Essay on the Doctrine of Separation of Powers !
The modern democratic view does not accept the traditional analysis of the doctrine of Separation of Powers.
It is explained that Montesquieu views were the product of an era which looked upon government itself as something inherently dangerous and possibly despotic.
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That government was deemed best which governed least as it existed to protect and restrain, not to foster and promote. But today, even the most conservative person is unable to .think of government in purely passive terms.
The intensive integration and complexity of modem industrial society, and the accepted concept of a Welfare State demand more and more action and services from the government. All this needs planning the life and resources of the nation.
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The Welfare State tends to concentrate power on the executive level and, consequently, it means ascendancy of the executive over the legislative branch. Locke had conceived of the relation between the three powers in terms of legislative supremacy.
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Montesquieu and Madison preferred to see equilibrium between the three coordinate branches. But such a division now seems outmoded for all practical purposes as it is incapable of guaranteeing the services which the government is expected to render.
Planning and active service cannot be the work of separate branches of government which cancel each other out. Planning must be unified. Fusion and not rigid separation of functions is required. Thus, “moulds are broken in which the thoughts of Locke, Montesquieu and Madison were cast and their contents have spilled together.”
The ascendancy of the executive and the blurring of the traditional division of functions have been influenced by two other important tendencies. One is the organisation of the career civil service and the second is the emergence of political parties with their nationwide organisations. Political parties unite what one may try to separate.
The development of the executive, therefore, into what may be called a multi-functioning organ, is one of the most notable features of a modem government.
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To put it in the words of Barker, “If the growth of the legislative organ, in consequence of the development of the cabinet system, was the notable feature of the eighteenth century, it may be said that the growth, of the executive organ in consequence of the extension of rights and the corresponding extension of services which mostly fall to the lot of the executive, is the notable feature of the twentieth.”
Today, the executive is not only an executive, it is also, at the same time, a legislature; it exercises a judicial jurisdiction too. Administration and adjudication no longer seem as different as they had once appeared.
The core of the modern problem of government is to find a synthesis combining the answer to two needs—the need for the Welfare State and the need for freedom. The Welfare State, as said before, means concentration of power on the executive level and, accordingly, the ascendancy of the executive over the legislative branch.
This tendency seems to be an alarming development to many. It is, undoubtedly, alarming unless controlling and balancing devices are properly developed to keep pace with the ever- changing face of the executive power. The doctrine of Separation of Powers has become important today than perhaps at any other time.
One of the checks on the executive is the system of judicial review. Montesquieu himself was particularly interested in the judicial power as check over and arbiter between the other two branches. This concept is more clearly realized in the United States, India and some.
The idea of an independent and coequal judicial branch also spread to Germany (Bonn) and Austria. In France and Italy the supreme administrative court, the Council of States in the former, applies the most effective check on the executive power, although it is nominally a part thereof.
The balance between executive and legislative branches is a legal question primarily in countries with the Presidential system of government. There the Constitution prescribes the rights of both as well as their limitations. The emergence of political parties in the
United States, it is suggested, has tended to redistribute the authority divided by the Constitution and have obliterated the doctrine of Separation of Powers to a considerable extent. Carl Friedrich, however, is of the view that emergence of the political parties “does not obliterate the Separation of Powers but it certainly softens it.
At the same time the alteration of two parties itself constitutes a regularized restraint which consequently reduces the need for rigid separation.” But under a parliamentary system the principal check is the existence of political parties and the development of the constitutional custom of party alteration.
There is also the impartial judiciary. Then, the elected representatives debate and “propose” in Harington’s phrase, while the electorate resolves through general elections the party to form the government and the one to constitute the Opposition. By this process is effectively preserved the basic conception of balance and counterpoise.
Barker suggests another check. He accepts the bare truth of our times that the executive is a multi-functioning organ, but he emphasises that when the executive performs legislative and judicial functions let it employ the mode of action relevant to that department.
