constitution, indicating that there should be three separate branches of the Federal Government, according to Professor Doug Linder of the University of Missouri-Kansas City Law School.

However, James Madison did insert an amendment in his Bill of Rights’ proposal to make these powers explicit; but Congress rejected the proposal, intimating that the Constitution already carried an adequate amount of ‘separation of powers’, and possibly created a window of opportunity for appropriate encroachment of one type of power upon the other.

And so for pragmatic reasons, the U.S. exemplifies considerable executive and congressional infringements upon the ‘separation of powers’.

Picture the U.S. where there is the historically ‘strong president’ view: The U.S. President may do anything not explicitly prohibited by the Constitution; the Youngstown Sheet & Tube Co v. Sawyer (1952) and the Dames and More v. Regan (1981) cases amplify this ‘strong president’ view.

The Youngstown Sheet & Tube Co v. Sawyer (1952) case happened during the Korean War when there was industrial unrest at the U.S. steel mills; President Harry Truman then took control of the mills.

And seven justices of the court stipulated that the powers of the President are not explicitly prohibited under article II of the Constitution.

The Dames and More vs. Regan (1981) case addressed the constitutionality of President Jimmy Carter’s executive orders addressing claims by Americans against Iran to be adjudicated by a specially-created tribunal; in this case, the Executive branch proposed the establishment of a tribunal that would ordinarily be set up by the judiciary. However, the Court upheld President Carter’s Executive encroachment on the judiciary.

More recently, we saw other unique encroachments on the ‘separation of powers’ when President George Bush commented on an imminent Supreme Court case in 2006, Hamdan vs. Rumsfeld; the case that was intended to determine whether military commissions would adjudicate on the Guantanamo Bay detainees.

And again, another executive infringement on the ‘separation of powers’ happened when President Bush admonished the courts; indicating that they gave Americans only one option, and that is to have an amendment banning same-sex marriages.

Periodically, these Executive infringements or encroachments become a prerequisite for making necessary adjustments to ever-present changes; and so we need to perceive ‘separation of powers’ pragmatically, and not as ‘black’ and ‘white’, but as a continuum.

Recall that even the Congress of James Madison’s days thought it was inappropriate to make the notion more explicit to the point of redundancy; the Congress appropriately left a window of opportunity for encroachments that would facilitate better adjustments to changes.

A democracy enables those adjudicating in the judiciary to carry the necessary and sufficient professionalism, in order to present just and fundamentally fair rulings; and Guyana is a democracy.

Clearly, then, under this type of political system, those adjudicating in the judiciary need not bother about comments on their rulings, regardless of the quarters from which they emerge; unless, of course, such rulings really are the ‘pits’.

And so President Jagdeo is well fortified, both historically and contemporaneously, in expressing concerns about the Court’s ruling on the ‘scrutineering fund’.
Prem Misir

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