CHANAKYA NATIONAL LAW UNIVERSITY

The final draft for the fulfilment of project of Political Science

On

Separation of Power: Basic Principle of Democracy

Submitted to:-Dr.S.P.Singh Submitted by:-Ankur Sharma

Faculty of Political Science Roll no.1515

1st year B.A.L.L.B.(Hons.)

1 | Page
TABLE OF CONTENTS
Acknowledgement................................................................................................. 3
Declaration............................................................................................................ 4
Research Method................................................................................................... 5
Aims & Objectives.............................................................................................. 5
Hypothesis.......................................................................................................... 5
Research methodology....................................................................................... 5
Introduction........................................................................................................... 6
The impacts of
separation................................................................................................................
....15
The
branches
32.
Equity is
maintained
34.
Conclusion .......................................................................................................... 37
Bibliography......................................................................................................... 38

2 | Page
ACKNOWLEDGEMENT

Writing a project is one of the most difficult academic challenges I

have ever faced. Though this project has been presented by me but
there are many people who remained in veil, who gave their support
and helped me to complete this project.

First of all I am very grateful to my subject teacher Dr.S.P.Singh

without the kind support of whom and help the completion of the
project would have been a herculean task for me. He took out time
from his busy schedule to help me to complete this project and
suggested me from where and how to collect data.

I acknowledge my friends who gave their valuable and meticulous

advice which was very useful and could not be ignored in writing the
project. I want to convey most sincere thanks to my faculties for
helping me throughout the project.

3 | Page
DECLARATION

I hereby declare that the work reported in the BA LL.B (Hons.) Project Report entitled
Separation of powers : Basic Principles submitted at Chanakya National Law University,
Patnais an authentic record of my work carried out under the supervision of Dr.S.P.Singh. I
have not submitted this work elsewhere for any other degree or diploma. I am fully
responsible for the contents of my Project Report.

4 | Page
RESEARCH METHOD

AIMS & OBJECTIVES

The researcher will do the research on the topicSeparation of Powers to know the effects of
this separation and the basic aim of this separation .

HYPOTHESIS
1.Separation of power justifies the basic aim of the democracy.
2.No branch is dictatorial over any of them.

RESEARCH METHODOLOGY
The researcher will emphasize and use the doctrinal method to do this project.

5 | Page
INTRODUCTION
The separation of powers, often imprecisely and metonymically used interchangeably with
the trias politica principle,is a model for the governance of a state (or who controls the state).
The model was first developed in ancient Greece. Under this model, thestate is divided into
branches, each with separate and independent powers and areas of responsibility so that
the powers of one branch are not in conflict with the powers associated with the other
branches. The typical division of branches is into a legislature, anexecutive, and a judiciary.
It can be contrasted with the fusion of powers in a parliamentary system where the executive
and legislature (and sometimes parts of the judiciary) are unified.1

Separation of powers, therefore, refers to the division of 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.

Aristotle first mentioned the idea of a "mixed government" or hybrid government in his
work Politics where he drew upon many of the constitutional forms in the city-states of
Ancient Greece. In the Roman Republic, the Roman Senate, Consuls and
the Assembliesshowed an example of a mixed government according to Polybius (Histories,
Book 6, 1113).

1https://web.stanford.edu/~ldiamond/iraq/DemocracyEducation0204.htm

6 | Page
Early modern bipartite systems
John Calvin (15091564) favoured a system of government that divided political power
between democracy and aristocracy (mixed government). Calvin appreciated the
advantages of democracy, stating: "It is an invaluable gift if God allows a people to elect its
own government and magistrates. In order to reduce the danger of misuse of political power,
Calvin suggested setting up several political institutions which should complement and
control each other in a system of checks and balances. In this way, Calvin and his followers
resisted political absolutism and furthered the growth of democracy. Calvin aimed to protect
the rights and the well-being of ordinary people.] In 1620, a group of English
separatist Congregationalists and Anglicans (later known as the Pilgrim Fathers)
founded Plymouth Colony in North America. Enjoying self-rule, they established a bipartite
democratic system of government. The "freemen" elected the General Court, which
functioned as legislature and judiciary and which in turn elected a governor, who together
with his seven "assistants" served in the functional role of providing executive
power. Massachusetts Bay Colony (founded 1628), Rhode
Island (1636), Connecticut (1636), New Jersey, and Pennsylvania had similar constitutions
they all separated political powers. (Except for Plymouth Colony and Massachusetts Bay
Colony, these English outposts added religious freedom to their democratic systems, an
important step towards the development of human rights.) Books like William
Bradford'sHistory of Plymoth Plantation (written between 1630 and 1651) were widely read
in England.So the form of government in the colonies was well known in the mother country,
including to the philosopher John Locke (16321704). He deduced from a study of the
English constitutional system the advantages of dividing political power into the legislative
(which should be distributed among several bodies, for example, the House of Lords and
the House of Commons), on the one hand, and the executive and federative power,
responsible for the protection of the country and prerogative of the monarch, on the other
hand. (The Kingdom of England had no written constitution.)

Montesquieu's tripartite system

Montesquieu

The term tripartite system is ascribed to French Enlightenment political philosopher Baron de
Montesquieu.[9][10] In The Spirit of the Laws(1748), Montesquieu described the separation
of political power among a legislature, an executive, and a judiciary. Montesquieu's

7 | Page
 approach was to present and defend a form of government which was not excessively
centralized in all its powers to a single monarch or similar ruler. He based this model on
the Constitution of the Roman Republic and the British constitutional system. Montesquieu
took the view that the Roman Republic had powers separated so that no one could usurp
complete powerIn the British constitutional system, Montesquieu discerned a separation of
powers among the monarch, Parliament, and the courts of law.

Montesquieu did actually specify that "the independence of the judiciary has to be real, and
not apparent merely". "The judiciary was generally seen as the most important of powers,
independent and unchecked", and also was considered dangerous.

Checks and balances

To prevent one branch from becoming supreme, protect the "opulent minority" from the
majority, and to induce the branches to cooperate, government systems that employ a
separation of powers need a way to balance each of the branches. Typically this was
accomplished through a system of "checks and balances", the origin of which, like
separation of powers itself, is specifically credited to Montesquieu. Checks and balances
allow for a system-based regulation that allows one branch to limit another, such as the
power of the United States Congress to alter the composition and jurisdiction of the federal
courts. Both bipartite and tripartite governmental systems apply the principles of the
separation of powers to allow for the branches represented by the separate powers to hold
each other reciprocally responsible to the assertion of powers as apportioned by law. The
following example of the separation of powers and their mutual checks and balances for the
experience of the United States Constitution is presented as illustrative of the general
principles applied in similar forms of government as well.2

Legislative (Congress) Executive (President) Judicial (Supreme Court)

2 www.venice.coe.int/WCCJ/Rio/Papers/YEM_Supreme_Court_autotrans_E.pdf
2.

