The Doctrine of separation of power and its Requisite Check and Balance

The Doctrine of separation of power and its Requisite Check and Balance 

 Bhakti Ram Ghimire 

 Advocate

0977-9851044189 

 Introduction:

The government is universally accepted to be a necessity since men cannot fully realize himself his creativity, his dignity and his whole personality except with an ordered society.[1] Yet the necessity for government creates its own problem of how to limit the arbitrariness inherent in government, and to ensure that these powers are to be used for the good of society[2]. It is the limiting of the arbitrariness of political powers that is expressed in the concept of constitutionalism. Constitutionalism recognizes the necessity for the government but insists upon a limitation being placed upon its powers by way of dividing the government powers into their three constituent functions, and under three arms. Thus constitutionalism connotes in essence a limitation of government powers through the doctrine of separation of powers[3].

The doctrine of separation of powers are indispensable in Nepal's constitutional system and are one of the features of the Nepali Constitution. It is a core characteristic and per-requisite of a democracy government though it is important to note that, the mere separation of power of government cannot on its own secure democratic governance.

The Implication of the Doctrine of separation of powers according to MONTESQUIEU:

In modern times, the concept has been expended and has come to mean a number of things to scholars and other interested parties. However, in its original contest as formulated by Montesquieu, the concept meant:

1.            That the same person should not form part of more than one of the three organs of      government;

2.            That one organ of state should not control or interfere with the exercise or functions of               other organs;

3.            That one organ of state should not exercise the function of another organ of state.

In considering each of these aspects of separation of power. It is important to make note of the fact that though the separation of power is desirable and important, absolute separation of powers is not possible.

Philosophical Basis of the Doctrine of Separation of powers:

The doctrine of separation of powers was formulated as an alternative to absolution. The doctrine advocates the independent exercise of the three constitutional government functions by different bodies of persons, without interference, control or domination by one or two[4]. Political thinkers such as John Locke and Baron De Montesquieu, who were concerned with securing the liberty of individuals from the tyrannical tendencies of those vested with state power, advocated for the separation of Government functions. Locke felt that the essence of political liberty is that a man shall not be "subjected to the inconsistent, uncertain, unknown, or arbitrary will of another man"[5]. He recognized three powers of government. First, the legislative power, whose function is to make laws. Legislation to Locke involved the formulation of rules according to which man's natural rights are to be judged. According to him, natural rights meant the right to life, liberty and property. Secondly, the executive power to him meant the power to enforce laws by penalties. The third power, Locke said, is the power to interpret the law. Concerning the separation of the Executive from the legislature, Locke made the following classical exposition:

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

As a result, it was felt necessary to separate the legislative and executive power of the government.

The doctrine was further developed by Baron de Montesquieu who observed that the three powers of government, viz, executive, legislative and judicial powers, be kept separate[6]. Montesquieu was concerned with preservation of political liberty when he wrote that:

"Political liberty is to found only in moderate government: and even in these, it is not always      found. It is there only when there is no abuse of power….. but constant experience shows that   every man vested with power is apt to abuse it and to carry his authority as far as it will go. To             prevent this abuse, it is necessary from the very nature of things that power should be a check   to power."[7]

According to Montesquieu, the legislative power "enacts temporary or perpetual laws and amends or abrogates those that have been already enacted", the executive power "makes peace and war, sends and receives embassies, establishes the public security and provides against invasions". While the judicial power "punishes criminals or determine the disputes that arise between individuals"[8].

He believed that when the legislative and the executive powers are united in the same person or in the same body of persons, there can be no liberty because apprehensions may arise since the executive and legislative may enact tyrannical laws and execute them in a tyrannical manner.[9] Further, he believed there can be no liberty if the judicial power were not separate from the legislature. In such a situation, the life and liberty of the subject would be exposed to arbitrary control of judges, who would also be legislators. Where the judiciary is joined to the Executive, the judges, he believed, would behave with violence and oppression.[10] Consequently, where the three powers of government are vested in one man or the same body whether of nobles or of men, there would be an end to everything.[11]

While Montesquieu cannot be credited with the invention of the doctrine of the separation of powers, his statement of it has settled the modern classification of the estates of government to what are accustomed to today, viz, the Executive, the legislature, and the Judiciary. The doctrine in summary gives three different components as follows: Firs, no one arm of government should control or interfere with the exercise of function of another arm of government, for example the Executive should not be under the control of the other organs of government; Secondly, no one arm of government should exercise the function of another, for instance, Ministers should not exercise any legislative power; Thirdly, the same persons should not form art of more than one of the three arms of government.[12] For instance, a judge should not be a member of the Executive by holding a ministerial position.

