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    Sunday, 15 January 2017

    Doctrine of Separation of Powers under USA constitution

    1. Introduction
    Power is the cruelest, when it is most concentrated and least when diversified. Human history, like nature, appears red, tooth and claw, if only because power seekers have no other way to go about except the way of valence. That is why down the ages, the history of man has been “dul, nasty, brutish and short”. The sure way to avoid the abuse of power by governmental agencies is to divide the political power and vest it in to the hands of diverse persons so that there is effective check and power by power. The framers of the U.S.A Constitution were influenced by Montesquieu, so they brought about a wise distribute of power. The kept the executive, legislative and judicial powers as separate from and independent of each other.

    2. The Principle of Separation of Power
    The principle of Separation of Powers is one of the most important features of the American Constitution. The constitution clearly states that all legislative, executive and judicial powers are vested in the Congress, the President and the Supreme Court respectively. There is no other constitution in which the demarcation of the three wings of administration is so clear. In Pakistan, for example, we do not find so much separation of powers and the executive, legislative and judicial powers of the federations are not vested in any branch of the government.

    3. Meanings of Separation of Power
    It is the division of governmental authority into three branches of government i.e legislative, executive and judicial each with specified duties on which neither of the other branches can encroach.
     
    4. Doctrine of Separation of Powers in USA Constitution
    Doctrine of separation of power provides a model for governance of a state. Its main objective is to prevent exercise of absolute powers. Following are main features of this doctrine and these features can be observed in American political set up

    i. Division of Government
    Doctrine of the separation of powers divides a government into three branches, and these branches are legislature, executive and judiciary. Under American constitution, American federal government has also been divided into three branches. In American Federal government, legislature branch is congress, executive branch is associated with American President and judicial branch is American judiciary.

    ii. Functions and Powers of Government Branches
    Under doctrine of separation of powers, separate function sand powers are assigned to legislature, executive and judiciary, and these functions and powers are followings

    a. Functions and Powers of Legislature
    Main function and power of legislature is to make laws. In United States of America, legislation is function and power of American Congress.

    b. Functions and Powers of Executive
    Executive is to execute business of government especially by putting law into operation. In United States of America, this function is carried out by different executive officials under direction of American President.

    c. Functions and Powers of Judiciary
    Prominent function and power of judiciary is to interpret law and dispense justice. In United States of America, American judiciary is free to interpret laws and to review new laws whether new laws are in accordance to existing laws and American Constitution or not.

    iii. Separation of Powers and Check and Balances
    The principles of Separation of Powers are one of the most important features of the American Constitution. The constitution clearly states that all legislative, executive and judicial powers are vested in the congress, the President and the Supreme Court respectively. There is no other constitution in which the demarcation of the three wings of administration is so clear.


    iv. Independency of Government Branches
    According to doctrine of separation of powers, each of government-branches is independent of others. Therefore, each of them exercises its powers and performs its functions independently. Same is the situation in United States of America. In United States of America, if legislation is function of American Congress, such function cannot be done by other two government-branches.

    v. The utility of the system of Checks and balances
    Absolute separation of powers is as dangerous as the concentration of all governmental powers in the hands of one man or few men, for a department would then exercise its powers unchecked and unlimited by others. Unlimited power is always dangerous. The absolute bring all governmental activities to a standstill.

    vi. Prevention of Absolute Powers
    Under doctrine of separation of powers, no single government-breach is able to exercise complete authority. In this way, this doctrine prevents exercise of absolute powers. One opinion is that American President is gaining more and more powers with the passage of time. But this opinion is correct only t some extent. The reality is that more check and balance are also being put on the powers of American President with increase of his powers.

    vii. The system may generate conflict
    Separation of Powers faces various drawbacks in a situation when the Presidency and the Congressional majority belong to both rival parties. Under such circumstances there is a tussle between both the branches of government. The Congress may ignore Presidential messages for legislation.

    viii. Division of Responsibilities
    Under American system of government based on Separation of Powers, no single branch of government can be held responsible, especially when two rival parties control these branches. The President can blame the congress for non cooperation. While the Congressional may blame executive branch for not executing laws in a befitting manner. This may produce lack of responsibility.

    ix. Ineffective Control over the executive
    The President and his Cabinet members do not attend the sessions of the congress; as such they remain unaware of the trends and aspirations of people’s representatives. The Ministers are not accountable to the people. Congressional control over the executive virtually becomes ineffective.

    x. Concluding note
    Apparently, the doctrine of Checks and Balances is the negation of the theory of Separation of Powers. In fact, this doctrine supplements the theory of Separation of Powers and is a corollary to that theory. If administration is to be run smoothly and the tyranny of government or any organ of government is to be checked, the theory of Separation of Powers must be modified by the doctrine of Checks and Balances. The system of Checks and Balances combines the theoretical advantages of separation of powers with the consideration of the smooth working and efficiency of government. The partial separation and the Checks and the Balances were designed to protect the country against what we now call totalitarianism; and so far the Americans have succeeded.

    Final Analysis

    To conclude, it can be stated that there exists close association between doctrines of separation of powers and check and balance as far as United States of America is concerned. It was firstly through doctrine of separation of powers that specific powers have been given to each branch of American government, and it is then through doctrine of check and balance that check and balance have been established about powers of government branches. 
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    Item Reviewed: Doctrine of Separation of Powers under USA constitution Rating: 5 Reviewed By: Usman Ali
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