Title of Assignment: Separation of Powers
Contents of Assignment :
1. Meaning of Separation of Powers
2. Separation of Powers Definition
3. Historical Background of Separation of Power.
4. Importance of Separation of Powers
5. Separation of Powers in the United Kingdom
6. Separation of Powers under the United States of America
6.01: Legislative Power in USA
6.02: Executive Power in USA
6.03: Judicial Power in USA
7. Checks and Balance of Separation of Powers
8. References
Submitted to :
Mrs. Tasnubha Rahaman
Lecturer
Department of Law
Atish Dipankar University of Science & Technology.
Submitted by :
Student of LL.M
Department of Law
Atish Dipankar University of Science & Technology
01: Meaning of Separation of Powers
Power means ability. Separation of power means power’s separation from one to another. When A power divided in to three branches in executive, legislative, and judicial are called Separation of Powers.
- 1. I accordance with the Random House Dictionary, © Random House, Inc. 2013, The principle or system of vesting in separate branches the executive, legislative, and judicial powers of a government.
- 2. The doctrine that the individual branches of government (executive, legislative, judicial) have separate and unique powers the others cannot impinge upon.
02. Separation of powers definition
A fundamental principle of the United States government, whereby powers and responsibilities are divided among the legislative branch, executive branch, and judicial branch. The officials of each branch are selected by different procedures and serve different terms of office; each branch may choose to block action of the other branches through the system of checks and balances. The framers of the Constitution designed this system to ensure that no one branch would accumulate too much power and that issues of public policy and welfare would be given comprehensive consideration before any action was taken.
03.00: Historical background of Separation of Power?
Thus Clement Walker, a member of the Long Parliament in 1648, saw distinctly enough the kind of arbitrary, tyrannical rule against which the governed had to be protected. The remedy, he thought (no. 1), lay in a separation of governmental functions cast in terms of “the Governing power,” “the Legislative power,” and “the Judicative power.”
For Marchamont Nedham, writing under Cromwell’s Protectorate in 1656 (no. 2), the required separation is that of legislative and executive powers into different “hands and persons.” As used by him, the distinction resembles the sharp dichotomy between the formation of policy and its administration favored by mid-twentieth-century American administrative theorists. Separation, for Nedham, is an indispensable means for locating responsibility and fixing accountability. An executive, unambiguously charged with executing a policy set by the “Law-makers,” can be held liable for its performance or nonperformance. Let that clear line of distinction and responsibility be blurred, and liberty and the people’s interest are alike in jeopardy.
John Trenchard’s argument of 1698 carries Nedham’s separation of persons even further (no. 4). One might say that without separation of persons there cannot be a meaningful separation of powers. Here, more than accountability is sought. The freedom of England depends on a truly representative–i.e., an uncorrupt–House of Commons serving as a check on an executive which already has the power of the sword. Given the premise that “it is certain that every Man will act for his own Interest,” the only safeguard against “continual Heartburnings between King and People” consists in so interweaving the representatives’ interest with that of the people that in acting for themselves, the representatives must likewise act for the common interest. As is true of many eighteenth-century writers, Trenchard here drew on arguments for separation of powers and for mixed or balanced government without sharply distinguishing the two.
Among Americans reflecting on new political arrangements in the latter half of the eighteenth century, no political authority was invoked more often than “the celebrated Montesquieu.” Thanks in some measure to those Americans themselves, the name of Montesquieu is firmly attached to the doctrine of the separation of powers. But like most teachings of that subtle mind, this one has its ambiguities and invites differing interpretations. Everyone agrees that the locus classicus of the separation of powers doctrine is the seemingly rambling, discursive chapter on the constitution of England in the Spirit of Laws (see ch. 17, no. 9). The book of which this chapter forms a part is entitled, “Of the Laws which Establish Political Liberty with Regard to the Constitution”; it is with a view to political liberty that separation of powers is necessary. By political liberty Montesquieu meant “a tranquillity of mind arising from the opinion each person has of his safety.” Men’s minds cannot be at rest if two or three of the kinds of governmental power are held in the same hands. Montesquieu’s tripartite division appears to be based on a separation of functions–legislative, executive (having largely to do with foreign affairs–Locke’s “federative” power), and judicial. Montesquieu’s judicial power is not, however, Hamilton’s or Marshall’s; nor is it the Law Lords sitting as a court of last resort. It appears, rather, in the form of ad hoc tribunals, juries of one’s peers who judge of both fact and law without need for the guiding intelligence of a professional judge.
