THEORY OF THE SEPARATION OF POWER

  
     Since the time of Aristotle, the political writers have recognized the three elements of a government system. They are
1)      Legislation or law making body.
2)      Judiciary or the law interpreting body and,
3)      The law enforcing body or the executive.
Each body or element of the government exercises their own powers known as the separation of power and no one interferes in another power. However, the 18thcentury French thinker, Montesquieu was the first writer or thinker who gave the theory of the three elements of the government or the theory of the separation of power in order to protect the liberty or freedom of an individual. In Montesquieu’s time, France was ruled by absolutist and tyrannical kings. He hated tyranny and was in favor of complete liberty and freedom. He visited England and experienced individual liberty there. Montesquieu thought that it was due to the separation of power in the English government. He accumulated his thoughts and thinking’s and formulated them in the form of a doctrine of separation of powers in a book “The spirit of Laws” which he wrote in 1748.
MONTESQUIEU’S THEORY
      Montesquieu explained his theory in these words “In every government there are three sorts of power: legislative, executive and judicial. The liberty of the individual required that neither all these powers nor any of them should be placed in the hands of one man or one body of men. (1) When the legislative and executive powers are united in the same person or body of persons, there can be no liberty, because apprehensions may arise that the king, who is also the lawmaker, might make and enforce the laws in a tyrannical manner. (2) If the judicial power is joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. (3) Where the judicial power joined to the executive power, the judge might behave with violence and oppression. (4) There would be an end of everything if the same man or the same body, whether of the nobles or of the people, were to exercise those three powers, that of enacting laws, that of enforcing them and of trying the cases of individuals”. (Reference: from book “Political Science Theory and Practice”)
     Such was the forceful manner in which Montesquieu championed the cause of the liberty of the individual. Later on, many American and English writers also wrote on the topic in their own ways. For example, English jurist, Blackstone, addressed the same topic in these words: “Whenever the right of making and enforcing the law is vested in the same man or one and the same body of men, there can be no public liberty”. The American writer Hamilton says, “Accumulation of all powers, legislative, executive and judicial, in the same hands, whether of one, a few or many, may justly be pronounced the very definition of tyranny”. (Reference: from Book “Political Science Theory and Practice”)
CRITICISM
    However the theory has also been criticized due to certain setbacks and limitations. Some of its defects are:
1) COMPLETE SEPERATION IS IMPOSSIBLE
     Government is like a human body in which an organ has to cooperate with the other organ so that the body functions efficiently. Like it the different parts and departments of the government has to cooperate with each other in order to function properly. It is somehow impossible for the government organs to perform their tasks independently. 
2) IT LEADS TO CONSTITUTIONAL DEADLOCKS
      The extreme separation of powers is destructive for a fair government. It restricts the    co-ordination among the government organs and parts which is very much against the interest of the State and it will lead to a deadlock which will prevent the proper functioning of the government.
3) ALL DEPARTMENTS ARE NOT EQUAL   
      The theory of the separation of powers state that the different departments of the government are equal. But in reality it is not the case. In modern world the legislature is more powerful than the other two departments as it is completely independent.
ORGANS OF THE GOVERNMENT
        There are three main organs or departments of the government. They are:
a) LEGISLATURE
      The legislative body of the government performs different functions in different states of the current world. However some of its common features are:
1) LEGISLATION
        One of the vital and important function of the legislature is to formulate laws or amend any existing law. The law passes through several stages before becoming a law. It is presented as a bill in the parliament before the legislative body. The legislature must be a representative of the people and must formulate or make laws with due care which should be in the interest of the majority of the people.
2) FINANCIAL FUNCTIONS
        The legislature as the representative of the people is the custodian of the public money. Therefore they have to keep a check and balance on the government revenue and expenditure. They reviews, discusses and approves the budget presented before them of a new financial year.        
3) ADMINISTRATIVE FUNCTIONS
       The legislature also controls the executive i.e. the government members mainly in the cabinet or parliamentary form of government. The cabinet consists of the ministers who are selected among the members of legislature. The cabinet is answerable for their actions to the legislature. The legislature may ask a cabinet member to resign if he fails to perform his duties properly or if he is indulge in any misconduct.
4) AMENDMENTS OF THE CONSTITUTION
         The legislature has the power to change or amend the constitution whether it is flexible like the constitution of UK or it is rigid as the USA and Pakistan constitutions.
         There are several other functions as well which the legislature of any State or country performs apart from these functions.  
LEGISLATIVE PROCEDURE IN PAKISTAN
       The legislative procedure of Pakistan consists of the following steps:
1) ORIGINATION OF BILL
       The Bill originates either in National Assembly or Senate. . In National Assembly, the speaker forwards a bill from his desk if is not against the Islamic provisions or constitution after giving a legislative number to the bill.
       In Senate, a bill is forwarded by the registrar if he thinks that the bill is debate able and discussable in the house.
2) 1stREADING OF THE BILL
        It is basically no reading. It is only the introductory stage in which the bill is introduced by the sponsor "Sponsor is the person who presents a bill in the assembly". After introduction copy of the bill is distributed among the parliamentarians.
3) 2nd READING OF THE BILL
       In this stage a debate and discussion is held on the bill.
4) COMMITTEE STAGE
        In this stage a committee is formed of the members who are experts in the subject matter of the proposed bill who looks at the bill and look at its various angles. They have the authority to make changes in the bill. They can even change the bill completely if they think or desire so.
5) 3rdREADING OF THE BILL
       The bill is read again in this stage and then the process of voting is held in the house on the bill. If the bill got the required votes in the voting then it is sent to the 2ndhouse of parliament.
2nd HOUSE
    In the 2nd house the procedure is directly carried out from the 2nd reading as the members are already aware of the proposed bill. Then a committee is formed of the experts to look at the bill. In the 3rd reading voting is held.
     If the bill got the required votes from both the houses then it is sent to the president and as he signs the bill, it becomes an Act or law.
     The president can only once reject a bill if he has any objection on it and it is then again sent back to the originated house and as the bill is passed again by both the houses, the president cannot reject the bill again. However the bill is presumed to be signed after 15 days even if it is not signed by the president. Moreover, if a bill has been passed by 2/3rd majority of the parliamentarians then the president has no authority to reject it.
b) EXECUTIVE
     The second vital organ of the government is the executive. The executive is the law enforcing body or agency of the government. The executive consists of all the officials of the country ranging from the highest authority to the lowest, from the president of the country to a constable in the police.
IMPORTANCE OF THE EXECUTIVE
      Executive has prime importance than the other two organs of the government i.e. the legislature and judiciary due to the fact that it maintains law and order in the State. Even in the past the executive was the most vital organ of the State as the legislature did not existed and judges were not free and were the servants of the king and would give decisions according to the will and desire of the king.

