Separation of Powers

The doctrine of separation of powers as propounded and enunciated by its principal exponent Baron Montesquieu places the authoritative power of governance in the hands of three distinct and separate bodies, the legislature, the executive and the judiciary and outlines the functions and duties of each of these three branches of government.

The three branches of government work in tandem with each other and in a perfect democracy, act as a check and a balance on each other. Practically however the legislature or the body of elected representatives, selected or chosen by the people, is the most powerful body in the country.

The legislature is divided into the House of Representatives (the lower house) and the Senate (the upper house) or their equivalents. In the United Kingdom, the lower house is called the House of Commons and the upper house is called the House of Lords.

In some countries representatives who sit in both houses are elected while in other countries, representatives in the lower house are elected while representatives in the upper house are appointed.

Appointment is usually on merit but in certain countries these appointments appear to be carried out to reflect the status quo or to ensure that all parties or different segments of the population are equally represented regardless of political beliefs, values, ideologies and motives.

The main function of the legislature is to legislate i.e. to make laws and to repeal or amend existing laws. New laws are introduced as bills (a draft of a proposed law) and once the bill has passed both houses of parliament and has been signed by the President it becomes an act of parliament or a statute.

In the United Kingdom, as per convention, all bills must receive the assent of the sovereign (royal assent) before they come into force as acts of parliament.

The next branch of government is the executive branch and it comprises of elected ministers and the various other officials that head various departments and their staff.

It is the duty of the executive branch of government to apply or in some cases enforce the law as prescribed by the legislature. The police, the IRS, the military and most of the other departments that we take for granted, come or fall under the executive branch of the government.

The third and final branch of government is the judiciary and it is the task of the judiciary to interpret the law and this normally comes into play when there is a disparity or an ambiguity.

If there are any doubts or there is a need to clarify an act of parliament, it may be submitted to the judiciary for interpretation and this normally happens because the legislature sometimes fails to make its intentions clear.

If there are no acts of parliament in place, then judges decide on the basis of common law, i.e. a series of judicial decisions that have the force and impact of laws. Common law is usually reliant on judicial precedent i.e. previous decisions in cases with similar facts.

English law for example is based on the common law tradition i.e. a system of judge made laws which has continuously developed over the years through the decisions of judges.

It is based on an adversarial system where two parties present or put forward their arguments and the judge acts as a moderator. Judges do not investigate the matter that is brought before them but come to a decision based on the evidence that is presented to them.

One of the facets of common law is that like acts of parliament common law is applicable to the whole country. An act of parliament however is considered or regarded as the highest form of law in the country.

In addition to that, there is another system of laws developed by judges called equity. Equity developed because it was found that in many situations there was no remedy at common law.

Equity is based on equitable maxims or a set of rules used to govern the application of equity and its purpose was to achieve justice and fairness.

If a conflict were to occur between common law and equity, then equity would prevail because equity determines cases according to reason and good conscious.

Coming back to the doctrine of separation of powers, according to its tenets, if the three above mentioned powers of governance were to be placed in one body or in a single authoritative entity it would erode democracy and would pave the way for an authoritarian state or a dictatorship.

By dividing the powers that are vested in any government among three distinct bodies we safeguard the principles of democracy.

However it is important to keep in mind that, should any political party gain a two-third majority in both houses of parliament than it is possible for that party to amend the constitution and bring about changes that might benefit the party and its members.

Copyright © 2018 by Dyarne Ward

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