There are three distinct activities in every government through which the will of the people are expressed. These are the legislative, executive and judicial functions of the government. Corresponding to these three activities are three organs of the government, namely the legislature, the executive and the judiciary. The legislative organ of the state makes laws, the executive enforces them and the judiciary applies them to the specific cases arising out of the breach of law. Each organ while performing its activities tends to interfere in the sphere of working of another functionary because a strict demarcation of functions is not possible in their dealings with the general public. Thus, even when acting in ambit of their own power, overlapping functions tend to appear amongst these organs.
The question which assumes significance over here is that what should be the relation among these three organs of the state. Whether there should be complete separation of powers or there should be co-ordination among them.
An analysis into these three organs and the relations between them is to be done with the experience in different countries along with UK which will give a clear idea about this doctrine and its importance in different Constitutions.
Today all the systems might not be opting for the strict separation of powers because that is undesirable and impracticable but implications of this concept can be seen in almost all the countries in its diluted form.
It is widely accepted that for a political system to be stable, the holders of power need to be balanced off against each other. The principle of separation of powers deals with the mutual relations among the three organs of the government, namely legislature, executive and judiciary. This doctrine tries to bring exclusiveness in the functioning of the three organs and hence a strict demarcation of power is the aim sought to be achieved by this principle. This doctrine signifies the fact that one person or body of persons should not exercise all the three powers of the government.
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.
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.
Through his doctrine Montesquieu tried to explain that the union of the executive and the legislative power would lead to the despotism of the executive, for it could get whatever laws it wanted to have, whenever it wanted them. Similarly the union of the legislative power and the judiciary would provide no defence for the individual against the state. The importance of the doctrine lies in the fact that it seeks to preserve the human liberty by avoiding concentration of powers in one person or body of persons.
“The accumulation of all powers, legislative, executive and judicial, 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”.
Therefore, separation of powers doctrine acts as a check against Tyrannical rule. The purpose underlying the separation doctrine is to diffuse governmental authority so as to prevent absolutism and guard against arbitrary and tyrannical powers of the state, and to allocate each function to the institution best suited to discharge it.
Separation of Power in Bangladesh.
Article 115 of the Constitution of Bangladesh says-
“Appointments of persons to offices in the judicial service or as magistrates exercising judicial functions shall be made by the President in accordance with rules made by him in that behalf.”
As regards Article 115 aforesaid, it is exigent to mention here that this Article 115 was substituted for the original Article 115 by the Constitution (Fourth Amendment) Act, 1975 (Act II of 1975). With gard to the appointment of persons to offices in the judicial service or magistrates exercising judicial functions, it was, among other, provided in the original Article 115 that the President would make the appointment but in case of District Judges the appointment would be made on the recommendation of the Supreme Court and in relation to appointments of persons to subordinate courts have been taken away clearly concentrating the same to the President himself.
Provision relating to control and discipline of subordinate courts is given in Article 116 of the Constitution of Bangladesh. This Article says –
“The control (including the power of posting, promotion and grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions shall vest in the President and shall be exercised by him in consultation with the Supreme Court”.
As regards control and discipline of subordinate courts, it is pertinent to mention here that in the original Article 116 as enacted in 1972, it was provided that “The control (including the power of posting, promotion and grant of leave) and discipline of persons employed in die judicial service and magistrates exercising judicial functions shall vest in the Supreme Court”, while both the Constitutions of 1956 and 1962 of Pakistan retained such power of superintendence and control for the High Courts, none provides such extra-ordinary power to their Supreme Court, But by the Constitution (Fourth Amendment) Act, 1975 (Act II of 1975), (he power of controlling the subordinate courts was taken away from the Supreme Court and vested in the President who shall exercise these powers in consultation with the Supreme Court.
Article 22 of toe Constitution of Bangladesh emphasises independent Judiciary by way of separating the same from the executive organ of the State. This Article provides that the State shall ensure the separation of At judiciary from the executive organ of the State. This principle involves two consequences first, mat a Judge or Magistrate who tries a case must not be in any manner connected with the prosecution, or interested in the prosecution. Second, that he must not be in direct a & administration subordination to any one connected with the prosecution. Quite clearly it is impossible for a Judge to take a wholly independent new of the case he Is trying if he feels himself to any extent interested w er responsible for the success of one side or the other. This is the first aspect ft is equally impossible for him to take an independent view of case he is trying if he feels himself to any extent interested in or responsible’ for the success of one side or the other. This is the first aspect! It is equally impossible for him to take an independent view of the case before him if he knows that his posting, promotion, and -prospects generally depend on his pleasing the executive head. Thus the separation of functions means and involves the elimination of these two evils.
