Separation of Powers Ireland
Section 1 - Introduction The Constitution regulates the structure and functions of the principle organs of the government and also regulates the relationship between these institutions by setting out the balance of power between them. The constitution does this by means of the separation of powers between the three branches of government – the legislature, the executive and the judiciary. Montesquieu divided the powers of government into three this is known as the triplet division. The Irish government advocates a tripartite separation of power involving:
- The legislature – which function is the making of new laws and the alteration of repeal of existing ones. In Ireland the legislative organ of state is the Oireactas.
- The executive - which function is the general administration of the state including the framing of policy this function is preformed by the government.
- The judicial - which function consists of the interpretation of laws and there application to the facts of pacific cases. This function within the state is exercised by independent courts.
However a complete separation of powers in the sense of a distribution of the three differing functions among three independent organs of the government with no co-operation would bring the government to a halt. There must be some interaction if a fair government is to continue. The doctrine does not forbid co-operation provided that each organ operates only in its area of competence and authority. The courts tend to be most protective of their own function and will not countenance interference with their expertise.
Section 2 - The Legislature “The legislative power, concerned with making laws, is the province of the National Parliament, the Oireachtas, consisting of the President, Dail Eireann and Seanad Eireann. ” (Doolin 2007, p. 14) There are five stages in Statute law making. “All primary legislation I. e. Acts of the Oireachtas start life as Bills, which are proposals for legislation. Bills can be introduced in either the Dail or Seanad and there are five stages in considering a Bill.
Once the Bill has been passed by both houses, the Taoiseach presents a vellum copy of the Bill, prepared in the Office of the House of the Oireachtas to the President for the signature and promulgation as a law. The signed text is then enrolled for record in the Office of the Registrar of the Supreme Court. ” The President is head of state “[He] shall take precedence over all other persons in the State.. ” (The Constitution of Ireland) . He/she is nominated by at least twenty members of the Dail and/or the Senate and is elected by the people of Ireland.
He appoints the Taoiseach and with approval of the Dail, he appoints the other members of the Government. The President serves a seven year term and may serve two terms but no more than that. The Presidents function is “the Guardian of the Constitution” . Therefore, it is within their power to make sure that the proposed Bill does not go against any part of the Constitution, and if it does, refuse to pass it. “A Bill becomes law from the day it is signed by the President unless a contrey intention appears from the Bill. This date is printed in the statute after the introduction. ” (Doolin 2007, p.28)
Dail Eireann and Seanad Eireann are the two houses of the Oireachtas. Dail Eireann consists of 166 Tds (or deputies) representing 43 constituencies. These TDs are elected directly by the people of Ireland. The Dail and the Senate are said to have equal legislation power, but there are three different situations in which the Dail can overrule. “The first of these cases is Art. 23, which provides that, if there is a disagreement between the two Houses, the Dail can overrule the Senate simply by passing a resolution. The second type of bill in respect of which the Senate’s powers are reduced is a Money Bill.
”(A Money Bill is a bill related to taxation or to spending by the government) “Finally, Art. 24 enables bills which are necessary to deal with an emergency to be passed through the Senate quickly. ” (G. Morgan 1990, p. 95). There are sixty members of Seanad Eireann (which are known as Senators). Forty nine of these are elected in a Seanad Election while 11 are nominated by the Taoiseach. When a bill is sent down to Seanad Eireann, the Seanad has ninty days to handle the bill in one of the three following ways; either pass the bill without amendment, return the bill to the Dail with amendments or, completely reject it.
Section 3 - The Executive This branch of the Government is responsible for enforcing laws that have come into effect. The executive power includes the framing of policy, though it is a matter on which the government is silent. The Executive is responsible for the national relations of the state; it also has a foreign affairs dimension. The head of the Government or the Prime Minster is called the Taoiseach. The Taoiseach is appointed by the president on nomination of Dail Eireann.
The Government consists of a minimum of seven members but no more than fifteen members, who are nominated by the Taoiseach, which has been approved by Dail Eireann and then appointed by the President. Each member within the Government must be a member of Dail Eireann or the Seaned (Houses of the Oireachtas). There is a maximum of two senators may be a member of the Government. The Taoiseach, the Tanaiste and the Minister of Finance must be members of Dail Eireann. The Government meets and act as a collective authority and is collectively responsible for all department of state.
The constitution states the Government is responsible to Dail Eireann. The Taoiseach, and the Government, must resign when they cease to command the support of the majority of Dail Eireann.
