And a possible remedy for it from the U.S. Constitution
In any event, in my view, the genius of the British system is that by leaving open the above option to judges to oppose legislation that violates the Common Law, and also ensuring that the People have access to the courts at all times and on any issue whatsoever, it compels Parliament to be reticent and restrained when it comes to framing laws: Parliament has to be careful, not just in framing laws, but also in the types of laws it chooses to pass, so as not to tempt the courts to take drastic and unprecedented action. In other countries, “Rule of Law” is dependant on, and follows, legislative action. In England, “Rule of Law” is independent of legislative action, and entirely the province of the courts: it is, in essence, a counterbalance to legislative action.
To summarize, then, the assertion that the British system is characterized by “Supremacy of Parliament” does not mean that Parliament is literally supreme, or has untrammeled power. As we have seen, there are three distinct checks on the Parliament: one, from the internal divisions within Parliament itself; two, from the very nature of British democracy; and three, a check coming from the courts, and constituting an entire second source of law! Let’s turn to the American system of governance.
Part 3: The United States
The American Constitution, unlike the British, is set up explicitly and expressly around a separation of powers framework. The first three Articles establish the three branches of government. The powers allocated to each branch are then listed under each Article. It is a marvelously simple and clear scheme. Nevertheless, it contains a certain unique element that is often not given the credit or the notice it deserves. That element is this: though the American system sets up what can be described generically as a “separation” between the three branches of government, what it in fact does is set up a certain relationship between these branches. The distinction is crucial, and I will now consider the matter in some detail.
For my basic source of commentary on the American Constitution, I rely on The Federalist, generally considered the best commentary on the American Constitution. Thomas Jefferson even called it, “the best commentary on the principles of government which ever was written.” In any event, to present the basic principle behind separation of powers as it applies in the American Constitution, all I need is a single passage, which occurs in Federalist 51, written by James Madison. Madison says:
But the great security against the gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist the encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature that such devices should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government, but experience has taught mankind the necessity of auxiliary precautions.
There are two important ideas in this passage. First, separation of powers is an “auxiliary precaution” in that it is intended to function independently of, and in the absence or failure of, other more traditional controls. As Madison makes abundantly clear, “A dependence on the People is, no doubt, the primary control on government, but experience has shown mankind the necessity of auxiliary precautions.” Second, the mechanism that is to drive the whole scheme is self-interest, pure and simple—i.e. the self-interest of the officers of each branch of government to protect their privileges and powers from encroachment by the other branches. As Madison puts it, “Ambition must be made to counteract ambition. The interest of the man must be connected to the constitutional rights of the place.”
Thus, the heart of the separation of powers as applied in the American Constitution is this: the three branches of government are pitted against each other in a competitive or even antagonistic relationship. In other words, as suggested-earlier, the scheme involves not so much a separation but a relationship. Normally, to “separate” means to isolate, to pull apart, contain. For instance, when we say, “separate the odd numbers from the even,” or, “separate the guilty from the innocent,” or, “separate the persons who passed the exam from those who failed,” what we are trying to do is to pull apart, to remove, to differentiate, one group from another. The important point is that the above is not the sense in which the Americans mean “separation” in “separation of powers.”
To put the matter in a somewhat crude way, under the American scheme, the officers of one branch of government are expected to check the officers of another branch if and when they try to exceed their powers, not because the former think it is the right thing to do, or the moral thing to do, or because they feel it is what is “best” for the People, but simply and purely because they are jealous of their own powers and don’t want the latter encroached upon or diminished in any way whatsoever.
The essence of the American system of separation of powers, then, is the relationship it sets up between the three branches of government. That relationship is supposed to be one of rivalry and antagonism. To repeat Madison’s words, “The provision for defence must, in this as in all other matters, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.” The idea, in other words, is that when an attack takes place—i.e. where one branch senses that another is encroaching on its “territory”—resistance is natural, immediate, and spontaneous.
It is very important to grasp this element about the American system. True, the powers of each branch are carefully and distinctly enumerated. So, it would be possible for one branch, looking dispassionately at another branch, and seeing the latter, say, exceeding or breaching its own powers, cry foul, and activate or use the “checks” at its disposal to push the other back into its proper place. But this is not how the American system is supposed to work: the trigger for action on the part of any one branch against another is when the former senses that its powers and prerogatives are being impinged on by the latter.
In other words, the system presupposes a certain jealousy on the part of each branch, to protect its powers and prerogatives. This is what Madison means by, “Ambition must be made to counteract ambition.” If the “ambition” of the officers of one branch of government begins to coincide or conflate with the “ambition” of the officers of another branch, the system begins to break down. To put it another way, the more “tension” there is between the branches, the better for the health of the overall system, because it means that the government as a whole is controlling itself.
Now, I realize that the above element of the American system has been diluted and compromised in recent years due to certain segments of the American legal and political elite developing and pursuing the theory of the so-called “Unitary Executive.” But to discuss these matters will take us far afield. The point, as far as I’m concerned, is that in the way the Founding Fathers conceived of it, and as indeed made clear by the words of no less than James Madison—the Founding Father par excellence—the system was predicated on each branch of government jealously and robustly guarding its powers.
To summarize, then, under the American system, separation of powers is an “auxiliary precaution”: i.e., first, it is expected to function in addition to other controls, particularly where latter controls have failed. And second, the mechanism that is to drive the whole scheme is self interest, i.e., the self-interest of the officers of each branch of government to guard their respective powers, which in turn requires that there exist, not a separation per se, but a certain type of dynamic and competitive relationship between the three branches.
Part 4: Analysis
We have now considered three distinct and different “rationales” with respect to the issue of “checks.” The Sri Lankan system, as interpreted by no less than its Supreme Court, is set up, from the start not to have a separation of powers but rather a sort of perfect equilibrium or “balance” between the different branches of government. If “checks” are needed, they are to come from within each branch, by way of the “Public Trust Doctrine.” The British system, meanwhile, seemingly sets out not to have a separation of powers, but in practice has a very comprehensive and effective system of “checks” coming both from within, as well as without, Parliament. Finally, the American system is based on a straightforward separation of powers scheme, with the distinctive characteristic that the relationship between each branch of governance is supposed to be driven by rivalry and competitiveness.
Let’s consider the Sri Lankan and the British systems first. To begin with, there is no question that what Sri Lanka’s Constitution-makers have done, at least with respect to the structure and powers of Parliament, is to replicate the British system. The problem, as we have seen, is that the British version of “Supremacy of Parliament” operates in the context of a comprehensive system of safeguards coming from inside as well as outside Parliament. Of these, Sri Lanka’s Constitution-makers have replicated only some of the internal checks. For instance, under the Sri Lanka Constitution the President can dissolve Parliament, just as under the British system the Queen can dissolve Parliament.