The Role of the Judiciary in Ensuring the Rule of Law

How does separation of powers under the Commonwealth Constitution Operate? What organisations and within what branches of power would be especially important for your future work in business or accounting?

Division or separation of power is a principle characteristic of contemporary constitutionalism in any common wealth country. This acts as a guarantee for the citizen and the state itself that there is a legal framework that has been put in place to prevent abuse of power and possible arbitrary action by any arm of the government by a public institution (Webb, 2013). Normally, in most common wealth countries the theory of separation of power divides arms of the government namely: The first, is the legislative arm or parliament which is responsible for formulating, promulgating, reforming and repealing the laws.  The second, is the judiciary or the courts which are tasked by the constitution to administer justice and the third is the executive or government seeks compliance (Campbell, 2004).

Undoubtedly, one of the major concerns of society is, today, corruption and its impunity; Another, the fulfillment of the equality of all before the law. From here it is not trivial to consider whether, in the constitutional context in which most citizens find themselves, the real guarantee of the separation of powers is possible  (Vile, 2014). In most jurisdictions especially in countries that do not have mature democracies, there is a lot of meddling in other arms of the government especially from the government that makes it impossible to have absolute separation of powers.

The judiciary is constitutionally conceived as the one emanating from the people and must monitor the effective enforcement of laws. In such a condition, it must be independent and immovable. However, today it is seen as the opposite: elitist, voluntarist, alien to social reality, and implacable with the weak but lax with the powerful. This is the view in most countries.

The consolidation of a judicial power that, on the one hand, when applying the laws does not interpret them according to the social needs of their time, is verified (Warner and Sullivan, 2004). And, on the other hand, it does not emanate from the people, but is exercised in the name of interests outside of social justice. In short, it is not an independent state power, but is bent to interests of all kinds, without at all identifying with the concept of egalitarian justice.

The Limits of the Executive Power and the Need for Legislative and Judicial Checks

The judiciary should be a public service whose resources were managed by a public administration – call if you want the Ministry of Justice – but its government should be in the hands of judges or jurists absolutely alien to the game of parliamentary majorities. The judiciary would have to be governed by an autonomous body, thus guaranteeing its independence, made up of peole not dependent on any major political or associative force.

A truly autonomous model of government of judges would not rush to sanction a judge, who was in criminal proceedings for having decided to imprison a “powerful” person, with close contacts with political and economic power (Ten Napel and Voermans, 2016). On the contrary, he would investigate the circumstances of this unusual affair in order to facilitate his protection. With this exemplary behavior it would avoid, from now on, interferences and disturbances in the jurisdictional performance of all the judges. In most instances when a powerful person is being prosecuted, there is always a lot of influence by either the executive or parliament to influence the outcome of the judiciary (Hage, 2016). The doctrine of separation of powers would prohibit this kind of influence.

In a broad sense, we could include the State Attorney General and the Constitutional Court in the judiciary. These are constitutional bodies with important jurisdictional functions; Bodies that -improved in the administration of justice- are undoubtedly perceived as belts of transmission of interests of other powers.

With this system of appointments, it is easy to understand that both the Constitutional Court and the Attorney General’s Office are fully impregnated with political interests in its functioning  (Stephens, 2007). In a matter of scrupulous respect for the separation of powers, it would be unthinkable that in a criminal proceeding the prosecutor would assist the defense of a member of an influential figure in the government.

It is well known by all that the legislative, executive and judicial represent the three great powers on which the State is based. But let us not be mistaken: from a purely divisive perspective, this separation exists in both totalitarian states and democratic states  (Stephens, 2007). The important thing is not the nominalism, but the competence domain of each power and the interrelations between them. This is the only way to analyze if they really operate in a true democratic space or if, on the contrary, it is a mere cataloging with a democratic appearance.

Expectations from Parliamentarians, Rulers, and Judges

The legislative power essentially has two functions that can not be waived: making laws and controlling the executive. On the other hand, the executive is responsible to govern and to the judicial to apply the laws and the norms of its development. These are your basic skills and nothing new is in this scheme.

From this consideration it is easy to understand that the legislative power and the judiciary have a superior importance to the executive, while both must exercise a common function that governs the good government of nations (Hart and Raz, 2012). The executive is essentially the power that must be controlled most because it has the most power. The executive, headed by the government, controls the most important essentialities of the Administration (education, health, justice, army, police, etc.). Its power is immense and the limits have to put the legislative. The judiciary intervenes when the individual wrongfully trespasses such limits and, of course, the government may have temptations to transfer them (in fact, sometimes many governments transfer them) and the judiciary must exercise control (Hart and Raz, 2012).

Therefore, both the legislative power and the judiciary represent limits that the executive can not – or should not – pass through. Thus, the legislature designs and establishes the legal framework in which the government must act; Warns that the provisions contained in the law are those that must be developed, usually through regulations, by the different ministerial departments. When the executive does not respect the lines set by the legislature – whether by abusing them or by breaking them – the judiciary must come into play and restore legal order.

The three powers have their origin in the people and one should ask what one expects from parliamentarians, rulers and judges. A truly democratic society demands – or must demand – that its representatives make fair laws that reach the common good and the general interest (Bell-Rehwoldt, 2005). Such a requirement means that governments carry out their activity in accordance with that common good and general interest since the councils of ministers must tend to achieve that good in accordance with the general needs of the citizens who make up the social body. For their part, judges must interpret and apply laws and regulations in such a way that the general interest expressed by the normative provisions is effective and visible to all citizens.

