If the doctrinaire concept of the Rule of law hampered the recognition of administrative law in England, the doctrine of Separation of powers had similar impact on the thinking of administrative process in the United States.
The separation of powers is a model for the governance of both democratic and federative states the model of which was first developed in ancient Greece and came into widespread use by the Roman Republic as part of its uncodified Constitution. Its origin is traceable to Plato and Aristotle. It was Aristotle who for the first time classified the functions of the Government into three categories viz., deliberative, magisterial and judicial.
In the 16th and 17th centuries, French philosopher John Bodin and British politician Locke expressed their views about the theory of separation of powers. But it was Montesquieu who for the first time formulated this doctrine and gave it a scientific and systematic formulation in his book ‘Esprit des Lois’ (The Spirit of the Laws), published in the year 1748. The main justification for separating powers between independent branches is to prevent any individual or group from accumulating excessive power and ruling tyrannically[1].
MONTESQUIEU’S THEORY
According to this theory powers are of three kinds:
Legislative, executive and judicial each of which is vested in three separate organs of the Government for if all these powers are united in the same organ or individual there can be no liberty. For instance, if legislative and executive powers are united there is an apprehension that the organ concerned may enact tyrannical laws and execute them in tyrannical manner. Again there can be no liberty if judicial power is not separated from the legislative and executive.
There would be end of everything if the same man or the same body were to exercise those three powers that of enacting laws, that of executing the public resolutions and of trying the cause of individuals.
According to Wade and Philips, the theory of separation of the powers signifies the following three different things:
- That the same person should not form part of more than one of the three organs of the government;
- That one organ of the government should not interfere with any other organ of the government;
- That one organ of the government should not exercise the functions assigned to any other organ.
This theory has had different application in U.S.A., England and India.
DOCTRINE OF SEPARATION OF POWERS IN USA
The whole structure of the Constitution of U.S.A is based on the doctrine of separation of powers which has been accepted and strictly adopted in U.S.A. Article I; Section 1 vests all legislative powers in the Congress. Article II; Section 1 vest all executive powers in the President and Article III; Section 1 vests all judicial powers in the Supreme Court. So in America the doctrine has the following characteristics:
- Presidential form of government: The form of government, characterized as presidential, is based on the theory of separation between the executive and the legislature. The President being both the head of the state as well as its chief executive appoints and dismisses other executive officers and thereby controls the policies and actions of government departments. The persons in charge of the various departments, designated as the Secretaries of State, hold office at his pleasure, are responsible to him and are more like his personal advisors. The ultimate decision rests with the President and he is not bound to accept the advice of a Secretary. Separation is maintained between the legislative and executive organs whereby neither the President nor any member of the executive is a member of the Congress. This system of government is fundamentally different from the parliamentary system prevailing in India. In U.S.A., the President is not in theory responsible to the Congress and has a fixed tenure of office and does not depend on majority support in the Congress[1].
- Principle of checks and balances: The U.S. Constitution however incorporates some exceptions to the doctrine of separation with a view to introduce the system of checks and balances. President can be said to be exercising a legislative function when he veto a bill passed by the congress. Again, appointment of certain high officials is subject to the approval of the Senate. The Senate may be deemed to be exercising executive functions because treaties made by the President are not effective until approved by the Senate. The executive functioning of the congress can be seen through its various committees, which has the power to sanction money for governmental operations. The Supreme Court has the power to declare the Acts passed by the Congress unconstitutional. But we can see that the judges of the Supreme Court are appointed by the President with the consent of the Senate so there is overlapping of functions. The president now exercises legislative functions by sending messages to the congress and by the exercise of the right of veto. The congress has the power to exercise judicial function of impeachment to remove the president. Senate discharges executive function regarding treaties and in the making of certain appointments. The congress has delegated legislative powers to numerous administrative organs and they exercise all type of functions. And the Supreme Court has never held that the combination of all these power in one agency is unconstitutional.
This exercise of performing some part of the function by an organ likely to do it by the other type of organ is justified on the basis of the theory of checks and balances. It means that the functioning of one organ is checked in some measure by the other organ so that no organ mat run amok with its powers and misuse the same. Thus, in the case of Panama Refining Company v. Ryan[2] [(1935)293 U.S. 388(400)], commenting on the practicality of the doctrine J. Cardozo said: The doctrine of “separation of powers” is not a doctrinaire concept to be made use of with pedantic rigor. There must be sensible approximation; there must be elasticity of adjustment in response the practical necessities of government which cannot foresee today the development of tomorrow in their nearly infinite variety.”
[1]. Yashmita, Separation of Powers: A Comparative Analysis of the Doctrine India, United States of America and England, academike, April 30 2015
[2]. [(1935)293 U.S. 388(400)]