However, Montesquieu did not imply that the legislature, the Executive and the Judiciary should not in any way have influence or control over the actions of each other, but rather neither should exercise the whole functions of the other. As professor Sagney notes:

"The concept of separation of power arose from the need to ensure that government power    was restrained by dividing that power, and at the same time, ensuring that its division was not       carried to an extreme incompatible with effective government."[13]

The interference which profession sagney  envisaged is to the extent that it is only for the purposes of enabling one of government to provide checks and balances to the other arm(s) of government. This type of interference and control is justified and commonly referred to as the concept of checks and balance.

The concept of Check and balance:

The concept of check and balance aloud to various inbuilt mechanisms in a system of government that prevents an over concentration of decisional authority in any person or branch of government.[14] This idea of checks and balances seeks to make the idea of separation of powers more effective by balancing the powers of one organ of government against those of another through a system of positive mutual checks exercised by the government organs upon one another. The most important function of the concept is to avoid dictatorship and tyranny of each one of the arms of government. It is necessary in a democracy in order to maintain law and order as well as to secure the liberties of the citizenry.

In modern time, Jurists and political scientists have been concerned with how to curtail the ever rising power of the Executive relative to the other two arms of government. The function of the Executive is the general and detailed carrying out of government according to law. This involves that formulation of police and its implementation, as well as ensuring that the laws are obeyed. With the advent of industrialization in modern nations, the scope of the Executive function has become very wide such that it now involves the provision and regulation of vast system of social services and the finances required thereof.[15] Practically, the government is run by the Executive, with the Legislative playing a legislative and executive role, while the Judiciary plays the role of the protector of the citizenry from the excesses of the other organs of government and stands as a sentinel of the structure of the constitution. In a democracy the legislature and the Judiciary must always be disposed to check the Executive. However, for the legislature and the Judiciary to check the Executive, certain pre requisite conditions in the manner they operate and the caliber of personnel found therein have to exist.

The Legislature: Checks and Balances

It has been noted that the concept of democracy refers to the participation of the citizenry in the political life of a nation. It is based on a consent give freely or through persuasion but not coercion.[16] This was echoed by Locke when he wrote:

"-----men being----by nature free, equal and independent no one can be put out of this state and subjected to the political power of another without his consent. The only war whereby anyone divests himself of his natural liberty and puts the bonds of civil society is by agreeing with other men to join and unite into a community for their comfortable, safe and peaceful living one amongst another, in a secure enjoyment of their properties and greater security------- when any number of men have so consented to make one community or government, they are thereby presently incorporated and make one body polity wherein the majority have a right to act and conclude the rest."[17]

Therefore it would be unrealistic in today's world to envisage a government in which there is direct participation of citizenry in the formulation of policy and in the everyday running of the nation. Modern democracy is not based on participation but on representation. The citizens are given a choice between rival political parties and individuals, from whom the choose their representatives.[18] Therefore, for democracy to function, the Executive has to be accountable to the people's representatives, that is the national Assembly.

Most democratic states have one or another form of National Assembly and Executive. The delineation of the functions of the two cannot be made in absolute terms as these functions vary from one country to another with regards to their history and constitution. However, two models which have been found world-wide spread are the presidential system and the parliamentary system of governments.[19]

The presidential system was first applied in the United States Constitution of 1787 under the wide spread notion, and the influence of James Madison and Alexander Hamilton.[20] The silent feature of this types of government are that Legislature and Executive are considerably more independent of each other as compared to the parliamentary system. Neither the president, who is the heat of the Executive branch nor the Legislature is able to determine the election of the other. They are either directly or indirectly elected by popular vote for definite terms of office. Moreover, one may not be a member of both the legislative and the Executive arms of government at the same time.[21] But even so, Madison and Hamilton also stressed that the separation should be only partial to allow each branch to exercise checks and balances on the other arms of government.[22]

