The unholy beginnings of SEPARATION OF POWERS
Posted on January 14th, 2013

Dr Kamal Wickremasinghe-Courtesy The Daily News 

Dr Kamal Wickremasinghe

The embarrassingly bad Appellate Court decision on CJ’s writ application gave all the appearances of a hastily made, legally and intellectually unsound decision. Even though the learned judges may have wished that it be seen as a strenuous defence of the abstract concept of the “independence of the judiciary”, it comes across only as a clumsy attempt at safeguarding the career of a colleague, and vested interests of the Judiciary more generally.

In assessing the rigour of the court’s decision, it is granted that judges do not mechanically deduce the law from abstract legal norms, and their decisions are based on extraneous factors including personal preferences and political dimensions; After all they are human. But the role of judges in society and the special powers granted to them entitles the citizenry to demand that they execute the law rather than use it as a means of protesting, on political, religious, moral or other grounds.

Superior judicial decisions are distinguished by moral judgements cleverly incorporated within the framework of “reasoned elaboration” of principles and policies that are ultimately traceable to the democratically legitimate decision makers, the Legislature.


US Supreme Court

The established methodology for applying legal doctrine, the terms of constitutions and statutes, and case law is characterised by impersonal and rational opinions and logically constructed arguments that lead to a particular conclusion through a process not dissimilar to that used in mathematics: such a process limits the risk of judges misdirecting the outcome of a case, and indeed the delivery of justice, through the undue incorporation of their own political convictions.

Judges who deviate from this path and attempt to make decisions intended to serve as roadblocks to the Legislature will necessarily have to rely on artificial, and therefore bad, arguments. Along the way, they become unelected politicians.

The “raw judicial will” in court decisions is a matter of observable reality, and such decisions need to be denounced in the name of the rule of law. Judicial decisions aimed at over-ruling the legitimate actions of elected representatives lead to the breakdown of rule of law and undermine the popular will in a democracy. Unfortunately, the appellate court decision falls in to this category.

The purpose here is to draw attention to some of the historical facts relating to the development of the concept of “separation of powers” which sections of the judiciary, the legal profession, self-servingly so in the majority of cases, and the so-called “civil society” have come to treat as the “ƒ”¹…”be all and end all’ of democracy and personal liberty.

Separation of power resulted from political expediency and cynicism

The development of the concept in America was essentially the result of deliberations and constitutional interpretations by an intensely political and corruptly appointed chief judge of the Supreme Court, John Marshall. The historical background to the events may help understand the real nature of the concept.


George Washington

Thomas Jefferson

The political intrigue during the period under the two presidencies of George Washington over the new republic (1788- 1796), and that of John Adams (1796- 1800), known as the “ƒ”¹…”Federalist era’, decisively shaped America’s economic, political and foreign policy infrastructure, laid the foundations for the development of judicial review.

The presidency of George Washington was marked by fundamental formations such as the two-party system of the Federalists and the Democratic-Republicans, a privately owned central bank, and political and military alignment with Britain at the expense of France who had helped the Revolution.

However, it was also characterised by an ideological divide between Washington’s Vice President John Adams and Treasury Secretary Alexander Hamilton on one side, and Thomas Jefferson and James Madison on the other;Jefferson and Madison opposed many of the Federalist ideas.

The end of Washington presidency in 1796 led to a bitterly fought battle of succession between Vice President Adams and Thomas Jefferson: Adams defeated Jefferson by a margin of just three electoral votes (71-68), becoming the second president, and Jefferson, as the runner-up, became vice president under the system set out in the Constitution before the 12th Amendment.

John Adams passed laws such as the Sedition Act of 1898, to limit free speech of opponents of the Federalists. The “ƒ”¹…”friendly’ judges, such as Justice Samuel Chase who was later impeached, played a compliant role in enforcing the Sedition Act. In a number of cases, the defendant’s counsel had thrown up their briefs and rushed from the court room, charging “oppressive conduct” on the part of the presiding judge.


James Madison

Some famous indictments under the Sedition Act include those of James Callender, the author of a book entitled The Prospect Before Us, who was convicted, fined $200 and given a nine months jail sentence; Matthew Lyon, a Democratic-Republican Congressman for publishing The Scourge of Aristocracy, fined $1,000 and sentenced to four months in prison; Benjamin Franklin Bache, grandson of Benjamin Franklin and editor of the Aurora, was indicted for accusing Adams of nepotism and monarchical ambition.

By 1800, ideological differences as well as party politics had distanced Adams and Jefferson so much, that for the first and last time in US history, a president contested his vice president. Jefferson defeated the vastly unpopular Adams to become the third president, but only after a procedural hiccup: Jefferson and his running mate Aaron Burr had received 73 votes each, and only the intervention of the Federalist Alexander Hamilton, who was no friend of Jefferson but a worse enemy of Burr, allowed Jefferson to take office.

When Thomas Jefferson was elected president following the 1800 election, he inherited an America carrying a load of political and economic baggage he had fought vehemently against as Secretary of State in the Washington and Adams administrations.

“ƒ”¹…”Twelfth’ hour appointments of judges

The Supreme Court Chief Justice John Marshall was in fact a relatively minor legacy of this period Jefferson inherited. John Adams had made the corrupt decision to completely overhaul the judicial infrastructure and “ƒ”¹…”stack’ it with preferred appointees as judges through the Judiciary Act of 1801 (also known as the Midnight Judges Act) in the final days of his administration.

