Theory of Separation of Power

Check and Balance

Milan Shrestha
Lecturer of International Studies
Tribhuvan University
shresthamilan3@gmail.com
Relations among organs of Government

Legislature
(Enact Laws)

Executive Judiciary
(Execute Law) (Interpret
and Review
Law)

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 Concept of Separation of Power

 Power: The right, ability, or authority to perform an

act.
 It also refers to legal capacity to do something;
 legislative power means power to make laws.
 Executive power means execute the laws and
 Judicial power means adjudication of laws
 Separation of Powers: It refers to the allocation of
powers amongst the branches of a government.
 It is different from sharing the power. Sharing the
power analyze powers to be used by federal and
provincial governments.

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 Cont’d

 If a single group exercised all three powers,

they would have unlimited power.
 They could specify any law, arresting the
'criminal', and then decide that they are guilty.
 The theory of separation of power came out in
the public discussion when Montesquieu
published his famous book "The Spirits of
Laws" in 1748.
 He focused on the fact that there must be a
separation of powers if liberty is to be
protected. Because, the separation of powers
and liberty go hand to hand.
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 Cont’d
 Before Montesquieu, there were many
scholars who had discussed about the
doctrine of separation of power.
 Cromwell separated the executive from
the legislative powers but he did not pay
attention for independence of judiciary.
 John Locke divided the activities of the
government into legislative, executive
and federative.

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 Montesquieu: Concept of Separation
of Power
 When the legislative and executive powers are
united in the same person or in the same body
of state, there can be no liberty, because, s/he
may formulate tyrannical laws and also
implement such laws tyrannical manner.
 Again, there is no liberty if judiciary power is
not separated from legislative and executive
bodies. Because, if such powers centralized in
the hand of same people then all powers may
be used without any controls and it may create
monopoly in state's powers.

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 Case Study: USA

 The Government has duty to do with

 the enactment of making laws,
 the interpretation of these laws and
 their enforcement. The Government discharges these jobs by
mobilizing its three major organs.
 Three Branches of Government in USA
 Legislative Branch - Congress which is responsible for making
the federal laws. Congress consists of two houses: the
Senate and the HoR.
 Executive Branch - The Executive power lies with the
President of the United States who is given the job of
executing, enforcing, and administering the laws and
government.
 Judicial Branch - The judicial power of the United States is
vested in the Supreme Court and the federal courts. Their job
is to interpret and apply US laws and Judicial Review
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Judiciary

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 Criticisms of Separation of Power
 Absolute separation power is not possible.
Because, the organs of state should have
connection to maintain check and balance
among them to prevent from isolation.
 The totalitarians reject the doctrine of
separation of powers from beginning to end,
because it tries to prevent people from
despotism and also denies of centralizing
power on single body.
 The parliamentary/cabinet system of
government is the very negation of the theory
of separation of power.
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 Why check and balance?
 Because, absolute separation of power is
neither possible nor suitable.
 Concept of welfare state increase
complex and collective responsibilities of
government's organs.
 Power may sometime be misused, and
then it requires check and balance.

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 Case Study: USA
Checks and Balances of the Legislative Branch
The Legislature has the following powers to check over the
Executive:
 May override presidential vetoes with a two-thirds vote
 May remove the president through impeachment
 Senate approves treaties
 Senate approves presidential appointments
The Legislature has the following powers to check over the
Judicial:
 Creates lower courts
 May remove judges through impeachment
 Senate approves appointments of judges

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 Cont’d
Checks and Balances of the Executive Branch
The Executive has the following powers to check over the
Legislature:
 Veto power over all bill
 Ability to call special sessions of Congress
 Can recommend legislation
 Can appeal to the people concerning legislation and
more
The Executive has the following powers to check over the
Judicial:
 President appoints Supreme Court and other federal
judges.
 Power of Pardon
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 Cont’d
Checks and Balances of the Judicial Branch
 The Judicial is given the following power to check over
the Executive:
 Judges, once appointed for life, are free from controls
from the executive branch
 Courts can judge executive actions to be
unconstitutional through the power.
The Judicial Branch has the following powers check over the
Legislature:
 Courts can judge legislative acts to be unconstitutional.
 Judicial Review and Interpretation of Constitution and
Law

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