Separation of Powers: In context of Bangladesh, India, UK and USA Constitution.
Separation of Powers: In context of Bangladesh, India, UK and USA Constitution.
Separation of Powers: In context of Bangladesh, India, UK and USA Constitution.
*By Farhad Uddin Ahmed Bhuiyan
The ‘Separation of Powers’ is a doctrine that has exercised the minds of many. Ancient philosophers, political theorists and political scientists, framers of constitutions, judges and academic writers have all had cause to consider the doctrine through the centuries. The separation of powers is a doctrine not a legal principle.
The concept of separation of power has played a major role in the formation of constitution. The extent to which powers can be exercised should be separate and distinct. The essence of the doctrine is that there should be ideally a clear demarcation in function between the organs. Generally we have seen separation of power is one of the debating and challenging where there are so many controversial issues against this doctrine. Some said there must be strict separation of powers in the state, some body argued no separation, there are fusion of powers. Many support the theory of cheeks and balances. In general sense every state has the three wings, such as executive, legislature and judiciary. They are interrelated to each other. Though peoples theoretically believe there is separation of powers but practically impossible.
On the other hand according to Article 22, 26, 55, 65, 94(4), 107, 109 & 116A of the Constitution of Bangladesh we can say that the doctrine of separation of power is well established in Bangladesh constitution. Anchored by the Bangladesh Constitution first three articles of the country, Legislative, Executive and the Judiciary (judicial) make up our three branches of government. The Constitution clearly lays down the foundations of a judiciary that is separate and independent from the other branches of government. It was introduced in recognition of the fact that the efficiency of the judiciary and the entire justice system depends largely on the independence of the judiciary.
By distributing the essential business of government among three separate but interdependent branches, the Constitutional Framers ensured that the principal powers of the government, legislative, executive and judicial, were not concentrated in the hands of any single branch. Allocating governmental authority among three separate branches also prevented the formation of too strong a national government capable of overpowering the individual state governments. The Separation of Powers, by which the executive, legislative, and judicial branches are to be independent and not infringe upon each other’s rights and duties, is one of the basic doctrines in the Bangladesh Constitution.
The separation of power also known as ‘Trias Politica’ is a model for the governance of domestic states. There are so many countries like us followed the separation of power doctrine. Bangladesh has already taken the step of following separation of power as for example separation of judiciary. United Kingdom also has adopted the doctrine. In England theory of integration of powers has been adopted though the three powers are vested in three organs and each has its pecuniary features. It can not be said that there is no sharing out of the powers of the government. And the USA doctrine of separation of powers has been accepted and strictly followed and there system is ’’checks and balances’’. The constitution of India tried to adopt the middle path between the American system of judicial supremacy and the English principle of parliamentary supremacy. For this judiciary was empowered with power of judicial review, so that it can determine the constitutionality of executive and legislative actions but at the same time the judiciary was not empowered to review wisdom of legislative and executive policies.
The range of this research includes the area of information required to collect and scrutinize of the topic regarding ‘Separation of Powers: A Comparative Study under Bangladesh, India, UK and USA Constitution’. This research confined by the significant case laws, print articles, books, e-books, bare Acts, newspapers and web links of different scholars and jurists.
It is generally accepted that there are three main categories of governmental functions- (i) Legislative, (ii) Executive, and (iii) Judicial. Similarly, there are three main organs of the Government in a State- (i) Legislature, (ii) Executive, and (iii) Judiciary. According to the theory of Separation of Powers, these three powers and functions of the Government must, in a free democracy, always be kept separate and be exercised by three separate organs of the Government. It means that one person or body of persons should not exercise all three types of powers of government. The legislature should exercise legislative functions and powers and should not administer or enforce it. The executive should not control the legislature nor should it take over the functions of the judiciary.
According to Wade and Philips,[1] the theory of separation of the powers signifies the following three different things:
- That the same person should not form part of more than one of the three organs of the government;
- That one organ of the government should not interfere with any other organ of the government;
- That one organ of the government should not exercise the functions assigned to any other organ.
According to Montesquieu, if the executive and the legislature are the same persons or body of person there would be a danger of the legislature enacting oppressive laws which the executive will administer to attain for its own ends. He further said that if one person or body of persons could exercise both the executive and judicial powers in the same matter there would be arbitrary power which would amount to complete tyranny and there would be no objectivity of law.
This idea of separation of functions stems from the logical conclusion that if the law-makers should also be the administrators and dispensers of law and justice, then the people at large will be left without a remedy in case any injustice is done as there will be no superior authority.
The doctrine of separation of powers has become an integral part of the governmental structure. But, the practical application of the doctrine differs to a great extent. In theory, the doctrine of separation of powers is supposed to have a threefold classification of functions and corresponding organs. But because of the diverse and complex nature of a modern state, where the process of law making, administration and adjudication cannot be clearly demarcated or assigned to separate institutions, the application of this doctrine in strict sense is very difficult.
The doctrine of the separation of powers is often assumed to be one of the cornerstones of fair government.[2] It apparently evolved from the desire to limit the concentration of power within any one branch of government, a problem most famously articulated by Lord Acton:[3]
“Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men.”
The principles of separation of power have existed as philosophical constructs since the times of Aristotle,[4] and later expounded upon and articulated by John Locke and Barron Montesquieu during the 17th and 18th Centuries. Ironically it was Montesquieu’s idealistic regard for the British parliamentary system that was used by the writers of the American Constitution to justify the concept of the separation of powers in their revolutionary fight against the British. Within the British schools of legal philosophy, the concept was further evolved by Blackstone, who particularly advocated the separation of the judiciary from the state.[5]
The separation of powers is a model for the governance of both democratic and federative states. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the uncodified Constitution of the Roman Republic. The doctrine of separation of powers has emerged in several forms at different periods. Its origin is traceable to Plato and Aristotle. In the 16th and 17th centuries, French philosopher John Bodin and British politician Locke expressed their views about the theory of separation of powers. But it was Montesquieu who for the first time formulated this doctrine systematically, scientifically and clearly in his book ‘Esprit des Lois’ (The Spirit of the Laws), published in the year 1748.[6]
Charles Louis de Secondat, otherwise known as Baron de Montesquieu, was a provincial French nobleman and parliamentary magistrate. His lasting contribution to political theory, L’Esprit des Lois (The Spirit of the Laws) was the product of his observations whilst traveling in Europe between 1728 and 1731, although the book itself was not published until 1748. Much of Montesquieu’s time during this period was spent in England attending the court of George II and moving in political circles. His exposure to English political life and the manner in which government was conducted has accordingly led to speculation as to the extent to which some of the views expressed in his book were formulated by his English experiences.[7]
For Montesquieu:
When legislative power is united with executive power in a single person or in a single body of the magistracy, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will execute them tyrannically.
Nor is there liberty if the power of judging is not separate from legislative power and from executive power. If it were joined to legislative power, the power over the life and liberty of the citizen would be arbitrary, for the judge would be the legislator. If it were joined to executive power, the judge could have the force of an oppressor.
All would be lost if the same man or the same body of principal men, either of nobles, or of the people, exercised these three powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals.[8]
The rationale underlying the separation of powers, to prevent the abuse of power, is apparent throughout this passage. Speculation has sometimes centered upon whether chapter 6 of Book 11 is a description of the constitutional framework which Montesquieu observed in England, or whether it is his prescription for the features that a constitution ought to exhibit. In addition, questions have arisen as to the extent to which he was influenced by the opinions of others, most notably Viscount Bolingbroke, a contemporary English politician and pamphleteer. Whatever the answers to these questions, the fact remains that Montesquieu has, in the words of the authors of The Federalist Papers, come to be seen as ‘the oracle who is always consulted and cited on this subject’. In their opinion, ‘if he be not the author of this invaluable precept in the science of politics, he has the merit of at least displaying and recommending it most effectually to the attention of mankind’. It is perhaps not surprising; therefore, that M J C Vile has described Montesquieu as the ‘father of modern constitutionalism’.[9]
Though the doctrine of Separation of Powers is traceable to Aristotle but the writings of Locke and Montesquieu gave it a base on which modern attempts to distinguish between legislative, executive and judicial power is grounded. Locke distinguished between what he called:
- Discontinuous legislative power
- Continuous executive power
- Federative power.
He included within ‘discontinuous legislative power’ the general rule making power called into action from time to time and not continuously. ‘Continuous executive power’ includes all those powers which we now call executive and judicial. By ‘federative power’ he meant the power of conducting foreign affairs.
Montesquieu found that concentration of power in one person or a group of persons results in tyranny. And therefore for decentralization of power to check arbitrariness, he felt the need for vesting the governmental power in three different organs, the legislature, the executive, and the judiciary. The principle implies that each organ should be independent of the other and that no organ should perform functions that belong to the other.
Montesquieu in the following words stated the Doctrine of Separation of Powers:
“There would be an end of everything, were the same man or 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.”
According to Montesquieu, the doctrine of separation of powers means that no one person or body should be vested with all three types of powers. There must be a division of functions on the following basis: the legislature should make laws but not administer or enforce them, the executive must administer the made laws but neither influence the legislature in the making of the laws nor stand in judgment of the same and the judiciary must determine rights and uphold justice without taking over the functions of law-making or administration.[10] He further said that such separation is necessary in order to ensure that justice does not become arbitrary and capricious.
He thought that concentration of power in one person or a group of persons results in tyranny. And thus, for decentralization of power to check arbitrariness, he thought that there is a need for vesting the governmental power in three different organs. The principle implies that each organ should be independent of the other and that no organ should perform functions that belong to the other.
The value of this doctrine lies in that it attempts to preserve human liberty by avoiding the concentration of powers in any one person or body of person. As stated by Madison- “The accumulation of all powers, legislative, executive and judicial, in the same hands whether of one, a few, or many and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny”[11]. And for the prevention of this tyranny, the doctrine of separation of power holds its greatest importance.[12]
Also, the separation proposed by Montesquieu did not apply merely to the organs and their functions but in regard to their personnel as well. This according to him was for the reason that, if a person holding office in one wing of the government should wield power in regard to another wing, it would defeat the purpose of the separation itself. Montesquieu was convinced that it was only through such a system of separation of powers that a government could be made free from the dangers of capricious or tyrannical rule.[13]
This theory has had different application in France, U.S.A., England and India as well as in Bangladesh. In France, it resulted in the rejection of the power of courts to review the acts of the legislature or the executive. The doctrine was never accepted in its strict sense in England. About U.S.A, India and Bangladesh it will be further dealt in brief.
Strictly speaking, the modern ‘doctrine of separation of powers’ proposes that the three functions of government, legislative (making the law), executive (enacting the law) and judicial (interpreting the law), be enacted by three autonomous and independent branches of government. Further, that no member of any one branch should be a member of any other. Early idealistic attempts to realize this doctrine appeared in the 18th Century, within some of the rising colonies of the Americas and the early French Republic,[14] but both failed to produce coherent systems of government.[15] Today, the Constitution of the USA is the only structure that tries to fully adhere to this doctrine.
Critics of the system point out both practical and conceptual difficulties in realizing such a separation. For instance, is it really possible to succinctly classify all the functions of modern government into these three areas? Additionally, providing a coherent structure of government whilst keeping such functional areas totally separate, can lead to unnecessary complications and gamesmanship, with a myriad of checks and counter-checks being imposed between the three branches.[16]
Checks and balances and the separation of powers are vital mechanisms to ensure the smooth running of democracy. Checks and balances operate to ensure that no one body or group of people ever are able to have so much power that they are able to disproportionately influence the legal system or law making of a country ensuring that any new law has to go through a system of intense scrutiny, for example, is one way of helping to ensure the long and successful life of democracy.
The basic concept is that no one part of government should be able to make policy easily. Every person or part of government should only have a limited amount of power (separation of powers) and should have other people/parts of government that can block their actions (checks and balances). This is a major founding principle of a modern democratic country – that no part of government should have the ability to wield uncontrolled power. The idea was to make it much harder for government to tyrannize the people.