FUNCTIONS AND POWERS OF THE EXECUTIVE
        The functions and powers of the executive does not remain constant all the times and in all the States, however it changes. Some of them may be classified below:
1) INTERNAL ADMINISTRATION
         The primary and main function of the government is to maintain law and order in the country. Thus, it is the essential function of the executive. The executive has to supervise and enforce laws and administer the country. This task is done by the corporation of the various departments within the government. The country is administered by the government through the appointment and direction of the civil or public servants on different posts.
2) MILITARY FUNCTIONS
        The executive has the power to supervise and direct the three armed forces of the State i.e. army, navy and air force. Thus, it is the duty of the executive to defend the State against foreign aggression and can wage a war against another State.
3) DIPLOMATIC FUNCTIONS
        The relations of a State with another State are must in today's modern world as every State is independent and sovereign. These relations are diplomatic which are headed by the foreign ministers or the secretary of the State for foreign affairs. These relations which include different treaties and agreements are conducted through diplomatic representatives appointed by the foreign department.
4) LEGISLATIVE FUNCTIONS
       Basically law making is the task of the legislature but in modern States the executive also takes part in the process depending on the form of government and structure of the state. It is greater in the cabinet form of government than in the presidential form of government. Furthermore, the executive has the power to summon, adjourn, prorogue and even dissolve the legislature and call for new elections.
5) FINANCIAL FUNCTIONS
        The financials works of any State are carried out by the executive as it collects and spends large sums of money. A particular department prepares an annual budget, submits it to the legislature and after their approval allocates the money accordingly.


c) JUDICIARY
         Judiciary is the third organ of the government which interprets the statutory law of a State.
IMPORTANCE OF THE JUDICIARY
        Judiciary has a great and vital importance. Henry Sidgwick has rightly emphasized that "the importance of judiciary in political construction is rather profound than prominent. On the one hand, in popular discussion of forms and changes of government, the judicial organ often drops out of sigh; on the other hand, in determining a nation's rank in political civilization, no test is more decisive than the degree in which justice, as defined by the law, is actually realized in its judicial administration, both as between one private citizen and another, and as between private citizens and members of the government." (Reference from book "Political Science Theory and Practice")
        Judiciary performs several functions which are very much necessary for peace and prosperity in the State. It protects the rights of all the citizens. It controls crimes to a great extent by punishing the guilty. Judicial system is actually the security for innocent people. Moreover, Justice is the foundation of the states.
FUNCTIONS OF JUDICIARY
      The judiciary in current world performs certain essential functions. They are:
1) SETTLEMENT OF DISPUTES
       The major function of the judiciary is to resolve the conflicts among individuals, groups etc, by applying the existing laws. The cases may be civil or criminal depending upon its nature. Thus, judiciary applies the laws, makes the right decisions, punishes crimes and protects the innocent from injury.
2) INTERPRETATION OF LAWS
        Sometimes the law is not clear due to certain possible reasons. In such cases or incidents the judges came forward and interpret the law. The judge who gives a decision on a particular case becomes a precedent for other judges or for later subsequent cases.   


Comments

Popular posts from this blog

How To Deal With A License Suspension In Florida

Whose Fault Is It? Determining Liabilty in a Serious Car Accident

Wellbeing and Welfare Powers of Attorney