8 | Page
 Passes bills; has
broad taxing and
spending power;
regulates inter-state
commerce; controls
the federal budget; has
power to borrow money
on the credit of the
United States (may be
vetoed by President,
butvetoes may be
overridden with a two-
thirds vote of both
houses)
Has sole power
to declare war, as well
as to raise, support,
and regulate
the military.
Oversees,
investigates, and
makes the rules for the
government and its
officers.
Defines by law the
jurisdiction of the
federal judiciary in
cases not specified by
the Constitution
Ratification of
treaties signed by the
President and
gives advice and
consent to presidential
appointments to
the federal
judiciary, federal
executive departments,
and other posts (Senate
only)
Has sole power
of impeachment (House
of Representatives) and
trial of impeachments
(Senate); can remove
federal executive and
judicial officers from
office for high crimes
Is the commander-in-chief of Determines which
the armed forces laws Congress
intended to apply to
Executes the instructions of any given case
Congress.
Exercises judicial
May veto bills passed by review, reviewing the
Congress (but the veto may be constitutionality of
overridden by a two-thirds laws
majority of both houses)
Determines how
Executes the spending Congress meant the
law to apply to
authorized by Congress.
disputes
Declares states of emergency
Determines how a
and
law acts to determine
publishesregulations and executiv
the disposition of
e orders.
prisoners
Makes executive agreements
(does not require ratification) and Determines how a
law acts to compel
signs treaties (ratification
testimony and the
requiring approval by two-thirds of
production of
the Senate)
evidence
Makes appointments to the
federal judiciary, federal executive Determines how
laws should be
departments, and other posts with
interpreted to assure
the advice and consent of the
uniform policies in a
Senate. Has power to
top-down fashion via
maketemporary appointment
the appealsprocess,
during the recess of the Senate
but gives discretion
in individual cases to
Has the power to grant
low-level judges. The
"reprieves and pardons for
amount of discretion
offenses against the United
depends upon
States, except in cases of
the standard of
impeachment."
review, determined
by the type of case in
question.
9 | Page
 and misdemeanors

COMPARISON BETWEEN TRIPARTITE AND BIPARTITE NATIONAL SYSTEMS

Constitutions with a high degree of separation of powers are found worldwide. The UK
system is distinguished by a particular entwining of powers.A number of Latin
Americancountries have electoral branches of government.

Countries with little separation of power include New Zealand and Canada. Canada makes
limited use of separation of powers in practice, although in theory it distinguishes between
branches of government.

New Zealand's constitution is based on the principle of separation of powers through a

series of constitutional safeguards, many of which are tacit. The Executive's ability to carry
out decisions often depends on the Legislature, which is elected under the mixed member
proportional system. This means the government is rarely a single party but a coalition of
parties. The Judiciary is also free of government interference. If a series of judicial decisions
result in an interpretation of the law which the Executive considers does not reflect the
intention of the policy, the Executive can initiate changes to the legislation in question
through the Legislature. The Executive cannot direct or request a judicial officer to revise or
reconsider a decision; decisions are final. Should there be a dispute between the Executive
and Judiciary, the Executive has no authority to direct the Judiciary, or its individual
members and vice versa3.

Complete separation of powers systems are almost always presidential, although

theoretically this need not be the case. There are a few historical exceptions, such as
theDirectoire system of revolutionary France. Switzerland offers an example of non-
Presidential separation of powers today: It is run by a seven-member executive branch,
theFederal Council. However, some might argue that Switzerland does not have a strong

3
https://www.parlament.gv.at/ENGL/PERK/PARL/POL/.../index.shtml
2.

10 | P a g e
separation of powers system, as the Federal Council is appointed by parliament (but not
dependent on parliament) and although the judiciary has no power of review, the judiciary is
still separate from the other branches.

Typical branches
executive

legislative

judicial

auditory

electoral in which election commissions, tribunals or courts are maintained

separately from other branches

prosecutory
Three branches
Australia
Main article: Separation of powers in Australia

Australia does not maintain a strict separation between the legislative and executive
branches of governmentindeed, government ministers are required to be members of
parliamentbut the federal judiciary strictly guards its independence from the other two
branches. However, under influence from the American constitution, the Australian
constitution does define the three branches of government separately, and this has been
interpreted by the judiciary to induce an implicit separation of powers.State governments
have a similar level of separation of power, but this is generally on the basis of convention,
rather than constitution.

11 | P a g e
Austria

Hans Kelsen was the principal author of the tripartite Constitution of Austria.

The Constitution of Austria was originally written by Hans Kelsen, the prominent
constitutional scholar in Europe at that time. Kelsen was to serve as a part of the judicial
court of review for Austria as part of its tripartite government.

Czech Republi
Main article: Constitution of the Czech Republic

The Constitution of the Czech Republic, adopted in 1992 immediately before the dissolution
of Czechoslovakia, establishes the traditional tripartite division of powers[17] and continues the
tradition of its predecessor constitutions; The Czechoslovak Constitution of 1920, which
replaced the provisional constitution adopted by the newly independent state in 1918, was
modeled after the constitutions of establisheddemocracies such as those of the United
Kingdom, United States and France, and maintained this division,[18] as have subsequent
changes to the constitution that followed in 1948 with the Ninth-of-May Constitution,
the 1960 Constitution of Czechoslovakia as well as the Constitutional Act on the
Czechoslovak Federation of 1968.

France[edit]
Main article: Political system of France

According to the Constitution of the Fifth Republic, the government of France is divided up
into three branches:

Executive. This includes the popularly elected president as well as the prime
minister and cabinet. The French Prime minister is nominated by the president, but the
government is responsible to the lower house of the legislature, the National Assembly.

12 | P a g e
 Legislature. A bicameral legislature that includes the Senate (upper house) and
the National Assembly (lower house). The relationship between the two houses is
asymmetric, meaning that in case of dispute, the National Assembly has the final word
according to Article 45of the Constitution.

Judiciary. This includes the judicial and administrative orders. It also includes
a constitutional court.
Hong Kong

Hong Kong is a Special Administrative Region established in 1997 pursuant to the Sino-
British Joint Declaration, an international treaty made between Britain and China in 1984,
registered with the United Nations. Currently, Hong Kong has three branches of government
as codified in the Basic Law, its constitution, which largely preserved political structures of
the British colonial era, under the doctrine of one country, two systems:

Legislative Council legislature

Government executive

Judiciary (Court of Final Appeal and other courts and tribunals) judiciary

The Chief Executive, elected by a 1200-member Election Committee which, by design, is

dominated by pro-Beijing, pro-government members, is both head of the region and head of
government, and chairs the Executive Council which is composed of "unofficial" members
and government secretaries.4

The legislature consists of 70 members, 30 of whom are elected by undemocratic

"functional" consistencies formulated by design to strongly support government and Beijing
policy. Separation of power between executive and legislature is, therefore, weak.

www.dadalos.org/int/demokratie/demokratie/grundkurs3/.../gewaltenteilung.htm
2.

13 | P a g e
The courts frequently exercise an unrestrained power of judicial review of administrative
actions and also decide matters of constitutionality of legislation, though this power is
circumscribed under the power of the People's Republic of China's National People's
Congress to make final determinations as to interpretation. Hence, the separation of powers
is again structurally weak.

Leaders of the PRC have further undermined the principle by publicly calling on the three
branches to cooperate and be led by the executive.

India
Main articles: Constitution of India and Government of India

Parliament Legislative

Prime Minister, Cabinet, Government Departments & Civil Service Executive

Supreme Court Judicial

India follows a parliamentary system of government, which offers a clear separation of

powers. The judiciary branch is fairly independent of the other two branches. Executive
powers are vested with the President and Prime Minister, who are assisted by the Cabinet
Secretary and other Secretaries. But practically the separation of powers does not exist
between Legislature and Executive, as Prime Minister is elected by Parliament itself. Hence
in India, there is no separation between Legislature and Executive. All three branches have
"checks and balances" over each other to maintain the balance.

Italy
Main article: Constitution of Italy

In Italy the powers are separated, even though the Council of Ministers needs a vote of
confidence from both chambers of Parliament, that represents a large number of members
(almost 1,000).

Like every parliamentary form of government, there is no real separation between

Legislature and Executive, rather a continuum between them due to the confidence link. By
the way, the balance is protected by Constitution also between these two branches.] and,
obviously, between them and the judiciary branch, which is really independent.