During the British days, there was a demand for the separation of the Judiciary from the Executive and Article 22 as aforesaid meets that demand. But very little has been done by the State in this count in practice. The Deputy Commissioner who is the chief executive in the district can arrest and prosecute a person. He also acts as a judge and tries criminal cases. It is, therefore, generally contended that such a ractice is not in accordance with the theory of separation of powers.
So, in view of the foregoing, it may be concluded that concentration of judicial powers to (he executive i. e., to the President depriving the Supreme Court and also concentration of the executive and judicial powers in one person i.e., in the hand of Deputy Commissioner is obviously contrary to the theory of separation of powers.
On the other hand, as parliamentary form of government exists in Bangladesh where the Executive is accountable to the Legislature for its actions25 and 90% of the total number of ministers is required to be Parliament members26 it is convincing that the Constitution of Bangladesh has not accepted the theory of separation of powers in rigid form and no separation of powers in the strict sense of die term exists in Bangladesh. Indeed what exists in Bangladesh are-
(a) Organic separation27 as distinct from personal separation;
(b) partial union28 ; and mutual interaction between the organs.29
In fact, in the face of new demands on the government to solve i mplex socio-economic problems of the modem society, titutions have been created and new procedures evolved by which the
- ¬¬¬¬¬¬ Article 55 of the Constitution of Bangladesh (As modified up to \2t\ Amendment).
- The powers of the government in Bangladesh have been entrusted U three separate and distinct organs, namely, the Executive (part IV of thi Bangladesh Constitution), the Legislature (Part V of the Bangladesh Constitution) and the Judiciary (Part VI of the Bangladesh Constitution).
- 90% of the total number of Ministers shall have to be from the Parliament members (Article 55, Bangladesh Constitution).
- (a) The Legislature legislates and controls the Executive as the Executive is accountable to the Parliament for its actions: (b) the Executive has the power of delegated legislation and executes the laws passed by the Parliament; and (c) the Judiciary, besides judicial functions, has the power to declare administrative actions or any law null and void on the ground of Ultra Vires. It has the power of rule¬making as well as interpretation of laws passed by the Legislature.
Doctrine of ‘separation’ has been largely diluted in Bangladesh. But in spite of this fact, the growth as well as character of administrative law in Bangladesh itself has been influenced and conditioned to some extent by this doctrine. The strict separation theory has been dented to some extent when the Constitution of Bangladesh authorises the Parliament to delegate to any person or authority, by Act of Parliament, power to nake orders, rules, regulations, bye-laws or other instruments having legislative effect.30 But, because of the separation theory, courts of this sub-continent have laid down that the legislature cannot confer an unlimited amount of legislative power on an administrative organ, and itself lay down the policy which the administration is to follow while making the rules.31
Again, the flagrant violation of the theory of separation of powers still continues in Bangladesh in the alarming concentration of the executive and judicial powers in the hands of the Magistrates (not Metropolitan Magistracy). In Bangladesh, a Magistrate, as an executive, can arrest and prosecute a person. He also acts as a judge and tries criminal cases. Pertinent to point out here that it is actually inconvenient for a !agistrate to take an independent view of the case before him when he knows that his posting, promotion and prospects generally depend on his pleasing the executive head. However, to avoid this inconvenience and keep me application of judicial powers by the Magistrates free from any executive influence or interference, the Constitution of Bangladesh because of separation theory, provides that “all magistrates shall be independent in the exercise of their judicial functions.”
- Article 65 of the Constitution of Bangladesh.
- AIR 1951 SC 332 (Delhi Laws Act case), AIR 1954 SC 569 (Rajnarian Singh Vs. Chairman, Patna Administration Committee), PLD 1965 DNC 576.
