Distribution of Powers Functionally. There are two methods may be employed for distributing governmental powers, the territorial and the functional. These two are not alternative methods. The territorial division relates to the splitting up of the territory of the State into political divisions and the distribution of governmental powers among such divisions. Each of the political divisions is provided with a governmental organization through which it performs its functions. But the work of government is so wide and complex that it is imperative to establish special organs for the performance of the several kinds of work to be done. This is necessary for two obvious reasons: first that the benefits of specialization may be secured and, secondly, responsibility may be more definitely located. When the work of government is distributed to political organs in accordance with the nature of function to be performed, it is the functional distribution powers. Carl J. Friedrich says that true constitutional government does not exist “unless procedural restraints are established and effectively Operating. “ Such restraints involve some division of power; for evidently some considerable power must be vested in those who are expected to do the restraining. Such a division of governmental power under a constitution has largely taken two forms: the functional division-such as that into legislative, executive, and judicial, and the spatial (territorial) division of federalism.
Based upon this principle of distribution, all the powers of government have long been conceived as falling within one or another of three great classes, according as they have to do with :
(l) the enactment of making of laws,
(2) the interpretation of these laws and
(3) their enforcement.
To these three classes have been given the names, legislative, judicial and executive. Structurally considered, government has been deemed to be made up of three branches having for their functions the enactment, the adjudication, and the enforcement of law, and the branches to which these functions belong are known as the Legislature, the Judiciary, and the Executive respectively.
This three-fold division of governmental powers had received such general recognition that it became a classical division. But recently it has been held by some writers that this division is unscientific. Willoughby, for example, says “that attempts to act upon it lead not only to confusion of thought but to serious difficulties in working out the practical problems of the distribution of governmental powers funct1onally ” He suggests that electorate and administration are distinct branches of government and it is important to recognize their distinct character in the practical work of organizing and operating a government In Sweden administrative power has been separated from the executive power and Carl Friedrich says, “without any theoretical recognition of the fact, the American federal government tends in the same direction of differentiating between strictly executive and purely administrative functions. ”4 Gladden, however, does not support this point of View, and 15 of the Opinion that administration “is subordinate to the main powers or branches of government” Gladden’ 5 opinion is convincing and we adhere, to the three-fold division Nor can there be a divorce between the electorate and legislative functions. Political sovereign and legal sovereign are the two aspects of the sovereignty of the State. The will of the electors is the controlling power behind the legal sovereign and it is to their mandate that the legal sovereign must ultimately bow
Theory of the Separation of Powers.
Political liberty, we have emphasized, is ‘possible only when the government is restrained and limited. The theory that the functions of government should be differentiated, and that they should be performed by distinct organs consisting of different bodies of persons so that each department should be limited to its own sphere of action without encroaching upon the others, and that it should be independent within that sphere, is called in its traditional form, the theory of the Separation of Powers. Montesquieu, the celebrated French scholar, wrote in his famous book, The Spirit of the Laws, that “constant experience shows us that every man invested with .. power is apt to abuse it, and to carry his authority until he is confronted with limits.” Montesquieu poses the question clearly enough. He asserts that concentrated power is dangerous and leads to despotism. But how to avoid concentration of power? His answer is simple: by separating the functions of the executive, legislative and judicial departments of government. so that one may operate as a balance against another and, thus, power should be a check on power. Le pouvoir arrete le pouvoir; power halts power. A constitution may be such that none “shall be compelled to do things to which be 1s not obliged by law, or not to do things which the law permits. ” Montesquieu’ s thesis is the division of ‘ powers by functions and the theory emerging there from is known as that of the Separation of Powers. The exposition given by Montesquieu has now become classical.
The idea contained in the theory of the.Separation of Powers was not entirely unknown before Montesquieu. Its origin can be traced back to Aristotle, if not indeed to earlier writers. In the Politics is found an analysis of three “parts”, or branches of government- the deliberative, executive and judicial. 6 Aristotle did not go’ into details. He. confined himself to a description of their personnel, organization, and functions, without suggesting their separation. Various political philosophers, from Marsigilo of Padua 1n the fourteenth century, gave some attention to the theory of Separation of Powers, but it meant little to Political Science until the issue of political liberty became urgent. 111 the seventeenth century it ” began to acquire eighteenth, with the critical times, items to the forefront of discussion.”
