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Separation of powers: Doctrine with a difference
2007-04-23 09:50:32
By Michael Haonga
The doctrine of `separation of powers` is one of the liberal and democratic principles applied in the governance and dispensation of functions in the present modern world.
Briefly, this doctrine has been assigned different meanings at different historical epochs, which background information will hardly fall prey to our discussion.
A discussion of the separation of powers has been a subject of great controversy among lawyers of various backgrounds, especially constitutional lawyers.
Wade, one of the prominent English constitutional lawyers, assigns a three-fold meaning to the liberal doctrine:According to him the doctrine means that the same person should not form part of more than one of the three organs of government, that is, ministers should not sit in parliament.
In the second meaning, Wade holds that one organ of government should not control or interfere with the exercise of its function by another organ, for instance ministers should not be responsible to parliament.
And, lastly that one organ of government should not exercise the functions of another, for example in the case of ministers, they should not have legislative powers at all.
Looked at it generally, the doctrine would seem to imply that there should be strict adherence to it in the treatment of the three organs of the state, namely the executive, parliament and judiciary.
However, it is far from that. In practice, any rigid separation of the state`s departments in the manner above is likely to paralyse it.
Amply aware of the dangers of strict application of the doctrine, Wade rightly observes that its value lies in the emphasis placed upon those checks and balances which are essential to prevent an abuse of the enormous powers wielded in the hands of the executive.
Separation of powers therefore does not necessarily mean that these departments should not have relationship among themselves or partial agency in, or no control over the acts of each other.
Rather, it means that where the whole power of one department is exercised by the same hands which possess the whole power in another department, the fundamental principles of a free constitution are subverted.
Hence, in Madison`s view, the essence of the doctrine was one of mutual restraints or checks and balances.
Some other constitutional lawyers belonging to the school of thought cherished by Griffith, Street and others have assigned the doctrine with a different meaning.
According to them the essence of the doctrine of separation of powers lies in its appeal for dispersal of the state`s powers among many hands.
Despite the controversy lawyers seem to have agreed to agree on the essence of the doctrine to the effect that it advocates prevention of tyranny by conferment of too much power on any one person or body and the check of one power by another.
In other words, the doctrine is a principle of mutual restraints or checks and balances.
Thus, strict and rigid application of this principle may bring any government to a stand still as departmental interdependence is vital.
The application of this doctrine varies from one country to another.
In the US, for instance, the doctrine of the separation of powers is satisfactorily entrenched in its constitution, with all executive powers vested in the president.
Unlike in the UK, the president and his cabinet are not members of the congress, the legislative organ.
The parliament is constituted by the House of Representatives and the Senate or the Upper House and the president and his cabinet have no direct power of initiating bills or securing their passage through the Congress though the president is mandated to veto any legislation passed by the Congress.
Nevertheless, separation of powers in the American constitution on one hand is by no means complete.
For the Supreme Court of the United States is empowered by law to declare the actions either of the executive or the legislature to be unconstitutional.
The UK, on the other hand, presents a different scenario. Here, though the doctrine is well entrenched, parliament has assumed supremacy over the other two organs of the state, the executive and the Judiciary.
The House of Lords is still part of the parliament, ministers continue to enact statutory instruments and most of the bills originate with the support and prior approval of the cabinet.
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