Actually the aim of the doctrine is to guard against tyrannical and arbitrary powers of the State. The rationale underlying the doctrine has been that if all power is concentrated in one and the same organ, there would arise the danger that it may enact tyrannical laws, execute them in a despotic manner, and interpret them in an arbitrary fashion without any external control. Though, in the face of the complex socio¬economic problems demanding solution in a modem welfare State, it nay no longer be possible to apply the separation theory strictly, nevertheless, it has not become completely redundant and its chief value lies in emphasizing that it is essential to develop adequate checks and balances to prevent administrative arbitrariness. Thus, it has been stated about the doctrine; “Its object is the preservation of political safeguards inst the capricious exercise of power, and incidentally, it lays down the broad lines of an efficient division of functions. Its logic is the logic of polarity rather than strict classification… the great end of the theory is, by dispersing in some measure the centres of authority, to prevent absolutism.”?3
In conclusion, it is of vital importance to point out here that although fry force of circumstances administrative law has inevitably grown in Bangladesh but the separation doctrine, unlike UK., has generated an attitude of indifference towards it, as generated in England under the spell of the Dicean concept of the ‘Rule of Law’. Many people of our Country criticise the growth of administrative process as doing violence to the concept of separation of powers. Hence, this theory has been characterized in the country as a principal conceptual barrier to the and growth of administrative law in Bangladesh.
- Jaffe and Nathason, Administrative Law :
Cases and Materii (1961).
The Separation of Power in UK
There is no denying the fact that the separation of power lies with the doctrine of allotment of supremacy within the parliamentary bodies of the executive, the legislature and the Judiciary. The very concepts come down with a clear indication of borderline differentiating the functions among the institutions as stated. In this context, in setting up the separation of power within the jurisdiction, none should exercise excessive power in order to corrupt their discretionary role. It is evident that many jurists focus variety of opinions on the doctrine of power-separation from where the most significant perceptions can be accomplished from Baron Charles Montesquieu a French author in De L’ Esprit it des Lais (1748). In this phenomenon he derogatively envisaged the three main parts of the government like the Executive, the legislative and the Judiciary. He focuses the significance of the relevant functions of the department in the area of power separation. In regard to the idea as envisaged in the doctrine of power separation, John Locke has set out various theories which have been promulgated in the history of good governance in the U.K.
Description of the Institutions:
The Executive: It is the branch of a state mechanism which formulates and implements the policy to run the country which becomes the part and parcel of the separations of power. It uniquely 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 comprises of Member of Parliament, House of Commons, and selection criteria of House of Lords. The Executive department focuses its action plan relevant to the affairs of the parliament.
This department is charged with the responsibility of executing legislation wherein the UK legislature, it is known as ‘Parliament’ which comprises of three elements such as the Queen, the House of Lords and the House of Commons. The members of the House of Commons are elected on the basis of selection criteria as reflected in parliamentary voting system virtually.
The Judiciary: This branch of state is responsible for adjudication of deputies and development of Common Law. This department relates to Legislative and other to set up a smooth administration ideally. The primary doctrine of separation of power has been promulgated by the Legislation department which authorizes others to be in operative in case of power authentication as well power allocation.
Extent of Separation of Power: Make an analysis the context of execution and legislature; we will observe that the parliamentary system consists of the following:
- Member of Parliament elected by the people who have voting right to elect their representative.
- Prime-minister is elected to administer the whole process of administration
- The other manpower like police force, military personnel and civil servants are very ancillary to the operational work of the Prime minister and his or her administrative work to lead and control the state mechanism.
- The separation of power has been decentralized with a view to control the manpower of civil servants and others so that the whole systems of administration under the guiding principle of parliamentary body.
- The government is sometimes scrutinized in the parliament in the form of questions, debates and selection of Committee in different Ministries to streamline the work of the government. In fact, in some cases of the government, the opposition supports the work of the government and sometimes they criticize the work of some cases which are self explanatory in the area where their involvement persist.
- In view of the corrections, revisions, proposals and criticism, the house of Lord, may revise the indictment to legislation. In contrast to thee amendments, the Secondary legislation is formulated to operate the system in order to avoid cumbersome and complexion. Consequent on some capriccios, time is saved and the whole parliamentary system of the government is run efficiently.
- In defining an exception towards delegated legislation, parliament has never enough time to enact all the legislation which are inevitable in question.