In a democratic state, the power rests on three separate organs, namely the executive, the legislature and the judiciary. Most of the newly independent states, while adopting their constitutions, have been vigilant about giving attention to the type, nature, and powers of the executive branch of the government. The constitution of Bangladesh vests the executive power in the executive and the legislative power in parliament. Several models are there to fashion the details of the executive. Bangladesh followed in turn the Presidential and the parliamentary models of executive. The legal basis of the Bangladesh provisional government established on 10 April 1972 which was provided by the proclamation of independence which was to take effect from 26 March 1971.
If we analyze and evaluate the theory of separation powers in our national context, then we can understand that the doctrine of separation of powers has itself been influenced by, and has influenced, the growth of Administrative Law in Bangladesh. Regarding appointment of persons to subordinate courts Article 115 of the Constitution of Bangladesh says “Appointments of persons to offices in the judicial service or as magistrates exercising judicial functions shall be made by the President in accordance with the rules made by him in that behalf.”[17]
With regard to the appointment of persons to offices in the judicial functions, it was, among other, provided in the original Article 115 that the President would make the appointment but in case of District judges the appointment would be made on the recommendation of the Supreme Court and in relation to appointments of persons to subordinate courts have been taken away clearly concentrating the same to the President himself Provision relating to control and discipline of subordinate courts is given in Article 116 of the Constitution of Bangladesh. This Article says “The control (including the power of positing, promotion and grant of leave) and discipline of persons employed in the judicial services and magistrates exercising judicial functions shall vest in the President and shall be exercised by him in consultation with the Supreme Court.”[18]
The Constitution of Bangladesh vests the executive power of the Republic in the executive and the legislative power of the Republic in Parliament. Though there is no specific vesting of the judicial power of the Republic, it is vested in the judiciary. It was held in the case of Mujibur Rahman v. Bangladesh.[19] The divisions of power are not, however, absolute. The executive can legislate under certain circumstances, and in fact, Parliament cannot make any law relating to the appointment of judicial officers and Magistrates exercising judicial functions, which has to be provided for by the President. It was held in the case of Secretary, Ministry of Finance v. Masdar Hossain.[20]
On the other hand, Parliament can cause a fall of the executive government and impeach the President. Parliamentary Standing Committees can review the enforcement of laws by the Ministries and propose measures for such enforcement and in relation to any matter referred to it by Parliament as a matter of public importance, investigate or inquire into the activities or administration of the Ministries. While the judiciary has the legislative power to make certain rules, Parliament can adjudicate certain disputes; it has power to enforce its own privileges and to punish those who offend against them. This may in certain situations bring it in conflict with the courts.[21]
Article 22 of the Constitution of Bangladesh emphasizes independent judiciary by way of separating the same from the executive organ of the state. This Article provides that the state shall ensure the separation of the judiciary from the executive organ of state. This principle involves two consequences first, that a Judge or Magistrate who tries a casa must not be in any manner connected with the prosecution, or interested in the prosecution. Second, that he must not be in direct administrative subordination to any one connected with the prosecution. Quite clearly it is impossible for a judge to take a wholly independent view of the case he is trying if he feels himself to any extent interested in or responsible for the success of one side or the other. This is the first aspect. It is equally impossible for him to take an independent view of the case before him if he knows that his posting, promotion, and prospects generally depend on his pleasing the executive head. Thus the separation of functions means and involves the elimination of these two evils.[22]
During the British days, there was a demand for the separation of the judiciary from the executive and Article 22 of the Constitution of Bangladesh meets that demand. But very little has been done by the state in this count in practice. The Deputy Commissioner who is the chief executive in the district can arrest and prosecute a person. He also acts as a judge and tries criminal cases. It is, therefore, generally contended that such a practice is not in accordance with the theory of separation of powers.
What the Constitution has done can very well be described as an assignment or distribution of the power of the Republic to the three organs of the government and it provides for separation of powers in the sense that no one organ can transgress the limit set by the constitution or encroach upon the powers assigned to the other organs. The result is that unless the Constitution has expressly provided otherwise, no one organ can wield the powers of the other organs. Thus in the name of interpretation of the Constitution and the laws, the judiciary cannot create a new law or amend and existing law, which will be offensive as a judicial legislation. Nor can the judiciary give direction to Parliament to make laws or to the President to make rules. The Appellate Division held that when there is a Constitutional deviation and Constitutional arrangements have been interfered with and altered by Parliament by enacting laws and by the government by issuing various orders, the higher judiciary is within its jurisdiction to bring back Parliament and the executive from Constitutional derailment and give necessary direction to follow the Constitutional course by making or amending laws or rules. It is submitted that when there is a Constitutional deviation in legislative measures, the court can declare such legislative measures to be ultra vires, but cannot give a direction to repeal or modify it. It may be noted that Article 112 of the Constitution of Bangladesh stipulates that all authorities, executive and judicial (but not legislative), shall act in aid of the Supreme Court. Parliament may amend a law retrospectively within certain limits so as to destroy the foundation on which a judicial decision is based, but it cannot set aside a judgment of a court or declare it to be invalid as it will be void as legislative judgment.[23]
Part VI of the constitution of Bangladesh deals with the Judiciary. Article 7 provides that all powers in the Republic shall be effective only under and by authority of the constitution. The responsibility of seeing that no functionary of the state oversteps the limit of his power is a necessity, on the judiciary. Article 35(3) of the constitution provides “Every person accused of a criminal offence shall have right to a speedy and public trial by an independent and impartial court or tribunal established by the law. Article 116A provides for independence in the subordinate judiciary while Article 94(4) demands independence of the Supreme Court Judges. Article 116A, while requiring judicial independence, was part of the detrimental changes to the constitution made in 1974 and 1975 which provides “Subject to the provisions of the constitution, all persons employed in the judicial service and all magistrates shall be independent in the exercise of their judicial functions.”
The judicial independence of all judicial officers is unconditional according to the constitution of Bangladesh. This ideal is protected primarily through the concept of separation of the judiciary from the other organs of government. Article 22 states directly and unquestionably: The state shall ensure the separation of the judiciary from the executive organs of state. Article 95(1) addressed the method of appointment for the Supreme Court: the president shall appoint The Chief Justice and other Judges. The appointment and control of judges in the subordinate judiciary (judicial service) are described in Articles 115 and 116 stating respectively: Appointment of persons to offices in the judicial service or as magistrates exercising judicial be made by the President with the rules made by him in that behalf. The control (including the power of posting, promotion and grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions shall vest in the President and shall be exercised by him in consultation with the Supreme Court. It is principally through the above articles that the executive branch has been able to gradually intrude upon and influence the judiciary in Bangladesh, creating enormous problems regarding the quality of jurisdiction and the extent of judicial independence. Recently, separation of the judiciary from the executive has been argued as a necessity based on the unconstitutionality of the present organization and while this may well be true, it appears to be he consequential improved functional independence of the judiciary that is the fundamental reason for separation with unconstitutionality being only an argument to ensure its enactment.[24]
Separation of the judiciary has been argued both as a cause and a guardian of formal judicial independence.[25] The concept of separation of the judiciary from the executive refers to a situation in which the judicial branch of government acts as its own body frees from intervention and influences from the other branches of government particularly the executive. Influence may originate in the structure of the government system where parts or all of the judiciary are integrated into another body (in the case of Bangladesh: the executive). For example, in Bangladesh the President in consultation with the Supreme Court according to the constitution appoints judicial officers other circumstances include functional aspects of the judicial system when the administration of justice is in some way, affected by executive orders or actions.
Executive abuse of this constitutional order result in biased appointment of judges, and other officers of the judicial cadre, favoring individuals who support the governing political party. Dr. Kamal Hossain, a respected advocate of the Supreme Court, explains the concept of separation of the judiciary through the idea of double standards. An executive officer follows plans, which are of a vertical nature, with the higher offices guiding the decisions of the lower officers, who look for the best possible ways to further the plans established by those higher in the pecking order. Executive decisions are made in lines of policy; law is not a policy. Judges or magistrates performing judicial functions must examine what evidence is given and find a way to best apply it to the law; there is less room for an individual’s perceptions in judicial decisions.[26]
Complete separation is relatively unheard or outside of theory, meaning no judiciary is completely severed from the administrative and legislative bodies because this reduces the potency of checks and balances and creates inefficient communication between organs of the state.[27] A high degree of separation, however, can be a strong guardian of judicial independence, as this paper will attempt to prove.
The constitution of Bangladesh is the first defense of judicial independence, presiding over all the “Republic’s affairs and framing the organization and administration of the government. While constitutional flows exist, regarding separation of the judiciary, there are adequate provisions for formal judicial independence.
Unfortunately, the government of the day with its “promise about change” is taking the wrong step to jeopardize separation of judiciary via encroaching upon administration of criminal justice. This would beget conflict among state organs. The decision to take cognizance of the offences by the executive magistrates u/s 190 of Cr.P.C, 1898 goes against the letter and spirit of the apex court’s decision given in Masdar Hossains case.[28] Cognizance is an important, salient stage of the proceedings of criminal case where a higher degree of care and caution is a must. A criminal case with flawed cognizance, made ready for trial, would aggravate sufferings of the people as it is quite explicit in the Bangladesh perspective having “as many tables and so much corruption”. Moreover, the executive magistrates devoid of legal background do not understand the nuances of legal phraseology. This is corroborated by the statistics about the highest acquittal rate about 90% in criminal cases by the then executive magistrates. The whole nation is still carrying the bitter and dark history of illegality and miscarriage of justice, left by the executive magistrates in criminal cases in the name of justice. The sufferers have not forgotten how the then executive magistrates haggled on their order behind the curtain. If the government is true to its commitment or-premises to the people about a paradigm shift of conventional governance equation in Bangladesh, the bill for the separation of region for an independent judiciary, at it was done in the form of an Ordinance, 2007, promulgated during the tenure of the caretaker government and they are aware of its importance.
It is a matter of great regret for the nation that after long 41 years of independence, the democratically elected government is apparently dithering on taking the action that is needed to ensure full-fledged separation of the judiciary and they make the habitual delay.
The dilatory tactics to ensure the separation of judiciary is nothing but a part of the mechanizations by the vested interests to deny good governance frustrate democracy and subvert efforts for institutionalizing the rule of law. Efforts to subvert the real separation of judiciary from the executive would impede the process for sustainable development of a basic institution like that of judiciary. The logic of the personnel of the administrative cadre in support of criminal magistracy is devoid of pragmatism and is purported for preserving their domain of power that can be used to maximize corruption and so on others.[29]
Throughout history, there has been exhibited a tension between the doctrine of separation of powers and the need for balanced government – an arrangement depending more on checks and balances within the system than on a formalistic separation of powers. The ground reality, in Bangladesh, is that the judiciary possesses neither the financial resource nor the power to extract the allegiance of the other organs of the State to the constitution and the implementation of its decision in so far as it relates to the separation of the judiciary from the executive.
As such, in spite of public declarations and commitments to judicial separation from the executive branch, political groups and the administration have maintained the status quo. Thus the intentions of our constitution have not been carried through. Therefore, although the judiciary is in the process of separation of late, the civil society and the political class of Bangladesh should relentlessly pursue the issue until the constitutional dignity and effectiveness of the supreme judiciary is fully and credibly established. Actually the current constitutional problems in Bangladesh are related to the lack of separation of powers between executive and judicia
In India, there are three distinct activities in the Government through which the will of the people are expressed. The legislative organ of the state makes laws, the executive forces them and the judiciary applies them to the specific cases arising out of the breach of law. Each organ while performing its activities tends to interfere in the sphere of working of another functionary because a strict demarcation of functions is not possible in their dealings with the general public. Thus, even when acting in ambit of their own power, overlapping functions tend to appear amongst these organs. The question which is important here is that what should be the relation among these three organs of the state, i.e. whether there should be complete separation of powers or there should be co-ordination among them.
The Constitution of India embraces the idea of separation of powers in an implied manner. Despite there being no express provision recognizing the doctrine of separation of powers in its absolute form, the Constitution does make the provisions for a reasonable separation of functions and powers between the three organs of Government.