There are traces of the theory in John Locke’s Civil Government. Locke distinguished between three powers that existed in every commonwealth. These he called legislative, executive and federative; the federative power related to the conduct of foreign affairs. The executive and federative powers, he ‘pointed out “are always almost unite ”, and to this union he expressed no objection But he would not permit the union of the executive power with the legislative. The legislative power, he said, “in well-ordered commonwealth, where the good of the whole 1s so considered as it ough, ” is placed in the hands of an assembly that convenes at intervals. But since the administration and enforcement of law is a continuous task, a power distinct from .the legislative must remain “always in being.” In practice, “the legislative and executive powers come often to be separated.” In principle, too, Locke argued that they should be separate, “because it may be too great temptation to human frailty, apt to grasp at power, for the same persons who have the power of making laws to have also in their hands the power to execute them.” This division of authority and the separation of executive and legislative power is justified and explained by Locke on the ground that it is necessary for the maintenance of liberty. Liberty suffers when the same human beings make the laws and apply them.
The Ideas of Montesquieu.
Here were the threads for Montesquieu to gather, elaborate and expand, and then to formulate them in concrete terms. Montesquieu-lived in the time of Louis XIV, the author of the famous dictum, “I am the State.” The monarch combined in his person all the three powers. His‘ word was law and his authority was unquestionable. . . There was no liberty for the people under such an Oppressive and despotic government Montesquieu happened to visit Great Britain and was tremendously impressed by the’ spirit of freedom prevailing there. He tried to find, out the causes of the liberty of the British people. He compared the independence of the judges and the strength of Parliament there with the subordination of the judiciary to the French. Monarchy and the virtual extinction of the Estates-General. Not foreseeing the rise of the Cabinet system of government in Britain and keenly desiring to substitute political liberty for royal absolutism in France, Montesquieu advocated the separation of powers as a device to make government safe for the governed. The division of powers that he envisaged was the same as that of Locke, except for renaming Locke’s executive power and calling it the judicial power The executive function, as described by Locke, had been to execute the laws in any case. He also changed Locke’s terminology and named his federative power as the executive power. But in his insistence that they must be entrusted separately to different personnel he went considerably ahead of his predecessor. His most famous statement runs thus:
“When the legislative and executive powers are united in the same person, or in the same body of Magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, and‘execute them in a tyrannical manner. Again, there is no liberty if the judicial power he not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would exposed to arbitrary control, for the judge would then be legislator. Were it joined to the executive power, the judge might behave with Violence and oppression. There would be an end of everything, were the same man or the same body… to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the cases of md1v1duals”
To explain briefly and in simple language, Montesquieu endeavored to establish that. whoever has unrestrained power, will abuse it If the legislative and executive powers are combined 1n the same person or body of persons, there can be no liberty, because the same agency becomes the maker and executor of laws. Similarly, if the legislative and judicial functions are combined the maker of laws 1s also their interpreter. If the executive powers are combined with the judicial, the same agency is the prosecutor as well as the judge. If all the three powers are concentrated 111 a single hand there would be an end of everything, as there will be tyrannical laws interpreted and enforced with the violence of an oppressor. Montesquieu’s thesis is that concentration of legislative, executive and judicial functions, either in one single person or a body of persons, results in abuse of authority, and such an organization is tyrannical He urged that the three departments of government should be so organized that each should be entrusted to different personnel, and each department should perform distinct functions within the sphere of powers assigned to it.
