term paper on separation of power by chinedu

ABSTRACT This doctrine separation of powers attracts almost universal support as a central element of the liberal constitution designed to protect citizens against governmental power. However, there is little agreement on, or analysis of the precise institutional requirements of the doctrine or the method by which the claimed benefit is achieved. We set out a simple model of the interaction between citizens, the legislature and executive to illustrate that the functional division of powers can operate systematically against the interest of the citizen. This case provide the basis both for taxonomy of distinct senses of the separation of powers, and for the revisionist claim that there is a general liberal presumption against the functional separation of powers. INTRODUCTION The term "trias politica" or "separation of powers" was coined by Charles-Louis de Secondat, baron de La Brède et de Montesquieu, an 18th century French social and political philosopher. His publication, Spirit of the Laws, is considered one of the great works in the history of political theory and jurisprudence, and it inspired the Declaration of the Rights of Man and the Constitution of the United States. Under his model, the political authority of the state is divided into legislative, executive and judicial powers. He asserted that, to most effectively promote liberty, these three powers must be separate and acting independently. Separation of powers, therefore, refers to the division of government responsibilities into distinct branches to limit any one branch from exercising the core functions of another. The intent is to prevent the concentration of power and provide for checks and balances. The traditional characterizations of the powers of the branches of American government are: * The legislative branch is responsible for enacting the laws of the state and appropriating the money necessary to operate the government. * The executive branch is responsible for implementing and administering the public policy enacted and funded by the legislative branch. * The judicial branch is responsible for interpreting the constitution and laws and applying their interpretations to controversies brought before it. The guarantee of liberty in any given government to the people is the practice of the theory of separation of powers. This theory according to Gettel, implies that, the three functions of the government should be performed by different bodies of persons, each department (the legislature, the executive and judiciary) limited to its own sphere of action, and within that sphere should be independent and supreme. The theory of separation of powers is predicated on the premise that, if a single group holds all the three powers of the government, they are bound to have unlimited powers. They could prescribe any law arresting say, criminals. Because, they exercise unlimited powers could pronounce the criminals guilty without recourse to fair trial. It is through the separation of powers that any given group cannot at the same time prescribe, execute and adjudicate in any case. Otherwise, there will be no justice. That is why, it is only through the combination of all these departments that a government can use force especially in a military rule. The theory of separation of powers means that, a different body of persons is to administer each of the three departments of government (The legislative, executive and judiciary). And that, no one of them is to have a controlling power over either of the others. Such separation is necessary for the purpose of preserving the liberty of the individual and for avoiding tyranny. The term Separation of powers originated with Baron de Montesquieu, a French enlightenment writer. Nevertheless, the actual separation of powers amongst different branches of government can be traced to ancient Greece. The framers of the American constitution decided to base the governmental system on this theory of separation of powers whereby the legislature, executive and judiciary branches will be separate from each other. This gave rise to the idea of checks and balances on each other. As a result, no one branch can gain absolute power or abuse the power given to them like in despotic military regimes. The model of separation of powers was first developed in ancient Greece and gained recognition by the Roman Republic as part of the unmodified constitution of the Roman Republic. In this model, the state is divided into branches, each with separate and independent powers and areas of responsibility in such a way that no branch has more powers than the other branches. This also, forms the concept of separation of church and state as is the practice in many countries of the world depending on the applicable legal structures and the prevailing views towards the exact roles of religion in the given society. DEFINITION OF SEPARATION OF POWER The constitutional principle that limits the powers vested in any person or institution. It divides governmental authority into three branches: legislative (Parliament or Senate), executive (President or Prime Minister and the Cabinet), and judiciary (Chief Justice and other judges). It can also be said to be a fundamental principle of the government, whereby powers and responsibilities are divided among the legislative branch, executive branch and judicial branch. ORIGIN OF THE CONCEPT It must be noted that, the doctrine of separation of powers has been developed over the centuries. The evolution of the concept of separation of powers can be traced to the British Parliaments gradual assertion of power and resistance to the royal decrees during the 14th century. James Harrington, an English scholar was one of the first modern philosophers to analysis the doctrine of separation of powers. Harrington in his essay, Common Wealth of Oceana (1656), built upon the works of earlier philosophers like Plato, Aristotle and Machiavelli, described a utopian political system that included a separation of powers. In his second Treatise on Government (1690), John Locke an English Political theorist, gave the concept of separation of powers more refined treatment. John Locke argued that legislative and executive powers were conceptually different. But