Nutshell: The Impracticability and Impossibility of the Doctrine of Separation of Powers

INTRODUCTION

This essay seeks to discuss the impracticability and impossibility of the doctrine of separation of powers being absolute. The discourse will begin with the historical background of the doctrine before moving on to show, with the use of examples, how impossible and impractical it is for the doctrine to be absolute in any given entity.

ORIGIN OF THE DOCTRINE OF SEPARATION OF POWERS

The doctrine of separation of powers is derived from Montesquieu’s writings in the book ‘The Spirit of Laws.’ Montesquieu’s elaboration of the doctrine was based on John Locke’s writings and the British Constitution of the 18^th century.[1] Thus, Separation of Powers is a political doctrine which urges for a constitutional government with separate branches of government. Each of these branches would have defined abilities to check the powers of other branches.[2] The doctrine of separation of powers therefore rose to prominence in the 18^th century and primarily postulates that there should be separation among the three fundamental organs of the government, namely the Legislature, Executive and Judiciary.

According to Montesquieu, separation of powers is concerned with the preservation of political liberty:

Political liberty is only to be found where there exists no abuse of power. But constant experience shows us that every man invested with power is liable to abuse it, and to carry his authority as far as it will go. To prevent this abuse, it is necessary from the nature of things that one power should be a check on another. When the legislature and executive powers are united in the same person or same body of magistrates, there can be no liberty.[3]

THE MEANING OF SEPARATION OF POWERS

In essence, the doctrine of separation of powers entails that for a free and democratic society to exist there must be a clear separation between the three branches of government. Thus, every organ must perform the function constitutionally assigned to it if there is to be political liberty. That is to say the executive should execute the business of government, the legislature should make laws whereas the judiciary should interpret the law. If one of these branches encroaches upon the functions of the others, so the doctrine goes, freedom and rule of law is imperiled.[4]

According to Montesquieu, Separation of Powers may mean at least three different things. The first one is that the same persons should not form part of more than one of three organs of government. This implies that a governmental officer should not be a member of more than one organ of the government, hence the president should not be a member of both the legislature as well as the executive.[5]

Secondly, separation of powers entails that one organ of government should not interfere with the work of another, for example the judiciary should be independent of the executive. The judiciary should carry out its adjudicative function without interference from the executive or legislature.[6] In the case of R v HM ex parte Smedley[7] the Court of Appeal refused to adjudicate the validity of the government’s decision to seek authority for payment of supplementary EU budget by an Order in Council rather than an Act of Parliament. This showed the court’s reluctance to interfere with government’s legislative choice.

Lastly, one organ of the government should not exercise the functions of another[8]. This implies that each organ should stick to the functions that are assigned to it by the constitution and not perform the functions of the other. Thus, the executive should not exercise the constitutionally stipulated functions of the judiciary; a minister, for example, should not adjudicating on disputes, which is traditionally a function of judges. This is illustrated in the case of Akashambatwa Mbikusita Lewanika v The Attorney General[9] where the appellant was expelled from the National Assembly for dissociating himself from the decision of the assembly to imprison a journalist and columnist for gross contempt of the assembly. The Supreme Court quashed the decision of the National Assembly, in that the National Assembly can only suspend and not expel. Expulsion of a member of parliament is not a legislative function.

It has therefore been argued that separation of powers is of the utmost importance in any democratic state. The doctrine of Separation of Powers is a democratic tool used to curb the abuse of power. According to John Locke:

It may be too great a temptation to human frailty, apt to grasp at power, for the same persons who have the power of making laws, to have also in their hands the power to execute them, whereby they may exempt themselves from obedience to the laws they make, and suit the law both in its making and execution, to their own private advantage.[10]

Thus, in order to prevent the arbitrary use of power, there is need of separation of powers. The proponents of the doctrine further postulate that Separation of Powers brings about Checks and Balances. The principle underlying the concept of checks and balances is to make separation of powers more effective by balancing the powers of one organ against those of another through a system of positive mutual checks exercised by the governmental organs upon one another.[11] This implies that if one organ was to form part of another organ, it would virtually be impossible for that organ to check the work of the other organ in which it forms part.

