Seperation of Powers and the Rule of Law

‘…If you maltreat a penguin in the London Zoo, you do not escape prosecution because you are the Arch-Bishop of Canterbury.’

The rule of law broadly requires; that all are equal before the law , that the government is subject to the law and must exercise its power according to the law, finally that ‘there exist fundamental individual liberties and minimum standards of justice, to which the law must conform’ . The rule of law is problematic to define but put simply it is not ‘the rule of men’ and is evident in societies with functioning judiciaries and a clear separation of powers such as New Zealand. It is one of several intrinsic attributes of our constitutional makeup and overall the Judiciary aid in ‘ensure[ing] that the rule of law is maintained’ .

The judiciary is both part of and upholds the rule of law, it is however the lesser of the three branches of government yet nevertheless a force to be reckoned with in checking that the rule of law is upheld. The judiciary can be viewed as analogous to the Rule of law. It is both consummate, in checking and balancing the two other branches of government against arbitrarily abusing the citizenry. Disparate, in that the judiciary is not democratically elected and its inherent common law powers can create ‘judge made law’8888. The Lands Case , and the offending section 9 of the SOE Act highlights the legislature inviting the judiciary to create the ‘principles’ of the Treaty of Waitangi as the statute left the definition up to the judiciary to define, therefore not in conflict with the Rule of Law and the supremacy of parliament.

However in Baigent’s Case Cooke P created a remedy for breaches of the Bill of Rights even though no such clause existed. In the same vain ...

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Works Cited

Bingham, Tom. The Rule of Law. Allen Lane, 2010.

Dorset, Simon. Public Law. 3rd ed. Butterworths student companion. Wellington [N.Z.]: LexisNexis Butterworths, 2002.

Gray, John. Lawyer's Latin. 2nd ed. Robert Hale Ltd, 2006.

McDowell, Morag. The New Zealand Legal System: Structures and Processes. 4th ed. Wellington, N.Z: LexisNexis, 2006.

Morris, Grant. Law Alive: The New Zealand Legal System in Context. South Melbourne, Vic: Oxford University Press, 2008.

———. Law Alive: The New Zealand Legal System in Context. South Melbourne, Vic: Oxford University Press, 2008.

Palmer, Geoffrey, and Matthew Palmer. Bridled Power: New Zealand's Constitution and Government. 4th ed. Oxford University Press, USA, 2004.

Spiller, Peter. Butterworths New Zealand Law Dictionary. 6th ed. Wellington, N.Z: LexisNexis NZ, 2005.