Is the Doctrine of “Separation of Powers” Necessary For Smooth Functioning Of The State’s Affairs In This Modern Day Democracy? – Part I
Introduction:
Lord Acton had rightly said that, “Power tends to corrupt and absolute powers corrupt absolutely.” The doctrine of Separation of Powers is hallmark of modern day constitutional democracy and it is a political idea and is meant to regulate the power amongst three organs of the State. The affairs of the State which are in maximum proximity in observing the doctrine of Separation of Powers face less problems and less chances of confrontation with other organs i.e. the Legislature, the Executive and the Judiciary. Contrarily, when the powers of these different organs are concentrated in one hand, it leads toward tyranny and chaos and disruption of state functioning. The ruler or organs that exercise these powers become modern day Pharao.[1] While abusing the powers, US President Abraham Lincoln elaborated as, “Nearly all men can stand adversity, but if you want to test a man’s character, give him power.” The mature democracies try their best to create harmony amongst these three pillars of the State i.e. the Legislature, the Executive and the Judiciary. The tranquility, peace and development of the society depend on the smooth and coordinated relationship of these three pillars of the State. Otherwise, years of years of a nation will be wasted in achieving the peace, tranquility, development and progress of the state.
The written constitutions of the world ensure the Separation of Powers. United Kingdom, though has an un-written constitution, the UK parliament having a distinct feature of supremacy of parliament in the world, also has the concept of Separation of Powers. However, the American Constitution expressly separated functions of each organ of the State to avoid maximum intervention in each others domain and it also gave the power of checks and balances to the other organ of the State.[2]
Historical Background of Separation of Powers – United Kingdom:
The doctrine of Separation of Powers originated with Aristotle, followed by Montesquieu’s discussion of the doctrine in his “The Spirit of the Laws” (1748) and the writings of the British philosopher.[3]In 1748, Baron de Montesquieu, a French political philosopher, wrote a treatise titled, ‘The Spirit of Laws’, wherein he advocated the doctrine of Separation of Powers. He was of the view that, “In the infancy of societies, the Chiefs of State shapes its institutions; later the institutions shape the Chiefs of State.”[4]
The key conceptual features of the Doctrine of Separation of powers were identified early by Aristotle. He proclaimed that:
“There are three elements in each Constitution in respect of which every serious law-giver must look for what is advantageous to it; if these are well-arranged, the Constitution is bound to be well arranged, and the differences in Constitutions are bound to correspond to the differences between each of these elements. The three are, first, the deliberative, which discusses everything of common importance; the second, the officials; and the third, the judicial element”. [5]
The theory of Separation of Powers is not a novel idea but before, as it was propounded by Montesquieu, not as explained. In his work, Lord Harrington, in 1657 in his work Oceana, was a widely read on model of government wherein he gave the idea of government’s power to be divided into three organs/part. “A Senate made of intellectual Elite, would propose law; the People guided by the Senate’s wisdom, would enact the law; and a magistrate would execute the law. This system would ensure balance of powers between the organs would maintain a stable government and protect the rights of property”.[6]
Harrington’s concept of Separation of Powers was less developed. Later, after a century, De Montesquieu, a French political philosopher, in his monumental work, “The Spirit of Laws”in 1748, his work was acclaimed, he flatly warned: “When the legislative and executive powers are united in the same person, or the same body of the magistrate, there can be not liberty…..Again, there is no liberty if the Judicial powers be not separated from legislature and executive.”[7] The universality of the doctrine can be gauged that though this message was for the citizen of France, the Framers of the US constitution adopted it for the well being of US and its peoples. George-III, Oliver Cromwell’s experience taught Americans that all powers should not be entrusted to executive. Therefore, the Framers of US Constitution found a way to coordinate amongst the organs of the State, to avoid clash of the organs and tyranny. John Adam in his Defence of the Court of Government the United States of America, also urges to keep away power hungry aristocracy to check and prevent majority from snatching the rights of minority.[8]
Mr. O. Hood Philips ,a constitutional expert has said that before adopting the Doctrine of Separation of powers, the Lord Chancellor used to exercise multiple powers of different organs:
“He is a member of the Cabinet. He speaks for the government in the House of Lords and elsewhere. He is President of the Supreme Court, an ex-officio Judge of the Court of Appeal and President of the Chancery Division. He sits in the House of Lords and the Privy Council and presides when he is able to and he chooses to sit. In England and Wales he is the head of the judiciary.[9]
But despite this, the United Kingdom courts decided the cases and in interpreting the un-written and some parts of written Constitution on Westminster model have acknowledged that separation of powers is the basic feature of their Constitution. Therefore in Hinds v. The Queen,[10]a Privy Council case from Jamaica, Lord Diplock made the following significant observations:
“…. The United Kingdom has no written Constitution, comparable with that of Australia and the United States of America, yet in the sense that the legislative, the executive, the judicial powers are vested in three separate organs, the basic concept of separation of powers is recognized even in the unwritten Constitution of that country.”
