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Separation of Power

Introduction
Power means ability. Separation of power means power's separation from one to another. When a
power divided into three branches in executive, legislative and judicial are called Separation of
powers. Government is process governing. It is the use of power divided from the law that is
approve by the legislature.It is means, methods manner or system of governing society and
organisation. Government is one of the most essential attributes of a state. We cannot have a
clear idea about a state without it.
The doctrine of separation of power means that separate of the organs of the government, the
legislative,executive or judicial should ever exercise the powers of the other. It means that three
departments of governments are to be separate and distinct. They are to be independent of one
another and each can exercise only the type of authority legislative, executive or judicial.
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. Thus the legislature cannot exercise executive or judicial power, the
executive cannot exercise legislative or judicial power and the judiciary cannot exercise
legislative or executive power of the government.
Definition
According to Wade and Phillips, this doctrine of separation of power, means that the same person
should not compose more than one of the three departments of the government, one of
departments of the government, one department should not control and interfere with the acts of
the other two departments, and one department should not discharge two departments.
Separation of powers, therefore, refers to the division of government responsibilities into distinct
branches to limit any one branch from exercising the core functions of another. The intent is to
prevent the concentration of power and provide for checks and balances.
Historical background of Separation of Power
Thus Clement Waker, a member of the Long Parliament in 1648, saw distinctly enough the kind
of arbitrary, tyrannical rule against which the governed had to be protected. The remedy, le
thought, lay in a separation of governmental functions cast in terms of the Governing power,"
"the Legislative power," and "the Judicative power."
For Marchamont Nedham writing under Cromwell's Protectorate in 1656, the required separation
is that of legislative and executive powers into different "hands and persons." As used by him the
distinction resembles the sharp dichotomy between the formation of policy and its administration
favored by mid-twentieth-century American administrative theorists. Separation for Nedham, is
an indispensable means for acting responsibility and fixing accountability. An executive,
unanbiguously charged with executing a policy set by the "Lawmakers," can be hell liable for its
performance or nonperformance. Let that clear line of distinction and responsibility be blurred,
and liberty and the people's interest are alike in jeopardy.
John Trenchard's argument of 1698 carries Nedham's separation of power even further. One
might say that without separation of persons there cannot be a meaningful separation of powers,
Here, more than accountability is sought. The freedom of England depends on a truly
representative an uncorrupt House of Commons serving as a check on an executive which
already lus the power of the sword. Given the premise that it is certain that every Man will act
for his own Interest," the only safeguard against continual Heartburnings between King and
People" consists in so interweaving the representatives' interest with that of the people that in
acting for themselves, the representatives must likewise act for the common interest. As is true of
many eighteenth-century writers, Trenchard here drew on arguments for separation of powers
and for mixed or balanced government without sharply distinguishing the two.