In the 19 days between passage of the Judiciary Act and the conclusion of his administration, President Adams issued 42 judicial appointments, as Justice of the Peace in the District of Columbia, on March 3, 1801, the day before he turned his government over to incoming President Thomas Jefferson. The new judges were known as the Midnight Judges because Adams was said to be signing their appointments at midnight prior to President Jefferson’s inauguration.

One of the Supreme Court judges appointed in this manner was Chief Justice John Marshall, Adams’ Secretary of State from 1800-1801. William Marbury, a businessman and member of the Federalist Party was another “midnight judge”.

Jefferson, upon learning of the conspiracy wrote that the appointments “were [selected] from among my most ardent political enemies” who could be counted on to work against his executive authority. Jefferson refused to honour Adams’s appointments on the grounds that the paperwork had not been delivered to the proper offices before the change of administration had taken place, and later repealed the Act itself.

Jefferson against Marshall

John Marshall took his seat as Chief Justice at the opening of the first term of Court in Washington, the new capital, on Wednesday, February 4, 1801. It is ironical that Jefferson had to administer the oath of office before Marshall who had been appointed illegitimately to office one month before him.

Marshall’s first constitutional case was that of Marbury vs. Madison, the much celebrated precedent of the proponents of separation of power: John Marshall’s opinion in Marbury vs. Madison was a political coup of the first magnitude, from a man who had demonstrated in Adams’s Cabinet his faculty “of putting his ideas into the minds of others, unconsciously to them”.

The case of Marbury vs. Madison was decided in the middle of impeachment cases of Justice Pickering of the New Hampshire District Court on the grounds of “intoxication and profanity on the bench” and Justice Chase on the grounds of “oppressive conduct” at trials and “an intemperate and inflammatory political harangue”.

Marshall used the Marbury case to paint his enemy Jefferson as a violator of the laws which as president he was sworn to support. He pontificated, based on the questionable assumption that the president did not have the power to remove Marbury or other judges from office, that the president owes a duty to obey the law and to deliver the commission of judges.

Marshall cunningly did not contend that the language of the Constitution establishes judicial review but only that it “confirms and strengthens the principle”, granting the finality of judicial decisions and that they may not be validly disturbed by legislative enactment.

During John Marshall’s term he helped fulfil the Federalists agenda of strengthening the Federal power over the states through landmark decisions such as Gibbons v. Ogden, McCulloch v. Maryland and Dartmouth v. Woodward. John Marshall is considered responsible for expanding the power of the Federal government more than any other justice.

Revisionist history also lauds John Marshall as the “greatest judicial advocate of native American sovereignty.” Three Supreme Court opinions authored by him — Johnson v. McIntosh (1823), Cherokee Nation v. Georgia (1831), and Worcester v. Georgia (1832) “”…” referred to as his “Indian Trilogy” are frequently cited as evidence in support of this thesis.

However, far from being an “advocate for native Americans,” John Marshall only filled an important role in the US system of land title, creating a legal framework for property law on a foundation of subordinate native American occupancy. Nothing in Johnson v. McIntosh “protects” any interest other than security of the chain of title derived from royal grants.

Marshall’s adoption of “Christian discovery” as the foundation of land title in the US is a subjugation of indigenous peoples to 15th century colonial legalisms. He revised the legal status of native Americans to fit that framework in which competing groups of white men struggling for superior position in the legal framework of politics and economy.

Men with little honour

The lives and characters of people like Alexander Hamilton, John Adams and John Marshall, as revealed through their actions during the Federalist era, portray a ruthless tendency for conspiratorial and corrupt behaviour. Thomas Jefferson and James Madison on the other hand appear to have been more genuine characters that occasionally resorted to unconventional methods out of sheer exasperation.

Little publicised events like the Burr””…”Hamilton “ƒ”¹…”duel’, between Jefferson’s serving Vice President Aaron Burr and his arch-enemy Alexander Hamilton, at dawn on July 11, 1804, during which Burr shot and mortally wounded Hamilton shows the standards of behaviour they found acceptable and perfectly normal at the time. Hamilton had also lost a son, in a duel three years before. Burr, who survived the duel, was indicted for murder but the charges never got to trial.

Adams and Jefferson are reported have repaired their damaged relations upon retirement from politics. In a somewhat strange coincidence, Thomas Jefferson and John Adams died within hours of each other on July 4, 1826 that also happened to be the 50th anniversary of the signing of the Declaration of Independence.

A man who survives to date is John Marshall, the most intellectually corrupt of them all and an illegitimate appointee to the Supreme Court:his cynical pronouncements on a case filed by a fellow illegitimate appointee have become the byword for democracy the world over. Our people are fighting over a principle corruptly laid down by a corrupt man: such is life!

One Response to “The unholy beginnings of SEPARATION OF POWERS”

  1. sena Says:

    it is sad that a scholar is pimping his personal and professional integrity to defame the healthy framework of separation of power and endorse concentration of power in one entity which lead to negation of democracy and promotion of corruption and mismanagement. The separation of power has served well in taking countries to economic and social development. While Sri Lanka started with relative prosperity and a governing system with proper check and balances. Ironically both the prosperity and the check and balances star disappearing with Sirima’s abolition of the senate and became a total disaster with JR uthumanawahanse keeping all the powers to himself.

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