Lord Diplock, sitting in the House of Lords in Duport Steels Ltd. v. Sirs, (1980) 1 All ER 521),re-iterated that view. He said that “it cannot be too strongly emphasized that the British Constitution, though largely un-written, is firmly based on the separation of powers. Parliament makes the laws, the Judiciary interprets them.” In another case Secretary of State v Rehman,[11]Lord Hoffman said that:
“However broad the jurisdiction of a Court or Tribunal, whether at first instance or on appeal, it is exercising a judicial function and the exercise of that function must recognize the constitutional boundaries between judicial, executive and legislative power.”
It was said by Lord Denning in his book “The Family Story”, at p 191, that:
“The keynote of the rule of law in England has been the independence of the judges. It is the only respect in which we make any real separation of powers. There is no rigid separation between the legislative and executive powers, because the ministers, who exercise the executive power, also direct a great deal of the legislative power of Parliament. But the judicial power is truly separate: Parliament makes the laws, the judiciary interprets them.”
It is in this sense and in this sense alone that Lord Diplock said in landmark case on separation of powers Duport Steel v Sirs[12]“the British Constitution, though largely unwritten, is firmly based upon the separation of powers”.
United State of America:
Montesquieu derived this idea from England while he was living there but he has presented it in a more improved form, but Framers of US Constitution had adopted it by making it more useful in their Constitution. John Marshall has praised Montesquieu’s work and recognized in their supreme law for distribution of the State’s power into three organs of the State.
In a famous case called Morrison v Olson,[13] Justice Scalia, while writing his opinion to support the Separation of Powers Doctrine, said,
“The absolutely central guarantee of a just government.” He quoted Federalist No.47, where James Madison had said that “no political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty” than the principle of separation of powers. “Without a secure structure of separated powers”, Justice Scalia went on to say, “our Bill of Rights would be worthless, as are the bills of rights of many nations of the world that have adopted, or even improved upon, the mere words of ours”.
In another case Buckley v Valeo,[14] the Supreme Court was considering the question whether the Congress had “given the Federal Election Commission wide-ranging rule-making and enforcement powers” in violation of the principle of separation of powers; in that connection, it was observed:
“James Madison, writing in The Federalist No. 47, defended the work of the Framers against the charge that these three governmental powers were not entirely separate from one another in the proposed Constitution. He asserted that while there was some admixture, the Constitution was nonetheless true to Montesquieu’s well-known maxim that the Legislative, Executive, and Judicial departments ought to be separate and distinct: ‘The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning. When the legislative and executive powers are united in the same person or body, says he, ‘there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner.’ Again: Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor. Some of these reasons are more fully explained in other passages; but briefly stated as they are here, they sufficiently establish the meaning which we have put on this celebrated maxim of this celebrated author.”