The ideas of Montesquieu


Montesquieu advocated the separation of powers as a device to make government made safe for
the governed. The division of power that he envisaged was the same as that of Loeke.
Montesquieu endeavoured to establish that whoever has unrestrained power will abuse it. If the
legislative and executive powers are combined in the same person or body of peresons, there can
be no liberty, because the same agency becomes
the maker and executor of laws. Similarly, if the legislative and judicial functions are combined
with the judicial, the same agency is the presecutor as well as the judge. If all the three powers
are concentreted in a single hand there would be an end of everything as the there will be
tyramical laws interpretend and enforced with the violence of an oppressor.
Montesquieue’s thesis is that concentration of legislative, executive and judicial functions either
in one single person, or a body of persons, results in abuse of authority and such an organization
is tyramical.He urged that the three department of government should be so organized that each
should be entrusted to different personnel, and each department should perform distinct functions
within the sphere of poweres. assigned to it.
The essence of Montesquieus theory of separation of power is that it imposed on each organ of
government the obligation to explain itself and to see that it acted within law and not beyond it.
There must be a scparation of power within the structure of government in order that one power
may operate as a balance against another power, such a cheek Montesquieu considered necessary
for safeguarding the liberty of the individual and for avoiding tyramy.
Montesquieu follows Locke "but with more system and it is important to observe that he never to
thinks to separate the powers completely, but rather to modify the concentration of powers.
As portions of each function were distributed among different agencies, the separation of powers
was really intended to result in a system of checks and balances.
Is Complete Seperation of Power possible?
Complete separation of powers is neither possible, or practicable, nor it is justified. If there is a
complete separation of powers, there shall be many hindrances in the way of the government and
its functioning will become impossible. Probably wanted to impose limitation on the absolute
powers of the king. Therefore, he considered the separation of powers to be essential. It may be
for the reason that, in his time, the French King Louis XIV had concentrated all the powers in his
own hands. Blackstone also realised this and he said that complete separation of powers is as
dangerous as their concentration. Therefore, we can say that complete separation of powers is not
proper. However, in spite of the mutual relations among different organs of the government, their
functions should be separate. Otherwise the entire efficiency of the administration will vanish.
The principle of the separation of powers is quite important as its aim is to check the executive
from being absolute and the independence of judiciary be ensured so that the freedom of the
people is protected. Thus in India efforts have been made to make the High Courts and the
Supreme Court free from the control of the executive. The idea of the freedom of judiciary has
gained popularity in many countries of the world. In some democratic countries like Japan,
France, Italy, West Germany, Belgium, Holland, Norway and Sweden, this principle has been
adopted to some extent, and the executive in these countries does not interfere in the decision of
the judiciary. In countries where there is dictatorship, the judiciary is not free and, consequently,
the freedom of the people is not safeguarded.
The stress on individual liberty under the principle of the separation of powers is also not
unwarranted. Although many countries have not adopted this principle, yet the freedom of the
people has been kept intact by granting fundamental rights to the people under the constitution.

Effect and defect of the theory : Separation of Power

Effect of Separation of Power


The Doctrine of separation of powers as as propound by Montesquieu had tremendous impact on
the development of administrative law and functioning of government .It was appreciated by
English and American jurists and accepted by politicians. Ion the book ‘Commentaries on the
laws of England, published in 1765.
Blackstone observed that if legislative, executive and judicial function were given to a man,
there was an end of personal liberty.

Medison also proclaimed,


The accumulation of all powers legislative, executive, 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 constituent assembly of France declared in1789 that there would be nothing like a
constitution in the country where the doctrine of Separation of power was not accepted.

Defect of Seperation of Power

Though theoretically, the doctrine of separation power was very sound, many defects surfaced
when it was sought to be applied in real life situation. Mainly, the following defects were found
in this doctrine:
1. Historically speaking, the theory was incorrect. There was no separation of power under
the British constitutions. At no point of time, this doctrine was adopted in England.
2. This doctrine was based on the assumption that the tree functions of government
legislative, executive and judicial are independent of and distinguishable from one
another. But in fact, it is not so. There are no watertight compartments. It is not easy to
draw a demarcating line between one power and another with mathematical precision.

3. It is impossible to take certain actions if this doctrine is accepted in its entirely. Thus, if
there legislature can only legislate, then it can not punish anyone, committing a breach of
its privilege; nor can it delegates any legislative functions even though it does not know
the details of the subject matter of the legislation and executive authority has expertise
over it; nor could the court frame rules of procedure to be adopted by them for disposal of
cases. Separation of power, thus can only be relative and not absolute.

Fundamental object of Montesquieu. In England, theory ’s doctrine was liberty and freedom of
an individual , but that cannot be achieved by mechanical division of functions and powers.
In England, theory of separation of powers are not accepted and yet it is known for the protection
of individual liberty. 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 subject

Importance of seperation of power


The separation of power is important because it provides a vital system of 'checks and balance'.

Firstly, it ensures that the different branches control each other. This is intended to make them
accountable to each other-these are the 'checks'.

Secondly , the separation of powers divides power between the different branches of
government-these are the 'balance'.
Balance aims to ensure that no individual or group of people in government is 'all powerful'.
Power is shared and not concentrated in one branch.

However ,there are some more reasons why separation of power is important. These are-

 It aims at individual liberty.It is a safeguard against despotism.

 Its basic principle that concentration of powers leads to dictatorship is true for all time
and ages.

