Doctrine Of Separation Research Articles

The doctrine of ancillary restrictions as a delimitation tool and an absorption principle: twin notions but not identical twins

Abstract Contrary to the general view, ‘ancillary restrictions’ designate two separate conceptions, which should be treated as separate doctrines. As a ‘delimitation tool’, ancillarity separates ‘naked’ and ‘ancillary’ restrictions based on ‘reasonable necessity’. As an ‘absorption principle’, ancillarity is a rule of thumb that screens out certain lawful agreements based on the idea that a lawful main transaction (or the legality of the main transaction) absorbs all objectively necessary (indispensable) restrictions.

THE RULE OF LAW THROUGH JUDICIAL ACTIVISM IN SOUTH AFRICA

The South African Courts frequently juggle different roles within the country’s governance. This causes discomfort among some of the role players within the polity as it is seen as judicial encroachment in matters outside the court’s role. In the South African context of separation of powers, the role of each branch of government is not always clearly defined, and now and again, it gains perspective as courts interpret parliamentary legislation and executive policies. The court’s role and limitations often come under scrutiny. This causes conflicts between the respective branches of government regarding the extent of judicial intervention concerning other branches of government, namely the legislature and executive. This article examines the role and limits of judicial intervention in the terrain of other branches of government within the context of separation of powers as envisaged by the South African Constitution. The doctrine of separation of powers entails the establishment of a trilateral government. The envisaged government consists of the legislature, which enacts laws, an executive that recognises and executes the law and an independent judiciary to regulate public power when all else fails. The article attempts to clarify the place and role of the judiciary in upholding the rule of law in a constitutional state such as South Africa amid rampant complaints of judicial overreach.

"Before His Head was Cold": Puritan Piety and the Pipe Organ

It is well known that musical activity in colonial New England was quite low; this was in no small part caused by the Puritan emphasis on the unaccompanied singing of psalms in their churches. What is often neglected when discussing Puritan musical activity is how Calvinism’s grip on Puritan theology loosened throughout the seventeenth and eighteenth centuries, leaving room for changes to worship traditions. The same Puritans who destroyed pipe organs across England in the seventeenth century started building these instruments in their New England meeting houses towards the end of the eighteenth century. This paper uses primary sources to compare the Puritan theology of the Westminster Confession to statements of belief from Boston’s most progressive Congregationalist churches in the late eighteenth century. Such comparisons, when paired with a timeline of rhetoric surrounding instruments in worship music, connect doctrines of separation to the destruction of organs and doctrines of unity to the reinstatement of organs.

Collaborative Constitutionalism and Courts as Partners in the Joint Enterprise of Governing

Although the doctrine of separation of powers has significantly influenced the development of constitutional doctrine in many countries, an acknowledgment of the myriad limitations of the theory allows reevaluating the traditional approach to view institutional governance. This article explores collaborative constitutionalism which sees the state organs not as solitary entities confined to one single function rather as constituent parts of a joint enterprise where each of the organs has its own role to play and they work together. Based on judicial decisions by the courts of Bangladesh, India, and Ireland, three forms of collaboration have been identified where the courts have acted as partners in the joint enterprise of governing with other organs. It has been demonstrated that adopting a collaborative approach allows the courts to perform a proactive and meaningful supervisory role vis-à-vis the other organs of the state to ensure the rule of law.
 Dhaka University Law Journal, 2023, 34 (2), 115-131

Book Review: The scaffolding is on and Public Administration literature will change

With the attempt to put behind the fallacy of considering the doctrine of separation of religion and state as an ideal for Public Administration (PA) globally, Edoardo Ongaro and Michele Tantardini (2023) have brought out an important book that makes an important contribution to the field of PA. The book not only reinforces the recognition of the significant impact that religion has on the studies and practice of PA but, more importantly, helps to establish a framework that could serve as the groundwork for future research in this field.

A Comparative Study on separation of power in India, UK and USA Constitution

India has its written Constitution, it is said to be lengthy. It is a Holy text to the Citizens of India. The Constitution entails Fundamental Rights and Fundamental Duties in Part III and Part IV respectively. The Constitution has recognized the separation of powers as part of it. 'Separation of Powers' is a basic principle where powers and responsibilities are divided among the executive, legislative and judicial branches. The study takes a multidimensional approach, taking into account institutional, political, historical, and legal aspects. The author attempted to analyze the doctrine of Separation of Powers as envisaged under the Constitution of India and also the author would like to demonstrate the difficulties faced by the three wings of the government in practice while implementing the provisions of the Constitution. The author also draws a comparative analysis with the Indian, US (the United States of America), UK (United Kingdom) Constitutions regarding the scheme of Separation of Powers Key words: Separation of power, Executive; Legislative; Judiciary; Constitution of India

Declassifying Theory of Separation of Powers and its Inherent System of Checks and Balances: A Comparative Study

