What is Separation of Power? Meaning, Origin, Merits and Demerits


What is Separation of Power? Meaning, Origin, Merits and Demerits

Separation of powers is the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. 

It is also the vesting of the legislative, executive, and judiciary powers of government in separate bodies. Constitutional arrangements based on separation of powers

Separation of powers and responsibilities is an important principle in the organization of modern government.

In this article, we shall examine the principle behind the theory of separation of powers, its objectives and applications in selected countries, as well as its merits and demerits. 

Whereas separation of powers and responsibilities is key to the workings of modern government, no democratic system, in practice, exists with an absolute separation of powers or an absolute lack of it. 

Governmental powers and responsibilities essentially overlap because they are too complex and interrelated to be neatly compartmentalized.


Meaning of Separation of Powers

Separation of powers is the division of government responsibilities into distinct organs to limit any of the organs from usurping and exercising the core functions of another organ. The purpose is to prevent the concentration of power and provide for checks and balances.

The theory simply enjoys that the same body or person should not be in control of more than one arm of government. Power must not only be separated but must also be exercised by different persons or body of persons.

According to a French political jurist – Baron de Montesquieu, the concentration of the legislative, executive and judicial functions in the same person or body of persons would be dangerous and would cause authoritarianism and despotism.

Hence, the need to separate these powers to provide a system of checks and balances to ensure that no one power became two strong and thus absorb the functions of the other.

However, while the separation of powers is fundamental to the operational effectiveness of the modern government, there is no democratic system where the separation of powers is absolute or completely absent.

In practice, governmental powers and responsibilities, rather than neat compartmentalization, intentionally overlap. As a result, there is an inherent measure of competition and conflict among the organs of government.

The doctrine of separation of powers is more pronounced in a presidential democracy than in a parliamentary democracy, where there is ‘fusion of powers’.

The practice of using power to check power, which is known as ‘checks and balances, is not necessarily, a violation of the theory of separation of powers; it merely seeks to promote some interrelationships among the organs to check abuse of government powers. 

For example, the laws made by the legislature are interpreted by the judiciary and could be declared void if found not to be consistent with the provisions of the extant laws.

The executive also initiates laws and presents budgets for the approval of the Legislature; otherwise, such budgets could not be spent by the Executive. In the same vein, laws made by the Legislature cannot become operative until it was given assent by the president. 

The president can, however, withhold his assent which amounts to an exercise of veto power. The Legislature can similarly decide to upturn the veto of the president by the use of two-thirds majority. 

The executive makes the appointment of senior judicial officers but it has to be ratified by the Legislature to take effect.


Origin of Separation of Powers

The doctrine of separation of powers is associated with earlier political philosophers. It first originated in ancient Greece and became widespread in the Roman Republic as part of the initial Constitution of the Roman Republic.

The Aristotle (384-322 BC) in his book “The Politics” stated that: “There are three elements in each constitution in respect of which every serious lawgiver must look for what is advantageous to it…. The three are, first, the deliberative, which discusses everything of common importance; second, the official; and third the judicial element.” 

At the time of Edward, I reign (1272-1307), however, the separation of powers emerged in England, with the appearance of Parliament, the Council of King and the courts.

The doctrine of separation of powers, however, received its finest formulation by a French political thinker and jurist, Montesquieu who coined the term "trias politica" or "separation of powers". His book, “Esprit des lois” “The Spirit of the Laws” published in 1748, is considered one of the great works in the history of political theory and jurisprudence, and it inspired the Declaration of the Rights of Man and the Constitution of the United States (Ojo, 1973).

Merits of Separation of Powers

The theory of separation of powers has been instituted to fulfill certain objectives. These objectives can be regarded as its advantages. 

They include the following:

1. Prevention of Tyranny

It reduces the abuse of power because power is not concentrated in one arm of government but rather separated among the three arms. By so doing, the tendency of having an arbitrary rule is very low.

2. Specialization and Efficiency

The theory of separation of powers, which is the political application of the economic theory of division of labor, makes for specialization and efficiency in governance. By concentrating on the same job in a routine like manner, the maxim ‘practice makes perfect’ becomes the order of the day.

For instance, by concentrating on law-making, the legislators will gain expertise in it while the executive also becomes more adept in the task of policy formulation and its execution. 

