by Peter Gerangelos. Portland, Oregon: Hart Publishing, 2009. 328pp. Hardback. £50.00/$105.00. ISBN: 9781841136615.
Reviewed by Rebecca Hamlin, Department of Political Science, Grinnell College. Email: hamlinr [at] grinnell.edu.
The field of comparative constitutional law is expanding in new and exciting ways; for too long it has been held back by the assumption that national legal institutions and constitutional principles reflect the distinct culture and history of the place in which they developed, and are thus incomparable. The particularist approach to the study of law has downplayed the existence of cultural commonalities across nations, and ignored the fact that many institutions and concepts have been (and continue to be) transplanted into new countries through colonialism and, more recently, globalization. Contemporary comparisons, then, are ripe with opportunities for building theories about whether there are universal constitutional principles that operate in similar ways across national contexts.
The concern at the heart of THE SEPARATION OF POWERS AND LEGISLATIVE INTERFERENCE IN JUDICIAL PROCESS fits nicely within the agenda of the recent wave of comparative legal scholarship. It examines a central principle of constitutional law – the separation of powers – across several jurisdictions, most thoroughly comparing the United States to Australia, and bringing in the United Kingdom, Ireland, and India as shadow cases. Specifically, Gerangelos explores the nature of the relationship between the judiciary and the legislature in these countries, illustrating in great detail the degree to which the line between these two branches is policed successfully, and how these inter-branch dynamics might be changing over time. It is a fascinating topic, and Gerangelos is someone who obviously knows the material incredibly well, and has thought deeply on the question of the nature of the separation of powers.
Part I (Chapters 2 and 3) is a rich description of jurisprudence responding to legislative interference in pending cases. Gerangelos begins by pointing to a seminal case in commonwealth law, a case originating in Sri Lanka but decided by the British Privy Council before Sri Lanka became independent from the United Kingdom: LIYANAGE v. R (1967). Out of this case, Gerangelos argues that a direction principle emerged: if the legislature is providing direction or prescription to the judiciary on a particular pending case, it constitutes a violation of the separation of powers
Gerangelos then examines the case law of his home country (Australia) and argues with some consternation that the direction principle has not been consistently applied, and that recent Australian jurisprudence is generally unclear about the pending case issue. In [*863] particular, he contrasts the court’s approach in LIM v MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS (1992) with NICHOLAS v THE QUEEN (1998). Moving on to the United States, Gerangelos finds that it too had an early case outlining a direction principle: United States v. KLEIN (1871), but as in Australia, Gerangelos finds that more recent cases, such as PLAUT v. SPENDTHRIFT FARM INC (1995), MILLER v. FRENCH (2000), and the 11th Circuit decision in the high-profile SCHIAVO ex rel SCHINDLER v. SCHIAVO (11 Cir 2005), have taken a soft approach to the question of separation of powers in pending case scenarios, and seem to have moved away from a clear cut jurisprudential rule.
After uncovering these interesting over-time trends and cross-national similarities, Gerangelos stops short of building a fleshed out comparative theory. His observations express indignation over the reluctance of courts to be more firm in policing the separation of powers, but there is no discussion of why courts are behaving this way, or what the limits of judicial tolerance might be. Especially because many of these cases deal with hot-button political issues, such as euthanasia and the treatment of unauthorized immigrants, it was surprising and disappointing to this reader that the politics surrounding these inter-branch conflicts was eclipsed by a purely doctrinal discussion of the cases. In fact, in his discussion of the Miller case (which dealt with a provision of the Prison Litigation Reform Act of 1995 that restricted the right of prisoners in the United States to sue over prison conditions), Gerangelos speculates that the court’s 5-4 majority opinion “misunderstood the case” and did not see its broader ramifications (p.161), or it would have decided the case differently. This apolitical interpretation of the opinion of the court, which split neatly along the liberal/conservative fault line, seems implausible at best.
Gerangelos concludes the first part of SEPARATION OF POWERS by arguing that there is a need for increased formalism and a re-assertion of the direction principle in both the United States and Australia. He states: “there needs to be some attempt to formalize the indicia of direction to support the efficacy of the rule itself, rather than making it dependent on the facts of each case” (p.115). This conclusion is illustrative of the difference between a work of legal analysis and that of political science. Ultimately, it seems that Gerangelos sees a problem with the rule, not its application. He makes no suggestion that some judges might choose to ignore the principle in particular politically charged situations.