The main objective of this article is inspection of the development of the concept of separation of powers to highlight that the powers must not accumulate in one hand and they should be divided among the three main pillars of the state i.e., Executive, Legislature and Judiciary. If the powers accumulate and concentrate in one hand, then the chances of abuse or misuse of power increases which can be dangerous not only for the citizens but also for the integrity of the state. The major purpose of the principal of separation of powers is the betterment of mutual relation among the three branches so that the democracy remains intact and no institution should perform the functions of the other. This article provides in-depth critical analysis of doctrine of separation of powers. It critically inspects its application in America and compares it with other jurisdictions to provide a comparative study

Judicial Activism as an Essential Tool for the Protection and Expansion of Human Rights in India

The Indian judiciary has been the sentinel of democracy and assiduously upholds the values of Indian constitutionalism. Thus, the Court is the interpreter, protector, and guardian of the Indian Constitution. The active and trustworthy role of the judiciary makes it the country’s only institution whose acceptability seems to be a national consensus. This paper discusses that judicial activism is a part of judicial review and does not violate the doctrine of separation of powers; instead, it protects and promotes constitutionalism. Further, this paper illustrates that judicial activism has played a vital role in protecting and promoting human rights in India.

Original Jurisdiction of the Supreme Court of Pakistan Article 184 (3) of the Constitution of Pakistan, 1973

The Supreme Court of Pakistan, under article 184 (3) of Pakistan, can act on its own or on the application of any person with the condition that if the SC considers that any of the rights mentioned in the Fundamental Rights Chapter, is violated and that rights involve the public importance. The invocation of the original jurisdiction of the Supreme Court, also known as Suo Motu under article 184 (3), is a buzzword known to all and sundry in the country. The excessive invocation of this article 184(3) generates a debate in the legal community about whether Apex Court is encroaching on the legislature and executive functions. The debate involves judicial activism and judicial restraint. One common objective exists that by taking excessive Suo motu, there is no appeal against the order of SC; hence fundamental rights of access to justice are violated, and on the other hand, the doctrine of separation of power though not expressly embodied in our Constitution but exist; that every organ of the State should remain within its sphere and mutual respect be given to every other organ of the State. Another restriction in taking Suo motu is the express word of article 184 (3) says that without the prejudice of the provisions of article 199, the SC can act.

SOASINT—Socially Assisted Intelligence: Polish Intelligence in Denmark during World War II

The phenomenon referred to as socially assisted intelligence (SOASINT) occurs when the work of ideologically motivated agents, mainly volunteers, becomes an indispensable or even dominant factor in the activities of a given intelligence network. Such “irregulars” come from different strata of the societies involved (including women) and fill gaps in the ranks and operational capabilities of professional, state intelligence services. In doing so, they change the character and culture of the entire organization. The text also raises questions about whether SOASINT can be considered a distinct discipline in intelligence research or simply a subcategory or separate doctrine in the framework of human intelligence with specific characteristics. The little-known history of Polish intelligence operations in Scandinavia during and after World War II serves as a model case study. However, intelligence by the Polish underground in the occupied country and France was conducted in a similar in vein. Furthermore, these cases will also be referred to in the text, drawing attention to the role of women in underground intelligence systems, which went from being auxiliary to—in some cases—dominant, which is most evident in the field of covert communications.

Reflecting on the tension between the development of the common law and the doctrine of separation of powers in Paulsen v Slip Knot Investments 777 (Pty) Ltd

This article analyses the adjudicative approaches adopted by the main judgment of Madlanga J and the concurring majority judgment of Moseneke DCJ in Paulsen & another v Slip Knot Investments 777 (Pty) Ltd 2015 (3) SA 479 (CC). The point of divergence between the judgments concerns the discordant relationship between the doctrine of separation of powers and the powers of the courts to develop the common law under s 39(2) of the Constitution. The argument developed in this article is that the developmental powers of the courts should not be curtailed on the basis of a broadly and vaguely conceptualised doctrine of separation of powers, but on a clear and circumscribed doctrine that is congruent with the transformative objectives of s 39(2) of the Constitution. The article endeavours to set out the limited circumstances under which the developmental powers of the courts should be limited in terms of the doctrine of separation of powers.

Separation of Power: An Elusive Dream

This article describes the basic doctrine of separation of power to highlight how this doctrine has evolved. Then, this article inspects whether this doctrine is practically viable or an elusive dream. To this end, this research article utilised qualitative research methodology and focuses on the nature and effectiveness of the doctrine of separation of power. The article investigates whether the separation of power is a pure or genuine concept to pinpoint its complex nature. Then, this article critically analyses the less purity in Montesquieu’s concept of separation of power. In the end, this article scrutinizes and finds the pure concept of separation of power.

