CONSTITUTIONAL
LAW
Padam Pal
Ass.
Professor
Concept of Separation of power
The theory of separation of power was propounded by
French jurist Baron de Montesquieu in course of the study
of British parliamentary system.
According to him, the political authority of the state is
divided into legislative, executive and judicial powers.
However, the actual separation of powers amongst different
branches of government can be traced to ancient Greece.
The American Constitution decided to base the
governmental system on this idea of three separate
branches: executive, judicial, and legislature.
The three branches are distinct and have checks and
balances on each other.
Cont…
Separation of power is a model of democracy that involves
the separation of political power between three branches of
the state - the executive, the legislature and the judiciary.
In other words, separation of power focuses on freedom
within the constitutional role, non-intervention in the
function of each other and use of power of the state within
the constitutional framework.
It is the precondition for democratic system,
constitutionalism, rule of law and constitutional
government.
Cont…
The essence of the doctrine is that there should be, ideally,
a clear demarcation in function between the legislature,
executive and judiciary.
The separation of powers interacts with both the rule of law
and parliamentary sovereignty.
The independence of judiciary ensures that the executive
will be kept within the legal powers conferred by
parliament, thus simultaneously (occurring at the same
time) upholding the rule of law and sovereignty.
Cont…
Montesquieu about separation of powers;
When the legislative and executive powers are united in the same
person, or in same body of magistrates, there can be no liberty.
Again, there is no liberty if judicial power is not separated from
the legislative and executive. Where it joined with the legislative,
the life and liberty of the subject would be exposed to arbitrary
control, for the judge would then be the legislature where it joined
to the executive, however, the judge might be autocratic. There
would be an end to everything where the same man or same body,
whether of the nobles of the people to exercise those three powers,
that enacting laws, that of executing the public resolutions, and of
trying the cause of individuals.
Cont…
Wade and Philips about separation of powers;
That the same persons should not form part of more than
one of the three organs of government, e.g., that ministers
should not sit in parliament,
That one organ of government should not control or
interfere with the exercise of its function by another organ
e.g., that the judiciary should be independent of the
executive.
That one organ of government should not exercise the
function of another, e.g., that ministers should not have
legislative power.
Cont…
Finally, the main concept of this theory is, every organ of
the state has to be separated and their functions should be
separated and the limitation should be confirmed. Theory of
separation of power emphasized the limited government.
The United States of America was one of the first few
nations that strictly adhered to these principles and is hence
the leading democracy in the world.
But, nowadays there is debate between Separation of Power
and power sharing. Most of the philosophers are in favour
of sharing of power rather than Separation of Power.
Criticism of Separation of Powers
Total separation of power is not possible.
All organs are not complete by themselves, they need help
from each other. If one organ is separated from another, it
becomes defunct.
Lack of cooperation between three organs of the State.
Autocracy within their own sphere.
Overlapping situation of the three organs.
It cannot strictly apply in the parliamentary form of
government.
Theory of checks and balances
The principle of separation of power was later found to be
incomplete and it was complemented by the principle of checks
and balances.
The theory of checks and balances was propounded by an
American scholar John Adams. It is a basic principle underlying
the creation of American government.
According to Madison, the principle “does not require that the
legislative, executive and judiciary departments should wholly
be unconnected with each other.”
Checks and balances are the constitutional controls, whereby
separate branches of government have limiting powers over
each other so that no branch will become supreme.
Cont…
It involves the separation of powers, which assigns various
powers and functions of government to separate and
relatively independent levels and branches of the federal
system in order to prevent their all being controlled at the
same time by any potentially dictatorial political faction.
With checks and balances, each of the three branches of
government can limit the powers of the others. This way, no
one branch becomes too powerful.
Cont…
Each branch "checks" the power of the other branches to
make sure that the power is balanced between them.
Each of the three branches has their own powers to check
the action of the other branches.
The legislative branch is pass the laws, the executive branch
enforces the laws and the judicial branch is interprets the
laws.
John Adams said, "It is by balancing each of these powers
against the other two that the efforts in human nature
toward tyranny can alone be checked and restrained, and
any degree of freedom preserved in the Constitution“.
Importance of SOP and Checks and Balances
To protect personal liberty
To protect from tyranny (autocracy) and excesses(going
beyond a limit) of government
Maintain rule of law
Limited government
Lack of cooperation between state organs
To protect the abuse of power
Under presidential system
The United States of America was strictly adhered (hold
on) to these principles.
The separation among the power has been provisioned
more vividly in presidential system than in parliamentary
system.
Government is neither formed nor dissolved by the
parliament, so government is less responsive toward the
parliament.
The judiciary has power to strike down any law
inconsistent with constitution through judicial review.
Cont…
Governmental body like president, prime minister and other
organs of government are not formed by legislature.
