PROGRAM LL.

B PART 1
COURSE CONSTITUTIONAL LAW
TOPIC SEPARATION OF POWERS
SUBMITTED BY KHADIJAH MAQSOOD ALI
SUBMITTED TO MAM AYESHA
DATE OF SUBMISSION
INTRODUCTION

The concept of separation of power is a model for the governance of democratic

states. The three branches of government the legislative,the executive and the
judiciary are the three distinct activities in every government through which the will
of the people are expressed. The legislative makes the law,the executive enforces
them and judiciary applies them to specific cases arising out of the breach of law.

As john Adams say:

Power must never be trusted without a check.”
Thus it has become a model of governance of democratic states and this model is
also known as Trias politica.

MEANING:
 Literal Meaning:
Separation→ Dissociation/Disintegrate
Power → Right/force to do something

 Legal Meaning:

According to Black’s law dictionary:

A constitutional principle limiting powers vested in an institution or
person.Governmental Authority is divided into three branches:legislative,executive
and judiciary.

DEFINITION:
According to Mitchel Troper:
“The separation of powers is a technique of constitutional engineering , A certain
mode of distribution or repartition of the functions of the state among various
authorities”.

According to vaylor:

“Separation of powers refers to a system of government in which its powers are

divided between multiple branches, each branch controlling a different aspect of
government”.

ORIGIN OF SEPARATION OF POWER:

Historically, the concept of Separation of Powers dates back as far as ancient Greece.
The concepts were refined by contemporaries of the Framers, and those refinements
influenced the establishment of the three branches in the Constitution.Aristotle
favored a mixed government composed of monarchy, aristocracy, and democracy,
seeing none as ideal, but a mix of the three useful by combining the best aspects of
each. In his 1656 Oceana, James Harrington brought these ideas up-to-date and
proposed systems based on the separation of power. John Locke, in his 1690 Civil
Government, second treatise, separated the powers into an executive and a
legislature. Montesquieu's 1748 Spirit of the Laws expanded on Locke, adding a
judiciary. The framers of the Constitution took all of these ideas and converted the
theories into practical applications.

MONTESQUE AND DOCTRINE OF SEPARATION OF POWER:

The doctrine of “separation of powers”as usually understood is derived from

Montesquieu,whose elaboration is based of it was based on a study of lock’s writings
and an imperfect understanding of the eighteenth-century English Constitution.
Montesquieu was concerned with political liberty. political liberty is to be found ,he
says,”only when there is no abuse of power”.

He was quite explicit here: “When the legislative and executive powers are united in
the same person, or in the same body of magistrates, there can be no liberty. . . .
Again, there is no liberty, if the judiciary power be not separated from the legislative
and executive. Were it 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 violence and
oppression. There would be an end to everything, were the same man, or the same
body, whether of the nobles or of the people, to exercise those three powers, that of
enacting laws, that of executing the public resolutions, and of trying the causes of
individuals”.

BASIC OBJECT OF SEPARATION OF POWER:

 Prevention of tranny by the conferment of too much power on any one person
or body and the check of one power by another.
SEPARATION OF POWER AND USA:
The Separation of Powers devised by the framers of the Constitution was designed
to do one primary thing: to prevent the majority from ruling with an iron fist. Based
on their experience, the framers shied away from giving any branch of the new
government too much power. The separation of powers provides a system of shared
power known as Checks and Balances.Three branches are created in the Constitution.
The Legislative, composed of the House and Senate, is set up in Article 1. The
Executive, composed of the President, Vice-President, and the Departments, is set
up in Article 2. The Judicial, composed of the federal courts and the Supreme Court,
is set up in Article 3.Each of these branches has certain powers, and each of these
powers is limited, or checked, by another branch.For example, the President
appoints judges and departmental secretaries. But these appointments must be
approved by the Senate. The Congress can pass a law, but the President can veto it.
The Supreme Court can rule a law to be unconstitutional, but the Congress, with the
States, can amend the Constitution.All of these checks and balances, however, are
inefficient. But that's by design rather than by accident. By forcing the various
branches to be accountable to the others, no one branch can usurp enough power to
become dominant.The following are the powers of the Executive: veto power over
all bills; appointment of judges and other officials; makes treaties; ensures all laws
are carried out; commander in chief of the military; pardon power. The checks can
be found on the Checks and Balances Page.The following are the powers of the
Legislature: Passes all federal laws; establishes all lower federal courts; can override
a Presidential veto; can impeach the President.

