The Separation of Powers

recedite

The judgement against the government re the Donegal bye election has pushed this issue to the fore, and it has become apparent that few politicians and even fewer citizens understand what "the separation of powers" actually means.

IMO it exists to allow the judiciary to impartially interfere with the government, or vice versa. Whereas many people seem to think the opposite; that it exists to prevent interference.

Last year we had a situation where the govt. declined to apply the PS levy/pay cuts to the judiciary, citing the separation of powers as the reason. They seemed to think the principle is one of "we won't bother you, and you don't bother us". I presume they now feel that the judiciary have stabbed them in the back.
I could be wrong on this, but even though this separation of powers is considered a basis for republics everywhere, I don't think it is defined in any laws or constitutions. It is more of an overriding and guiding philosophy.

It's ironic that another Donegal man, William Speaker Conolly gives us a prime example of how corruption can flourish when the people who are in government also implement the law. This man, who bought the town of Celbridge and built Castletown house, was reputed to be the richest man in Ireland when he died. He made his money on dodgy land deals which involved confiscating land from political opponents, and in at least one case he engaged in body snatching and impersonation. He was the MP for Donegal, the Speaker at the House of Commons, one of the three Lord Justices of the time, and also at one stage he was the Revenue Commissioner. Basically, he was untouchable.
http://www.castletownhouse.ie/About/TheConollyFamilyandCastletown/

Speaker Conolly reminds us why we are privileged to live in a Republic today, and why we should never let the cute hoors take it away from us.

Saadyst

recedite wrote: »

The judgement against the government re the Donegal bye election has pushed this issue to the fore, and it has become apparent that few politicians and even fewer citizens understand what "the separation of powers" actually means.

IMO it exists to allow the judiciary to impartially interfere with the government, or vice versa. Whereas many people seem to think the opposite; that it exists to prevent interference.

Last year we had a situation where the govt. declined to apply the PS levy/pay cuts to the judiciary, citing the separation of powers as the reason. They seemed to think the principle is one of "we won't bother you, and you don't bother us". I presume they now feel that the judiciary have stabbed them in the back.
I could be wrong on this, but even though this separation of powers is considered a basis for republics everywhere, I don't think it is defined in any laws or constitutions. It is more of an overriding and guiding philosophy.

It's ironic that another Donegal man, William Speaker Conolly gives us a prime example of how corruption can flourish when the people who are in government also implement the law. This man, who bought the town of Celbridge and built Castletown house, was reputed to be the richest man in Ireland when he died. He made his money on dodgy land deals which involved confiscating land from political opponents, and in at least one case he engaged in body snatching and impersonation. He was the MP for Donegal, the Speaker at the House of Commons, one of the three Lord Justices of the time, and also at one stage he was the Revenue Commissioner. Basically, he was untouchable.
http://www.castletownhouse.ie/About/TheConollyFamilyandCastletown/

Speaker Conolly reminds us why we are privileged to live in a Republic today, and why we should never let the cute hoors take it away from us.

I think when the government didn't apply the cuts to the judiciary, it did make sense. Because essentially then they could retaliate through pay if the courts were to take a position against them on a matter.


Found an article: http://www.irishtimes.com/newspaper/opinion/2009/1215/1224260710718.html

ARTICLE 36 of the Constitution enables the Oireachtas to regulate “the remuneration, age of retirement and pensions” of the judiciary. However, to preserve judicial independence from influence by government, Article 35.5 states that “the remuneration of a judge shall not be reduced during his continuance in office"

More in that.

But in principle I believe in separation of powers. Legislature, executive, judiciary, all with checks and balances.

I don't think it's working particularly well in Ireland tho.

recedite

Saadyst wrote: »

I think when the government didn't apply the cuts to the judiciary, it did make sense. Because essentially then they could retaliate through pay if the courts were to take a position against them on a matter.


Found an article: http://www.irishtimes.com/newspaper/opinion/2009/1215/1224260710718.html

That could well have been the real reason for sparing the judges. After all, in a deflationary environment, sparing one group over others amounts to a pay rise in real terms, which could then be interpreted as a "sweetener".

It was already decided by a Chief Justice (as per your Irish Times link) that “to require a judge to pay taxes on his income on the same basis as other citizens and thus to contribute to the expenses of government cannot be said to be an attack upon his independence"; so there is no impediment to any levy or cuts that are being applied generally across the public service.