In order to find delicacy in between legislation and judiciary, one who has to follow in the sense that the Parliamentary body is the supreme authority to act on behalf of the Government? The legislation cannot amend anything as envisaged and promulgated by the parliament. The relevant case has been set up as Pickin V British Railway Board where there was some confusion which was duly eliminated later on.
In the context of relationship with judiciary and Executive, the most relevant work was to define the position of L.C in UK. But this problem was consequently removed by the CRA very clearly in 2005. Even though, there was a problem in setting up the administrative functions of Tariff. It was later revised in view of the favorable side perceptually formulated for the sake of the government. In relation to the function of the Power of judiciary, there was a breech of trust in the doctrine where the executives were performing the work of judiciary. This conflict was tentatively resolved by the House of Lord. The relevant case which was formulated: IV UK V UK. Such conflictions were resolved in considering the violation of separation of power. In fine, all the problems relating to the separation of powers were resolved in 2005 by CRA which was not a flabbergasting pattern for the sake of the people. However, what sort of work was taken under consideration, the restriction which was imposed earlier has now been relaxed.
Before we go to UK, it’s important to know the constitutional setup of the country to which UK was a colony and ultimately owes the existence of the form of government it has. U.K. follows a parliamentary form of government where the Crown is the nominal head and the real legislative functions are performed by the Parliament. The existence of a cabinet system refutes the doctrine of separation of powers completely. It is the Cabinet which is the real head of the executive, instead of the Crown. It initiates legislations, controls the legislature, it even holds the power to dissolve the assembly. The resting of two powers in a single body, therefore denies the fact that there is any kind of separation of powers in England.
Checks and balances
Separation of powers is not absolute; it is instead qualified by the doctrine of checks and balances. James Madison wrote that the three branches “should not be so far separated as to have no constitutional control over each other.” The system of checks and balances is designed to allow each branch to restrain abuse by each other branch.
The Senate has the power to try impeachments. Shown above is the impeachment trial of Andrew Johnson.
The compensation of executive officials and judges is determined by Congress, but Congress may not increase or diminish the compensation of a President, or diminish the compensation of a judge, during his term in office. Congress determines its own members’ emoluments as well, but the Twenty-seventh Amendment precludes an increase in congressional salary from taking effect until after the next biennial congressional election.
The House of Representatives has the power to impeach both executive officials and judges; the Senate tries all impeachments. Note that Senators and Representatives are not considered civil officers: they are not subject to impeachment (but either House may expel one of its members by a two-thirds vote). While a simple majority is sufficient to impeach in the House of Representatives, a two-thirds majority in the Senate is necessary for conviction. Removal from office upon conviction is automatic. The Senate may impose the further punishment of barring the convict from ever holding an office under the United States. No punishment other than removal from office and prohibition from holding future office is permitted in impeachment trials, but convicts remain liable to regular criminal proceedings and punishment thereafter.
Congress exercises a check over the composition of the executive branch. When no Presidential candidate has a majority in the Electoral College, the House of Representatives chooses between the top three candidates (under the Twelfth Amendment). The Senate performs a similar function with regards to Vice Presidential elections; the Senate’s choice is limited to the two highest-placed candidates. When there is a vacancy in the office of Vice President, the President may fill it with the approval of both houses of Congress. Furthermore, the Senate’s advice and consent is required for appointments of Cabinet members, ambassadors and other senior executive officers. When the Senate is in recess, however, the President may make temporary appointments, called recess appointments, without any confirmation process.
Congress may also influence the composition of the judicial branch, as may the President. Congress may establish courts inferior to the Supreme Court and set their jurisdiction. Furthermore, Congress regulates the size of the courts. Judges are appointed by the President with the advice and consent of the Senate.
The President exercises a check over Congress through his power to veto bills, but Congress may override any veto except for a pocket veto by a two-thirds majority in each house. When the two houses of Congress cannot agree on a date for adjournment, the President may settle the dispute. Either house or both houses may be called into emergency session by the President. Finally, the Vice President serves as President of the Senate.
The President, as noted above, appoints judges with the Senate’s advice and consent. He also has the power to issue pardons and reprieves. Such pardons are not subject to confirmation by either house of Congress, or even to acceptance by the recipient.