By looking into the various provisions of the Constitution, it is evident that the Constitution intends that the powers of legislation shall be exercised exclusively by the legislature.[30] Similarly, the judicial powers can be said to vest with the judiciary.[31] The judiciary is independent in its field and there can be no interference with its judicial functions either by the Executive or by the Legislature. Also, the executive powers of the Union and the State are vested in the President and the Governor respectively.[32]
The constitution of India lays down a functional separation of the organs of the State in the following manner:
Article 50 lays down that State shall take steps to separate the judiciary from the executive. This is for the purpose of ensuring the independence of judiciary. Article 122 and 212 provides validity of proceedings in Parliament and the Legislatures cannot be called into question in any Court. This ensures the separation and immunity of the legislatures from judicial intervention on the allegation of procedural irregularity.[33] Judicial conduct of a judge of the Supreme Court and the High Courts’ cannot be discussed in the Parliament and the State Legislature, according to Article 121 and 211 of the Constitution. Articles 53 and 154 respectively, provide that the executive power of the Union and the State shall be vested with the President and the Governor and they enjoy immunity from civil and criminal liability.
The legislature besides exercising law making powers exercises judicial powers in cases of breach of its privilege, impeachment of the President and the removal of the judges. The executive may further affect the functioning of the judiciary by making appointments to the office of Chief Justice and other judges. Legislature exercising judicial powers in the case of amending a law declared ultra vires by the Court and revalidating it.[34] While discharging the function of disqualifying its members and impeachment of the judges, the legislature discharges the functions of the judiciary. Legislature can impose punishment for exceeding freedom of speech in the Parliament; this comes under the powers and privileges of the parliament. But while exercising such power it is always necessary that it should be in conformity with due process.[35] The heads of each governmental ministry is a member of the legislature, thus making the executive an integral part of the legislature. The council of ministers on whose advice the President and the Governor acts are elected members of the legislature. Legislative power that is being vested with the legislature in certain circumstances can be exercised by the executive.[36]
If the President or the Governor, when the legislature or is not in session and is satisfied that circumstances exist that necessitate immediate action may promulgate ordinance which has the same force of the Act made by the Parliament or the State legislature. The Constitution permits, through Article 118 and Article 208, the Legislature at the Centre and in the States respectively, the authority to make rules for regulating their respective procedure and conduct of business subject to the provisions of this Constitution. The executive also exercises law making power under delegated legislation. The tribunals and other quasi-judicial bodies which are a part of the executive also discharge judicial functions. Administrative tribunals which are a part of the executive also discharge judicial functions.[37] Higher administrative tribunals should always have a member of the judiciary.[38] The higher judiciary is conferred with the power of supervising the functioning of subordinate courts.[39] It also acts as a legislature while making laws regulating its conduct and rules regarding disposal of cases.
All this shows that Indian Constitution does not opt for the strict separation of powers because it is undesirable and impracticable but implications of this concept can be seen in India in its diluted form.
Besides the functional overlapping, the Indian system also lacks the separation of personnel amongst the three departments.[40]
Applying the doctrines of constitutional limitation and trust in the Indian scenario, a system is created where none of the organs can usurp the functions or powers which are assigned to another organ by express or necessary provision, neither can they divest themselves of essential functions which belong to them as under the Constitution.[41]
Further, the Constitution of India expressly provides for a system of checks and balances in order to prevent the arbitrary or capricious use of power derived from the said supreme document. Though such a system appears dilatory of the doctrine of separation of powers, it is essential in order to enable the just and equitable functioning of such a constitutional system. By giving such powers, a mechanism for the control over the exercise of constitutional powers by the respective organs is established.[42]
This clearly indicates that the Indian Constitution in its plan does not provide for a strict separation of powers. Instead, it creates a system consisting of the three organs of Government and confers upon them both exclusive and overlapping powers and functions. Thus, there is no absolute separation of functions between the three organs of Government.
The debate about the doctrine of separation of powers, and exactly what it involves in regard to Indian governance, is as old as the Constitution itself. Apart from the directive principles laid down in Part-IV of the constitution which provides for separation of judiciary from the executive, the constitutional scheme does not provide any formalistic division of powers. It appeared in various judgments handed down by the Supreme Court after the Constitution was adopted. It is through these judicial pronouncements, passed from time to time, that the boundaries of applicability of the doctrine have been determined.
In the re Delhi Laws Act case,[43] it was for the first time observed by the Supreme Court that except where the constitution has vested power in a body, the principle that one organ should not perform functions which essentially belong to others is followed in India. By a majority of 5:2, the Court held that the theory of separation of powers though not part and parcel of our Constitution, in exceptional circumstances is evident in the provisions of the Constitution itself.
“Although in the constitution of India there is no express separation of powers, it is clear that a legislature is created by the constitution and detailed provisions are made for making that legislature pass laws. Does it not imply that unless it can be gathered from other provisions of the constitution, other bodies-executive or judicial-are not intended to discharge legislative functions?”
In essence, this judgment implied that all the three organs of the State, i.e., the Legislature, the Judiciary, and the Executive are bound by and subject to the provisions of the Constitution, which demarcates their respective powers, jurisdictions, responsibilities and relationship with one another. Also, that it can be assumed that none of the organs of the State, including the judiciary, would exceed its powers as laid down in the Constitution.
But still, in practice, from time to time, disputes continued to arise as to whether one organ of the State had exceeded the boundaries assigned to it under the Constitution. This question of what amounts to an excess, was the basis for action in the landmark Kesavananda Bharti case[44] of 1973. The question placed before the Supreme Court in this case was in regard to the extent of the power of the legislature to amend the Constitution as provided for under the Constitution itself. It was argued that Parliament was “supreme” and represented the sovereign will of the people. As such, if the people’s representatives in Parliament decided to change a particular law to curb individual freedom or limit the scope of judicial scrutiny, the judiciary had no right to question whether it was constitutional or not. However, the Court did not allow this argument and instead found in favour of the appellant on the grounds that the doctrine of separation of powers was a part of the “basic structure” of our Constitution.
The doctrine of separation of powers was further expressly recognized to be a part of the Constitution in the case of Ram Jawaya Kapur v. State of Punjab,[45] where the Court held that though the doctrine of separation of powers is not expressly mentioned in the Constitution it stands to be violated when the functions of one organ of Government are performed by another. This means the Indian constitution had not indeed recognized the doctrine of separation of powers in its absolute rigidity but the functions of different parts or branches of the Govt. have been sufficiently differentiated and consequently it can very well be said that our constitution does not contemplate assumption, by one organ or part of the state, of functions that essentially belongs to another.
In Asif Hamid v. State of Jammu & Kashmir,[46] Legislature, executive and judiciary have to function within their own sphere as demarcated under the constitution. No organ can usurp the functions assigned to another. The functioning of the democracy depends upon the strength and independence of each of its organs. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. However the only check on judicial power is the self-imposed discipline of judicial restraint. Therefore this doctrine cannot be liberally applied to any modern government, because neither the powers can be kept in water tight compartments nor can any government can run on strict separation of powers.
In Suman Gupta v. State of Jammu and Kashmir,[47] the respective State Government reserved certain seats in medical colleges for the students residing in the particular state on reciprocal basis, this policy of state was challenged on the ground that it discriminate among the students on the ground of place of birth. The Supreme Court rejected the policy on the ground of discrimination but meanwhile the students who are the beneficiaries of this policy had completed their substantial education, and now it is not in the interests of justice to cancelled their admission, therefore here supreme court applied the doctrine of prospective overruling and held that the government must not apply the impugned policy from next academic year.
Therefore, by using the doctrine of prospective overruling in the above to cases, the Supreme Court maintained the balance between judiciary and other organs of the government. It can also be maintained by using the self- restraint by the judges.
In Divisional Manager, Aravali Golf club v. Chander Hass and Another,[48] the Supreme Court warned the High court for it’s over activism. The Supreme Court held that since there was no sectioned post of tractor driver against which the respondents could be regularized as tractor driver, the direction of the first appellate court and the single judge to create the post of tractor driver and regularizing he services was completely beyond their jurisdiction. The court cannot direct the creation of post. Creation and sanction of post is a prerogative of the executive or legislative authorities and the court cannot arrogate to itself this purely executive or legislative function, and direct creation of posts in any organization. The court further said that the creation of a post is an executive or legislative function and it involves economic factors. Hence, the courts cannot take upon themselves the power of creation of post.
Similarly, in Madhu Holmagi v. Union of India,[49] wherein one Advocate filed a public interest litigation challenging the “Agreement 123” i.e. Indo-US nuclear treaty proposed to be entered by the Indian government, petitioner contended that court must have to scrutinize the all documents relating to the agreement 123 and must have to prevent the Indian government from entering in to the nuclear deal. In this court dismissed the petition and also imposed a cost of Rs 5000 on the petitioner stating that it is an abuse of court proceeding. Because the question raised by the petitioner is a question of policy decision, which is to be decided by the parliament and not by the judiciary.
However, it was after the landmark case of Indira Nehru Gandhi v. Raj Narain[50] that the place of this doctrine in the Indian context was made clearer. It was observed: “That in the Indian Constitution, there is separation of powers in a broad sense only. A rigid separation of powers as under the American Constitution or under the Australian Constitution does not apply to India. Chandrachud J. also observed that the political usefulness of the doctrine of Separation of Power is not widely recognized. No Constitution can survive without a conscious adherence to its fine check and balance.”
In I.C. Golak Nath v. State of Punjab,[51] Supreme Court took the help of doctrine of basic structure as propounded in Kesvananda Bharati case and said that Ninth Schedule is violative of this doctrine and hence the Ninth Schedule was made amenable to judicial review which also forms part of the basic structure theory. It was observed: “The Constitution brings into existence different constitutional entities, namely, the Union, the States and the Union Territories. It creates three major instruments of power, namely, the Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits. They should function within the spheres allotted to them.”
Thus, referring to the above content, it proves that Separation of Power is practiced in India but not that rigidity. It is not embodied in the Constitution, though practiced. The three main powers do cross their limit and interfere in each other’s task whenever necessary.
It is one thing to discuss the usage of the doctrine of separation of powers in normal governance and entirely another to examine it under the unique circumstances of a national emergency. In such a period, the likelihood of any organ trying to exceed its power increases greatly as many of the checks and balances become suspended. However, it is commonly agreed that even during emergency, the doctrine must continue to be in force.[52]
This scenario was the matter of debate in the case of Rameshwar Prasad v. State of Bihar,[53] where the Court was required to determine whether the imposition of Art. 356 in the State without proper consultation with State authorities or considering the Governor’s report, amounts to an excessive use of legislative power. Finding that the Central Legislature had sought to step into the shoes of the State Legislature and thereby usurp the power completely to itself, in the given case, the Court held there to be a clear violation of the doctrine of separation of powers. India’s Executive had been found to have committed a constitutional misdemeanor, for which it needed to apologize to the court and the parliament and then ask the latter to renew it confidence. If confidence was not renewed, the government would fall and a new government would have to be formed.[54]
The issue of the relative jurisdictional boundaries of the organs of the State has acquired a new momentum in the recent period in the context of coalition politics at the center and in states. This can be seen in the instances such as those that occurred in some states in the State elections of 2005, particularly in Jharkhand, Goa and Bihar, where no party or coalition of parties had a clear majority. The situation was further complicated by the fact that neither the Governors of these states (who had the final powers to appoint a government) nor the presiding officers of the legislatures (who had the powers to conduct the proceedings of the House where the majority claimed by the new government was to be tested) were considered to be impartial in their decisions.[55]
In Jharkhand, after the elections in March 2005, the Governor conducted the swearing-in of a government headed by a member of the Union Cabinet, who however, did not seem to have a clear majority. He was given a fixed number of days to prove his majority on the floor of the House. The opposition parties, who claimed to have a majority, were not in favour of such a grace period being granted and hence filed a writ petition in the Supreme Court challenging the decision of the Governor. On March 9 2005 the Court passed an order, which inter alia gave directions to the Speaker to extend the Assembly session by a day and conduct a floor test between the contending political alliances. In the light of Court’s decision, the earlier government formed by the Union minister decided to tender its resignation on the advice of the central government. An alternative government was then formed by a combination of other parties which was able to prove its majority on the floor of the House.[56]
There has been considerable debate about whether the Court was right in taking cognizance of such a matter, as it might be considered an intrusion into the duties of the executive. However, in light of the fact that the executive was functioning in a biased manner, there were no other avenues available for redress apart from the decree of the Court. Hence, it had to be accepted as a valid action, in consonance with its constitutional powers.[57]
In the United Kingdom, the powers of Parliament, Government and courts are closely intertwined. In fact, the executive and legislature are seen as a “close union, a nearly complete fusion of the executive and legislative powers,” which Walter Baghot viewed as the “efficient secret of the English constitution”.[58]
Recently, however, the question of the separation of powers has been given new relevance in the UK by the question of constitutional reform and by the new constitutional questions, largely arising from the implementation of European laws such as the Human Rights Act 1998. Professor Vernon Bogdanor has predicted that “issues which, in the past, were decided by ministers accountable to Parliament will now come to be decided by the courts”.[59]
Typically, the separation of powers refers to Montequieu’s version of the three main institutions of state, though this is often complicated by different layers of authority, such as the supranational Commission, Council, Parliament and Courts of the European Union.
