SEPARATION

Separation of Powers

Separation of Powers

'Kingship, the earliest government, inevitably becomes corrupt and passes into tyranny. The best men in the community then unseat the tyrant and institute an aristocracy. But their descendants are corrupted by the opportunity to gratify their desires and so become oligarchs. Thereupon the community overthrows the oligarchy and institutes a democracy. Next, the people are debauched by evil leaders, and the collapse of the society brings in a monarch once more.'

Some suggest that the theory of the separation of powers grew out of the older theory of mixed monarchy as expressed by the Greek historian of Rome Polybius who's idea was simple. Instead of having an aristocracy, monarchy or democracy, a combination of any two of these forms of government would suffice to escape this vicious cycle. However, the theory of the separation of powers as put forward by Montesquieu deals with the branches of government rather than the type of government.

Lord Acton said that 'Power tends to corrupt and absolute power corrupts absolutely'. Therefore, in order to eradicate the corruption of absolute power, Montesquieu identified three branches of government between which power should be allocated and separated: the executive which takes action to implement the law, defend the nation, conduct foreign affairs and administer internal policies; the legislative which makes law, and the judiciary which applies the law to determine disputes and punish criminals. According to the doctrine of the separation of powers, the executive cannot make law. Neither can the legislative determine disputes or any of the three branches exercise the power of the other. Nor can any one person be a member of any two of the branches. This is in order to protect our liberty as according to Montesquieu:

'When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty... there is no liberty if the powers of judging is not separated from the legislative and executive... there would be an end to everything, if the same man or the same body... were to exercise those three powers.'

Indeed that might be true and rather desirable. To achieve a pure separation of powers in practice however is almost impossible. The closest constitutional arrangements to the doctrine of separation of powers are found in the United States of America where the Congress is elected separately from the President, the President can veto legislation passed from Congress if one third of the house agrees with him and the Supreme Court can declare unconstitutional the acts of both Congress and President.

The constitution of the United States is arranged in such a way as to allow a complex system of checks and balances between the three branches of government while maintaining a clear separation of powers between them.

On the other side of the Atlantic however - perhaps due to the history of the evolution of the British constitution and the absence of a codified constitutional text - the emphasis are more on checks and ...