Separation of Powers

5/27/2018 Separation of Powers

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POLI2 7Y(Core)

ComparativeGovernmentandPolitics

Discussthedoctrineof theSeparationofPowersrootedin thephilosophies ofJohn Lockeand Baron de Montesquieu in the context of theU.S.AandU.KMsSookrajowaSheetalSheena

03.11.2012

BA(Hons) Economics andInternational RelationsYear2MOHITARVINDSINGSATYAJIT -1110949


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Table ofContents

Introduction 1BaronDeM ontesquieu 1-2Contextof US A 2-5

ContextofUK 5-8Conclusion 8Bibliography 9


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IntroductionThe doctrine of 'separation of powers' has exercised the minds of many, from ancientphilosopherstoacademic writers; over time,allhavehadcausetoconsiderit. It may not bepossibletostate precisely theoriginsofthis doctrine,butlookingbackto thewritingsof theGreek philosopher Aristotle, it is possible to discern a rudimentary separation of powersdoctrine.The Political theorist, John Locke, in his book TheSecond Treatise of Government (1689),likewise drew a distinction between three types of power: legislative, executive andfederative.InLocke'sanalysis, the legislative power was supreme and although the executiveandfederative powers were distinct with one concerned with the execution of domestic lawwithinthestateand the other with astate's security and external relations, he neverthelessreckoned that theyarealways almost unitedin thehandsof thesame persons.

Moreover, the proper exerciseof these powers was achieved not through separation but onthe basisoftrust. ThusLocke'sanalysisdoesnot, amountto theexposition of adoctrineoftheseparation of powers. For that, we turn to the writings of Montesquieu in the SpiritofLaws (1748) during the European Enlightenment period.

BaronDe MontesquieuThe French writer, Baron deMontesquieu devoted himself to thestudyof politicalliberty.DuringhisspellinEngland attendingthecourtofGeorgeII, hisexposure toEnglish Politicallife and the manner in which government was conducted has led to speculation as to theextent to which some of theviews expressed in hisbook were formulated by hisEnglishexperiences.

Montesquieu believed that Britain was the best-governed and most politically balancedcountryof his own day. The British king and his ministers held executive power carrying outthelaws of the state. The members of Parliament held legislative power making the laws. Thejudgesof theEnglish courts held judicial power interpretingthelawsto see howeach appliedto a specific case.Factually speaking, Montesquieu oversimplified the British system and his idea became apart of his book. Montesquieu proposed that separation of powers would keep anygroupfrom gaining total control of the government. Power, he wrote, should be a check topower. This idea later would be called checks and balances.


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Indeed, Montesquieu's book wasmuch admiredin the British colonies ofNorthAmerica,thereuponhisideas about separationofpowersand checksandbalances eventually becamethebasisfor theUnitedStatesConstitution. (Encarta2011) ontext ofUSThe United States was the first nation that used a written constitution to formally adoptseparationofpowers as the frameworkfor itsgovernment. The United States Constitutionlimitsthepowerof thefederal government through several means,particularlyby separatingpowerbetween three competing branches.The framers of theUnited StatesConstitution identified three branches of government andthepowersofeach where Legislative poweris thepowertomake law, Executive poweris thepowertoenforce law,andJudicial poweris thepowertointerpretlaw,that continuetosharepower in theUnited States even today.Theterm checks andbalances isalso explicitly described withonereferringto theability,rightand responsibilityofeach branchtomonitortheactivitiesof theothers whiletheotheronereferringto theabilityofeach branchto use itsconstitutional authoritytolimitorrestrainthepowerof theothers. (GarciaM.Eduardo.2002)Legislative PowerArticleI, Section 1 of the Unites States Constitution stipulate that All legislative Powershereingranted shall be vestedin a Congress of the United States, which shall consistof aSenate andHouseof Representatives .Congressisbicameral, with twohouses ; theHouseofRepresentatives having435membersand the Senate represented by 100Senators. Both houses must agree upon a bill for it tobecome law.TheConstitution gives Congress powerof theUnited States budget, including powerstoraisetaxesandspend money, declarewar andsupport military forces. Congress alsohas thepowerto regulate immigration, patents and commerce between the states and the federalgovernment. Finally, Congress has thepower to establish federal courts below the UnitedStates SupremeCourt and chiefly Congress has the powerto pass laws thatare necessaryandproper togiveeffect to itspowers.