In the UK, the executive comprises the Crown and the Government, including the Prime Minister and Cabinet ministers. The executive formulates and implements policy. The legislature, Parliament, comprises the Crown, the House of Commons and the House of Lords. The judiciary comprises the judges in the courts of law, those who hold judicial office in tribunals and the lay magistrates who staff the magistrates’ courts. Senior judicial appointments are made by the Crown.
In the UK, and other common law jurisdictions, the executive and legislature are closely entwined. The Prime Minister and a majority of his or her ministers are Members of Parliament and sit in the House of Commons. The executive is therefore present at the heart of Parliament.
By contrast, in the USA, the President may not be a member of the legislature (Congress), and is elected separately from congressional elections. This may result in the President being a member of a different political party from the majority of members of Congress.
The UK’s integration of executive and legislature is said to provide stability and efficiency in the operation of government. It has been described as “a system that intentionally promotes efficiency over abstract concerns about tyranny”.[60] For example, the Prime Minister is usually both head of the executive branch and leader of the majority party in the legislature, which gives the executive branch much more freedom of action than a president usually enjoys in a presidential system of government.
Additionally, Parliament may delegate law-making powers to the Government through powers to draft secondary or delegated legislation. This can liberate Parliament from the need to scrutinize small technical details, while maintaining the safeguard of Parliamentary approval.
In this way, in the UK legislature and executive are far from separate powers. On the other hand, the executive presence in Parliament may actually facilitate scrutiny provided that the necessary procedures are in place. For example, Question Time can be a powerful procedure for holding the executive to account, throwing ministers straight into the lion’s den of the legislature.
The former Prime Minister, Gordon Brown, set out some of the arguments for the efficiency of a mixed system:
“My hon. Friend is proposing the American constitution for Britain. He knows the deadlock that often happens with the American constitution when Congress, the Senate and the President cannot agree on what needs to be done. If he looks back to what has happened over the past few months, he will see that we were able to persuade Parliament to put our banking reforms through and were able to finance our banks so that we could rescue them, whereas it took the Americans weeks and months to get those provisions through their legislature as a result of the issues that arise from the separation of powers”.[61]
Where a government has a large majority of seats in the Commons, the crucial issue is whether the government can dominate Parliament and ensure that its proposed legislation is enacted, or whether there are sufficient procedures in place to ensure that proposals are sufficiently scrutinized and either endorsed or rejected by Parliament.
In order to prevent the executive from controlling Parliament the House of Commons (Disqualification) Act 1975 created limits on the number of salaried ministers who sit in the Commons. Additionally, the legislative branch of government retains the formal power to dismiss executive officers from office. The convention of ministerial responsibility establishes the accountability of government to Parliament.
Following the decision to cut the number of MPs in the House of Commons from 650 to 600, enacted in the Parliamentary Voting System and Constituencies Act 2011, the Public Administration Select Committee examined the role and responsibilities of ministers to see if there was scope for reductions there too. About 20% of MPs are currently on the “payroll vote” as ministers or their Parliamentary aides and are obliged to vote with the Government or resign their position. If this number remains static at the same time as MPs are cut, it could effectively increase the payroll vote, further strengthening the Executive relative to Parliament.[62] Section 14 of the Parliamentary Voting System and Constituencies Act 2011 requires a review to be established to examine the effects of the reduction in the number of MPs after the next general election, expected to be in 201
One of the most important aspects of the executive’s control over the legislature is the allocation of time for debates. The Government usually has almost complete control over the agenda of the legislature. The Backbench Business Committee was created in 2010 as a way of granting the legislature more operational independence from the executive. The Wright Committee believed that the Backbench Business Committee would give MPs more control and ownership of the Parliamentary agenda, make debates more relevant for the public and strengthen the scrutiny role of Select Committees, which would be able to apply for time on the floor of the House through the Backbench Business Committee.[63] The Coalition Government’s Programme for Government committed the Government to introducing a Business Committee for all forms of business by the third year of Government.[64]
The second element of the separation of powers is separation between legislature and judiciary. In the UK, judges are prohibited from standing for election to Parliament under the House of Commons (Disqualification) Act 1975. Judges are expected to interpret legislation in line with the intention of Parliament are also responsible for the development of the common law (judge-made law).
Judges in the higher courts have life tenure, which protects their independence, and a resolution of both Houses is needed to remove a High Court judge from office, while judges at the lower levels can only be removed after disciplinary proceedings.[65] Judges are also protected by immunity from legal action in relation to their judicial functions and absolute privilege in relation with court proceedings.[66]
Lord Phillips of Worth Maltravers, President of the UK Supreme Court, explained that:
The citizen must be able to challenge the legitimacy of executive action before an independent judiciary. Because it is the executive that exercises the power of the State and because it is the executive, in one form or another, that is the most frequent litigator in the courts, it is from executive pressure or influence that judges require particularly to be protected.[67]
Constitutionally, judges are subordinate to Parliament and may not challenge the validity of Acts of Parliament.[68] However, there remains a some leeway for judges to interpret statutes and this raises the question of whether the judges are able to “make law”.
There is an element of judicial law-making in the evolution of common law.[69] In Magor and St. Mellons Rural District Council v. Newport Corporation[70] the House of Lords rejected the approach of Lord Denning who had stated that, where gaps were apparent in legislation, the courts should fill those gaps. Lord Simonds commented that this amounted to a ‘naked usurpation of the legislative function under the guise of interpretation”.[71] Later, however, in his lecture, The Judge as Lawmaker, Lord Reid said that while it was once “thought almost indecent” to suggest that judges make law, the notions that judges only declare the law was outdated.[72] Lord Scarman argued a middle course, suggesting that “the objective of judges is the formulation of principles; policy is the prerogative of Parliament”.[73]
The Jackson case in 2005 on the application of the Parliament Acts to the Hunting Act 2004 prompted obita (remarks) from the House of Lords which questioned the relationship between parliamentary sovereignty and the rule of law in a novel manner, suggesting that there were limits to sovereignty where constitutional fundamentals were at risk.[74]
The cooperation between judiciary and legislature has been described as a “constitutional partnership” as Parliament may give tacit approval to judge-made law by not interfering with it. Lord Woolf, for example, has argued that “the crown’s relationship with the courts does not depend on coercion”, but on a state a trust.[75] Professor Bogdanor has argued, for example, that the Human Rights Act necessitated a compromise between two doctrines- the sovereignty of Parliament and the rule of law and that the compromise “depends upon a sense of restraint on the part of both the judges and of Parliament”.[76]
A further complication has been the incorporation of European Community law into UK domestic law. In Factortame (no 2) Lord Bridge interpreted the European Communities Act 1972 to mean that UK statute would not apply where it conflicted with European law, a significant departure from the principle of Parliamentary sovereignty.[77] Further, under section 4 of the Human Rights Act 1998, a court can declare a statute to be incompatible with the European Convention on Human Rights and the Government is then obliged by the Convention to rectify the inconsistency.[78]
Article 9 of the Bill of Rights 1689 set out the principle of privilege of Parliament: freedom of speech and debate. According to Lord Neuberger, Master of the Rolls, it is “an absolute privilege and is of the highest constitutional importance”.[79] Any attempt by the courts to contravene Parliamentary privilege would be unconstitutional. No court order could restrict or prohibit Parliamentary debate or proceedings.[80]
On the other side of the coin, there is a convention that Members of Parliament will not criticise judicial decisions. This is complemented by the sub judice rule that guards against Parliamentary interference in cases currently before the courts.
The sub judice rule is intended to defend the rule of law and citizens’ right to fair trial.[81] Where an issue is awaiting determination by the courts, that issue should not be discussed in the House in any motion, debate or question in case that should affect decisions in court.
However, the sub judice rules are not absolute: the Chair of proceedings of the House of Commons enjoys the discretion to permit such matters to be discussed. Moreover, sub judice does not affect the right of Parliament to legislate on any matter.[82]
The 1999 Joint Committee on Parliamentary Privilege explained that sub judice rules are intended “to strike a balance between two sets of principles. On the one hand, the rights of parties in legal proceedings should not be prejudiced by discussion of their case in Parliament, and Parliament should not prevent the courts from exercising their functions. On the other hand, Parliament has a constitutional right to discuss any matter it pleases”. It went on to explain that the rules strike the balance between Parliament’s constitutional duty and role and the constitutional role of the courts.[83]
The proper relationship between Parliament and the courts requires that the courts should be left to get on with their work. Restrictions on media comment are limited to not prejudicing the trial, but Parliament needs to be especially careful: it is important constitutionally, and essential for public confidence, that the judiciary should be seen to be independent of political pressures. Thus, restrictions on parliamentary debate should sometimes exceed those on media comment.[84]
The third element of separation is between the executive and the judiciary. The judicial scrutiny function with regard to the executive is to ensure that any delegated legislation is consistent with the scope of power granted by Parliament and to ensure the legality of government action and the actions of other public bodies.[85] On the application of an individual, judicial review is a procedure through which the courts may question lawfulness of actions by public bodies.[86] This requires judges to be independent of government and Parliamentary influence.
The judges have traditionally exercised self-restraint or “deference” in the areas of power that they regard themselves as competent to review. Some uses of the royal prerogative, for example, involve issues of “high policy”, such as the appointment of ministers, the allocation of financial resources, national security, signing of treaties and defence matters and judges would not usually interfere in these matters. For an example of this traditional view see the case of Council of Civil Service Unions v. Minister for the Civil Service.[87] More recently, in A v Secretary of State for Home Department, concerning the detention without charge of suspected international terrorists in Belmarsh prison, the Attorney General argued in 2004 that “these were matters of a political character calling for an exercise of political and not judicial judgment” and that “it was not for the courts to usurp authority properly belonging elsewhere”. However, Lord Bingham, who gave the leading judgement, rejected this argument, concluding that “the function of independent judges charged to interpret and apply the law is universally recognized as a cardinal function of the modern democratic state” and that the Attorney General was “wrong to stigmatize judicial decision-making as in some way undemocratic”.[88]
In the Constitutional Reform Act 2005, the Government and Parliament reformed some of the areas where, in the UK, the “powers” had been least separated. The Minister responsible for the bill in the Commons, Christopher Leslie, told the House that “we want to ensure that we clearly define the separation of powers, where it is appropriate, but that is not incompatible with having a partnership between the different branches of the state”.[89]
The Act created a separate Supreme Court and the Lord Chief Justice replaced the Lord Chancellor as head of the Judiciary in England and Wales. It also placed a statutory duty on Ministers to uphold judicial independence.[90] The Bill was referred to a select committee in the Lords.[91] The Select Committee on the Constitutional Reform Bill produced its report in June 2004 and this contains background information on the arguments over separation of powers.[92] The Commons Constitutional Affairs Select Committee report of 2004-5 is also relevant.[93]
Before 2005, the office of Lord Chancellor was a bridge between the institutions of the state. He was head of the judiciary with responsibility for the appointment of judges, a member of the Cabinet and Speaker of the House of Lords. In McGonnell v. United Kingdom,[94] the then Lord Chancellor, Lord Irvine, clarified that “the Lord Chancellor would never sit in any case concerning legislation in the passage of which he had been directly involved nor in any case where the interests of the executive were directly engaged”.
