SEPARATIONS OF POWERS

SEPARATION OF POWER:

Harles de Montesquieu -“To become truly great, one has to stand with people, not above them.”

The separation of powers is a model for the governance of both democratic and federative states. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the uncodified Constitution of the Roman Republic. The doctrine of separation of powers has emerged in several forms at different periods. Its origin is traceable to Plato and Aristotle. In the 16th and 17th centuries, French philosopher John Bodin and British politician Locke expressed their views about the theory of separation of powers. But it was Montesquieu who for the first time formulated this doctrine systematically, scientifically and clearly in his book ‘Esprit des Lois’ (The Spirit of the Laws), published in the year 1748.

The contribution of Montesquieu in the development of the Concept of Separation of Power

Meaning of Separation of Power

Understanding that a government's role is to protect individual rights, but acknowledging that governments have historically been the major violators of these rights, a number of measures have been derived to reduce this likelihood. The concept of Separation of Powers is one such measure. The premise behind the Separation of Powers is that when a single person or group has a large amount of power, they can become dangerous to citizens. The Separation of Power is a method of removing the amount of power in any group's hands, making it more difficult to abuse.

It is generally accepted that there are three main categories of governmental functions-a) legislative b) executive and c) judicial. Likewise, there are three main organs of the Government in a State-a) Legislature, b) Executive and c) Judiciary. According to the theory of separation of powers, these three powers and functions of the Government must, in a free democracy, always be kept separate and be exercised by three separate organs of the Government. Thus, the legislature cannot exercise legislative or judicial power; the Executive cannot exercise legislative or judicial and the Judiciary cannot exercise legislative or executive power of the Government.

Montesquieu’s Doctrine

Though the doctrine of Separation of Power is traceable to Aristotle but the writings of Locke and Montesquieu gave it a base on which modern attempts to distinguish between legislative, executive and judicial power is grounded. Locke distinguished between what he called:

i) Discontinuous legislative power;

ii) Continuous executive power;

iii) Federative power.

He included within ‘discontinuous legislative power’ the general rulemaking power called into action from time to time and not continuously. ‘Continuous executive power’ included all those powers which we now call executive and judicial. By ‘federative power’ he meant the power of conducting foreign affairs.

Montesquieu, a French scholar, found that concentration of power in one person or a group of persons results in tyranny. And therefore for decentralization of power to check arbitrariness, he felt the need for vesting the governmental power in three different organs, the legislature, the executive, and the judiciary. The principle implies that each organ should be independent of the other and that no organ should perform functions that belong to the other.

Montesquieu in the following words stated the Doctrine of Separation of Powers “There would be an end of everything, were the same man or same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.”

In his book The Spirit of The Laws’ (1748), Montesquieu enunciated and explained his theory of Separation of Powers. He wrote,

(1) If the legislative and executive powers are combined in the same organ, the liberty of the people gets jeopardized because it leads to the tyrannical exercise of these two powers.

(2) If the judicial and legislative powers are combined in the same organ, the interpretation of laws becomes meaningless because in this case the law­maker also acts as the law interpreter and he never accepts the errors of his laws.

(3) If the judicial power is combined with the executive power and is given to one person or one organ, the administration of justice becomes meaningless and faulty because then the police (Executive) becomes the judge (judiciary).

(4) Finally if all the three legislative, executive and judicial powers are combined and given to one person or one organ, the concentration of power becomes so big that it virtually ends all liberty. It establishes despotism of that person or organ.

As such, the three powers should not be combined and given neither to a single organ nor to two organs. These three powers should be used by three separate organs of the government. It is essential for safeguarding the liberty of the people.

Main Supporters of the Theory of Separation of Powers:

The British jurist Blackstone and the founding fathers of the American constitution, particularly, Madison, Hamilton and Jefferson, extended their full support to the theory of separation of powers. They regarded the Separation of Powers essential for protecting the liberty of the people.

Use of Separation of Powers in Modern Constitutions:

The theory of Separation of Powers guided the Declaration of Rights adopted after the French Revolution of 1789. It clearly stated that “every society in which separation of powers is not determined has no constitution.”

The real and big support to this theory came from the founding fathers of the Constitution of the USA. They accepted its importance as the essential safeguard for preserving liberties and property.’ The Constitution of the USA adopted the theory of separation of powers as its guiding principle.

It laid down a governmental structure based on this theory. It gave the legislative powers to the US Congress, the executive powers to the US President and the judicial powers to the US Supreme Court. Each organ was kept separate from the other two.

The Universal Declaration of Human Rights, as adopted by the UN General Assembly on 10 December 1948, also accepted the principle of separation of powers. In fact, all contemporary democratic constitutions do provide for a separation of powers in one way or the other.

Theory of Separation of Powers: Criticism

1. Complete Separation is not possible:

The government is a single entity. Its three organs can never be completely separated. The legislative, executive and judicial functions are interdependent and inter-related functions and hence cannot be fully separated.

2. Complete Separation is not desirable:

Complete separation of three organs of government is neither possible nor desirable. It is not desirable because without among mutual coordination these cannot carry out its functions effectively and efficiently. Complete separation of powers can seriously limit the unity and co­ordination needed by the three organs.

3. Impracticable in itself:

We cannot fully use the separation of powers. The function of law-making cannot be entrusted only to the legislature. The needs of our times have made it essential to provide for law-making by the executive under the system of delegated legislation. Likewise, no one can or should prevent law-making by the judges in the form of case law and equity law.

4. Unhistorical:

The theory of Separation of Powers is unhistorical since it has never been operative in England. While formulating and advocating this theory, Montesquieu advocated that it was at work in England. Under the British parliamentary system of government, there was and continues to be a close relationship between the British Parliament and the Cabinet. Even there is no separation of judiciary from the legislature in so far the British House of Lords acts as the highest court of appeals. The British Constitution has never been based on the theory separation of powers.

5. The three Organs of Government are not equal:

The Theory of Separation of Powers wrongly assumes the equality of all the three organs of the government. The legislature of the state is always regarded as the primary organ of government. The work of the government begins by law-making. However, in actual practice, the executive acts the most powerful organ of the government. The judiciary is the weakest of the three organs, yet it is always held in high esteem by the people. Hence the three organs are neither equal nor equally respected.

6. Separation of Powers can lead to deadlocks and inefficiency:

Separation of powers can lead to deadlocks and inefficiency in the working of the government. It can create a situation in which each organ can get engaged in conflict and deadlocks with other two organs.

7. Liberty does not depend only upon Separation of Powers:

The critics reject the view that liberty can be safeguarded only when there is a separation of powers among the three organs of the government. They argue that in the absence of fundamental rights, independence of the judiciary, rule of law, economic equality and a spirit of democracy, there can be no liberty even when there may be a present full separation of powers.

8. Separation of Functions and not of Powers:

The name ‘Separation of Powers’ is wrong because this theory really advocates a separation of functions. Power of the government is one whole. It cannot be separated into three separate parts. It is at the back of the functions of all the three organs of government.

The theory of separation of powers is really a theory of separation of functions. Thus, the theory of Separation of Powers has several limitations. All scholars accept that absolute and rigid separation of powers is neither possible nor desirable. Three organs of government cannot be and should not be totally separated into unrelated water-tight compartments.