The parliamentary system on the other hand embodies three characteristics: first, the members of the executive, often referred to as the government, may hold office only as long as they possess the support or confidence of a majority of members of the elected Legislature; second, if the government loses the confidence of the legislative Assembly it must either resign or dissolve the Assembly to determine whether it or the Assembly represents the electorate; and third, if the government fails to win a majority in the Assembly after a dissolution, it has no choice but to resign and allow the formation of a new government that has the confidence of the Assembly's majority.[23] This type of government is often said to reject the separation of powers in favor of a "fusion" or "concentration" of legislative and executive power.[24]

In most but not all existing parliamentary systems, member of the executive are also elected voting member of the Legislature to which they are responsible. In most parliamentary system Executive member form a relatively small majority of the total membership of the Legislative Assemblies. In Britain, for example, the law in 1980 limited the number of government ministers who might be members of the House of Commons to ninety-five or 15 % of the total membership.[25] However, the Legislature and the Executive maintain separate existences, and each through withdrawal of confidence or dissolution respectively, is able to check the action of the other.[26] There is thus the separation of the legislative and executive power in the parliamentary system.

However, the question that arises is that of the duty of the elected representatives in the National Assemblies to their constituents. The relationship between the National Assembly and the Executive is clearly one focused on achieving one primary goal, democracy. The people's representatives are duty bound to ensure the accountability of the Executive to the National Assembly to avoid dictatorial rule by the ruling party and at the same time promote transparency in decision-making.[27] For the representatives to carry out their duty they require to be given the mandate by the sovereign people in genuine free and fair elections held at regular intervals on the basis of universal and equal suffrage.

However, with the appearance and domination of political parties on the political stage, the ideas of representative democracy have been eroded. Politics is today associated with political parties as the instruments of democratic systems.[28] A political party has been defined as:

" An organization formed by a group of people concerned with the expression of preferences   and views regarding the contest, control, consolidation and the use of local, regional and state power to improve the social economic well-being of the people they represent."[29]

The case for political parties as a basic element in the democratic apparatus is that they draw the electorate together into majorities so that people can be governed by their own consent, thereby allowing for existence of government by the will of people and peaceful change of government.[30]

However the above case for political parties is only an ideal case. In practice, political parties are dominated by the interests of their members and not the general citizenry. Since democracy is defined as "government of the people, by the people, and for the people"[31] the emergence of political parties as a tool through which the people can express their myriad interest and opinions of the governed as well as the determination of which one or more of such opinions should find priority expression, has greatly diminished the idea of representative democracy.[32] Government for the people in reality has become rulers of the people. The sovereign is degraded to the position of the ruled.

Through the mechanism of the party discipline, the executive is not controlled by the Legislative Assembly because in most modern Assemblies there are no longer free representatives, but tied up delegates fettered by the promises made before election to which they are forced to adhere by pressure of Parliamentary whips.[33] Some writers are of the view that this is the only way in which Parliamentary government can work efficiently. Gwyn writes that:

                "Parliamentary government could only function properly with a fair and reasonable party majority, predisposed to think the government right but not ready to find it to be so in the face of the facts and opposition to whatever might occur---- The majority of the Legislature being well disposed to the government would not find against it."[34]

With regards to the British situation, Gwyn notes.

"The House of Commons no longer controls the Executive: on the contrary, the Executive controls the House of Commons…..In our modern practice, the cabinet is scarcely ever turned out of office whatever it does…. .[35]

Modern Assemblies in the parliamentary system are therefore scarcely legislative chambers but an automation of registering the cabinet's decrees and discussing the Legislative projects of Ministers. Moreover, in no case does a political party capture power on behalf of the people. A party gives priority and prominence to people not so much for their intellectual merit or moral integrity, but to those who can be of greatest help for it to capture power.[36] As a result most political parties serve the purpose of promoting the ambition of individuals either thirsting for power for the sake of power or material benefits.[37] The membership of even the largest party is only a small fraction of the people, thereby making the dangers of party dictatorship ever present.