There has been some controversy among students of Political Science whether Montesquieu contemplated an absolute or only a limited separation of th1ee powers. One school is of the opinion that Montesquieu desired absolute separation so that each department remained independent and supreme within its own sphere. Others believe that he never thought to separate the powers completely. He rather suggested modification of the concentration of powers. “Montesquieu was searching for means,’ as Herman Finer observes, “to limit the Crown; to make a constitution; to build canals through which, but , not over which, power should stream; to create intermediary bodies; to check and balance probable despotism and yet he did not wish to fly to the extreme of democracy?” For Montesquieu, the executive convenes the legislature, fixes its duration, and votes legislation. The legislature has the right of impeachment.
It may not arraign the chief of the State but, “as the ‘person entrusted with the executive power cannot abuse it, without bad counselors, and such. as have the laws as ministers, though the laws protect them as subjects, these men may be examined and punished.” His idea of impeachment is aki1 to that of political responsibility of ministers in our times. Loeke’s analysis of the government structure, too, proves that the various powers of government Were not to b separated into watertight compartments. He made them dependent on the supreme power of the people, the executive functioned 1n subordination to the legislature; and the judiciary worked as part and parcel of the executive.
The essence of Montesquieu’ s theory of Separation of Powers is that it imposes t each organ of government the obligation to explain itself and to~see that it acted with law and not beyond it. If the authority exercised is in excess of that permitted by law, it should be checked by the. other in order to restrain its encroachments. And this is the correct meaning of le pouvoir artere le pouvoir- power has power. There must be a separation of powers within the structure of government in order that one power may operate as a balance against another power. Such 3 check Montesquieu considered necessary ‘ for safeguarding the liberty of the individual and for avoiding tyranny. Montesquieu follows Locke, f‘but with more system and it is important to observe that he never thinks to separate the powers completely, but rather to modify the concentration of powers.”
A similar view was expressed by Backstone, the British jurist. In his : Commentaries on the Laws of England, Blackstone said, “Whenever” the right of making and enforcing the law is vested in the same man or one and the same body of men, there can be no public liberty. The Magistrate may-enact tyrannical laws and execute “them in a tyrannical manner since he is possessed, in his~quality of dispenser of justice, with all the power which he as legislator thinks proper to give himself Where it (the judicial power) joined with the legislative, the life; liberty, and property of the ’ subject would be in the hands of arbitrary judges whose decisions would be regulated by their opinions, and not by any fundamental principles of law which though legislators may depart from yet judges are bound to observe. were it joined-with the executive this union. might be an over-balance of the legislative.”
Practical Effects of Montesquieu’s Theory.
Montesquieu’s theory of Separation of Powers had a great democratic appeal and it soon became a political dogma. The teachings of Montesquieu gave fillip to the French Revolution, and nearly all governments of the ‘ revolutionary period were organized “on the principle of Separation of Powers. The famous Declaration of Rights; issued after the Revolution, laid down. that “every society in ‘ which the separation of powers is not determined has no constitution.” The Constitution , of 1791 made the executive and the legislature independent of each other, and the judges elective and independent. ‘For a short span of tithe, during the regime of Napoleon, it was defied, but the doctrine was constantly in the minds of the people. As a constitutional maxim it is jealously ‘cherished even today.
In the United States, Montesquieu’s theory found its best expression. “We shall never know,” says Herman Finer, “whether the Fathers of the American Constitution established the separation of powers horn the influence of the theory, or to accomplish the immediately practical task of safeguarding liberty and property.” But they definitely. desired liberty in the sense enunciated by Montesquieu. They also desired limits upon despotism. Independence from British suzerainty had given them the first. A short experience ‘with legislative supremacy, after the Declaration of Philadelphia, had convinced them that concentration of power in any one institution was fraught with abuse. While writing about the Constitution of Virginia, Jefferson wrote: “All the powers of government, legislative, executive, and judicial, result to the legislative body. The concentrating of these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one
The same point was elaborated by Madison while issuing a similar warning: “The legislative department is everywhere extending the Sphere of its activity, and drawing all power into its impetuous vortex They (the founders of our republics) seem never to have recollected the danger from legislative usurpation, which by assembling all power in the same hands, must lead to the same tyranny as it had been threatened by executive usurpation.”