that it was necessary to separate them in government institutions. However, in Lockes conception, judicial power played no significant role. The modern idea of the doctrine of separation of powers was vigorously explored in the Spirit of Laws (1748) by Baron de Montesquieu a French Political writer in his work. He based his exposition on the British constitution of the first part of the 18th century the way he understood it. As a doctrine, it has been interpreted as, Where an individual occupies the position of both the executive and the legislature, there is the danger of the legislature enacting oppressive laws which the executive will administer to attain its own ends. Montesquieu in the process outlined a three way division of powers in England amongst the parliament, the king and the courts, even though such a division were not in existence at that time. Montesquieu apparently believed that the stability of the English government was due to this practice of separation of powers despite the fact that he did not use the word separation. It must be realized that Plato, Aristotle, Harrington, Locke, Montesquieu and other commentators saw the concept of separation of powers as a way to eliminate the arbitrary powers to check dictatorial tendencies. One condition of liberty is the separation of the legislature from the executive, and the existence of an independent and impartial judiciary. It is also as a result of this that, Montesquieu regarded the separation of powers as an essential safeguard of liberty. According to him, there is no liberty if the judiciary power be not separated from the legislative and executive. That is why according to Gettel, this doctrine implies that the three functions of the government should be performed by different bodies of persons, each department limited to its own sphere of action, and within that sphere should be independent and supreme. Hence, separation of powers is presently understood to mean that, none of the legislative, executive and judicial powers is able to interfere with the others. For example, the Judges should be independent of the executive and legislature in theory. Or that the same persons should not hold posts in more than one of the three branches. For example, that one branch of government should not exercise the functions of another. That is, the executive should not n make laws which fall within the purview of the legislature. That be as it may, closely related to this theory is the doctrine of checks and balances. This doctrine states that, governmental power should be controlled by overlapping authority within the government and by giving citizens the right to criticize state actions and remove officials from office. But the big question is, what happens in despotic military regimes and, dictatorial civilian regimes or in parliamentary, systems where the cabinet minister must be a member of either houses of parliament as we have seen in Mymmar (Burma), Nigeria, before 1966 Coup, Thailand, Chile, China, Union of Soviet Socialist Republics (USSR) before it crumbled in 1989 with the introduction of glassnote and prestorica by Govbachev or how about where there is one party dominance in a political system? The whole argument in favour of separation of powers will be meaningless as well as hopeless in the above situation or circumstances. Nevertheless, it must be stated that, like in Italy and in most democracies, separation of governmental powers in their constitutions has a separate constitutional courts to review cases that raise constitutional issues. Such democratic countries create such mechanisms to ensure judicial independence from legislative and executive officials. However, some scholars were of the opinion that, creating an extreme separation of powers can make government less effective because, it increases the possibility of governmental paralysis. Where the leaders in different branches of the government disagree about fundamental objectives, the country‘s official business will come to a standstill. SEPARATION OF POWERS IN NIGERIA IN THEORY AND PRACTICE It is interesting to note that, the 1999 constitution of the Federal Republic of Nigeria, separation of powers is a fundamental constitutional principle which spells the roles and duties of the three arms of the government. These principles are enunciated in the constitution as follows: Part I Section 231(1), states that, the appointment of a person to the office of Chief Justice of Nigeria shall be made by the president on the recommendation of the National Judicial Council subject to the confirmation of such appointment by the Senate. Part I Section 231(2), states that, the appointment of a person to the office of a Justice of the Supreme Court shall be made by the president on the recommendation of the National Judicial Council subject to confirmation of the appointment by the Senate. Section 232 (2) states that, in addition to the Jurisdiction conferred upon it by sub-section(1) of this section, the Supreme Court shall have such original jurisdiction as may be conferred upon it by any Act of the National Assembly. CHECKS AND BALANCES The essence of this concept is to ensure the monitoring of the three arms of government, namely, the legislature, executive and judiciary. This is a mechanism that prevents any tendency on the part of any organs of government to go beyond its constitutional limit. It contains an express injunction to preserve the boundaries of the three broad powers it grants, nor does it expressly enjoin maintenance of a system of checks and balances. Yet, it does grant to three separate branches the powers to legislate, to execute, and to adjudicate, and it provides throughout the document the means by which each of the branches could resist the blandishments and incursions of the others. The Framers drew up our basic charter against a background rich in the theorizing of scholars and statesmen regarding the proper ordering in a system of government of conferring sufficient power to govern while withholding the ability to abridge the liberties of the governed. THE THEORY ELABORATED AND IMPLEMENTED When the colonies separated from Great Britain following the Revolution, the framers of their constitutions were imbued with the profound tradition of