The Theory Of Separation Of Power

CONTENT
• Meaning, Merits and Demerit.
• Its Operation in Presidential and Parliamentary System of Government.
• Checks and Balances: Meaning, Merits and Demerits.

MEANING OF SEPARATION OF POWER
Separation of power can be defined as the division of governmental political powers that exists in any given state into the three organs of government. What this theory is saying is that all the amount of governmental political powers that exist in a given state should not be vested in one person or one organ of government. The theory goes further to state that if these powers are divided into the three organs of government i.e. the legislature, executive and the judiciary, that the chances of dictatorship or tyranny will be reduced.

It was a French political thinker and 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 published in 1748. Political scientist like John Locke, Jefferson Rousseau, Jean Bodin, Plato and Aristotle had earlier expressed their views on the principle of separation of powers.

ADVANTAGES OF SEPARATION OF POWERS
• Separation of powers guarantees and maintains the right, liberty and freedom of the citizens.
• Powers are separated among the organs of government in order to avoid chaos, violence, dictatorship tyranny and oppression in a country.
• Separation of powers leads to division of labour and specialization in the art of governance.
• Another advantage of separation of powers is that it results in one organ of government checking the activities of other organs. This process in government is known as check and balances.
• Separation of powers without unnecessary interference makes it easy for smooth running of government.
• Separation of powers maintains law and order which ensure rapid progress and economic and political development.
• It brings about efficiency and orderliness in the administration of a country.
• Separation of powers prevents excesses and recklessness on the part of the organs of government.
• The principle of separation of powers ensures stable political system in a country.

DISADVANTAGES OF SEPARATION OF POWERS
• It is argued that separation of powers into three arms of government tends to lower the quality of decision and policies made by these organs.
• Strict application of the principles of separation of powers slows down the smooth running of government.
• Separation of powers without interferences from other organs may make these organs to be inefficient.
• The institution of checks and balances that apply with the separation of powers can lead to political instability in the country.
• The application of the principle of checks and balances may lead to unhealthy rivalry among the organs of government.
• Existence of powerful organs of government: A complete separation of powers may make each organ of government very powerful and dangerous to individual liberty.
• Isolationist tendency: Co-operation between organs of government may become difficult when so much emphasis is laid on separation.

EVALUATION QUESTIONS
• Define separation of powers
• Mention 5 merits of separation of power

SEPARATION OF POWERS IN THE CABINET/PARLIAMENTARY SYSTEM OF GOVERNMENT
• There is fusion of powers rather than separation of powers between the executive and the legislature in the parliamentary system.
• Ministers in this system belong to both the executive and legislative organs of government.
• The executive organ of government tends to have full control of the legislative organ and even the judiciary.
• The head of the judicial organ in Britain that practices the cabinet system is also a member of other two organs i.e. the executive and the legislative.
• The executive is collectively responsible to the parliament for its actions.
• The parliament can dismiss the entire executive also known as cabinet with a vote of no confidence.
• Almost all bills initiated by the executive are passed into the legislature because its members are also parliamentarian and they are the ones who pass the laws.
• The legislature has the power to present an address to the crown for the removal of judges. This is a check on the power of judges.
• The house of Lords is also the final court of appeal for the U.K.-Great Britain and Northern Ireland.

SEPARATION OF POWERS IN THE PRESIDENTIAL SYSTEM OF GOVERNMENT
• There is no fusion between the executive and the legislature in the presidential system of government.
• Ministers do not belong to both organs-any legislator appointed a minister must resign as a member of the legislature in which he was selected.
• The legislature and the judiciary are not controlled by the executive.
• The parliament cannot be dissolved by the president unless its tenure is complete.
• The president can only be removed through impeachment, if found guilty of a serious offence by the parliament.
• There is individual’s responsibility of the cabinet members (ministers)
• The upper house of the legislature, the senate does not act as the highest court of appeal.
• The president is elected not appointed from the parliament and therefore not controlled by the parliament.
• Not all bills initiated by the executive are passed in the parliament as it happens in the cabinet system.

EVALUATION QUESTIONS
• Mention 5 demerits of separation of powers
• Mention 5 ways by which powers are separated in the presidential system of government.

THE DOCTRINE OF CHECKS AND BALANCES
The theory of checks and balances advocates the use of one organ of government to check the activities of the other organs. This is where the powers of one organ are used to check the powers of other organs. These constitutional acts of checks and balances have to check abuse of office, constitutional violation and naked use of powers by different organs of government.
The doctrine of checks and balances does not advocate fusion of the three organs of government in the performance of their constitutional functions. All it is saying is that in-as-much as these organs will be mutually independent; they should act as watchdog of each other to avoid misuse of power and to reconcile these organs. The doctrine of checks and balances applies to both parliamentary and presidential system of government.

MERITS OF THE PRINCIPLES OF CHECKS AND BALANCES
• Checks and balances prevent excessive use of power by any of the organs.
• It brings about orderliness and efficiency among the organs of government.
• Checks and balances help to prevent the possible emergence of a dictatorial government.
• The application of checks and balances leads to strict compliance with the provision of the constitution.
• The application of the principles of checks and balances makes government officials cautious and meticulous in carrying out their official functions.
• The application of the principles of checks and balances guarantees fundamental human right and freedom of the citizens.
• The application of the principles of checks and balances ensures that the use of public authority and organs of government are brought under popular control.

DEMERITS OF THE PRINCIPLES OF CHECKS AND BALANCES
• Interference: There are some traces of evidence of one organ interfering in the affairs or functions of the others, for example legislative approval of some key appointments made by the executive.
• Powers of the president: through the exercise of prerogative of mercy by the president, the president interferes with the functions of the judiciary which is detrimental to the theory of separation of powers.
• Impeachment: The constitutional power of impeachment of the president granted the legislature, makes the executive arm of the government dependent and subordinate to the legislature.
• Power of veto: The power to veto acts of parliament granted to the president makes the president who is the head of the executive to be part of the law making body- the legislature and this acts as a violation of the theory of separation of powers.
• The president’s power to declare war against another country can be incapacitated by the legislature .refusal of 2/3 majority required by the president.

EVALUATION QUESTIONS
• What is check and balance?
• Mention 5 merits of checks and balances

GENERAL EVALUATION/REVISION QUESTIONS

1. Why is separation of powers necessary in a modern state?
2. Explain separation of powers in a parliamentary system of government
3. Explain the doctrine of checks and balances
4. State five demerits of checks and balances.
5. A. Define State B. List and explain the characteristics of a State.

WEEKEND ASSIGNMENT

1. The principle of separation of powers implies that the three organs of government work A. independently but co-operatively B. separately C. together in the interest of the nationD. in peace
2. The principle of checks and balances is necessary because it A. leaves each organ of government independent of the judiciary B. makes the three organs hate one another C. prevents government from becoming dictatorialD. makes the organs of government to be at logger head.
3. There is no separation of powers in a cabinet system of government because A.members of the executive are also members of the judiciary B. the prime minister and his cabinet ministers are also members of parliament C. the president is also a member of parliamentD.the prime minister is the head of state.
4. In which system of government are ceremonial and executive powers usually fused A. Parliamentary B. Unitary C. FederalD.confederal
5. Separation of power guarantees and maintains A. love and joy B. the rights liberty and freedom of the citizens C. violenceD. political instability

THEORY

1. Give a concise definition of separation of power.
2. What are the arguments against separation of power?
   READING ASSIGNMENT
   TOPIC: Representative government: Comprehensive Government pages 48-50
   Essential Government Pages 78-80