Check the Balance: Is the Doctrine of Separation of Powers Sufficient in the Context of Intergovernmental Organisations? A Case Study of Australia’s AML/CTF Financing Framework

This article demonstrates the pressing need to rethink the doctrine of separation of powers in Australia in light of the increasing influence of intergovernmental organisations such as the Financial Action Task Force (‘FATF’), which are shaping domestic lawmaking. The article documents the influence of the FATF on Australia’s anti-money laundering and counter-terrorism financing framework, showing how FATF ‘recommendations’ are in fact decrees that Australia and other nation states integrate into their domestic legal systems — even when the legislative branch of government does not support such actions. The article suggests that Australia should consider implementing a fourth arm of government — an integrity arm — to strengthen the nation against the influence of intergovernmental organisations.

Politik Hukum Kekuasaan Kehakiman di Indonesia

Judicial power is a branch of power in every country, whether in a democratic state, a state towards a democracy, or an undemocratic state. This happened on the influence of the doctrine of separation of powers which wanted the branches of power to be divided over the legislature, executive, and judiciary. Judicial power in Indonesia at the beginning of independence was intended as a separate branch of power from political institutions, the power of an independent judiciary must still be upheld both as a principle in the state based on law and to allow judicial power to ensure that government is not carried out arbitrarily. The development of judicial power is inseparable from the legal politics of judicial power itself. Because legal politics is subtantively about the friction between politics and law, to examine legal politics is to discuss policies related to the state system. The purpose of the writing is to find out and analyze the political dynamics of judicial power in Indonesia. This type of writing is normative juridical, meaning that this article focuses on the study of the implementation of all positive legal norms and rules. In this research, the approach is conceptual, legal and historical approach.

JUDICIAL ACTIVISM AT THE COST OF SEPARATION OF POWER IN PAKISTAN: A COMPARISON OF JUSTICE IFTIKHAR CHAUDHRY AND JUSTICE SAQIB NISAR’S ERA

The study deals with the significant role of judicial activism in different eras in Pakistan. It examines the role of judicial institutions in damaging the democratic culture of the country. Since the independence of Pakistan, frequent military interventions were validated by the Superior Judiciary of Pakistan. The study discussed these landmark cases which dented the doctrine of Separation of Power in the county. The concept of judicial review has been originated and developed in Britain, and later reached the US in Marbury v. Madison. The history of Pakistan is marred by several instances of Judicial Activism, in which the jurisdiction of the judiciary encroached upon the domain of legislature and executive. In this study, the activism of populist Judges, Justice Iftikhar Chaurdhty and Justice Saqib Nisar has been compared. Their Judicial actions have been discussed in which the domain of the executive has been compromised. The populist actions of Judges dent the independence of the Judiciary and lead to judicial impartiality, as in several cases, different verdicts are observed in the same nature cases. The study concluded by establishing the link between Judicial activism and Separation of powers, as all organs of the states have constitutional limits to work within, The researchers also proposed some judicial reforms, that will maintain the sanctity of the Doctrine of Separation of Power while exercising Judicial Activism. Keywords: Judicial Activism, Separation of Power, Judicial Review in Pakistan, Judicial Reforms.

POLITICO-JUDICIAL ACTIVISM IN PAKISTAN: A HISTORICAL OVERVIEW

The purpose of this article is to take a historical overview of Judiciary’s activism in derailing the democratic process in Pakistan. To provide a complete study of judicial activism and its impacts on democracy a glimpse of historical background can help to establish an appropriate point of view that the political history of Pakistan is full of judicial interference. The constitutional and political history of Pakistan has witnessed the murder of political rights by other institutions. The repeated undemocratic acts/episodes of dissolving the elected assemblies by the military or bureaucratic establishment with judicial support can be witnessed throughout the political history of Pakistan. This study shall attempt to find the correlation between the successful democracy and the doctrine of separation of power. By applying the theory of separation of power to this study it shall be concluded that the prime reason of weak democracy is imbalance of power among the three organs of government. This research shall be conducted by utilizing the qualitative methodology. The documentary analysis provides the information to understand historical roots of specific issues. Keywords: Judicial Activism, Political Representation, Separation of power, Suo motto powers, Fundamental rights.

THE DOCTRINE OF SEPARATION OF POWERS UNDER THE NIGERIAN CONSTITUTION

Separation of powers is a hallowed constitutional principle of the democratic government of Nigeria for the three arms of government to stay in their assigned tracks to avoid arbitrary excesses by any of the arms. The ideal is that the legislature makes the law; the executive executes the law, while the judiciary interprets the law. In recent times, the president of Nigeria churns out Executive Orders in the form of ‘laws seeking to regulate the activities of the government and the people. Similarly, agencies of the federal government have been found wanting in this act. This paper thus revisits the doctrine of separation of powers in Nigeria with a view to justifying its practice and an examination of the emerging trends of Executive Order and independence of the judiciary. The paper finds that the practice of separation of powers is on course in Nigeria despite some pockets of arbitrariness and concludes that adherence to the principles of separation of powers remains a sine qua non to Nigeria’s successful democratic journey.