3.1 The Taoiseach
The Taoiseach is a member of Dail Eireann, also with other constitutional duties; the Taoiseach must keep the President generally informed on domestic and international policies. The Taoiseach is responsible for nominating members of the Government; the person who is being nominated must also be a member of Dail Eireann, to become Taoiseach, or Deputy Prime Minister.
3.2 The Tanaiste.
The Tanaiste acts as the head of the Government in the absence, incapacitation or death of the Taoiseach. All members of the Government have the right to attend and to be heard in both in Seaned and the Dail (Houses of the Oireachtas).
3.3 Foreign Affairs
In foreign affairs it does exercise power without statutory authority. Few statutory provisions come into this area. The Government concludes international agreements before the Dail, but they are binding with-out seeking either advance or subsequent Dail approval. Although, if the agreement involves a charge on public funds, its term must be approves by The Dail. The Foreign affairs is also responsible for granting passports.
3.4 Domestic Affairs
Domestic affairs can be in relation to family problems or internal issues a country encounters. It is an area of public policy which concerns; law, government, administrative decisions; which are which are directly related to all issues and activities within a nations boarder. This policy caters for a wide range such as: businesses, education, healthcare, law enforcements, money and taxes, natural recourses, social welfare, personal rights and freedom. This ensures the health and well-being of each individual.
Section 4 - The Judiciary The Judiciary in simple terms is basically the judicial branch of Government or more simply, the Judges collectively. Under the Doctrine of the Separation of Powers, the judiciary generally does not make the law (that is, in a plenary fashion, which is the job of the legislature), or enforce the law (which is the job of the executive), but rather interprets the law and applies it to the facts of each individual case.
As article 34. 1 of the Irish Constitution states, “Justice shall be administrated in courts established by law by judges appointed in the manner provided by this constitution. ” In Ireland Judges are appointed by the President, however, as article 13. 9 of the Constitution states this is only “on the advice of the Government. ” making the appointment by the President purely a formal function. In most cases, the Government decides who to appoint as a judge after it has been advised by the Judicial Appointments Advisory Board. This Board identifies and informs the Government about suitable barristers and solicitors who have applied for the job.
The judicial Appointments Advisory Board was established by law under Section 13 of the Court and Court Officers Act 1995. Membership of the Judicial Appointments Board consists of the Chef Justice, President of the High Court, President of the circuit Court, President of the District Court, the Attorney General, a practicing barrister, solicitor and 3 Ministerial appointments. For a person to be eligible for an appointment to the Supreme Court or High Court, he/she must be a practicing barrister for at least 12 years standing.
In the Circuit Court the requisite period of practice for a barrister is 10 years. In the District Court the barrister or solicitor must have 10 years experience. Judges in the Supreme and High Court must retire at 72, in the Circuit court they must retire by 70 and in the district court they must retire by 65. Article 35. 2 of the Irish Constitution states that, “All Judges should be independent in the exercise of their judicial functions and subject only to this constitution and law”.
Every Judge when appointed “solemnly and sincerely” promises that he/she will duly and faithfully to the best of his/her knowledge and power execute the office of Judge “without fear or favour, affection or ill-will towards any man” and that he/she will “uphold the Constitution and the laws”. A judge may be removed from office for stated misbehaviour or incapacity, but only after resolutions calling his/her removal has been passed by the Dail and the Senate. Section 5- Conclusion.
To summarise the 3 parts of the Seperation of Powers, The legislative makes the laws, The executive carry’s the laws into effect and the judiciary applies the laws. The purpose of the Seperation of Powers is to insulatesthe administration of justice from interference by the Oireachtas or the Government.
- CITIZEN INFORMATION. Available from: http://www. citizensinformation. ie/en/government_in_ireland/government_departments/foreign_affairs. html (Accessed 29th October)
- CITIZEN INFORMATION. Available from: http://www. citizensinformation. ie/en/justice/courtroom/judge. html (Accessed 3rd November)
- CITIZEN INFORMATION. Available from: www. citizensinformation. ie/en/government_in_ireland/national_government/houses_of_the_oireachtas (Accessed 27th October)
- CONSTITATION. Available from: http://www. constitution. ie/reports/crg. pdf (Accessed 25th October)
- Constitutional Law in Ireland james Casey 1987 Constitutional law and constitutional rights in Ireland 2nd edition Brian Doolan 1988 CPA IRELAND. Available from: http://www. cpaireland. ie/UserFiles/File/students/2008%20Exams/Articles/Doctri View as multi-pages.