Assignment on

Theory of Separation of Powers

Date of Submission :- 03. Dec, 2020

Submitted to:-
Mohamed Shakil Bhuiyan
Assistant Professor
Dept of. Political Studies. SUST.

Submitted by:-
Md Fahim Ahmed
Reg no. - 2019235086
Dept of. Political Studies. SUST.

Shahjalal University of Science & Technology, Sylhet.

Introduction :-
In many countries the legislature is subject to the bidding of the
executive, in other countries the legislature is vested with the power of
dismissing the legislature. In the same manner, in certain other countries
the judiciary holds the power of ruling any law, passed by the legislature,
out, deeming illegal. This suggests that in some way or other the three
organs of the government are related with one another. But the writers
advocating for the separation of powers to be enacted among those
organs opine that all the powers of the government ought to be provided
to all the three organs equally so that the freedom of those organs is not
threatened. They think that the legislature should only be sticking to
making laws, and the executive to implementing those, and the judiciary
to bringing the disputes to a fitting end. Montesquieu stressed on having
the power of those three organs demarcated so none of these can
interfere with one another's functions

History of this theory◌ঃ-

Before Montesquieu a handful of writers gave suggestions of separation
of powers in a roundabout way, but they did not elucidate the theory in
detail. Aristotle first described the three organs of the government. But
he did not explain their mutual relations in detail. The Roman writer
Cicero and Polybius lauded the Roman constitution very much. The
causes behind the success of the constitution was the system of checks
and balances. In the fourteenth century political philosopher Marsigilo of
Padua also differentiated between the executive and legislative organs
of the government. In the sixteenth century the French writer Bodin put
importance on the freedom of judiciary and said that the executive and
judicial power should not be concentrated in the hands of the same
person so that no oppressive rule makes its appearance in the state.
The leaders of the Glorious Revolution were of the firm belief that the
power to make laws and to materialize them and should not remain
convoluted in the hands of a.single person in order that despotic rule
should not be established. In his book ​Civil Government ​ John Locke,
a huge supporter of the Glorious Revolution put much emphasis on the
separation of executive and legislative powers.

Views of Montesquieu

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Montesquieu ​provided the best explanation of this theory in his book
Spirit of Laws, 1748​ Montesquieu lived during the reign of Louis XIV,
the author of the famous phrase '​I am the state'​. The monarch accrued
all the three powers in his hands. Montesquieu made a visit to England
in 1726 and he was so astonished at the spirit of freedom in place there.
He made a dissection of the freedom of the people and reached a
conclusion that the freedom of the people was possible in England as
there in England all three organs of the state were working separately
and they were free from each other's control . He was very much
impressed at the power of the British parliament and the freedom of
judiciary. Therefore he said that it was necessary for the defense of
freedom in France that all the three organs should act separately.

To elucidate the thesis of Montesquieu in brief, he tries to say that the

centralization of legislative, executive and judiciary in one single person
or in a body of persons results in the abuse of authority and such an
organisation is tyrannical. He, accordingly, pleaded that the three
departments of government should perform distinguished functions
within the sphere of powers assigned to them.

Practical effect of the theory

The theory had had a great impact on France and America. This theory
provided the basement of the French revolution and when in 1789 after
the revolution. The human rights were promulgated. It was pronounced
that in," the countries where there is no separation of powers, there is
no such thing as constitution ". In the constitution of 1791 the three
organs of the government were kept segregated from one another.
During the reign of Napoleon, the theory hardly received any attention
though it still has its echo in France. To this day the people of the
country nurtures this theory in their minds.

The founding fathers of the American constitution were specifically

affected, Dr Finer has written, '' we shall never know if the fathers of the
American constitution bring the theory of separation of powers being
influenced by the same. Or to instantly bring about the pragmatic task of
defending freedom and assets. Indisputably, the founding fathers of the
American constitution felt the need of delimiting the powers of each

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organ of the government with a view to safeguarding the liberty of the
people. Madison clearly evolved the fact that, " Montesquieu is the
oracle who is always consulted and cited in this regard," The theory of
separation of powers was not a new thing to the founding fathers of the
constitution because, before 1776, the executive was persistently kept
apart under the governor and the legislature was also a differentiated
entity. Before attaining freedom the dispute between the duo came off
and undertook an abject turn. The founding fathers of the American
constitution were cautious of the principles of the judicial review, as
legitimacy of the rules, as formulated by the British government
pertaining to the colonies could be brought into question in the judicial
committee of the privy council. Therefore, Lipson , writes, " History,
therefore, joined hands with philosophy in writing a separation of powers
into the federal constitution ",

On the back of freedom all powers were centralized in the hands of the
legislature and the people felt that a kind of autocracy of the legislature
was brought into force. So, when the formulators of the American
constitution met in Philadelphia, they did not provide with any noteworthy
power to any organ of the government. In a bid to keep the abuse of
powers in check, they vested an organ with the power of controlling the
other. The affect of this theory was of a great deal on the constitution
constituents of America in particular. It becomes clear from the
declaration of the constitution of Massachusetts, " In the government of
this commonwealth, the legislative department can not take up the role
of the executive or the judiciary either, nor can the executive act being in
the shoes of the legislature and or the judiciary, and this same maxim
goes to the judiciary too",
At the time of writing the constitution of Virginia, Jefferson wrote," All the
powers of the government ,legislative, executive and judiciary, flow to
the legislative body, the centralization of these in the same hand is the
perfect definition of despotic government, there will be no obviation that
these powers will be exercised by a number of people not by only one
person,"

