Thus, Montesquieu propounded the theory and held that each organ of the state should be confined to its own sphere as there should not be overlapping of jurisdiction of the organs of the state. The theory was propounded as it was believed that if legislative and executive powers are vested in same person then there can be no liberty. The important features of Montesquieu’s separation of power are: 1) Government of law 2) Independence of Judiciary 3) Checks and
Differences between Parliamentary sovereignty and Constitutional supremacy The doctrine of parliamentary sovereignty of the United Kingdom parliament is often presented as a unique legal arrangement without parallels in comparative constitutional law. By giving unconditional power to the Westminster Parliament, it appears to rule out any comparison between the Westminster Parliament and the United States Congress or the Malaysian Constitution, whose powers are carefully limited by their respective constitutions. Parliamentary sovereignty is thus seen as a unique feature and a result of the unwritten constitution. If parliamentary sovereignty is to be a legal doctrine, it must rely on a list of powers that belong to parliament as an institution.
In The Laws' Spirit, Montesquieu portrayed the detachment of political force among a council, an official, and a legal. Montesquieu's methodology was to exhibit and safeguard a type of government which was not unnecessarily brought together in every one of its forces to a solitary ruler or comparative ruler. He construct this model with respect to the Roman's Constitution Republic and the British protected framework. Montesquieu took the perspective that the Roman Republic had forces isolated so that nobody could usurp complete force. In the British established framework, Montesquieu observed a detachment of forces among the ruler, Parliament, and the courts of law.
The way something is interpreted is how it is used in the practices of law, so indeed the way something is written is imperative. Judicial Review is never actually explicitly stated and described in the constitution. The importance of interpretation goes right along with the concept of judicial review. If you boil things down that’s all judicial review is, a concept. Now this ‘concept’ was derived from the constitution by our justices in the supreme court, but it is something that falls under the interpretation of the constitution.
The main aim of my work is to consider the principles of statutory interpretation and judicial precedent and analyse if judges had intervened with Parliament’s law making role. The modern British Parliament can trace its origins back to Anglo-Saxon government’s Witan. Later, in 1215, King John signed the Magna Carta, which stated that he should follow the advice of council (which later included representatives of the public and developed into parliament). The English Parliament started to limit the power of other institutions (i.e. the crown) over the years to a certain extent.
The judicial branch in Canada is a key element to the division of power. The judiciary branch is an uninfluenced and independent from the legislative and executive branch, the judges are appointed by the Prime Minister and their role is to interpret and apply the laws of Canada as written in the Canadian Constitution. There are two essential principals in modern democracy; the rule of law (La primauté du droit) and the separation of powers (Lampron p. 218). The rule of law is the idea that no one is above the law. This theory allows for a healthy democracy as authority must practice is powers legitimately and in accordance with written and publically adapted laws.
The idea of Parliamentary Sovereignty extensively implies that Parliament has the right to make or unmake any law, and no individual is permitted to override or put aside the law of Parliament. Under parliamentary sovereignty, a legislative body has total sovereignty, significance in comparison to all other government organizations (counting any official or legal bodies as they may exist). Besides, it suggests that the legislative body may change or nullify any former legislative acts. Parliamentary sovereignty diverges from most thoughts of legal audit, where a court may topple enactment considered unlawful. Particular examples of parliamentary sovereignty exist in the United Kingdom and New Zealand.
The United Kingdom is well recognized to have an unwritten constitution, even though, they do not exist in a single text, like other countries such as USA and Malaysia, the huge parts of the so called United Kingdom constitution is actually written down and most of it being statutes. Thus, the UK constitution is often defined as ‘partly written and wholly unmodified.’ This doctrine of parliamentary sovereignty states about the correlation between the Parliament and the courts and which one is the supreme. It has been stated above that the UK is recognized to have parliament supremacy, but to what extent the supremacy is. Dicey said that the parliament is supreme, which it gives a meaning that under the English constitution, there is no person or body is recognized by the law of England as having a right to overrule or set aside the legislation of Parliament as the parliament has the right to make or unmake any law
The maxim nemo Judex in causa sua state that no one shall be the judge of his own cause provides the rules against bias. The author will now examine the importance of judicial independence and the approaches of the English Legal System toward the concept of judicial biasness. 1.0 The Roles of Judges Judges are upholder of justice. Not only did they hear and decide cases, they also play a critical role in ensuring the executive act intra vires through judicial review. The role of judges have changed significantly especially with the passing of Human Right Act 1998 (herein with HRA 1998).
CHAPTER III SEPARATION OF POWERS: EXECUTIVE, LEGISLATIVE AND JUDICIARY SUBMITTED BY: PRASANTA KUMAR SAHU Conceptual Background of Separation of Powers The theory of separation of powers as enunciated above is nothing more than a technique of organizing the government with a view to the prevention of the abuse of power which is inevitable when it is concentrated in one individual or a group of individuals. The secret of the absolute and unlimited power exercised by the French Kings till the eve of the Revolution and by the British Kings before Glorious Revolution of 1688 lay in the union of all three powers- executive, legislative and judiciary, in their hands. Separation of power is the doctrine that political power should be divided among several bodies as a precaution against tyranny. The doctrine may be traced to ancient and medieval theories of mixed government, which argued that the processes of government should involve the different element in society such as monarchic, aristocratic, and democratic interest. Oppose to absolute sovereignty of the Crown, Parliaments, or any other body.