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Doctrine of the separation of powers.

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Introduction

SEPARATION OF POWERS Although of great antiquity the modern basis for the doctrine of the separation of powers can be traced back to the writings of commentators such as John Locke, who in one of his books written in 1690 observed that "the three organs of government must not get in one hand." The doctrine was further examined by the French jurist Montesquieu who based his exposition on the British constitution of the early 18th Century. In simple terms the doctrine recognises three functions of government, namely legislative, executive and judicial. In its purest form the doctrine holds that each of these three functions should be vested in separate organs of government, with no overlap, as to concentrate more than one function in any one organ presents a threat to individual liberty. If the doctrine is followed the same persons should not form part of more than one organ. For example ministers should not sit in parliament. One organ should not exercise the functions of another. In the United States Constitution of 1787 separation of powers was clearly expressed. Each of the three primary constitutional functions was vested in a distinct organ. ...read more.

Middle

The doctrine is reflected in the fact that many office holders who make up the executive are disqualified from membership of the House of Commons. This includes civil servants, members of the armed forces and police forces and other holders of office of profit under the Crown. Ultimately the House of Commons controls the executive as it can bring about the resignation of a government with a notion of no confidence. Less drastic control can be exercised in the form of question time and opposition days. The government also has several devices for curtailing parliamentary debate. The House of Lords even in its reformed form can only delay the passage of legislation. In theory it is for the executive in the form of the Cabinet to determine the policies of proposals to change the law, and for the judges to apply the law. The constitutional significance of this is that the judiciary being independent can apply the law regardless of whether the result is at odds with what the government of the day may desire. In Hinds V The Queen the Privy Council declared unconstitutional the 'gun court' set up in Jamaica because of the involvement of members of the executive in the sentencing of offenders. ...read more.

Conclusion

Parliament is subject to the law and the courts. The independence of judiciary can also be regarded as a safeguard of the doctrine. Security of tenure, freedom from criticism and judicial immunity ensure that judges are free to do their work ensuring the separation of powers. In the case of Duport Steels Ltd V Sirs both Lords Diplock and Scarman implied that the UK constitution is not based on a formal separation of powers as advocated by Montesquieu and practised in the United States. Rather both Law Lords are speaking in support of a well established convention of the UK Constitution, namely that Parliament makes the law and the judiciary interprets it. This convention derives from the concept of Parliamentary sovereignty in a system where the legislature is elected and accountable and in which the judiciary is required to be impartial and independent in the application of law. All in all it would only be fair to say that the doctrine of separation of powers is necessary in controlling the delegation of power among organs of government and ensuring the proper use of that power. We have examined the US and the British separation of power and although in the US things are clearer, we can say that power is properly controlled in both cases. If it wasn't results would have been obvious. ...read more.

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