The President is the civilian Commander in Chief of the Army and Navy of the United States.
Courts check both the executive branch and the legislative branch through judicial review. This concept is not written into the Constitution, but was envisioned by many of the Constitution’s Framers (for example, the Federalist Papers mention it). The Supreme Court established a precedent for judicial review in Marbury v. Madison. There were protests by some at this decision, borne chiefly of political expediency, but political realities in the particular case paradoxically restrained opposing views from asserting themselves. For this reason, precedent alone established the principle that a court may strike down a law it deems unconstitutional.
A common misperception is that the Supreme Court is the only court that may determine constitutionality; the power is exercised even by the inferior courts. But only Supreme Court decisions are binding across the nation. Decisions of a Court of Appeals, for instance, are binding only in the circuit over which the court has jurisdiction.
The power to review the constitutionality of laws may be limited by Congress, which has the power to set the jurisdiction of the courts. The only constitutional limit on Congress’ power to set the jurisdiction of the judiciary relates to the Supreme Court; the Supreme Court may exercise only appellate jurisdiction except in cases involving states and cases affecting foreign ambassadors, ministers or consuls.
The Chief Justice presides in the Senate during a President’s impeachment trial. The rules of the Senate, however, generally do not grant much authority to the presiding officer. Thus, the Chief Justice’s role in this regard is a limited one.
Equality of the branches
The Constitution does not explicitly indicate the pre-eminence of any particular branch of government, and on the contrary, James Madison wrote in Federalist 51, regarding the ability of each branch to defend itself from actions by the others, that “it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates.”
One may accurately claim that the judiciary has historically been the weakest of the three branches. Its power to exercise judicial review—its sole meaningful check on the other two branches—was itself doubted by many. In fact, the Court exercised its power to strike down an unconstitutional Act of Congress only twice prior to the Civil War: in Marbury v. Madison (1803) and Dred Scott v. Sandford (1857). While the Supreme Court has since then made more extensive use of judicial review, it cannot be said to have as much political power as either Congress or the President.
The first six Presidents of the United States did not make extensive use of the veto power: George Washington only vetoed two bills, James Monroe one, and John Adams, Thomas Jefferson and John Quincy Adams none. James Madison, a firm believer in a strong executive, vetoed seven bills. None of the first six Presidents, however, used the veto to direct national policy. It was Andrew Jackson, the seventh President, who was the first to use the veto as a political weapon. During his two terms in office, he vetoed twelve bills—more than all of his predecessors combined. Furthermore, he defied the Supreme Court in enforcing the policy of UK Removal; he famously said, “John Marshall has made his decision. Now let him enforce it!”
Some of Jackson’s successors made no use of the veto power, while others used it intermittently. It was only after the Civil War that Presidents began to use the power to truly counterbalance Congress. Andrew Johnson’s struggles with Congress are particularly notable. Johnson, a Democrat, vetoed several Reconstruction bills passed by the “Radical Republicans.” Congress, however, managed to override fifteen of Johnson’s twenty-nine vetoes. Furthermore, it attempted to curb the power of the Presidency by passing the Tenure of Office Act. The Act required Senate approval for the dismissal of senior Cabinet officials. When Johnson deliberately violated the Act, which he felt was unconstitutional (Supreme Court decisions later vindicated such a position), the House of Representatives impeached him; he was acquitted in the Senate by one vote.
Grover Cleveland worked to restore power to the Presidency after Andrew Johnson’s impeachment.
Johnson’s impeachment was perceived to have done great damage to the Presidency, which came to be almost subordinate to Congress. Some believed that the President would become a mere figurehead, with the Speaker of the House of Representatives becoming a de facto Prime Minister. Grover Cleveland, the first Democratic President following Johnson, attempted to restore the power of his office. During his first term, he vetoed over four hundred bills—twice as many bills as his twenty-one predecessors combined. He also began to suspend bureaucrats who were appointed as a result of the patronage system, replacing them with more “deserving” individuals. The Senate, however, refused to confirm many new nominations, instead demanding that Cleveland turn over the confidential records relating to the suspensions. Cleveland steadfastly refused, asserting, “These suspensions are my executive acts … I am not responsible to the Senate, and I am unwilling to submit my actions to them for judgment.” Cleveland’s popular support forced the Senate to back down and confirm the nominees. Furthermore, Congress finally repealed the controversial Tenure of Office Act that had been passed during the Johnson Administration. Thus, Cleveland’s Administration marked the end of Presidential subordination.