Part II (Chapters 4 and 5) moves on to a different issue within the separation of powers: legislative revision of final judicial judgments. Gerangelos shows that in both the American and Australian cases, there is far less ambiguity over the line between judicial and legislative power, and far more consistency in the case law than in the pending case scenario. He then contrasts that certainty with the United Kingdom, where courts have been reluctant to step in because the notion of a separation of powers is not “entrenched” in Britain, due to its unwritten constitution (p.200). He then provides further illustration with the [*864] “middle case” of India, where the notion of a separation of powers is written in the Indian constitution, but is more ambiguous than in the American or Australian constitutions (p.202). Thus, he argues that the Indian Supreme Court’s reaction to final judgment situations is also more ambiguous.
Through this four-country comparison, Gerangelos seems to be suggesting that courts are emboldened by the degree to which their own power is laid out in an explicit, written declaration. But again he does not flesh that suggestion out into a full-blown theoretical claim. Especially since this assertion comes on the heels of the dramatically different pending case scenario, THE SEPARATION OF POWERS raises a lot of unanswered questions. For example: what is the relationship between final judgments and pending cases in the United States and Australia? Why should the concept of the separation of powers be so unclear with one, and totally clear in the other instance? If the text of the constitution is so essential to protecting the separation of powers, why does the resolve of courts to defend their turf seem to be weakening in the pending case scenario? And what makes the final judgment scenario impervious to this same trend? Without a sense of what is driving the trend, it is difficult to know why it is limited to one area of the legislative-judicial relationship.
In the discussion entitled “Conclusions on the Final Case Scenario” (p.267), Gerangelos attempts to make a summary of the basic doctrinal rule that should dictate situations where courts are assessing legislation that attempts to revise final judgments. It is a provocative departure from the particularist approach to comparative constitutional law, and certainly there is a basic sense in which it is a universal concept: powers must be separate from one another in order to protect democracy. But it is not clear why there is a need for a specific universal rule regarding the final judgment scenario that should work the same way everywhere.
Part III engages in an explicit comparison with the United Kingdom and the European Court of Human Rights. Gerangelos re-iterates the point that there is no constitutional separation of powers in the UK, so it depends on the “self-restraint” of parliament (p.272) and is more likely to “fall short of enforceable constitutional limitations” (p.276) than the United States and Australia. He then goes on to suggest that instruments such as the European Convention for the Protection of Human Rights and Fundamental Freedoms “can offer some protection to the decisional independence of the judiciary” (p.305). However, from the discussion that surrounds this claim, the power of the ECHR seems more theoretical than probable. It is not clear how the ECHR might actually be working, or work in the near future, to push the UK away from the model of parliamentary supremacy. It would have been helpful here to have some examples of policy areas that would be impacted by a change of that nature.
Gerangleos states at the outset that the purpose of THE SEPARATION OF POWERS is to identify the limitations on legislative interference in judicial function that can be derived from the separation of powers doctrine. This formulation seems to suggest that such [*865] limits exist a priori, rather than being constantly set by courts. After reading this book, the mystery of what makes courts reluctant to set limits on legislative interference in their own power still remains, a missed opportunity to build a theory of comparative constitutionalism.
THE SEPARATION OF POWERS AND LEGISLATIVE INTERFERENCE IN JUDICIAL PROCESS assumes some knowledge of commonwealth law that will make some parts of it inaccessible to American readers, and it is written in a very dense, legalistic style that will be difficult for those without legal training to decipher. Nevertheless, it is a carefully crafted survey of both the case law and scholarly analysis about these cases in law reviews. Anyone who is deeply interested in the question of the legislative-judicial relationship will find this analysis to be thorough and illuminating.
LIM v MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS (1992) 176 CLR 1.
LIYANAGE v R  1 AC 259.
MILLER v FRENCH, 530 U.S. 327 (2000).
NICHOLAS v THE QUEEN  HCA 9.
PLAUT v. SPENDTHRIFT FARM INC., 514 U.S. 211 (1995).
SCHIAVO ex rel SCHINDLER v SCHIAVO , No. 05-11628 (11th Cir., March 25, 2005).
United States v. KLEIN, 80 U.S. 128 (1871).
© Copyright 2009 by the author, Rebecca Hamlin.