Separation of Powers and Checks and Balances - Essay Example

Theoretically, each branch has unique and particular functions that are suitable to either. The constitution provides the powers of the legislature, which is generally to make laws and legislate. The executive has the authority to make decisions on administration and enforcement laws, and the judiciary is mandated with interpreting laws and punishing those who break them. The goal of the Constitution is to prevent tyranny by dispersing power so that no one body has a monopoly.

An absolute separation of these powers with none overlapping with the other is not practical and would put the government at a standstill. The doctrine does not demand absolute or rigid separation as it is not possible. The Federal Constitution offers a relaxed version of the separation of powers. These roles overlap and one power finds itself doing the work of the other in the process of doing its duties. They also act as checks and balances for each other. For example, the power to make laws belong to the parliament, and courts have the interpretative role of the same laws.

Courts also check on the executive by reviewing their decisions and striking them on grounds of judicial review. The executive also interferes with the judiciary as it appoints judges in the judiciary and is clothed with the powers of prerogative pardon. This undermines the court's executive powers to prevent interference with their proceedings and to secure enforcement of their decisions. Further, the Senate has a role in appointments and treaties checks on the President. Congress also has the authority to prevent fraud and abuse of authority in the other two branches.

Therefore, the separation of powers is only a theoretical rather than a practical doctrine. From this, it is quite doubtful whether it is necessary to attribute that clear distinction of roles to a theory of the separation of powers as put forth by Lord Diplock in Duport Steels v Sirs.3 Clear separation of powers is impossible in a democratic society.