In short, the people must wait – if it chooses – that the three powers interact in the benefit of a whole and not only of its parts.If this is so, the separation of powers would be no more than the theory of the common good insofar as the common good is the end and the legislative, executive and judicial are the means by which the State counts to arrive at such end. This is what would happen in democratic states.

This does not always happen. In the states of totalitarian court, the power par excellence is the executive. This is the organizer and the one who enforces their mandates in any way (Bell-Rehwoldt, 2005). The executive is the one that watches for the creation of laws supervising a legislative. The judiciary stands in the executive hand of the executive. In this type of state, the legislative and judicial powers are in fact instruments of the executive, which, in a syllabic manner – and sometimes not so much – is responsible for controlling legislative assemblies and for placing like judges. Thus, there is confusion between the common good and the good of the ruler. Sometimes, these states seek in the principle of separation of powers the democratic disguise that all their arms of government are working independently  (Coalition Provisional Authority memorandum number 12, 2004).

In these type of democracies, the government allows access, especially in the international order, to organizations and groups of greater democratic character. In this way, the principle of separation of powers is used as a mere instrument of image, but without any democratic content. But there is a third type of state in which the principle of separation of powers is conceived as a laboratory of power and influence . In these States there is a parliament, a government and some judges. Citizens vote every four years and every four years approve or censure the work of the government. Well, through the elections, whether general or local, the parliamentarians are elected, they elect the president of government and the latter appoints his ministers (Hage, 2016). These States have judges who are members of the judiciary, through an anachronistic system of access, but the judges of the highest judicial bodies are the fruit of political consensus; That is, influenced by politics. In this type of state, legislative, executive and judicial power converge in the political power of majorities in such a way that the political majority, leaving the polls, imposes its power (parliamentary, government and judicial).

In this type of states there is a fourth occult and opaque power that is financial. This fourth power does not exist as such in totalitarian states, since financial power, in this type of state, is embedded directly in the executive  (Coalition Provisional Authority memorandum number 12, 2004). That is to say, there is a symbiosis between executive power and financial power. In many states that call themselves democratic, this economic power supports the political majority in the confidence that their provision will have a financial consideration, which translates into huge profits at the expense of the common good (cram101 textbook reviews., 2014). Usually this economic power is nourished by oligarchs and high bourgeois who do not conceive themselves as members of the social body, but rather as directors of the future of all as if it were an orchestra.

If the classical powers have to converge on the good Common and in the general interest of all, it is observed that economic power distorts this convergence for the sake of the particular good of a few in detracting from the general interest of many others. Therefore, the principle of separation of powers is altered in the sense that the three powers are at the service of individual interest  (Domhoff, 2003). The conclusion can not be other than that this third type of state is dangerously close to the states of totalitarian court. In other words, this state proudly presumes to respect the separation of powers and that everything works as it should  (Gordillo and Flogaitis, 2003).

It is important to note that the balance to power is given by counter-power. A constructive, enriching and, above all, peaceful countervailing power. This counter power can manifest itself in many different ways but the most important is associative. In this field, social movements play a very important role. It is these movements that turn a closed society into an open society, those that erect society at the apex of the common good and those who make the real control of the powers, especially of the legislative and executive  (Domhoff, 2003).

For my future work in business, all the branches of power are important, but the most important of this branches is the judiciary. An independent judiciary is important because it gives one the confidence to know that any breach of contract and trust from my clients or any other person that we are doing business with will get justice in court and my business will not be affected by a judiciary that can be easily compromised.

References

Bell-Rehwoldt, S. (2005). Law. Detroit: Lucent Books.

Campbell, T. (2004). Separation of powers in practice. Stanford, Calif.: Stanford University Press.

Coalition Provisional Authority memorandum number 12. (2004). [Baghdad, Iraq?]: [Coalition Provisional Authority].

Domhoff, G. (2003). Changing the powers that be. Lanham, Md.: Rowman and Littlefield Publishers.

Gordillo, A. and Flogaitis, S. (2003). An introduction to law. London: Esperia Publications.

Hage, J. (2016). Introduction to law. [Place of publication not identified]: Springer International Pu.

Halberstam, D. (2012). Powers That Be. Open Road Media.

Hardt, M. and Negri, A. (2011). Commonwealth. Cambridge (Mass.): Belknap Press of Harvard University Press.

Hart, H. and Raz, J. (2012). Concept of Law. Oxford: Oxford University Press.

Stephens, G. (2007). Locke, Jefferson, and the Justices — Foundations and Failures of the USG. New York: Algora Pub.

Ten Napel, H. and Voermans, W. (2016). The Powers That Be. Leiden: Leiden University Press.

Ten Napel, H. and Voermans, W. (2016). The Powers That Be. Leiden: Leiden University Press.

Vile, M. (2014). Constitutionalism and the Separation of Powers. Indianapolis: Liberty Fund Inc.

Warner, M. and Sullivan, R. (2004). Putting partnerships to work. Sheffield [England]: Greenleaf Pub.

Webb, S. (2013). Constitution for the socialist commonwealth of great britain. [Place of publication not identified]: Theclassics U