separation of powers, and they freely and expressly embodied in their charters the principle. But the theory of checks and balances was not favored because it was drawn from Great Britain, and, as a consequence, violations of the separation of powers doctrine by the legislatures of the States were common place events prior to the convening of the Convention. As much as theory did the experience of the States furnish guidance to the Framers in the summer of 1787. The doctrine of separation of powers, as implemented in drafting the Constitution, was based on several principles generally held, the separation of government into three branches, legislative, executive, and judicial, the conception that each branch performs unique and identifiable functions that are appropriate to each and the limitation of the personnel of each branch to that branch, so that no one person or group should be able to serve in more than one branch simultaneously. To a great extent, the Constitution effectuated these principles, but critics objected to what they regarded as a curious intermixture of functions, to, for example, the veto power of the President over legislation and to the role of the Senate in the appointment of executive officers and judges and in the treaty making process. It was to these objections that Madison turned in a powerful series of essays. Madison recurred to the celebrated Montesquieu, the oracle who is always consulted, to disprove the contentions of the critics. This essential precaution in favor of liberty, that is, the separation of the three great functions of government had been achieved, but the doctrine did not demand rigid separation. Montesquieu and other theorists did not mean that these departments ought to have no partial agency in, or control over, the acts of each other, but rather liberty was endangered where the whole power of one department is exercised by the same hands which possess the whole power of another department. That the doctrine did not demand absolute separation provided the basis for preservation of separation of powers in action. Neither sharply drawn demarcations of institutional boundaries nor appeals to the electorate were sufficient. Instead, the security against concentration of powers consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. Thus, ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. SUMMARY The Theory of Separation of Powers means that, a different body of persons is to administer each of the three departments of government. That no one of them is to have a controlling power over either of the others. For the purpose of preserving, the liberty of the individual and for avoiding tyranny. The separation of power doctrine represents the belief that government consists of three basic and distinction functions, each of which must be exercised by different branch of government, so as to avoid the arbitrary exercise of power by any single ruling body. Realizing that mere textual separation would be insufficient to guard against aggrandizement by the respective branches a system of check and balances was developed, by which the three arms of government can resist encroachment. CONCLUSION In conclusion, separation of powers appears not to operate any legal restriction on power but, it provides the basis for important principles which the law protects such as independence of the judiciary. It provides a basis for the adoption of structure processes and control which protects liberty now and in the future. It guards against broad spectrum of the ills like absurd judgment avaricious and ambitious self-serving behaviour and inefficient performances of functions. As systems of government evolves, new conventions, political practices and event there is need to devised legal rules to protect the liberty of the people. The doctrine of separation of powers therefore provides the justification for these measures and helps to determine their nature and scope. Apparently, there is the need to monitor our political system, be vigilant about our liberty and advocate new measures when the liberty is threatened. It is suggested therefore that, the state should adhere to the theory of separation of powers as is the practice in other democratic states of the world taken account of our historical past and the urgent need to modernize where necessary. Any dictatorial tendency should be nibbed on the bud. Secondly, it will help to dispense with executive usurpation of powers, check corruption of elected officials and manipulation of electoral processes. RECOMMENDATION We therefore recommend that separation of power should be implemented at the different realms of government. In a bid to forestall tyranny and guarantee effective independent of the separate arms of government. REFERENCES Appadorai, A. (2003). The Substance of politics. New Delhi: Oxford University Press. Basic Concepts: Nation: Sovereignty, Authority Sources of Authority, Legitimacy, Influence Power, Game theory, Political Obligation.Blackstone (1765). Commentaries on the Laws of England, Vol. 1 pp. 146 & 269. Chaturvedi, A. K. (2006). Dictionary of Political Science. New Delhi: Academic Publishers. Federalist(1788). Essay XLVII FRN (1999). The 1999 Nigerian Constitution. Lagos: Federal Government Press. Hamilton, J. Jay and J. Madison (n.d.) The Federalist, „Everyman Library‟, Dent.Ivor, Jennings: The Law and the Constitution; P.28 Jaja, Jones M. & Aba-Erondu, Nnamdi (2000). Fundamentals of Government and Political Science. Owerri: Springfield Publishers Ltd. Kumokou, I. (2003). Nigeria, the making of a Nation. Anthropological Brief Port Harcourt: Ideal Publishers. Montesquieu, C. L. (1949). The Spirit of Laws, 2nd ed. Hafher. Montesquieu, Espirit Des Lois, Book Xl, Chapter what is the Practice in today‘s World? Or The Theory of Separation of Powers: A Critique. VI: (no. ed.: 1749: VOL. I, P. 219. Osai, O. Jason (2007). Introduction to Political Science, A Nigerian Perspective. Port Harcourt: Osai Int‘l Publishers Ltd. Sabine, G. H. A History of Political Theory, P. 559. Sachdeva & Gupta (1980). A Simple Study of Political Science Theory. Delhi; Ajanta Prakashan: 1980).The Tide Newspaper (Wed. Dec. 8, 2010).Vol. 12 No. 200. Willoughby, W. F. (1936). The Government of Modern States, Appleton Century