Separation of power and checks and balances
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The document discusses the theory of separation of powers and checks and balances within government, emphasizing the independence and distinct functions of the legislative, executive, and judicial branches to protect individual liberty. It outlines the historical context, merits, and demerits of this theory, highlighting how checks and balances are maintained through various mechanisms. Additionally, it points out the challenges faced by the concept of separation of powers in light of modern governance and the influence of political parties.
Separation of power and checks and balances
- 1. Separation of power and checks and balances By= Parista Desar
- 2. Separation of power – A state has a lot of function. – As state is an abstract, government performs all these function. – Traditionally government perform 3 function 1. Law making 2. Policy making and enforcing 3. Interpretation of law and adjudication – For performing these3 function government has 3 organs legislature, execution and judiciary and theory of separation of power is concerned with the interrelation of these 3 organs.
- 3. Fundamental concept of separation of power – For the protection of individual liberty legislative , executive and judicial power of government should be separated. – There must be clear distinction between the power and functions of different organs of government. – Each branch of government is independent and supreme over its boundary – There must be check and balance between 3 organs of government.
- 4. Growth of separation of power – Theory of separation of power is not only famous but also ancient Aristotle made a distinction between the deliberative, magistrative and judicial function. – About separation of power Wade and Philips say that : 1. One member of the wing should not sit another wing 2. One wing of government should not interfere or control another wing 3. One wing of government should not carry out the function of another wing
- 5. Principle of check and balance – The state is an organic whole. Legislative, executive and judiciary are its vital organs. – When we separate them misunderstanding may develop between them regarding use of power and authority . – To make state mechanism active and accountable, to create an environment and cooperation and coordination and to reduce conflict between organs of government, check and balance of power and authority is necessary. – The principle of check and balance is not a distinct thing but it is subsidiary to the theory of separation of power.
- 7. Executive -can call and end session at legislature -can grant pardon/amnesty to prisoners Legislature -can pass vote of no-confidence against executive - Can pass motion of impeachment and remove judges Judiciary -can declare executive action to be unconstitutional -can declare the law passed by legislature to be vaid
- 9. Constitution of Nepal - 2072 BS – Executive to Legislature by Monition of no- confidence ( article 104) – Legislature to Executive by dissolution{article 76 (7)} – Legislature to judiciary by impeachment {article 101 (2)} – judiciary to Legislature and Executive by judicial review (article 133)
- 10. Merits of separation of power – It prevent people from dictatorship of rulers. – It recognizes and respects individual liberty . – Government has lots of work to do in present context. – Separation of power being division of work and help to obtain expert service. – There is a need of expert knowledge for making law, for implementation of law and for adjudication of law. – Separation of power helps to meet this need . – The chief value of separation of power lies in emphasis. – It put on the independence of judiciary.
- 11. Demerits of separation of power – State is an organic whole and just as the body depends upon one another so are the various parts of the state machinery interrelated. – The concept of welfare state has added to the power and prestige of the executive. – The growth of power of power of political parties is making the separation of power meaningless. – The growth of administrative law is opposed to the theory of separation of power – Planning requires fusion as not separation of function