Constitutions control and distribute state power, setting out principles in order to maintain a stable relationship between the state and the state’s citizens. It is clear that the UK constitution is un-codified as well as unwritten to a high extent, and is constructed from several sources. Common laws are preceded by judges in relation to previous cases. European law also affects all members of the European Union state due to the European Act 1972. Statutes are approved by the parliament being the most important form of laws.
The principle of the separation of powers believes that the work of the government can be divided into three functions: legislative, executive, and judicial, and that each function ought to be carried out by a different institution, each institution being separated from the other two. The legislature should make the laws, the executive should be responsible for the administration of the laws, and the judiciary should determine disputes arising out of the interpretation or application of the laws. Each institution should follow its prescriptive work and should make sure that it does not trespass onto the territory of the other two. The three agencies should be not only separate from each other but also equal to one another. The role of each of the institution are clearly stated to prevent the abuse of power occurs between the institutions.
Baron Montesquieu stated the importance of judicial independence by stating ‘there is no liberty if the power of judging is not separated from the legislative and executive '3 This quote states the importance of the Separation of Powers Doctrine.4 Until the 2005 Constitutional reform Act commanded changes to be made to the Lord Chancellors Office, the Lord Chancellor was a cabinet minister, member of the House of Lords and head of the judiciary. This meant that all three arms of the state (executive, legislature and judiciary) that should traditionally and in accordance to the Separation of Powers Doctrine be kept separate in order to keep the other arms in check and balance with each other, were tangled together. In 2005, the Constitutional reform act came into play which significantly modified the role of the chancellor meaning that he was no longer the head of the judiciary and also created the supreme court. The main purpose for the creation of the supreme court was to detangled the arms of state. By adapting the role of the Lord Chancellor, the judicial arm could be separated from the legislature arm.
The separation of powers doctrine recognises that the judicial arm must remain separate from the executive and legislative arms of government. The Separation of powers doctrine was developed so that the three arms of government are able to provide checks and balances on other arms which prevent an abuse of power. Each power having different responsibilities enables each arm of government to keep a check on the action of others. The Judiciary can strike down any laws being made by the legislature if they are unlawful, thus successfully providing a check on the legislature branch. Executive actions can also be deemed as unlawful by the judiciary.
The acts were the acts of the King, and their authority, fortified by counsel and consent. In 1539 in UK there was the declaration of the Statute of Proclamations which gave the King extremely wide powers for legislation without being approved or even referenced to the Parliament: meaning the King could make any law it wanted without referring or consulting to the Parliament: it was a legislative body dependent only of the King itself: the King was sovereign concerning law making. In 1611 the case of proclamations established that only the parliament had the right to make laws and that the crown could apply it. The principle of legislative supremacy played an important role in English Civil War: Royalists argued that power held by the King, and delegated to parliament, challenged by the Parliamentarians (https://en.wikipedia.org/wiki/Parliamentary_sovereignty_in_the_United_Kingdom). Finally in 1689 the Bill of Rights removed the royal.
The doctrine of Separation of Powers in India is as old as the Constitution itself, and was extensively, though, perhaps not exhaustively, discussed in the Constituent Assembly Debates. Emphasis was laid on giving Constitutional Recognition to Separation of Powers by Prof. K.T. Shah, a member of Constituent Assembly. It was to be culled out by Art. 40-A as under: “There shall be complete separation of powers as between the principal organs of the State, viz; the legislative, the executive, and the judicial.” However, this idea was opposed by Shri Hanumathaiyah, who envisioned a functional, harmonious government, instead of complete separation of powers.
The principle of separation of powers refers to the division of government responsibilities. They are divided into distinct branches to ensure that each branch is limited. The separation of powers claims that the executive, judicial, and legislative powers of the American government may be split or divided so that the power is not gathered into one whole single power. Each branch is to limit any one branch from exercising the core functions of one another. This governmental principle can be traced back all the way to the bible and to the ancient Greeks.
According to his model, these three powers should be separate and acting independently in order to promote liberty effectively. John Locke, an English Philosopher, too had argued about the positive impact on the society by the mechanism of dividing the legislative power between the king and the Parliament for a better functioning of the government. NEED FOR SEPARATION OF POWERS The Theory of Separation of Powers is based on the ideology of division of the legislative, executive and the judicial functions of the government among separate and independent bodies. This division accomplishes the task of limiting the possibility of concentration of power. A significantly vast variety of arrangements of the legislative, executive, and judicial processes is visible in the modern constitutional systems.
HISTORICAL BACKGROUND There is an age old saying which finds its relevance today as well, that “power corrupts and absolute power corrupts absolutely”. In order to prevent the control of forces such as tyranny and authoritarianism, man has been trying to evolve certain control mechanisms . Separation of Powers is one such control mechanism. Although it is impossible to point out precisely origin or genesis of the doctrine of Separation of Power, we find the mention of rudimentary of separation of powers in the writings of great Greek philosopher Aristotle. In his writings, Aristotle clearly remarked: “There are three elements in each constitution in respect of which every serious lawgiver must look for what is advantageous to it; if these
In the civil law there’s a division of powers, where the legislator, legislates and the courts (judges) apply the law. The civil law lawyers start from legal codes contained in the legislation, and by the process of supposition, they make decisions concerning the actual case, where it is more inflexible because in the non-existence of a specific code for particular situation, the judges cannot produce new rules and consequently this can precede to injustice. Alternatively, in common law the main duty of the courts is to create the law, judges have somewhat greater flexibility to create an appropriate remedy (legal principle to cover wide range of areas, even those not specifically provided in written law) at the conclusion of the case. The lawyers in common law, compare the actual case with similar legal disputes that have been dealt in previously decided circumstances, and from this precedents they need to follow the doctrine of stare decisis. Common law can respond to cases, situations and facts that were not foreseen by legislators.