Question:
Discuss about the Administrative Law for Judicial, Executive and Legislative.
The fundamental law which presides over the Republic of Ireland is the Constitution of the nation. Based on the Irish Constitution, the basic rights of the Irish citizens are guaranteed, the non-executive president is elected, bicameral parliament, judicial review and separation of powers is carried out (Chubb, 2014). The doctrine of separation of powers dictates that the functions of the government have to be divided in three distinctive branches in order to carry out the work and functions of the government in a successful manner. These three branches are judicial, executive and legislative. Each of these branches has separate functions which are housed in the separate and independent organs of the government. Some of these theoretical notions form the backbone of the Constitution of Ireland, 1937 (Carolan, 2009). In the following parts, an attempt has been to analyse the separation of powers principle with regards to the case laws and constitutional provisions, in terms of this doctrine determining the relations between the different organs of government in the nation.
Before a focus is made on the separation of power, there is a need to highlight that the Irish Constitution itself. At the top of the Irish Constitution is the non-executive President, who heads over the State and also has certain limited capacity for the independent initiatives and can be deemed as the ‘Guardian of the Constitution’ (Morgan, 1988). Amongst the most important initiatives is that covered under Article 26 of the Irish Constitution whereby the non-executive President decides before signing any bill whether instead of signing this bill, there is a need to refer the same to the Supreme Court in order to test its constitutional validity. Where the same is held as unconstitutional, the bill is not transformed into the law (Cahillane, 2016).
The Irish Constitution has two dominant features which is fused legislative and executive, whereby the executive has the control. The State exercises the executive power of the Government. As a form, the Government is elected and can be replaced or removed by the Dáil, which is Parliament, i.e., the lower House of the Oireachtas. Though, in reality there is a strong party system, as the direction of the vote of the Dáil deputy is not on the basis of the cogency or case of the Dáil debate and instead is by the dictate of the party in whose colours the deputy won election. As a result of the democratic system for the deputy’s election, something it happens that no party gets the complete majority in Dáil (O’Toole and Dooney, 2009). When such happens, the government rests on the constantly changing support of the smaller parties, or on the independents. However, this means that the vitality and potency is not given to the Dáil in such situations as is present with the United States Congress, and is instead done to create a short-lived and precarious Government. Even though the Oireachtas is made the principal law making agency by the Constitution, nearly all of the laws as designed and drafted substantially by a department of the state before these are brought to the Oireachtas Houses for being discussed and for possible amendments (Cahillane and Hickey, 2017).
Under the Irish Constitution, the main institutions of the State have been established and described. The power of running the State has been divided in three different powers, as was stated in the introductory segment, i.e., the legislative, the executive and the judicial. The legislative power relates to the authority of making the law, by way of changing, introducing or removing legislation. Under Articles 15 to 27 of the Irish Constitution, this power has been given to the Oireachtas. This Oireachtas is formed of the President, Dáil Éireann, and Seanad Éireann (MacCarthaigh, 2010). Article 15.2.1 of the Irish Constitution specifically provides the Oireachtas with the exclusive and the sole power of making the laws for the state and as a result of this article, no other legislative authority gets the law making power for the State (Londras and Mullally, 2017).
The executive branch off the government has the role of carrying on the law to its effect. In other words, this branch executes or carries out the laws which have been drawn by the legislative branch. In this regard, the executive branch relies upon the civil services, the police and the military. Under Article 28 of the Irish Constitution, this power has been given to the government, which is the Tanaiste and the Taoiseach, along with the cabinet of Ministers (Citizens Information, 2015). Article 28.2 of the Irish Constitution gives the State the executive powers, which are deemed to b exercised by the Government or on their authority only. Hence, the government is deemed as the executive organ of the state and has been given the collective responsibility of the State and the Departments which the individual members of the Government administer (O’Donovan, 2015).
