The Rule of Law in The Design of a Constitution
The rule of law is a legal maxim that posits that no individual is above the constitution, be it an ordinary citizen or a leader. The law is supreme over individual will or the rule of power. In essence, the rule of law is enforced to limit subjective use of power by leaders. On the other hand, the doctrine of separation of powers deals with division of responsibilities among the three arms of the government, the legislature, the executive, and the judiciary. The objective is to ensure the autonomy of the three arms against interference from each other. However, in accordance with the law, the three arms are interdependent on each other as all three are needed for formulation, execution and administration of laws (Rosenfeld, 1993). Each branch maintains checks and balances on the other branches hence limiting abuse of power. The concepts of the rule of law and separation of powers in the constitution work in tandem as they are dependent on each other for successful implementation.
Rule of Law
As aforementioned, the concept of rule of law places the law above any individual interest. The objective of rule of law is to ensure that authority by any governmental apparatus is legitimately exercised in accordance with the due process which comprises established procedures as prescribed in the written and publicly disclosed laws. The intended outcome of this principle is maintenance of order by safeguarding against arbitrary use of power through mob rule or an authoritarian leader (Rosenfeld, 1993). In essence, it safeguards against anarchy or dictatorial rule.
The success and effectiveness of separation of powers is highly reliant on the rule of law. The framework of the constitution of countries such as the United Kingdom defines the separation of powers by outlining the functions of the three arms of the government. The legislative arm is charged with the power to formulate, amend as well as repeal the rules of law. The executive arm has the power to ensure execution and enforcement of the law. The judicial arm has the power to interpret the law, and in the case of a dispute, the judiciary has the final word on what the law is and how it is to be applied. On the other hand, in accordance with the constitution of the United States, the concept of separation of powers may have three different meanings. Firstly, it may mean that the same person cannot be part of more than one of the three arms of the government, for instance a minister cannot sit in the parliament. Secondly, it may also be interpreted to mean that one organ of the government cannot interfere or attempt to control another organ, for instance the executive cannot interfere with judicial decisions (Bruff, 2006). Lastly, separation of powers may mean that one organ of government cannot exercise the duties and responsibilities of another.
According to rule of law, exercise of power by the executive should be in accordance with the laws formulated by the legislature. All government officials therefore are to act within the boundaries set by the law. Acting beyond the confines of the law is tantamount to abuse of office (Rosenfeld, 1993). It is important to note that effective separation of powers is only possible where the courts have the jurisdiction and autonomy to enforce the legal bounds beyond which executive power cannot be exercised.
Limiting The Powers of the Legislature
The legislative arm of the government is charged with formulation, amendment and repealing of laws. According to the US constitution, the legislature also has the power to approve treaties, to sign declarations of war and control money in the economy (Verkuil, 1988). However, if there are no checks and balances prescribed in the constitution, the legislature may formulate or amend laws that favor their interests at the expense of the other arms of the government and the people at large. Therefore, there are mechanisms in the constitution to ensure that the legislature does not step beyond its mandate as it exercises its powers.
The constitution affords the judiciary powers to exercise checks and balances on the legislative arm. The courts have the powers to ensure that the legislative branch operates within the constitution. Hence, judiciary can declare acts made by the legislature unconstitutional. An example is in the case Epperson v. Arkansas, 393 U.S. 97 (1968). This was a case held in the Supreme Court of the US. Epperson, a grade 10 biology teacher, filed a suit in a chancery court to challenge the Arkansas statute that prohibited teaching the theory of human evolution in public schools. The chancery court had ruled in favor of Epperson as it held that the statute was in violation of the Fourteenth amendment which protected citizens from interference with freedom of thought and speech by the state. However, the decision was reversed by the Arkansas Supreme Court which held that the state acted within its powers to stipulate the curriculum in public learning institutions. Epperson appealed in the US Supreme Court, which concluded that the Arkansas Supreme Court had erred in its reversal. The US Supreme Court ruled that the statute against teaching evolution was unconstitutional as the state formulated it to protect certain religious views. The court ruled that the state had no business in protecting any religious group from opinions that such groups found distasteful. This is a case of the judiciary limiting the powers of the legislature.
Moreover, the executive also has powers to exercise checks on the legislature. This can be achieved through the president who can veto laws. If the president disapproves a piece of legislation, he can refuse to assent to the bill approved by the legislature hence the bill cannot have any legally binding effect (Bruff, 2006). The bill is therefore returned to the Congress unsigned. The president can also propose or give ideas about what laws s/he would like to be passed. Additionally, the executive can negotiate foreign treaties independent of the legislature. The executive also has the power to make appointments of key federal officialsand call for special sessions of the Congress.
