The Rule of law, separation of powers, and judicial independence: A brief introduction
The Rule of Law
The doctrine of the Rule of Law, in its simplest form, means that we are all subject to clearly defined laws and legal principles (rather than the person whims of powerful people) and that those laws apply equally to all people, all the time.
The Rule of Law is made up of several principles and legal traditions that can be hard to define concisely. These include:
- The Constitution is the supreme law of the land and all authority derives from it.
- The powers exercised by parliamentarians and government officials are based on legal authority, and there should be safeguards against the abuse of wide discretionary powers. This is a safeguard against arbitrary (unrestrained) state power.
- There must be a transparent legal system, which includes a clear set of laws that are freely and easily accessible to all. We all must be able to find out the laws we are subject to.
- The law should have checks and balances on the use of power, including an independent judiciary.
- All are equal before the law—rich or poor, state or citizen. Unfair discrimination should not be allowed by the law.
- Fundamental individual rights and minimum standards of justice should be protected, including the essential procedural requirements of due process and natural justice, for example, a person should not be deprived of his or her liberty, status or other substantial interest without the opportunity of a fair hearing before an impartial court or tribunal. This includes access to justice, the presumption of innocence and various rights of accused and victims.
The Rule of Law provides checks and balances for all three branches of government including the executive (the Government), legislature (Parliament), and the judiciary.
The doctrine of the Rule of Law plays a significant role in preserving, protecting, and defending the rights of individuals and organisations.
Separation of powers
Our countries in the Pacific are modelled on the British system (the Westminster model) and are based on a concept called separation of powers. This means the institutions of government are divided into three distinct and separate branches, each having its own separate functions and not intervening upon the functions of the other branches.
The three branches are:
- Parliament (also called the legislature)
- the executive
- the judiciary.
The system has checks and balances in place so that no individual group within the government can become too powerful. It prevents the improper use of power.
The Constitution gives effect to the concept of separation of powers by setting out how Parliament, the executive and the judiciary have their own roles and how they also work together to make, pass, apply and enforce the law.
Laws are written by the executive and passed through Parliament. It is the role of courts, tribunals and judicial officers to interpret these laws and ensure that people, groups and organisations comply with them.
Parliament is made up of elected members, also called Members of Parliament or MPs. They make laws by examining and debating bills (proposed laws, written by the executive).
The executive is made up of Government ministers, the Queen’s representative (where relevant) and government departments. They are accountable to Parliament through the select committee process in most Pacific countries. The executive:
- develops policy (working out an idea for a new law (a bill) or turning a new law into action once it has become law)
- drafts bills (writing down a proposal for a new law after the policy has been developed and submitting it to Parliament)
- publishes laws (formally announcing new laws and making them publicly available), and
- administers all legislation (making sure that everything that is written down in a statute or Act gets done. This might mean designing new services for citizens and putting processes into place to deliver these. The Minister of Justice, for instance, administers all legislation relating to courts – it is their responsibility that all processes involved in running the courts comply with relevant law).
The judiciary is made up of judges and judicial officers. How judges and judicial officers are appointed is set out in the Constitution and statute.
The judiciary keeps the balance between the power of the government and the rights and responsibilities of citizens and organisations. They are independent in their decision making and cannot be influenced by Parliament (the legislature) or the executive.
Judges interpret and apply the law through the court system by hearing and deciding cases. If they are hearing a case where the statute is unclear, they look at earlier court decisions on similar cases. This is called case law or common law.
Judicial independence is the constitutional requirement that the judiciary is independent from the other branches of government. There are two parts to this:
- impartiality (covered in the Conflict of interest video and the second video on the judicial oath), and
- freedom from external (political and financial pressures) interference. The courts should be free to enforce the law and resolve disputes without regard to the power and preferences of the state or anyone else.
An independent judiciary is fundamental the rule of law, and a key element of the separation of powers concept. It bears the primary responsibility in maintaining:
- the balance of power between the branches of government
- the integrity of the courts, and
- public confidence in justice.
Judicial independence is protected by:
- the Constitution
- the doctrine of the Rule of Law
- the process of appointment and removal of judicial officers
- the security of salaries, and adequate state resourcing and support
- the immunity of judges and justices from civil actions
- high standards of judicial conduct and giving clear reasons for decisions, based on the law and evidence.
A brief introduction to these key legal principles