Separation of powers

Meaning of Separation of Powers

Separation of powers is a principle in government which is defined as the division of governmental political powers that exist in any given states into three organs of government. What the principle is saying is that all the amount of governmental political powers that exist in a given state should not be rested or consolidated in one person or one organ of government. If these powers are divided into three organs of government – the legislature, executive and judiciary, that the chances of dictatorship or tyranny will be reduced.

It was a French political thinker – Jurist Baron de Montesquieu who developed and popularized the principle of separation of powers in his book entitled “ Espirit  des Lois” which means  “the Spirit of Laws” publishes in 1748. Political scientists like Locke, Jefferson, Rousseau, Bodin, Plato and Aristotle had earlier expressed their views on the principle of separation of powers. Montesquieu argued inter alia: That if rights, liberty and freedom of citizens are to be maintained and guaranteed, then the three organs of government must be separated and entrusted to different people to administer. That there will be chaos, violence, dictatorship, tyranny and oppression if there is  no separation of powers. That the functions of government of law making, execution and adjudication should be handled by different organs of government without interference. Montesquieu was of the opinion that the three arms of government should work separately but cooperatively.

Separation of Personnel Performing Functions

The principle of separation of powers states that not only should the three arms of government (namely the executive, legislature and the judiciary) be separated but also their functions should be performed by different persons or a body of persons. For example, a member of the legislature should not simultaneously be a minister, nor should a judge hold a cabinet post. The doctrine of separation of powers was popularized by Montesquieu in his book Espirit de Lois in 1748. The doctrine is designed to check the abuse of power by government operators.

Purpose/Reasons for Separation of Powers

Seperation of powers is necessary for the following reasons:

1. To prevent dictatorship and tyranny in the government
2. To protect and preserve the fundamental human rights of the citizens
3. To promote the application of the rule of law
4. Reduction in the workload of each organ of government
5. Division of labour and specialization among the organs of government
6. It ensures political stability.
7. It promotes efficiency.

Checks and Balances in the Arms of Government

Checks and balances refer to that arrangement whereby an arm of government supervises and checks another arm of government against any possible abuse of power. They act as watchdog of each other. According to Jefferson, “power corrupts and absolute power corrupts absolutely”

Relationship between Separation Of Powers And Checks and Balances

Separation of powers is different from checks and balances but they complement each other. Separation of powers implies division of political or constitutional powers among the organs of government. On the other hand checks and balances exercises checks on the powers of these organs.

The two principles relate in the sense that, the existence of checks and balances ensures that the purpose of the separation of powers is fulfilled and ensure that none of the organs of government uses the advantages of this principle to exercise excessive power which may lead to dictatorship and oppression in the country.

The principle of checks and balances is to mitigate those negative effects associated with separation of powers. The two principles are applicable to both parliamentary and presidential system of government.

EVALUATION

1. Explain the term “checks and balances”.
2. Outline the relationship between separation of powers and checks and balances.

The Extent of Separation of Powers, Checks and Balances Under Presidential and Parliamentary Systems of Government

Separation of Powers in a Parliamentary (Cabinet System of Government)

1. There is fusion rather than separation of powers between the executive and legislature in the parliamentary system.
2. There is overlapping of functions and responsibilities among all the three arms of government.
3. Ministers in parliamentary system belong to both the executive and legislative organs of government.
4. The executive organ tends to have control of the legislative organ even the judiciary.
5. The head of the judicial organ in Britain that practice the cabinet system is also a member of the two organs – the executive and the legislature.
6. The executive is collectively responsible to the parliament for its actions.
7. The parliament can dismiss the entire executive also known as cabinet with its vote of no confidence.
8. All bills initiated by the executive are passed in the legislature because its members are also parliamentarians who pass these bills.
9. In Britain, one chamber of the legislature – the House of Lords is the highest court of appeal.
10. The executive appoints the head of the judiciary who does not really check the activities of those that appointed him.
11. There seems to be no act of separation of powers among the different organs because their functions tend to overlap.

Separation of Powers in the Presidential System of Government

1. There is no fusion of powers between the legislatures in the presidential system of government. The two organs are separated both in functions and membership.
2. Ministers do not belong to both organs – any legislator appointed a minister must resign as a member of legislature in which he was elected.
3. The legislature and the judiciary are not controlled by the executive.
4. The president is elected not appointed from the parliament and therefore not controlled by the parliament.
5. The Chief Justice who is the head of the judiciary is not a member of the other two arms of government.
6. The executive is not collectively responsible to the parliament for its actions. There is no collective responsibility but individual responsibility.
7. The legislature cannot dismiss the entire cabinet but can remove the president through impeachment on the account of abuse of constitutional powers.
8. The senate does not act as the court.
9. The act of judicial review is more visible in the presidential system of government.
10. The act of separation of powers among the different organs of government seem to be more visible in the presidential system far more than cabinet system because the functions of these organs do not overlap as in the cabinet system of government.

Checks and Balances in a Cabinet (Parliamentary) System of Government

In a cabinet system of government, the various arms of government check and balance one another. The illustrations from the cabinet system of government in Britain, include the following:

1. The members of the executive, who are also members of the legislature, control the legislative debates by providing the timetable, the procedure and the activities of the legislature.
2. The legislature and the executive can institute an action for the removal of any Judge.
3. The executive can invoke the prerogative of mercy in granting pardon to a convict, thus setting aside a judicial decision.
4. The judiciary has the power to institute a judicial review of any administrative action. Through such review, an action of the executive or the legislature may be declared ultra vires.
5. The legislature must approve the annual appropriation bill.
6. The legislature can pass a vote of no confidence on the executive. When this happens, the executive vacate office and there is a general election.

Checks and Balances in a Presidential System of Government

The checks are in three phases: Checks on the legislature, executive and the judiciary.

Checks on the Legislature

1. The first check on the legislature is that imposed by the constitution.
2. The executive can constitute a judicial review commission. The commission review laws passed by the legislature. All laws which are contrary to the constitution may be declared null and void by the judiciary.
3. The chief executive can veto legislation by the law makers if less than two – third of the law makers voted for such a law.

Checks on the Executive

1. Any bill initiated by the executive has to be approved by the legislature before the bill can become a law. An important example is the appropriation bill.
2. The chief executive can be impeached by the legislature through an impeachment process laid down in the constitution.
3. All major appointments by the executive will need legislative approval before such appointments can be effective.
4. Treaties entered into by the executive will have to be approved by the legislature before such treaties can be binding on the country.

Checks on the Judiciary

1. The legislature or executive can initiate actions, which if successful, may remove a judge from office.
2. A person convicted by the highest court of the land may be pardoned by the chief executive. The power to pardon convicts is known as prerogative of mercy and it is an executive check on the judiciary.

EVALUATION

1. Define Separation of Powers.
2. Write short note on Separation of personnel performing functions.
3. The notion of checks and balances is a complement of the principle of separation of powers. Discuss.
4. (a) Explain the terms: (i) Separation of powers (ii) Checks and balances. (b) Outline the relationship between the two terms.
5. Write short notes on separation of personnel performing functions.
6. Explain checks on the legislature, executive and judiciary