Any majority party can establish a dictatorial regime. Lastly but not the least, political parties have no legal obligation to translate their manifestos into working reality. The only guarantee is their moral sense.[38]

The conclusion to be drawn is that checks by the Legislature on the Executive in reality are not assured as the current political regimes divert the primary royalties of the peoples' representatives to political parties, which are dominated by their leaders who in most cases head the Executive branch of the government.

The Judiciary: Checks and Balances:

The concept of democracy and its attendant values of liberty, the rule of law and justice guarantee freedom based only on the awareness of ever intervention of law under the arm of the third organ of government which is the judiciary. Under the doctrine of the separation of powers, the judiciary is vested with the power to serve as the "honest broker" in a democracy and is entrusted with the task of deciding the scope of the fundamental rights as well as the permissible rights to which the law of the social control could go.[39]

The doctrine of separation of power has been applied ardently to secure judicial independence which is indispensable is meaningful adjudication in a democracy. Judicial independence has been said to mean;

1.            That every judge is free to decide matters before him in accordance with his assessment of the facts and his understanding of law without any improper influences, inducements of pressures, direct or indirect from any quarter or for any reason.

2.            The judiciary is independent of the Executive and the Legislature and has jurisdiction directly or by way of review over all issues of the judicial nature. [40]

In a country like Nepal where there is written constitution and it is declared to the supreme law of the land, the judiciary like other two arms of government is a creature of the constitution. The constitution positions the judiciary as an impartial and independent body in a judicial system, which protects an individual from the excesses from other organs of government and which stands as a sentinel of the structure of the constitution. It is the principle of the Constitutional Supremacy, which presupposes judicial control of the constitutionality of the law and administrative acts under the practice of the judicial review.

Judicial review is the power of the court to invalidate acts of Legislators and Executives, which in the court's view violate the constitution or vindicating them and so putting them beyond challenge in future. The practice of the courts of reviewing the Legislative and Executive enactments and actions was first pronounced and established as a rule of law by the Chief Justice Marshal of the United States Supreme Court in the landmark case of Murbury v Madison,[41] and the practice has become a foremost feature of popular of representative government organized under a written constitution. [42]

In the case the question was presented, stated the chief Justice, whether the authority given to the supreme court by the Judiciary act of 1789, authorizing the Court of the court of the United stated to issue writs of mandamus of Public Officers, was warranted by the constitution in its application to the original jurisdiction of the Supreme court or in other words, whether an Act which according to the judgment of the members of the court, repugnant to the constitution could become a law of the land. The Supreme Court in an opinion delivered by the Chief Justice thought that if a constitution is superior paramount law, then "…….a Legislative Act contrary to the Constitution is not law."

On the duty of the Court, Chief Justice Marshal said;

                "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply a law to a particular case of necessity expound and interpret that rule. If two laws            conflict with each other, the courts must decide on the operation of each law. If a law be in opposition to the constitution, if both the law and the constitution apply to a particular case so that the court must either decide that case, conformably to the law, disregarding the constitution, or conformably to the constitution disregarding the law the court must determine which of these conflicting rules govern the case. This is of the essence of judicial duty."

The decision in Murbury v Madison firmly established the practice of judicial review and it has found favor in many jurisdictions in the world. The judiciary therefore performs the function of checks and balance of the other two arms of government by ensuring that their activities conform to the law.

The judiciary today faces two main challenges; first, how to apply the ever changing principals of freedom, and second, how to countervail the executive which has continued to rise in authority and through innovations, including the use of Legislature, has tried to subjugate and undermine the judiciary. It is a fact that the judges who form the judiciary are people within the living stream of our national life, steering the law between the dangers of rigidity on one hand and formlessness on the other. The judiciary has therefore, an exigent task of securing and maintaining their impartiality and independence especially when they are called upon to review "political cases that is, cases that arise out of controversial legislation or action initiated by the government or case, which touch on important moral and social issues.[43]

The Indian Judiciary has employed the tools of judicial activism to safeguard India's democracy. one a question whether, in a country where the constitution may be amended without difficult, and therefore the provisions of the bill of rights being at a risk of being diluted and eroded, it is possible for the Judiciary to protect the declaration of Rights against the passing of such amendment, the Supreme Court of India, in a unique decision gave an affirmation n answer in the case of Kasavananda Bharati v State of Karela.[44] In that case, the court was concerned with the constitutional amendment that empowered the state of Karela to expropriate land. The Suprme Court rule that:

                "Parliament's power to amend the constitution was indeed plenary but always subject to the    implied limitations of the basic structure doctrine. The essential features of this structure may         not be amended: if amended, these would be subjected to judicial review. These features include: federalism, democracy equality before the law, socialism and secularism."