The Constitutional Reform Act 2005 removed the judicial functions of the Lord Chancellor and his former role as head of the judiciary is now filled by the Lord Chief Justice. The Lord Chancellor no longer sits as Speaker of the House of Lords, which now elects its own Speaker. This was intended to create a more formal separation of powers. However, others saw the Lord Chancellor as a voice for the judiciary in Parliament and argued that the Lord Chancellor could ease tensions between the branches of state. The House of Lords Constitution Committee’s reported in 2007 on relations between the executive, the judiciary and Parliament and contains useful background.[95]
Before the Constitutional Reform Act 2005 judicial appointments were made on the recommendation of the Lord Chancellor who was a Government Minister. The legislation established an independent Judicial Appointments Commission for England and Wales. Judges are represented on the Commission, but do not hold a majority and the Commission have to have a lay Chair. The Commission recommends candidates to the Lord Chancellor, who has a very limited power of veto. The Act gives the Commission a specific statutory duty to “encourage diversity in the range of persons available for selection for appointments”.[96] Separate procedures apply to the appointment of Supreme Court judges, which take account of the fact that the Court has a UK wide remit.[97]
Since enactment, concerns have been raised that the Constitutional Reform Act had actually reduced the diversity of new appointments to the senior judiciary compared to the old informal system, which sought out candidates rather than depending upon selection from applicants. The new process has also been criticized for being slow and involving the President and the Deputy President of the Supreme Court in the selection of their own successors.[98] A research project at the Constitution Unit, University College London is examining these issues.
The length of time that the new process takes was also criticized, as was the involvement that the current system currently gives to the President and Deputy President of the Supreme Court in the process of selecting their own successors, a feature of the appointment process which, it was pointed out, is almost unique to Britain.[99] In the US, the Senate is involved in appointments to the Supreme Court and some have suggested that in Britain a parliamentary committee might be involved in pre-appointment hearings. However, others expressed concern that such proceedings could be influenced by the media.[100]
Until 2009, the Lords of Appeal in Ordinary (the Law Lords) sat in the legislature as well as acting as the highest appeal court in the UK. However, the Constitutional Reform Act created a separate Supreme Court, separating out the judicial role from the upper House.
During the passage of the legislation, Lord Falconer told the House that “the time has come for the UK’s highest court to move out from under the shadow of the legislature the key objective is to achieve a full and transparent separation between the judiciary and the legislature the Supreme Court will be administered as a distinct constitutional entity. Special arrangements will apply to its budgetary and financial arrangements in order to reflect its unique status”.[101]
However, there was considerable opposition to the Government proposals. Lord McCluskey QC was not convinced by the arguments in favour of a separate Supreme Court. He commented that “a good deal of nonsense is spoken about the separation of powers for 135 years or so, serving judges have always played an important part in the deliberations of this House. They seldom vote”.[102] Nevertheless, the legal function of the House of Lords was separated from the legislative function and the Supreme Court was fully established in October 2009.
Since the creation of the Supreme Court, concerns have been raised that the judiciary is still dependent on the executive in the form of the Ministry of Justice for its funding. Lord Phillips of Worth Maltravers commented that “the Court Service of England and Wales has not been able to provide us with their contribution and we had to call upon the Lord Chancellor to make up the difference” and argued that “this arrangement clearly does not provide the security of funding which had been envisaged by Parliament and risks the Court being subject to the kind of annual negotiations the arrangements were intended to avoid.[103] He suggested that this financial dependence was “already leading to a tendency on the part of the Ministry of Justice to try to gain the Supreme Court as an outlying part of its empire”.[104] Independence, he urged, was even more important since “Over 50 per cent of that workload now consists of public law cases which involve challenges to the legality of executive action”.[105]
In 2011, the question of separation of powers has arisen in relation to the use of injunctions. An injunction is a court order that requires a party to do or refrain from doing certain acts. For example, it may order that certain identifies, facts or allegations may not be disclosed. Standard Note 5978 Privacy provides background as to the development of a new type of injunction whose very existence may not be disclosed. In some cases, known as “super injunctions”, the court has provided for anonymity and a prohibition on publishing or disclosing the very existence of the order. Restrictions may also be placed on access to documents on the court file.[106] Professor Zuckerman has argued that super-injunctions created a new kind of procedure for an “entire legal process conducted out of the public view” of which the very existence is “kept permanently secret under pain of contempt”.[107]
In April 2011, David Cameron said that he felt “uneasy” about super-injunctions and that judges were developing a privacy law without Parliamentary approval.[108] The Human Rights Act 1998 imposed a duty on the judges to interpret legislation “as far as possible” in a manner to make it compatible with the European Convention on Human Rights. Article 8 of the Convention sets out respect for privacy and family life, which the courts have developed as part of the common law in the absence of statutory privacy laws in the UK. Those developments have led some to argue that the courts have gone beyond their power to develop common law to introduce a right of privacy into English law.[109] Others have suggested that the enactment of the Human Rights Act effectively created the right of privacy, so the foundations were, in fact, laid by Parliament.[110]
Parliamentarians have criticized the judiciary for their use of a novel legal instrument. MPs have used parliamentary privilege to circumvent the injunctions, naming recipients in the House.[111] On the other hand, members of the judiciary have argued that Parliamentarians have used privilege to defy the law and that this could undermine the role of judges. Lord Judge suggested that it may not be advisable for MPs to “flout a court order” even if they did not agree with it. He insisted that “there has never been any question, in any of these orders, not in any single one of them, of the court challenging the sovereignty of parliament. We are following the law, as best we understand it”.[112]
Some MPs have criticized the use of privilege to name those protected by injunction. Chuka Ummana said that “if MPs and peers use parliamentary privilege to flout Court injunctions, which is a serious breach of the separation of powers”.[113] Mr. Speaker has said that he strongly deprecated “the abuse of parliamentary privilege to flout an order or score a particular point.”[114] The Attorney General announced on 23 May 2011 that a joint committee of both Houses would be established to examine the issues privacy and the use of anonymity injunctions.[115]
The doctrine of separation finds its home in United States. It forms the basis of the American constitutional structure. It is in the Constitution of the United States of America that Montesquieu’s doctrine of separation of powers has found its highest recognition. The US Constitution accepts the separation in explicit terms and specifically provides for the division of functions and powers amongst the three organs of government as a part of its basic structure. Article I of US Constitution vests the legislative power in the Congress; Article II vests executive power in the President and Article III vests judicial power in the Supreme Court. The framers of the American constitution believed that the principle of separation of powers would help to prevent the rise of tyrannical government by making it impossible for a single group of persons to exercise too much power. Accordingly they intended that the balance of power should be attained by checks and balances between separate organs of the government. This alternative system existing with the separation doctrine prevents any organ to become supreme.
Despite of the express mention of this doctrine in the Constitution, U.S. incorporates certain exceptions to the principle of separation with a view to introduce system of checks and balances. For example, a bill passed by the Congress may be vetoed by the President in the exercise of his legislative power. Also treaty making power is with the President but it’s not effective till approved by the Senate. It was the exercise of executive power of the senate due to which U.S. couldn’t become a member to League of Nations. The Supreme Court has the power to declare the acts passed by the congress as unconstitutional. There are other functions of an organ also which are exercised by the other. India, too, followed U.S. in adoption of the checks and balances which make sure that the individual organs doesn’t behold the powers absolutely. This means that functioning of one organ is checked by the other to an extent so that no organ may misuse the power.
Congress has the sole power to legislate for the United States. Under the non delegation doctrine, Congress may not delegate its lawmaking responsibilities to any other agency. In this vein, the Supreme Court held in the 1998 case Clinton v. City of New York[116] that Congress could not delegate a “line-item veto” to the President, by which he was empowered to selectively nullify certain provisions of a bill before signing it.
The US Constitution Article I, Section 8; says to give all the power to Congress. Congress has the exclusive power to legislate, to make laws and in addition to the enumerated powers it has all other powers vested in the government by the Constitution. Where Congress does not make great and sweeping delegations of its authority, the Supreme Court has been less stringent. One of the earliest cases involving the exact limits of non-delegation was Wayman v. Southard.[117] Congress had delegated to the courts the power to prescribe judicial procedure; it was contended that Congress had thereby unconstitutionally clothed the judiciary with legislative powers. While Chief Justice John Marshall conceded that the determination of rules of procedure was a legislative function, he distinguished between “important” subjects and mere details. Marshall wrote that “a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details.”[118]
Marshall’s words and future court decisions gave Congress much latitude in delegating powers. It was not until the 1930s that the Supreme Court held a delegation of authority unconstitutional. In a case involving the creation of the National Recovery Administration called A.L.A. Schechter Poultry Corp. v. United States,[119] Congress could not authorize the president to formulate codes of “fair competition.” It was held that Congress must set some standards governing the actions of executive officers. The Court, however, has deemed that phrases such as “just and reasonable,” “public interest” and “public convenience” .
Executive power is vested, with exceptions and qualifications,[120] in the president by Article II, Section 1 of the Constitution. By law (Section 2) the president becomes the Commander in Chief of the Army and Navy, Militia of several states when called into service, has power to make treaties and appointments to office “with the Advice and Consent of the Senate“, receive Ambassadors and Public Ministers, and “take care that the laws be faithfully executed” (Section 3.) By using these words, the Constitution does not require the president to personally enforce the law; rather, officers subordinate to the president may perform such duties. The Constitution empowers the president to ensure the faithful execution of the laws made by Congress. Congress may itself terminate such appointments, by impeachment, and restrict the president. The president’s responsibility is to execute whatever instructions he is given by the Congress. Bodies such as the War Claims Commission, the Interstate Commerce Commission and the Federal Trade Commission; all quasi-judicial often have direct Congressional oversight.
Congress often writes legislation to restrain executive officials to the performance of their duties, as authorized by the laws Congress passes. In Immigration and Naturalization Service v. Chadha,[121] the Supreme Court decided that the prescription for legislative action in Article I, Section 1 requiring all legislative powers to be vested in a Congress consisting of a Senate and a House of Representatives and Section 7 requiring every bill passed by the House and Senate, before becoming law, to be presented to the president, and, if he disapproves, to be re-passed by two-thirds of the Senate and House represents the Framers’ decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered procedure. This procedure is an integral part of the constitutional design for the separation of powers. Further rulings clarified the case; even both Houses acting together cannot override Executive veto’s without a 2/3 majority. Legislation may always prescribe regulations governing executive officer.[122]
The power to decide cases and controversies is vested in the Supreme Court and inferior courts established by Congress. The judges must be appointed by the president with the advice and consent of the Senate, hold office for life and receive compensations that may not be diminished during their continuance in office. If a court’s judges do not have such attributes, the court may not exercise the judicial power of the United States. Courts exercising the judicial power are called “constitutional courts.” Congress may establish “legislative courts,” which do not take the form of judicial agencies or commissions, whose members do not have the same security of tenure or compensation as the constitutional court judges. Legislative courts may not exercise the judicial power of the United States. In Murray’s Lessee v. Hoboken Land & Improvement Co.,[123] the Supreme Court held that a legislative court may not decide “a suit at the common law, or in equity, or admiralty,” as such a suit is inherently judicial. Legislative courts may only adjudicate “public rights”. Even though of above all, Separation of Powers is not accepted in America in its strict sense, only it has attracted the makers of most modern Constitution, especially during 19th Century.
Marbury v. Madison[124] is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring it “unconstitutional”.
This case resulted from a petition to the Supreme Court by William Marbury, who had been appointed by President John Adams as Justice of the Peace in the District of Columbia but whose commission was not subsequently delivered. Marbury petitioned the Supreme Court to force Secretary of State James Madison to deliver the documents, but the court, with John Marshall as Chief Justice, denied Marbury’s petition, holding that the part of the statute upon which he based his claim, the Judiciary Act of 1789, was unconstitutional.
