Doctrine of separation of powers

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Doctrine of separation of powers is a legal framework developed a French jurist named Montesquieu whose concern to contain the over-concentration of governmental powers in the hands of one person or a body.

This doctrine is a characteristic of Constitutionalism which is the theory of limited government.
According to Montesquieu the only way to create a system of checks and balances was to ensure that governmental powers were devolved.

He developed the so-called classical doctrine of separation of powers. He suggested that:

1. There should be different organs of government i.e. executive, legislature and judiciary.
2. These organs must exercise different functions. The legislature makes the law, the judiciary interprets it and the executive administers.
3. No person should be a member of more than one organ.

According to Montesquieu, such an arrangement would ensure that no single organ exercises unchecked power, however, this framework cannot operate in any country in its pure state, as government does not operate in water-tight compartments.

Montesquieu is credited for having suggested that these ought to be an independent judiciary.
Montesquieu’s framework is generally effected in many Constitutions of the world.

Independence of the judiciary
The principle of independence of the judiciary is an integral part of the doctrine of separation of powers. It means that:

i. There should be a distinct organ of government whose function is to administer justice
ii. The organ must operate impartially and in an unbiased manner. It must be disinterested as possible in the proceedings.
iii. The organ must administer justice on the basis of facts and law without fear or favour and without eternal influence.

Independence of the judiciary may be actualized in various ways:

i. By providing security of tenure for judicial officers.
ii. Economic independence i.e adequate financial provisions to judicial officers.
iii. Immunity from court action for actions taking place in the course of judicial proceedings.
iv. Appointment of persons of unquestionable professional and moral integrity

Independence of the judiciary is critical in that:
i. It promotes the liberty of human beings checking on the excesses of the state.
ii. It promotes the rule of law.

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