Wednesday, 17 February 2016

Separated Powers of State - Which Body Should Have the Final Word?

The Seal of the Supreme Court of the United States

The looming battle over who will succeed the recently deceased US Chief Justice Antonin Scalia brings to mind the most famous clash between executive and judicial branches of the tripartite system of state power in the United States.

President Franklin Roosevelt accused the Supreme Court of inflicting a form of "judicial tyranny" in blocking key measures of his 'New Deal' programme. The US Constitution does not explicitly give the Supreme Court the power to strike down Acts of Congress for been unconstitutional, such power is instead implied from two articles used as the justification for the decision of the landmark case Marbury vs. Madison (1803).

Roosevelt backed down from his threat to pack the Supreme Court with justices who would favour his policies.

The UK system of Parliamentary Sovereignty is of course different from the American set up. The default position (disregarding modifications brought about by the UK's membership of the European Union and subscription to the European Convention of Human Rights) is that the highest court in the land cannot strike down an Act of Parliament.

In the United Kingdom, analogous clashes over blocked legislation historically occurred within Parliament itself which is composed of the House of Commons and the House of Lords.

In 1909, the House of Lords rejected Prime Minister David Lloyd George's Liberal Party government's 'People's Budget'. The constitutional implications were far reaching. Lloyd George threatened to appoint hundreds of new peers to outvote the overwhelmingly Tory Party-sympathetic hereditary peers.

The infuriated Lloyd George felt it intolerable for an unelected chamber to be able to block part of the programme of an elected government. Lloyd George won this battle and it led to the reform of the House of Lord's powers in relation to blocking and delaying legislation via the Parliament Act of 1911. It also introduced a 'Special Procedure' which allows the House of Commons to pass legislation without the participation of the House of Lords.

A similar struggle in the post-war period when the socialist Labour Party led by Clement Atlee embarked on a programme of nationalisation which was challenged by the conservative-leaning House of Lords resulted in the passing of the Parliament Act of 1949.

Roosevelt obviously felt that as a democratically elected President who had persuaded a democratically elected Congress to pass the relevant New Deal legislation, he had a mandate which the unelected Supreme Court justices did not have, and should not have the final word among the organs of state.

One argument against the unease about Parliamentary Sovereignty is that the most powerful arm of Parliament, the House of Commons is an elected body. On the other hand, since elected bodies may abuse the trust put in them by the electorate it appears a sound argument that legal technicians of the highest repute ought to settle constitutional questions. They should be the final arbiters; to use the parlance of the American system, serve as the 'Guardians of the Constitution'.

The problem with this of course is that the divide in American society on a range of culturally and socially sensitive issues has encouraged the politicisation of the American Supreme Court.

The process of nominating and confirming a successor to Chief Justice Scalia will once again show this to be the case.

Adeyinka Makinde (2016)

Adeyinka Makinde is a lecturer in Constitutional Law

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