SEPARATION OF POWERS

Meanings:
The separation of powers is widely regarded as one of the pillars of a liberal
constitutional democracy. The separation of powers attempts to prevent
power being concentrated in a single person or body. It provides mechanisms
to make it difficult for any single group to group to dominate and to ensure
that government action requires the cooperation of different groups, each of
which helps to keep the others within bounds.
A widely accepted division of power is based on the functions of government.
The best-known version is that of Montesquieu who divided government into
three branches- the legislature, the executive and the judiciary. The
legislature makes the laws, the executive enforces and puts the law into
effect, and the judiciary settles disputes and imposes sanctions for breaking
the law.
According to the doctrine of separation of powers, each branch has different
functions but each uses its power to check and control abuse by the other
branches. Conversely, within the limits of its power, each branch should be
independent of the others.

2. The separation of powers in the US

The Constitution contains no provision explicitly declaring that the powers of
the three branches of the federal government shall be separated.
The first article of the Constitution says ``all legislative powers...shall be
vested in a Congress. The second article vests ``the executive power... in a
President.`` The third article places the ``judicial power of the United States
in one Supreme Court and ``in such inferior Courts as the Congress... may
establish.
Separation of powers serves several goals. Separation prevents
concentration of power (seen as the root of tyranny) and provides each
branch with weapons to fight off encroachment by the other two branches.
As James Madison argued in the Federalist Papers (No. 51), ``Ambition must
be made to counteract ambition. Clearly, our system of separated powers is
not designed to maximize efficiency; it is designed to maximize freedom.
2.1 Legislative: Congress has the sole power to legislate for the United
States. Under the non delegation doctrine, Congress may not delegate its

lawmaking responsibilities to any other agency. Congress delegated the

power to prescribe judicial procedure to the courts; it was contended that
Congress had thereby unconstitutionally clothed the judiciary with legislative
powers. While Chief Justice John Marshall conceded that the determination of
rules of procedure was a legislative function, he distinguished between
important subjects and mere details. Marshall wrote that ``a general
provision may be made, and power given to those who are to act under such
general provisions, to fill up the details.
2.2 Executive: Executive power is vested, with exceptions and
qualifications, in the President of the United States. By law, the president
becomes the Commander in Chief of the Army, Navy, And Militia of several
states when called into service. The president has power ``.... with the
Advice and Consent of the Senate to make treaties and appointments of
office, receive Ambassadors and Public Ministers, and ``... take care that the
laws be faithfully executed. By using these words, the Constitution does not
require the president to personally enforce the law; rather, officers
subordinate to the president may perform such duties. The Constitution
empowers the president to ensure the faithful execution of the laws made by
Congress. Congress may itself terminate such appointments by
impeachment, and may restrict the president.
Congress often writes legislation to restrain executive officials to the
performance of their duties, as authorized by the laws Congress passes. It
was the framers decision that the legislative power of the federal
government be exercised in accord with a single, finely wrought, and
exhaustively considered procedure. This procedure is an integral part of the
constitutional design for the separation of powers.
The president exercises a check over Congress through his power to veto
bills, but Congress may override any veto (excluding the so-called pocket
veto) by a two-thirds majority in each house. When the two houses of
Congress cannot agree on a date for adjournment, the president may settle
the dispute. Either house or both houses may be called into emergency
session by the president. The Vice President serves as president of the
Senate, but he may only vote to break a tie.
2.3 Judicial: Courts check both the executive branch and the legislative
branch through judicial review. This concept is not written into the
Constitution, but was envisioned by many of the Constitutions framers. The

Supreme Court later established a precedent for judicial review in Marbury v.

Madison.
The power to review the constitutionality of laws may be limited by
Congress, which has the power to set the jurisdiction of the courts. The only
constitutional limit on Congress power to set the jurisdiction of the judiciary
relates to the Supreme Court.

3. The separation of powers in the UK

The separation of powers has important but limited application in the UK.
The relationship between the legislature and the executive is close. On the
other hand, the separation of powers between the judiciary and the
legislative and executive branches of government is a strong principle in the
UK system.
3.1 Parliament and executive: There is a weak separation between the
executive and the legislature. By convention, ministers are also members of
Parliament. There is an overlap of functions since the executive is engaged in
lawmaking. In practice, most English legislation consists of delegated or
secondary legislation made by ministers and other bodies outside Parliament
under powers conferred by Act of Parliament.
3.2 Parliament and judiciary: The common law system in the UK means
that the judges are also lawmakers and their function in not confined to
interpreting laws made by others. There are certain checks and balances,
although these depend on the judges restraining themselves. One such
check is the judges duty to follow precedent so as to limit the possibility of
making up new law according to the judges personal preferences. Another
check is the fact that the judges must make their law only in the context of
the particular case before them.
3.3 The executive and the judiciary: The executive sometimes makes
judicial decisions when it decides for example whether a given person is
entitled to a welfare payment or a school place. Indeed, ministers are often
required to decide appeals against government decisions, even those in
which their own department has and interest. Also, it is important for judicial
independence that judges have no duty to advise the executive. However,
judges are sometimes appointed to carry out investigations or inquiries into
allegations against the government or significant incidents. This carries the
risk of compromising the independence of the judiciary by making them
appear to be involved in politics.

4. The Separation of Powers in Bangladesh:

4.1 Parliament and Executive:

4.2 Parliament and Judiciary:

4.3 Executive and Judiciary

5. Conclusion: