Chapter:6. Doctrine of separation of power in South Asian countries.

Concept: It means that the three basic function of state (to legislate, execute and judicial function) are divided into three different organs of government. 

It is the idea of clear demarcation of power and functions between the Legislature, executive and judiciary in order that no one should have excessive power.

The Declaration of the Rights of Man and of the Citizen 1789, (France); provides that ‘every society in which separation of power is not determined, has no constitution’. 

It is a fundamental concept of constitutionalism which tries to prevent the accumulation of power in one branch of government. 

History:

Aristotle (300BC); in his book has observed that, every government performs 3 distinct functions.

John Locke's “Second Treatise of Government” published in 1689, provides that government should be divided into different branches: the legislative, executive, and federative (concerning foreign policy). He believed this separation was necessary to safeguard individual liberty and to prevent abuses of power.

Baron de Montesquieu: (important)

When the executive and legislative power are united in same body or magistrate there can be no liberty, if the judicial power is not separated from executive and legislative power there is no liberty, when it joint with the legislative power The life and Liberty of subject would be exposed to arbitrary control for the judge would then be legislator. Where it joint with the executive Power that might Behave with violation and oppression. There would be end of everything Where the same man and same body exercise these three powers. 

(Centralize power leads to absolutism. So, power needs to be divided.)

Advantage of doctrine of separation of power :

1. Protecting Liberty and Rights: Prevents tyranny by ensuring no single entity dominates, safeguarding individual freedoms.
2. Improving Administrative Effectiveness: Specialization of branches increases efficiency and expertise in governance.
3. Limiting Government Power: Checks and balances prevent any one branch from gaining too much power.
4. Preventing Abuse of Power: Mutual oversight reduces the risk of corruption and abuse, maintaining government integrity and accountability. 

In India, Because of judicial review, judicial activism and parliamentary form of government, there exist partial separation of power. 

Theoretically, separation of power is an alternative of absolutism. Practically, check and balance is an alternative to absolutism. 

Cases: 

1. Indira Nehru Gandi Vs Raj Narain 1975:

• Just as court ought not to enter into problems of ‘political thicket’, parliament also need to respect the preserve of courts.

2.  Duport steel Vs Sirs (1990). 

• Court held that, though the British Constitution is largely unwritten, it is firmly based upon the separation of power.

3. Advocate Rabiraj Bhandari V. Taranath Ranabhat and others 2062. 

• Unless the discussion held at parliament affect the functioning of judiciary, it cannot be said as contempt of court.

Separation of power under constitution of Nepal; 

Part 7: Federal executive;

• Executive power to council of ministers (Article 75(2))

Part 8: Federal legislature;

• House of representative (Article 84)
• National Assembly (Article 86)
• Privileges (Article 103)

Part 11: Judiciary;

• Powered relating to justice in Nepal shall be exercised by courts and other judicial bodies. (Article 126).
• 3 tiers of courts (Article 127).

Check and Balance:

Legislative to executive:

• The legislative can remove the Prime Minister through a vote of no confidence (Article 100).

• It can overrule or approve executive bills (Article 110).

• The head of state and government are elected by an electoral college and the legislative body (Article 64, Article 76).

• The legislative can pass impeachment motions against the President and Vice President (Article 101).

Legislative to Judiciary:

• The legislative branch has the power to remove the Chief Justice and judges through impeachment (Article 101).

• It has the right to approve or disapprove of judicial recommendations.

• The legislative can pass suggestions and provide advice on judiciary reports.

• It approves acts related to the judiciary.

Executive control over legislature:

• The executive has veto power over all bills (Article 111).

• It can summon sessions (Article 93).

• The executive has the power to issue ordinances (Article 114).

Executive over judiciary:

• The Government of Nepal is responsible for the appointment, transfer, and promotion of judicial service officials (Article 154).

• The executive has the authority to pardon jail sentences (Article 276).

• It formulates laws relating to the salary of judiciary officials.

Judiciary over legislative:

• The judiciary has final authority to interpret laws (Article 128).

• It can declare any law void if it is unconstitutional.

• The judiciary has the right to review legislative laws.

Judiciary over executive:

• Executive actions can be declared unconstitutional by the judiciary.

• The judiciary can hold the government accountable in various ways through Public Interest Litigation (PIL).

                                                                      Prepared and Edited By: Manish Rajak & Madhu Dahal