Doctrine of separation of powers under the USA constitution.
1) Introduction
● The separation of powers provides a system of shared power known as Checks and Balances. There are three different branches of the government which have been made by the U.S constitution. Each and every branch has power to check the working systems of the other branch and this idea was called separation of powers. According to this theory all branches kept other branches away from unlawful usage of his powers, this is the most important feature of the American system. Separation of power is basically divisions of the responsibilities of the government departments so that all department can work independently
2) Origin of theory of separation of the powers
Since the ancient days of Aristotle, political writers have recognized three kinds of government functions. Following are the details.
1) Executive
2) Legislature
3) Judiciary
Each and every department will use his powers on its own. These separation of powers have been made only for the safety of liberty of the individuals
I. Montesquieu’s exposition
Montesquieu explains this theory and says that, there are three kinds of powers in a government which are executive, legislature and judicial powers. The liberty of the individuals requires that neither all these powers should be given to one person nor one department, so that rights of individual could not be violated
3) Central idea of separation of power
Idea behind this theory is that an unlimited power in the hand of one department means that others departments will become powerless. The separation of powers in a democracy is to prevent unlawful use of power and to safeguard freedom for all
The system of separation of powers divides the tasks of the state into three branches: legislative, executive and judicial. These tasks are assigned to different institutions in such a way that each of them can check the others. As a result, no one institution can become most powerful in a democracy
4) Theory of separation of power in America
I. Implied doctrine
The U.S constitution does not clearly declares the principle of separation of power but it has been unclearly mentioned and drafted in the constitution that:
I. According to U.S constitution
⮚ Article 1 Section 1
All legislative powers will be vested in a congress of the United States
⮚ Article 2 section 1
All executive powers shall be vested in president of the United States of the America
⮚ Article 3 section 1
All judicial powers shall be vested in Supreme Court and in inferior courts
II. Separation of powers in practice
● In the U.S.A a serious attempt was made to apply the theory in practice. The American chief executive, the president, is elected by the people for a period of four years.
● The President cannot initiate legislation. He cannot make laws and cannot make judicial decisions
● Judges cannot take executive decisions and cannot make laws because these powers have not been vested in judges
● Legislatures cannot take executive decisions and judicial decisions but they can make laws
5) Separation of power and checks and balances
● US Governments Separation of powers and the system of checks and balances. In theory, the Legislative Branch, the Executive Branch, and the Judicial Branch are designed to keep each other in check, and to keep any branch from becoming too powerful. In reality, the system was designed to keep the president from becoming some kind of dictator
I. Separation of power applied in modified form
U.S Government. The U.S. Constitution sets up three branches:
There is no complete separation of powers of the three departments after modification of constitution:
1) The president can influence on legislation by sending message to congress and by his suspense veto
2) The congress can influence executive policy by asking the official to appear before its committee
3) The president can appoint judges and grant pardon
4) The judges can declare unconstitutional , laws passed by the congress
5) The senate has the power to approve or reject appointments of important officials, impeach the president, vice president and other officials
6) Effect of separation of power
The theory of separation of powers protects the liberty and rights of the individuals
As powers are distributed among the government departments,
due to limited powers they fully identify their responsibility and they work according to their responsibilities, which makes their work more efficient
The separation of powers saves the people from the arbitrary rule of the executive
This theory lays down the principle that governments should act according to certain well established rules or law
Separation of powers accompanied by check and balance which is an effective check against unlawful use of power
7) Criticism on doctrine of separation of power
The theory of separation of powers has been criticized on following grounds
1. Complex system
The theory of separation of powers has the made the constitution more complicated
2. Frustration
The theory of separation of power has created frustration among the three departments of government. They all totally unable to understand their responsibilities
3. Loose coordination
Separation of powers results in administrative complications. It becomes difficult to maintain coordination among the organs of government
The smooth working of modern governments demands not so much separation of powers as 'coordination' of powers
4. Mutual confliction
This theory of separation of powers has created mutual conflictions among the all three branches of the government
5. Balance disturbed
This theory has made the executive very powerful, and disturbed the balance among the three organs of government. Security and welfare of the society demand not so much separation of powers as coordination of powers
8) Alteration of doctrine of this theory
The basic structure established in 18th century is still exists, The federal system under which power has been distributed among three branches of the government which is called separation of power but currently due to some emergencies constitutional doctrine of separation of power has been altered by the following reason:
1) It has been altered by political parties
2) By president of the United states in legislative proposals
3) And by the growth of legislation itself
9) Conclusion
The theory of separation of powers makes the government departments work independently. But the framers of the constitution knew that complete separation would make government impracticable. Separation of power have a lot of benefits as security of the individual and it saves country from dictatorship as well no department can use unlawful use of his powers