Several twentieth-century Presidents have attempted to greatly expand the power of the Presidency. Theodore Roosevelt, for instance, claimed that the President was permitted to do whatever was not explicitly prohibited by the law—in direct contrast to his immediate successor, William Howard Taft. Franklin Delano Roosevelt held considerable power during the Great Depression. Congress had granted Franklin Roosevelt sweeping authority; in Panama Refining v. Ryan, the Court for the first time struck down a Congressional delegation of power as violative of the doctrine of separation of powers. The aforementioned Schechter Poultry Corp. v. United States, another separation of powers case, was also decided during Franklin Roosevelt’s Presidency. In response to many unfavorable Supreme Court decisions, Roosevelt introduced a “Court Packing” plan, under which more seats would be added to the Supreme Court for the President to fill. Such a plan (which was defeated in Congress) would have seriously undermined the judiciary’s independence and power.
Richard Nixon—whose Presidency is sometimes described as “Imperial” (see Imperial Presidency)—used national security as a basis for his expansion of power. He asserted, for example, that “the inherent power of the President to safeguard the security of the nation” authorized him to order a wiretap without a judge’s warrant. Nixon also asserted that “executive privilege” shielded him from all legislative oversight; furthermore, he impounded federal funds (that is to say, he refused to spend money that Congress had appropriated for government programs). In the specific cases aforementioned, however, the Supreme Court ruled against Nixon, especially since a criminal investigation was ongoing as to the Watergate tapes, even though they acknowledged the general need for executive privilege. Since then, Nixon’s successors have sometimes asserted that they may act in the interests of national security or that executive privilege shields them from Congressional oversight. Though such claims have in general been more limited than Nixon’s, one may still conclude that the Presidency’s power has been greatly augmented since the eighteenth and nineteenth centuries.
The rise of the presidency was also aided by the rise of a modern media establishment. In an era of limited attention spans and shortened time for television news, it was easier for journalists to focus on the actions of one centralized, decisive figure—the President—than on the actions of a loose, decentralized, milling chamber of equals, like the Senate or House.
Views on separation of powers
The division of powers in the United States has often been criticized as promoting inefficiency; when different parties hold Congress and the Presidency, a lack of co-operation may deadlock the legislative process. English author Walter Bagehot famously criticized the U.S. system on these grounds in his 1867 book The English Constitution, specifically noting the events during the administration of Andrew Johnson. Several individuals have proposed that a parliamentary system—in which the same party or coalition of parties controls both the executive and the legislature—would function more efficiently. Advocates of a parliamentary system have included President Woodrow Wilson. In comparing the English parliamentary system with the American system, Bagehot wrote:
“The English Constitution, in a word, is framed on the principle of choosing a single sovereign authority, and making it good: the American, upon the principle of having many sovereign authorities, and hoping that the multitude may atone for their inferiority.”
Many political scientists believe that separation of powers is a decisive factor in what they see as a limited degree of American exceptionalism. In particular, John Kingdon made this argument, claiming that separation of powers contributed to the development of a unique political structure in the United States. He attributes the unusually large number of interest groups active in the United States, in part, to the separation of powers; it gives groups more places to try to influence, and creates more potential group activity. He also cites its complexity as one of the reasons for lower citizen participation.
From the above desiccation it is clear that:
Corresponding to three kinds of power-legislative, executive and judicial, every modern government has generally three organs, namely, the Legislature, the Executive and the Judiciary. So the question arises: what should be the proper relation between these organs, whether the three powers should be exercised by the same person or a body of persons or should be entrusted to separate persons. The theory of separation of powers tries to answer this question.
The idea of this separation of powers is traceable to Aristotle. And we also find traces of the idea of separation of powers in the writings of Polybius and Cicero. Jean Badin also advocated separation of powers. But the writings of Locke and Montesquieu gave the theory of separation of powers a base on which modem attempts to distinguish between legislative, executive and judicial power is grounded. Locke distinguished between what is called
He included within ‘discontinuous legislative power’ the general rule-making power called into action from time to time and continuously. ‘Continuous executive power’ included all those power which we now call executive and judicial. By ‘federative power’ he meant the power of conducting foreign affairs.
