Report on IACL Roundtable on the 'New' Separation of Powers

David Landau

Florida State University

David Landau, Florida State University College of Law, reports on the recent IACL roundtable held in Johannesburg.

On 28-29 May 2015, a number of scholars from around the world gathered in Johannesburg, South Africa for a roundtable on the “new” separation of powers: can the doctrine evolve to meet the 21st Century context? The roundtable was generously sponsored by the IACL-AIDC, SAIFAC, the University of Johannesburg, and Konrad-Adenauer. The first day of the roundtable was held at the Constitutional Court Auditorium, following an address by Deputy Chief Justice Dikgang Moseneke.

The second day of the roundtable took place at the new Madibeng building of the University of Johannesburg Auckland Park Campus. The workshop was co-convened by me and by David Bilchitz, the Director of SAIFAC and Professor at the University of Johannesburg.

The purpose of the conference was to explore the changes taking place in the relationships between courts and other institutions, with a particular emphasis on the “Global South.” The roundtable aimed to shed light on the gap between the doctrinal conception of separation of powers, which is still sometimes stated in rigid and traditionalist terms, and exciting, practical changes in constitutional design and jurisprudence. Panels for example explored the ways in which courts have grappled with socioeconomic rights to food, housing, and healthcare, and the sharp rise of “fourth branch” institutions like Electoral Commissions, Ombudsmen, and Human Rights Commissions within modern constitutional design.

The presentations focused on several important themes. Many tracked broad and important but under-theorized shifts in institutional dynamics. Case studies suggested that executives are centralizing power while legislatures have lost both power and legitimacy virtually everywhere. This shift is a product of both long-term trends like the increasing complexity of modern policy and the disenchantment with party politics, as well as by more recent developments like post 9/11 security states and the influence of international organizations like the European Union.

IMG_2376The fall of legislatures from their role as the central democratic institution is a troubling development that requires much more thought. A central question framed by Professor Vicki Jackson (Harvard Law School) is the following: should we seek design solutions that will ameliorate the erosion of legislative role, or instead develop new forms of constitutionalism that do not emphasize legislatures?

Perhaps both pathways should be pursued simultaneously. Something might be gained by exploring the specific advantages that legislatures continue to possess in a modern world dominated by complex policymaking. At the same time, there is no doubt that the growth of executive power unchecked by legislatures puts increasing pressure on both fourth branch institutions and courts both to check dangerous exercises of executive power and to formulate policy directly. To date, there is little consensus on what this role is or why it is legitimate. This is particularly true of “fourth branch” institutions, where the practical and theoretical divergence about institutional functioning (sometimes even within the same country) is staggering. There is as of yet no theory of the “fourth branch.”

IMG_2390A second theme was the similarity or divergence between “Global North” and “Global South” constitutionalism on separation of powers. These categories themselves are amorphous, internally diverse, and contested. Moreover, many broad trends in constitutional design – the growth of executive power, loss of legislative power, and explosive growth of fourth branch institutions – run across both categories. At the same time, it is worth asking: is there a distinctive “Global South” approach to the separation of powers?

As Manuel Jose Cepeda (president of the IACL and former President of the Colombian Constitutional Court) noted, such a constitutionalism might be based on an overwhelming distrust of democratic institutions. That is, in a sense that failures in the political process are not episodic and directed towards “discrete and insular” minorities as in John Hart Ely’s view but instead pervasive even as regards political majorities. Surely this explains at least part of the popularity of doctrines like the unconstitutional constitutional amendment doctrine within the Global South.

A final theme is the extent to which doctrinal discussions of the separation of powers are, in practical terms, even relevant or instead preempted by political dynamics. In other words, whether there is space for doctrinal legal reasoning on this question or whether, instead, we should also be studying political science.

It is impossible to deny that discussions of judicial role on structural questions are heavily influenced by political variables. The Colombian Constitutional Court, which has often operated in a relatively deinstitutionalized party system, is less constrained than the South African Constitutional Court, which coexists with the single-party dominance of the ANC. The importance of politics to separation of powers discussions suggests a problem: courts and fourth branch institutions may be unable to act as strong checks where they are most needed. The growth of executive power, for example, may lead one to conclude that courts and other checks need to become stronger, but that very growth in the executive may instead tend to make them weaker.

Still, most panelists suggested that normative conceptions of judicial role (as well as the role of related institutions like Commissions and Ombudsmen) had an influence on the actions of courts and the reactions of the broader political environment. Even within a constrained political environment like South Africa, discussions of the kinds of actions that courts should and should not take, and the goals that they should be reaching, have an impact on jurisprudence. Normative theory can at least tell courts how they can most effectively work within the constraints that they face.

Like most conferences on rich topics, the roundtable raised more questions than answers. Panelists presented a wealth of detailed empirical information about particular cases (as diverse as the Human Rights Commission in Malawi and the social rights jurisprudence of the Turkish Constitutional Court), as well as developing theoretical frameworks that will serve as the basis for further progress in this important area.