Comparative Critical Analysis of the Doctrine of Separation of Powers - Essay Example

?Comparative Critical Analysis of the Doctrine of Separation of Powers Comparative Critical Analysis of the Doctrine of Separation of Powers Introduction The canon of the separation of powers has tremendously matured the relationships between the executive, the legislature, and the judiciary over decades. This paper is a comparative and critical analysis of the canon of the separation of powers in different states. It uses experiences from the United States and the greater United Kingdom. The doctrine has escalated the separation of authority in these sectors (Calers, 2012; Pg. 44). The democratic space that also originates from the gains from the separation of powers has escalated the attainment of liberty in many governments. The doctrine gained original in the United States as it was a provision in the constitution. In the UK, the adoption of the canon occurred much later with the Constitutional Reform Act 2005 (Benwell and Gay, 2011; Pg. 87). However, there were reform forces within the country that had started clamoring for the need to separate authority of each arm of the government (Benwell and Gay, 2011; Pg. 14). From the ongoing discussions, the paper suggests that whereas the separation of powers canon requires states to delineate clear boundaries in authority and sovereignty within the three branches of governance, some nations are still working with less formal forms and are argued to adopt the balance of powers or a fusion of the two arrangements (Calers, 2012; Pg. 51). The most notable of such countries are the UK and other states with a monarchy system of governance. In fact, some developing nations appear trapped with the hope of attaining the freedom provided by the separation of powers seemingly becoming a myriad. This is because such countries have very superior executive, which easily usurp powers of the other state organs (Calers, 2012; Pg. 51). In some of such nations, incidents of violation of human rights are frequently reported with little no intervention from the relevant arms of the government such as the courts cannot manage to effectively jail perpetrators. This could be because the government facilitates the violation of human rights and the executive cannot sanction any proceedings against itself. Analysis of the Separation of Powers: Executive, Legislature, and Judiciary The debate about the separation of powers has transformed over decades to the point at which people can clearly draw the boundaries between the executive, the legislature, and the courts. However, in other jurisdictions this clarity is still missing because the roles in these three arms seem to overlap (Calers, 2012; Pg. 88). Before the Constitutional Reform Act 2005 came into force, the UK Prime Minister wielded too much power that it was possible for them to influence all other arms of the government. The United States Constitution has a strong foundation for the doctrine of the separation of powers. Article 1 of the US Constitution contains powers granted to the legislature. Article II contains the powers of the executive, which rests upon the president and Article III provides for the establishment of a highly independent judiciary (Benwell and Gay, 2011; Pg. 76). The election of the Congressmen takes place differently from that of the President. The Congressmen are in charge of legislation in the US. However, sometimes the executive can sponsor bills and lobby the Congress to debate and pass them as laws. A clearer example of this circumstance includes the healthcare bill also known as the Obamacare, which was sponsored by President Obama operatives in the Congress. President Obama used strategies available to him to lobby and rally the democratic Congressmen as well as a few Republicans to vote for the bill. The idea behind such initiatives was to push the state to accept the creation of separation of powers. This canon entails ideas that key institutions within a democratic state need to be functionally sovereign such that nobody should have access and unguarded power to span other offices (Calers, 2012; Pg. 23). The key institutions in any state include the executive, the judiciary, and the legislature. The cannon helps in guarding against any form of dictatorship while preserving liberty (Benwell and Gay, 2011; Pg. 52). The states that have adopted this doctrine have separated from each other thus gaining sole independence such that one power in one arm cannot exceed the additional two (Wagner, 2010 Pg. 32). It is notable that good governance is anchored on the systems for checks and balances and the doctrine of separation of powers clearly creates such a system (Calers, 2012; Pg. 45). The US and other nations that have a presidential system of government have developed a firm separation because it is an essential constitutional provision. The governance structure of the UK has not benefited a lot from the concept of the separation of powers (Benwell and Gay, 2011; Pg. 34). There are other law jurisdictions especially in developing countries where the doctrine of the separation of power is still a dream since the president and head of states or monarchy have excessive powers such that they squash the decisions of the legislature and judiciary (Foster, 2012; Pg. 45). In the UK, these key state offices have evolved to reach a stage merely where power is balanced. This is a clear case of balance of power and is more non-formal and incomparable with the formal separation of power between the executive, legislature, and judiciary. Indeed, other scholars have termed such an arrangement as the “fusion of powers”, and this is seen as highly applicable in the UK (Calers, 2012; Pg. 78). Lord Donaldson of Lymington views the experience of the separation of powers in England and Wales in light of the comment in the case between M v Home Office and Another (1994; Pg. 35) stating that; ‘‘Our unwritten constitution rests upon a separation of powers. It also rests upon mutual recognition of those powers (Benwell and Gay, 2011; Pg. 34). It is for Parliament to make new laws and to amend old laws, including the common law. It is for the courts to interpret and enforces the law. It is for the government to govern within the law. Each in their own sphere is supreme’’ (Calers, 2012; Pg. 89). These comments came at a time when the governance structure in the UK lacked a clear separation of powers in all the three state bodies (Benwell and Gay, 2011; Pg. 59). Apparently, Lord Donaldson had observed the missing links in the attainment of checks and balances thus leading