The final branch is that of the judiciary where the judicial power is given to the courts and other judiciary bodies for interpreting and applying the laws to the conflicts and the disputes which are raised between the individuals and the state, along with the conflicts and disputes which are raised between the individuals. This power has been given to the courts through Articles 34 to 37 of the Irish Constitution. The Irish Constitution also provides the office, along with the role of the Attorney General, of the Council of State and of the Comptroller and Auditor General. It is also provided through the Irish Constitution regarding the local government and the manner in which the international relation issues are to be addressed. Article 34.1 of the Irish Constitution puts forward the requirement of justice to be administered through the courts on the basis of the laws which have been established. The justice has to be forwarded by the judges, who have been appointed as per the constitutional provisions, save for such limited and special cases, as can be prescribed through the law, to be administered in the public (Figgis, 2017).
In this regard, in the case of Maher v Attorney General [1973] IR 412, there was a refusal by the Supreme Court for removing the word from a part of the legislation, just so that the legislation could be deemed as constitutional. It was held by the Court that such an intrusion required lawmaking by the court, which would be a breach of separation of powers as granted through the Irish Constitution, as the law making power only lies with the Parliament. Another noteworthy case is that of Deaton v Attorney General [1963] IR 170 in which it was held by the court that a law which permitted the Revenue Commissioners to choose the kind of penalty which the tax offender would be facing, had to be deemed as unconstitutional and this was done by the court. The reason for declaring such choice as unconstitutional was that only the judges could be allowed to make this decision and the same could not be given to the executive branch in terms of the Revenue Commissioners (Jackson, 2017).
Hence, both these cases saw that the doctrine of Separation of Powers is given supremacy, based on the Irish Constitution. And any kind of intrusion of one arm of government in another arm of government on the basis of authority of competency is not tolerated. Even though such matters reach the court, the Courts continue to protect their own functions, and at the same time, ensure that there is no countenance interference with the other two branches (Jackson, 2017).
The constitutional lawyers often make a contention that the separation of powers is enshrined in the constitution and the same is frequently referred to by the judges. The design of the separation of power between the branches is such that it becomes very clear that the Constitution drafters wanted to present a very strong executive branch, unencumbered through the legislative branch. The legislative body is only a name, as all of the legislations, effectively comes from the executive branch. The power of the legislative is not separated and is also not very significant. When it comes to the judiciary, their independence is secured even when the members of the judiciary are elected by the executive, as the executive have no real manner in which they can influence the judges upon their appointment (Forde and Leonard, 2013). The separation of powers notion is stemmed from the presidential system in which the legislative branch makes the laws which are enacted by the executive and are enforced by the judiciary. This is based on laws, which are difficult to change and are rigid, which is a constitution, through which it sets out the institutions which can act. Even though the parliamentary systems are less, they do exist (O’Malley, 2011).
The problems are raised when there is a disagreement between the branches where they are required to act in a particular manner. It is often seen that the behaviour of the executive branch is censured in the court due to the courts stating that the executive acted in a manner, which was beyond their powers, i.e., it was ultra vires. There has been a quick assertion by the courts regarding the judicial functions and also the legislative and executive functions. Hence, the Oireachtas upbraided for the inquiry into the killing which took place in Abbeylara, of John Carty. In this case, the Houses of Oireachtas abandoned the inquiries even when they were deemed as a crucial took for the accountability in nearly the entire worldwide legislatures (O’Malley, 2011).
There is a disagreement ultimately over the separation of powers where the judiciary gets to play the job of making a decision regarding who is right. This becomes problematic as the judiciary often becomes unwilling to interfere in the relationship between Dáil and the government, for upholding the rights of Dáil for holding the government to account as was seen in O’Malley v. An Ceann Comhairle [1997] 1 I.R. 427 (Smith, 2010). In the recent case of Doherty -v- Government of Ireland & anor [2010] IEHC 369, it was presented by the High Court to not understand that there was a separation of power between the Dáil and the government (Courts Service Ireland, 2010). Another problem is that it seems to be unfair when one institution holds all the power for adjudicating the disputes which takes place between them and the others. So, where a dispute takes place between the executive and the judiciary, the matter has to be solved by the judiciary and even the appeal to the decision has to be made to the judiciary. This does present the question of a possible redesigning of the constitution in the coming time, in order to deal with this particular anomaly (O’Malley, 2011).
