Entering the Political Thicket: The Role of the Judiciary as an Arbiter in Relation to Making and Implementation of Public Policy

Abstract

The demarcation of areas of competence of the three branches of government derives from the doctrine of separation of powers, which plays a crucial role in the constitutional order throughout the common law world. Under the common law, the doctrine of separation of powers had to operate within the overriding doctrine of supremacy of Parliament. There have been several cases where the courts had to consider their jurisdiction in relation to legislative or administrative policy decisions and exercise of discretion. The modern day political systems are based on the understanding that laws and legislative policies must be made by a representative legislature and that their implementation must be left in the hands of the administration which is accountable to the legislature. Judicial decisions which directly or indirectly question validity of government policy conflict not only with the government but also sections of the public who support such policy. Keywords: administrative policy decision; Judicial decisions; political system