Malaysia
Main articles: Constitution of Malaysia and Government of Malaysia

Parliament legislature

Prime Minister, Cabinet, Government Departments and Civil Service executive

Federal Courts and lower courts judiciary

Pakistan
Main articles: Constitution of Pakistan and Government of Pakistan

Parliament Legislative

14 | P a g e
 Prime Minister and his Cabinet Executive

5
Supreme Court and lower courts Judicial
United Kingdom
Main article: Separation of powers in the United Kingdom

Parliament legislature

Prime Minister, Cabinet, Government Departments & Civil Service executive

Courts judiciary

The development of the British constitution, which is not a codified document, is based on
this fusion in the person of the Monarch, who has a formal role to play in the legislature
(Parliament, which is where legal and political sovereignty lies, is the Crown-in-Parliament,
and is summoned and dissolved by the Sovereign who must give his or her Royal Assent to
all Bills so that they become Acts), the executive (the Sovereign appoints all ministers of
His/Her Majesty's Government, who govern in the name of the Crown) and the judiciary (the
Sovereign, as the fount of justice, appoints all senior judges, and all public prosecutions are
brought in his or her name).

Although the doctrine of separation of power plays a role in the United Kingdom's
constitutional doctrine, the UK constitution is often described as having "a weak separation
of powers" A. V. Dicey, despite its constitution being the one to which Montesquieu originally
referred. For example, in the United Kingdom, the executive forms a subset of the
legislature, as didto a lesser extentthe judiciary until the establishment of the Supreme
Court of the United Kingdom. The Prime Minister, the Chief Executive, sits as a member of
the Parliament of the United Kingdom, either as a peer in the House of Lords or as an
elected member of the House of Commons (by convention, and as a result of the supremacy
of the Lower House, the Prime Minister now sits in the House of Commons) and can

www.cecl.gr/RigasNetwork/databank/REPORTS/r4/GR_4_Katrougalos.html
2.

15 | P a g e
 effectively be removed from office by a simple majority vote. Furthermore, while the courts in
the United Kingdom are amongst the most independent in the world,] the Law Lords, who
were the final arbiters of judicial disputes in the UK sat simultaneously in the House of Lords,
the upper house of the legislature, although this arrangement ceased in 2009 when
the Supreme Court of the United Kingdom came into existence. Furthermore, because of the
existence of Parliamentary sovereignty, while the theory of separation of powers may be
studied there, a system such as that of the UK is more accurately described as a "fusion of
powers".

Until 2005, the Lord Chancellor fused the Legislature, Executive and Judiciary, as he was
the ex officio Speaker of the House of Lords, a Government Minister who sat in Cabinetand
was head of the Lord Chancellor's Department which administered the courts, the justice
system and appointed judges, and was the head of the Judiciary in England and Wales and
sat as a judge on the Judicial Committee of the House of Lords, the highest domestic court
in the entire United Kingdom, and the Judicial Committee of the Privy Council, the senior
tribunal court for parts of the Commonwealth. The Lord Chancellor also had certain other
judicial positions, including being a judge in the Court of Appeal and President of the
Chancery Division. The Lord Chancellor combines other aspects of the constitution,
including having certain ecclesiastical functions of the established state church, making
certain church appointments, nominations and sitting as one of the thirty-three Church
Commissioners. These functions remain intact and unaffected by theConstitutional Reform
Act. In 2005, the Constitutional Reform Act separated the powers with Legislative functions
going to an elected Lord Speaker and the Judicial functions going to the Lord Chief Justice.
The Lord Chancellor's Department was replaced with a Ministry of Justice and the Lord
Chancellor currently serves in the position of Secretary of State for Justice6.

The judiciary has no power to strike down primary legislation, and can only rule on
secondary legislation that it is invalid with regard to the primary legislation if necessary.

Under the concept of parliamentary sovereignty, Parliament can enact any primary
legislation it chooses. However, the concept immediately becomes problematic when the

www.encyclopedia.com ... Political Science and Government

16 | P a g e
question is asked; "If parliament can do anything, can it bind its successors?". It is generally
held that parliament can do no such thing.

Equally, while statute takes precedence over precedent-derived common law and the
judiciary has no power to strike down primary legislation, there are certain cases where the
supreme judicature has effected an injunction against the application of an act or reliance on
its authority by the civil service . The seminal example of this is the Factortame case, where
the House of Lords granted such an injunction preventing the operation of the Merchant
Shipping Act 1988 until litigation in the European Court of Justice had been resolved.

The House of Lords ruling in Factortame (No. 1), approving the European Court of Justice
formulation that "a national court which, in a case before it concerning Community law,
considers that the sole obstacle which precludes it from granting interim relief is a rule of
national law, must disapply that rule", has created an implicit tiering of legislative
reviewability; the only way for parliament to prevent the supreme judicature from injunctively
striking out a law on the basis of incompatibility with Community law is to pass an act
specifically removing that power from the court, or by repealing the European Communities
Act 1972.

The British legal systems are based on common law traditions, which require:

Police or regulators cannot initiate complaints under criminal law but can only
investigate (prosecution is mostly reserved for the Crown Prosecution Service), which
preventsselective enforcemente.g., the 'fishing expedition' which is often specifically
forbidden.

Prosecutors cannot withhold evidence from counsel for the defendant; to do so

results in mistrial or dismissal. Accordingly, their relation to police is no advantage.

Defendants convicted can appeal, but only fresh and compelling evidence not
available at trial can be introduced, restricting the power of the court of appeal to the
process of law applied.

17 | P a g e
IMPACTS OF SEPARATION

Judging from their conduct in recent years, the branches of our national
government seem to be suffering a prolonged identity crisis. It used to be
expected, roughly speaking, that the Congress would pass laws, the President
would execute them, and the Supreme Court would interpret them in individual
cases. This was the political framework established by the Constitution and
adhered to for the greater part of our political history. Increasingly, however, it is
not the way the federal government operates. And as departures from the
Constitution's plan grow more common, a permanent derangement of the
American political system becomes more probable.

While the formal separation of powers promulgated in the Constitution and

explained in the Federalist remains, and in some respects continues to function
well, the actual distribution of powers has changed dramatically. Like square
dancers who miss a call and end the dance with the wrong partners, the
branches of the federal government find themselves in strange company making
awkward excuses. Congress has become increasingly energetic and
administrative, the judiciary willful and legislative, and the executive (in its
institutional, not electoral, connection) tentative and judicial. Under these
conditions, it is the Congress's and the Supreme Court's power that have grown

18 | P a g e
 at the net expense of the President's. But more important than the balance of
power between the branches is the maldistribution of powers, the mixing and
confusing of governmental functions, which has resulted.

THE CURRENT STATE OF AFFAIRS

Increasingly, the bills that Congress passes are ill-digested, little more than vague
charges to the executive agencies to accomplish some general and ill-defined
purpose. But the statutes' very vagueness is the license with which committee
and, more significantly, subcommittee chairmen are armed to threaten and cajole
the executive departments. In one sense, this is nothing new. Congress has
always looked over the executive's shoulder, sometimes more, sometimes less
gloweringly; and imprecise grants of power to regulatory agencies have been
common since the late nineteenth century. What is new is the extent to which
Congress's role as legislator is being subordinated to its role as overseer of the
executive branch. With a vast array of federal programs to be overseen and a
multiplicity of subcommittees to do the overseeing, congressional intervention in
administrative affairs has increased substantially. As a result, Congress today
invests more energy and exerts more influence in playing ombudsman,
investigator, and regulator than in discharging its duty as lawmaker.7

www.encyclopedia.com ... Political Science and Government

19 | P a g e
This newfound emphasis on administering the executive branch, combined with
the Congress's old-fashioned delight at delivering benefits and services to home
districts and states, leaves congressmen little time or appetite for public stands
on highly partisan issues. House members, in particular, find it advantageous
when running for reelection to emphasize not their partisan affiliation, but their
ability to deliver goods and services to their districts. And their districts, in
gratitude for their good offices, have reelected House incumbents at astonishing
rates.

