Analysis of the Case Law "There is no prescribed constitutional relationship between the courts
and the executive, but the judges assert their inherent power, derived
from the rule of law, to review executive actions"
The question starts off by giving us an element of the separation of
powers when it says that there is no prescribed constitutional
relationship between the courts and the executives.
The concept of separation of powers propounded by Montesquieu, the
French political philosopher, has three main criteria:
(i) There are three main classes of governmental functions: the
legislature, the executive and the judicial.
(ii) There are (or should be) three main organs of government in a
state: the Legislature, the Executive and the Judiciary.
(iii) To concentrate more than one class of function in any one person
or organ of government is a threat to individual liberty. For example,
the Executives should not be allowed to make laws or adjudicate on
alleged breaches of the law; it should be confined to the executive
functions of making and applying policy and general administration.
The third proposition, which is said to be the most extreme and
doctrinaire, is what the question in hand seems to overrule using the
rule of law, whereby judges are said to use it to assert their
inherent power to review executive actions.
Dicey saw the rule of law as a central feature of the British
constitution. He had his own idiosyncratic ideas of what the rule of
law implied and his ideas were very influential for two generations.
The concept is one of open texture; it tends itself to an extremely
wide interpretations. One can virtually say that the concept basically
(i) that the powers exercised by politicians and officials must have a
legitimate foundation; they must be based on authority conferred by
(ii) that the law should conform to certain minimum standards of
justice, both substantive and procedural.
Judges spend the majority of their time deciding individual cases.
Those cases establish the precedents, which collectively constitute a
solid proportion of our law. Nowhere is this more true than in the
case of administrative law. Here the involvement of legislation has
been confined to matters of procedure and practice. The accretion to
the law on a case-by-case basis has proved to be an ideal manner in
which to establish principles of administrative law. It has helped to
maintain the necessary delicate balance between the interest of the
public and administrators.
However, the tensions created by judicial review are acceptable
because it demonstrates that the courts are performing their role to
ensure that the action of the government of the day is being...