Separation of power of national experience

 

Nisha Nagwanshi

Hidayatullah National Law University, Raipur

 

 

ABSTRACT:

In essence, the doctrine of separation of powers is that for a free and democratic society to exist there must be a clear separation between the three branches of government namely.

The Executive: which is the branch that executes the business of government? It comprises the President, Vice-Presidents and Ministers, the Public Service, the Defense Forces, the Police Force and other law-enforcement organizations. All the administrative, law-enforcement and coercive organs of the State fall within the Executive Branch, making it potentially the most powerful of the three branches of government unless its powers are subject to limitations.

The Legislature: which is the law-making branch? In Zimbabwe it consists of the Senate and the House of Assembly.

The Judicial branch: This interprets the law. It comprises judicial officers and the courts over which they preside. In Zimbabwe the courts are divided into superior courts, namely the Supreme Court and the High Court, and the lower courts, which are principally magistrate’s courts and customary-law courts. There are also specialized courts such as the Administrative Court, the Labors Court and the Fiscal Appeal Court.

If one of these branches encroaches upon the functions of the others, so the doctrine goes, freedom and the rule of law are imperiled. If, for example, the Executive (i.e. the President or a Minister) makes laws and enforces them, then we no longer have the rule of law but rule by a man or woman, and the governmental system will tend towards autocracy and tyranny.

 

 

 

INTRODUCTION:

The doctrine of separation of powers cannot be applied absolutely, it retains considerable value. In the first place, it emphasizes the need for a State to have strong independent institutions in order to check arbitrary rule by the Executive. This is particularly important in a country such as Zimbabwe which does not have a long history of democratic rule. The Executive will always try to increase its powers by encroaching on the functions of the other branches of Government, sometimes for the best of motives. Without strong institutions to oppose it these encroachments by the Executive will continue until the other branches lose their power to check it.¹

Secondly, the doctrine provides a yardstick against which constitutional proposals can be assessed in order to determine whether or not there will be adequate checks and balances within the governmental system to ensure that individual rights are protected. It is a test for determining whether a constitution or governmental system is good or bad, the doctrine of separation of powers must be applied with caution. It is fair to say that constitutions which completely ignore the doctrine are usually bad ones one of the branches of government will be found to overshadow the others or liable to do so. But constitutions in which the doctrine is observed are not necessarily good ones.

 

If the doctrine is observed so strictly that the different branches do not co-operate with each other, there may be governmental gridlock. And the doctrine has nothing to say about the nature of the powers that can be exercised by each of the branches within its own sphere. If, for example, all the powers of the Executive are vested in one individual and there are no limits on his or her power, then the State will be a dictatorship or nearly so; and if the Legislature, though completely independent, is not elected by universal suffrage, then the State will be undemocratic; and if judges, though completely independent and irremovable from office, are ignorant and corrupt, then there will be no rule of law. So the doctrine of separation of powers has its limits in determining whether or not a State is well governed. It is only one of several tests to be applied. In the second part of this Constitution Watch we shall compare the three main constitutional proposals that have been put forward since 2000 the so-called Kariba draft constitution, the NCA draft and the Law Society’s draft to see how far they provide for a separation of powers.

 

There is probably no country in the world in which the doctrine of separation of powers is applied strictly and absolutely. There are not always clear dividing lines between administrative, legislative and judicial functions jurists have wasted oceans of ink and mountains of paper in trying to define those terms precisely and in a modern State there must be a great deal of co-operation and interaction between the Executive and the Legislature, in particular, if the States business is to be efficiently conducted.

