QUAID-E-AZAM LAW COLLEGE LAHORE

AMERICAN CONSTITUTION

SEPARATION OF POWERS

Prof. Amna Bakhtiar Malik

1- Preliminary Note
Separation of powers is a political doctrine originating in
the writings of Montesquieu in The Spirit of the Laws where he
urged for a constitutional government with three separate
branches of government. Each of the three branches would have
defined abilities to check the powers of the other branches.
2- Meaning and Definition
“The literal meaning of the Doctrine of separation of
power is the division of power between various organs of the
state namely legislature, executive and judiciary to avoid misuse
of power by any one organ.” V.D. VERNER

“The people have an original right to establish such principles

that will organize the government and assign to different
departments their respective powers. MARBURY VS. MADISON

3- Need of the Theory

 The separation of powers is also reflected in the fact that
certain functions must not be exercised by one and the same
person.
 It limits the possibility of arbitrary excesses by government,
since the sanction of all three branches is required for the
making, executing, and administering of laws.
 Each organ perform more efficiently.
4- Historical Background
The doctrine may be traced to ancient and medieval theories
of mixed government, which argued that the processes of
government should involve the different elements in society such as
monarchic, aristocratic, and democratic interests.
Origin
The term “separation of powers” originates to Baron de
Montesquieu, a French Enlightenment philosopher. He used the
models of ancient Rome and the British Constitutional system to
theorize the ideal distribution of governmental powers between
executive, legislative and judicial branches.

5- Dicey’s Exposition

There should be division of powers amongst

different organs of the state
 Each organ should be independent
No person should be made the member of
more than one organ

6-Montesquieu’s division

The first modern formulation of the doctrine was that of the

French writer Montesquieu in De l’esprit des lois (1748), although
the English philosopher John Locke had earlier argued that
legislative power should be divided between king and Parliament.

7- Theory of Separation of Power in American Constitution

a. Implied Doctrine

i. Legislative Powers ARTICLE I SECTION 1

Congress has the sole power to legislate for the U.S.
Under the "non-delegation doctrine," Congress may not
delegate its lawmaking responsibilities to any other agency.
In this vein, the Supreme Court held in the 1998 case Clinton
v. City of New York that Congress could not delegate a "line-
item veto" to the President, by which he was empowered to
selectively nullify certain provisions of a bill before signing it.

ii. Executive Powers ARTICLE II, SECTION 1

Executive power is vested in the President. The principal

responsibility of the President is to "take care that the laws be
faithfully executed." By using these words, the Constitution
does not require the President to personally enforce the law;
rather, officers subordinate to the President may perform such
duties.

iii. Judicial Powers ARTICLE III, SECTION 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.”

8- IMPLIED CONCEPT:
The concept of Separation of Powers is not a concept specified
from the words of the constitution. It is implied in the so-called
distribution clauses of Article I, II & III, which allocate the powers
of the Govt. into 3 different branches.” SPRINGER VS. PHILLIPINE
ISLAND (1928)

12- Comparison with other Countries

The French
 In France, the President is elected by the people to a powerful
position. The President can, and has, dissolve Parliament and
call for new elections. The President appoints the Prime
Minister.
The President does not have veto power over legislation, but
can ask Parliament to reconsider a bill. The President heads
what is commonly called The Government.
Most bills passed into law originate with the Government.
The President presides over the Cabinet, and has vast
emergency powers. With all this power, it is clear that the
Prime Minister, chosen from the members of the National
Assembly (the lower house), has a lot less power than in
Britain.
The French Prime Minister has been likened to a junior partner
in the executive branch. The Senate, the upper house, is more
powerful than the House of Lords in Britain, but not by much.
The British
The British Parliamentary system works like this:
There are two houses of the legislature. The upper house, the House
of Lords, has traditionally consisted of the nobility of Britain, dukes,
earls, viscounts, barons, and bishops.
The House of Lords serves a judicial function, but as a legislative
body, is widely regarded as ineffectual. It can also delay passage of
bills issued by the lower house, though it cannot veto them.
The judiciary has no power of review as in the US. Since Britain has
no formal, written constitution, no law can be unconstitutional.

The head of state, analogous still with the President, is the monarch
(King or Queen).
The monarch must approve of all bills, though the process today is
little more than a rubber stamp.

13- Advantages of Theory of Separation of Power

a. Protection of Liberty

b. Avoidance of Dictatorship

c. Success of Democracy

d. Improved Efficiency

e. Specialized Services in each Department

f. Avoidance of Favoritism

14- Disadvantages of theory of Separation of power

a. Complete separation of power is impossible

 b. Lack of Communication

c. Delayed Decisions

d. Lack of Equality

e. Lack of sense of responsibility

f. Liberty not dependant upon theory

15- Checks and Balance

Legislature
a. Checks on the Executive
– Impeachment power (House)
– Trial of impeachments (Senate)
– Selection of the President (House) and Vice President
(Senate) in the case of no majority of electoral votes
– May override Presidential vetoes
– Senate approves departmental appointments
– Senate approves treaties and ambassadors
– Approval of replacement Vice President
– Power to declare war
– Power to enact taxes and allocate funds
b. Checks on the Judiciary
– Senate approves federal judges
– Impeachment power (House)
– Trial of impeachments (Senate)
– Power to initiate constitutional amendments
– Power to set courts inferior to the Supreme Court
– Power to set jurisdiction of courts
– Power to alter the size of the Supreme Court
c. Checks on the Legislature - because it is bicameral, the
Legislative branch has a degree of self-checking.
– Bills must be passed by both houses of Congress
– House must originate revenue bills
– Neither house may adjourn for more than three days
without the consent of the other house
All journals are to be published
Executive
a. Checks on the Legislature
– Veto power
– Pocket Veto
– May issue executive Orders
– Emergency calling into session of one or both houses of
Congress
– May force adjournment when both houses cannot agree
on adjournment
b. Checks on the Judiciary
 – Power to appoint judges
– Pardon power
c. Checks on the Executive
– Vice President and Cabinet can vote that the President is
unable to discharge his duties

Judiciary
a. Checks on the Legislature
– Judicial review
– Seats are held on good behavior
b. Checks on the Executive
– Judicial review of appointments
– Chief Justice sits as President of the Senate during
presidential impeachment

16- Conclusion