The Separation of Powers and the Doctrine of Non-Justiciability
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THE SEPARATION OF POWERS AND THE
DOCTRINE OF NON-JUSTICIABILITY
PAUL ANTHONY McDERMOTT*
THE BASIC PRINCIPLE'
Non-justiciability concerns whether a court can with constitutional propri-
ety adjudicate on the matter before it or whether such an adjudication would
be an infringement by the court of the role which the Constitution has
conferred on it.2 Essentially the doctrine is concerned with identifying those
claims which may be legitimately advanced before a court and those which
must be advanced in parliament through the political process. In other words,
is it a case for judicial or political relief. Of course all constitutional cases
have political consequences. By denying the government the power to do
something that it wants to do the courts are inescapably important parties
to political controversies. In addition, the mere fact that a suit seeks pro-
tection of a political right does not necessarily mean that it presents a po-
litical question.4 The real issue is whether there are some questions that
are inherently non-justiciable because they take the court outside of its
proper role. The doctrine was expressed in the following terms by Costello
J.:
The extent to which, and the manner in which, the revenue and
borrowing powers of the State are exercised and the purposes for
which the funds are spent are the perennial subject of political de-
bate and controversy, but the paramount role of those two organs of
state, the Government and the Ddil, in this area is beyond question.
For the courts to review decisions in this area by the Government or
Ddil Eireann would be for them to assume a role which is exclu-
sively entrusted to those organs of state, and one which the courts
are conspicuously ill-equipped to undertake.5
*The author wishes to thank James O'Reilly, SC for helpful comments on an earlier
draft.
I. See generally, Franck Political Questions/Judicial Answers (Princeton, 1992);
Henkin Is There A Political Question Doctrine? 85 Yale LJ 597 (1976); Judi-
cial Review and the Political Question: A Functional Analysis 75 Yale LJ 517
(1966); Finklestein Judicial Self-Limitation 37 Harv L Rev 338 (1924); Hogan
& Whyte (eds), The Irish Constitution (3rd ed, 1994), pp. 347-349; Casey, Con-
stitutional Law in Ireland (3rd ed., 2000), pp. 346-350.
2. O'Reilly v. Limerick Corporation [ 1989] ILRM 181 at 193.
3. Hogg. Constitutional Law of Canada (1992) para. 33.5.
4. Baker v. Carr 369 US 186 at 209 (1962).
5. McKenna v. An Taoiseach (No 2) [1995] 2 IR 10 at 18.](ViewImageLocal?handle=hein.journals/irishjur31&div=13&collection=&method=preview&ext=.png&size=3)
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The Separation of Powers and the Doctrine of Non-Justiciability
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