Doctrine of Separation of Powers with emphasis on the role of the Legislature, Executive and Judiciary
⚖️ Doctrine of Separation of Powers
✅ What is the Doctrine of Separation of Powers?
The Doctrine of Separation of Powers is a constitutional principle that divides the powers and responsibilities of government into three distinct branches:
Legislature – makes the law.
Executive – implements the law.
Judiciary – interprets and enforces the law.
➤ Purpose:
To prevent concentration of power in one body.
To ensure accountability, checks and balances, and rule of law.
To protect individual liberty by avoiding arbitrary governance.
🔍 Origin and Evolution
The concept was most famously articulated by Montesquieu in “The Spirit of the Laws” (1748).
In modern constitutional democracies, complete separation is not absolute but functional, with checks and overlaps.
🏛️ Roles of the Three Branches
1. Legislature: The Law-Making Body
Key Functions:
Makes laws (statutes).
Controls public expenditure.
Checks the executive through debates, questions, and committees.
In the UK: Parliament (House of Commons and House of Lords).
Important Principles:
Parliamentary Sovereignty (especially in the UK).
Enacts enabling Acts allowing administrative rule-making (delegated legislation).
2. Executive: The Law-Enforcing Body
Key Functions:
Implements laws passed by the legislature.
Runs government departments, public services, police, and military.
Issues delegated legislation, policies, decisions, etc.
Headed by Prime Minister, Ministers, President/Monarch depending on the system.
Important Features:
Often overlaps with legislature in parliamentary systems (ministers are MPs).
Accountable to Parliament.
3. Judiciary: The Law-Interpreting Body
Key Functions:
Interprets and applies laws.
Reviews actions of legislature and executive to ensure legality and constitutionality.
Protects fundamental rights and liberties.
Independence:
Judges must be independent, impartial, and free from political influence.
🔍 Judicial Perspective: Case Laws on Separation of Powers
Case 1: Liversidge v Anderson [1942] AC 206
(UK – Judicial Deference to Executive)
Facts:
During WWII, Home Secretary detained Liversidge under emergency regulations without disclosing the grounds.
Judgment:
Majority deferred to executive’s discretion in wartime.
Lord Atkin (dissent) argued that courts must uphold rule of law even in emergencies.
Significance:
Classic example of tension between judiciary and executive.
Revealed limits of judicial control when the executive uses national security powers.
Case 2: R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC 513
(Judicial Check on Executive)
Facts:
Home Secretary refused to implement a compensation scheme provided in statute and used prerogative powers to introduce a new scheme.
Judgment:
Held unlawful; executive cannot override parliamentary will.
Significance:
Reinforced legislative supremacy and judicial scrutiny of executive discretion.
Demonstrated judicial control over both executive and delegated legislation.
Case 3: R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5
(Separation of Powers & Constitutional Accountability)
Facts:
Government tried to trigger Article 50 (Brexit) using prerogative powers without parliamentary approval.
Judgment:
Supreme Court ruled that Parliamentary approval was required.
Significance:
Affirmed the primacy of Parliament in altering domestic law.
Executive cannot unilaterally change laws affecting citizens.
Case 4: A v Secretary of State for the Home Department [2004] UKHL 56
(Judicial Protection of Rights Against Executive Overreach)
Facts:
Foreign nationals were detained indefinitely under anti-terror laws.
Judgment:
House of Lords held the detentions violated the European Convention on Human Rights and were discriminatory.
Significance:
Judiciary acted as a check on executive power.
Separation of powers used to uphold rule of law and human rights.
Case 5: R v Secretary of State for the Home Department, ex parte Venables and Thompson [1997] 3 WLR 23
(Judiciary vs Executive Sentencing Powers)
Facts:
Home Secretary set the minimum term for life sentence of child offenders.
Judgment:
Held unconstitutional; setting sentences is a judicial function, not executive.
Significance:
Reinforced the separation between judiciary and executive.
Sentencing must be independent of political considerations.
Case 6: Marbury v Madison (1803, U.S. Supreme Court – for comparative context)
Facts:
First case to declare a law unconstitutional.
Judgment:
Established judicial review in the U.S.
Significance:
Landmark in establishing judicial supremacy over legislation when laws conflict with the Constitution.
🔄 Summary of Cases and Principles
| Case | Branches Involved | Principle Highlighted |
|---|---|---|
| Liversidge v Anderson | Judiciary vs Executive | Executive discretion during emergencies |
| Fire Brigades Union | Judiciary vs Executive | Executive must follow statute |
| Miller (2017) | Legislature vs Executive | Parliament must approve major constitutional acts |
| A v Secretary of State (2004) | Judiciary vs Executive | Detention must respect human rights |
| Venables & Thompson | Judiciary vs Executive | Sentencing is a judicial function |
📘 Conclusion
➤ Key Takeaways:
Separation of Powers is essential for constitutional democracy and rule of law.
While in theory powers are distinct, in practice they often overlap, especially in parliamentary systems like the UK.
The Judiciary acts as the guardian of legality and fairness, ensuring that:
Legislature doesn’t violate constitutional boundaries.
Executive stays within legal and procedural limits.
Courts have evolved mechanisms such as judicial review to enforce this doctrine.
➤ Final Thought:
Though complete separation is impractical, maintaining functional separation and effective checks ensures that no organ of the state becomes autocratic, preserving democracy and individual freedoms.
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