 

Legislation has become so far-reaching and complex that Parliament cannot enact all of it. Acts of Parliament must leave details to be filled in by regulations made by other authorities, usually Ministers. Hence the Executive branch must be given some law-making powers. At present all subsidiary legislation must be laid before Parliament, but Parliament has no power to repeal it. It would be closer to the ideal of separation of powers if Parliament did have such a power. The role of government has expanded so greatly that many decisions which affect peoples lives must be made quickly, and some of these decisions require specialized knowledge which is not possessed by judges or magistrates. Many of these decisions are made by administrative tribunals established by and answerable to Ministers. Hence the Executive branch is increasingly given judicial powers. This is not necessarily undesirable so long as the tribunal obey the basic standards of fairness laid down by the law and so long as the courts is able to review their decisions.²

 

It is generally recognized that in a legal system such as ours, judges do not just interpret the law. They develop and adapt the law to take account of changing circumstances, and in that way they actually make law. Hence the judicial branch has some law-making or legislative powers, but this power should not go beyond refining and developing existing law. In some countries the Head of State is elected by Parliament, not by the people. This is usually the case where the Head of State is non-executive, but in South Africa the executive President is elected by the National Assembly. While this violates the strict doctrine of separation of powers it has the advantage of ensuring that the Executive does not get too powerful and is ultimately answerable to Parliament.

 

Few modern constitutions provide for the direct election of judges and magistrates. They are usually appointed, subject to safeguards to ensure their independence, by the Executive or the Legislative branch, or by both branches. Because there cannot be a complete separation between the different branches of government, the doctrine of separation of powers can best be defined as a governmental system of separated institutions sharing power fairly between them. Relative powers of each branch should be balance.

 

CONCLUSION:

It is crucial to understand that the doctrine of separation of powers has come a long way from its theoretical inception. Today, the doctrine in its absolute form is only recognized in letter as it is entirely unfeasible and impractical for usage in the operational practices of a government. With the passage of time, States have evolved from being minimal and non-interventionist to being welfare oriented by playing the multifarious roles of protector, arbiter, controller and provider to the people. In its omnipresent role, the functions of the State have become diverse and its problems interdependent hence, any serious attempt to define and separate the functions would only cause inefficiency in the government.

 

The modern day interpretation of the doctrine does not recognize the division of Government into three water-tight compartments but instead provides for crossing rights and duties in order to establish a system of checks and balances. It has been found that the mere separation of powers between the three organs is not sufficient for the elimination of the dangers of arbitrary and capricious government.Even after the distinguishing the functions, if an authority wielding public power, is provided an absolute and sole discretion within the body in the matters regarding its sphere of influence, there will be a resultant abuse of such power.

 

Therefore, a system of checks and balances is a practical necessity in order to achieve the desired ends of the doctrine of separation of powers. Such a system, contrary to popular notion, is not dilatory to the doctrine but necessary in order to strengthen its actual usage. It is however, essential to continuously question whether powers have been appropriately allocated and whether the checking mechanisms set up both between and within different branches of State sufficiently safeguard against the misuse of the powers so granted.

 

In conclusion, it is evident that governments in their actual operation do not opt for the strict separation of powers because it is undesirable and impracticable, however, implications of this concept can be seen in almost all the countries in its diluted form. The discrepancies between the plan and practice, if any, are based on these very grounds that the ideal plan is impractical for everyday use. Otherwise, the doctrine is itself a part of the founding structure of the Constitution of all democratic nations. India in particular, relies heavily upon the doctrine in order to regulate, check and control the exercise of power by the three organs of Government. Whether in its theoretical conception or its practical usage, the Doctrine of Separation of Powers is essential for the effective functioning of a democracy.

 

REFERENCES:

1.        English Legal System The Fundamentals 1^st Edition-Jo Boylan -Kemp

2.        The English Legal System- Gary Slapperand David Kelly 4^th Edition Judicial Activism In India: G.B. Reddy : Gogia Law Agency: Hyderabad: First Ed:2001

3.        Principles of Administrative Law: M.P. Jain and S.N. Jain: Wadhwa Nagpur : Fifth Ed. 2007

4.        Article.1 Scetion.1 of the U.S. Constitution.

5.        Times of India 14/7/2010 at p.1

 

Received on 16.06.2015          Modified on 20.06.2015

Accepted on 30.06.2015         © A&V Publication all right reserved