Sir Oxman

I am in no way legally minded at all but from what I have read and heard, the case was judged in favour of Pearse Doherty, a constituent of DSW who felt his constitutional rights to representation in the lgislature were being denied by the contsant denying of the holding of a bye-election to fill the Dail vacancy over an unreasonable amount of time.

I haven't read anything from the judgment which crossed SoP line.

recedite

Whenever Brian Cowen is questioned on the other outstanding by elections, we can expect to hear him keep parroting the phrase "separation of powers, separation of powers" despite him having no clue what it means.
The one thing he does know is that by obfuscating, delaying, and frustrating democracy, he can stay in power until the new year at least. Perhaps that will get him some extra pension entitlements?

hallelujajordan

recedite wrote: »

It was already decided by a Chief Justice (as per your Irish Times link) that “to require a judge to pay taxes on his income on the same basis as other citizens and thus to contribute to the expenses of government cannot be said to be an attack upon his independence"; so there is no impediment to any levy or cuts that are being applied generally across the public service.

How can this not be an impediment to applying a pay cut to a sitting judge ? ? :

Bunreacht na hEireann wrote:

Article 35

5. The remuneration of a judge shall not be reduced during his continuance in office.

Wolfe Tone

Basically this boils down to the courts not being allowed to tell TDs how to vote. So the court cant say have this election next week as that would be telling TDs to vote yes in a Dail motion to move the writ and have the election next week.

Also, the court cannot issue a declaration if it cannot back it up with an enforceable order. So the courts have said that it is unreasonable, yet they cannot order the govt to hold the election.

I think this will be overturned in the SC.

Wolfe Tone

For Gods sake, you cant dock Judges wages or else that could be used as a political weapon to influence rulings.

recedite

If you dock judge's wages individually or collectively, that is a political weapon and cannot be tolerated.
If you apply the same levy/tax/cut to them as the rest of the PS, then that is not an attack on their independence.
I know if you read that excerpt from the constitution and take it literally at face value, it looks like their pay cannot be reduced, ever.
But judges are used to seeing implied rights and responsibilities in the constitution. I really don't think too many of them would fight it.

recedite

MUSSOLINI wrote: »

Also, the court cannot issue a declaration if it cannot back it up with an enforceable order.

Why not?
Lets take this whole thing to its logical conclusion, hypothetically speaking.
Suppose the independent TD's jump ship, and leave the govt. in a minority. The Taoiseach is then expected to go to the President asking for a dissolution of the Dail, just like they are "expected" to call a by-election within a reasonable time. Suppose they decide to stay on for a while instead, because of the grave economic situation. They might say "a general election would be disruptive at this important time".
Then the judiciary would declare the "government" illegal, but would have no way of "enforcing" any "order". Technically the Gardai and army are under control of their ministers of justice and defence, but hopefully those forces would see that the govt. had no legitimacy, and following the cue from the judiciary, they would assist the citizens to overthrow the corrupt regime. That's how the separation of powers works.

hallelujajordan

recedite wrote: »

Why not?
Lets take this whole thing to its logical conclusion, hypothetically speaking.
Suppose the independent TD's jump ship, and leave the govt. in a minority. The Taoiseach is then expected to go to the President asking for a dissolution of the Dail, just like they are "expected" to call a by-election within a reasonable time. Suppose they decide to stay on for a while instead, because of the grave economic situation. They might say "a general election would be disruptive at this important time".
Then the judiciary would declare the "government" illegal, but would have no way of "enforcing" any "order". Technically the Gardai and army are under control of their ministers of justice and defence, but hopefully those forces would see that the govt. had no legitimacy, and following the cue from the judiciary, they would assist the citizens to overthrow the corrupt regime. That's how the separation of powers works.

Thats absolute nonsense . . We have had minority governments in the past and may do in the future. In such a situation the opposition have control because they can table a vote of no confidence; the government would loose and would then have to resign. The courts would never get involved. .