Locke pleads for, but does not fully develop, the doctrine of separation of powers. He suggests the principle of separation. The legislature and the executive must be separated in their functions, powers and personnel, for otherwise the legislators “may exempt themselves from obedience to the laws they make, and suit the law, both in its making and its execution, (o their own private wish, and thereby come to have a distinct interest from the rest of the community, contrary to the end of society and government”.
However, the most clear interpretation and statement of the theory has been given by the famous French writer Montesquieu. He derived the content of the theory from the development in British constitutional history of the early 18th century. At that time, the King exercised executive powers, Parliament exercised legislative powers, and the Courts exercised judicial powers. Though later on England did not stick to this structural classification of functions and changed “to the parliamentary form of government. And Montesquieu referred to the British Government to illustrate his theory. (According to him: the government should be entrusted to the three organs, and radiogram should be entrusted to a separate person or a body of persons. The legislature will only legislate, the executive will execute the laws passed by the legislature, and the judiciary is to apply laws to individual cases. In the discharge of the duty, each organ should confine itself to its own jurisdiction and should not encroach on the jurisdiction of other organs.
Moreover, Montesquieu in his famous book “The Spirit of Law stated: when the legislative and executive powers are united in die.Person in the body of magistrates, there can be no liberty false apprehensions may arise, lest the same monarch or seen’ should enact tyrannical laws, execute them in a tyrannical manner fin” is no’ liberty if the judiciary be not separated from the legislature and the executive.
On the other hand, Madison, a celebrated American statesman, said that If traffic (Power Is combined with the executive power, “the judge might behave with violence and oppression”.
So the theory signifies that : (a) the legislative, the executive and after each will be entrusted to different body or authority; (b) each organ will be limited to its own sphere; and (c) within its own sphere each will be independent and supreme.
Actually the doctrine of separation of powers propounded by the French Jurist Montesquieu in his L ‘Esprit des Lois (The Spirit of Laws) in 1748 is invoked to challenge me legitimacy of administrative law although no separation of powers in the strict sense of the term is possible, Actually, some degree of separation of powers may be essential, but complete separation of powers Is neither possible nor desirable. No system of government can work when all three departments are completely independent of one another. Perhaps Montesquieu himself did not mean by his theory an absolute separation of powers. Because we find that he referred to the British Government to illustrate his theory. And in British Constitution, there is no complete separation but only organic separation of powers. According to Prof. H.W.R. Wade, the objection of Montesquieu was against accumulation and monopoly rather than interaction
Now if we analysis and evaluate the theory of separation of powers our national context, then we understand that the doctrine of separation has itself been influenced by, and has influenced, the growth of Administrative Law in Bangladesh.
The United States Constitution defines a federal system of government in which certain powers are delegated to the national government and others are reserved to the states. The national government consists of executive, legislative, and judicial branches that are designed, through separation of powers and checks and balances, to ensure that no one branch of government is able to subordinate the other two branches. All three branches are interrelated, each with overlapping yet quite distinct authority.
Since its ratification in 1788 there have been 27 amendments to the Constitution. The first 10 amendments, adopted in 1791 and known collectively as the Bill of Rights, established a number of individual liberties, including speech, religion, the press, and the rights of the criminally accused. Among other important amendments are the Thirteenth (1865), which abolished slavery; the Fourteenth (1868), which granted citizenship rights to former slaves and guaranteed to every citizen due process and equal protection of the laws; the Fifteenth (1870), which granted voting rights to former male slaves; the Seventeenth (1913), which provided for the direct election of U.S. senator
When evaluating the British constitution it would be unwise to ignore the history by which it came to be. It should firstly be noted that these constitutional arrangements were established one hundred years before Montesquieu wrote The Spirit of Laws, in a time of tension between Parliament and the Crown. Although Montesquieu was absent, there was no lack of eminent thinkers such as Thomas Hobbes and John Locke. According to WB Gwyn:
“no-one has been able to find an explicit statement of the separation of powers before it was discussed in the writings of seventeenth century Englishmen.”