If concentration of power was the evil to be avoided, was there besides executive or’ legislative omnipotence some third possibility? The alternative was what has come to be called Separation of Powers. In fact,,Separation of Powers became a political creed with the statesmen and those engaged in the framing of the national constitution at the Philadelphia Convention. They were not new to the theory.
The governmental system of the Colonial “period embodied a species of Separation of Powers. Prior to 1776, the executive branch, under the Governor, was distinct from the legislative, and controversies between them were rampant in the two decades that led up to the Independence. With the principle of judicial review, the statesmen of that day’ were also equally familiar as the constitutionality of Colonial Acts could be challenged before the Judicial Committee of the Privy Council in London “History, therefore, joined hands with philosophy in writing a separation of powers into the federal constitution ”15 The influence of Montesquieu’s was, indeed, powerful and decisive. Madison unequivocally maintained that Montesquieu was “the oracle who is always consulted and cited on the subject.” 16 Whatever ‘ be the respective weights of influence in the Philadelphia Convention, the American. Constitution, as Finer observes, “was consciously and elaborately made an essay in the separation of powers and is today the most important polity in the world which operated ‘ upon that principle. ”
But the American Constitution did not explicitly state that powers ought to be separate. It simply distribute the powers; legislative powers were vested 1n Congress, the executive powers in the President, and the judicial in the Courts. While apportioning the lion’s share of powers to one department of government the Constitution gave smaller slices to each of other departments. This was done to avoid concentration and consequent abuse of power. The maxim with the Fathers of the Constitution was that power should be limited, controlled and diffused. “If power is not to be abused then it is necessary, in the nature of things, that power be made a check to power.” In the field of legislation, for example, the bulk of the law-making power was placed in Congress, but the President received his share in the powers to recommend measures, to summon Congress in special session, and to veto bills. Similarly, the Senate shared with the President his power to. make appointments, declare war, ‘and ratify treaties. The Supreme Court, by exercising the power of judicial review, asserted its claim to a portion of the legislative function. Congress, too, acted in a judicial capacity in cases of impeachment where the House was empowered to prosecute and the Senate sat in judgment. The President could intervene in the business of the courts through his power of. pardon for all offenses except treason.
As portions of each function were distributed among different agencies, the Separation of Powers was really attended to result in a system of checks and balance. The system of checks and balances had two obvious results. First, and ordinarily, unless the members of the three branches of government saw eye to eye and cooperated harmoniously, none of the principal functions of government could be adequately performed Second and conversely, if any department or pair of departments ventured to exceed their constitutional authority, they “could be restrained by the refusal of a third to contrive.” In this way, the Fathers of the Constitution destroyed the concert of leadership in government which is so prominent a feature of our times. Finer, thus, sums up the theory of Separation of Powers as it has worked in the United States. He says, Legislative procedure has come to differ essentially from that in Britain and France; financial procedure is worlds apart; there is no coordination of political energy or responsibility; but each branch has its own derivation and its morsel of responsibility. All is designed to check the majority, and the end is achieved. At what cost?” T he cost cannot be measured in terms of dollars. With powers divided between the executive and legislative departments without any means of proper coordination, there is always inordinate delay to arrive at an agreement even on pressing matters which demand expeditious disposal. One branch of government may be operating on one policy whereas the other may follow quite a different one, particularly, when the executive belongs to one party and the Congressional majority to another. Some Presidents have, no doubt, succeeded in bridging the gap separating them from the legislature. “But while an emergency may bring,” says Zink, “temporary coordination and the use of patronage can usually be counted upon to pave the way to some action, the National government is still torn to parts by the provision which the framers made for separation of powers. ”
EVALUATION OF THE THEORY
The Theory Restated. Much has been said about the theory of the Separation of Powers.But what kind of Separation of Powers 1s needed ? Here much of the clarity rs obscured by the use of the ambiguous term ‘.‘power” The government has certain functions to perform in order to serve the purpose of the State. If functions are taken as powers, then the idea of service entirely disappears and the organs of government become invested with power Wherever there rs power there 1s force. A government having its foundation on power becomes an engine of force. The use of the term power is most unfortunate and accordingly, the cause of so much confusion. The doctrine of Separation of Powers is itself a protest against power and its meaning can be better analyses and appreciated, if we drop the reference to ”powers and substitute for it ‘functions’ of the organs or branches of government. “A branch is an organization of agencies with their personnel. The services they undertake are their functions.” The functions of the government are legislative (rule making), executive (rule application), and judicial (rule adjudication).