Wolfe Tone

recedite wrote: »

Why not?
Lets take this whole thing to its logical conclusion, hypothetically speaking.
Suppose the independent TD's jump ship, and leave the govt. in a minority. The Taoiseach is then expected to go to the President asking for a dissolution of the Dail, just like they are "expected" to call a by-election within a reasonable time. Suppose they decide to stay on for a while instead, because of the grave economic situation. They might say "a general election would be disruptive at this important time".
Then the judiciary would declare the "government" illegal, but would have no way of "enforcing" any "order". Technically the Gardai and army are under control of their ministers of justice and defence, but hopefully those forces would see that the govt. had no legitimacy, and following the cue from the judiciary, they would assist the citizens to overthrow the corrupt regime. That's how the separation of powers works.

In that case I imagine the majority would simply all nominate a new Taoiseach who would then ask the president to dissolve the Dail. Or a motion of no confidence.
Interestingly the Dail can extend its life by 2 years bumping its term up to 7 years, perfectly legally..... just the extra time needed to see out the 4 year plan. All it needs to do is pass a piece of legislation. This would be a perfectly legal act and would not violate the constitution.

Article 16.5. The same Dáil Éireann shall not continue for a longer period than seven years from the date of its first meeting a shorter period may be fixed by law.

A period of 5 years has been fxed by law.... that is the Dail voted for it etc.... they can repeal or amend that to bring it up to seven.


And as for not being able to issue a decleration if you cant back it up, this was set down in Dudley v An Taoiseach back in 1994.(a similar case over bye elections, however the govt collapsed soon after so it was promptly forgotten about)

declaratory relief as sought by way of judicial review is not obtainable as against Dáil Éireann because such relief should only be granted where it could be followed up either in the same proceedings or in some other proceedings by an enforceable order. No enforceable order can be made by the courts as against Dáil Éireann as such. Dáil Éireann can only give the direction if the majority of the members vote for the motion, but the courts cannot mandamus the body of members of the Dáil as such to vote in a particular way on a particular motion.

However Justice Geoghegan went on to say that you may be able to get a declaration against the government, rather than Dail Eireann, as you may be able to issue an order there.... Basically he told the plaintiff to go away and start a case against the govt rather than the Dail, but as I said the govt collapsed soon after so he didn't bother) however I dont see how that could work, because you are telling the members of government to vote a particular way, or not vote at all. Which is in breach of the separation of powers.


Its all a bit of a muddle really, hence I support the appeal, and I think the govt will win it.



Just to address people going on about the govt having to move the writ in a resonable time frame.... no where does it say that.

Section 39(2) of the Electoral Act 1992 which was enacted pursuant to and in accordance with, inter alia, Article 16.7 of the Constitution and provides as follows: "where a vacancy occurs in the membership of the Dáil by a person ceasing to be a member otherwise than in consequence of a dissolution, the Chairman of the Dáil (or, where he is unable through illness absence or other cause to fulfil his duties or where there is a vacancy in the Office of Chairman, the Deputy Chairman of the Dáil) shall, as soon as he is directed by the Dáil so to do, direct the Clerk of the Dáil to issue a writ to the returning officer for the constituency in the representation of which the vacancy has occurred directing the returning officer to cause an election to be held of a member of the Dáil to fill the vacancy mentioned in the writ.”

Thats the exact wording. Do we have a case here of the courts saying that this legislation is incorrect/unconstitutional and not merely striking it down, making up their own legislation with regards to deciding how long a "reasonable time frame" is? I dont think it is too far off that.

recedite

hallelujajordan wrote: »

We have had minority governments in the past and may do in the future. In such a situation the opposition have control because they can table a vote of no confidence; the government would loose and would then have to resign. The courts would never get involved. .

Yes, but in this hypothetical example we are talking about a government which has decided to brazen it out.

MUSSOLINI wrote: »

Do we have a case here of the courts saying that this legislation is incorrect/unconstitutional and not merely striking it down, making up their own legislation with regards to deciding how long a "reasonable time frame" is? I dont think it is too far off that.

They haven't struck anything down, but they have highlighted the fact that the legislation is inadequate. And this case has set a new precedent; a delay of 17 months is now deemed unconstitutional.
The obvious solution now is for the Daíl to amend the electoral act to impose a 90 day limit for holding by elections. That would avert any conflict and restore the separation of powers. A referendum should also be held with the next general election inserting the 90 day limit into the constitution recommended in the 1996 Constitutional Review Group. The government has been remiss in not attending to these matters before now.

