Montesquieu

Murdoch's Term of the Week: Separation of Powers

A concept first articulated by French political philosopher Montesquieu in his 1748 treatise, The Spirit of Laws, the tripartite division of government powers is a core tenet of liberal Western democracy which remains relevant to this day - as evidenced by Tuesday's unanimous Supreme Court ruling.

 

Separation of Powers

The division of the functions of government ie legislative, executive, and judicial, between independent separate institutions. The legislative power, which is the power to make laws for the State, is reserved to the Oireachtas: 1937 Constitution, art.15.2.1. The executive power, which is the power to carry laws into effect, is vested in the Government (ibid art.28(2)). The judicial power, which is the power to administer justice, is reserved to the Courts (ibid art.34(1)).

The Supreme Court has held that the doctrine of the separation of powers required that no one of the three institutions of government be paramount; all three institutions exercised their powers for the benefit of the State and it was for the benefit of the State that they were independent in the exercise of their respective functions: TD (a minor) v Minister for Education [2001 SC] 4 IR 259.

The Courts have no power to interfere with the exercise by the Government of its executive functions; however, if it is clearly established that the Government has acted otherwise than in accordance with the provisions of the Constitution, the Courts are obliged to intervene: McKenna v An Taoiseach [1996 SC] 1 ILRM 81. See also Kavanagh v Government of Ireland [1996 HC] 1 ILRM 132. The Oireachtas cannot alter or reverse the finding of a court because this would amount to trespass by the legislature on the judicial domain and thus contravene the constitutional separation of powers between the various organs of the State: Howard v Commissioners of Public Works [1994 HC] 2 ILRM 301.

See Buckley v Attorney General [1950] IR 67; In re Haughey [1971] IR 217; Murphy v Dublin Corporation [1972] IR 215; Boland v An Taoiseach [1974] IR 338; Crotty v An Taoiseach [1987] ILRM 400; The State (Calcul International) v Appeal Commissioners [1987] HC. See “The separation of powers and the granting of mandatory orders to enforce constitutional rights” by Blathna Ruane BL in Bar Review (Mar/Apr 2002). [Bibliography: Carolan E; Morgan]. See BYE-ELECTION; COMMUNITY LAW; COMMUTE; COURTS; GOVERNMENT; OIREACHTAS.

 

 

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