to the creation of appalling policies, legislation, and decisions, which undermined the authority of other branches of the government (Calers, 2012; Pg. 76). In many countries, the executive wields excess powers, which sometimes undermine the operations and authority of the legislature. It is notable that in countries such as the United States, the legislature’s main responsibility entails the creation of laws (Benwell and Gay, 2011; Pg. 34). On the other hand, the executive employs the legislation developed by the legislature in governing the state (Calers, 2012; Pg. 57). The legislature also ensures that the government follows to the latter the created laws. Therefore, the legislature provides the checks and balances in monitoring the way a government applies legislation in running the affairs of the country (Calers, 2012; Pg. 61). In the case of England and Wales, the legislature consists of four institutions including the “UK Parliament, the Welsh Assembly, the London Assembly, and the Local Authorities” (Calers, 2012; Pg. 33). The executive arm of the state consists of the Cabinet, which is headed by the Prime Minister. The First Minister for Wales together with the executive for the Welsh Assembly is also part of the executive. The executive also consists of all the junior ministers of the state (Calers, 2012; Pg. 35). This full executive enables decision making on government policies and issuance of orders. There is also devolution of certain legislative responsibilities to the government ministers thus providing them with opportunities to make laws. On the contrary, American presidents may not form part of the legislature, which is referred to as Congress (Benwell and Gay, 2011; Pg. 16). Furthermore, the president is not elected the same way as the Congressmen. This explains the unique scenarios such as sometimes when the presidents belonging to parties with fewer numbers of Congressmen. The judiciary was also strengthened through the creation of the Supreme Court, which enjoyed competence and authority with the ability to run its own dealings. Therefore, the judiciary consists of all the court judges and the European Court of Human Rights (Calers, 2012; Pg. 46) Lord Donaldson observed that the UK governance structure lacked clarity on the different roles of the executive and the legislature. At the time, the Prime Minister enjoyed excess royal privilege powers, which were outdated since they were only applicable in the monarchy were monarchs worked through commands, which affected everyone (Foster, 2012; Pg. 49). The Prime Minister enjoyed the rights such as signing accords, declaration of wars, commanding the armed forces, and issuing pardons to criminal offenders (Benwell and Gay, 2011; Pg. 34). The Prime Minister also enjoyed powers to appoint cabinet officers, ambassadors, and members to the House of Lords. This amounted to controlling the upper chamber of parliament (Calers, 2012; Pg. 23). The Lord Chancellor sat in the House of Lords, the Cabinet, and worked as the head of Judiciary thus confirming that sometimes the level of overlap was incomprehensible. The Constitutional Reform Act in 2005 took away all these powers, which the Lord Chancellor and the Prime Minister enjoyed. The Lord Chancellor no longer controls the judiciary and the legislature has been given powers to approve Prime Minister’s requests to declare war (Calers, 2012; Pg. 80). The executive also lost the powers to appoint judges as the responsibility now lies with the Judicial Appointments Commission. The legislature and the judiciary through a judicial review procedure also check the executive decisions (Benwell and Gay, 2011; Pg. 74). The job tenure insecurity, which was originally an issue with the judiciary, has also been resolved, and their decisions cannot be influenced. The legislature can only remove from office judges due to misconduct (Calers, 2012; Pg. 123). The legislature also scrutinizes decisions made by the executive through debates on the floor and parliamentary committees. Whenever the legislature determines that the executive made mistakes, in particular decisions then they normally refer the issue back to the President for action. The judiciary and parliament have an extraordinary relationship because the judges cannot directly overrule the decisions made by the legislatures. However, the judges can only refer such legislature’s decisions back to parliament for more debate (Foster, 2012; Pg. 55). The legislature must respect the supremacy of the courts and take time to work on the returned legislation. In the case of the United States of America, the judiciary has the powers to pronounce the decisions of both Congressmen and the President as unconstitutional (Benwell and Gay, 2011; Pg. 34). The fact that the executive enjoys democratic legitimacy separates their engagement with the courts. It is also notable that certain scenarios have forced the judiciary to make laws through their rulings to fill gaps in Acts. The reforms in the judiciary have made it possible for the public to access the courts, the media to report some court proceedings, and the courts to increase accessibility to information using the web (Wagner, 2010; Pg. 46). Conclusion In summary, from the discussions it is clear that the canon of the separation of powers has a strong foundation in the United States because it is a constitutional provision. This has created clear and distinct understanding of responsibilities, sovereignty, authority, and independence between the executive, the courts, and the legislature. Furthermore, it has emerged that, in other jurisdictions such as in the UK, this distinctiveness remains somehow unclear. In this jurisdiction, the executive and the legislature still show an overlap in roles, responsibilities, and authority. This has led to the suggestion that the balance of power is more applicable in these jurisdictions. There are also concerns that these states could also be demonstrating a “fusion of power” because of the how the three arms of governance interact. List of Bibliography Benwell, R and Gay, O. 2011 ‘The Separation of Powers: Parliament Briefing Papers.’ Available at www.parliament.uk/briefing-papers/sn06053.pdf on 2nd April 2013. Calers, D. 2012. ‘Separation of powers (England and Wales).’ Available at http://gcalers.wordpress.com/2012/03/01/separation-of-powers-england-and-wales/ on 2nd April 2013. Foster. S. 2012. ‘The executive, the courts and the separation of powers.’ Cov LJ 17(2) 102. Wagner. A., Supreme court status should not be at risk in 'bonfire of the quangos'’. The Guardian, Friday 24 September 2010 Read More