Conclusion
On the basis of the discussion taken place in the proceeding parts, it becomes clear that the Irish Constitution is an effective instrument whereby the separation of powers is undertaken. The separation of power takes place when the powers of the State are divided into three different bodies, i.e., executive, legislative and judiciary. The different articles of the Constitution provide these separations, where the law making power is given to the legislative body, where the laws are executed by the executive body and in cases of dispute the matters are resolved by the judiciary body, based on the laws which have been drafted, in context of the execution of these drafted laws. Often such happens that a conflict is raised between the three bodies, where the matter is ultimately decided upon by the judiciary body. This does raise a question on the authenticity of the decision given as the executive and legislative branches have to rely solely on the judiciary to solve their issues, even when the judiciary is a party to the dispute. This dictates a necessity of changes being brought to the system, whereby this anomaly could be dealt with in an effective manner. So, even when the Irish Constitution brought out an effective separation of powers, there does remain a scope of improvement in this aspect.
References
Cahillane, L. (2016) Drafting the Irish Free State Constitution. Manchester: Manchester University Press.
Cahillane, L., and Hickey, T. (2017) Judges, Politics and the Irish Constitution. Oxford: Oxford University Press.
Carolan, E. (2009) The New Separation of Powers: A Theory for the Modern State. Oxford: Oxford University Press.
Chubb, B. (2014) The government and politics of Ireland. Oxon: Routledge.
Citizens Information. (2015) Main institutions of the State. [Online] Citizens Information. Available from: https://www.citizensinformation.ie/en/government_in_ireland/irish_constitution_1/main_institutions_of_the_state.html [Accessed on: 28/10/17]
Courts Service Ireland. (2010) Doherty -v- Government of Ireland & anor. [Online] Courts Service Ireland. Available from: https://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/baf3228928ac3b4b802577d0003fedb8?OpenDocument [Accessed on: 28/10/17]
Figgis, D. (2017) The Irish Constitution. Russia: LitRes.
Forde, M., and Leonard, D. (2013) Constitutional Law of Ireland. 3rd ed. West Sussex: Bloomsbury Professional.
Jackson, J. (2017) The doctrine of the Separation of Powers constitutes the basic framework of the Irish Constitution. [Online] CPA Ireland. Available from: https://www.cpaireland.ie/docs/default-source/Students/Study-Support/F1-Business-Laws/the-doctrine-of-the-seperation-of-powers.pdf?sfvrsn=0 [Accessed on: 28/10/17]
Londras, F.D., and Mullally, S. (2017) The Irish Yearbook of International Law. Oxford: Hart Publishing.
MacCarthaigh, M. (2010) Briefing Document: Parliament and the Executive in Ireland. [Online] Constitution. Available from: https://www.constitution.ie/AttachmentDownload.ashx?mid=8bfb7136-1ac2-e211-a5a0-005056a32ee4 [Accessed on: 28/10/17]
Moragn, D.G. (1988) The Separation of Powers in Ireland. St. Louis U. Pub. L. Rev, 7, pp. 257.
O’Donovan, D. (2015) Executive Power And Fundamental Rights: Underexplored Constitutional Terrain?. [Online] Human Rights In Ireland. Available from: https://humanrights.ie/constitution-of-ireland/executive-power-and-fundamental-rights-underexplored-constitutional-terrain/ [Accessed on: 28/10/17]
O’Malley, E. (2011) Separation of powers: What happens when the powers of state come into conflict?. [Online] Irish Political Forum. Available from: https://politicalreform.ie/2011/01/10/separation-of-powers-what-happens-when-the-powers-of-state-come-into-conflict/ [Accessed on: 28/10/17]
O’Toole, J., and Dooney, S. (2009) Irish Government Today. 3rd ed. Dublin: Gill & Macmillan Ltd.
Smith, P. (2010) Deference under the Separation of Powers: An Increasingly Acceptable Trait Amongst the Irish Judiciary. [Online] Dublin Institute of Technology. Available from: https://arrow.dit.ie/cgi/viewcontent.cgi?article=1044&context=aaschssldis [Accessed on: 28/10/17]
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