Accepting this as the criterion of our distinction, the doctrine of Separation of Powers can be restated in the following manner: The activities of government group themselves.
into three divisions. These divisions are not a matter of theory, but it is a practical fact associated with the character of the functions themselves. it is one thing to legislate. another to administer, and a third to judge. By assigning each of time functions to different branches of government composed of separate personnel and following their own mode of action, separation is obtained. Such a statement transfers the doctrine from the realm of theory to that of political fact.
Absolute Separation Impossible.
But it does not mean absolute separation. Separation of Powers, according to Barker, “must certainly mean a distinct mode of action.” Each organ of government has its own distinctive mode of action.” The legislative mode is “deliberate and deliberative”; the judicial mode is critical rather than deliberative and the executive mode is a rapid determination of decisions and instructions in order to give ’effect to legislative ,and judicial modes. In a word, as Barker says, “we shall find three organs corresponding to the three different modes of action; -but we may find one of the organs so absolutely specialized in its mode of action, or so entirely separate in its province, that it cannot also act in the mode and enter the province of others.”19 Madison correctly explained the doctrine of Separation of Powers when he said, .“The powers properly belonging to one department ought not to be directly administered by either of the other departments. It is equally evident that neither of them ought to possess, directly or indirectly, ‘an over-ruling influence over the other in the administration of their respective powers.” The premise of Federalist Paper 47, which is essentially concerned with the political theory of federalism,~is that any person or body of persons possessing power may be tempted to abuse it unless controlled, and that power can be checked by power. The Separation of Powers attempts to create a balance among the competing units. ‘
The State is an organic unity and the various departments of its machinery are interconnected. By the nature of their functions, they cannot be divided into water-tight compartments. The government must always be viewed as a whole, and its organs, though distinct, must work 1n unison in order to be useful and effective in serving the purposes for which they have been created. The real problem, according to MacIver, “is so to articulate these that responsibility shall not be divorced from efficiency. The functions of government are divided ,into different departments so that each department does its job to the host of its efficiency and with due regard to its responsibility. Efficiency demands expert knowledge of the problems which face a country and responsibility means the diversion of that knowledge towards those channels which are responsive to the needs of the people. This is the iirst principle of democracy. The Separation of Powers is, accordingly, needed for proper articulation and not for the division of organs of government into water-tight compartments. To put it in the language of Almond and Powell the theory of Separation of Powers is pre-eminently’a functional theory. “Among its central concerns are the nature of legislative, executive and judicial power; the question of how best to maintain their separateness; the values resulting from such separation; and the problem of how best to mesh these separate institutions of government with the structure of‘ society”
There cannot be any isolation or disharmony between the different departments of government. Isolation is not the essence of the doctrine and Montesquieu never suggested it. Each department performs some functions which actually do not belong to it. In fact, in all modern systems, institutions exercise overlapping functions of some kind or provision is made for some degree of cooperation between the different organs and branches to perform the work of government The legislative department is not wholly and solely confined to the legislative mode of action, although it is primarily and .mainly concerned with that mode.
There is a judicial organ primarily and mainly concerned with the judicial mode of action, but not necessarily confined to that mode. There is similarly,an ‘ executive organ which may be concerned with other modes of action besides the executive. A judge, for example, makes a new law when he gives a decision on a point covered by law or in which there does not exist a precedent. Here is a case in which the judicial and legislative functions combine as a result of natural process. Again, the executive everywhere possesses the power of issuing ordinances and proclamations. This is a device of practical utility, but it has to be. admitted that ordinances and proclamations are’ a formidable substitute for legislation. The executive is a legislature in another sense too. It. suggests and guides the process of law-making by the .legislative organ. It does sounder the American system of division of functions between the President and Congress; and it does so even more under Cabinet system such as the British and the Indian. The legislature, too, performs various executive functions.
