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The Evolution of the Separation of Powers

Between the Global North and the Global South

Edited by David Bilchitz and David Landau

To what extent should the doctrine of the separation of powers evolve in light of recent shifts in constitutional design and practice? Constitutions now often include newer forms of rights – such as socioeconomic and environmental rights – and are written with an explicitly transformative purpose. They also often reflect include new independent bodies such as human rights commissions and electoral tribunals whose position and function within the traditional structure is novel. The practice of the separation of powers has also changed, as the executive has tended to gain power and deliberative bodies like legislatures have often been thrown into a state of crisis. The chapters in this edited volume grapple with these shifts and the ways in which the doctrine of the separation of powers might respond to them. It also asks whether the shifts that are taking place are mostly a product of the constitutional systems of the global south, or instead reflect changes that run across most liberal democratic constitutional systems around the world.
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David Landau and David Bilchitz

The goals and thinking behind the doctrine of the separation of powers have proven to be so compelling that in virtually all democratic systems across the world, some version of the separation of powers concept has been enshrined in the constitution. The contributors to this volume were motivated by a recognition of the value that the doctrine has but also by the need to re-think its core aspects in light of recent changes both in design and practice. Much recent work has sought to develop new theoretical defenses or reconceptualize the purpose or functioning of the separation of powers. In contrast, this volume examines the evolution of the doctrine in light of important developments that we believe have been underexplored in existing work. First, the recent past has seen important changes in the field of constitutional design. These trends are most pronounced in what Daniel Bonilla has called the constitutions of the “global south,” but they are far from exclusive to new or more fragile democracies. These include questions about the changes in function of existing institutions in light of the inclusion of more expansive lists of rights such as socio-economic rights. They also include the widespread inclusion of independent accountability institutions – such as human rights commissions – whose place within the existing separation of powers is unclear. Secondly, a series of political and technological changes have altered the way the traditional model functions. While these shifts are difficult to generalize across countries, scholars have noted an increase in executive power and a decrease in legislative legitimacy and importance. The chapter examines the implications of these practical shifts for the theory of the separation of powers. Thirdly, we pose the question whether the differences between the constitutionalism that is developing in the global south and the traditional constitutionalism of the global north requires a divergent conception of the separation of powers, or whether a unified theoretical conception is possible. Lastly, we attempt to provide an understanding of how the various chapters in the book tackle the problems we examine.

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Faraaz Mahomed

South Africa’s State Institutions Supporting Democracy, commonly referred to as the Chapter 9s, play a number of roles that overlap significantly with those played by the executive, legislative and judicial branches of government. Dedicated to the entrenchment of good governance, these bodies exist independently from the traditional structures of government, designed to guard against acts of impunity and to foster balance in much the same way that the checks and balances system, derived from the doctrine of separation of powers, intends to. Given this functional interpretation, this chapter contends that the Chapter 9 institutions do constitute a “fourth branch”, and that there are significant potentialities for them to utilise this role to contribute to good governance. These opportunities are explored, looking at the judicial and quasi-judicial roles that many Chapter 9 institutions play, and suggesting that the practice of Alternative Dispute Resolution (ADR) is one means through which these institutions can contribute significantly. Opportunities also exist for the Chapter 9 institutions to be robust research, advisory and rights-promoting bodies, and these should be harnessed and strengthened as distinctive roles that have an important place in South Africa’s constitutional landscape. Ultimately, however, it is recognised that there remain significant challenges which impede the ability of these fourth branch institutions to contribute robustly and meaningfully to good governance, including a lack of clarity about their position; questions about the enforceability (or lack thereof) of their findings; a paralysing lack of resources; and intrinsic and extrinsic weakening or undermining of the Chapter 9 bodies, often for political purposes. This chapter suggests that these challenges will need to be overcome if the Chapter 9 institutions are to live up to their considerable potential as custodians of good governance in South Africa’s constitutional order.

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David Landau

This chapter argues that a “global south” constitutionalism might be constructed in part on distinctive theories of the judicial role. Both constitutional design and jurisprudence suggest that newer or more fragile democracies are often preoccupied with problems of democratic erosion, political dysfunction, and institutional failure. Judges working in these contexts have responded with at least two distinct theories of their role. In the first, labelled constitutional realization, judges may relax constraints on the separation of powers and take action themselves in the event of widespread institutional failures that make other branches of government unable or unwilling to carry out assigned constitutional tasks. In the second, judges justify interventions as an attempt to improve the functioning of the political system over time. These theories share an intertemporal nature – they focus on what judicial activism can achieve over time, rather than whether judges are overstepping pre-existing, static constraints. This chapter finds that both theories are plausible but also highlights important and underexplored questions, both normative and empirical. Further, it suggests that while global north and global south contexts share common problems, the distinctive nature of problems across many newer or more fragile democracies makes it attractive to develop constitutional theories of the global south and to use those to dialogue with global north constitutional theory.