The organs of government are formed according to the
provisions of constitution.
The American constitution have clearly provisioned the
concept of separation of power.
According to James Medison; The accumulation of all
powers legislative, executive and judicial 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.
Cont…
The Art. 1 to 3 of the American constitution has made
following provisions relating to separation of power;
Article 1(1): All legislative Powers herein granted shall be
vested in a Congress of the United States, which shall
consist of a Senate and House of Representatives.
Article 2(1): The executive Power shall be vested in a
President of the United State of America.
Article 3(1): The judicial Power of the United States shall
be vested in one Supreme Court and in such inferior Courts
as the Congress may from time to time ordain and establish.
Check and Balance under presidential
Executive
Legislature
system Controls the budget of
Can present bill in the
executive organs and
congress.
judiciary.
Can issues law and executive
Can neutralize the veto power
order.
of president.
Power to issue veto over the
Senate needs to supports the
law pass by congress.
appointments made by
President appoints federal
president
judges.
Can pass motion of
Can grant Pardon amnesty to
Impeachment and remove
prisoners.
judges.
Judiciary
Can declare executive action to
be unconstitutional.
Can declare the law passed by
legislative to be void.
Under parliamentary system
Under this system strict separation of power is not possible.
Overlapping function of executive and legislature is a core
feature of parliamentary system.
The executive is made by the support of majority members
of legislature, so the influence of government over
parliament and vice-versa.
Executive organ are accountable and responsible towards
parliament.
Ministers attend the sessions of parliament and also
exercise their right to vote.
Ask question to minister and need reply in the parliament.
Cont…
Parliament can dissolve the government by passing the
motion of no confidence.
The government can also dissolve the parliament in special
condition.
Under this system, on the formation of judiciary, the
influence have made of legislature and executive.
The power of judicial review, judiciary declares any action
of executive or legislature against constitution as
inconsistent with constitution, is the basic concept of
separation of power with check and balance.
Cont…
Britain has the parliamentary system and due to the
unwritten constitution, parliamentary supremacy is being
accepted so there is no formal separation of power.
Overlapping of membership in legislature and executive, as
a result there is overlapping function of these two bodies.
The law making power is vested on legislature, judiciary
being free from the restriction of executive, executive
power being vested on council of ministers shows the
functional separation of power in Britain.
Check and Balance under parliamentary system
Legislature
Executive Can pass vote of no
Can call and end session of confidence against executive
legislature Can pass motion of
Can grant Pardon amnesty to Impeachment and remove
prisoners. judges.
Parliament hearing.
Judiciary
Can declare executive action
to be unconstitutional.
Can declare the law passed by
legislative to be void.
Nepalese context
In Nepalese context, this theory is not fully practiced.
Form the ancient time such as Kirat, Lichhavi, and Malla
period till 2004 B.S. there was not followed separation of
powers properly between the governmental organs.
In the constitutional history of Nepal, the separation of
power had not been adopted strictly in previous period.
Only the constitution of Kingdom of Nepal, 2047 adopted
the spirit of the theory of separation of power, along with
theory of checks and balances.
The three branches of government, executive, legislative
and judiciary are theoretically independent and there is
enough mechanism of check and balance.
Cont…
The Constitution of Kingdom of Nepal, 2047 has
mentioned about the executive, legislature and judiciary in
the light of the theory of separation of powers.
Leading Cases
Advocate Chandra Kanta Gyawali et al. v. Office of the
Prime Minister et al. Supreme Court, 2069-07976.
The petitioner has demanded to quash (cancel) the order
issued by the President relating to power to remove
difficulties as per the Article 158 and appointment of the
Chief Justice Khil Raj Regmi as a Chairman of the Council
of Ministers under this order which is against the doctrine
of separation of power because he has come to the Council
of Ministers without giving resignation from his post of
Chief Justice and performing the dual role.
Cont…
In this case, the Supreme Court issued the interim order
stating that as the Chief Justice Khil Raj Regmi has been
working as a Chairman of Council of Ministers then he has
no any role in the capacity of Chief Justice.
The court further said not to allow any undue influence in
the area of independence of judiciary; Honorable Khil Raj
Regmi should only be identified as the Chairman of
Council of Ministers.
Cont…
Hari Prasad Nepal et al. v. P.M. Girija Prasad Koirala et al. the
Supreme Court refused to enter into the political question by
saying that the dissolution of the House of Representative is the
prerogative right of the Prime Minister and the Court cannot
enter into the political question.
Ravi Raj Bhandari et al. v. P.M. Manamohan Adhikari et al. in
contrary, the Supreme Court held that the power of Prime
Minister to dissolve the House cannot be assumed uncontrolled.
The Supreme Court imposed the limitation on the power of
Prime Minister to dissolve the House. In this case, the Court
entered into the political question which is against the doctrine
of separation of power.
