...SEPARATION OF POWER: A COMPARATIVE STUDY INTRODUCTION The research topic deals with the concept of „the separation of powers. The researcher would like to highlight the concept of separation of powers and then gradually comes to the point separation of powers in England and US. After that the researcher would like to articulate the separation of powers in India. The doctrine of “the separation of powers” as usually understood is derived from Montesquieu whose elaboration of it was based on a study of Locke’s writings and an imperfect understanding of the eighteen century English constitution. Montesquieu, a research scholar, conceived the principle of separation of power. He found that concentration of power in one person or group of persons resulted in tyranny. He therefore, felt that the governmental power should be vested in three organs, the legislature, the executive and the judiciary. The principle can be stated as follows: (1) Each organ should be independent of the other; (2) no one organ should perform functions that belong to the other. Lock and Montesquieu derived the contents of this doctrine from the developments in the British constitutional history of the early 18th century. In England after a long war between parliament and the King, they saw the triumph of Parliament in 1688 which gave Parliament legislative supremacy culminating in the passage of the Bill of Rights. This led ultimately to recognition by the King of legislative and tax powers of...
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...the constitution still has vitality. As justice Louis Brandeis said,”the doctrine of the separation of powers is not to promote efficiency, but to preclude the exercise of arbitrary power.” I agree with him. The separation of powers impresses me most. According to the constitution, the government is separated into three branches-Legislative, Executive and Judicial. Congress has the sole power to legislate. Executive power is vested in the President by Congress with the advice and consent of the Senate so that he may preserve, protect, and defend the Constitution and the laws of the United States. 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. In this way, each of the three branches of government can limit the powers of the others and guarantee that no one branch becomes too powerful and make sure that the power is balanced between them. In my opinion, separation of power is a must. In the first place, it can restrict power and preclude the exercise of arbitrary power. As Montesquieu-the father of the separation theory said,” All those who have power are easy to abuse of power, this is an unchangeable experience.” Democracy may easily be destroyed by dictatorship without power restriction. Thus, it is a real need to control powers of both socialist country and capitalist countries. In the next place, public opinions can...
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...the rights of the people. In our opinion, we do not wish to abandon the doctrine of separation of power but however, this notion shall follow the Montesquieu approach as he provides for a separation of power that aims at having separate institutions doing separate function by separate personnel and having the checks and balance that will control the powers of these organs. The doctrine of separation of power cannot be abandoned because of the following reasons: The doctrine avoids the abuse of powers. This means that when a single person or a group of people have the extreme amount of power they can become dangerous to the citizens. As it was put forward by John Locke that “it would be a great temptation to human weakness if the same person to make law has the power to extinguish them because they may exempt themselves from obedience to the law or may suit the law in the making and execution to their private advantage”. Thus, the doctrine of separation of power is a method of removing the amount of power in one group's hands and controlling the powers of the organs of the government because it becomes more difficult to abuse the power. Example: Even though the parliament has the power to enact the laws, the judiciary has the power to declare whether the law is constitutional or unconstitutional through check and balance. It insures justice to the people. Through separation of power each organ of the government can be independent...
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...Separation of power in Africa and their Limits Introduction. According to the online business dictionary, Separation of Powers is a constitutional principle that limits the powers vested in any person or institution. It is this principle that divides government authority into three branches namely the Executive (President or Prime Minister and the cabinet), Legislature (Parliament or Senate) and the Judiciary (Chief justice and other Judges). From this definition, Separation of Powers entails that each organ of the state, namely twill perform its functions without undue interference from the other organs. Each organ therefore, should be left to do what is assigned to it under the constitution. If any organ is not performing well it ought to be reminded and its performance monitored by way of accountability. This is not interference but a system of checks and balances in the interest of good government. But separation of powers does not mean insulation of powers because the three organs of the State, particularly the Executive and the Legislature, are at one level or another bound to interact and indeed complement each other in the running of the affairs of the State (World bank, 1992). In essence, the doctrine of separation of powers is that for a free and democratic society to exist there must be a clear separation between the three branches of government, namely:- The Executive This is the branch that executes the business of government. It comprises the President, Vice-Presidents...