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However,Congress's powerislimitedinvarious waysas apartof theConstitutional doctrineofchecks andbalances. Th ePresident isableto check Congress's powerbyexercising thepresidential veto.If thePresident vetoesa bill,thatbillwill notbecomelawunless two-thirdsof themembersof bom theHouseand theSenate agree tooverridetheveto. (Manning JohnF.2001)Executive PowerUnderArticleII,Section 1, TheexecutivePowershallbevested in aPresidentof the UnitedStateso fAmerica .The principal responsibility of the President is to take care that the laws be faithfullyexecuted. Th ePresidentisCommanderinChiefof thenation's armed forces.ThePresidenthasthepower, subjectto theadvice andconsent of theSenate, to make treaties, nominatejudgesto thejudiciary, andappoint officers of the government.ThePresident alsohas thepower topardon individuals convictedoffederal crimes.Checksandbalanceson theexecutive powerincludeseveral provisions that give Congressand thejudiciary oversight of executive actions. TheHouse of Representatives, bysimplemajority,has thepowerto indictthePresidentonchargesofimpeachment. TheSenatehasthepowertorejecttreaties negotiatedby thePresidentand toreject presidential nominatedtothefederal judiciaryand other government offices. Finally, thejudiciary has thepower todeclareexecutive actions unconstitutional ifthose actions arechallengedincourt. udicialPowerUnderArticle III, Section 1'''Thejudicial Power of the UnitedStates shallbe vested in onesupremeCourtand insuchinferior Courtsas theCongressmay from time totime ordain andestablishTheConstitution protects thefederaljudiciary'sindependence from theother twobranchesbyproviding that federal judges aresecure intheir positionsand are notsubjecttoremovalduring good behaviour, thus they servefor life. Th eConstitution also givethejudiciarythepower to hear all cases and controversies arising under the Constitution, federal law,treaties with other nations,andother specialized cases,suchascontroversies betweentwo ormorestates. Both Congressand thePresident have powers that servetocheckandbalancethepower of thejudiciary.


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One limitation is that Congress has control over the judiciary's overall budget. Congress canalso act toamendtheConstitution if itdisagrees with theSupreme Court's interpretationofthedocument. Constitutional amendments aredifficult and the process mandates approval bytwo-thirdsmajorityofbothhousesofCongressand theapprovalof three-fourths of thestates.Constitutional ConflictsThe Constitution contains no provision explicitly declaring that the powers of the threebranchesof the federal government shall be separated. But separation prevents concentrationofpowerandprovides each branch with weapons tofight offencroachment by theothertwobranches. Clearly, this system of separated powers is not designed to maximizeefficiency; itisdesigned tomaximize freedom. (Manning JohnF.2001)

Executive encroachments

Different views of executive power have been articulated by past presidents. The strongpresident view, favoured by presidents such as Theodore Roosevelt essentially held thatpresidents may do anything not specifically prohibited by theConstitutioa

Dealing with the breadth of executive power, tfiecase ofYoungstown Sheet&Tube Co. vSawyer (1952) arose when President Harry Truman, responding to labour unrest at thenation's steel mills during the Korean War,seized control of the mills. Although a six-member majorityof theCourt concluded that Truman's action exceeded hisauthority underthe Constitution, seven justices indicated that the power of the President is not limited tothose powers expressly granted inArticleII. Had theCongressnot impliedly orexpresslydisapprovedofTruman's seizureof themills,theactionwould have been upheld.

Congressional Encroachments

Under Article III, Section 2 of the United States Constitution, Thejudicial Power shallextend to all Cases, in Law and Equity, arising under this Constitution,th eLaws of theUnitedStates, and Treatiesmade,or -whichshallbe made, under theirAu thority...

In all Cases affecting Ambassadors, otherpublicMinisters a nd Consuls, and those inwhichaState shallbeParty, th e Supreme Courtshall have originalJurisdiction.