Although Montesquieu separated governmental functions and separated governmental powers, there is no clear one-to-one correspondence between the two because he did not insist on an absolute separation. Thus, although the executive is a separate branch, it properly partakes (through the veto, for example) in a legislative function. This blending or overlapping of functions is in part necessitated by Montesquieu’s intention that separation check the excesses of one or the other branch. Separation of powers here reinforces or even merges into balanced government. Excesses may come from all or almost all sides. Thanks to bicameralism, the licentiousness of the many and the encroachments of the few are alike checked. The nobility mediate between a potentially overbearing lower house and the executive. The executive’s power to convene and prorogue the legislature and to veto its enactments are forms of self-defense, while the legislature’s power to impeach and try the agents or ministers of the executive is necessary and sufficient to hold the executive accountable to examination without holding him hostage.
If the goal is liberty–that is to say, individual safety–the model to follow (Montesquieu suggested) is that of the English constitution portrayed in his pages. But one might pursue an alternative goal with more or less separation of powers and more or less happiness–like “the monarchies we are acquainted with.”
Although maintaining that sovereignty resides in the king in Parliament, Blackstone draws heavily on elements of Montesquieu’s argument and adapts them to his peculiar purpose (no. 6). For all his insistence on three distinct powers–and they are now the familiar executive, legislative, and judicial powers, with the latter a recognizable judiciary with independent tenure of office–and for all his insistence on separation for the sake of warding off oppressive government, Blackstone seems less interested in separation than he is in balance. His mechanical image fits his point; balance is to be sought not in total separation but in the artful involvement and mutual interactions of the several branches of the civil polity: executive, nobility, and people. The separation of powers and balance of social orders are inextricably interwoven.
If the instructions of the Bostonians to their representatives in the Massachusetts provincial congress are any sign (no. 8), the reasons of Montesquieu and the others had become commonplace by 1776. No less effective in directing American thoughts to the separation of powers would have been the protracted, painful controversies between royal governors, councils, and colonial assemblies. The colonists’ experiences with what they saw as executive usurpations, corruption of elected officials, and manipulation of electoral processes focused their minds on suitable remedies. For the Bostonians the tripartite separation of powers, functions, and persons is a sine qua non if arbitrary power is to be checked and liberty secured. A correlative of the separation of persons is the prohibition of plural office-holding; and in the democratic context that entails adequate salaries so that officials are “above the necessity of stooping.”
John Adams’s early Thoughts on Government (see ch. 4, no. 5) similarly confirms the high expectations held for the separation of powers and the broad spectrum of ills that it would guard against: passionate partiality, absurd judgments, avaricious and ambitious self-serving behavior by governors, and the inefficient performance of functions.
The experiences under the early state constitutions and the Articles of Confederation reinforced the belief in separation. Jefferson’s critique of the Virginia Constitution (no. 9) raised the familiar concerns with safety and efficiency; both to establish free principles and to preserve them once established required a division and balance that went beyond those embodied in existing arrangements. Despotism is no less despotic because “elective.”
The Philadelphia Convention usually discussed the adequacy and proper degree of the separation of powers in terms of the ends to be achieved: stability (Dickinson), defense (Gerry, Madison, G. Morris, Wilson), independence (King), and proper function (Gerry). No less worrisome, however, was whether the means available to the several branches of government to defend themselves against the others might not be excessive.
04: Importance of Separation Of Power
The separation of power in its true sense is very rigid and this is one of the reasons of why it is not accepted by a large number of countries in the world. The main object as per Montesquieu in the Doctrine of separation of power is that there should be government of law rather that having will and whims of the official. Also another most important feature of the above said doctrine is that there should be independence of judiciary i.e. it should be free from the other organs of the state and if it is so then justice would be delivered properly. The judiciary is the scale through which one can measure
The actual development of the state if the judiciary is not independent then it is the first step towards a tyrannical form of government i.e. power is concentrated in a single hand and if it is so then there is a cent percent chance of misuse of power. Hence the Doctrine of separation of power do plays a vital role in the creation of a fair government and also fair and proper justice is dispensed by the judiciary as there is independence of judiciary. Also the importance of the above said doctrine can be traced back to as early as 1789 where the constituent Assembly Of France in 1789 was of the view that “there would be nothing like a Constitution in the country where the doctrine of separation of power is not accepted”. Also in 1787 the American constitution inserted the provision pertaining to the Doctrine of separation of power at the time of drafting of the constitution in 1787. Further in the Indian constitution also there provisions pertaining to the doctrine of separation of power. Judicial view on the doctrine of Separation of Power as clearly mentioned about the separation of power there were times where the judiciary has faced tough challenges in maintaining and preserving the Doctrine of separation of power and it has in the process of preservation of the above said Doctrine has delivered. landmark judgments which clearly talks about the independence of judiciary as well as the success of judiciary in India for the last six decades. The first major judgment by the judiciary in relation to Doctrine of separation of power was in Ram Jawaya v state of Punjab.