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...understand that in the event of any academic dishonesty on my part, I may be subjected to the strictest disciplinary action at the discretion of Taylor’s University Malaysia. _______________________ NAME : TEY LI YING STUDENT NO: 0321795 NRIC NO: 970628-60-5046 DATE: 17th OCTOBER 2014 ‘Indeed, an absolute separation would in practice be counterproductive in that it would prevent the abuse of power by preventing the exercise of power. Government could not operate if this were the case.’ Neil Parpworth, Constitutional & Administrative Law, (Oxford University Press, 2008) Discuss whether this statement is true in the UK. If it is, how does UK prevent the abuse of powers if there is no strict separation of powers between the Executive, Legislative and the Judiciary? John Locke’s conception of “where-ever law ends, tyranny begins” can be linked inextricably with the ideology of separation of powers. To elaborate on that, if one were to take advantage of the authority given to him by law, oppression would be deemed unavoidable. Hence, the establishment of the political theory, separation of power, seeks to...
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...1st Internal Assignment Administrative Law The Doctrine of Separation of Power Clive D’souza 13010124119 Division B III Year Introduction: The Government of any country will be the agency or machinery through which the will of the people is realised, expressed and formulated. But for the will of the people to be so expressed, realised and formulated, there needs to be a well organized system which works together, jointly as well as separately for ultimate achievement of the goal, which in a democracy would be to help people realise their will, express that will and help the people to formulate the ideas as to what is right for society and be part of what would then become ideally, a true and well functioning democracy. The concept as stated above can be compared with the functioning of any team, be it a multi-national corporation or of a football team, where the former needs people to work on ideas for new products, need an accounts department to check on the cash flows and revenues, a marketing team to market the product well enough to the people through advertisements or for the latter where the defenders ensure that goals do not go in against their team, the midfield ensures possession of the ball and creativity to pass the ball to the strikers of the team and the strikers of the team ensure that the passes delivered to them is by the midfield, to score the ultimate goal that the team seeks. What we see through this example is that, all of the functions, although...
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...First, the systems of separations of power and check and balances to maintain accountability to govern between branches. The Madisonian Model was proposed by Madison this model suggested three branches of government,…”the executive, legislative, and judicial power of government were to be separated so that no one branch had enough power to dominate the others” (Schmidt, Shelley, & Bardesl, 2017) This model gave the delegates a sense of peace from living under a monarchy. The braches “…would be independent of the others, but they would have to cooperate to govern” (Schmidt et al., 2017). The model gave each branch a duties and responsibilities to maintain accountability in the nation and within the branches. The separation of powers allows...
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...of Separation of Powers in the American Democracy There are three branches of the government that represent the will of the people. These are the legislative, executive and judicial branches of the government. These three branches are the main organs of the government. The legislative branch makes the laws, executive enforces the laws and judicial applies them to the specific cases that arise out of the breach of law. While each branch works individually in performing their tasks it 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. Even when acting in ambit of their own power, overlapping functions tend to appear among the branches. It is important that the political system to be stable and that the power need to be balanced off against each other. The separation of power deals with the mutual relations among the three branches of government: Legislative, Executive, and Judiciary. The Constitution was written to bring forth a functioning sense of the three branches and hence a strict demarcation of power is the aim sought to be achieved by this principle. The constitution signifies the fact that one person or one body should not excess all the three powers of the government. A French scholar by the name of Montesquieu found that concentration of power in one person or a group results in tyranny. Montesquieu felt the need for decentralization of power to check...
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...Montesquieu, was a 18th century political philosopher who first used the term trias politica or separation of powers (Erickson). For the division of government duties, it is separated into three separate but equal branches. The characterizations of each are; the legislative branch in which it is in charge of enacting laws of the state and distributing money to operate the government efficiently, the executive branch that executes and oversees public policy that the legislative branch has authorized or financed, and the judicial branch that is in charge of interpreting the Constitution and laws with then taking the understandings to disagreements brought before it (Erickson). The separation of powers is a pillar of the United States government with all state and federal governments center around the standard of it. Although federal separation of power is not the same as state, as one instance state courts have acknowledged fundamental...