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In all theother Casesbefore mentioned,theSupreme Court shall haveappellate Jurisdiction,both as to Law andFact, with suchExc eptions, and undersuch Regulationsas theCongressshall makeInEx ParteMc Cardle (1868)the Court decided it lacked jurisdiction to consider the habeascorpus petitionof McCardle, Mississippi newspaper editor arrested bymilitary official forwriting incendiary editorials about the federal officers then in control of the MississippiReconstruction.

AlthoughMcCardle made his petition under the 1867HabeasCorpusAct,Congress repealedtheprovision authorizing petition after theCourthadheard arguments in hisappeal. It wasobvious that Congress repealed the provision in an attempt to specifically deprive McCardleoftheopportunityto gain release frommilitary custody, theCourt nonetheless upheldthevalidityof the Act andfounditself without jurisdiction.

ContextofUKAccording to Professor Vile, in his publication of Constitutionalism and the Separation ofPowers in1967,he defined: A'pure doctrine1of theseparation ofpowersisessential for theestablishment and maintenance of political liberty. The government must be divided intothree branches. Each ofthesethree branches must have a corresponding identifiable functionandmust be confined to the exercise of its own function and not allowed to encroach uponthefunctionsof theother branches.

In the case of the UK , the powers of legislature, Executive and judiciary are closelyintertwined. The executive comprises the Crown and the Government who formulates andimplements policy. The legislature, Parliament, comprises the Crown, the House ofCommonsand theHouseofLords.Thejudiciary comprisesthejudgesin thecourtsoflaw,thosewhohold judicial office intribunals. (BarendtE .1995)

The ExecutivepowerandLegislative power

WalterBagehot'sassertion in the English Constitution(1867) that there was a close union,a nearly completefusion of legislative and executive power showed theefficientsecret in theconstitution. In the UK , the executive and legislature are closely entwined. The Prime


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Ministerand a majority of his ministers are Members of Parliament and sit in the House ofCommonsand aretherefore presentat thehearto fParliament.The integration of executive and legislature is said to provide stability and efficiency in theoperation ofgovernment. It has been described as a system that intentionally promotesefficiency over abstract concerns about tyranny . Additionally, Parliament may delegatelaw-making powers to the Government through powers to draft delegated legislation. Thiscanliberate Parliamentfromthe need to scrutinise smalltechnical details, while maintainingthesafeguardofParliamentary approval.

Globally, the separation of powers has enjoyed very different degrees of implementation.Parliamentary systems ofgovernment have usually united legislature and executive for thesake of expediency. Nevertheless, proponents of separation of powers argue about itslegitimacy within the UKConstitution. In the case of R vSecretaryofStatefor theHomeDepartment, exparteFire Brigades Union (1995), it was held that the executive had nopowerto ignorelegislatioa(Carney Gerard. 1993)

TheExecutive powerandJudiciarypower

The judicial scrutiny function with regard to the executive is to ensure that any delegatedlegislation is consistent with the scope of power granted by Parliament and to ensure thelegality of government action. On the application of an individual, judicial review is aprocedure through which the courts may question lawfulness of actions by public bodies.Thisrequires judges to be independent of government and Parliamentary influence.The judges have traditionallyexercised deference in theareas of power that they regardthemselves ascompetenttoreview. Some usesof theroyal prerogative,forexample, involveissuesof highpolicy ,suchas theappointment ofministers,signingoftreaties anddefencemattersandjudges wouldnotusually interfereinthese matters.

TheLegislative powerand Judiciary power

In the UK,judges areprohibited fromstandingforelection toParliament under theHouse ofCommons (Disqualification) A c t 1975.Judges are expected to interpret legislation in linewiththeintentionofParliamentand arealsoresponsiblefor thedevelopmentof thecommonlaw. The cooperation between judiciary and legislature has been described as a


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constitutional partnership as Parliamentmaygive tacit approvaltojudge-madelaw by notinterferingwith it. Lord Woolf, for example, has argued that thecrown's relationship withthe courtsdoesnotdependoncoercion ,but on astateatrust.

