17.4 How Can Power Be Limited By The Constitution?
From The Role Of A Constitution by LJM Cooray (1996)

There are three methods by which Constitutions seek to limit the area of power of the three organs of government —

  1. through a Bill of Rights,
  2. through the system of checks and balances, and
  3. through the device of federalism.

Though (ii) and (iii) are treated separately, (iii) is an application of (ii).

A Bill of Rights
A Bill of Rights as contained in the Amendments to the US Constitution, provides an admirable philosophical statement, for application in concrete situations, of the basis on which the power of legislatures and governments may be limited. A Bill of Rights places limitations on the powers of government and creates an area of freedom for individual action. The problem with the US Bill of Rights has been that after the New Deal, it was construed by judges who have re-interpreted its philosophical basis. The US Bill of Rights has provided some significant limitations on state power in the US. In the hey-day of American liberalism, if not for the Bill of Rights, there would have been far more interference with individual freedom, with the consequence that the US would be a less free place than it is today.

The basic problem with the proposed and rejected Murphy, Evans and Bowen Bills of Rights was that they did not limit government power. What provisions they contained for limiting power were cancelled out by provisions which enabled government organs to avoid the effect of these limitations. The limitations on power were rendered nugatory. These Bills were Bills of Rights in name only and were frauds perpetrated on the public. A Bill of Rights provides rights to individuals to protect themselves from the encroaching power of government. Not only did these Bills not contain effective provisions to limit government power, they provided means by which governments could extend and expand their power.

Checks and balances
A true liberal system contains many devices for division of power in society through checks and balances. This system operates through

i. the law and the Constitution and

ii. interaction between individuals and institutions in a free society.

(ii) is analysed in section 17.6. The following analysis focuses on the first factor, which operates through a Constitution.

The distribution of power among organs through a system of checks and balances in the Constitution and law

"The political liberty of the subject is a tranquillity of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man need not be afraid of another." Montesquieu, The Spirit of Laws, B XI, Ch 6.

After defining the three kinds of powers of the state legislative, executive and judicial, Montesquieu enunciated and justified the principle of separation of powers.

The principle is founded on Lord Acton's assumption, "Power corrupts; absolute power corrupts absolutely". The concentration of all powers into the hands of one individual or group must place them in a position to abuse that power and thus to instil fear into the common man.

Power, by its very nature, can only be checked or regulated by power. Therefore, in order to guard liberty against the abuse of power, it is necessary to distribute powers into many independent (or at least semi-independent) centres. When this is done the man who holds power must fear the reaction of other power centres to any abuse of power by him. He must fear the capacity of his potential victims to seek the aid of his rivals. He must especially fear the reaction of his rivals to any attempt by him to expand his powers at their expense. His ability to hide his own transgressions or to intimidate his opposition must be less. He will be vigilant to protect the proper sphere of his own office from encroachments. His policies must be acceptable to the community and the temptations which beset him must be less. He will be more likely to take pride in the regular and proper conduct of the duties appropriate to his office.

Furthermore, the distribution of power enables the authorities responsible for each power to be constituted in different ways so as to suit the particular nature and demands of each office. For example, the judicial power requires a depth of technical legal learning and a mind trained in the processes of adjudication and legal reasoning, a professional integrity and ethos and the existence of a professional corps which is not necessarily appropriate to executive or legislative power. In the same way, the demands of executive government for leadership- resolve, strength, dispatch, continuity and consistency require one person or a small compact group, while the requirements of legislation for wide and extensive consideration and generality of conception would demand a legislature consisting of many, with representatives of every section of the nation. Because each kind of power requires different methods, the combination of them in one person or body must suffer the detriment of the unsuitability of that body, constituted in one way, to the methods required for the proper use of each power.

A system of checks and balances retards both corruption and the improper conduct of the several affairs of the state.

The system of checks and balances begins with the separation of judicial, executive and legislative powers, as Montesquieu envisaged. However, it goes much further. The system of checks and balances operates also within each branch of the state, in the division of powers between state and federal governments and the distribution of powers between the state, other institutions and individuals in the community. Within the legislative sphere, power is distributed between the component parts of Parliament (Senate, House of Representatives and the Governor-General). The power of each House is diffused amongst its many members. A majority is necessary for the House to act. Each House has a different constituency and/or is elected in by different methods. Parliament in general is elected by the country at periodic intervals and is therefore constrained by the necessity of being responsive to the electorate.

