Recall that the concept of separation of powers was propounded by Baron de Montesquieu. It states that the three arms of government – the legislature, executive and the judiciary – must be separate and independent in terms of personnel, functions and powers. In other words, the personnel in the legislative arm of government must not be the same as those in the executive or the judicial arm of government. Also the members of the legislature must not have the same functions and powers as those in both the executive and the judiciary.
Merits of the Theory of Separation of Powers
- Merits of the Theory of Separation of Powers
- Demerits of the Theory of Separation of Powers
1. Protection of Liberty and Rights:
The theory of separation of powers allows for protection of the liberties and rights of the individual, and protects him or her from different forms of despotism and oppression.
2. Increase in Government’s Efficiency:
As powers are distributed among the government departments, these departments gain deep knowledge about the matters they are concerned with, and become more efficient. The functions that are involved in governance can often be enormous for one arm of government to perform. So, separation of powers helps to reduce the workload on any particular arm of government.
3. Promotes Order in Governance:
All the three arms of government are allocated their separate functions. A strict application of the principle would ensure that each performs its role and that only. This ensures that there is order in the management of the state.
4. Prevents Abuse of Power:
Separation of powers accompanied by check and balances is an effective check against abuse of power and arrogance of power. As powers are distributed among different departments, these departments enjoy only limited powers which prevents rise of dictatorship. The concept is good in the sense that it is able to check tyranny on the part of those in government. The concept ensures that too much power is not concentrated in one arm of government. This prevents the temptation of abuse of power.
5. Ensures Judicial Independence
Judicial independence is the concept that the judiciary should be independent from the other branches of government. In almost every constitution, the judiciary is clothed with the powers to have the final say in all constitutional disputes and to be able to declare null and void the actions of the other arms of government. The concept of separation of powers helps to strengthen the independence the judiciary has to perform its functions.
Demerits of the Theory of Separation of Powers
This theory, though adopted by most countries, has not escaped criticism. It has been criticized not only as impossible but also as undesirable. According to Sabine, “Montes was guilty of oversimplification. He united his theory to a hasty and superficial analysis of the constitutional principles of liberty.” Finer said that it was futile to rigidly apply the theory of separation of powers to modern conditions. The theory of separation of powers has been attacked on the following grounds.
1. Wrong Reading of British System:
By the time Montesquieu developed his theory of separation of powers, there had come into being the Cabinet system of government. The separation of powers did not exist in Britain at the time. On the contrary, there was a concentration of responsibility. Having witnessed the British people enjoying liberty, Montesquieu wrongly concluded that in Britain there was a separation of powers. He misread British politics.
2. Not Fully Attainable:
This theory is not fully attainable. The executive has some role in rule-making, and the legislature also performs some judicial functions. For example, impeachment which is judicial in nature is done by the legislature.
3. Administrative Complications:
Separation of powers results in administrative complications. It becomes difficult to forge cooperation, coordination and harmony among the organs of government. The smooth working of modern governments demands not so much separation of powers as a “co-ordination” of powers.
4. Could Lead to Confusion and Deadlock:
Separation of powers sometimes leads to jealousy, suspicion and friction among the organs of government. While producing disharmony and confusion, it may paralyze the administration. As a result, the administration often fails to take quick decisions even at a time of crisis. According to Finer, the theory of separation of powers throws “governments into alternating conditions of coma and convulsion.” Another scholar is of the view that “separation of powers means confusion of powers.”
5. Inequality of Powers:
This theory is based on the principle of equality of powers, but this principle is flawed. In the parliamentary system, the legislature which represents the people is most powerful while the executive is most powerful in the presidential system.
6. Not the Sole Factor of Liberty:
Separation of powers may contribute to liberty, but it is not the only factor of liberty. Liberty also depends a lot on the psyche of people, their outlook, their political awareness, customs and traditions, fundamental rights, rule of law, independence of judiciary and economic equality.
7. Could Disturb the Balance of Power:
The government, performing various important functions, has become increasingly powerful. Besides being the problem-solver and crisis-manager, it is also required to provide welfare for the people. All this has made the executive very powerful, and has disturbed the balance among the three organs of government. Planning, security and welfare demand not so much separation of powers as their “fusion”.
Increased concern for welfare and security has been responsible for transfer of more powers to the executive, though liberty is significantly dependent upon balance among the three organs of government. In an ideal system, there should be equal interest in the liberty of the individual as well as in his or her welfare and the security of state. This, no doubt, would require a strong government but this would also call for separation of powers coupled with checks and balances.