Doctrine of the separation of powers.

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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. Legislative power was vested in Congress consisting of a House of Representatives and a Senate, executive power was vested in the President and judicial power was vested in the Supreme Court and other federal courts as established by Congress.

 The president of the USA holds office for four years and does not need the support of Congress to continue in office. He is separately elected from Congress directly from the people. Neither he nor members of his Cabinet can sit or vote in Congress. They have no direct power to initiate Bills but the president can recommend legislation in his message to Congress. He can veto legislation but can be overridden by 2/3 majority in both Houses. Treaties are negotiated by him but must be approved by 2/3 of the Senate. He can recommend key officers such as judges of the Supreme Court but they have to be approved by the Senate. Once appointed judges are independent of both Congress and the President. They can be removed by the Senate only for treason, bribery or similar offences.

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 In the historic decision of Chief Justice Marshall in Marbury V Madison the Supreme Court assumed the power of declaring both Acts of Congress and Acts of the President to be unconstitutional. In fact the separation of powers in the USA does not involve the isolation of each organ from the other two, but rather an elaborate system of checks and balances. The system rests upon an open recognition that particular functions belong primarily to a given organ.

 It is generally agreed that the separation of powers is reflected in the British Constitution but not in any formalised way. Sovereign ...

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