Serious lawmaking, the kind involving divisive moral and constitutional questions,
is more and more left to the judiciary. It is the Supreme Court that has in effect
legislated on abortion, obscenity, school prayer, the death penalty, and countless
other issues touching the welfare and morals of society; even as the Court has
arrogated to itself the right to have final say on the most important constitutional
questions determining how Americans govern themselves--for example, the one-
man, one-vote standard of representation. But in truth, Congress has been eager
to foist the responsibility for making difficult political choices upon the Court, if for
no better reason than that it allows incumbents to have their cake and eat it too.

With the contemporary executive the case is different. Beset by both Congress
and the Court, the President has found it difficult to defend his institutional
prerogatives. This is partly a confession of the enormous political power now
wielded by the other branches, Congress in particular. On the whole, the
executive branch is torn between the search for a national electoral mandate to
legitimize and empower it against the Congress and Court, and the knowledge
that the means to capitalize on such a mandate are ultimately elusive, given the
executive agencies' dependence on congressional subcommittees and their
various clients.

This quick sketch of the politics of American national government is not meant to
be exhaustive, of course, but it does convey the salient facts about the current
situation in Washington. Those facts point to the following conclusion: The chief
constitutional basis of our politics, the separation of powers, is under severe
pressure from the institutions and practices of the administrative state.
Paradoxically, the principal beneficiary of the growth of the executive bureaucracy

20 | P a g e
 has been Congress, not the President, who sees his responsibilities (as head of
the executive branch) continually enlarged but his power steady diminished. Even
so, not all congressmen equally have seen and approved of the growth in the
federal government's authority, or have cheered Congress on in its own
superintendence of the executive. For almost a century a faction has existed
within the national legislature in favor of the administrative state as the emblem
and vehicle of national progress. This faction has included both Democrats and
Republicans but, since 1912, predominantly Democrats.

THE FRAMERS' CASE FOR SEPARATED POWERS

Separation of powers was an idea accepted by all sides in the American

founding, though its precise meaning remained unclear--at least until its famous
exposition in the Federalist, the defense of the Constitution written by "Publius,"
the pen name of Alexander Hamilton, James Madison, and John Jay. The
confusion over the meaning of separation of powers arose mainly from the status
of the executive power: If the executive were subordinate to the legislature, as its
name implies it should be, would not the legislature quickly overpower the
executive? And in that event, how could the powers long remain separated? The
initial context of this problem was the English Civil War, when the idea of
8
separated powers first appeared in the pamphlets and essays of parliamentary
writers who distinguished between legislative and executive powers in order to
subordinate the executive to the legislative. The aim of such republicans as John
Milton and Philip Hunton was to establish the rule of law by guaranteeing that
those who made the law could not execute it and that those who executed it
could not make it for the sake of their private advantage. In effect, of course, the
doctrine was anti-monarchical, inasmuch as it reduced the King to the status of
an "executive" (that is, someone who carries out the will of another).[1]
8

www.encyclopedia.com ... Political Science and Government

21 | P a g e
Balancing Executive and Legislative Power

Such a weak executive could hardly balance the power of the legislature,
however. John Locke, addressing this difficulty in his Second Treatise(c. 1688),
added a third power to the balance to strengthen the executive. The "federative"
power, as he called it, concerned foreign relations (the ability to federate or ally
with other countries). While this federative power was theoretically
distinguishable from the executive, in practice it was inseparable from the
executive, because it, like the executive, presupposed the united power of
society. Circumstances would frequently demand that these two powers be
exercised for the common good, but in the absence of a standing law and
sometimes even against the law. Locke's justification for this extra-legal but
prudent action was described as the "prerogative" power, which was necessarily
executive. In this fashion, Locke acknowledged what was reasonable in the
claims of each side in the English Civil War--the rule of law for the Whigs and of
prerogative for the Tories. But he combined them in the idea of a liberal regime
freed of both excessive jealousy of the executive power and the pretensions of
divine right.[2]

His doctrines lived on in the thought of the so-called Commonwealthmen, a circle

of eighteenth-century republican radicals who resisted the "corruption" of the
House of Commons by the King and his ministers. Through their patronage
power, the ministers could confer pensions and sinecures on complacent
members of Parliament, compromising the legislature's independence. The
practice was denounced on this side of the Atlantic as well, and figured
prominently in the Americans' criticisms of the British in the 1770s and in their

22 | P a g e
 distrust of the colonial governors appointed by the crown. This distrust was later
embodied in the weak executives formulated by the new state constitutions after
the Revolution. Thus the separation of powers as Americans thought of it in the
early 1780s harked back to the Commonwealthmen's fear of corruption and the
seventeenth-century republicans' preference for a weak executive.

The Framers of the Constitution of 1787 solved the problem of reconciling a

strong, durable separation of powers with republican government by means of a
new doctrine of constitutionalism. The most authoritative account of their
achievement may be found in the Federalist, which provides two justifications for
the separation of powers--liberty and good government.

Preserving Liberty

The argument from liberty holds that separation is needed in order to prevent
tyranny. According to Publius's famous definition, "The accumulation of all powers
legislative, executive, and judiciary, in the same hands, whether of one, a few, or
many, and whether hereditary, self-appointed, or elective, may justly be
pronounced the very definition of tyranny."[3] Tyranny is a danger because man's
passions and reason are not perfectly harmonious; his reason may be distorted
by desire.9 Although each man has by nature the rights to life, liberty, and the
9

www.peo.gov.au/learning/fact-sheets/separation-of-powers.html
2.

23 | P a g e
pursuit of happiness, he cannot secure these rights without joining together with
other men to form a civil society, a people. Despite the legal unity of this people, it
is composed of individuals whose impassioned opinions and interests divide
them into majorities and minorities. As a precaution against injustice, therefore,
the powers of government must be so divided that no man or group of men may
wield all of them at once. This precaution would not be necessary if reason and
passion were utterly harmonious, and if the whole comprising such reason and
passion were a priori unitary rather than synthetic. These conditions, however,
are unique to God, who alone justly unites the legislative, judicial, and executive
powers in the same hands. The Declaration of Independence affirms this by
appealing at once to "the laws of Nature and of Nature's God," "the Supreme
Judge of the world," and "the Protection of Divine Providence."[4]

But men are prone to seek power, which has an "encroaching" nature, and
the Federalist insists that if the people's liberty is to be secure, they must take
precautions against the oppressions of their governors. The republican form of
government, the elective principle itself, is the main defense. But Publius also
proposes "auxiliary precautions," chief among which is the separation of powers.
This separation will be enforced not by "parchment barriers" but by reciprocal
checks--the President's veto, for example, and the Senate's confirmation power--
requiring that the powers be partially mixed in order to be kept independent.
"Ambition must be made to counteract ambition," in the words of Federalist 51.
This "policy of supplying, by opposite and rival interests, the defect of better
motives," is designed to reinforce the people's distrust of their representatives,
but, simultaneously and ironically, to increase the people's confidence in the
Constitution.[5]

The last step is crucial, inasmuch as the people's jealousy for their liberty must be
directed more against the legislature, the branch ostensibly closest to them, than
against any other. In every form of government, the Federalist cautions, the most
powerful branch is always the most dangerous to the people's freedom. In a
monarchy, it is the executive that ought to be feared. But in a republic, it is the
legislative. In the state governments, for example, with their weak executives, it is
the legislative department that is "everywhere extending the sphere of its activity

24 | P a g e
 and drawing all power into its impetuous vortex." Therefore, Publius admonishes,
"it is against the enterprising ambition of this department that the people ought to
indulge all their jealousy and exhaust all their precautions." To protect their rights
and liberties the people must insist on limited national government, but that
means the people must limit Congress more effectually than they had the state
legislatures; and the Federalist argues that the Constitution's improved
separation of powers (along with bicameralism) will do just that.[6]

Promoting Good Government

The people should feel, then, not that the Congress is peculiarly theirs, as if the
other branches belonged to someone else or to another class; but that what is
theirs is the Constitution. In the course of the Federalist's argument10, this opinion
that the Constitution is good because it is theirs is gradually transformed into the
opinion that it is theirs because it is good. Publius's second, positive argument for
the separation of powers is responsible for this transformation. For in addition to
the negative function of preventing tyranny, the separation of powers actively
promotes good government. That is to say, it allows the branches of the federal
government to perform their respective functions well or at least better than they
otherwise could. In the first argument, "power" is treated as a generic thing,
10

www.civiced.org/resources/publications/resource.../390-constitutional-democracy
2.