For example, if the executive exercises judicial functions let it adopt the proper and peculiar mode of judicial action, i.e., it must accept the procedure of public hearing, summoning witnesses and recording of evidence according to the rules of evidence. It must publish its decisions and it must also admit, if it possibly can, the possibility of appeal.
The need is, therefore, for union as well as separation. Democratic government demands that a synthesis be found between the Separation of Powers, and the possibility of concerted government action. The first is obtained by continuing with the separate organs of government.
It is intrinsically good to do so, for it sets a limit of jurisdiction over the functions of each organ. Each organ establishes its own distinctive mode of action with its own distinctive technique. But it does not mean that separation of functions prevents leadership.
Too much separation destroys responsibility, immobilises action and ultimately destroys free government. Without leadership there would soon be a constitutional crisis and possibilities of the rise of dictatorship. But it is essential to temper leadership by imposing limitations upon it.
The real limitations are those which make the government responsible to the people, that is, it must answer to the people for its policies and if its answers are not satisfactory to the people, they should have the means to replace it.
It can be ensured further by the presence of an independent and impartial judiciary, the guardian of the rights of the people. Thus, the Separation of Powers is a living force in all democratic countries as a check to irresponsible power.
In the context of what has been said above the theory of Separation of Powers now rests upon broader grounds than suggested by the limited doctrine of Locke and Montesquieu. It reconciles theory with practice and thereby establishes harmony between division and concentration of powers to maintain the safety of the political order as a whole.
It stands for an effective system of divided powers as contained in the classical doctrine and considers it sound, but holds that there is nothing sacrosanct about it. It appreciates the difficulties resulting from divided powers and considers them great, but it also realises that the consequences of concentrating power are really disastrous.
This has given rise to a new theory of divided powers; a scheme suitable, on the whole, to the needs of an industrial society. The advocates of this new theory point out that the classical doctrine of Separation of Powers “has an implicit double meaning.
On the one hand it contains a generalization, theory or hypothesis; on the other hand it contains a practical suggestion, a proposal for the organization of government in the interest of individual liberty.”
The idea that there are three major types of governmental power seems to them a valid generalization and one in accord with the operations of the human mind.
They agree with Immanuel Kant that this distinction of powers corresponds to the pattern of a practical syllogism, divided as syllogism into the major premise, the minor premise, and the consequent.”
The resemblance of the distinctions underlying the separation of powers and the pattern of a syllogism is due to the fact that commands imply decisions, and decisions in turn imply judgments.”
Power means, inter alia, that a person or group possesses the ability to command and the ability to command involves the ability to decide, whenever there is a choice between several alternatives. Power, therefore, admits of commanding and deciding. Specific decisions and commands are the realm of executive power, general decisions and commands fall within the sphere of legislative power.
The latter is for that reason often called the rule-making power. Similarly, the executive power may be called measure-taking or rule application. The judicial power apparently stands between the two, for it transforms a general into a specific decision.
When a general command has been given, or a general decision made, that is, the rule has been established, there still remains the further decision involved in adjudicating the rule.
The judicial power makes a specific decision by applying the rule. The decision made is not a command. It is for this reason that the pronouncements of the courts, while adjudicating, are described as decisions and the whole process as rule. That is, the specific decision is rendered while applying rules.
But the advocates of the new theory of divided powers contend that most of the time the government functionaries are their own judges. Whenever they decide to do or not to do something because the law demands or forbids it, they apply that law “by subsuming the particular situation with which we are confronted under the established legal rules.”
Ordinarily, it is only the doubtful and controversial points of law which are brought before the courts. Majority of them are decided by various commissions and tribunals with which an industrial society is honeycombed today.
The decisions of these commissions and tribunals are administrative in their nature and not in strict accord with the classical theory of the Separation of Powers. Those who criticise the new theory of divided powers seldom appreciate the practical aspect of the functions of government and the task which it has to undertake.
Administrative tribunals and commissions have taken deep roots in almost all countries and, in some, such tribunals carry a constitutional sanctity, as in India. The only point which need be emphasised is that these commissions and tribunals should adopt the mode of judicial action as Barker suggested.