Separation of Power and Check and Balance


Administrative law deal with the nature of the power of the administration and the manner in which the power are exercised but does not go into an examination of the content of those exercised powered.

Administrative law is that branch of public law which deals with organization and powers of administrative and quasi- administrative agencies and prescribes principle and rules by which official actions reached and reviewed in relation to individual life, liberty and property.

The theory of separation of power has engaged in several forms at different periods, it was originated by Aristotle and it was developed by Locke. In the 16th and 17th centuries, French Philosopher John Bodin and British politician locke respectively had expressed their views about the theory of separation of power. But, the rule (Or doctrine) of separation of power was propounded for the first time by the French Jurist, Montesquieu. He formulates this theory in his famous book “The spirit of laws”, published in 1718. According to him, there are three main organs of the government in a state.

  1. The legislature
  2. The judiciary, and
  3. The executive

[1]. S. P. Sathe, Administrative law, LexisNexis Butterworths, Seventh Edition, Page No.8

[2]. B. P. Acharya, Administrative Law, Pairavi books and stationery centre First edition, Page No.15



Meaning of Separation of Power and Check and Balance

Montesquieu states in De L’Esprit des lois (1748) that when the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be not liberty… Again, there is no liberty, if the judicial power be not separated from the legislative and executive where it joined with the legislative, the life and liberty of the subject would be exposed to arbitory control; for the Judge might behave with violence and oppression. There would bean end to everything, were the same man, or the same body… to exercise those three powers. (Book XI, chapter 6, quoted in vile 1967)

Montesquieu, a French scholar, conceived the principle of separation of power. He found that concentration of power in one person or a group of persons resulted in tyranny. He therefore, felt that government power should be vested in three different organs, the legislature, the executive and the judiciary. The principle can be stated as follow.

  1. Each organ should be independent of the others;
  2. No one organ should perform function that belongs to the other.

According to this theory of separation of powers, those three powers and functions of the Government in a free democracy must be kept separate organs of the government. One organ of the government should not exercise the function of the other two organs. In other words,

  1. The legislature cannot exercise the power of the Executive or Judiciary.
  2. The Executive cannot exercise the power of the legislature or Judiciary.
  3. The Judiciary cannot exercise the power of the legislature or Executive.

 

[1]. Peter Leyland and Gordon Anthony, Textbook on Administrative Law, Oxford University Press, fifth edition, Page No.21

[2] . S. P. Sathe, Administrative law, LexisNexis Butterworths, Seventh Edition, Page No.20

According to Berkley and Rouse:

Each branch of government is assigned a particular task; Legislature makes the law, the Executive branch administers the law, and the judicial system enforces and interprets the law. The separation of power concept operates in tandem with the limited government powers. Separation of power doctrine restrains one branch from usurping the power of the others; the limitation of government powers inhibits the national government from overpowering the right of the state and restricts the intrusion of government into private lives.

Wade and Phillips say that the doctrine of separation of power means the following three things:-

  1. The same set of person should not compose more than one department of the three departments.
  2. One department should not exercise the function of the other two documents.
  3. One department should not control, or interfere with the work of the other two departments

According to the above statement, we can say that the Separation of powers means the three branch of the government are institutional autonomous, functional non-intervention & personal nonalliance between and among each other. As per the above description a pure form of the separation of powers doctrine has some features: (i) the function of government are to be divided into the Legislative, the Executive, and the  Judiciary; (II) Different functions are to be vested in separate and appropriate institutions; (III) the members of one institution should not be member of any other institution; and (IV) the function of one institution should not encroach on the functions of another.