Marbury v. Madison[125] was the first time the Supreme Court declared something “unconstitutional”, and established the concept of judicial review in the U.S. (the idea that courts may oversee and nullify the actions of another branch of government). The landmark decision helped define the “checks and balances” of the American form of government.
Separation of powers has again become a current issue of some controversy concerning debates about judicial independence and political efforts to increase the accountability of judges for the quality of their work, avoiding conflicts of interest, and charges that some judges allegedly disregard procedural rules, statutes, and higher court precedents.
It is said on one side of this debate that separation of powers means that powers are shared among different branches; no one branch may act unilaterally on issues, but must obtain some form of agreement across branches. That is, it is argued that “checks and balances” apply to the Judicial branch as well as to the other branches.
It is said on the other side of this debate that separation of powers means that the Judiciary is independent and untouchable within the Judiciaries’ sphere. In this view, separation of powers means that the Judiciary alone holds all powers relative to the Judicial function, and that the Legislative and Executive branches may not interfere in any aspect of the judicial branch.
To prevent one branch from becoming supreme, protect the “opulent minority” from the majority, and to induce the branches to cooperate, government systems that employ a separation of powers need a way to balance each of the branches. Typically this was accomplished through a system of “checks and balances”, the origin of which, like separation of powers itself, is specifically credited to Montesquieu. Checks and balances allow for a system based regulation that allows one branch to limit another, such as the power of Congress to alter the composition and jurisdiction of the federal courts. Each branch has powers that it can use to check and balance the operations and power of the other two branches.
The American system of checks and balances has worked well over the course of America’s history. Even though some huge clashes have occurred when vetoes have been overridden or appointees have been rejected, these occasions are rare. The system was meant to keep the three branches in balance. Even though there have been times when one branch has risen preeminent, overall the three branches have achieved a workable balance with no one branch holding all the governmental power.
Of the various controversies between Common Law and Civil Law systems, the important one is comparative studies is that of administrative law; specially of the doctrine of separation powers, which is all its forms and purposes, is concerned with the determination of the nature, powers and functions of the state and its administrative officials in relation to its citizens.[126]
It is generally accepted that there are three main categories of governmental functions, which is the legislative, the executive and the judicial. So the question arises: what should be the proper relation between these organs, whether the three powers should be exercised by the same person or a body of persons or should be entrusted to separate persons. The separation of powers tries to answer this question. The idea of this separation of powers is traceable to Aristotle. And we also find traces of the idea of separation of powers in the writings of Polybious and Cicero. Jean Bodin also advocated separation of powers. But the writing of Locke and Montesquieu gave the theory of separation of powers a base on which modem attempts to distinguish between legislative, executive and judicial power is grounded. The doctrine of separation powers not received much acceptance in any country. Governmental powers are co-ordinated by the effective part of the executive, the Council of Ministers or Cabinet, which is crated by the legislature, but in fact controls the legislature in which its members sit. In some countries the executive is made responsible to the legislature. In totalitarian countries the executive has complete domination over the legislature as also the judiciary. In democratic countries this doctrine has received much application in securing the independence of judiciary from the control of the executive.[127]
In UK Separation of Powers is found in the existense of ‘judicial supremacy’ since the eshtablishment of Parliament as supreme maker of law and the independent status of English Judges. The chief executive, the king is made subject to the law of Parliament or found by the courts. Thus in British Constitution the Parliament is the supreme legislative authority, and has full control over the executive. The co-ordination between the Parliament, i.e., the legislature and the executive is secured through the cabinet, which is collectively responsible to the Parliament.
The doctrine of separation of powers is found applicable in British Constitution in theory as the legislative, executive and judicial functions are found to be vested in different bodies, namely the Parliament, the Court and the Cabinet respectively, but in practice the doctrine has little application. The British Cabinet system joins the executive and legislative powers, and the members of the cabinet can influence and control the actions of the Parliament. In the modem age, the functions of the government under English law are classified as legislative, executive or administrative, judicial and ministerial. Parliament may vest in any public authority a combination of functions comprised within each of these classes. The scope of judicial review of administrative action and the remedies available to persons aggrieved depend upon the appropriate classification of a statutory function. No attempt has however been in English law to formulate definitions that will be valid for all purposes. It has almost been left entirely to the courts, and where a definition formulated by the courts for a particular purpose, they have shown no hesitation in disregarding it and adopting another definition, resulting which, the term used to characterize the four classes of statutory functions are riddled with ambiguities.[128]
The American Constitution expressly vests the federal executive power in the President, the federal legislative power in Congress and the federal judicial power in the Supreme Court of U.S.A. But the President may veto the measures taken by congress. Presidential veto, however, may be overridden by a two-thirds vote of both Houses. The judges though appointed for life may be removed by impeachment. The three organs of the government are inter-related and they act as checks on each other. It is said that the separation of powers is practiced in United States of America rather than in United Kingdom. It is in the United States of America that there is a real division of powers between the three organs and strict adherence to the doctrine of separation of powers The United States Supreme Court in Springer v. Govt of Phillipine Islands,[129] held that the doctrine of separation of power though not expressly provided for in most American Constitution, is implicit in all, as a conclusion logically following from the separation of three departments. But in United States also this equilibrium between the three organs have been disturbed later. The power of executive has growth much at the expense of the other two organs of the government.[130]
The difference between the English system and the American system lies in the fact that in UK, the judiciary has no power to override the will of Parliament expressed in statute from, since no Act of Parliament can be declared inoperative. Inconvenient decisions of the court can be reversed by retrospective legislation, if need be, whereas in America the Supreme Court’s interpretation of the constitution cannot be altered by an act of Congress, but only by the special machinery for securing amendments to the Constitution. The most apt description of the difference between the Presidential system and the Cabinet system which is due to the adherence on the part of the framers of the United States Constitution to the doctrine of separation of powers, is given in the following extract from the pen of the Earl, of Balfour in Bagehot’s, “The English Constitution”.[131]
Under the Presidential system the effective head of the national administration is elected for a fixed term He is practically irremovable. Even if he is proved to be inefficient, even if he becomes unpopular, even if his policy is unacceptable to his countrymen, he and his methods must be endured until the moment comes for a new election. He is aided by Ministers, who, however able and distinguished have no independent political status, have probably had no Congressional training, and are by law precluded from obtaining any during their term office.[132]
Under the Cabinet System everything is different. The head of the administration, commonly called the Prime Minister (though he has no statutory position), is selected for the place on the ground that he is the Statesman based qualified to secure a majority in the House of Commons. He retains it only so long as that support is forthcoming, he is the head of his party. He must be a member of one or other of the two Houses of Houses of Parliament; and he must competent to lead the House to which he belongs. While the Cabinet Ministers of a President are merely his officials, the Prime Minister is Primus inter pares in a cabinet of which (according to peace time practice) every member must, like himself, have had some Parliamentary experience and gained some Parliamentary reputation. The President’s powers are defined by the Constitution, and for their exercise within the law he is responsible to no man. The Prime Minister and his Cabinet, on the other hand, are restrained by no written Constitution; but they are faced by critics and rivals whose position, though entirely unofficial is as constitutional as their own; they are subject to a perpetual stream of unfriendly questions, to which they must make public response, and they may at any moment be dismissed from power by a hostile vote.[133]
One thing is found in the English, American and Indian Constitution is that their judiciary is totally independent. As we know, an independent judiciary is the sine qua non for the protection and promotion of the rights of the people. In order to make the judiciary really effective, the judiciary must be independent. An independent judiciary is required for establishing good governance and justice. The separation of the judiciary from the executive is a pre-requisite for judicial independence. If the judiciary does not work independently, anarchy will prevail.
A sound judicial system keeps equilibrium of a society. If the judicial strength becomes weak, the expected democracy will not work and the social fabric will be broken down. No interference on the independence of judiciary would be expected. In Bangladesh through the landmark event on 1st November, 2007 the long awaiting separation of judiciary has been accomplished and the main objective Article 22 of the Constitution of Bangladesh has been achieved. But it is a matter of great regret that though the judiciary is separated, it is still now under the control of Ministry of Finance and Ministry of Establishment. For this reason, we cannot say that judiciary is totally independent.
So, if it is possible, unlike USA, UK and India, our judiciary must also be kept fully separated from the executive and for the dimension changes must be brought in our constitution. Thus, on the whole, the doctrine of separation of powers in the strict sense is undesirable and impracticable and, therefore, it is not fully accepted in any country. Nevertheless, its value lies in the emphasis on those checks and balances which are necessary to prevent an abuse of enormous powers of the executive. The object of the doctrine is to have “a government of law rather than of official will or whim”. Montesquieu’s great point was that if the total power of government is divided among autonomous organs, one will act as a check upon the other and in the check liberty can survive. Again, almost all the jurists accept one feature of this doctrine that the judiciary must be independent of and separate from the remaining two organs of the government, viz., legislature and executive.[134]
The most important aspect of the doctrine of separation of powers is judicial independence from administrative direction. There is no liberty, if the judicial power be not separated from the legislative and executive. The judiciary is beyond comparison the weakest of the three departments of power. It has no influence over either the sword or the purse; no direction either of the strength or of the wealth of society and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment. There is no liberty, if the judicial power be not separated from the legislative and the executive.[135]
Judicial Independence is a sine qua non in a democratic society proclaiming the rule of law. For, the judiciary is charged with the ultimate decision over life, liberty, freedom, rights, duties and property of citizens. Therefore, in all countries cases, sometimes civil, but more frequently criminal, arise which involve political issues and excite party feeling. It is than that the courage and uprightness of the judges become supremely valuable to the nation commanding respect for the exposition of the law which they have to deliver. In a parliamentary system of government where the cabinet is comprised of the leaders of the ruling party who command majority in parliament, the problem of judicial independence from the executive is very significant. According to Lord Hailsham, it is not less but all the greater when judges have to serve under an all powerful parliament dominated by a party cabinet, and concentrating all the powers, and more than all powers, of the executive and legislature combined in one coherent complex.[136] However, in a free society professing the rule of law, the necessity of an independent judiciary is keenly felt in order to enforce fundamental rights, to secure the people against the usurpations of the executive and legislative departments and to earn public confidence injudicial impartiality.[137]
The doctrine of separation of powers as propounded by Montesquieu had tremendous impact on the development of administrative law and functioning of governments. It was Appreciated by the English and American jurists and accepted by the politicians. In his book commentaries on the law of England, published in 1765, Blackstone had observed that if the legislative, the executive and the judiciary functions were given to one man, there was an end of personal liberty. Madison also proclaimed that the accumulation of all powers, legislative, executive, and judicial, in the same hands, whether of one, a few or many and whether hereditary, self- appointed or elective may justly be pronounced the very definition of tyranny. The constitution assembly of France had declared in 1789that were would be nothing like a constitution in the country where the doctrine of separation of powers was not accepted. Man appreciated the theory when they feel the benefits of it. If it works then corruption may be removed from the country. Judicial accountability also ensured. It arise certainty to the departments for that reason judges can give their decision early because other organ that time did not interfere one another. Also make sure the consistency and arises accountability among the officials. High judicial authority for claiming that the separation of powers is an essential elements in the constitution of UK (R v. Hinds),[138] in which lord Diplock whilst considering the nature of different commonwealth constitutions in a privy council case, stated that, it is taken for granted that the basic principle of the separation of powers will apply.[139]
The merits of the theory of separation of powers are stated below:
Protection of Liberty and Rights: The theory of separation of powers protection to the liberty and rights of the individual, 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 prevents 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.
Historically the theory is not appropriate. There was no separation of powers under British constitution. At no point of time, this doctrine was adopted therein. As prof. ullman says: In the British constitution there is no such thing as the absolute separation of the legislative, executive and judicial power. It is said that Montesquieu looked across foggy England from his sunny vineyard in Paris and completely miscontrustrued what he saw.