Then there is the Mc Kenna judgement;Mc Kenna v An Taoiseach (No.2) [1995]

Justice Hamilton; "1. The courts have no power, either express or implied, to
supervise or interfere with the exercise by the Government of its
executive functions provided that it acts within the restraints
imposed by the Constitution on the exercise of such powers.

2. If, however, the Government acts otherwise than in accordance
with the provisions of the Constitution and in clear disregard
thereof, the courts are not only entitled but obliged to intervene.

3. The courts are only entitled to intervene if the circumstances
are such as to amount to a clear disregard by the Government of the powers and duties conferred on it by the Constitution".

As for a court declaration without the possibility of enforcement; Geoghegan said "such relief should only be granted where it could be followed up.." because obviously a court would look foolish if a declaration was ignored, but that does not mean a declaration cannot be made. In exceptional circumstances, where the Dail violates the constitution, it is the duty of the court to voice dissent, so that the people can take action themselves.

But before we get to that stage, the courts will issue a warning to the government, and Justice Kearns cites an earlier case;

District Judge McMenamin v Ireland 1996: I do not propose to make a declaration giving effect to my views because, having regard to the respect which the separate organs of government, the legislature, the government and the judiciary have traditionally shown to each other, I am satisfied that once

the Government is made aware of the situation with regard to this constitutional injustice, it will take the necessary steps to have the matter remedied in accordance with the law and in accordance
with its constitutional obligation.

But instead of attending to the necessary legislation, the government has decided to appeal the ruling. In the unlikely event that they succeed in overturning this, Doherty has recourse to the European Court of Human Rights, which trumps our constitution (since Maastricht). As Kearns pointed out;

Article 3 of Protocol 1 of the Convention requires that elections be held “at reasonable intervals”......
I am of the view therefore that s. 2 of the Act of 2003 does require that s. 39(2)
of the Electoral Act, 1992 be “interpreted” and “applied” (the latter requirement
being perhaps particularly relevant in this context) by reference to Article 3 of Protocol I to the Convention as requiring that a by-election be held within a reasonable time of the vacancy arising.

Its worth noting the reasons the government gave for subverting democracy and denying people's representation over the last 17 months;

John Curran; "I referred to the severe and economical fiscal challenges facing the country and the Government and explained that until
Christmas the Government would be working.... blah blah..... I explained the view of the Government that to divert attention and energy to holding by-elections while those problems are being addressed could be damaging to the economy."

Whereas in reality the government just wants to maintain its majority. Geoghegan differentiated between the Government and the Dail in the Dudley case. But in this Doherty case the Dail cannot move the writs because it has not got the numbers, and the reason it hasn't got the numbers is because the seats are vacant. So its a cycle of corruption which can only be broken by some external force; hence the importance of the separation of powers.
And its worth noting that pointless body, the Seanad, has had absolutely nothing to say on the matter.

hallelujajordan

recedite wrote: »

Yes, but in this hypothetical example we are talking about a government which has decided to brazen it out.

How can they make such a decision .. The opposition will table and win a motion of no confidence straight away, after which the taoiseach and government have to resign . .

recedite

hallelujajordan wrote: »

How can they make such a decision .. The opposition will table and win a motion of no confidence straight away, after which the taoiseach and government have to resign . .

Its only hypothetical; either they make some of the opposition TD's disappear before the no confidence vote, or they block the vote from taking place, or they allow it, lose, and then ignore the constitutional requirement to stand down, saying that at this critical time for the economy the disruption would be detrimental to blah blah......

Rabble Rabble

MUSSOLINI wrote: »

For Gods sake, you cant dock Judges wages or else that could be used as a political weapon to influence rulings.

Surely they can be taxed at the same rate as other people, however?

Rabble Rabble

recedite wrote: »

Its only hypothetical; either they make some of the opposition TD's disappear before the no confidence vote, or they block the vote from taking place, or they allow it, lose, and then ignore the constitutional requirement to stand down, saying that at this critical time for the economy the disruption would be detrimental to blah blah......