The Judgment generated political consternation and there emerged a political consensus among all political parties that the judiciary had usurped the Constitutional power of Parliament.[45] However, what the Supreme Court achieved was a unique assertion of judicial power under which could negative an amendment to the constitution duly passed by parliament acting under the provisions of the Constitutions.

The wisdom of the Supreme Court decision can be appreciated in a later case of Indira Ghandi V RaJ Narain[46]. In that case the appellant, the Prime Minister of India, appealed against an order declaring her election to parliament void. Later, at the instigation of the Executive, Parliament enacted an amendment to the constitution purporting to put issues relating to her election beyond judicial review or any form of investigation by the apex court. The Supreme Court recalling its earlier decision in Kasavananda Bharati V State of Karela, invalidated the amendment because they were inconsistent with the "essential feature" or essential pillars" of the Constitution. The Supreme Court reiterated that, the Constitution of India stands on certain fundamental principles which are its structural pillars, and if these pillars are damaged or demolished, the whole Constitutional edifice will crumble. The decision without doubt demonstrates how judiciaries can apply their adjudicatory power to the preservation and promotion of democracy.

As state earlier, the United States in another jurisdiction where judicial power has been actively employed to protect human rights and liberty. One illustration is the United States Supreme Court's decision in the case of Brown v Board of Education.[47] The judicial leadership is effectuating desegregation, which began with the decision of that case in the early fifties, and still continues unfolding demonstration of how the adjudicatory power and process can be deployed to interrogate and disorient oppressive structure of dominance. As we discuss the notion of judicial activism it is worth keeping in mind and recognizing the obvious. "Adjudication, all said and done, is an aspect of governance.[48] In other words, courts have become policy-making institutions incidentally or in consequence of the performance of judicial duties and in some jurisdictions by deliberate design. As a result, courts everywhere at the end of the day are strategic domains of both responsive and ideological state apparatus.[49] Thus, the rule of law can coexist and combine with the reign of terror.

Court and Justices wield the power of the state even as they are constituted by it. Citizens become justices when appointed by executive of the day. Within this frame, consideration of religion, cast, race, region, gender etc, play a distinctive role in converting citizens into justices, and in the exercise of the sovereign adjudicatory power of the state the judiciary and courts are naturally inclined not to be passive, they by definition need to be active. Just as the protection of democracy and human rights cannot be maintained by passivity of adjudication; nor are draconian detention laws nor a regime of immunity from corruption in high places. The judiciary may be active in the preservation of structures in dominance and they thus have to bring an unusual insensitivity to injustice as a mark of competence in adjudication.[50]

The American Supreme Court offers a most illustrative example. For over tow hundreds years clauses of the constitution of the United States have been substantially the same. Nevertheless, the institution of slavery was sustained in the infamous Dred Scott decision. For about 100 years the Supreme Court sustained "apartheid" at all levels of the American social and political life, women did not have the contractual capacity or the ability to own property until 1848; women and African-American did not have the right to vote until the 20^th century: sex and racial discrimination co-existed notwithstanding the equal protection clause in the constitution.[51]

Therefore, the labeling of the judiciary and adjudication is merely a fleeting categorizations, that  is to say, only under certain setting justices in their self-images and/or by their fearsome critics get "tagged" as activists.[52] The classifications are accomplishments of changing political milieu. When adjudicatory power or process is deployed to interrogate or disorient structures of dominance, outcries of judicial activism happen. Serving of dominant ideologies interests, values and visions is not considered activism, only the problematization of all this is.[53] The judiciary therefore can be activism either for or against the cherished principles of democracy. The existence of a standing judiciary in any polity is not a guarantee that it would act as check on the Executive. It may just reinforce, or be indifferent to the excesses of the Executive.