SEPARATION OF POWER ON THE CONTARARY IN UK:

There is not,and never has been,a strict separation of powers in England constitution
in the sense that legislative,executive and judicial powers are assigned respectively
to different organs,nor has checks and balances between them devised as a result of
theoretical analysis. As compare to USA UK has limited separation of powers as there
is not properly codified constitution in UK. In UK institutions work with mutual
cooperation and there is limited separation of power.
MERITS OF THEORY OF SEPARATION OF POWERS:

Following are the advantages of separation of powers:

 Protection of liberty and rights:

The theory of separation of powers protection to the liberty and rights of the
individuals and protects him from different of despotism and oppression.

 Increase in Government’s efficiency:

As powers are distributed among the government departments,these departments

gain deep knowledge of the matters they with,and become more efficient.

 Limited Government:

As powers are distributed among different depart these departments enjoy only
limited powers. This prevent rise of dictatorship.
 Prevents abuse of power:

Separation of powers accompanied by check and balance is an effective check

against abuse of power and arrogance of power.

DEMERITS OF THEORY OF SEPARATION OF POWERS:

This theory,through adopted by most countries,has not escaped criticism. It has
criticized not only as impossible but also as undesirable.According to
Sabine,Montesquieu was guilty of oversimplification. He united his theory to a hasty
and superficial analysis the constitutional principles of liberty." Finer said that it was
futile to rigidly apply the theory of separation of powers to modern condition.

The theory of separation of powers has been attacked on the following grounds.

 Wrong Reading of British System:

By the time Montesquieu developed his theory of separation of powers, there had
come into being the Cabinet system of govern" There was not in Britain then
separation of powers. On the contrary, there was 'concentration of responsibility.'
Having witnessed the British people enjoying liberty, Montesquieu wrongly
concluded that in Britain there was separation of powers. He misread British politics.

 Not Fully Possible:

This theory is not fully possible. The executive has some role in rule-making, and the
legislature also performs some judicial functions. For example, impeachment which
is judicial in nature is done by the legislature.

 Administrative Complication:
Separation of powers results in administrative complications. It becomes difficult to
forge cooperation, coordination and harmony among the organs of government. The
smooth working of modem governments demands not so much separation of
powers as 'co-ordination' of powers.
 Confusion and Deadlock:
Separation of powers leads to jealousy, suspicion and friction among the organs of
government. While producing disharmony and confusion, it may paralyse the administration.
As a result, the administration often fails to take quick decisions even at a time of crisis.

According to Finer, the theory of separation of powers throws "governments into alternating
conditions of coma and convulsion." Another scholar is of the view that "separation of powers
means confusion of powers."

 Inequality of Powers:
This theory is based on the principle of equality of powers, but this principle is
flawed. In the parliamentary system, the legislature which represents the people is
most powerful while the executive is most powerful in the presidential system.

 Not the Sole Factor of Liberty:

Separation of powers may contribute to liberty, but it is not the only factor of liberty. Liberty
also depends a lot on the psyche of people, their outlook, their political awareness, customs
and traditions, fundamental rights, rule of law, independence of judiciary and economic
equality.

 Balance Disturbed:
The government, performing various important functions, has become increasingly
powerful. Besides being the problem-solver and crisis-manager, it is also required to
provide welfare to people. All this has made the executive very powerful, and
disturbed the balance among the three organs of government. Planning, security and
welfare demand not so much separation of powers as their 'fusion'.

 A Misnomer:
This theory is a misnomer, because what it means is separation of function, not
separation of powers.

CONCLUSION:
As per the interpretation of Montesquieu's concern for welfare and security has
been responsible for transfer of more powers to the executive, though liberty is
significantly dependent upon balance among the three organs of government. In an
ideal system, there should be equal interest in the liberty of the individual as well as
in his welfare and the security of state. This, no doubt, would require a strong
government but this would also call for separation of powers coupled with check and
balance.

REFERENCES:

 CONSTITUTIONAL LAW BY A.G CHAUHDRY

 CONSTITUTIONAL AND ADMINISTRATIVE LAW BY O.HOOD PHILIPS

AND JACKSON

 CONSTITUTIONALISM AND SEPARATION OF POWERS BY M.J.C. VILES

 THE GENERAL PRINCIPLES OF CONSTITUTIONAL LAW IN UNITED
STATES OF AMERICA BY COOLY,THOMAS MCLNTYRE

 COMPARATIVE POLITICS BY GREGORY MAHLER

 BLACK’S LAW DICTIONARY 2ND EDITION