INTRODUCTION
Montesquieu’s theory of separation of powers advocates dividing governmental authority into three branches: legislative, executive, and judicial. Passion is the cruellest when it is most concentrated and least brutal when diversified.
The way to avoid the abuse of power by governmental agencies is to divide the political power and vest it into the hands of diverse persons so that it is adequate to check the regime by force.
ORIGIN AND NEED FOR THE THEORY
In Montesquieu’s time, France was ruled by absolutists and tyrannical kings. He hated tyranny and was an ardent champion of liberty. In England, he saw people who enjoyed the individual’s freedom without any dictatorial government. He thought the English liberty was due to the Separation of powers in the English government. He formulated his thoughts in the doctrine of Separation of powers, expounded in his famous book, “The Spirit of Laws“, written in 1748.
BASIS OF CONCEPT OF SEPARATION OF POWER
The theory of Separation of power is based on the concept that where might is correct, there is no right. It means where all powers of the government are in the hands of one person; there can be no liberty.
MONTESQUIEU’S THEORY OF SEPARATION OF POWER
Montesquieu’s theory of separation of powers advocates dividing governmental authority into three branches: legislative, executive, and judicial. Each component should have distinct functions and capabilities to prevent tyranny and maintain a system of checks and balances.
ADVANTAGES OF SEPARATION OF POWERS
The advantages of Separation of powers are the following.
(i) The doctrine of Separation of powers was adopted by the convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power.
(ii) Separation of powers protected the people from autocracy.
(iii) Separation of powers ensured people enjoyed their rights and liberty.
(iv) Separation of powers protected against tyranny.
HOW THE SYSTEM WORKS IN PRACTICE?
(a) Congressional Check upon Executive:
(i) Congress has the power to override the president’s veto.
(ii) It may impeach the president.
(iii) It can reject the president’s budget and requests, including military funds.
(iv) Congress may investigate and reorganize executive branch departments.
(b) Congressional Check upon Judiciary:
(i) Congress may propose constitutional amendments to override a supreme court’s ruling.
(ii) It may impeach federal judges.
(iii) It decides the jurisdiction of the courts.
(iv) It can change the size of the Supreme Court.
(v) It can create new and shut down the old federal courts below the Supreme Court level.
(c) Executive Check upon Congress:
(i) The president can veto the laws made by the Congress
(ii) He can call special sessions of the Congress.
(iii) As a political party leader, the president may pressure party members to vote a certain way.
(iv) May appeal directly to citizens to pressure their representations in Congress to vote a certain way
(d) Executive Check upon Judiciary:
(i) The president of the USA nominates the Judges of the Supreme Court and the Judges of the lower federal courts.
(ii) He may grant pardons to persons convicted of violating federal laws.
(ii) He can refuse to enforce a Federal Court order.
(e) Judicial Check upon Congress:
(i) The Judiciary has the power to rule that a law passed by Congress and signed by the president is unconstitutional and, therefore, illegal.
(f) Judicial Check upon Executive:
(i) The Judiciary can rule that the president or other executive branch members have acted unconstitutionally by exceeding their authority under the law.
(ii) It can also interpret treaties signed by the president.
CRITICISM ON SEPARATION OF POWERS
The criticism faced by the theory of Separation of powers is the following.
1. Complete Separation is Not Possible:
Government, like a human body, is an organic whole. To work efficiently and correctly, every part works in harmony and cooperation with the other. The functions of one department have to be much like those of the different departments. Every department performs some tasks which belong to another department.
2. The Judiciary is made more Powerful:
The doctrine of independent Judiciary implies that Judges shall be free of all social, political, and other private influences. They shall also be free of all legislative and executive dictation and control. Thus, the independent Judiciary with the power of judicial review is more powerful.
3. Presidential System:
The U.S. Constitution gives the executive more room to encroach on the domain of the other organs.
CONCLUSION
The U.S. Constitution is based on the Separation of powers but not on spirit. Despite their formal Separation, there are many ways by which one branch or the other acquires too much influence. All this is due to the system of checks and balances in the American Constitution.
FAQs
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