SEPARATION OF POWERS
"Every Power Tends to corrupt and absolute power tends to correct absolutely"
These are three main categories of Governmental organs Legislature, Executive, and judiciary. In step with the speculation of Separation of Powers, these three organs and functions of the govt must be during a free democracy, always be kept separate, and be exercised by separate organs of the govt.
MEANING OF DOCTRINE OF SEPARATION OF POWER:
1. UNDER THE LEGAL SYSTEM:
under the system, the doctrine of separation of power could be a doctrine under which the legislature, executive, and judicial branches of the presidency aren't to infringe and interfere with one another
2. DEFINED BY BLACKSTONE:
Under the constitutional doctrine of "separation of powers", one branch isn't permitted to encroach on the domain or exercise the powers of another branch.
3. EXPOSITION MADE BY WADE AND PHILIPS:
According to Wade and Phillips, separation of powers may mean three different things:
A. EVERYBODY FOR EVERY ORGAN:
That same person mustn't form a part of quite one in every one of the three organs of the presidency.
B. That one organ of the state mustn't control or interfere with the exercise of its function by another organ, e.g., the judiciary should be independent of the chief.
C. SAME FUNCTIONS MUST NOT BE EXERCISED BY DIFFERENT ORGANS:
One organ of the govt mustn't exercise the functions of another e.g. the ministers shouldn't have legislative powers.
EVOLUTION OF DOCTRINE OF SEPARATION OF POWER:
I. FIRST PERIOD:
Its origin is traceable to Plato and Aristotle and ancient writers have recognized the three-fold distribution of state functions.
ii. SECOND PERIOD:
In the 16th and 17th centuries, French philosopher Jhone Badin and British political Locke respectively had expressed their views about the idea of Separation of Power. JOHN LOCKE: In his book "Two treaties on civil government" pleaded, for legislation, and executive supremacy.
iii. PLAY AND DEVELOPMENT OF DOCTRINE:
Montesquieu the French thinker of the 18th century was the primary writer who formulated this doctrine systematically.
MONTESQUIEU'S DOCTRINE
In his book spirit of laws written in 1748, he said I. There be no liberty when the legislative and executive powers are united within the same person or body, because then the senate shall enact tyrannical laws, to execute them in an exceedingly tyrannical manner. ii. there's no liberty if the judiciary is not separated from the legislative, otherwise, the life and liberty of the topic would be exposed to arbitrary control then the judge would be a legislator. iii. Where judicial power is joined "with executive powers" the judge might behave with violence and oppression.
JAMES MADISON VIEW ON MONTESQUIEU THEORY:
In a brilliant article about the federalists, Madison the famous American demonstrated that the celebrated Montesquieu meant only that there can be liberty if the full power of 1 department is exercised by the identical hands that possess the entire power of another department. Object: Every power tends to corrupt and absolute power tends to corrupt absolutely. wider the ability, the greater the necessity for the restraint in its exercise.
EFFECT OF DOCTRINE:
the doctrine of separation of power as propounded by Montesquieu had a tremendous impact on the development of jurisprudence and the functioning of the state.
ACCORDING TO BLACKSTONE:
If two Legislative, the chief and judicial functions got to 1 man, there was without stopping of non-public liberty. CRITICISM:
1. HISTORICAL MISCONCEPTION
Historically speaking the doctrine was incorrect. There was no separation of power under the British constitution. At no point in your time, this doctrine was adopted therein.
2. WRONG BASIS:
The doctrine is predicated on the idea that three functions of the govt. contains elements of the opposite two which any rigid try to define and separate those functions must either fail or cause serious inefficiency in government.
3. NOT ENTIRELY ACCEPTABLE:
It is impossible to require certain actions of this doctrine be accepted in its entirety, i.e., if the legislature can only legislate then it cannot punish anybody committing a breach of its privilege, nor could the court's frame rules of procedure be adopted by them for the disposal of cases.
4. MAKE MODERN GOVERNMENT IMPOSSIBLE:
The modern state could be a state and it's to resolve many complex socio-economic problems and during this state of affairs, it's impractical to stay to the present doctrine.
5. ORGANIC SEPARATION:
According to basic, in modern practice, the speculation of separation of power means an organic separation and distinction must be drawn between essential and incidental powers which one organ of the govt can't go into the essential functions belonging to a different organ but may exercise the same incidental functions thereof.
6. MISCONCEPTION OF OBJECT:
The fundamental object of separation of power was the freedom and freedom of individuals but that can't be achieved by mechanical division of functions and powers. In England theory of separation of powers isn't accepted yet it's known for the protection of individual liberty.
DOCTRINE OF SEPARATION OF POWER IN PRACTICE:
I. IN USA:
The doctrine of separation of power has been accepted and strictly adopted by the founding fathers of the constitution of the USA. Doctrine is impliedly mentioned in the first 3 Articles.
ACCORDING TO PROF.OGG:
No feature of Yankee government national, state, and sometimes local is more characteristic than the separation of power, confined with precautionary checks and balances.
SYSTEM OF CHECK AND BALANCE:
In the USA constitution, there's a system of checks and balances mentioned in the first 3 Articles during which power is vested in one organ of the govt. cannot be exercised by the other organ. In theory, nobody organ of the govt can trench upon or invade the facility of the opposite.
ii. IN ENGLAND:
Although Montesquieu has based his doctrine on taking under consideration a people's constitution, as matter of fact at no point of your time was this doctrine accepted in its strict sense in England. On the contrary, actually, the theory of integration powers has been adopted in England.
iii. IN PAKISTAN:
In Pakistan, the doctrine of separation of power has not been entirely accepted because the USA we do not have a merger of powers as England has adopted. In the preamble and under Article 175 of the constitution it's clearly stated that the judiciary must be independent of legislation and the executive. Thus in the full, the doctrine of separation of power in the strict sense is undesirable and impracticable, and therefore, it's not fully accepted in any country. Nevertheless, its value lies within the emphasis on those checks and balances which are necessary to forestall the abuse of enormous powers of administrative authorities. the article of doctrine is to own a government of law instead of official will and to stay administrative authorities within their limits most jurists accept one feature of this doctrine the judiciary must be independent.