The separation of powers is that the organs of government were distinguished from one another and this is the doctrine of separation of powers. But in field situation this is different. According to Friedman and Benjafield, the truth is that each of the three functions of the government contains elements of the other two and that any rigid attempt to define and separate those functions must either fail or cause serious inefficiency in government.[140] It is impossible to take certain actions if this doctrine is accepted in its entirety .thus, if the legislature can only legislature, then it can not punish any one, committing a breach of its privilege; nor can it delegate any legislative function even though it does not know the details of the subject matter of the legislation and the executive authority has expertise over it; nor could the courts frame rules of procedure to be adopted by them for the disposal of cases. Separation of powers thus can only be relative and not absolute.
Modern state is a welfare state and it has to solve many complex socio-economic problems and in this state of affairs also, it is not possible to stick to this doctrine. As Justice Frankfurters says: Enforcement of a rigid conception of separation of powers would make modern government impossible. Strict separation of powers is a theoretical absurdity and practical impossibility. According to Basu, in modern practice, the theory of separation of powers means an organic separation and a distinction must be drawn between essential and incidental powers and that one organ of the government can not usurp or encroach upon the essential functions belonging to another organ, but may exercise some incidental functions thereof.[141]
The main object behind Montesquieu’s doctrine was the liberty and freedom of an individual; but that can not be achieved by mechanical division of functions and powers. For freedom and liberty, it is necessary that there should be rule of law and impartial and independent judiciary and eternal vigilance on the part of the subjects.
Though theoretically, the doctrine of separation of powers was very sound, many defects surfaced when it was sought to be applied in real life situations. Mainly the following defects were found in this doctrine:
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 Complications: 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 paralyze 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.
Increased 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.
Everything in this world has some good sides and bad sides. The popular doctrine of ‘Separation of Powers’ is also one of those. Separation of powers is criticized a lots. Total separation of powers is more a myth than reality for most democratic systems of government rather than itself being a rigid doctrine. It’s because its practical relevance is harder to implement than its theories. There are many scholars, politicians, law makers who criticized this theory. Without criticism good or bad things of a subject would never come into the light.
Although Montesquieu has based his doctrine taking into account the British constitution, as a matter of fact at no point of time was this doctrine accepted in its strict sense in England. Many writes said apparently separation of powers is very good, but practically, it is totally impossible and some said model of Montesquieu was in correct, was wrong.
In parliamentary systems such as the United Kingdom the three “powers” are not officially separated. However, this has not threatened British stability, because the strong traditions of that system serve a similar purpose. In contrast, many countries which have adopted separation of powers have suffered from instability. Some observers believe that no obvious case exists in which such instability was prevented by the separation of powers.
In United Kingdom the judiciary supervises administration. Under Guardian and Wards Act and Trust Act, the judges are the administrator of the trust property and the guardian of the minor. The judges also exercise legislative functions in making rules of courts for regulating their own procedure or conduct.
The judges exercise legislative function in making rules of courts for regulating their own procedure or conduct. So, the criticism is that there is no absolute Separation of powers as like as British Lord Chancellor holding all the organs functions.
The United States uses a presidential system of government, but around the world, a more common system is the parliamentary system. In parliamentary democracies, the executive branch is dependent or is in some sense part of the legislature.[142]
Some countries take the doctrine further than the three-branch system. The government of the Republic of China, for example, has five branches: the Executive Yuan, Legislative, Judicial, Control and Examination Yuan. (Some European countries have rough analogues to the Control in the forms of ombudsmen, separate from the executive and the legislature.)
The doctrine of separation of powers is recognized in Bangladesh, especially in the constitution of Bangladesh. But there is fusion of powers. Such as under Guardian and Wards Act, the judges exercise executive powers as administrator of the trust property and guardian of the minor.[143]
In Bangladesh the Chief Justice is appointed by the President and other judges is appointed by the President after consultation with Chief Justice but in practical they are appointed by the Prime Minister indirectly. So we can say that it is a political appointment. If political parties do this type of work then theory of Montesquieu never succeed.
At first for the proper effective establishment of separation of powers in a democratic country as well as other countries ‘Rule of Law’ as well as ‘Good Governance’ must be ensured.
All kinds of biasness’ such as personal, direct must be removed and accountability must be ensured among the organs and official in every department because there are some persons who create the problem and breakdown the separation of powers.
If all the government body is accountable such as, executive, judiciary and legislature then separation of powers established and maintain easily.
The citizenry and government must have more respect for judicial decisions. This would go a long way in centralizing the notions of the rule of law, defining the limits of government, creating parameters of accountability, and ensuring other necessary pre-conditions for an ordered and predictable society.[144]
There are some countries that are beyond the separation of powers theory like China, Taiwan though they said they had also separation of powers. But specifically they did not follow. So here in this situation government should take the initiative to ensure particular countries follow the separation of powers doctrine.
In Bangladesh proper Constitutional change is necessary if any one established separation of powers. Such as in our constitution Article 107 gives the judges for exercise legislative functions in making rules of court. Article 26 prescribed, courts can declare any act unconstitutional. So for the separation of power constitutional change is important. Not only our constitution violates the separation but also other constitution follows that procedure.
In Bangladesh the appointment of Judges of the Supreme Court, currently done by the President, is susceptible to external influences in a selection process that is nontransparent. A change in the system of selecting and appointing judges of High Court Division is another aspect requiring attention. The courts themselves must encourage ordinary citizens to seek justice through their chambers. At present, lower courts are mistrusted and the judiciary in general, if it is to be effective, must encourage and support citizens’ access to justice.
In Bangladesh at the district level, to reduce the administrative workload of the District Judges, the administrative officer and other staff, on whom the judge relics in administrative matters would be upgraded, in part by developing career path for them. The District Court’s administrative office would be modernized and would have appropriate and trained staff.
It is crucial to understand that the doctrine of separation of powers has come a long way from its theoretical inception. Today, the doctrine in its absolute form is only recognized in letter as it is entirely unfeasible and impractical for usage in the operational practices of a government. With the passage of time, States have evolved from being minimal and non-interventionist to being welfare oriented by playing the multifarious roles of protector, arbiter, controller and provider to the people. In its omnipresent role, the functions of the State have become diverse and its problems interdependent hence, any serious attempt to define and separate the functions would only cause inefficiency in the government.
The modern day interpretation of the doctrine does not recognize the division of Government into three water-tight compartments but instead provides for crossing rights and duties in order to establish a system of checks and balances. It has been found that the mere separation of powers between the three organs is not sufficient for the elimination of the dangers of arbitrary and capricious government. Even after the distinguishing the functions, if an authority wielding public power, is provided an absolute and sole discretion within the body in the matters regarding its sphere of influence, there will be a resultant abuse of such power. Therefore, a system of checks and balances is a practical necessity in order to achieve the desired ends of the doctrine of separation of powers. Such a system, contrary to popular notion, is not dilatory to the doctrine but necessary in order to strengthen its actual usage. It is however, essential to continuously question whether powers have been appropriately allocated and whether the checking mechanisms set up both between and within different branches of State sufficiently safeguard against the misuse of the powers so granted.
All the above discussion it is clear that there is no strict separation of powers and it is difficult to establish that because all the organs of the government are inter related about their works, activities. Such as executive related to the legislature but we should maintain fairness regarding our works and officials are accountable to an authority. On the other hand separation of powers are also problematic because we have already seen that if every power are in one hand that absolute power also creates problem that time abuse of power occur. In this circumstances check and balances system is appropriate. While the doctrine of the separation of powers and its practice will not necessarily be the same thing, the purpose behind the doctrine can be seen to be embedded in democracies. In the Westminster system, as practiced in Australia, discussion of the doctrine is riddled with exceptions and variations. Certainly, in its classical form it exists here only partially at best; but in practice mechanisms for avoiding the over concentration of power exist in many ways, through constitutions and conventions; the bicameral system; multiple political parties; elections; the media; courts and tribunals; the federal system itself; and the active, ongoing participation of citizens. The doctrine is part of a simultaneously robust and delicate constant interplay between the arms of government. A tension between separation and concentration of powers will always exist, and the greatest danger will always lie with the executive are not judges or legislatures, because in the executive lies the greatest potential and practice for power and for its corruption. Preventing this in our system relies as much upon conventions as constitutions and the alarm bells should ring loudly when government leaders dismiss or profess ignorance of the concept, and it is not taken by our political leaders easily and not appreciate the separation. Theoretically separation may be intact, but practically we follow others countries policies such as fusion of powers, checks and balances or mixed separation of powers that will be more effective for the life of separation of power theory.
Strengthening the judiciary by separation of judiciary in 2007 Bangladesh entails a dynamic gamut of tasks and challenges that must be taken head on. There are no short cuts but strategies can be conceived to facilitate the reform process and overcome obstacles. Needless to say, the judiciary cannot do this alone. The other branches of government and the people in general must all support and cooperate to hasten the accomplishment of this long – cherished goal. It is important to inculcate this mind set in the members of the judiciary so that they can contribute without fear or favour in avoiding accusations of incompetence, corruption, or court mismanagement among judges.
In conclusion, it is evident that governments in their actual operation do not opt for the strict separation of powers because it is undesirable and impracticable, however, implications of this concept can be seen in almost all the countries in its diluted form. The discrepancies between the plan and practice, if any, are based on these very grounds that the ideal plan is impractical for everyday use. Otherwise, the doctrine is itself a part of the founding structure of the Constitution of all democratic nations. Whether in its theoretical conception or its practical usage, the Doctrine of Separation of Powers is essential for the effective functioning of a democracy.
*(The writer is an advocate of the Supreme Court of Bangladesh who can be reached at supremecourtlawyer.bd.uk@gmail.com)
Footnotes:
[1] Aldar John, Constitutional and Administrative Law, Palgrave Macmillan, New York, 6th Ed, pp. 12-13.
[2] de Smith and Brazier., Constitional and Administrative Law, 6th ed, (London, Penguin Books, 1989),
p.19
[3] Robbins, J.W., Acton on the Papacy, The Trinity Foundation (Online), URL:
http://trinity2.envescent.com/journal.php?id
[4] Aristotle., Politics – Book 5, Written 350 B.C.E, Translated by Benjamin Jowett (Online), URL: http://classics.mit.edu/Aristotle/politics.
[5] Daryl Williams, Attorney-General. June 2001, Separation of Power – a comparison of the Australian and UK experiences http://www.ag.gov.au/agd/WWW/attorneygeneralHome.nsf/Page/Speeches_2001_Speeches_Separation_of_powers_-_a_comparison_of_the_Australian_and_UK_experiences;
[6] http://legalservicesindia.com/article/article/separation-of-power-in-india-&-usa-483-1.html;
[7] http://bookshop.blackwell.co.uk/extracts/9780199232857_parpworth.pdf;
[8] Ibid.
[9] Ibid.
[10] Takwani, C.K., Lectures on Administrative Law, Eastern Law Company, Lucknow, 4th Ed, p 45.
[11] Aldar John, Constitutional and Administrative Law, Palgrave Macmillan, New York, 6th Ed, p 14.
[12] Sathe S.P., Administrative Law, LexisNexis Butterworths, New Delhi, 7th Ed, p 23.
[13] Supra note 6
[14] See the 1789 Declaration of the Rights of Man and Citizen
[15] Bryan Palmer, 1996-2005, ‘Separation of Powers’, Palmer’s Oz Politics (Online), URL: http://www.ozpolitics.info/rules/sep.htm; and Aristotle., Politics – Book 5, Written 350 B.C.E, Translated by Benjamin Jowett (Online), URL: http://classics.mit.edu/Aristotle/politics.5.five.html
[16]Spindler, G., 2000, Separation of Powers: Doctrine and Practice, in Legal Date (Online), http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/01;
[17] S.M. Hassan Talukder, Development of Administrative Law in Bangladesh: Outcomes and Prospects, 1st ed. (The Bangladesh Law Researchers’ Association; and The Law Readers, Bangladesh, 1997) pp. 178-9.
[18] Ibid, p. 179.
[19] 44 DLR (AD) 111
[20] 2000 BLD (AD) 104
[21] Mahmudul Islam, Constitutional Law of Bangladesh, 2nd ed. (Mullick Brothers, Dhaka), p. 64.