25 | P a g e
 abstracted from any ends for which it might be used, regarded as a dangerous
end in itself (hence its "encroaching" nature). But in the second, "power" is
divided into "powers," acknowledging that each has a "nature" that aims at the
excellent performance of certain definite functions.[7]

Contrary to Woodrow Wilson and more recent critics of the separation of powers
such as James MacGregor Burns and Robert Dahl, the purpose of separation
was not to produce governmental "deadlock" but to produce good government,
which is not the same thing as simply popular or majoritarian government. These
critics reduce the separation of powers to its negative role, equating separation
with "checks and balances." While insisting that each department must have a
will of its own to preserve its independence, the Federalist considers "the regular
distribution of power into distinct departments" to be something quite different
from "legislative balances and checks." In fact, the term "balances and checks" is
used only with reference to the relation between the House and Senate.[8] The
separation of powers, though it does help to check governmental tyranny and to
balance the Constitution, is primarily designed to elicit sound and deliberate
legislation, a firm and energetic executive, and an independent judiciary faithful to
the Constitution.11

11

www.sjsu.edu/people/ken.nuger/courses/pols120/Ch-3-Principles-of-Democracy.pdf
2.

26 | P a g e
These qualities are treated by the Federalist as the consequences of certain
carefully ordered quantities. The ability of the national legislature to deliberate
well is traced to the relatively small size and two-year term of the House of
Representatives (allowing congressmen to learn their job and to discover the
common interests that make general legislation possible) and to the smaller size
and longer term of the Senate (making it a force for stability, moderation, and
wisdom). The executive will be energetic because it is one rather than plural, and
will have a "moral certainty" or at least a "constant probability" of being occupied
by "characters preeminent for ability and virtue" because of the President's mode
of appointment (the electoral college), his four-year term of office, and his
indefinite eligibility for reelection.[9] The independence and fidelity of the judiciary
(the critical third power of government first hailed by Montesquieu) are
guaranteed by the judiciary's indirect mode of appointment and good behavior
tenure.

In each case, "fit characters" are summoned to the office by virtue of its formal
characteristics--its job description, if you will--and the task of the people or their
representatives is to select the best man for the job. If the negative function of the
separation of powers depends on connecting "the interest of the man" with "the
constitutional rights of the place," as Publius argues in Federalist 51, then the
positive function requires that the virtue of the man be linked to the constitutional
duties of the place. As the Federalist discusses each of the branches, it gradually
brings the positive function of separated powers to the fore, describing the
special contribution that each can make to good government. From this
viewpoint, even the negative or checking function of separation is reinterpreted
as something positive: for example, the President's veto is shown to be not
merely a defensive tool but a means of improving the deliberations of the
legislature by slowing, moderating, and correcting them.[10]

The Constitution as Supreme Authority

Although "parchment barriers" are unreliable, the Constitution can be relied on

because the people's--and in a different way, their representatives'--passions and
interests will be tied to their opinion of the Constitution's importance for good
government. As such, the Constitution underlies both the positive and negative

27 | P a g e
functions of the separation of powers. For without some idea of what the
branches' duties are, it is impossible to know when and how to defend their rights
and their independence.

This argument is not disproved by subsequent developments in American politics,

in particular the rise of political parties. It is true that the Constitution of 1787 had
to be amended to accommodate the practice of presidential and vice presidential
candidates running for office on the same party ticket. The Twelfth Amendment,
ratified in 1804, changed the method of voting in the Electoral College by
requiring the electors to cast separate ballots for President and Vice President.
(Originally, the electors voted for two candidates for President, with the runner-up
becoming Vice President.) But the point of the amendment was to make party
competition compatible with the separation of powers by securing the President's
independence from Congress. Without that change in the Constitution, the power
of electing the President effectively would have devolved from the people
(represented indirectly in the Electoral College) to the House of Representatives,
where ties between presidential and vice presidential candidates would be
decided (as in 1800), and where all sorts of electoral mischief was possible.

Present-day political and constitutional reformers, again following the lead of

Wilson and other Progressive political scientists, argue that political parties
evolved in America in order to overcomethe separation of powers, to bring the
executive and legislative together in a party program. Undoubtedly, political
parties did foster some cooperation between the branches on questions of public
policy. But the overriding consideration for Jefferson and his contemporaries was
to ensure that parties and their public policies were shaped by and kept
subordinate to the general principles of the Constitution. This was the purpose of
the Twelfth Amendment. With that subordination firmly established, the system of
party government could operate safely and benignly. So rather than the party
system being designed to overcome the "deadlock" resulting from separated
powers, it quickly became an additional safeguard of separation, with the parties'

28 | P a g e
 own vitality and respectability depending on their integration within the
constitutional system.12

The existence of parties did show, however, that the constitutionality (not to
mention the wisdom) of specific policies was disputable. But the condition of their
civil disputation was, of course, that the comprehensive goodness of the
Constitution was considered indisputable. Here, too, the party system was
dependent on the constitutionalism most clearly articulated in the Federalist. The
doctrine of constitutionalism holds not only that the people's rights are best
secured in a written constitution structured around the separation of powers, but
that the people have correlative duties to (and under) that constitution. In the final
analysis, indeed, those duties become the ground for the people's rights--that the
people are able to live up to their rights, to vindicate them, reveals that the people
are worthy of being free.

The supreme achievement of the Framers' constitutionalism was to elicit what

Publius in Federalist49 calls "veneration" or "reverence" for the Constitution. By
identifying the people's sovereign will not with its latest but its oldest expression,
the Framers succeeded in identifying the people's authority with the Constitution,
not with the statutory law made by their representatives. In this manner,

12

www.sjsu.edu/people/ken.nuger/courses/pols120/Ch-3-Principles-of-Democracy.pdf
2.

29 | P a g e
republicanism in America came to be constitutionalized, and the people whose
choice had authorized the Constitution in the first place came to regard it as the
lofty authority that should guide their own choices and those of their posterity.[11]

It was the separation of powers that made possible this identification of the
Constitution with the awesome stature of the moral law, for separation of powers
helped to keep the Constitution inviolate by elevating it above momentary popular
whims. That is why political disputes among the branches of government are
never decided by direct, extraconstitutional appeals to the people. In effect, the
people have no existence outside of the Constitution, or more precisely, outside
of the moral law embodied in the Constitution.[12] It is only by elections and by
political competition among the branches, therefore, taking place under the
provisions of the Constitution, that the people's rational will may be expressed.