 The separation of powers saves the people from the arbitrary rule of the executive.

 This theory lays down the principle that governments should act according to certain well
established rules or law.

 Each organ acts as a check upon the others.

 It is desirable for maintaining the efficiency in the administration.

That is why we also often refer to the 'separation and balance of power'. The main purpose of the
separation of power is therefore to prevent the abuse of power.

Separation of Power In Bangladesh


According to the theory of “Separation of Power” every organ of the state is separate in his
function.
Distributing the three main functions among the three different organs is called the separation of
power. Thus the legislative can not exercise the executive or judicial power,executive can not
exercise the legislative or judicial power and the judiciary can exercise the others two power.
Every organ will work independently.It has got two dimensions of separation of power.Those
are
1. Every organ will do their work by their own.
2. No organ will interfere in other organs function.
The constitution of Bangladesh has also given importance on separation of power.constitution
has clearly distributed function of state among the different organs.
1. Judiciary: According to the article (22),the state shall ensure the separation of the
judiciary from the executive organs of the state.
2. Legislative: According to the article (65),the legislative power of the state or republic
shall be vested on parliament of Bangladesh named House of Nation.
3. Executive: According to the article (55),the executive power of the republic shall be
exercised by or on the authority at prime minister in accordance with this constitution.
So, we can say that theoretically in Bangladesh separation of power is ensured. This is true that
theoretically separation of power if effective Bangladesh by the provision in the Bangladesh
constitution. But the reality is completely different. There is no separation of power in practice.
By theory it may be not possible to use accurately in any country but possible in partially. But in
Bangladesh this will not be effective because of political parties . every ruling political party tries
to manipulate the separation of power and try to misuse the power. Even a parliament member is
a part of a parliament commute which is formed to check the function ability of a ministry. He
may also practice in the high court . so he can easily manipulate the system by integrating these
over lapping powers. So separation of power is not possible in Bangladesh context.

Why separation of Power is Necessery or Needed?


Democratic government is characterized by the separation of powers.
There are checks and balances within our political system that limit the power of each branch in
order to prevent the abuse of power. This system divides into three branches those are legislative,
executive and judicial branch.those branches give each the power to fulfill different tasks. These
branches are also known as the important part of government. Tasks are assigned to the various
branches and their institutions in such a way that each of them can check the exercise of powers
by the others. As a result, no one branch or institution can become so powerful as to control the
system perfectly and completely.
The separation of powers is needed because it bring a obviously vital system of checks and
balances.
Firstly, it ensures that the different branches control each other. This is intended to make them
accountable to each other these are the checks.
Secondly, the separation of powers divides power between the different branches of government
these are the balances. Balance aims to ensure that no individual or group of people in
government is all powerful. Power is shared and not concentrated in one branch.
That's why we refer to the separation and balance of powers. The main purpose of the separation
of powers is prevent the misuse of power.

Criticism of Separation of power


The theory of separation of powers was put forward by Montesquieu. It exercised profound
influence over political thoughts in the 18th century, but it has been subjected to serious
criticism:
1. Strict separation of power is impracticable. J.S. Mill pointed, separation and
independence of various departments of the Government would result in frequent
deadlocks and general inefficiency.
2. The theory presupposes equality of all the organs but it’s wrong. Because the legislature
is essentially Superior as it makes the framework for government machinery.
3. It failed in America as a working principle of government in practical. The president is
now the Chief legislator along with being chief executive. The senator shares executive
power with the president partially.
4. Montesquieu misunderstood the working of the government in England. The theory
formulated by him was inspired by England. But England was having a full fledged system
of government which was based on intimacy between the executive and the legislature.
5. The liberty of people can’t be guaranteed by separation of powers. It is seen that British
people enjoy no less liberty than the Americans although the English constitution is not
based upon the theory of separation of powers
Conclusion: The theory of strict separation of powers, may be impracticable but in
general the theory has got its appeal. A certain amount of independence and
separation of each organ of government are highly desirable. In the words of Laski,
“It is necessary to have a separation of functions which need not imply separation
of personnel.”