Muneer A. Malik, President of Supreme Court Bar Association, while highlighting the importance of doctrine of separation of power during historic Lawyers’ movement expressed his shock in these words: “The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States…. He has made Judges dependent upon his will alone, for the tenure of their offices and the amount of their salaries”.[15]
Abuse of powers by some American Presidents, for example, Lyndon Johnson and Richard Nixon reinforces the importance of Separation of Powers and opponents of Presidential form of government, the executive and legislative powers are not to be entrusted to presidency. They urged check and balance on executive powers and on other organs of the State for smooth administration of the State’s affairs.[16] The US Constitution did not adopt the model of British governmental system entirely neither they blindly accepted the theory of Separation of Powers propounded by Montesquieu. In 1850 US Supreme Court has made this observation in Fleming v Page,[17] “In the distribution of political powers between the great department of government, there is such a wide difference between the power conferred on the President of the United State of America, and the authority and sovereignty which belongs to the English Crown, that it would be altogether unsafe to reason from any supposed resemblance in war, or any other subject where the right and powers of the Executive are of the government are brought into question.” It was also said the Separation of Powers meant safe liberty but on the other hand despite Separation of Powers, the liberty is also violated. So the idea to avoid destruction of the organ of the State, rather Separation of Powers is meant maximum coordination and avoids encroachment in the affairs of the other organs.[18]
While talking about the concept of protection of rights in America by application of Separation of Powers, the author concludes: “The Constitution supplies a general structure for the three branches of government, assigns specific functions and responsibilities to each, and reserves certain rights to the people. Armed with power of self-defense, the branches of government intersect in various patterns of cooperation and conflict. How these basic principles of law operate in practice is a question decided by experimentation, precedents and constant adaption and accommodation.”[19] The violation of Separation of Powers seriously harm the rights of the State as well as rights preserved in the US Constitution and by the Tenth Amendment this has been demonstrated:[20]
“Nothing is so characters of totalitarian states today as the uniting of the legislative and executive functions in one man with control also over the judge. If one man can make the laws, can executive the laws, and can judge the violation of the law, liberty cannot long exist. We may still vote once in four years, but the election becomes a mere plebiscite where the only vote is “Ja.” The very essence of individual freedom is equal justice under a rule of law, a law to which every man shall be subject and which no executive can modify.”[21]
To protect the rights of the peoples and sovereignty of the State and to chalk out present and future course of national need, the concept of Separation of Powers was established as a cornerstone of Constitution. In the words of Roscoe Pound, Dean, Harvard Law School:
“We ……deduced from a written Constitution Separation of Powers that legal order must endorse the court as law binding all departments of government……as against legislative, executive or administration action at variance with Constitution or exceeding the powers as defined or limited …… these…. views are not the result of logic but of history.”[22]
[1] A. Malik, Muneer, “The Pakistan Lawyers’ Movement: An Unfinished Agenda”, Pakistan Law House, Karachi (first published in 2008) at 275.
[2] US Constitution, Section 1 of each Article I, Article II and Article III.
[3] Justice (Retd) Fazal Karim, “Judicial Review of Public Actions” Pakistan Law House Karachi 2006.
[4] A. Malik, Muneer, “The Pakistan Lawyers’ Movement: An Unfinished Agenda”, Pakistan Law House, Karachi (first published in 2008) at 277.
[5]“The Politics” (BK iv, xiv, 1297 b 35)
[6]Epstein, Lee and G. Walker, Thomas, “Constitutional Law for a Changing America: Institutional Powers and Constraints”. Congress Quarterly Inc, 1992 at page 28.
[7] Ibid at 29.
[8] Ibid at 29.
[9]Philips, O Hood, “A Constitutional Myth; Separation of Powers”, (1977) 93 LQR 11).
[10](1977) AC 195).
[11](2001) UKHL 47; (2002) 1 All ER 122.
[12](1980), All ER 529, 541.
[13] 487 US 654, (1988).
[14]424 US 1 (1976).
[15]A. Malik, Muneer, “The Pakistan Lawyers’ Movement: An Unfinished Agenda”, Pakistan Law House (first published in 2008) Karachi at 277.
[16]Fisher, Louis, “Constitutional Conflicts between Congress and the President”. Princeton University Press, published in 1985) at 10.
[17](1850) 50 US (9 How) 602, 618.
[18] Ibid Footnote at 8, page 11.
[19] Ibid at Footnote at 8, page 27.
[20]L. FitzGerald, John, “Congress and the Separation of Powers”. Praeger Publishers (1986), New York at page 91.
[21] R. Kirk & J. McClellan, The Political Principles of Robert A. Taft, at 104 (New York: Fleet Press, 1967).
[22] Pound, Roscoe, “Jurisprudence”, St. Paul: West Publishing Co., 1959) at Page 91.
This paper on the Doctrine of Separation of Powers consists of two parts. Part II is also available on the Commentary section of the website.
The views expressed in this article are those of the author and do not necessarily represent the views of any organization with which he might be associated.