In a parliamentary government it creates the real executive, retains it in office and controls its functions. In the Presidential system, as obtainable in the United States, the Senate has a share in making appointments and ‘ ratifying treaties. Executive and legislative departments perform judicial functions too. The Chief Executive head of the State everywhere possesses the power of pardon The House of Lords rs the highest Court of Appeal 1n Britain. The Senate in the United States acts as a court of impeachment.
There is no Separation of Powers in Britain as Montesquieu ‘is claimed to have understood. He had in his mind a longing for liberty against the autocratic powers of Kings and princes. Britain presented to him a sharp contrast with the conditions prevailing 1n his own country. Without forming a real idea of the actual working of a democratic government, more so a responsible, he concluded that liberty can be secured only by a mechanical check of one department over the other. For him this was above all else a practical recipe for political liberty. But Montesquieu wrote at a time when institutional cheeks appeared to be the only feasible ones. The value of the doctrine by dispersing functions among different political institutions is that it attempts to provide a limit to political power and a brake on action by constitutional devices. Power must be limited if liberty is to exist, for unchecked power is as dangerous as the unity of temporal and spiritual powers This is precisely what Montesquieu enunciated.
All Departments not Coordinate.
The traditional analysis of the do‘doctrine of Separation of Powers takes for granted that the three wings of government are coordinate or equal. But this is not precisely so With the growth of democracy the executive has been reduced to a subordinate position. The legislature is really the regulator of administration. By its control over the finances of the country it limits and controls the executive, howsoever theoretically independent the executive may be In a Cabinet system of government the subjection of the executive to the legislature at every step is undisputable The judiciary, too, is obviously subordinate to the legislature, although its independence is the most coveted maxim of democracy.
It ‘does not, however, mean that legislature is not subject to any kind of check. The. bounds of the sovereign legislature are many and various. In. the first place, legislature is bound by moral and ethical codes. All proposals for law are assayed on the touchstone of practical utility and moral considerations. No parliament can pass laws which are against the facts of nature or are against the established codes of public or private morality. Secondly, the legislature, like the whole of government, is limited both by the purpose it fulfills and the mode of action it follows. The most important limit on the legislature is the limit imposed by the development and activity of political parties. There is, what has been described as, a parliamentary forbearance. The minority agrees that the . majority should govern, and the majority agrees that the minority must criticism and oppose. Opposition is an effective restraint on the vagaries of the majority. party in the legislature. Both the party in office and the Opposition understand the mics of the game and know that at’ some future date their positions may be reversed. Thus, the concept of Separation of Powers, in its traditional analysis, has been impossible to realize in any complete way.
The totalitarians reject the doctrine of Separation of powers from beginning to the end. Separation of Powers is aimed at preventing despotism whereas totalitarianism believes in unity and oneness of power. One of the Communist jurists wrote, “The Separation of Powers belongs to a political era in which political unity was reduced to a minimum in the interest of an autonomous bourgeois society. However, national and ethnic unity and oneness demand that all political powers be gathered in the hand of. one leader. The Communists reject the doctrine outright as it is bourgeois principle.” Vyshinsky wrote, “… From top to bottom the Soviet social order is penetrated by the single general spirit -of the oneness of authority of the toilers. The programme of the All Union Communist Party rejects the bourgeois principle of Separation of Powers.” Soviet writers argued that Montesquieu developed the theory as a means of limiting the absolute powers of the Kings of France. In the Soviet Union there was no class conflict and hence there was no need to limit one branch of government by another. All organs of government had to work 1n the same interest.
What the Doctrine Means Today.