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Matej Avbelj and Gareth Davies

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José Ma. Serna de la Garza

The traditional three-branch understanding of Mexican constitution law increasingly contrasts with the emergence of a number of “autonomous constitutional agencies” that have been created in the last couple of decades to perform relevant state functions. This chapter focuses on one of the most important new agencies created in Mexico: the National Commission on Human Rights. It seeks to explain the Commission’s legal status as well as its interactions with Mexico’s Supreme Court of Justice (SCJ). Moreover, in this chapter the author argues that in spite of the fact that the Supreme Court plays some balancing role, the national ombudsman (as is also the case with the other “autonomous constitutional agencies”) is mostly unchecked concerning its actions and omissions. The chapter suggests that Mexican constitutionalism has not yet figured out how to construct a proper balance between independence and accountability in order for these institutions to achieve their full potential.

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Edited by Gareth Davies and Matej Avbelj

The Research Handbook on Legal Pluralism and EU Law explores the diversity of phenomenon of overlapping legal systems within the European Union, the nature of their interactions, and how they deal with the difficult question of the legal hierarchy between them. The contributors reflect on the history, sociology and legal scholarship on constitutional and legal pluralism, and develop this further in the light of the challenges currently facing the EU.
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Redson Edward Kapindu

National Human Rights Institutions (NHRIs) play an important role in ensuring that Governments are held to account in respect of their human rights obligations. These NHRIs are variously established. Some are established under the Constitution, others are established through ordinary legislation, whilst others are established by executive decrees. This chapter first explores whether NHRIs may always fit into the tripartite separation of powers model of the executive, the legislature and the judiciary (the trias politica). It argues that they may not always fit well into this model and that there are instances where NHRIs should simply be treated as organs of the state sui generis, falling outside this tripartite model. The chapter then examines the specific instance of the Malawi Human Rights Commission (MHRC), and concludes that the MHRC is one of those NHRIs that do not sit well within the trias politica. The chapter winds up by examining how the MHRC has sought to ensure checks and balances with the other organs of the state, especially the executive, through participation in litigation; and also the contribution that the MHRC has made in developing human rights and constitutional law jurisprudence.

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David Bilchitz

One of the most controversial topics in the debates surrounding socio-economic rights concerns the appropriate role of judges in adjudicating upon disputes surrounding them. One response has been to modify the content of socio-economic rights in order to give effect to a modest conception of the judicial role in their adjudication. This chapter examines what the appropriate relationship should be between institutional concerns relating to the separation of powers and a determination of the content of fundamental rights. First, the paper illustrates the manner in which separation of powers considerations have influenced the ‘reasonableness’ approach to the adjudication of socio-economic rights that has been adopted in the jurisprudence of the South African Constitutional Court. Secondly, it is argued that the conflation of these two sets of concerns is unjustifiable both conceptually – where two incommensurable sets of issues are not adequately distinguished – and, normatively, in terms of the weakening of the entitlements that invariably results. Having argued against such a conflation, it is contended lastly that there is indeed a relationship between the two sets of issues. Centrally important to the argument will be the claim that we must distinguish reasoning relating to fundamental rights from reasoning relating to the obligations which flow from such rights. Institutional and agent-centred considerations are inappropriate when constructing the substance of a constitutional entitlement; they may legitimately enter into the picture when the concrete obligations flowing from such a right are under consideration. The primacy of fundamental rights entails that an understanding of their content is necessary in order to evaluate any reasons for the attenuation of the obligations flowing from them and the ‘separation of powers’ questions that may arise in this context. A substantive understanding of fundamental rights thus provides one key set of normative considerations that conditions the application of the separation of powers doctrine rather than the other way round.

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Comparative Constitutional Studies

Between Magic and Deceit

Günter Frankenberg

Comparative Constitutional Studies takes a rich area of research and teaching and makes it attractive for the classroom setting and beyond. Every constitution has an interesting story to tell, and for this book Günter Frankenberg has selected vibrant examples that encourage readers to practice realism, demonstrate critical spirit and examine the dark side of framers’ reports and normative theories.