 The doctrine of separation of powers has been adopted in most entities as can be seen in most of constitutions. The American constitution stands as the epitome of separation of powers. Hence, no constitution goes further than the American constitution of 1789 in applying the doctrine of separation of powers.[12] Article 1, section 1 of the United States of America states that all legislative powers herein granted shall be vested in the Congress of the United States, which shall consist of a Senate and House of Representatives.[13] This entails that all legislative powers is vested in US parliament, called Congress.

The executive power on the other hand is vested in the President of the United States of America whereas the judicial power of the United States lies in the Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish[14]. Thus, it can be seen that the US constitution upholds the doctrine of separation of powers.

The president, in whom is the bulk of the executive power holds office for a fixed term and is separately elected. He cannot sit or vote in congress. He can only recommend legislation in his message to congress but he cannot compel it to follow his recommendations. He is therefore not directly responsible to congress for his conduct of affairs. Similarly, the Supreme Court judges are also independent of both congress and the president. It is this independence that gives the courts the power to conduct judicial functions like Judicial Review.[15] It can therefore be seen that Separation of powers helps in creating good governance structures in any political entity.

IMPOSSIBILITY AND IMPRACTICABILITY OF SEPARATION OF POWERS

However, it may be noted that even in the US constitution, there is not a complete separation of powers. This implies that in every entity, it is almost impossible and impractical to have total separation of powers. This is so because in order to effectively carry out their specific functions as outlined in the constitution, one organ of the government cannot operate in isolation from the others.[16]

In the days before the emergence of the positive welfare state, the matters that needed to be regulated by legislation were few and simple, for example domestic relations, land, criminal offences, etc. These were easily within the initiative of individual legislator. The concern of government was mainly foreign relations, the maintenance of law and order and execution generally. Modern government has an infinitely wider concern involving active intervention in the life of society with the view to improving its quality. This as has just been observed requires legislation with high policy content and policy is an executive function.[17]

This entails that it is quite impossible for separation of powers to be absolute in a modern state. This is because of the increased sophistication in the functions of government as a whole. Thus, there are not always clear dividing lines between administrative, legislative and judicial functions. In a modern state, there must be a great deal of cooperation and interaction between the executive and the legislature, in particular, if the state’s business is to be efficiently conducted.[18]

The first proponent made by Montesquieu as regards the implication of separation of powers was that an individual shouldn’t form part of more than one organ of government. This is however not realistically possible. In the case of Zambian constitutional order, the President is the head of the executive organ of the government.[19] The President is also part of the legislative organ of government as stipulated in article 62. Thus, the president forms part of not only one organ of government.

Further, the president is responsible for the appointment of judges, who are officers of the judiciary[20]. The president is thus an indirect member of the judiciary:

Few modern constitutions provide for the direct election of judges and magistrates. They are usually appointed, subject to safeguards to ensure their independence, by the executive or the legislative branch, or both branches. This is because the role of government has expanded so greatly that many decisions which affect people’s lives must be made quickly, and some of these decisions require specialized knowledge which is not possessed by judges or magistrates.[21]

Further, the National Assembly consists of 8 nominated members who are nominated by the president[22]. Thus, the president has a bearing on the legislature. In the Zambian polity, where ministers are appointed among members of the National Assembly, they have dual membership i.e., being members of the Executive as ministers and being members of the National Assembly as elected or nominated members of that Assembly.  You have ministers, who are members of the Executive and other governmental agencies who are legislative agents.[23] It is clear that the legislature’s agents are members of the Executive arm of government.

