Constitutional Overlaps: Judicial Power and the Executive and Legislative Arms of Government

Abstract

This paper argues for the centrality and fundamental indispensability of judicial power within ‘Westminster-model’ constitutional systems. I seek to examine herein the interaction between judicial power and the executive and legislative branches of government, which – by virtue of their periodic accountability to the electorate – are collectively referred to as the ‘political branches’. This paper contemplates the ways in which the roles and the personnel of the political branches overlap with judicial power in the context of ‘Westminster-model’ constitutionalism. Further, I consider how the judicial power can be restricted or impinged upon by the executive and legislative branches, analyzing three paradigm scenarios in particular – the use of ‘ouster clauses’ (in ordinary legislation as well as in written constitutions), the transfer and/or outright restriction of courts’ judicial powers, and the concept of ‘non-justiciability’. Through a study of judicial responses to these scenarios, this paper asserts the immutable nature of judicial power within the Westminster model of constitutionalism. This essay is part of a broader project that enquires into the fundamental nature and extent of judicial power within the ‘Westminster’ model of constitutionalism, which characteristically houses a ‘partial’ or ‘incomplete’ separation of powers.