“Separation of powers between the institutions can be secured through checks and balance, and accountability; can this really be done in practical situation? Explain and illustrate.”

Introduction

To run a country properly it is really important to ensure the separation of power. If the maximum portion of overall power is on the hand of a particular group of institution, then that become a burden for the state or republic. So through the separation of power the total power are divided in the hand of different group or institution. By this way the misuse of power can be eliminated. For an effective and modern democratic system all the major institution of the country need to work independently. If we think about the major three organ of the country legislative, executive, and judiciary, the three organ’s work should not be overlapped each other. Because there are of work are separated by the constitution of any country[1].

Legislative branch, which has the ability to exact laws; the executive branch has the ability to see those law enforced; and the judicial branch has the ability to decide punishment of braking laws[2].

If a singe group or people hold the three of these powers, then it is sure that the person or group would have unlimited power and they could specify any law, arresting criminal, and decide that they are guilty. Because of the separation of power government violate the laws. The aim of separation of power is to prevent unwanted concentration of power in between one group or person through check and balance, and accountability which ensure the freedom and rights of masses. Unchecked power offers corruption or absolution which arise because lack off accountability. But if the power is divided that should prevent corruption and absolution because accountability exist.

The separation of power policy can be broadened to enable the institutions to act as cheeks and balances on each others. Here in this system each branch is autonomous, so that, this autonomy helps to keep the others from exceeding their power, which ensuring rule of law and defend the individual right.

What is separation of power?

It is generally accepted that every state has three totally separate organs to do three different functions[3]. These three organs are:

  • Legislature: Enact the laws, to make the laws.
  • Executive: Enforce the laws.
  • Judiciary: Adjudicate the cases.

According to the theory of “separation of power” every organ of the state is separate in his function. Distributing the three main functions among the three different organs is called the separation of power. Thus the legislative can not exercise the executive or judicial power, executive can not exercise the legislative or judicial power, and the judiciary can exercise the others two power. Every organ will work independently.

Dimensions of separation of power

It has got two dimension of separation of power[4]. Those are:

  1. Every organ will do their work by their own.
  2. No organ will interfere in other organs function.

Historical background of separation of power

The doctrine of separation of powers has emerged in several forms at different period. Its origin is traceable to Plato and Aristotle. During the 16th and 17th centuries, French philosopher John Bodin and British politician Locke respectively had expressed their views about the theory of separation of power. But Montesquieu has formulated this doctrine systematically, scientifically, and clearly in 1748 for the first time[5]. He said that if all the powers are vested to a person the liberty of the citizens will be destroyed. So the power and the function of the state must be distributed in different organs and functions.

Modern view of separation of power

Now the state is democratic and welfare state. The previous view has been changed. Now strict or watertight separation of power is neither desirable nor possible. In strictly separation of power, we can not run the state. There is some overlapping. Sometimes an organization do other organ’s work but within the boundary of the constitution[6].

Importance of separation of power

The doctrine of separation of power has tremendous impact on the development of administrative law and functioning of government. The most important aspect of the doctrine of separation of power is it ensures judicial independence from the administrative direction. Separation of power preserves the liberty of the citizens and increases the efficiency of the state organs[7].

Defects of separation of powers

Though, theoretically, the doctrine of separation of powers was very sound, many defects are also in there. It is not completely possible to use in real life.

  • England does not have any kind of rule of separation of laws in their constitution. They don’t have any kind of absolute separation of legislative, executive, and judicial powers. Even they are most interested in integration of power [8].
  • This doctrine is based on the assumption of three function of government. Legislative, executive and judicial. According to the separation of power, these three are different organs in term of power holding. But US president Wooddrow Wilson stated that the proper function ability of the government depends on the cooperation of the three organ. Like human body these can’t be separated. They have to react with each others[9].
  • If is impossible to take certain actions if this doctrine is accepted in it’s entirely. Then the coordination of the three organs will not be possible. So the country cant be run properly[10].

Separation of power in Bangladesh context

The constitution of Bangladesh has also given importance on separation of power. Constitution has clearly distributed the functions of state among the different organs.

  1. Judiciary[11]: According to article (22), the state shall ensure the separation of the judiciary from the executive organs of the state. The judiciary functions are mention in the article (95-117).
  2. Legislative[12]: According to the article (65), the legislative power of the state or republic shall be vested on parliament of Bangladesh named “House of Nation.” Legislative functions are mentioned in the article (65-94) separately.
  3. Executive[13]: According to the article (55), the executive power of the republic shall be exercise by or on the authority at prime minister, in accordance with this constitution. Executive functions are mentioned in the article (48-65) separately.

