Separation of Powers

 Separation of Powers

1.0 Introduction

2.0 Objectives

3.0 Main Content

1.0 Introduction

We are much used to the division of governmental power amongst the traditional three arms of government – the legislature, the executive and the judiciary.

There are three central functions or organs of state, namely the Executive, the Legislature and the Judiciary. The notion is that since “power corrupts and absolute power corrupts absolutely”, power should either be shared out between separate and distinct bodies or alternatively that measures are adopted to ensure that whilst each organ can cooperate with the other organs, no one organ will be subservient to any other..

2.0 OBJECTIVES

At the end of this Unit, you will be able to:

• Assess the traditional doctrine of separation of powers.

• Analyze the doctrine against the background of the activities of public law agencies.

3.0 MAIN CONTENT

3.1 Meaning and Scope of Separation of Powers

The doctrine of separation of powers as historically understood is derived from the work of French jurist, Baron De Montesquieu. This doctrine is an elaboration of the study of John Locke’s writings. Montesquieu was concerned with the preservation of political liberty. He said ‘political liberty is to be found, only when there is no abuse of power’.

The doctrine of separation of powers amongst the three arms of government is one of the central issues implicated in the governance of modern democracies and other jurisdictions which aspire to stabilize their governments. This is one of the devices used by the Anglo-American system of government to protect the rule of law and prevent the exercise of arbitrary power by the sovereign. Phillips and Jackson, citing Montesquieu who further opined that:

‘constant experience shows us that every man manifested with power is liable to abuse it and to carry his authority as far as it will go…To prevent this abuse, it is necessary from the nature of things that one power should be a check on another….

The doctrine stemmed from the observation of Locke of the conditions prevalent in seventeenth century England. The doctrine as we know it today is due to the work of the French Jurist, Montesquieu, who based his study on the works of Locke.

separation of powers amongst the three arms of government is one of the central issues implicated in the governance of modern democracies and other jurisdictions which aspire to stabilize their governments. This is one of the devices used by the Anglo-American system of government to protect the rule of law and prevent the exercise of arbitrary power by the sovereign. From the outset, it is important to note that separation of powers can mean about three different things as follows:

a. That the same persons should not be part and parcel of more than one of the three arms of government. In other words, if a person is a member of the Legislature, he should not simultaneously be a member of either the Executive or the Judiciary.

b. That an arm of government should not interfere in the affairs of any other two arms of government. Put differently, it means, for example, that a member of the executive should do only those things that are within the schedule of duties of the executive, and desist from controlling or interfering with the legislature and the judiciary in the performance of their assigned functions.

c. That one arm of government should not exercise the functions of another arm, that is, the judiciary, for example, should neither perform legislative nor executive roles.

John Locke

The concept originally stemmed from the observations of English jurist, John Locke, that to prevent arbitrariness there should be a constitutionally created government divided into the legislative power for creation of rules to protect rights; executive power by which laws are enforced; federating power which concerns the making of war, peace and external relations.

He said:

“it may be too great a temptation to human frailty, apt to grasp at power, for the same person who have the power of making laws; to have also in their hand the power to execute them, whereby they may exempt themselves from obedience to the laws they made and suit the law; both in its making and execution, to their own private advantage.”

Montesquieu

The concept in its modern form was first articulated by the French jurist, Montesquieu who, while predicating his exposition on the 18th century British constitution, contended that unless power is checked, it will be abused. To him, “political liberty is to be found only when there is no abuse of power. But constant experience shows every man invested with power is liable to abuse it, and carry his authority as far as it will go. To prevent this abuse, it is necessary from the nature of things that one power should be a check on another...When the legislature and executive powers are united in the same person or body there can be no liberty. Again, there is no liberty if the judicial power is not separated from the legislature and executive. There would be an end of everything if the same person or body, whether of the nobles or the people, were to exercise all the three powers”

Therefore, governmental power should be divided into the legislature, executive and judicial powers with mutual check on one another thus:

(1) That the same persons should not form part of more than one of the three organs of government;

(2) That one organ of government should not control or interfere with the exercise of its function by another organ; and

(3) That one arm of government should not exercise the functions of another.

What Montesquieu means by this categorization is that if legislative and executive functions are fused in one person or body of persons, the civil society faces the peril of the legislature enacting privative or oppressive laws which the executive will selfishly execute or implement. Likewise, if the same body or body of persons exercise legislative and judicial powers, there is the danger that the powers would be exercised arbitrarily for the legislator acting as the judge will interpret the law the way that best suit him or them. This will not augur well for the civil society. Therefore, there is the need for each arm to mind its own business as this arrangement best secures individuals against arbitrary exercise of power.

SELF ASSESSMENT EXERCISE1

Explain the classical meaning of separation of powers