Similarly under the British constitution:

Judicial power is not recognized as existing independently and coordinate with, the legislative sovereignty of parliament. In Britain the courts do not possess the power to question or declare invalid legislative enactment. Parliament is the highest court of the land with power to make or unmake any law or to create or abolish any rights, and so on. Moreover, the House of Lords, which is the highest court in the land, is part of the Upper House of parliament. The Lord Chancellor who is the head of the judiciary is part of upper house of parliament and the principal legal member of cabinet.[24]

The second premise, as earlier alluded to, is that no one organ should exercise the functions of another. In modern countries, however, there is some overlapping of functions. Legislation has become so far reaching and complex that parliament cannot enact all of it. Acts of parliament must leave details to be filled in by regulations made by other authorities, usually Ministers.[25] Hence the Executive branch is given law-making powers. As a matter of fact, under the Zambian constitutional order, parliament is empowered to confer on any authority or person the power to make laws called statutory instruments.[26]

Furthermore, the Executive is increasingly given judicial powers which makes the executive exercise functions that should inherently be exercised by the judiciary. For example, administrative tribunals are established by and are answerable to ministers. The case of Dames and More v Regan[27] considered the constitutionality of executive orders issued by president Jimmy Carter directing claims by Americans against Iran to a specially-created tribunal. It was held that the executive orders were a constitutional exercise of the president’s powers according to article 2 of the American constitution.

Linking further, in 2008, during the time of the financial crisis, the government of the United States had to provide funds to the banks that were collapsing and the Attorney General of the United States usurped judicial power by fining Citibank $7.5 billion for entering into mortgage contracts which were found to be sub-prime.[28]

Judges are also performing functions that are outside their traditional duties. In a common law legal system, judges do not just interpret the law; they develop and adapt the law to take into account the changing circumstances in society. In this way, judges do make law which is referred to as Judicial Precedent. The judiciary therefore has some law-making or legislative powers, even though these powers do not go beyond refining and developing existing law[29]. In the case of The Attorney General and MMD v Lewanika and Others[30], the court had to read in the words ‘vice-versa’ to article 71(c) of the constitution in order to curb an absurdity that would have otherwise been created had the statute not been refined.

The last principle in separation of powers is that no one organ should interfere with the work of another. Apart from one organ exercising the functions of another, it is generally a common affair in most entities that one organ of government interferes with the functions of another. A single organ does not usually have absolute functions. In the case of United Kingdom:

Parliament comprises the Queen, House of Lords and House of Commons. British constitutional practice requires that holders of ministerial office should be members of either the House of Lords or House of Commons. The cabinet largely controls parliament as it commands the time and programme of the House of Commons and pilots all important legislation. It would be true to say, parliament legislates with the advice and consent of the cabinet. The cabinet plans the legislative programme at the beginning of each session of parliament. Public bills are introduced and piloted by a cabinet minister generally.[31]

The entails that the legislature is to a large extent controlled by the executive. The Queen has to give assent to all bills before they become law. The judiciary is equally not independent but have to coordinate with the legislative sovereignty of parliament[32]. Hence, if the executive controls the legislative which enjoys parliamentary sovereignty to which the judiciary is subordinate, there is no absolute separation of powers in the United Kingdom and yet the country is one of the most affluent entities.

In the Zambian context, the President has to give assent to a bill made by parliament before it becomes law.[33] Thus the legislative function of government is only put in effect through presidential assent of the bills passed by parliament. Further, the president summons the meeting of parliament at the time or venue he sees fit, prorogue as well as dissolve the National Assembly.[34] This is because the president is himself part of the National Assembly and therefore indirectly controls it. In this way, the executive organs exercises control over the functions of the legislative organ of government.

However, unlike in the case of the United Kingdom, the Zambian judiciary enjoys independence. Zambian courts have the power to declare any law passed by parliament as being null and void if it is inconsistent with the constitution. In the case of Ludwig Sondashi v Attorney General and Speaker of National Assembly[35], the court ruled that the suspension of the appellant was null and void as it contravened with certain provisions of the constitution.

Thus, in modern society, it is quite impossible and impracticable for each organ of government to stick to traditionally outlined functions. Owing to the fact that there cannot be a complete separation between the different branches of government, the doctrine of separation of powers can best be defined as a governmental system of separated institutions sharing power fairly between them. Relative powers of each branch should be balanced[36].