THE PROGRESSIVES' ASSAULT ON THE CONSTITUTION

Nothing could be further removed from the reverence for the Constitution
recommended by the Framers and encouraged by the separation of powers than
the tone adopted by the chief architect of the administrative state, Woodrow
Wilson. In his first book, Congressional Government, published in 1885, he
acknowledged that "opposition to the Constitution as a constitution, and even
hostile criticisms of its provisions, ceased almost immediately upon its adoption;
and not only ceased, but gave place to an undiscriminating and almost blind
worship of its principles...." Reverence for the Constitution would be "blind
worship" only if reason's say in political life had been gravely underestimated by
the Framers, and the Constitution's rationality greatly overestimated. This was
exactly Wilson's position. He attributed "the charm of our constitutional ideal" to a
kind of "political witchcraft," and advised his countrymen to undertake an
unsentimental and "fearless criticism" of the Constitution. "The more open-eyed
we become, as a nation, to its defects, and the prompter we grow in applying with
the unhesitating courage of conviction all thoroughly tested or well-considered
expedients necessary to make self-government among us a straightforward thing
of simple method, single, unstinted power, and clear responsibility," he
counseled, "the better."[13]

30 | P a g e
 Rejecting the Separation of Powers

Wilson's political thought, like that of many of the leading American political
scientists and reformers in the Progressive era, rejected the separation of powers
in favor of the allegedly more fundamental and modern separation between
politics and administration. Separation of powers, in his view, was the product of
an outmoded theory of politics. At the time of the founding, men thought of
13
politics on the model of Newtonian physics, imagining that the departments of
government could be held in place by the countervailing forces of interest and
ambition, even as the stars and planets were kept in their orbits by the force of
gravity. The "theory of checks and balances" was at bottom "a sort of
unconscious copy of the Newtonian theory of the universe."[14]

A century or so later; however, the limitations of this eighteenth-century world

view were apparent. Government is "not a machine, but a living thing," wrote
Wilson, in lines that he would incorporate into his presidential campaign
speeches in 1912. "It is accountable to Darwin, not to Newton." Consequently,
government must constantly adjust to changes in its environment; its purposes
and structure are not ordained by "the laws of Nature and of Nature's God" (as
the Declaration of Independence states) or limited by a written constitution.[15] In

13

www.utumishi.go.tz/utuweek/SOP.pdf
2.

31 | P a g e
particular, government has no use for separated powers. "No living thing can
have its organs offset against each other as checks, and live," he declared.
"There can be no successful government without leadership or without the
intimate, almost instinctive, coordination of the organs of life and action."[16]

Wilson's efforts to overcome the separation of powers occupied his entire life,
from his student days at Princeton through his career as a professor to his years
in politics. Concerning the specific reforms that would be necessary to achieve
this "coordination of the organs of life and action," his own thought underwent an
evolution. As a young man, he favored a series of constitutional amendments
designed to make Congressmen, Senators, and the President serve roughly
concurrent terms, so as to increase the probability that one political party would
gain control of the whole elective part of the government. In addition, he
proposed that the President be required to choose his cabinet from the leaders of
the majority party in Congress, who would be authorized to introduce legislation
on the Hill, thus obviating the committee system. These are essentially the same
proposals as those advanced recently by Lloyd Cutler and the Committee on the
Constitutional System, though their view of the costs and consequences of
superimposing them on American government is not so clear as Wilson's.

In any event, later in his career Wilson decided that there was an easier way.
Strong presidential leadership combined with a highly developed and centralized
administrative apparatus would succeed in liberating the national government
from the straitjacket of separated powers. Today's constitutional reformers have
had a similar change of mind but in reverse order, starting out with an
enthusiastic embrace of strong presidential leadership (Roosevelt, Truman,
Kennedy, Johnson), but eventually deciding that progress will not come to
America without far-reaching constitutional change. Whatever the strategy, the
goal of these political reforms is the same: to deliver up American government to
the salutary currents of progress, rather than allowing a superannuated
Constitution to keep the country drydocked.

Redefining the Role of the Executive

32 | P a g e
 In rejecting separation of powers in favor of the separation of politics and
administration, Wilson reformulated the terms of political debate. "Democracy"
now meant the last and most perfect stage in the evolution of the state, in which
the people's will was directly responsible for setting public policy. But the
immediate expression of their will could be whimsical, and so was not to be taken
as authentic, as conveying their permanent instinct for progress--the Darwinian
impulse. Therefore, the people's will had to be mediated by leadership, a word
that assumed a new prominence and respectability in the vocabulary of American
politics. As compared to the masses, leaders were more closely attuned to the
spirit of the age; they were able to distinguish the faint but swelling notes of
progress from the background noise of history. Their task was to prepare the
people for the future, to act as interpreters and spokesmen for the spirit of the
age; and, of course, actually to lead the way. But they went only where the
"common thought" and "common impulse" were destined eventually to take the
people. The leaders' function was to mediate between the people and the future,
not to educate or elevate the people's will to a rational or trans-historical, much
less a constitutional, standard.[17]14

What did this mean for American politics? Whereas "energy" in the executive had
come mainly from the President's position in the constitutional order, leadership in
14

www.utumishi.go.tz/utuweek/SOP.pdf
2.

33 | P a g e
the executive would depend entirely on the President's personal traits--his
charisma, as we say today. Around his personal appeal to the voters and his
"vision" of the future, he would build a political movement, perhaps even a
"Reagan Revolution." But the important point for our purposes is that his principal
role in office would be the same as in campaigning for office: he would be first
and foremost a political or party leader, not the country's chief executive. The
constitutional function of chief executive officer, which in Wilson's scheme falls
under the rubric of administration, would be largely transferred to the Congress.

The reason for this, in Wilson's blunt words, is that the President "cannot execute
laws." In practice, it now takes a dozen or so departments and millions of
executive branch employees to execute the laws. "It is therefore becoming more
and more true, as the business of the government becomes more and more
complex and extended," Wilson wrote, "that the President is becoming more and
more a political and less and less an executive officer." His executive powers
drain away into the bureaucracy while "his political powers more and more centre
and accumulate upon him and are in their very nature personal and
inalienable."[18] In the new dispensation, it is not our rights but our charisma that
is inalienable. Even as, in Wilson's considered view, it is inevitable for society to
become more complex and in need of governmental regulation, so it is inevitable
that the President must take more and more of the responsibility for leading the
country into the future, and less and less for executing the laws.

Presidential leadership has therefore a certain hollow ring to it, of which Wilson
was well aware. The President is the only truly national leader, chosen by the
whole people; and if he rightly interprets the people's inchoate desire for
progress, "he is irresistible," for the people's "instinct is for unified action, and it
craves a single leader." Therefore, in Wilson's famous phrase, the President's
office "is anything he has the sagacity and force to make it."[19]

But this means that in ordinary times, with ordinary men in the Oval Office, the
presidency will not be the center of affairs and the dictator of events. Largely
bereft of constitutional rights and duties, the office will be as small as the men
who occupy it. And even on those occasions when the President is a man of
great "personal force," his leadership will depend absolutely on his connection to

34 | P a g e
 the people, on his ability to read their thoughts and stir them to action. Far from
being the energetic and independent executive the Framers sought, the
President in the routine operations of his office will be a hostage to popular
opinion.[20]

The Rise of Administrative Lawmaking

However, perhaps the deeper reason why, for the Progressives, the President
cannot execute the laws is that few laws in the old sense--general rules and
measures directing action toward the common good-- would be necessary. The
assumption of the Progressives is that history ultimately will direct human action
toward the common good. To put it differently, the Darwinian imperative does not
15
require human legislation to see to it that the fittest will survive. That outcome is
guaranteed; those who survive are by definition the fittest. The task of law, in
Wilson's view, is only to see to it that the inevitable growth of society be as evenly
distributed as possible among classes and sections of the nation. Thus, law
regulates and redistributes the inevitable; it is not based on a choice between
competing opinions of the common good or clashing views of justice. In this
sense, law is not political but administrative; the main purpose of law in modern

15

www.ipu.org/PDF/publications/DEMOCRACY_PR_E.pdf
2.