Within the executive sphere ministers, besides having the duty to govern in the interest of the whole nation, are obliged to work with an impartial public service, where such traditions of impartiality prevail. (The principle of impartiality has been undermined in recent times by governments' policies of politicisation of public services.) An impartial public service acts as a brake upon favouritism, corruption, discontinuity, nepotism and inefficiency. On the other hand, executive decision-making and policy determination remains in the hands of the ministry. Within the Westminster system the ministry is further constrained by the reserve powers of the Crown (which may, for example, be exercised to dismiss a ministry which attempts to govern unlawfully) and, more immediately, by ministerial responsibility to Parliament.

Within the judiciary, power is distributed amongst a hierarchy of courts. Judicial discipline is ultimately enforced by the appeals process. Furthermore, the selection of the judiciary from an expert profession trained in the canons and traditions of the law and equipped by experience for the administration of justice and the determination of questions of law provides for a high standard of competence and professionalism. Judicial independence is guaranteed by tenure of office subject only to the ultimate disciplinary threat of removal by the Governor or Governor-General on the address of both Houses of Parliament on grounds of misbehaviour (ie, Parliamentary impeachment), except in NSW where judicial independence has been undermined by the establishment of a judicial tribunal.

Under federal constitutions there is also a division of powers between states and the centre, usually by a divided allocation of subjects of legislative power.

It bears emphasis that the system is not merely one of separation of powers. The system is one of powers balanced against each other so as to check one another. Thus, each House of Parliament must concur in order to enact statutes. Where judicial review prevails, statutes are subject to judicial review. Executive actions are also subject to judicial review. In federal systems, the upper houses of federal Parliaments usually consist of representatives of the states. In Westminster systems the executive ministry is responsible to Parliament. Ministries are restricted by civil service impartiality.

The above analysis constitutes a bare outline of the doctrine of checks and balances. It is not meant to represent the actual state of affairs in the modern state. In actual practice the doctrine of checks and balances is being undermined at every point of its practical application on the basis of a false doctrine of democracy which regards majority rule as the sole criterion of constitutional propriety, forgetting that the very purpose of democracy is to act as a check, amongst many checks, upon powers in order to provide a balance which is conducive to the individual liberty of every person.

The main example is the fusion of executive and legislative powers. Modern legislation does not recognise any criteria as to the proper nature of laws. It increasingly resembles the particularity of executive regulation. On the other hand, modern Parliaments have become the mere rubber stamps of executive governments and have delegated wide legislative powers to the executive. The result has been the creation of almost unlimited executive prerogatives, ostensibly exercised in the name of the people, but nevertheless acting increasingly as a public dictatorship.

This analysis may be concluded as it began, by reflection upon the words of Montesquieu:

"But if there were no monarch, and the executive power should be committed to a certain number of persons selected from the legislative body, there would be an end then of liberty; by reason the two powers would be united, as the same persons would sometimes possess, and would be always able to possess, a share in both. " The Spirit of the Laws, B XI, Ch 6.

The system of checks and balances operates outside the law within the political system — democracy, the electoral system, free expression and criticism, the media and the existence of strong and not so strong countless independent institutions also operates as a system of checks and balances on those exercising private and public power.

The system of checks and balances operates not only at a constitutional level, but through the rule of law (section 4), through the existence of independent institutions (section 17.6) and free expression and association .

A related basis on which the power of legislatures and governments may be limited is as a consequence of a division of power between the centre and the states in a federal system. The division of power has the effect that each party to the federation is restricted in its exercise of power by the existence of other units. The Commonwealth government is compelled to share its power with the States and the States' power is restricted by the power of the Commonwealth and the powers of the other states.

The emphasis on states' rights in the context of burgeoning Commonwealth power is unfortunate. It tends to neglect the more important dimension — that the division of power between the Commonwealth and the States was intended to limit the area of Commonwealth power.