Separation of powers: What happens when the powers of state come into conflict?


A bit like democracy, motherhood and apple pie, everyone is in favour of the separation of powers. But how does it work in Ireland and what happens when there’s a conflict between the branches of state power? What should happen?

Though constitutional lawyers will claim that it is enshrined in the constitution, and certainly judges refer to it frequently, the design of the separation between the executive and legislative branches in Ireland is such that we can only assume the drafters of the constitution wanted a strong executive unencumbered by a legislature.  The legislature is one in name only as effectively all legislation comes from the executive. The legislature’s powers are neither separate nor significant. The independence of the judiciary is more secure, because even though the executive chooses the members of the judiciary the executive has no real way to influence judges once appointed.

The idea of a separation of powers comes from a presidential system where the legislature makes laws that the executive enacts and the judiciary enforces. All this is usually under basic laws laws that are rigid and difficult to change – a constitution – which also sets out which institution can act.  In parliamentary systems this is less pure – but thought to exist nonetheless.

Problems arise when there’s a disagreement about which branch is entitled to act in what way. Often we see the executive behaviour censured in the courts because the court says it was acted beyond its powers – ultra vires. The courts have been quick to assert what are judicial functions and what are executive or legislative ones. So the Oireachtas was upbraided for its inquiry to the killing of John Carty in Abbeylara. This decision led to the Houses of the Oireachtas abandoning inquiries, even though they are seen as an important tool of accountability in virtually every legislature in the world.

Ultimately if there is a disagreement on the separation of powers the judiciary has the job of deciding who is right. This is problematic for two reasons. One, the judiciary has shown itself to be unwilling to interfere in the relationship between the government and the Dáil to uphold the rights of the Dáil to hold the government to account (for instance O’Malley v. Ceann Comhairle).  In the recent Doherty judgement, the High Court showed itself not to understand that there is a legal separation between the government and the Dáil. Second, it seems unfair that one institution has all the power to adjudicate over disputes between it and the others. So if the executive doesn’t agree that it cannot make a certain decision because this amounts to a judicial function, to whom can it appeal – to the judiciary.

In any redesign of the constitution that may take place in the coming years, this anomaly should be dealt with. Perhaps here the president and the council of state could be the ultimate arbiter of separation of powers disputes – where the other two branches, the executive or legislature feel that the judiciary has denied one or other its rights. To work there’d have to be only very few of them, so only the government or a certain number of TDs could ask the council of state to consider a dispute. It could also give the president something more useful to do than delay rugby matches.

Share this:

via Separation of powers: What happens when the powers of state come into conflict? | politicalreform.ie.

via Separation of powers: What happens when the powers of state come into conflict? | politicalreform.ie.

Advertisements

About Old Boy

Love the past and the future but live in the present

Posted on May 12, 2013, in activism, Government, Human rights and Liberties, Ireland, politics and tagged , , , , , , , , , , . Bookmark the permalink. Leave a comment.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s

FilmBunker

Saving you from one cinematic disaster at a time.

Wonders in the Dark

Cinema, music, opera, books, television, theater

Just Reviews

Just another WordPress.com site

Mark David Welsh

Watching the strangest movies - so you don't have to...

conradbrunstrom

Things I never thunk before.

News from the Boston Becks

The life and times of Erik, Veronica and Thomas

The Silent Film Quarterly

The Only Magazine Dedicated To Silent Cinema

Leaden Circles

First a warning, musical; then the hour, irrevocable. The leaden circles dissolved in the air.

Klaus Kreimeier HOME

THE WORLD FILM HERITAGE 1895-1915

SOURCE247

Breaking News, Sports, Entertainment, Movie, TV, Tech, Gaming , Lifestyle and more Trends.

My Archives

because the internet is not forever

CineSocialUK

Up to the minute, fair, balanced, informed film reviews.

PUZZLED PAGAN PRESENTS

A Shrine to Pop Culture Obsessiveness. With Lots of Spoilers

Thrilling Days of Yesteryear

“Nostalgia isn’t what it used to be” – Peter DeVries

thedullwoodexperiment

Viewing movies in a different light

Twenty Four Frames

Notes on Film by John Greco

Suzanne's Mom's Blog

Arts, Nature, Family, Good Works, Luna & Stella Birthstone Jewelry

It Doesn't Have To Be Right...

... it just has to sound plausible

NJ Corporate Portrait Photographer Blog

The life of a corporate portrait photographer who likes to shoot just about anything.

arwenaragornstar

A French girl's musings...

Jordan and Eddie (The Movie Guys)

Australian based film fan - like Margaret and David, just a little younger

Octopus Films

A place for new perspectives on films, TV, media and entertainment.

scifist 2.0

A sci-fi movie history in reviews

The Reviewer's Corner

The Sometimes Serious Corner of the Internet for Anime, Manga, and Comic Content

Ready Steady Cut

Your favorite movie site's new favorite movie site

First Impressions

Notes on Films and Culture

1,001 Movies Reviewed Before You Die

Where I Review One of the 1,001 Movies You Should Watch Before you Die Every Day

Movies Galore of Milwaukee

Movie Galore takes a look at Silent films on up to current in development projects and gives their own opinion on what really does happen in film!

mibih.wordpress.com/

Anime - Movies - Wrestling

Gabriel Diego Valdez

Movies and how they change you.

The Horror Incorporated Project

Lurking among the corpses are the body snatchers....plotting their next venture into the graveyard....the blood in your veins will run cold, your spine tingle, as you look into the terror of death in tonight's feature....come along with me into the chamber of horrors, for an excursion through.... Horror Incorporated!

Relatos desde mi ventana

Sentimientos, emociones y reflexiones

Teri again

Finding Me

Gareth Roberts

Unorthodox Marketing & Strategy Blog

leeg schrift

Taalarmen

100 Films in a Year

12 months. 100 films. Hopefully.

Morcan Books & Films

The site for a new perspective on books and films

humhist

thoughts and thinking

Cinematic Architecture

An Inquiry on the meaning of cinematic for architecture and in architecture

IMPREINT journal

The official bulletin of the artist IMPREINT created to repost excerpts from 'En plein air'.

shadowplay

david cairns

%d bloggers like this: