Separation of Power: A comparative study under UK, USA and Bangladesh.
Introduction:
“A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all.” The separation of powers is a symbol of the governance of a state. It is originated with the Baron de Montesquieu, a French enlightenment writer. The actual separation of powers amongst different branches of government can be traced to ancient Greece until now, first developed and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic. Thus, no one branch can gain absolute power that they are given. The state is divided into branches, separate and independent powers and areas of responsibility. So that no one have more power than the other branches under this system. The common division of branches is an executive, a legislature, and a judiciary.
The idea of Separation of Powers measures, a government’s role is to protect individual rights, although acknowledging that governments have historically been the major violators of these rights.
There is an argument behind the Separation of Powers. If a single person or group has a large amount of power, they become dangerous to citizens. So, the separation of power method helps to remove the amount of power in any group’s hands, making it more difficult to abuse.
It distinguishes among three groups such as the Executive, the Legislative, and the Judicial. Those are distinguished by the kind of power they exercise. The legislative branch, which has the ability to enact laws, the executive branch has the ability to see those laws enforced, and the judicial branch has the ability to decide the guilt of a party and allowing punishment.
If a single group shared all three powers, they would have unlimited power and they could specify any law, arresting the ‘criminal’, and then decide that they are guilty. Through the Separation of Powers, the government will not initiate violent force.
This essay will be discussed about the comparative study on Separation of Power among UK, USA and Bangladesh.
Description:
United Kingdom (UK)
Though it is often described as having “a weak separation of powers but the principle of separation of power plays a role in the United Kingdom’s constitutional doctrine. The British constitution is not a codified document is based on this fusion in the person of the Monarch The Monarch has a formal role to play in the legislature (Where legal and political sovereignty lies, is the Crown-in-Parliament, and is summoned and dissolved by the Sovereign who must give his or her Royal Assent to all Bills so that they become Acts), the executive (the Sovereign appoints all ministers of His/her Majesty’s Government govern in the name of the Crown) and the judiciary (the Sovereign, as the fount of justice, appoints all senior judges, and all public prosecutions are brought.
Legislative:
Parliament may pass any legislation if it wishes. By contrast, in countries with a codified constitution, passing laws normally prohibits the legislature by that contradicts the constitution: constitutional amendments require a special procedure which is more strenuous than that for regular laws. Parliament also has the power to remove or regulate the executive powers of the Sovereign. Parliament Includes the Sovereign, the House of Commons and the House of Lords. The House of Commons includes 650 members elected by the people from single-member constituencies under a first past the post system.
Executive:
It is the branch of a state instrument in UK that formulates and implements the policy to run the country which becomes the part of the separations of power. It distinctively deals with the formulation of policies, plans, distraction, rules, regulation in relation to overall government spending like finance, accounts, budget, education, foreign policies in international affairs, setting up trade linkage with other foreign countries of the world. It encompasses of Member of Parliament, House of Commons, and selection criteria of House of Lords. The Executive department focuses its action plan relevant to the relationships of the parliament.
Judiciary:
The judiciary of state is responsible for arbitration of deputies and development of Common Law in UK.This branch relates to Legislative and other to set up a smooth administration ideally. The primary principle of separation of power has been promulgated by the Legislation department. The legislative department authorizes others to be in operative in case of power authentication as well power allocation.
United States (USA)
Separation of powers is the political guidelines stemming from the United States Constitution. The legislative, executive, and judicial branches of the United States government are reserved distinct in order to prevent abuse of power. This system is associated with a system of checks and balances. It divides governmental power into three branches; legislative (Parliament or Senate), executive (President or Prime Minister and the Cabinet), and judiciary (Chief Justice and other judges)
Legislative
Congress has the solitary power to legislate in the United States. Under the no allocation of principle, Congress may not hand over its lawmaking responsibilities to any other agency. It does not make great and sweeping delegations of its authority where the Supreme Court has been less stringent. Congress had assigned to the courts the power to prescribe judicial procedure.
Executive
Executive power is vested, with exceptions and credentials. The Constitution allows the president to ensure the faithful execution of the laws made by Congress. Congress may terminate that appointments, by accusation and restrict the president and his responsibility is to execute whatever instructions he is given by the Congress.
Congress often writes legislation to control executive officials to the performance of their duties, as authorized by the laws Congress and the Supreme Court decided the recommendation for legislative action.
Judicial:
Judicial power is to decide cases and disagreements. It is vested in the Supreme Court and substandard courts established by Congress. The judges must be assigned by the president with the advice and consent of the Senate. They hold office for life and receive compensations that may not be diminished during their persistence in office.