The people also wield some power to keep the legislature in check. It is a requirement that every member of the legislature must be elected before they can carry out their duties. It is the responsibility of the people to decide who will constitute the legislature through their vote.
Limiting The Powers of the Executive
The executive arm is charged with administration and enforcement of laws. It is usually composed of the president or the prime minister, their deputies and the cabinet. The other arms of the government have powers to exercise checks and balances on the executive.
The legislature has the powers to ratify treaties. The executive can negotiate on behalf of the state for treaties but the legislature has to give formal consent to the treaty for it to be legally valid. In the same vein, the executive also requires legislative approval before withdrawal from any treaty. This is exhibited in the case Democratic Alliance v Minister of International Relations and Cooperation and Others (Council for the Advancement of the South African Constitution Intervening) (83145/2016) . In this case, the Democratic Alliance filed a suit in the High Court of South Africa to challenge the acts of the national executive to withdraw from an international treaty, The Rome Statute of the International Criminal Court, without prior approval from the legislature. The subject matter of the case concerned the separation of powers between the executive and the legislature in treaty-making and international relations. It sought the interpretation of article 127(1) – Section 231 of the Constitution of the Republic of South Africa, 1996. The national executive decided to withdraw from the Rome Statute. Consequently, the International Relations Minister signed the notice of withdrawal and forwarded it to the United Nations without prior approval from legislature. The court ruled that the act by the national executive to deliver the notice of withdrawal without approval from legislature was in violation of s 231(2) of the Constitution as it contravenes the doctrines of separation of powers. The court ruled that in the same way parliamentary approval was required before ratification of the treaty, it was the responsibility of the parliament to first repeal the law which made the treaty official before any notice of withdrawal was to be delivered to the United Nations.
The legislature can also override a presidential veto. In addition, the legislature has to confirm appointments by the executive before the appointed individual can occupy their new positions (Bruff, 2006).The judiciary can exercise checks and balances on the executive by declaring actions by the executive unconstitutional. Furthermore, in South Africa, the constitution has the provision of the office of the Public Protector who ensures that the rule of law prevails with relation to members of the executive. The Public Protector ensures that there is accountability and protection of the state from misuse of public resources by public office-bearers. In the case Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others (CCT 143/15; CCT 171/15) ,the Public Protector performed an investigation after allegations of the president deriving undue benefit from state resources by performing upgrades to his private residence (Bruff, 2006).The Public Protector prepared a report that concluded that the president had acted in contravention of the constitution and recommended remedial actions that the legislature was to take to ensure the president obeyed the rule of law.
Limiting Powers of the Judiciary
The judiciary is charged with interpretation of the law and determination of how the law is applied. There are mechanisms in place to ensure checks and balances are maintained in the judicial arm. Both the executive and the legislature play a role in limiting the powers of the judiciary.
One of the limitations to powers of the judicial branch is that the members of the judiciary are allappointed by the executive. Therefore the executive has control over who gets to perform the duties and responsibilities of the judiciary. Furthermore, it is the responsibility of the judiciary to pass judgment to federal offenders and offer them sentence. However, the executive retains the power to grant pardon to the offenders if it deems an offender to have reformed for the better. The executive pardon overrides the judgment by the judiciary.
The legislature also exercises checks and balances on the judiciary. One of the ways is through having the power to create lower courts. The legislative arm can shape the judiciary in whichever way they deem suitable and put as many judges in office as they deem appropriate. Moreover, the legislative arm, being in charge of making and amending laws, can propose amendments to laws that override judicial decisions so long as the amendments are in accordance with the constitution (Bruff, 2006). In addition, the legislature has the powers to impeach as well as remove judges from their positions. This gives them the power to have input on who is to occupy positions in the judiciary. Also, the legislature has to approve the appointments of judges by the executive.
The concept of separation of powers is important in ensuring that order in the state is maintained by safeguarding against anarchy or authoritarian rule. For this to be effective, the rule of law needs to be upheld by everyone in the state. Moreover, the three branches of the government should be autonomous but simultaneously interdependent in the sense that the operations of one branch are kept in check by the other two branches (Verkuil, 1988). The three branches must work together to ensure formulation of proper laws that are constitutional, proper enforcement of the laws and an effective judiciary that is able to solve disputes relating to the law.