So we can say that theoretically in Bangladesh separation of power is ensured.

Why separation of power is not possible absolutely?

There are  number of difficulties with the policy of separation of power, which once led Geoffrey Marshall to dismiss it as “infected with so much imprecision and inconsistency that it may be counted little more than a jumbled portmanteau of arguments for policies which ought to be supported or rejected on other grounds”.   These difficulties can be said in the following way.

First, every constitutional system that claims to be based on a separation of powers in fact provides, intentionally, for a system of checks and balances under which each institution impinges lying on another and in turn is impinged resting on. There is an open question whether this qualifies a system of separation of powers or completes it “by giving each department the necessary constitutional means…to resist encroachment by the others”.  The answer must depend in part on the actual checks and balances in each case[14].

Secondly, there are some disagreements about what is separated pursuant to the doctrine. The two principal options are  separation of institutions; which might, for example, stop overlapping membership a separation of functions, empowering  each institution to exercise the function for which it is designed (and perhaps, by extension, no other function). In reality, however, these are not mutually exclusive options. Any system of separation of powers must involve at least a measure of both[15].

This in turn leads to the third area of uncertainty: the degree of separation that such a doctrine requires. Complete separation is impracticable. There must be a point, however, at which partial separation is not worthy of the name. This necessitates the asking of some vital questions. Where, then, should the lines be drawn? And how should the lines that are drawn is enforced? It is possible to approach the answers to these questions through a consideration of the purposes and importance of a separation of powers. There are two such purposes. One is to prevent the abuse of public power through the concentration of power. Thus James Madison in Federalist 47: “The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny”.  The other is to enhance the efficiency of government. In its original form this rationale was used to justify the institution of a strong presidency in the United States, but it might be turned to more general purposes. It might be argued, for example, that separation of powers in this respect recognizes that each of the branches is unusually well prepared to exercise the particular functions assigned to it. Alternatively, it might be argued that the joint effect of a particular pattern of separated powers is a form of government with attributes best suited to the needs of a particular state[16].

Both of the two purposes traditionally assigned to a separation of powers were originally formulated by reference to the separation of legislative and executive power; indeed this was also the genesis of the theory in the writings of Montesquieu and Locke. Both purposes could be adapted to the separation of the judicial branch. As a generalization, however, the policy of separation of powers has not been well developed in relation to the judiciary, at least in a way that is useful here. The explanation lies in the distinctive constitutional arrangements of both the two states that have been the flagships of the separation of powers doctrine.

Conclusion

This is true that theoretically separation of power if effective in Bangladesh by the provision in the Bangladesh constitution. But the reality is completely different. There is no separation of power in practice. By theory it may be not possible to use accurately in any county but possible in partially. But In Bangladesh this will not be effective because of political parties. Every ruling political party tries to manipulate the separation of power and try to misuse the power. Even a parliament member is a part of a parliamentary commute which is formed to check the function ability of a ministry. He may also practice in the high court. So he can easily manipulate the system by integrating these overlapping powers. So separation of power is not possible in Bangladesh context.

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[1] Chowdhury, M. H. Democratization in South Asia: lessons from American institutions. 2000. pp. 67-70.

[2] Kamal, M. Bangladesh Constitution: trends and issues.1994. p. 123.

[3] Takwani, C. K. Administrative Law. Eastern Book Company, 2009. p. 29.

[4] Takwani, C. K. Administrative Law. Eastern Book Company, 2009. p. 29.

[5] Montesquieu The Spirit of the Laws, 1748, pp. 151-152.

[6] Takwani, C. K. Administrative Law. Eastern Book Company, 2009. p. 30.

[7] Methew, J. Indira Nehru Gandhi V. Raj Narin. 1975. p. 383.

[8] Jeffe, N. Administrative Law. 1996. p. 24.

[9] Nathanson, J. Law in a Changing Society. 1996. pp. 382-83.

[10] Takwani, C. K. Administrative Law. Eastern Book Company, 2009. p. 32.

[11] Article 22, Constitution of Bangladesh.

[12] Article 65, Constitution of Bangladesh.

[13] Article 55, Constitution of Bangladesh.

[14] Nathanson, J. Law in a Changing Society. 1996. pp. 382-83.

[15] Jeffe, N. Administrative Law. 1996. p. 24.

[16] Hossain, M. Democracy’s Roller Coaster Ride in Bangladesh. University Press, 2009. pp. 131-135.