Conclusion:

The separation of power of the three organs of government is a core characteristic and prerequisite of a democratic government. It should be there if political liberty is to be achieved because if the Legislative and Executive power are united in the same person or body of Magistrates, there could be no liberty in the same way that if the judiciary power was not separated from the Legislative and the Executive, the life and liberty of the subject could be exposed to arbitrary control for the Judge would then be the Legislature and where it joined to the Executive however, the Judge may behave with violence and oppression. However, though the separation of powers is a core characteristic and pre-requisite of democratic government, the mere separation of the powers of government cannot on its own secure democratic governance. It is cardinal that the three arms of government interact in such a way those they through the ideas of checks and balances; prevent each other from abuse of power. From what has been discussed the doctrine of the separation of powers does not seem to be attaining its general application in Nepal. It has been shown that the Executive has steadily risen in authority relative to the other tow branches and the others, in such an environment , to effectively and meaningfully check, the Executive have to be manned by people with strength of character, and activist attitude and creative with a strange bias to upholding democratic values, and respect and protection of human rights. However, it is usually the case that such personnel are not found. As a result it is not strange to have representatives and Justice actively safeguarding undemocratic regimes and even clothing them with legitimacy. Therefore, the mere presence of a system of separation of powers in a constitution of a country is not a guarantee that democratic governance would prevail. Though the inference that the doctrine of separation powers has not achieved its general application in Nepal is correct, that is not to say that it has completely not been applied because in some instances, generally speaking, it has been realize.

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[1] Nwabueze, B.O.1973 Constitutionalism in Emergent states. page 1

[2] Ibid.

[3] Opicit.

[4] Justice Kayonde Eso. supra note 5

[5] Josh Locke, 1966. The Second Treaties of Government (J.W Gough ed) at page 15

[6] Ibid at 28

[7] Baron de Montesquieu, 1966. The Spirit of the Laws (Translated by Franz Newmann) at 150

[8] Ibid.

[9] Ibid at 151

[10] Ibid.

[11] Ibid.

[12] Supra note 4 at 52

[13] Itse Sagney. Separation of Power and the Rule of Law, in supra note 10 at page 20

[14] Hawa Sisay. The Executive: Checks and balances at page 29

[15] O.Hood Philips and Paul Jackson, 1985, 6^th ed, Constitutional and Administrative Law. Page 10

[16] M.C. Musambachime, 1998, The Role of Political Parties in Electrical System in the Road to Democracy page 1

[17] Supra note 18 at 19

[18] Supra note 34 at 4

[19] Williams B. Gwnyn 1986. The Sepatation of power and modern forms of Democratic Government:Separation of Powers-Does it Still work, page 72.

[20] Ibid

[21] Ibid at 75

[22] Ibid at 74

[23] Ibid at 75

[24] Ibid

[25] Ibid at 76

[26] Supra note 4 at 37

[27] Ibid at 38

[28] G.A.Regulation, The role of Political Parties in Democracy system in the Road to Democracy, Supra note 34 at page 4.

[29] Supra note 34 at 4.

[30] Supra note 47 at 16.

[31] Defined by Prosesor Lincon.

[32] G.C. Mulenga 1995. The Juristic and Constitutional Implications of Party Membership on the theory of practice of representative Government: The Zambian Experience, The University of Zambia Obligatory Essay, page2.

[33] Ibid

[34] Supra note 35 at 15.

[35] Ibid at 81

[36] Supra note 35 at 15

[37] Ibid

[38] Ibid at 14

[39] Justice Omar H. Alghali. The Judiciary-Checks and Balances, Supra note 10 at 38.

[40] Marjorie B. Musonda. The Politics of the Zambian Judiciary; A Case Study of the Transition to

[41] (1803) Cranch

[42] C.G Haines, The American Doctrine of Judicial Supremacy, Russell Inc. New York.

[43] Justice Sanderson Silomaba

[44] AIR [1973] SC at 1461.

[45] Upendra Baxi, Judicial Activism: Usurpation or re-democration.

[46] AITR [1995] SC 2299.

[47] Discussed Forum Series, Voice of America, 1978, (Marshal Bueke ed.)

[48] Supra note 37 at 191.

[49] Supra note 37 at 191

[50] Ibid.

[51] Ibid.

[52] Ibid.

[53] Nambwese. B.O.1973. Constitutionalism in Errment States, page 13.