Detailed Notes on the Rule of Law and Separation of Powers

The Rule of Law

  • Protects citizens from tyranny and anarchy.
  • Albert Venn Dicey (1885) stated, "Englishmen are ruled by the law, and by the law alone."
  • Principles of rule of law include:
    • Magna Carta: Foundation of individual rights against arbitrary authority.
    • Bills of Rights: Framework guaranteeing individual rights (e.g., English, US, New Zealand).
    • Writ of Habeas Corpus: Protects against unlawful detention.
    • Separation of Powers: Ensures no single branch of government has complete power.
    • Judicial Independence: The legal system operates separately from other branches.

Separation of Powers

  • A fundamental constitutional concept, traced back to Charles de Secondat Montesquieu.
  • Purpose: To avoid dominance by any one governmental branch (legislature, executive, judiciary).
  • Each branch provides checks and balances against the others.
New Zealand's System
  • New Zealand lacks a strict separation of powers:
    • Overlap of Executive and Legislature: Executive members (ruling government) control the majority in Parliament.
    • Legislative power can override judicial decisions, limiting judicial checks on executive power.
Checks and Balances
The Executive
  • Controls the legislative agenda, restricting extreme laws.
  • Administers laws and softens their impact.
  • Advises on compliance with the New Zealand Bill of Rights Act 1990.
The Legislature on the Executive
  • Scrutinizes budgets and executive actions during Question Time.
  • Regulations Review Committee ensures fairness in executive laws.
  • Ombudsman investigates public complaints, holding the executive accountable.
The Legislature on the Judiciary
  • Can overturn judicial decisions by legislating new laws.
  • Can remove judges for incapacity or misconduct.
The Judiciary on the Executive
  • Reviews executive power through judicial review and ensures lawful actions.
  • Example case: Fitzgerald v. Muldoon (1976) demonstrates judicial oversight.
The Judiciary on the Legislature
  • Judges interpret statutes to mitigate injustices.
  • Independent from the legislature, ensuring impartial judicial decisions.
  • Judges can propose legal reforms based on their rulings.
Limitations of Separation of Powers
  • Legislative delegation of law-making to the executive.
  • Judges can create law through precedent.
  • Parliament oversees its procedural rules (self-regulatory).
  • Occasional judicial roles within the executive (e.g., tribunals).
  • Executive's role in providing support and funding for judiciary.
Comparison with the United States
  • US has a distinct separation of powers and a written constitution.
  • Constitution (1787) is the supreme law and reflects the principles of the nation, distinct from British systems.
  • Emphasizes an idealistic blueprint for governance and individual rights.