The modern democratic view does not accept the ‘ traditional analysis of the doctrine of Separation of Powers. It is explained that Montesquieu’ s views were the product of an era which looked upon government itself as something inherently dangerous and possibly despotic. That government was deemed . best which governed least as it existed to protect and restrain, not to foster and promote. But today, even the most conservative person is unable to think of government in purely ” passive terms. The intensive integration and complexity modem industrial society, and the accepted concept of a Welfare State demand more and more action and Services from the government. All this needs planning the life and resources of the nation.
The Welfare State tends to concentrate power on the executive level and consequently, it means ascendancy of the executive over the legislative branch. Locke had conceived of the relation between the three powers in terms of legislative supremacy. Montesquieu and Madison preferred to see an equilibrium between the three coordinate branches But such a division now seems outmoded for all practical purposes as it is incapable of guaranteeing the services which the government is expected to render. Flaming and active service cannot be the work of separate branch of g.government which cancel each other out. Planning must be unified. Fusion and not rigid separation of functions is required. Thus, “moulds are broken in which the thoughts of Locke, Montesquieu and Madison were cast and their contents have spilled together.”
The ascendancy of the executive and the blurring of the traditional division of functions have been influenced by two other important tendencies. One is the organization of the career civil service and the second is the emergence of political parties with their. nationwide organizations. Political parties unite what one may try to separate The development of the executive, therefore, into what may be called a multi-functioning organ, is one of the _ most notable features of a modem government. To put it in the words of Barker, “If the growth of the legislative organ, in consequence of the development of the cabinet.system, was the notable feature of the eighteenth century, it may be said that the growth. of the executive organ in consequence ‘of the extension of rights and the corresponding extension of services which mostly fall to the lot of the executive, is the notable feature of the twentieth. ” Today, the executive is not only an executive, it is also, at the same time a legislature; it exercises a judicial jurisdiction too. Administration and adjudication no longer seem as different as they had once appeared.
The core of the modern problem of government is to find a synthesis combining the answer to tum needs-the need for the Welfare State and the need for The Welfare State, as said before, means concentration of power on the executive level and, accordingly, the ascendancy of the executive over the legislative branch. This tendency . seems to be an alarming development to many. It is, undoubtedly, alarming unless controlling and balancing devices are properly developed to keep pace with the ever changing face of the executive power. The doctrine of Separation of Powers has become important today than perhaps at any other time.
One of the checks on the executive is the system of judicial review. Montesquieu: himself was particularly interested in the judicial power as check over and arbiter between the other two branches. This concept is more clearly realized 1n the United States, India and some. Commonwealth countries. The idea of an independent and coequal judicial branch also spread to Germany (Bonn) and Austria. In France and Italy the supreme administrative court, the Council of States in the former, applies the most effective check’ on the executive power, although it is nominally 21 part thereof.
The balance between executive and legislative branches is a legal question primarily in countries with the Presidential system of government. There the Constitution prescribes, the rights of both as well as their limitations: The emergence of political parties in the United States, it is suggested, has tended to redistribute the authority divided by the Constitution and have obliterated the doctrine of Separation of Powers to a considerable Extent Carl Friedrich, however, is of the view that emergence of the political parties “does not obliterate the Separation of Powers but it certainly softens it.
At the same time the alteration of two parties itself constitutes a regularized restraint which consequently reduces the need for rigid separation. ’23’ But under a parliamentary system the principal check is the existence of political parties and the development of the constitutional custom of party alteration There is also the impartial judiciary. Then, the elected -representat1ves debate and‘ ‘propose” in Harington’ s phrase, while the electorate resolves through general elections the party to form the government and the one to constitute the Opposition. By this process is effectively preserved the basic conception of balance and counterpoise
Barker suggests another check. He accepts the bare truth of our times that the executive is a mum-functioning organ, but he emphasizes that when the executive performs legislative and judicial functions let it employ the mode of action relevant to that department. For example, if the executive exercises judicial functions let it adopt the proper and peculiar mode of judicial action, i..,e it must accept the procedure of public hearing, summoning witnesses and recording of evidence according to the rules of evidence. It must publish its decisions and it must also admit, if it possibly can, the possibility of appeal.