The court in the above case was of the opinion that the Doctrine of separation of power was not fully accepted in India. Further the view of Mukherjea J adds weight to the argument that the above said doctrine is not fully accepted in India.
He states that: “The Indian constitution has not indeed recognize the doctrine of separation of powering its absolute rigidity but the functions of the different parts or branches of the government have been sufficiently differentiated and consequently it can very well be said that our constitution does not contemplate assumption, by one organ or part of the state, of functions that essentially belong to another”. Later in I.C.Golak Nath v State of Punjab 5
Subha Rao, C.J opined that, “The constitution brings into existence different constitutional entitles, namely the union, the state and the union territories. It creates three major instruments of power, 4 AIR 1955 SC 5495 AIR 1967 SC 1643 namely the Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping there limits. They should function with the spheres allotted to them” The above opinion of the court clearly states the change in the courts view pertaining to the opinion in the case of Ram Jawaya v state of Punjab related to the doctrine of separation of power.
The came one of the most land mark judgments delivered by the Supreme Court in Keshvananda Bharti v Union of India 6
The court was of the view that amending power was now subject to the basic features of the constitution. And hence, any amendment tampering these essential features will be struck down as unconstitutional. Beg, J. added that separation of powers is a part of the basic structure of the constitution. None of the three separate organs of the republic can take over the functions assigned to the other 7
Hence this further confirmed the opinion of the court in relation to the doctrine of separation of power. Then in Indira Gandhi Nehru v. Raj Narain 8 , where the dispute regarding P.M. election was pending before the Supreme Court, opined that adjudication of a specific dispute is a judicial function which parliament, even under constitutional amending power, cannot exercise i.e. the parliament does not have the jurisdiction to perform a function which the other organ is responsible for otherwise there will be chaos as there will be overlapping of the jurisdictions of the three organs of the state. Also the constituent Assembly Of France in 1789 was of the view that “there would be nothing like a Constitution in the country where the doctrine of separation of power is not accepted . So if there is a provision then there should be proper implementation and this judgment emphasis on that point only. Also in I.R. Coelho vs. State of Tamil Nadu 9
05: Separation of powers in the United Kingdom
The conception of the separation of powers has been applied to the United Kingdom and the nature of its executive (UK government, Scottish Government, Welsh Government and Northern Ireland Executive), judicial (England and Wales, Scotland and Northern Ireland) and legislative (UK Parliament, Scottish Parliament, National Assembly for Wales and Northern Ireland Assembly) functions. Historically, the apparent merger of the executive and the legislature, with a powerful Prime Minister drawn from the largest party in parliament and usually with a safe majority, led theorists to contend that the separation of powers is not applicable to the United Kingdom. However, in recent years it does seem to have been adopted as a necessary part of the UK constitution.
The independence of the judiciary has never been questioned as a principle, although application is problematic. Personnel have been increasingly isolated from the other organs of government, no longer sitting in the House of Lords or in the Cabinet. The court’s ability to legislate through precedent, its inability to question validly enacted law through legislative supremacy and parliamentary sovereignty, and the role of the Europe-wide institutions to legislate, execute and judge on matters also define the boundaries of the UK system.
06:Separation of powers under the United States of America
Separation of powers is a political doctrine originating in the writings of Montesquieu in The Spirit of the Laws where he urged for a constitutional government with three separate branches of government. Each of the three branches would have defined powers to check the powers of the other branches. This idea was called separation of powers. This philosophy heavily influenced the writing of the United States Constitution, according to which the Legislative, Executive, and Judicial branches of the United States government are kept distinct in order to prevent abuse of power. This United States form of separation of powers is associated with a system of checks and balances.
06.01: Legislative power in USA
Congress has the sole power to legislate for the United States. Under the nondelegation doctrine, Congress may not delegate its lawmaking responsibilities to any other agency. In this vein, the Supreme Court held in the 1998 case Clinton v. City of New York that Congress could not delegate a “line-item veto” to the President, by powers vested in the government by the Constitution.