Bangladesh:
Legislative:
Bangladesh is a unitary position and parliamentary democracy. Direct elections in which all citizens whose age are 18 or over, can vote are held every five years for the unicameral parliament known as Jatiya Sangsad. Recently the parliament has 345 members including 45 reserved seats for women, elected from single-member constituencies.
Executive:
The President is the head of state which a largely ceremonial post. The real power is held by the Prime Minister, the head of government. The president is elected by the administration every five years and has normally limited powers that are substantially expanded during the occupancy of a caretaker government, who is mainly in controlling the transition to a new government.
Bangladesh has instituted a distinctive system of transfer of power; at the end of the occupancy of the government. Power is handed over to members of a civil society for three months. The members run the general elections and transfer the power to elected representatives. This system was first followed in 1991 and adopted to the constitution in 1996.
The prime minister is ceremonially selected by the president and must be a member of parliament (MP), commanding the confidence of the majority of the MPs. The cabinet is composed of ministers elected by the prime minister and appointed by the president.
Judicial:
The highest judiciary body in Bangladesh is the Court. Chief Justice and judges were recommended by the Prime Minister and formally appointed by the President. Since 1991 political parties during their occupancy in government have initiated the separation of the judiciary. The separation by presidential dissemination acts have signed and passed. Acts on the separation of Judiciary Administration, compensation, Pay and Leave, etc have all been completed. The Supreme Court has now judiciary and administrative right over all lower courts
A Comparative study on United Kingdom, United states and Bangladesh:
Separation of Power system in United Kingdom
Along with the lack of an establishment, it is the absence of any real separation of powers
which distinguishes the British Constitution from most others and from the American
Constitution in particular. Thus in the UK:
Members of one organ of Government are often also members of one or more Others. For example:
1. Legally and constitutionally, the Queen is head of all three organs of government,
also acts as ‘the Queen in Parliament’ (legislature), whose assent to a bill is necessary
for it to become law, acts as Head of State (executive), and as ‘Fount of
Justice’ (judiciary).However, the monarch exercises very little
constitutional power personally.
2. The prime minister and other ministers of the Crown (executive) in UK must be
members of one or other of the House of Parliament and this is an important rule
of the Constitution.
3. Executive is the law officers of the Crown. In England Crown is known as Attorney General and Solicitor General and in Scotland known as Lord Advocate. These officials have
important judicial purposes. The Lord Chancellor is the head of courts and as well as being a government minister and also member of House of Lord. Beside that most
judges in UK and the Lords of Appeal in Ordinary are also members of House of
Lord and they are participating in its lawmaking functions.
4. The British constitution, which is not a codified document
5. The British system is ‘unitary’. The British parliament can make or change laws on any matter. The local government has whatever powers the national government allots to it.
6. The British is a responsible government system. The Government (the Prime Minister and cabinet) is ‘accountable’ to parliament that means at any time, simply by vote of no confidence, carried on no matter what grounds, the parliament can remove the Government from office or force it to call an election.
7. A general election can be called at any time (by the Governor-General, on the advice of the Prime Minister) in the British system and election must be called, but an election can be held short of term. The election makes the parliament responsible to the electorate -for example, if administration policy that has general community support is blocked by the opposition or minor parties, the Government can appeal to the electorate.
The UK moved slowly away from separation of power system over many years. Authoritarian separation of powers does not work in Britain, where political structure served in most occurrences as a model for the government created by the U.S. Constitution. The British Westminster system is based on parliamentary sovereignty and responsible government, Parliament (consisting of the Sovereign (King-in-Parliament), House of Lords and House of Commons) is the supreme lawmaking authority.
Separation of Power system in United States of America
The US constitution provides for a fundamentally complete separation of powers. In other words, the three branch of government acts as separate from each other. There are two aspects to such a separation of powers:
1. A person may not be a member of other organs if he or she belongs to other organs which means if she or he is a member of the executive then she or he will not become member of the lawmaking organs.
2. Each of the organs must only distress of its own function only and cannot disrupt to each other which means that the executive cannot act like the judiciary to trial a person or someone.
In the United States constitution it’s apparently stated the article that concern with this matter such as:
1. Section 6 of the article 1 of the Constitution provides that no person holding office under the US may be a member of Congress. Therefore, the president and his member of administration are not member of the Congress nor may critics be a member of congress. The only exception is the vice president of US, who is a nonvoting chairman of the US senate. However the vice president is not really holding the office as such it is only in the event that a present president dies or leaves office for any reason the vice president actually acquires any power.