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...Separation of powers was important to the Framers of the Constitution and is still important today. The idea of separation of powers dates all the way back to the 18th century. A philosopher named Charles Montesquieu wrote a book entitled Spirit of the Laws (1748) explaining his political ideas of separation of powers and many more. Separation of powers is defined as follows: “an act of vesting the legislative, executive, and judicial powers of government in separate bodies”. This means that all three branches of government are separated, so that they may not overpower one another, or the people of the United States. The United States needs separation of powers because separation of powers prevents power abuse, allows the federal government to have the use of federalism, and without separation of powers the United States would have more problems with laws such as the Controlled Substances Act. Separation of powers prevents power abuse. Having too much power is historically proven to create power abuse. Adolf Hitler is an excellent example of this. Hitler had too much power because in...
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...There are both similarities and differences, when referring to checks and balances and separation of powers. Both have to do with the Government. But separation of powers is a model of government in which different parts of the government are in charge of different tasks; in the United States, these parts are known as the Legislative, Executive, and Judicial. Checks and balances is a means of trying to ensure that these three parts of government stay equal, and that one does not try to take over another. Separation of powers was first introduced as a government model in ancient Greece, and was used largely in the Roman republic. Under this Government model, the state is divided into separate and independent entities. The normal separation of branches is into executive, a legislature, and judiciary. The legislative branch makes the laws, the executive branch enforces and carries out the laws to the public, and the judicial branch interprets the laws. Interestingly, not only does each branch have a certain power, each branch has a certain power over the other branch. This is done to keep them balanced and to prevent one from getting too much control. This is known as “Checks and Balances.” The concept of checks and balances comes from the United States constitution. The different branches of government check each other’s power so that no branch has more power than the other. An example would be if the legislative branch wants to pass a law, they first present it as...
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...different ways this system can be organized, with various distributions of power. The separation of powers is a model for the government of a state. The model was first developed in ancient Greece. Now, it is used in the United States. Under this model, the state is divided into branches, each with separate and independent powers and areas of responsibility. The typical division of branches is into a legislature, an executive, and a judiciary. The United States Legislation is comprised of the House of Representatives and the Senate, together forming Congress. Congress is comprised of mainly democrats and republicans, and republicans hold the majority in Congress right...
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...Separation of Powers and Checks and Balances Vena Roberts American Public University The doctrine of separation of powers, as implemented in drafting the Constitution, was based on several principles generally held: the separation of government into three branches, legislative, executive, and judicial; the conception that each branch performs unique and identifiable functions that are appropriate to each; and the limitation of the personnel of each branch to that branch, so that no one person or group should be able to serve in more than one branch simultaneously. The Separation of Powers devised by the framers of the Constitution was designed to do one primary thing: to prevent the majority from ruling with an iron fist. Based on their experience, the framers shied away from giving any branch of the new government too much power. The separation of powers provides a system of shared power known as Checks and Balances. Three branches are created in the Constitution. The Legislative, composed of the House and Senate, is set up in Article 1. The Executive, composed of the President, Vice-President, and the Departments, is set up in Article 2. The Judicial, composed of the federal courts and the Supreme Court, is set up in Article 3. The Constitution nowhere contains an express injunction to preserve the boundaries of the three broad powers it grants, nor does it expressly enjoin maintenance of a system of checks and balances. Yet, it does grant to three separate branches the...
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...The separation of powers refers to the three main bodies of the UK government; the legislature, the executive and the judiciary. Each body is supposed to hold a separate function. The legislature can also be referred to as parliament who makes the laws, the executive (government) put these laws into action whilst the judiciary also known as the courts uphold and interpret these laws. To ensure that powers do not overlap between the three, they’re divided. This corresponds with Montesquieu’s argument that all states need these three separate functions to prevent too much power in one place of the doctrine and so power can not be abused. The UK does not have a written constitution like the vast majority of countries and so there is no formal separation however, many factors have developed this doctrine in the UK. For example, the Constitutional Reform act 2005 played a big role to put these separations into existence, with one of the key features being the opening of the Supreme Court. Likewise,...
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...Legal Studies Essay ‘Discuss the importance of the separation of powers in upholding the rule of law in Australia.’ Upholding the rule of law in Australia retains an importance with confiding in the separation of powers, this can certainly be explored through the relationship between the Magna Carta and the legal concept of the Habeas corpus and the understanding of the separation in powers and how they uphold the rule of law. The relationship between The Magna Carta and the legal concept of Habeas Corpus is of close proportions as the Habeas Corpus roots from the 17th century adding a greater advancement in legal times toward the Magna Carta which was contextually developed in June 15, 1215, which King John set as a guarantee to all...
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