Where Congress does not make great and sweeping delegations of its authority, the Supreme Court has been less stringent. One of the earliest cases involving the exact limits of non-delegation was Wayman v. Southard 23 U.S. (10 Wheat.) 1, 42 (1825). Congress had delegated to the courts the power to prescribe judicial procedure; it was contended that Congress had thereby unconstitutionally clothed the judiciary with legislative powers. While Chief Justice John Marshall conceded that the determination of rules of procedure was a legislative function, he distinguished between “important” subjects and mere details. Marshall wrote that “a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details.”
Marshall‘s words and future court decisions gave Congress much latitude in delegating powers. It was not until the 1930s that the Supreme Court held a delegation of authority unconstitutional. In a case involving the creation of the National Recovery Administration called A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), Congress could not authorize the president to formulate codes of “fair competition.” It was held that Congress must set some standards governing the actions of executive officers. The Court, however, has deemed that phrases such as “just and reasonable,” “public interest” and “public convenience” suffice.
06.02: Executive power in USA
Executive power is vested, with exceptions and qualifications,[1] in the President. By law (Section 2.) the president becomes the Commander in Chief of the Army and Navy, Militia of several states when called into service, has power to make treaties and appointments to office — “…with the Advice and Consent of the Senate”—receive Ambassadors and Public Ministers, and “…take care that the laws be faithfully executed” (Section 3.) By using these words, the Constitution does not require the president to personally enforce the law; rather, officers subordinate to the president may perform such duties. The Constitution empowers the president to ensure the faithful execution of the laws made by Congress. Congress may itself terminate such appointments, by impeachment, and restrict the president. The president’s responsibility is to execute whatever instructions he is given by the Congress. Bodies such as the War Claims Commission, the Interstate Commerce Commission and the Federal Trade Commission— all quasi-judicial often have direct Congressional oversight.
Congress often writes legislation to restrain executive officials to the performance of their duties, as laid out by the laws Congress passes. In INS v. Chadha (1983), the Supreme Court decided (a) The prescription for legislative action in Art. I, § 1—requiring all legislative powers to be vested in a Congress consisting of a Senate and a House of Representatives—and § 7—requiring every bill passed by the House and Senate, before becoming law, to be presented to the president, and, if he disapproves, to be repassed by two-thirds of the Senate and House—represents the Framers’ decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered procedure. This procedure is an integral part of the constitutional design for the separation of powers. Pp. 945–951. Further rulings clarified the case; even both Houses acting together cannot override Executive vetos without a 2/3 majority. Legislation may always prescribe regulations governing executive officers. The Executive Branch is also the dominant voice of the United States in foreign affairs.
06.03: Judicial power in USA
The power to decide cases and controversies — is vested in the Supreme Court and inferior courts established by Congress. The judges must be appointed by the president with the advice and consent of the Senate, hold office during good behavior and receive compensations that may not be diminished during their continuance in office. If a court’s judges do not have such attributes, the court may not exercise the judicial power of the United States. Courts exercising the judicial power are called “constitutional courts.”
Congress may establish “legislative courts,” which do not take the form of judicial agencies or commissions, whose members do not have the same security of tenure or compensation as the constitutional court judges. Legislative courts may not exercise the judicial power of the United States. In Murray’s Lessee v. Hoboken Land & Improvement Co. (1856), the Supreme Court held that a legislative court may not decide “a suit at the common law, or in equity, or admiralty,” as such a suit is inherently judicial. Legislative courts may only adjudicate “public rights” questions (cases between the government and an individual and political determinations).
07.00: Checks and balances of Separation of Powers
Legislative | Executive | Judicial |
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08.00: References
- Davis, Z. (2001). “Presidential Vetoes, 1989–2000.”
- Dean, J. W. (2004). “The U.S. Supreme Court and The Imperial Presidency.”
- Kilman, J. & Costello, G. (Eds). (2000). The Constitution of the United States of America: Analysis and Interpretation.
- Kunhardt, P. B., Jr., Kunhardt, P. B., III & Kunhardt, P. W. (1999). The American President. New York: Penguin.www.
- Madison, J. (1788). “The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts.”
- Steven G. Calabresi, Debate, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. Pa. L. Rev. PENNumbra 134 (2008).
- Saikrishna Bangalore Prakash, Why the Incompatibility Clause Applies to the Office of President, 4 Duke J. Const. L. & Pub. Pol’y 143 (2009).
- Mount, S. J. J. (2003). “Rewriting the Constitution.”
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