Critically evaluate the doctrine of separation of powers in relation to the executive and legislature and the judiciary.
Introduction
In the government, there should be a power that embodied the governmental practice especially when it is based on the law. The power of a government summarized the constitutional law and criminal law. Therefore, the government has a wave to reconcile and separate the powers that is going to rule the citizens and with the accordance with the state.
Many scholars find some trouble in identifying the associated power of each and every law. The laws are made intentionally to align and manage the people under the state law.
Public Law
The public law is a theory of law governing the relationship between individuals and the state. There is a separation of powers and the fusion of powers, the opposite of the first. The separation of powers is also known as trias politica which is a model for the governance of democratic states.
Separation of Powers
A basic definition of separation of powers is the idea that a government functions best when its powers are not concentrated in a single authority but are instead divided among different branches. The Founders created a system that both separated and blended powers so that each branch serves as a check and balance on the powers of the others. The normal division of estates is into an executive, a legislature, and a judiciary; wherein each branch has a separate and independent powers and areas of responsibility.
The United States was the first nation to formalize separation of powers among the branches in a written constitution.1 The three branches of government and their respective powers:
- The legislative branch has the power to make the law which defines the congress in Article I.
- The executive branch has the power to enforce the law which is in Article II.
- The judicial branch has the power to interpret the law which is in Article III.
The creation of separating of powers believe that it protects democracy and forestalls tyranny but also pointing out that the separation of powers also slows down the process of governing, it promotes executive dictatorship and unaccountability, and tends to marginalize the legislative powers.2
Legislature
As a legislative body Congress has certain inherent powers. Among these are the powers to investigate pursuant to legislative needs. Congressional investigations have led to a great many court decisions concerning the right of a witness before a Congressional committee to refuse to testify even when granted immunity from prosecution.3
In separation of powers doctrine, the legislature in a presidential system is considered a power branch which is coequal to and independent of the both the judiciary and the executive. In addition to enacting laws, legislatures usually have exclusive authority to raise taxes and adopt the budget and other money bills.
Executive
The executive branch of government is headed by the President, elected, along with the Vice President, for a term of four years. The first is that the powers of the President are limited to those enumerated in the article. The opposite view is that the President is given executive power not limited by the provisions of the rest of the article. Every President has had to make the choice of interpretations for himself.4
The separation of powers system is designed to distribute authority away from the executive branch - an attempt to preserve individual liberty in response to tyrannical leadership throughout history. The executive officer is not supposed to make laws (the role of the legislature), or interpret them (the role of the judiciary). The role of the executive is to enforce the law as written by the legislature and interpreted by the judicial system.
Judicial
The judiciary has the inherent authority to interpret laws and the Constitution with an authority, which must be deferred to. It also guarantees trial by jury in criminal cases and lays the basis for federal jurisdiction. 5
Under the doctrine of the separation of powers, the judiciary can never make or enforce law, that being the realm of the legislative and executive branches respectively, but rather, if there is a dispute, it interprets and applies the law to the facts of each case. Unlike the legislative branch which can make, repeal and amend law at will according to its own rules, the judiciary can never make or amend law, rather only when a statute or executive order is found via judicial review to be in violation of a constitutional provision is the judiciary bound to strike it or part of it down. If a statute is found to be unconstitutional, it is left for the legislative branch to come up with another legislation dealing with the issue which is always presumed constitutional by the judiciary.
Conclusion
The government having a separation of powers needs to be promoted and well-executed or implemented. The idea in separating the powers is make every action separated from the other. The powers of each branches is clearly defined and should be responsible in the management of the law under their offices.
The communication between the branches is also essential but not to the point of interfering the other’s obligations and duties.
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