Exam focus – Keypoint on the separation of powers and the doctrine of checks and balances

 
The theory of separation of powers and checks and balances
Separation of powers may be defined as the division of government political powers that exist in any given state into the three organs of government. It was Baron de Montesquieu who developed and popularized the principle of separation of powers.
Reasons for and advantages of separation of powers

• It guarantees and maintains the rights, liberty and freedom of citizens.
• In order to avoid chaos, violence, dictatorship, tyranny and oppression in a country.
• It leads to the division of labour and specialization in the art of governance.
• It results in one organ checking the activities of other organs known as checks and balances.
• It makes for a smooth running of government.
• Its checks and balances make government officials cautious and meticulous in carrying out their functions.
• It maintains law and order in a country.
• It guaranteed the rule of law.
• It ensures stable political system in a country.
• It prevents excesses and recklessness on the part of the organs of the government.
• Separation of powers brings about efficiency and orderliness in the administration of a country.

Disadvantages and criticism of separation of powers

• It tends to lower the quality of the decisions and policies made by these organs.
• It slows down the smooth running of government.
• Separation of powers without interference from other organs may make these organs to be inefficient.
• Its checks and balances can lead to political instability.
• The application of the principle of checks and balances may lead to unhealthy rivalry among the organs of government.
• Both separations of powers and checks and balances are incapable of checking the abuse of power by government officials.
• The rights, liberty and freedom of citizens are violated.
• Complete separation of powers is near impossible.

Separation of powers in the cabinet system

• There is fusion rather than separation of powers.
• Ministers belong to both the executive and legislative organs of government.
• The executive organ tends to have full control of the legislative organ and even the judiciary.
• The head of the judicial organ in Britain is also a member of the other two organs – the executive and the legislature.
• The executive is responsible to the parliament for its actions.
• The parliament can dismiss the entire executive also known as the cabinet with its vote of no confidence.
• Almost all the bills initiated by the executive are passed in the legislature because its members are also parliamentarians.
• In Britain, one chamber of the legislature – the House of Lords is the highest court of Appeal.
• The executive appoints the head of the judiciary.
• Finally, there seem to be no acts of separation of powers among the different organs because their functions tend to overlap.

 Separation of powers in the presidential system

• There is no fusion between the executive and the executive and the legislature; the two organs are separated both in function and membership.
• Ministers do not belong to both organs.
• The legislature of the judiciary is not controlled by the executive.
• The president is elected not appointed by the parliament.
• The chief justice who is the head of the judiciary is not a member of the other two organs of government.
• The executive is not responsible to the parliament for its action.
• The legislature cannot dismiss the entire cabinet but can remove the president through impeachment.
• The upper chamber of the legislature – the Senate does not act as the highest court of Appeal.
• Not all bills initiated by the executive are passed in the parliament.
• The act of judicial review is more visible.
• The acts of separation of powers among different organs of government seem to be more visible in the presidential system.

 
The doctrine of checks and balances
This doctrine advocates the use of one organ of government to check the activities of the other organs. This is where the powers of one organ are used to check the powers of other organs.
 Merits of the principle of checks and balances

• The principle makes government officials cautious and meticulous in carrying out their official functions.
• It brings about orderliness and efficiency among the organs of government.
• It prevents the excessive use of powers by the organs of government.
• It leads to strict compliance with the provisions of the constitution.
• The principle prevents the emergence of a dictator.
• Fundamental human rights will be guaranteed and the liberties and freedoms of the citizens can be easily maintained.
• It leads to the prudent use of resources.
• It ensures that the use of public authority and organs of government are brought under popular control.

Demerits of and how the principles of checks and balances violate the theory of separation of powers in a presidential system of government

• The constitutional power of impeachment of the president granted the legislature, makes the executive arm of government dependent and subordinate to the legislature.
• The power to veto Acts of parliament granted to the president makes the president part of the lawmaking body – the legislature.
• The power granted the judiciary to declare executive actions and laws made by the legislature unconstitutional makes mockery of the theory of separation of powers.
• The president who declares war can be incapacitated by the legislature in the refusal of 2\3 majority required by the president.
• The application of judicial procedure by the legislature in the process of impeachment tantamount to the usurpation of judicial function by the legislature.
• The power of approving budgets given to the legislature makes legislators participate in the executive functions.
• Also, the president names all federal judges and approved by the legislature.
• The legislators also participate in the executive.
• Through the exercise of the prerogative of mercy by the president, the president intervenes with the functions of the judiciary.