The need is, therefore, for union as well as separation. Democratic government demands that a synthesis be found between the Separation of Powers, and the possibility of concerted government action. The first is obtained by continuing with the separate organs of government. It 1s intrinsically good to do so, for it sets a limit of jurisdiction over the functions of each organ. Each organ establishes its own distinctive mode. of action with its own distinctive technique. But it does not mean that separation of functions prevents leadership. Too much separation destroys responsibility, immobilizes action and ultimately destroys free government. Without leadership there would soon’ be a constitutional crisis and possibilities of the rise of dictatorship. But it is essential to temper leadership-by imposing limitations upon it. The real limitations are those which make the government responsible to the people, that is, it must answer to the‘people for its policies and if its answers are not satisfactory to the people, they should have the means to replace it. It can be ensured further by the presence of an independent and impartial judiciary, the guardian of the rights of the people. Thus, the Separation of powers is a living force 1n all democratic countries as a check to irresponsible power.
In the context of what has been said above the theory of Separation of Powers now rests upon broader grounds than suggested by the limited doctrine of Locke and Montesquieu. 1t reconciles theory with practice and thereby establishes harmony between ‘ division and concentration of powers to maintain the safety of the political order as a whole. It, stands for an effective system of divided powers as contained in the classical doctrine and considers it sound, but holds that there is nothing sacrosanct about it. It appreciates the difficulties resulting from divided powers and considers them great, but ~ it also realizes that the consequences of concentrating power are really disastrous.
This has given rise’to a new theory of div1ded powers; a scheme suitable, on the whole, to the needs of an industrial society. The advocates of this new theory point out that the classical doctrine of Separation of Posters “has an implicit double meaning. 0n the one hand it contains a generalization, theory or hypothesis; on the other hand it contains a practical suggestion, a proposal for the organization of government in the interest of individual liberty.” The idea that there are three major types of governmental power seems to them a valid generalization and one in accord with the Operations of the human mind. They agree with Immanuel Kant that this distinction of powers corresponds to the pattern of a practical syllogism, divided as syllogism into the major premise, the minor premise, and the consequent ”24 The resemblance of the distinctions underlying the separation of powers and the pattern of a syllogism is due to the fact that commands imply decisions, and decisions in turn imply judgments. ”
Power means, inter Alia, that a person or group possesses the ability to command and. the ability to command involves the ability to decide, whenever there is a choice between several alternatives. Power, therefore, admits of commanding and deciding. Specific ’ l decisions and commands are the realm of executive power, general decisions and commands fall within the sphere of legislative power. The latter is for that reason often called the rule-making power. Similarly, the executive power may be called measure-taking or rule application. The judicial power apparently stands between the two, for it transforms a, general into a specific decision. When a general command has been given, or a general decision made, that is, the rule has been established, there still remains the further decision involved in adjudicating the rule. The judicial power makes a specific decision by applying the rule. The decision made is not a command. It is for this reason that the pronouncements of the” courts, while adjudicating, are described as decisions and the whole process as rule. That is, the specific decision is rendered while applying rules.
But the advocates of the new theory of divided powers contend that most of the time ‘ . the government functionaries are their own judges. Whenever they decide to do or not ‘ to do something because the law demands or forbids it, they apply that law “by subsuming the particular situation with which we are confronted under the established legal rules.”26 ,Ordinarily, it is only the doubtful and controversial points of law which are brought before the courts. Majority pf them are decided by various commissions and tribunals with which an industrial society is honeycombed today. The decisions of these commissions and tribunals are administrative in their‘nature and not in strict accord with the classical theory of the Separation of Powers Those who criticize the new theory of divided powers seldom appreciate the practical aspect of the functions of government and the task which it has to undertake. Administrative tribunals and commissions have taken deep roots in almost all countries and, in some, such tribunals carry a constitutional sanctity, as in India. The only point which need be emphasized IS that these commissions and tribunals should adopt the mode of judicial action as Barker suggested