In the Kelbourne S Thompson case, the supreme court in its decision

writes, "it is thought to be one of the chief amenities of the American

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written constitutional law that all the powers deposited in the hands of
the government with regardless the state or national provided to the
government are divided into three grand departments, the executive, the
legislative and judicial that the functions suitable to each of these
branches of government will be intrusted in a particular body of public
servants and for the perfection of the system it requires that the
demarcating lines segregating the departments are to be clarified and
defined

Dr Finer is also of the same view, '' The American constitution with much
caution made an essay regarding the separation of powers, which is still
so applicable in the world operates upon the principle, " this theory had a
great affect on the people of Mexico,Argentina, Brazil, Australia and
Chile and they undertook the attributes of this theory to some extent in
one some way or another. In France an asunder administrative court
was brought to light aimed at making sure the executive can act freely
from the control of the judiciary.

Criticism of the theory of separation of powers

(1) ​Absolute separation of powers is not possible ◌ঃ-

The critics think that the government is the united whole of the organs
being asked to be divided as is the human body. The organs will not
assist one another in need provided they are set independent of one
another's control. And this situation could result in administrative
instability in the country and it will be hard to conduct the state affairs
well. So this theory is not desirable.

(2) ​ ​The basis of this theory is confounding

Montesquieu takes the British constitution as the basement of this

theory, because of the judiciary being independent in Britain, the
freedom of the people was in utmost protection. But Montesquieu's
opinion in this regard is not applicable, thereby proving to be wrong. The
cause is that there is the parliamentary form of government operating in
Britain.. in such form of government there can be no separation of
powers with the executive under the parliament in it, and the Lord

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Chancellor being the chairman of both the house of Lords and also an
important member of the cabinet. So separation of powers is next to
impossible in England, but one thing is right as the theory claims of the
judiciary to be acting freely of the control of the executive.

(3)​ The Organs of the Government are mutually dependent

Separation of powers is not possible in between each of the organs of

the government, for they hinge on one another to a great extent. A
critical analysis of the organisation of the modern governments,
discloses the fact that the departments of the government discharge
merged functions. For example, the main duty of the executive is to
conduct the administration, yet it has a good share in the making laws
and preparing the bills to be introduced in the parliament. In the USA, a
number of bills are made ready as per the president's instructions and
these formulated bills are upheld in the Congress by his party's officials.
Secondly, in certain countries, the executive can announce ordinances
for the time being to face the emergency for a short period and they are
materialized as laws.
(4)​ ​Individual liberty is possible even without separation of
powers

Montesquieu's view suggests that unless there is separation of powers

among the government organs individual freedom is more likely to be
under threats. But it is not true, even during his lifetime, there was not
anything like this, still the people of England enjoyed much freedom
themselves. It was possible for the people to do so as the judiciary was
set free of any kind of control by the executive and legislature in
countries like Australia, Japan, France Italy, people despite the countries
government organs remaining undivided can enjoy the rights provided to
them by the constitution.

(5) The Democratic objection

There is even pluralistic opposition towards the separation of powers,

because in a democratic country the executive power is transferred to
the victorious party and they take decisions which are implemented by

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the administration and it also has some, if not full, over the other two
departments of the government. The reason behind the theory of
separation of powers is cited by the democratic countries based on the
following arguments that during the lifetime of Montesquieu the chief
responsibilities of the government was to defend the country from foreign
aggression, maintain law and order and establish a judicial system. At
that time it was recommended that the government keep on acting
without interfering in the affairs of the people given that the rulers were
absolute and self-server. The concept of welfare state did not get much
currency that time as it has now. That's why the purview of the functions
of the government has extended in size, and the emergence of political
parties and the separation of legislature from the executive has also
been put to an end. And a kind of coordination between the two's
functions has been brought in the place where the term separation of
powers could be applied successfully.

(6) The Authoritarian objection

The ones supporting the dictatorial type government declines to accede

with this theory its because it obstructs in all the powers being placed in
one hand, For examle, during the Hitler regime, one of the Nazi Jurists
writes, " the separation of power belongs to a political era in which
political unison was reduced to the bottom for the interest of an
autonomous bourgeois society, however, in the USSR too, separation of
power is opposed, as the centralization of powers is also found there,

(7) The theory will lead to inefficiency in government.

Mill in his book "Representative government ' mentions, " the

governmental instrument will get pushed into a deadlock situation,
provided the theory of separation of powers is dispensed fully, " the
statement makes it clear that the bigger gap is created among the
organs of the government, the greater disadvantage in handling the day
to day affairs comes into being. An organ getting fully separated from the
other two becomes inactive in serving the people or tends to do such
activities that might bring bad for the people ultimately.

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Conclusion

After discussing the theory we come to the conclusion that complete

separation of powers not probable either, or applicable, nor it is
substantiated if there is out and out separation of powers, there shall be
many obstacles in the way of the government and its functioning will not
be possible

References

Aristotle.Politics. Bk. IV.Chap.XIV

Locke. John, "Two treatises on Civil Government," Chap. 12. See pp

143-148.

Montesquieu. "Spirit of Laws, " Bk. Vi. 6ed. Franz Neuman trans.
Thomas Nugent(1949), pp 151-52.

Lipson.L, "The Great issue of Politics ", p.280

Finer. Dr," Theory and Practice of modern Government, " p.29.

Gilchrist, 'Principles of Political Science, " Page 277.

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