Separation of power
Introduction
Doctrine of separation of power is a theory put forward by Montesquieu during the 17th century. This was inspired by his observation of the British system of governance during that time. It is a principal bit of law. Without a modest system of separation of powers, the rule of law becomes imperiled. This doctrine has a great application as we are set to examine in deeper details. We will discover that although this doctrine brings out an ideal that may not be put into absolute exercise, it provides appropriate checks and balances in the premises of a government system. The reference context will be the United States government and general worldview of the same(Kozlowski, 2010, pp. 1-100).
Doctrineof separation of power
For there to be a successful free and fair democratic society, power separation should be applied with absolute clarity among the government branches. These branches of government include:
The executive: the executive carry out government business. It is constituted of the president, vice president, ministers, defense and police forces and the public service. All administrative, coercive and law enforcement agencies fall under this arm of the government. The executive power is conferred upon the president by the laws of the United States. He is to receive ambassadors, appoint public ministers, and ensure that the laws are executed in a faithful manner. This does not imply that he personally enforces the law. Such responsibility is vested in the subordinate officers that work under him. The president implements that which is given by the congress. The congress has the power to restrict appointments made by the president through impeachment. The executive is potentially the most powerful arm of the government(Kilman, 2000, pp. 102-160).
The legislature: this is the branch that makes laws, in most countries it comprises of the senate and the house assembly. In the United States, congress does the legislative functions. Under the non-delegation doctrine, the congress may not be obliged to delegate its legislative responsibilities to other agencies (Carolan, 2009, pp. 50-67).
The judicial branch: this is the branch that interprets the law. It is made up of the judicial officers and the courts they preside over. Courts are differentiated into branches, for example, Supreme Court, courts of appeal and superior court. This branch has power given by the constitution to determine cases. The Supreme Court and the other inferior courts are instituted by the congress. Appointment of judges is responsibility of the president with the guidance and consent of the senate. The congress can form “legislative courts” which do not perform within the precincts of the judicial arm but execute their duty in accordance with the fairness of constitutional justice. They do not have the benefits of the official judicial agencies and their term is on temporary basis (Masterman, 2009, p. 109).
The doctrine of separation of power can have three meanings in it: same person cannot be allowed to form more than one of the three branches of governance, the three entities should be entirely separate and not intrude into the operation of one another, the entities are not supposed to wield power of other entities(Halstead, 2002, pp. 100-109).
In case the branches intrude into the affairs of the others, the doctrine disappears and the freedom brought by the rule of law is suffocated. For example, if the executive under the leadership of the president decides to make laws and enforce them, the law will be violated and the system will be encroaching towards autocracy.
To be concise, the doctrine’s statement is as follows, “liberty and rights of the people can only thrive in a system where every government branch adheres to its designated roles”. Overstepping into the others’ docket creates animosity and deprives the entire system peace in its operations (Kilman, 2000, p. 87).
Appointment
The doctrine of separation of power looks at the appointment process ofofficers in various arms into office. Every branch has a procedural system of appointment as stated in the laws of the country (Staab, 2006, pp. 156-60). According to the principles of the doctrine, the legislature does not have the power to appoint the executive. Parliament cannot appoint the president; the president is elected by the people through the Electoral College. The executive cannot elect members of the congress. This is done by the people. Judges cannot appoint the executive though that occurred in the year2000 when the decision of the presidential result was decided by the Supreme Court. All power of appointment of all government officers come from the people. The people decide who to lead them in various leadership positions (Flynn, 2009, pp. 200-202).
All the branches of government are financed from a central focus. There are no independent financing bodies in every arm. The disadvantage of a central financing body is that the arm of government that oversees the body can suppress the distribution of funds to the other arms to its own advantage. If there could be a system where each arm controls its monetary allocations, there would be an efficient operation in all the arms. Perhaps this is an option worth pursuing (Campbell, 2004, pp. 1-100).
Limitations ofthe doctrine
This doctrine is never in absolute application everywhere in the world. The three arms of government always work in collaboration with one another. This happens despite the fact that jurists have tried several times to distinguish the roles. It is apparent that this cooperation is worth there for the government to function effectively. If there was absolute separation of the power and the branches not in understanding, the government would become impaired in many ways(Kilman, 2000, pp. 43-98).
There are often overlap in the function of the three arms. For example, parliament may not be able to enact all legislation. It must leave some details to be filled by the branch of executive. Hence this renders some law-making authorities to the executive. Some issues often are in need of quick answers. This may not be handled by the judiciary. Tribunals answerable to ministers or parliament can be formed hence giving the executive and legislative arms judicial authority. This is viable as long as the judicial precedents are adhered to (Masterman, 2009, p. 78).
Judges can sometimes develop and adapt some rules in account of changing circumstances, this way the judiciary makes law. In country like South Africa, the national assembly elects the president. This violates the doctrine of separation of powers. On the other it has advantage in that it checks the powers of the executive which ultimately reports to the national assembly.
Because it is clear that there is never absolute separation of power betweenthe government branches, the doctrine can be said to be fostering a fair sharing of government responsibilities among the arms of governance (Carolan, 2009, pp. 23-56).
Value
Despite the fact that this system cannot be applied to completion in the government, it contributes an indispensable value in government operations.The doctrine highlights the requisite of states to constitute strong agencies that can check the arbitrary rule possessed by the executive arm (Kozlowski, 2010, pp. 56-65).
The doctrine provides a touchstone that can be used to asses constitutional proposals so as to inflict appropriate checks and balances in accordance with the way the government operates. This doctrine is necessary as it ensures the protection of the rights of the people(Masterman, 2009, p. 100).
It is important that this doctrine be implemented with caution in order to test how viable a constitution can be. It would be pragmatic to claim that constitution that does not take this into account is bad but either way, those countries that follow it is not necessarily perfect(Flynn, 2009, p. 108).
If this doctrine is strictly followed, it may lead to government antagonism. On the other hand, if all the executive power is conferred in the president, it may result into dictatorship. If the legislature is not elected by the people, it may end up into an undemocratic system. In case there are corrupt judges in the judiciary, then there will be absence of the rule of law(Staab, 2006, pp. 76-89).
Conclusion
The doctrine fosters sharing of governance responsibilities among three branches of government. One arm cannot handle all government leadership because that will lead to an iniquitous leadership. Separation of power provides checks and balances for a government, thus putting its functioning on toes. It is also crucial that these arms of government work in collaboration in order to efficiently fulfill the government’s mandate( Halstead, 2002, pp. 100-103).
References
Campbell, T., 2004. Separation of Powers in Practice. s.l.:Stanford University Press.
Carolan, E., 2009. The New Separation of Powers: A Theory for the Modern State. s.l.:Oxford University Press.
Flynn, V., 2009. Separation of Power. s.l.:Pocket Star.
Halstead, M. C. P., 2002. The separation of powers doctrine: rationale, applications and bibliography. New York: Nova Science.
Kilman, J, 2000. The Constitution of the United States of America: Analysis and Interpretation.. [Online] Available at: http://www.gpoaccess.gov/constitution/browse.html
Kozlowski, D. J., 2010. Federalism. [Online] Available at: http://thomas.loc.gov/home/histdox/fedpapers.html.
Masterman, 2009. The Separation of Powers in the Contemporary Constitution. London:Cambridge University Press.
Staab, J. B., 2006. The Political Thought of Justice Antonin Scalia: A Hamiltonian on the Supreme Court. Missouri: Rowman & Littlefield.
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