35 | P a g e
times is not to defend the country, punish wrongdoing, and inculcate principles of
justice. It is to administer progress--in short, to create the administrative state.

"Legislation is but the oil of government," as Wilson put it. "It is that which
lubricates its channels and speeds its wheels; that which lessens the friction and
so eases the movement." What becomes important about law for the
Progressives is not so much its purpose or claim to justice but its execution or
implementation, its effect on the process of government. "It is even more
important to know how the house is being built than to know how the plans of the
architect were conceived and how his specifications were calculated. It is better
to have skillful work...than a drawing on paper which is the admiration of all the
practical artists in the country. "[21] Yet how is it possible to know whether a
house is being well built without comparing it, implicitly or explicitly, to the idea of
a well-built house? Although Wilson implicitly rejected Aristotle's claim that politics
is the architectonic art, he could not abolish the need for a "literary theory" or a
model to act as a guide for skillful craftsmen. He simply replaced prudence or
practical wisdom as that guide with the notion of a leader's "vision," the revelation
that history vouchsafes to him.

Replacing Traditional Notions of Good Government

To regulate or administer progress, not to secure men's inalienable rights, is

therefore the basic function of the modem state. Such regulation is necessary
because progress brings with it problems, or more precisely, progress exposes
as "problems" what had once been regarded as unhappy aspects of the human
condition. Selfishness, poverty, war, as well as many lesser evils--these became
social problems in the modem sense when the assumption was made that they
could be solved, that man did not have to content himself with alleviating or
enduring them. What made their designation as social problems plausible, in turn,
was the assumption that the future would be very different from and much better
than the past. From that tenet it was easy to conclude that the distinction
between "progressive" and "reactionary" ought to replace the distinction between

36 | P a g e
 good and evil, because the former distinction was not only the functional
equivalent of the latter but was historically demonstrable, hence unassailable. 16

The dichotomy between politics and administration, which Wilson did as much as
anyone to popularize, meant ostensibly that the ends of government ought to
change easily with the changing sentiment of the majority, and that the means to
those ends ought to be efficiently, scientifically determined by a specially trained
class of nonpartisan civil servants. But underlying and bridging the dichotomy
was his faith that history was progressive. Both politics and administration served
the cause of progress--the one through leadership, sounding the trumpet of
advance; the other through pacifying and reorganizing the newly won territory.
For that reason, administration was not as "value-free" or "value-neutral" as
Wilson and the reformers let on. In truth, the administrative class was intrinsically
hostile to anyone who did not accept the rationale of its own existence, namely,
the progressive theory of history.

16

www.heritage.org/.../what-separation-of-powers-means-for-constitutional-government
2.

37 | P a g e
THE BRANCHES

The Australian Constitution is the set of rules by which Australia is

run. The first three chapters of the Constitution define three largely
separate groups the Parliament, the Executive and the Judiciary
and the roles they play in Australian governance. The power to
make and manage federal law is divided between these three
groups. This division is based on the principle of the 'separation of
powers'.
Under this principle, the power to govern should be distributed between the
Parliament, the Executive and the Judiciary to avoid one group having all the
power. Each group should work within defined areas of responsibility so that each
keeps a check on the actions of the others.

Separation of roles
POWER ROLE COMPOSITION

Parliamen The Parliament makes and Parliament (also referred to as the Legislature) is made up

38 | P a g e
POWER ROLE COMPOSITION

t amends the law the Governor-General), the Senate and the House of Rep

Executive The Executive puts the law The Executive is made up of the Queen (represented by t
into action Minister and ministers

Judiciary The Judiciary makes The Judiciary is made up of the High Court and other fede
judgements about the law

Exceptions to the principle

Separation of powers

Australia does not have a complete separation of powers because some of the
roles of the Parliament, the Executive and the Judiciary overlap. For example, the
Prime Minister and ministers are part of the Executive and the Parliament. High
Court judges, the Prime Minister and ministers are officially appointed by the
Governor-General, who is part of the Parliament and the Executive.

The role of the Governor-General

Section 61 of the Constitution states that the executive power of the
Commonwealth is vested in the Queen and is exercisable by the Governor-
General as the Queens representative. This means that the Governor-General
has been given certain powers to act on behalf of the Queen. However, the role

39 | P a g e
 of the Governor-General is not just defined by the Constitution, but also by
custom and tradition.17

While executive power is exercised by the Governor-General, in reality this is

normally done on the advice of the Prime Minister and ministers, who have day-
to-day responsibility for governing Australia. The Governor-General does not
have the authority to make decisions on behalf of the government, but has a role
in both the government and the Parliament

Responsible government
The separation of powers works together with another principle known as
responsible government, to guide the way law is made and managed.
Responsible government means that a party, or coalition of parties, must
maintain the support of the majority of members of the House of Representatives
in order to remain in government. This provides another check on the Executive,
ensuring they remain accountable to the Parliament and do not abuse their
power.

History
The origins of the principle of the separation of powers can be traced back as far
as ancient Greece. It was made popular much later by French philosopher
Charles de Montesquieu in 1748 in his work L'Esprit des Lois (the Spirit of the
Laws). He wrote that a nation's freedom depended on the three powers of
governancelegislative, executive and judicialeach having their own separate
17

www.ipu.org/PDF/publications/DEMOCRACY_PR_E.pdf
2.

40 | P a g e
institution. This principle has been widely used in the development of many
democracies since that time.

EQUITY IS MAINTAINED

The Constitution does not explicitly indicate the pre-eminence of any particular branch of
government. However, James Madison wrote in Federalist 51, regarding the ability of each
branch to defend itself from actions by the others, that "it is not possible to give to each
department an equal power of self-defense. In republican government, the legislative
authority necessarily predominates."

One may claim that the judiciary has historically been the weakest of the three branches. In
fact, its power to exercise judicial reviewits sole meaningful check on the other two
branchesis not explicitly granted by the U.S Constitution. The U.S. Supreme
Court exercised its power to strike down congressional acts as unconstitutional only twice
prior to the Civil War: in Marbury v. Madison (1803) and Dred Scott v. Sandford (1857). The
Supreme Court has since then made more extensive use of judicial review.

Throughout America's history dominance of one of the three branches has essentially been
a see-saw struggle between Congress and the president. Both have had periods of great
power and weakness such as immediately after the Civil War when republicans had a
majority in Congress and were able to pass major legislation and shoot down most of the
president's vetoes. They also passed acts to essentially make the president subordinate to
Congress, such as the Tenure of Office Act. Johnson's later impeachment also cost the
presidency much political power. However the president has also exercised greater power
largely during the 20th century. Both Roosevelts greatly expanded the powers of the
president and wielded great power during their terms.

The first six presidents of the United States did not make extensive use of the veto
power: George Washington only vetoed two bills, James Monroe one, and John
Adams,Thomas Jefferson and John Quincy Adams none. James Madison, a firm believer in
a strong executive, vetoed seven bills. None of the first six Presidents, however, used the
veto to direct national policy. It was Andrew Jackson, the seventh President, who was the
first to use the veto as a political weapon. During his two terms in office, he vetoed twelve
billsmore than all of his predecessors combined. Furthermore, he defied the Supreme
Court in enforcing the policy of ethnically cleansing Native American tribes ("Indian
Removal"); he stated (perhaps apocryphally), "John Marshall has made his decision. Now let
him enforce it!"