That would be a dictatorship. In that case mild mannered Rabble Rabble would himself take to the streets, even if it meant siding with the SWP. The Dail elects the government, with a loss of confidence the Government has to go to the President, and dissolve- or the President will do it. It has two weeks until the election as far as I know. After that a cabinet is not a cabinet, just a group of people squatting in a room where the cabinet should sit. This is quite a bit different from the ( admittedly ridiculous) bye- election shenanigans.

hallelujajordan

Rabble Rabble wrote: »

That would be a dictatorship. In that case mild mannered Rabble Rabble would himself take to the streets, even if it meant siding with the SWP. The Dail elects the government, with a loss of confidence the Government has to go to the President, and dissolve- or the President will do it. It has two weeks until the election as far as I know. After that a cabinet is not a cabinet, just a group of people squatting in a room where the cabinet should sit. This is quite a bit different from the ( admittedly ridiculous) bye- election shenanigans.

Yes, I'm not sure where it is explicitly stated in the constitution but I think we can be confident that the separation of powers does not extend to supporting the establishment of a dictatorship

Rabble Rabble

I tis in the constitution as far as I know, a loss of confidence means the Dail has to ask the President to accept the Dail's dissolution.

However, the President does not have to accept the Dail's resignation ( the Dail resigns as well as the Government of course) and can say, feck off and work it out. Unlikely those powers would ever be used, but they can be used it there were too many votes of no confidence within a year, and the President says - just go work it out amongst yourself.

kaiser sauze

I truly hope that the government's appeal to The Supreme Court fails.

The High Court used The Constitution as the basis for its ruling, and that should be the end of it.

As I have always understood it, the separation of powers doctrine is that any one arm of power can check the other, in order to ensure no one arm goes rogue. This is essentially an implied belief that one arm CAN interfere with another, not that those arms should be completely, and totally, independent of each other with no interaction at any stage.

I think that one arm delaying a bye-election for 18 months, to maintain their grip on power, is a very justifiable interference by our judiciary in our executive.

hallelujajordan

kaiser sauze wrote: »

I truly hope that the government's appeal to The Supreme Court fails.

The High Court used The Constitution as the basis for its ruling, and that should be the end of it.
.

That's just ridiculous. This weeks ruling was the result of one judges interpretation of the constitution. The constitution itself gives ultimate authority to the supreme court in recognition of the fact that 'one man' can sometimes get it wrong. It is important for future cases that the SC get to judge on this. Afterwards, the law should be changed by referendum if needed to apply a fixed time for holding bye elections.

Het-Field

hallelujajordan wrote: »

That's just ridiculous. This weeks ruling was the result of one judges interpretation of the constitution. The constitution itself gives ultimate authority to the supreme court in recognition of the fact that 'one man' can sometimes get it wrong. It is important for future cases that the SC get to judge on this. Afterwards, the law should be changed by referendum if needed to apply a fixed time for holding bye elections.

It was the Dudley case which laid down the concept of the "reasonable period". The constitution says nothing about "reasonable periods". It is the law which states it. Thus, I would say it was less constitutional and more legally based.

recedite

hallelujajordan wrote: »

Yes, I'm not sure where it is explicitly stated in the constitution but I think we can be confident that the separation of powers does not extend to supporting the establishment of a dictatorship

Eh, that would be an oligarchy, not a dictatorship. And the separation of powers is serving to prevent it in the example given.

You seem to think that there is nothing wrong with a government holding on to power by preventing by elections which they believe will be won by the opposition. On the other hand you can't even envisage a situation where the government makes up an excuse to postpone a general election. But the difference is only one of degree. Its all the one slippery slope.
Many countries have slipped in and out of democracy over the years; all it takes is for a strong leader to emerge at a time of crisis. I'm not saying we are near that now, but you have to foresee the possibility and mechanism of something happening before you can take steps to prevent it. And once we set foot on that slippery slope, some independent authority (the court system) must be there to shout stop.

Het-Field wrote: »

It was the Dudley case which laid down the concept of the "reasonable period". The constitution says nothing about "reasonable periods". It is the law which states it. Thus, I would say it was less constitutional and more legally based.

But the constitution sets out this state as a democracy. Therefore it is implicit that proper representation must be maintained.

kaiser sauze

hallelujajordan wrote: »

That's just ridiculous. This weeks ruling was the result of one judges interpretation of the constitution. The constitution itself gives ultimate authority to the supreme court in recognition of the fact that 'one man' can sometimes get it wrong. It is important for future cases that the SC get to judge on this. Afterwards, the law should be changed by referendum if needed to apply a fixed time for holding bye elections.

At no point did I say that the government had no right to appeal to The Supreme Court.

The appeal should, and must, fail.