2. In the US constitution also is clearly stated about each organs of government is separate to its functions. Such as in the article 1 states, ‘All legislative powers herein granted shall be vested in a congress,’ and article 2 provides, ‘the executive power shall be vested in a President of USA,’ and so on.
As a result, because of the organs is separate as to its personnel, it will normally follow that functions can be equally separated. But this does not signify that there are no contacts at all between the three organs of government in the US. Indeed there are elaborate systems of checks and balances exist to ensure that there is interface between all three (on the one hand) and effective controls (on the other).
3. The United states constitution, which is a codified document.
4. American system is federal and there are two levels of government. The levels of government can change the powers of the other or make laws within certain fields assigned to the other.
5. The office of the House of Representatives, Senate, and President are all ‘fixed’ in the American system, so that an early election cannot be held. If a President dies or resigns, the Vice-President serves out the remaining part of his term. There are no circumstances in which the American President can dissolve Congress and call an early election.
On the vertical dimension, the governments of the states check the national government, and vice versa in the US. The federal laws primacy over state laws, but the tenth amendment funds to the states all powers not enumerated in the constitution. On the horizontal dimension, the executive, legislature, and judiciary check each other. Congress declares war, but the president is commander-in-chief of the armed forces. The president can veto bills which are passed by congress; congress can supersede the veto with a two-thirds majority in both chambers. The Supreme Court can announce legislation unconstitutional. There are a huge number of other checks too numerous to list here. On the other hand, despite the impressive list, Madison was distrustful that his ambition dictum would work in the legislature’s case; its possible for infringement was too great.
Separation of Power system in Bangladesh:
1. President is the head of state and Prime Minister, is the head of government in Bangladeshi constitution (Executive). Jatiya Sangsad (legislature) is the Parliament. The Supreme Court of Bangladesh (Judiciary) is created by the provisions of the Constitution of Bangladesh, 1972. There are two Divisions of the Supreme Court, i.e. (a) Appellate Division and (b) High Court Division.
2. The prime minister and other ministers (executive) in Bangladesh must be members of the Parliament. This is an important convention of the Constitution.
3. The Supreme Court of Bangladesh is the defender and guardian of Bangladesh Constitution. Appellate Division is the highest Court of Appeal which usually does not exercise the powers of a court of first instance where, the High Court Division is a Court of first instance in company and admiralty matters.
4. The constitution of Bangladesh, which is a codified document
5. Bangladeshi government system is federal: i.e., there are two levels of government, either of which can change the powers of the other or make laws within certain fields assigned to the other.
6. The Bangladeshi system has not that responsible government. This means that at any time, simply by vote of no confidence, carried on whatever grounds, the parliament cannot remove the Government from office or force it to call an election
7. In the Bangladeshi system the election may be held after 5 years. If a President dies or resigns, the Vice-President hand outs the remaining part of his term.
In Bangladesh, the courts will hinder the discretionary powers that are exercised by the administration in the following circumstances. The Constitution does not limit the power of delegation. It may be argued that the framers of the Constitution wanted to make a disappearance from the settled position and wanted to put Parliament for Bangladesh in the position somewhat similar to that of the British parliament in the matter of delegation of legislative power. But it is difficult to accept such an argument as the entrenched provisions of the Constitution edge the plenary legislative power of parliament for Bangladesh
Conclusion:
The concept of separation of powers is necessary in any system of government (presidential, constitutional, and parliamentary) In UK, USA and Bangladesh. Separation of powers between executive and legislative bodies helps the voters, in two separate ways. Firstly, it can draw out information held by the assigned officials and not otherwise available to the voters. Secondly, by playing one body against the other and by supporting the interest of the weaker body with their own, the voters can persuade the two bodies to discipline each other. Separation of power only works to the voters’ advantage if it is appropriately premeditated, while it can be harmful if it creates a ‘common pool’ problem. The presence of a clearly separated separation of powers in any given constitution encourages responsibility as the constitution will be very clear on the expectations by the citizens on each of the three branches. Ultimately, this can endorse clearness and honesty in both the ruled and rulers.
The aim of separation of powers is to prevent any undue concentration of power through checks and balances, which helps guarantee the rights and freedoms of ordinary citizens. Power divides like this should prevent absolutism or corruption arising from the opportunities that unchecked power offers. The policy can be broadened to enable the three branches to act as checks and balances on each other. Each branch’s autonomy helps keep the others from exceeding their power, thus ensuring the rule of law and defending individual rights.