In a previous article on Judicial Doctrines I discussed the doctrine of Judicial Review. This is where the court can decide not to enforce a law that is unconstitutional. In the Haneef vs Minister for Immigration the law wasn't unconstitutional - mainly because there is no constitutional tests such as a Bill of Rights in the Australian Constitution. However, the Judge felt obliged to justify the doctrine of Judicial Review in the judgement. By doing so Spender is nullifying exception or emergency governance in the area of national security and immigration.

From the judgement:

30 As Callinan J's observation emphasises, in the proper administration of the lawful and efficient government of the nation, each of the arms of government - the parliament, the executive, and the judiciary - has a role to play, and each of the arms of government must pay due deference to, and not to intrude upon, the roles of the other arms of government.

31 The preceding observations demonstrate that there is no room for the view, sometimes uttered, that the executive should have exclusive responsibility over all matters involving national security.

32 True it is that the executive is charged with a heavy responsibility in matters of national security, but parliament has defined the limits defining the discharge by the executive of that responsibility, and it is for the judicial arm of government "to ensure that ministerial or other official action (is) lawful and within jurisdiction," as the plurality judgment at [104] of Plaintiff S157, set out at [23], makes plain.

Spender is stating that national security concerns cannot suspend the constitutional order defined by separation of powers. Spender is repudiating a state of exception or emergency governance.

One of the more contentious aspects of George W. Bush's term as President has been the use of Executive Orders to determine the constitutional action by the executive in response to legislation. Executive Orders do not have the force of law, they only have the force of procedure within the Administration, but as the executive executes the laws formalised by Congress in legislation, they can have serious effect in how the laws are enforced.

Because the President is using Executive Orders to outline the constitutional boundaries between executive and legislative there is concern that the Executive Orders are being used to legislate from the executive pulpit. It is probably more meaningful to see these actions under Jefferson's doctrine of higher obligation which effectively nullifies the doctrine of judicial review.

The Bush Administration has not really coherently argued why they seek to expand the power of the executive. Like many of their policies it is a mish-mash of convenient media grabs, often inconsistent, often absurd, but always effective in expanding the reach and power of the executive.

Since 2001 the US has been in a state of emergency due to the September 11th attacks, which has been renewed each year, and according to Congress and the Supreme Court, the US is in a state of war. John Yoo has argued that the President has absolute power under such situations but this has been refuted by Congress and the Judicial - yet the executive has increasingly expansive powers under emergency and wartime.

Constitutional practice in countries with written constitutions has led to the doctrine of Judicial Review. This is where the High Court or Supreme Court is the final arbiter in interpreting the constitution and determining whether a law or action is constitutional.

We have seen in recent Australian High Court cases judges re-assert that doctrine even in times of national emergency. For instance Spender wrote:

True it is that the executive is charged with a heavy responsibility in matters of national security, but parliament has defined the limits defining the discharge by the executive of that responsibility, and it is for the judicial arm of government "to ensure that ministerial or other official action (is) lawful and within jurisdiction"

Separation of powers do not break down in national emergency.

Thomas Jefferson was a strong exponent for separation of powers, however, he rejected the doctrine of judicial review; instead preferring the whig doctrine of higher obligation. This is similar to Locke's discretionary power of prerogative which Locke described as the power to act:

for the public good, without the prescription of law, and sometimes against it.

Locke's description enables emergency government and executive rule. That is consistent with Whig philosophy which sees popular sovereignty as dominant over fundamental law (constitutional law). When Howard argues for "aspirational nationalism" he is claiming the whig view that electoral success is higher politically than a written federalist constitution.

Consequently, under Whig doctrine, the executive can act unconstitutionally without penalty as long as it is within popular sovereignty. Conservative commentators in Australian media often dub this "in the national interest".

Many self-described Australian liberals and conservatives are Whigs rather than Republicans for this reason. This is why whig philosophy is more comfortable with a statutorial constitution (non-entrenched) which can be amended by the executive/legislative. It is also why whigs are comfortable with the mix of executive and legislative power in a parliament where republicans prefer stronger separation of powers.

Jefferson's doctrine in this area has since been discredited by his peers, including John Marshall and James Madison, as well as successive presidencies. The doctrine of judicial review is well established as being pivotal in restraining the executive and legislative and maintaining a constitutional system of limited government rather than maximilist executive governance.

Jefferson's doctrine also enables emergency governance or a state of exception. Something that Madison warned against when he wrote that the emergency of war is one of the fastest ways for executive tyranny to occur:

No nation can preserve its freedom in the midst of continual warfare. War is in fact the true nurse of executive aggrandizement.

But we can see in Jefferson's doctrine the actions of George W. Bush and how he has asserted the executive's constitutional right to determine whether legislation that has passed the houses of congress, been signed into law by the executive and passed judicial muster can still be interpreted through an Executive Order as to the constitutional restrictions on the executive.

Judicial Review has become a lynchpin component of limited government. Jefferson's doctrine did not survive his presidency two centuries ago. The allowance for a state of emergency places Jefferson's and Locke's doctrine in opposition to Madisonian and Harpurian Republicanism. It has no place in a modern republic or liberal democracy.

The history of Habeas Corpus is centred in English law and comes from the judicial asserting its right to review the executive. Initially it was just a convention, but in 1679 became a legislative process. With the establishment of the US Republic it became an entrenched constitutional right except for certain circumstances. Today the US Supreme Court re-asserted that Habeas Corpus was a liberty that an individual held which could not be intruded upon by the executive or legislative [pdf].

From the decision:

A brief account of the writ's history and origins shows that protection for the habeas privilege was one of the few safeguards of liberty specified in a Constitution that, at the outset, had no Bill of Rights; in the system the Framers conceived, the writ has a centrality that must inform proper interpretation of the Suspension Clause.

That the Framers considered the writ a vital instrument for the protection of individual liberty is evident from the care taken in the Suspension Clause to specify the limited grounds for its suspension: The writ may be suspended only when public safety requires it in times of rebellion or invasion.

The Clause is designed to protect against cyclical abuses of the writ by the Executive and Legislative Branches. It protects detainee rights by a means consistent with the Constitution's essential design, ensuring that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the "delicate balance of governance." Separation-of-powers principles, and the history that influenced their design, inform the Clause's reach and purpose.

Habeas Corpus is also important as a mechanism by which the judicature can assert the principle of Judicial Review over the constitution, executive and legislature. The decision is a long one and is more than just Habeas Corpus, there are all manners of grey which are now painted black and white, such as the constitution being binding on the US Government and not being absent extra-territorially.