CONCLUSION

The doctrine of separation of powers, which entails that each organ of government performs its constitutionally assigned functions without interference from the other, was postulated by Montesquieu following the writings of John Locke and the British Constitution of the 18^th century. However, it has been shown that in a modern society, it is impossible to have absolute separation of powers. This can be attributed to the increased functions of government as well as the sophistication of society. As such, there is an overlap in the functions of the organs of government, with one individual being part of either two if not all three organs of the government. In the Zambian context, the president is a member of the legislature and the executive in addition to appointing judges who are members of the judiciary. Ministers are also given power to make laws called statutory instruments whereas judges, in their quest to refine the law end up being law makers government. Thus, absolute separation is impossible in theory and practice.

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[1] Chanda, A. W., Constitutional Law in Zambia. Lusaka: UNZA Press, 2011, p. 36.

[2] Kilman, Johnny and Costello, The Constitution of the United States of America: Analysis and Interpretation. Washington, DC: Government Printing Office, 2000, p. 23.

[3] Chanda, A. W., Constitutional Law in Zambia. Lusaka: UNZA Press, 2011, p. 37.

[4] Scott, D and Felix, A, Principles of Administrative Law. London: Cavendish Publishing Co., 1997, p. 15.

[5] Chanda, A. W., Constitutional Law in Zambia. Lusaka: UNZA Press, 2011, p. 38.

[6] Ibid.

[7] (1895) 1 All ER 589

[8] Chanda, A.W., Constitutional Law in Zambia. Lusaka: UNZA Press, 2011, p. 39.

[9] 2002/HN/123

[10] McPherson, C. B., Locke, J: Second Treatise of Civil Government. Cambridge: Hackett Publishing Co, 1980, p.324.

[11] Chanda, A. W., Constitutional Law in Zambia. Lusaka: UNZA Press, 2011, p. 37.

[12] Ibid.

[13] American Constitution, Article 1.

[14] Ibid., Articles 2 and 3.          

[15] Chanda, A.W., Constitutional Law in Zambia. Lusaka: UNZA Press, 2011, p. 38.

[16] Ibid.

[17] Nwabueze, B. O., Presidentialism in Commonwealth Africa. London: C. Hurst & Co, p.272.

[18] The Zimbabwean: Doctrine of Separation of Powers- its Values and Limitations. 18^th November, 2010.

[19] The Constitution of Zambia, Chapter 1 of the Laws of Zambia, Article 33.

[20] Ibid., Article 93 (1) and (2).

[21] The Zimbabwean: Doctrine of Separation of Powers- its Values and Limitations. 18^th November, 2010.

[22] The Constitution of Zambia, Chapter 1 of the Laws of Zambia, Article 68.

[23] Local Government Act, Cap 281 of the Laws of Zambia, sections 82(1).

[24] Chanda, A.W., Constitutional Law in Zambia. Lusaka: UNZA Press. 2011, p. 53.

[25] The Zimbabwean: Doctrine of Separation of Powers- its Values and Limitations. 18^th November, 2010.

[26] The Constitution of Zambia, Chapter 1 of the Laws of Zambia, Article 80.

[27] 453 U.S 654 (1981)

[28] Turk, J., The Financial Sense Editorial: Will Citibank Survive? March 17^th, 2008.

[29] Munalula, M. M., Legal Process: Zambian Cases, Legislation and Commentaries. Lusaka: UNZA Press, 2004, p. 211.

[30] (1994) SCJ No. 2

[31] Chanda, A.W., Constitutional Law in Zambia. Lusaka: UNZA Press, 2011, p. 52.

[32] Ibid.

[33] The Constitution of Zambia, Chapter 1 of the Laws of Zambia, Article 78 (1).

[34] Ibid, Article 88.

[35] 1998/HP/111

[36] The Zimbabwean: Doctrine of Separation of Powers- its Values and Limitations. 18^th November, 2010.