THE JUDICIAL POWER LIMITATION OF COMMERCIAL COURTS COMPETENCY IN COMMERCIAL DISPUTES

One of the important instruments in a state of law is the existence of an independent judiciary, whether it is based on the doctrine of separation of powers, the notion of a state based on law or democracy. An independent judicial power is not absolute in the sense that it is free to lead to arbitrariness so that there must be restrictions on that power and freedom. The approach method is used a normative juridical approach. The results of the study found that the limitations of judicial power were based on the constitutional basis, namely Article 1 paragraph 3 of the 1945 Constitution, Article 24 of the 1945 Constitution and Article 24 A of the 1945 Constitution. From the concept of separation or division of powers, compose an independent judicial power which is exercised by a Supreme Court and judicial bodies under it and a Constitutional Court. The commercial court as a sub-system within the judicial power is a special court under the general judiciary that has different competencies from other general courts. The implementation of the limitation of judicial power in the competence of the commercial court to realize an independent judicial power is normatively spread out in various laws.

THE “DEFERENCE” OF JUDICIAL AUTHORITY TO THE STATE*

The adoption of the Constitution of the Republic of South Africa, 1996 (hereinafter “the Constitution”), provided an opportune moment for the courts, especially the Constitutional Court to ensure an appropriate balance in the development of the principles and values of the doctrine of separation of powers vis-à-vis those of judicial review. The Constitution is framed in a manner that entrenches a system of checks and balances (this is deduced from the manner in which the various chapters of the Constitution are structured, dealing with the roles of the legislature, executive and the judiciary). This system gives the general public a legislative and executive authority that is accountable to them subject to judicial review by an independent judiciary. The system of checks and balances affirms the limited power of the legislative and executive authorities which is confined within the constraints of constitutional values and principles. The importance of checks and balances is similarly endorsed by Edwards as a system that has ushered in a new process of the regulation of state authority in the new dawn of democracy. This system envisages a move away from a culture of authority of the apartheid rule to one of justification of the new constitutional dispensation. He substantiates his argument by pointing out that the new process of regulating state authority has enabled the courts to educate other branches of government through principled and robust articulations of the foundational and constitutional values of the Constitution in a democratic society. Against this background, the purpose of this note is to provide a brief overview of the Merafong Demarcation Forum v President of the Republic of South Africa (2008 (10) BCLR 968, hereinafter “Merafong”) judgment. The particular emphasis on this judgment is its potential to defer the judicialauthority (which the author refer to as a “political doctrine”) to the state. The objective is to analyse this doctrine and evaluate it against the development of substantive principles of judicial review. This purpose is motivated by Chaskalson CJ’s argument in Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South Africa (2000 (3) BCLR 241). Chaskalson CJ in this case held that the Constitutional Court cannot allow itself to be diverted from its main function as the final andindependent arbiter in the contest between the state and its citizens. In Merafong, the court created an impression of having misconstrued this purpose and the objectives it has to fulfil. This note is limited to the “political approach” which the court emphasisedwithout much thought, and attempt to address the question of public involvement in legislative processes raised in this case. It alsoacknowledges that the court has affirmed its independence as the guardian of the Constitution in the regulation of state authority and advancement of the principles of judicial review, but its lack of consistency in its adopted approach is a worrying factor and a causefor concern for the regulation of state authority.

Compulsory Licensing Under Copyright Law: A Study of Its Impact on Music Rights

The present legal framework doesn’t seem to effectively address the issue with respect to music industries and as a result, the Music industry is facing declining profits. “With multiple appeals pending in this regard, there is a need for the legislature to ensure that the Copyright Board is constituted as per certain minimum legal standards so that the questions on its integrity come to rest.” This is fundamental as the question has proceeded for right around 10 years now, and its decision will have sway on an enormous number of interests in the business, just as the overall population. The development of such Statutory Tribunals in India has been irregular and without a uniform example. The choices given by these courts just as their protected legitimacy have been addressed in various cases. This has prompted questions being brought about the straightforwardness up in their functioning just as decency in the methodology embraced by these courts. The technique for the arrangement of the individuals just as the structure of the councils has been struck somewhere near the Courts every once in a while. It should be acknowledged that the tribunals have come to remain, as the Supreme Court has brought up that it is well inside the force of the legislature to constitute such bodies and these are not, in essence, violative of the doctrine of separation of powers. Be that as it may, endeavors should be made to regularize the strategies, organizations, and audit/allure of choices of councils. The capabilities for the enrollment for these courts should be set down in order to guarantee their freedom from the leader.