[22] S.M. Hassan Talukder, Constitutional Law of Bangladesh, 2nd ed. (Mullick Brothers, Dhaka), p. 180.
[23] Supra note 21, pp. 64-5.
[24] Supra note no. 10
[25] Hadley, Sierd. 2004. Separation of Judiciary and Judicial Independence in Bangladesh. http://www.ais dhaka.net/School_Library/senior%20Projects/04_Hadley_judiciary.
[26] Dr. Kamal, Hossain, Interview by Sierd Hadely with Dr. Kamal Hossain, most senior lawyer of the Supreme Court Bar Association and joint-writer of the Constitution of Bangladesh; 5th March 2004
[27] Supra note no. 25
[28] Supra note no. 20
[29] Ibid.
[30] See Delhi Laws Act, 1912, In re, AIR 1951 SC 332 at pp. 346-47
[31] Ibid, at p. 386 (AIR)
[32] Article 53(1), Constitution of India
[33] See Pandit M S M Sharma v. Sri Krishna Sinha, AIR 1960 SC 1186
[34] See L Chandra Kumar v. Union of India, (1995) 1 SCC 400
[35] See Keshav Singh v. Speaker, Legislative Assembly, (1965) 1 SCR 413
[36] Article 123, 213 of the Constitution of India
[37] See Shiv Kumar Chadha v. MCD, 1993 (3) SCC 161
[38] See S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 125
[39] Article 235 of the Indian Constitution
[40] http://www.lawyersclubindia.com/articles/-Separation-of-Powers-Encroaching-Boundaries–3014.asp;
[41] Mittal D.P., Natural Justice Judicial Review & Administrative Law, Taxmann Allied Services (P.) Ltd., New Delhi.
[42] http://www.pucl.org/Topics/Law/2006/seperation-of-powers.html
[43] Re Delhi Laws Act, 1912, In re, AIR 1951 SC 332: 1951 SCR 747
[44] Kesavananda Bharati v. State of Kerela, (1973) 4 SCC 225: AIR 1973 SC 1461
[45] AIR 1955 SC 549: (1955) 2 SCR 225
[46] AIR 1989 SC 1899
[47] AIR 1983 SC 1235
[48] 2008(1)SCC 683
[49] 2008(6) ALL MR 94
[50] 1975 Supp SCC 1: AIR 1975 SC 2299
[51] AIR 1967 SC 1643: (1967) 2 SCR 762
[52] http://jurisonline.in/2010/11/separation-of-powers-constitutional-plan-and-practice-2
[53] AIR 1958 Pat 210
[54] Ibid.
[55] Ibid.
[56] Ibid.
[57] Ibid.
[58] Bagehot, The English Constitution, 1867, p. 67–68
[59] Professor Vernon Bogdanor, ‘Parliament and the Judiciary: The Problem of Accountability’, speech to the UK Public Administration Consortium, 9 February 2006. See more generally Vernon Bogdanor the New British Constitution 2009
[60] Ronald J Krotoszynski, ‘The separation of legislative and executive powers’ in Tom Ginsburg, Rosalind Dixon (eds); Comparative Constitutional Law, Cheltenham: Edward Elgar, 2011, p. 248
[61] HC Deb 10 June 2009 : Column 808
[62] Public Administration Committee, Seventh Report, Smaller government: what do Ministers do?, HC 530, March 2011
[63] House of Commons Reform Committee, First Report of Session 2008–09, Rebuilding the House, HC 1117, November 2009, section 181
[64] The Coalition:Our Programme for Governmen, May 2011 http://www.direct.gov.uk/prod_consum_dg/groups/dg_digitalassets/@dg/@en/documents/digitalasset/dg_187876
[65] Lord Phillips of Worth Maltravers, ‘Judicial independence and accountability: a view from the Supreme Court’, Gustave Tuck Lecture, 8 February 2011, pp 6–7, http:// www.ucl.ac.uk/constitution-unit/events/judicial-independence-events/launch
[66] R (Morgan Grenfell & Co.) v. Special Commissioner of Income Tax, (2003) 1 AC 563, para 32
[67] Lord Phillips of Worth Maltravers, ‘Judicial independence and accountability: a view from the Supreme Court’, Gustave Tuck Lecture, 8 February 2011
[68] Pickin v. British Railways Board, (1974) AC 765
[69] Barnett, Hilaire, Constitutional and Administrative Law. Routledge-Cavendish; 6 edition (6 July 2006)
[70] (1952) AC 189 at 191
[71] Gwyn, W. B. The meaning of the separation of powers (The Hague: Martinus Nijhoff, 1965), p 9
[72] Lord Reid, ‘The Judge as Lawmaker’ (1972) 12 Journal of the Society of Public Teachers of Law 22
[73] McLoughlin v. O’Brian, (1983) 1 AC 410
[74] Jackson v. Her Majesty’s Attorney General, (2005) UKHL 56. For a discussion, see Jeffrey Jowell “Parliamentary sovereignty under the New Constitutional Hypothesis”, ( 2006) Public Law 562
[75] House of Lords, In re M.,on appeal from M. v. HOME OFFICE, (1994) 1 A.C. 377
[76] Professor Vernon Bogdanor, Human Rights and the New British Constitution, JUSTICE Tom Sargant memorial annual lecture 2009
[77] R v. Secretary of State for Transport ex parte Factortame Ltd (No 2), (1990) 2 AC 85; For a discussion of Factortame, see Paul Craig, The Changing Constitution. Chaper 4, 7th ed, Jeffrey Jowell and Dawn Oliver
[78] Joint Committee On Human Rights, Sixteenth Report Session 2006–7, Monitoring the Government’s Response to Court Judgments Finding Breaches of Human Rights, HL 128/HC 728, June 2007
[79] Master of the Rolls, Report of the Committee on Super-Injunctions: super-Injunctions, anonymised injunctions and open justice, p vii. Library Standard Note 2024, Parliamentary privilege and qualified privilege; http:// www.parliament.uk/documents/commons/lib/research/briefings/snpc-02024.pdf
[80] Ibid, p vii, conclusion 9(i)
[81] Ibid, p vi
[82] Erskine May at 436–438 and 525–526. Standing Orders of the House of Commons, Public Business, HC 700, Session 2010–12, 181 and 182; Companion to the Standing Orders and Guide to the Proceedings of the House of Lords, 2010, 73, 74.
[83] Master of the Rolls, Report of the Committee on Super-Injunctions: super-Injunctions, anonymised injunctions and open justice, section 5.3
[84] Joint Committee on Parliamentary Privilege, Session 1998–1999, Parliamentary privilege, HL 43-I / HC 214-I, section 192
[85] By contrast, following the principle of parliamentary supremacy, primary legislation is not usually subject to judicial review.
[86] Judiciary of England and Wales, ‘Judicial review’, http://www.judiciary.gov.uk/you-and-the-judiciary/judicial-review;
[87] (1985) AC 374
[88] A and others v. Secretary of State for the Home Department, (2004) UKHL 56
[89] HC Deb 26 Jan 2004 : c27
[90] UCL Constitution Unit, ‘The politics of judicial independence in Britain’s changing constitution: January 2011 – December 2013’, http://www.ucl.ac.uk/constitution-unit/research/judicial-independence
[91] House of Lords Select Committee on the Constitution, 6th Report of Session 2006–07, Relations between the executive, the judiciary and Parliament: Report with evidence, HL Paper 151, July 2007, Q 184
[92] House of Lords Constitutional Reform Bill First Report, HC 125 2003-04 http://www.publications.parliament.uk/pa/ld200304/ldselect/ldcref/125/12502.htm;
[93] Constitutional Affairs Select Committee Constitutional Reform Bill: the Government’s proposals, HC 275 2004-http://www.publications.parliament.uk/pa/cm200405/cmselect/cmconst/275/27502.htm
[94] (2000) 30 EHRR 289
[95] House of Lord Constitution Sixth Report 2006-07, Relations between the executive, judiciary and parliament; http:// www.publications.parliament.uk/pa/ld200607/ldselect/ldconst/151/15102.htm
[96] Lord Phillips of Worth Maltravers, ‘Judicial independence and accountability: a view from the Supreme Court’, 8 February 2011, pp 3–4; http:// www.ucl.ac.uk/constitution-unit/events/judicial-independence-events/launch
[97] Procedure for appointing a justice of the Supreme Court of the United Kingdom, March 2010 Supreme Court; http:// www.supremecourt.gov.uk/docs/appointments-of-justices_V2.pdf
[98] UCL Constitution Unit, ‘Judicial Independence, Judicial Accountability and the Separation of Powers’, Note of Seminar at Queen Mary, University of London, 11th May 2011
[99] Ibid.
[100] Ibid.
[101] HC Deb, 9 February 2004, c1131
[102] HL Deb 7 March 2004, c 1030
[103] Lord Phillips of Worth Maltravers, ‘Judicial independence and accountability: a view from the Supreme Court’, 8 February 2011, p 15
[104] Ibid, p 16
[105] Ibid, p 19
[106] Master of the Rolls, Report of the Committee on Super-Injunctions: super-Injunctions, anonymised injunctions and open justice
[107] Zuckerman, Super Injunctions-Curiosity-Suppressant Orders Undermine the Rule of Law, C.J.Q. Vol. 29 (2010) at 134.
[108] See BBC News, ‘Q&A: superinjunctions’, Dominic Casciani, http://www.bbc.co.uk/news/mobile/uk-13473070
[109] Supra note no. 84; section 1.4
[110] Injunction review: judges only implementing Parliament’s privacy laws, says Lord Justice 20 May 2011 Telegraph online; http:// www.telegraph.co.uk/news/uknews/law-and-order/8525556/Injunctions-review-judges-only-implementing-parliaments-privacy-laws-says-Lord-Justice.html
[111] John Hemming, HC Deb 23 May 2011, c638.
[112] The Telegraph, ‘Judges accused of gagging bid’, 20 May 2011
[113] Ibid.
[114] HC Deb 23 May 2011, c653
[115] HC Deb 23 May 2011, c635
[117] 23 U.S. (10 Wheat.) 1, 42 (1825).
[118] http://en.wikipedia.org/wiki/Separation_of_powers_under_the_United_States_Constitution#Legislative_power
[119] 295 U.S. 495 (1935)
[120] The Constitution of the United States of America: Analysis and Interpretation; pp.436-437; http://www.gpoaccess.gov/constitution/pdf2002/012.pdf
[121] 462 U.S. 919 (1983)
[122] http://en.wikipedia.org/wiki/Separation_of_powers_under_the_United_States_Constitution# Executive_power;
[123] 59 U.S. 272 (1856)
[124] 5 U.S. (1 Cranch) 137 (1803)
[125] Ibid.
[126] S.L. Khanna, Comparative Law, A general and comparative study of Common Law and Civil Law and Civil Law systems, 3rd ed. (Central Law Agency, Allahabad), p 137.
[127] A.D. Ray Choudhuri, ibid, p 13.
[128] Ibid..
[129] 277 U.S. 189 (1928)
[130] A D Ray Choudhuri, Comparative Law, A general and comparative study of Common Law and Civil Law and Civil Law systems, 3rd ed. (Central Law Agency, Allahabad), pp. 13-14.
[131] Ibid., pp. 15-6.
[132] A D Ray Choudhuri, ibid, p 16.
[133] Ibid.
[134] C.K. Takwani, ibid, pp. 32-33.
[135] Ibid.
[136] Dr. M. Ershadul Bai, The Dhaka University Studies, Part- F, Vol. IV No. 1 (1993), pp. 3-4.
[137] Ibid, p 5.
[138] (1979) Crim LR 111
[139] Gary Slapper and David Kelly, The English Legal System, Sixth Edition, Published by Cavandish, p-11.
[140] C.K Takwani, Lecture on Administrative Law, Third Edition, Published by Eastern Book Company, p-31.
[141] Ibid, p-31
[142] Md. Shahidul Islam, Administrative Law in Bangladesh, Shams Publication. p 249.
[143] Ibid, p-256
[144] Asian Development Bank. 2003. Judicial Independence Overview and Country-level Summaries. http://www.adb.org/Documents/Events/2003/RETA598