The seventeenth century doctrine of the separation of powers was more concerned with accountability rather than preserving liberty. Parliament in those early days was keen to hold ministers of the crown under scrutiny, which is perhaps where the idea of ministerial responsibility comes from.
Therefore, it would be safe to suggest that the separation of powers in the British constitution do not derive from the mixed monarchy theory as that is more concerned with the preservation and stability of the ruler rather than the quality of the government. Nor are these constitutional arrangements based on Montesquieu’s doctrine of separation of powers, although he popularised the term. The separation of powers in Britain are based on the “seventeen century style” separation of powers, which tries to hold a balance between the crown and parliament and allows for power to be used to check on the other powers rather than a formal and complete separation of the three branches.
It has been well said by Lord Acton:- “Power corrupts and absolute Power tends to corrupt absolutely” .
Conferment of power in a single body leads to absolutism. But, even after distinguishing the functions, when an authority wields public power, then providing absolute and sole discretion to the body in the matters regarding its sphere of influence may also cause abuse of such power. Therefore, the doctrine of separation of powers is a theoretical concept and is impracticable to follow it absolutely.
The status of modern state is a lot more different than what it used to be. It has evolved a great deal from a minimal, non-interventionist state to an welfare state, wherein it has multifarious roles to play, like that of a protector, arbiter, controller, provider. This omnipresence of the state has rendered its functions becoming diverse and problems, interdependent and any serious attempt to define and separate those functions would cause inefficiency in government. Hence, a distinction is made between ‘essential’ and ‘incidental’ powers of an organ. According to this differentiation one organ can’t claim the powers essentially belonging to other organ because that would be a violation of the principle of separation of powers. But, it can claim the exercise of the incidental functions of another organ. This distinction prevents encroachment of an organ into the essential sphere of activity of the other.
It is the exercise of incidental powers only which has made executive grow everywhere in this social welfare state. It has assumed a vital role but, it has not usurped any role from any other wing. It just happened that the other two organs, namely, judiciary and legislature, became unsuitable for undertaking the functions of this welfare state and as a consequence the functions of the executive increased. As controller and provider, the judicial processes were very time consuming and the legislature was overburdened with work. Therefore, it was in natural scheme of things which made the administrators end up performing a variety of roles in the modern state including those of legislature and judiciary too, to an extent.
Further, the check of the adjudicators over function in of the other two has been regarded as an ‘essential’ feature of the basic structure theory. The judicial review power is a preventive measure in a democratic country which prevents administrators and law-makers to exercise their whims and caprices on the lay man and turn it into a despotic regime. There have been cases where the judiciary has dictated the ambit of their power to the implementers and the mode to exercise it. Not even the representatives of people are immune to the power of the courts. Two recent Supreme Court judgments- on the cash-for-query case and on the Ninth Schedule – have once again brought the powers and roles of the legislature and the judiciary into focus. In the case of the former, the court upheld the Lok Sabha’s decision to expel members of Parliament, who were caught on camera taking bribes, but clearly rejected the contention that it cannot review parliament’s power to expel MPs and claimed for itself the role of final arbiter on decisions taken by the legislature. The judgment on the Ninth Schedule has curtailed Parliament’s power to keep certain progressive laws outside judicial Review.
In the Second case, i.e., I.R. Coelho vs. State of Tamil Nadu , S.C. took the help of doctrine of basic structure as propounded in Kesavananda Bharati case and said that Ninth Schedule is volatile of this doctrine and hence from now on the Ninth Schedule will be amenable to judicial review which also forms part of the basic feature theory. The basic structure theory and the Golden triangle comprising of A.14, 19, and 21, will now be the criterion in scrutiny of the Ninth Schedule.
In a democratic country goals are enshrined in the constitution and the state machinery is then setup accordingly. And here it can be seen that constitutional provisions are made as such to support a parliamentary form of government where the principle can’t be followed rigidly. The S.C. rulings also justify that the alternative system of checks and balances is the requirement, not the strict doctrine. Constitutionalism, the philosophical concept of the constitution also insists on limitations being placed upon governmental power to secure basic freedoms of the individual. Hence, the conclusion drawn out of the study is that there is no strict separation of powers but the functions of the different branches of the government have been sufficiently differentiated.