Similarly, the judiciary acquires better erudition and distinction in its duty of interpretation of the law and settlement of disputes.

3. Preservation of Liberty

The theory of separation of power also guarantees the rights and liberty of the citizens. If the powers of the three organs of government are placed under one authority there is the likelihood that tyranny and arbitrariness may ensue. 

According to Lord Acton, “Power intoxicates and absolute, power intoxicates absolutely”.

4. Safeguards Independence of Each Organ

Separation of powers also ensures the independence of each of the organs of government in the functions and also recognizes that the function assigned to each organ by the constitution requires distinct specialties.

For example, a judge must possess the qualities of impartiality and detachment combined with brilliance and erudition for him to succeed.

A legislator must not only be able to connect with his constituents, he must also possess the power of communication. 

Similarly, a chief executive must have the capacity to rank his priorities among many competing issues within the policy agenda.

Given the different qualities that are required by those that will occupy these different positions, it is most unlikely that these attributes can be found in one person.

Therefore, it is only through the separation of powers that individuals with these different but complementary attributes can be assembled to discharge the three functions of government.


Demerits of Separation of Powers

The theory of separation of powers has the following demerits:

1.  A rigid separation of powers may produce negative consequences because it can make it difficult for the legislature and executive, in particular, to cooperate.

In the event of lack of cooperation between the lawmakers and those who enforce these laws the machinery of government may be at best, be impeded, or at worse, grind to a halt.

2. The theory of separation of powers as propounded by Montesquieu has been criticized for being too idealistic and mechanistic, and therefore not realistic. The reason is that given the nature and process of government, it is impossible to keep the three organs of government in separate watertight compartments.

3. Although the idea of checks and balances is meant to introduce some level of flexibility, the mechanism of separation of powers can produce the unintended consequences of preventing government functionaries from taking quick decisions.

4. Critics of separation of powers argue that complete separation of powers and functions is impossible in reality. They argue that it is not possible to define the area of concern of each organ in such a manner that each is independent and supreme in its area without the other having a role to play.

For instance, the process of lawmaking is incomplete until the executive gives its assent.


Applications of Separation of Powers

Separation of Powers in the United States of America

The principle of separation of powers is clearly incorporated in the constitution of the United States. The American constitution was consciously and elaborately made an essay in the separation of powers and is today “the most important polity in the world which operates upon the principle (Finer, 1949).

The constitution of the United States divides the Congress into two bodies: the Senate and the House of Representatives; and the two legislative chambers are primarily and exclusively vested with the law-making powers.

The executive powers also solely lie with the executive arm, while the judicial functions are handled by independent courts. Through the mechanism of checks and balances, the needed flexibility is introduced into the operations of separation of powers in the United States (Duignan & Decarlo, 2018).


The fusion of Powers in Britain

The British constitution does not provide for the principle of separation of powers. Rather what obtains in Britain is what is popularly known as a fusion of powers. This is manifested in different ways.

First, the members of the legislature and the executive are brought into their different offices through the same election. Put differently, the Prime Minister, who is the head of the executive and his ministers who with him forms the cabinet must have been elected into the parliament before they can qualify to serve in the executive arm.

Second, the parliament in Britain comprises the House of Commons, House of Lords, and the Queen, and interestingly the monarch is the head of state in Britain, which makes him or her ceremonial head of the executive.

Third, the Lord Chancellor is not only the head of the House of Lords, the upper house in Britain, he is also the minister of justice, and the head of the Privy Council, the equivalent of U.S.’ Supreme Court.

The examples cited above imply that strictly speaking, there is no separation of powers in the operations of the British government.

Read On: The Executive: Meaning, Types and Functions

Conclusion on  What is Separation of Power? Meaning, Origin, Merits and Demerits

The principle behind the idea of separation of power is unassailable since it can help safeguard the liberty of the citizens by preventing accumulation and possible abuse of power.

However, in reality, it is impossible to have an absolute separation of powers and responsibilities among organs of government. This is why the practice of checks and balances, which we will discuss in the next unit, has become inevitable.

In actual practice, the three organs of government function by cooperation. We have discussed the doctrine of separation of powers, highlighting its origin, merits and demerits.

The article also posited that the doctrine of separation of powers is more pronounced in a presidential democracy than in a parliamentary democracy, where there is ‘fusion of powers.

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