Constitutionally, judges are subordinate to Parliament and may notchallengethe validityofActsof Parliament. However, there remains some leeway for judges to interpret statute andeven make law . The incorporation ofEuropean CommunitylawintoUKdomestic law isthemost notable example. Itmeans thatUKstatute wouldnotapply whereitconflicted withEuropean law, a significant departurefromthe principle of Parliamentary sovereignty.

Further, undersection4 of theHuman RightsAct 1998,acourtcandeclare astatuteto beincompatible with the European Convention on Human Rights and the Government is thenobliged by the Convention to rectify' the inconsistency. Indeed, Lord Diplock, in DuportSteels Ltd v Sirs (1980), argued that the British constitution is firmly based upon theseparationofpowers; Parliament makesthelaws,thejudiciary interpretthem .

More recently,thequestion ofthe separationofpowershasbeengivennewrelevancein theUKby thequestionofconstitutional reformand by the newconstitutional questions, largelyarising from theimplementation of European laws such as the Human Rights Act 1998.(AraromiMarcus & Fabunni Martins.2009)

TheCon stitutionalReform Act 2 5IntheConstitutionalReformAct 2005,the Government and Parliament reformed some of theareas where,in the UK, the powers hadbeen least separated. Ensuring that separation ofpowersis clearly defined, where it is appropriate, but that is not incompatible with having apartnershipbetween thedifferent branches of the state. The Act created aseparateSupremeCourtand the Lord Chief Justice replaced the Lord Chancellor as head of the Judiciary inEnglandand Wales. (Benwell Richard & GayOonagh.2007)

TheLord ChancellorBefore 2005, theoffice of Lord Chancellor was a bridge between theinstitutionsof the state.He was head of the judiciary with responsibility for the appointment ofjudges,a member ofthe Cabinet and Speaker of the House of Lords. TheConstitutionalReform Act2005removedthe judicial functions of the Lord Chancellor and his formerrole as head of the judiciary isnow filled by the Lord ChiefJustice.


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TheLordChancellor no longer sits asSpeakerof theHouseof Lords, whichnowelectsitsown Speaker. This was intended to create amore formal separation of powers. However,otherssaw theLord Chancellor as avoicefor thejudiciary inParliamentandargued thattheLordChancellor couldeasetensions betweenthebranches ofstate.TheSupreme ourtUntil2009,the LawLordssat in the legislatureaswellasactingas thehighest appeal courtin the UK. However, the Constitutional Reform Act created a separate Supreme Court,separating out the judicial role from the upper House. Since the creation of the SupremeCourt,concerns have been raised thatthejudiciary isstill dependenton theexecutivein theform of the Ministry ofJusticefor itsfunding. It isargued byinfluential scholars thatthisarrangement clearly does notprovide thesecurity of funding which hadbeen envisaged byParliament and risks the Court being subject to the kind of annual negotiations thearrangements were intendedtoavoid.(BenwellRichard& Gay Oonagh.2007)

onclusionOn an ending note, one can say that there is a complete separation as regards powers,institutions and personnel. Yet, there seems to be no current constitutional system whichadopts this complete separationofpowers. Someof theearly American Statesand theFrenchconstitution of 1791tried tostrictly giveeffect tothis doctrinebutfailed.The strict doctrineisonlyatheoryand it has togiveway to therealitiesofgovernment where some overlapisinevitable. Butwhile permitting this overlapto occur, asystemofchecksandbalances hasdeveloped.


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Bibliography Araromi Marcus&Faburm iMartins. Theimpacto fConstitutional Principleson theadministration ofJustice in the UnitedKingdom (2009). BarendtE.SeparationofpowersandCo nstitutionalgovernment (1995) Benwell Richard& Gay Oonagh.Theseparationofpowers Carney Gerard.Separationofpowersin the Westminster System (1993) Garcia M. Eduardo. Separationofpowers- Therole of an independent judiciarysustainingo urdemocracy (2002) Manning JohnF.Separationofpowersas Ordinary Interpretation (2001) MicrosoftEncartaEncyclopedia2011.TheE nlightenmentPeriodinEurope

Websites:http://law.urnkc.edu/faculty/projects/ftrials/conlaw/separationoipowers/http://www.tes.co.uk/teaching-resource/Comparative-Govemment-and-Politics-6146845/http ://www.jstor.org/


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