Some of Jackson's successors made no use of the veto power, while others used it
intermittently. It was only after the Civil War that presidents began to use the power to truly
counterbalance Congress. Andrew Johnson, a Democrat, vetoed
several Reconstruction bills passed by the "Radical Republicans." Congress, however,
managed to override fifteen of Johnson's twenty-nine vetoes. Furthermore, it attempted to
curb the power of the presidency by passing the Tenure of Office Act. The Act required
Senate approval for the dismissal of senior Cabinet officials. When Johnson deliberately
violated the Act, which he felt was unconstitutional (Supreme Court decisions later vindicated

41 | P a g e
 such a position), the House of Representatives impeached him; he was acquitted in the
Senate by one vote.

Grover Clevelandworked to restore power to the Presidency afterAndrew Johnson's impeachment.

Johnson's impeachment was perceived to have done great damage to the presidency, which
came to be almost subordinate to Congress. Some believed that the president would
become a mere figurehead, with the Speaker of the House of Representatives becoming
a de facto Prime Minister.Grover Cleveland, the first Democratic President following
Johnson, attempted to restore the power of his office. During his first term, he vetoed over
four hundred billstwice as many bills as his twenty-one predecessors combined. He also
began to suspend bureaucrats who were appointed as a result of the patronage system,
replacing them with more "deserving" individuals. The Senate, however, refused to confirm
many new nominations, instead demanding that Cleveland turn over the confidential records
relating to the suspensions. Cleveland steadfastly refused, asserting, "These suspensions
are my executive acts ... I am not responsible to the Senate, and I am unwilling to submit my
actions to them for judgment." Cleveland's popular support forced the Senate to back down
and confirm the nominees. Furthermore, Congress finally repealed the controversial Tenure
of Office Act that had been passed during the Johnson Administration. Overall, this meant
that Cleveland's Administration marked the end of presidential subordination.18
18

www.ipu.org/PDF/publications/DEMOCRACY_PR_E.pdf
2.

42 | P a g e
Several twentieth-century presidents have attempted to greatly expand the power of the
presidency. Theodore Roosevelt, for instance, claimed that the president was permitted to
do whatever was not explicitly prohibited by the lawin direct contrast to his immediate
successor, William Howard Taft. Franklin Delano Roosevelt held considerable power during
the Great Depression. Congress had granted Franklin Roosevelt sweeping authority;
in Panama Refining v. Ryan, the Court for the first time struck down a Congressional
delegation of power as violative of the doctrine of separation of powers. The
aforementioned Schechter Poultry Corp. v. United States, another separation of powers
case, was also decided during Franklin Roosevelt's presidency. In response to many
unfavorable Supreme Court decisions, Roosevelt introduced a "Court Packing" plan, under
which more seats would be added to the Supreme Court for the president to fill. Such a plan
(which was defeated in Congress) would have seriously undermined the judiciary's
independence and power.

Richard Nixon used national security as a basis for his expansion of power. He asserted, for
example, that "the inherent power of the President to safeguard the security of the nation"
authorized him to order a wiretap without a judge's warrant. Nixon also asserted that
"executive privilege" shielded him from all legislative oversight; furthermore, heimpounded
federal funds (that is to say, he refused to spend money that Congress had appropriated for
government programs). In the specific cases aforementioned, however, the Supreme Court
ruled against Nixon. This was also because of an ongoing criminal investigation into
the Watergate tapes, even though they acknowledged the general need for executive
privilege. Since then, Nixon's successors have sometimes asserted that they may act in the
interests of national security or that executive privilege shields them from Congressional
oversight. Though such claims have in general been more limited than Nixon's, one may still
conclude that the presidency's power has been greatly augmented since the eighteenth and
nineteenth centuries.

VIEWS ON SEPARATION OF POWERS

Many political scientists believe that separation of powers is a decisive factor in what they
see as a limited degree of American exceptionalism. In particular, John W. Kingdonmade
this argument, claiming that separation of powers contributed to the development of a
unique political structure in the United States. He attributes the unusually large number
of interest groups active in the United States, in part, to the separation of powers; it gives
groups more places to try to influence, and creates more potential group activity. He also
cites its complexity as one of the reasons for lower citizen participation.

JUDICIAL INDEPENDENCE

Separation of powers has again become a current issue of some controversy concerning
debates about judicial independence and political efforts to increase the accountability of
judges for the quality of their work, avoiding conflicts of interest, and charges that some
judges allegedly disregard procedural rules, statutes, and higher court precedents.

Many legislators hold the view that separation of powers means that powers are shared
among different branches; no one branch may act unilaterally on issues (other than perhaps
minor questions), but must obtain some form of agreement across branches. That is, it is
argued that "checks and balances" apply to the Judicial branch as well as to the other

43 | P a g e
 branches for example, in the regulation of attorneys and judges, and the establishment by
Congress of rules for the conduct of federal courts, and by state legislatures for state courts.
Although in practice these matters are delegated to the Supreme Court, the Congress holds
these powers and delegates them to the Supreme Court only for convenience in light of the
Supreme Court's expertise, but can withdraw that delegation at any time.19

On the other side of this debate, many judges hold the view that separation of powers
means that the Judiciary is independent and untouchable within the judicial sphere. In this
view, separation of powers means that the Judiciary alone holds all powers relative to the
judicial function and that the Legislative and Executive branches may not interfere in any
aspect of the Judicial branch. An example of the second view at the state level is found in
the Florida Supreme Court holding that only the Florida Supreme Court may license and
regulate attorneys appearing before the courts of Florida, and only the Florida Supreme
Court may set rules for procedures in the Florida courts.The State of New Hampshire also
follows this system

CONCLUSION
Despite the negative implications of the separation of powers - such as the possibility of
gridlock or standstill between the branches causing governmental paralysis, it is absolutely
vital to the government. Almost all democracies have some scheme of separation of
powers to some degree. For example, Italy has a separate constitutional court for reviewing
cases dealing with constitutional issues.

The need for a separation of powers is largely apparent when the United States' system is
compared to countries like China, or Russia, which were controlled by Communist regimes

19

www.heritage.org/.../what-separation-of-powers-means-for-constitutional-government
2.

44 | P a g e
for part of the 20th century. Those governments are despotic and repressive, because they do
not have a separation of powers, making it easier for the leaders of such countries to abuse
their power. In his Notes on Virginia, Thomas Jefferson wrote:

"A very capital defect in a constitution is when all the powers of government, legislative,
executive and judiciary result to the legislative body. The concentrating these in the same
hands is precisely the definition of despotic government."
Separation of powers, despite the changes to the balance of power between the branches over
the years, is an integral part of a democracy, of which the United States is a prime example.
This interdependence between the branches and system of checks and balances is designed to
protect any one branch from gaining too much power and becoming dictatorial. It also
ensures that the government stays within the rule of law. Therefore, separation of
powers affects all people within the nation.

BIBLIOGRAPHY

Websites

Downs, A. (1996). The Devolution Evolution: Why Congress is shifting a Lot of Power to the
Wrong Levels. online Available: http://www.brook.edu/comm/PolicyBriefs/pb003/pb3.htm.
(July 1996).

Hansen, Chris. (2001). Thomas Jefferson on Politics & Government. online Available:
http://chansen.tzo.com/Subjects/PoliticsLiberty/ThomasJefferson/jeff1070.htm. (01 Aug
2001).

45 | P a g e
Ladenheim, K. (1999). U.S. Federalism Web Site. online Available:
http://www.min.net/~kala/fed/devo.htm. (16 March 1999).

Wayne, S,, Mackenzie, G., O'Brien, D., & Cole, R. (1999) The Politics of American
Government. (3rd Edition) New York: Worth Publishers.

Books

The Powers of War and Peace: The Constitution and Foreign

Affairs after 9/11

The Rise and Fall of the Separation of Powers

The Presidency, Congress, and Divided Government: A Postwar

Assessment

The Cult of the Presidency: America's Dangerous Devotion to

Executive Power

Journals

The Hindu

The Times of India

Hindustan Times

46 | P a g e