This doctrine of the ‘separation of power’ develop as a political theory to prescribe what ought to happen in relation to the distribution of powers within a constitution. Essentially it suggest that the abuse of power will be limited by distributing different functions, legislative, executive and judicial, between governmental institutions to prevent any one of them from predominating, thus preventing power from being concentrated in a single person or body.[3]

 

2.2 Doctrine of Separation of Power in Nepalese context.

In context of Rana resime, the doctrine of separation of power was not used properly. It is so because Rana prime minister possage the right of law making, law interpreting and law enforcement. So the three organ of government was not there at that time. But in Interim Sashan Bidhan 2007, there was a provision of three organ of government.

After the promulgation of constitution of constitution of 2007, the three organ of government has different right as today i. e law making body as legislative, law enforcement body as executive and law interpretive body as Judiciary. Similarly, after the promulgation of constitution of kingdom of Nepal 2047, The sovereign power are vested upon people and the doctrine of separation of power was establish to protect and promote the interest of people and liberty of Nepalese people.

[1]. George Berkley and John Rouse (1997), the Craft of public Administration, 7th edition, Chicago: Brown & Benchmark, page no 14

[2]. B. P. Acharya,  Administrative Law,  Pairavi books and stationery centre,  First edition,  Page No. 88-89

[3]. Peter Leyland and Gordon Anthony, Textbook on Administrative Law, Oxford University Press, fifth edition, Page No.21-22

Doctrine of Separation of Power and its effects on Administrative law

 Administrative law is totally opposite to the Rules/Doctrine of separation of power. Both aim at the maximum protection of the rights and liberties of individuals. The doctrine of separation of power resist to delegated legislation. But administrative law’s main province is delegated legislation, Judicial Review, adjudication and decentralization separation of power does not accept to the delegated of power.

Separation of power not only provides each branch with somewhat different authority over public administration but may also frustrate coordination among them. Basic political science tells us that chief executive, legislature and courts are responsive to different constituencies, pressure and constrains. All three branches have legitimate interest in public administration. However, they often differ with regard to what they think agencies should do and how they ought to do it.[1]

Separation of power control to the state organ’s authority and resist to the arbitrary and capricious power. Administrative law does control to Administrative authority and protection government to people. So Administrative law and separation of power with check and Balance Future is golden-bright.

The logic behind this doctrine is of Polarity (the tendency of a lodestone rather than strict classification meaning there by that the centre of authority must be dispersed over a wide area to avoid absolutism) the acceptance of in the same manner. Prof. Wade, writes that the objection of Montesquieu was against accumulation the act and monopoly rather interaction.

The separation of power is not in essence concerned with the allocation of functions as such. Its primary purpose … is the prevention of the arbitrary government, or tyranny, which may arise from the concentration of power… . This point is perhaps most clearly appreciated if we consider what has become one of the most complex areas for separation of powers analysis; the organization, and control, of administrative authorities and agencies.

Public administrators make rules (Legislation), implement these rules (an executive function), and adjudicate questions concerning their application and executions ( a judicial function). The collapsing of the separation of power has been well recognized. [2]

Institutions of Government

 

 

 

 

 

 

 

 

 

Legislature can do:

 

Executive can do:

 

Judiciary can do:

 

 

Legislature

 

 

To make laws

Ø  Veto Legislation

Ø  Recommend leg.

 

 

Ø Review legislature acts

 

 

Executive

 

 

Ø Confirm executive appointments (senate)

Ø Override Executive Veto

 

 

To enforce the Law

 

 

Ø Review executive acts

Ø Issue injunctions mandamus strictures

 

JudiciaryØ Impeach

Ø Create or Eliminate court

Ø  Grant pardons

Ø  Nominate Judges

To interpret laws

 

Sources: Keneth Janda, Jeffrey M. Berry, and Jerry Goldamnt, (1992), the Challenge of Democracy Government of America, 3rd Edition, Boston; Houghton Mifflin company, at 85

The doctrine of separation of powers was championed as a device for limiting governmental power by taking from the monarch his ancient law making power and vesting it in a legislature, Montesquieu[1] argued, For example that under an oppressive and despotic government, which concentrated all power into a single hand, liberty would never be attained by the people.