Table of Contents
1.The origin of the doctrine of separation of powers
1.1.The goal of separation of power.
2.United States Presidential system vs Ethiopia’s parliamentary system
2.1.Separation of executive and legislature
2.2.Separation between legislature and judiciary
2.3.The executive and judiciary
3.Modifications made by the Americas to the doctrine of separation of power.
The principle of separation of power is one of the oldest constitutional principles in most of the world countries. It refers to the idea that the major institutions of state should be functionally independent and that no individual should have powers that span these offices. The principal institutions are usually taken to be the executive, the legislature and the judiciary.
In early accounts, such as Montesquieu’s The Spirit of the Laws, the separation of powers is intended to guard against tyranny and preserve liberty. It was held that the major institutions should be divided and dependent upon each other so that one power would not be able to exceed that of the other two.
As mentioned earlier most countries of the world both presidential and parliamentary form of government incorporated this doctrine in their constitutions with a certain degree of disparity. American Presidential system with strict separation among the three branches of government, the oldest constitution in the world dating 227 years. On the other hand, all parliamentary systems of government including Ethiopia apply the principle with a certain fusion of power mainly among the executive and legislative organs of government.
Cognizant of the above fact as background knowledge, this paper tries to explore American presidential system versus Ethiopian parliamentary system of government based on the original doctrine of montesques separation of power. Thus it is organized in to three parts. The first part deals with the original doctrine of separation of power and its goal. The second part briefly discuss and evaluates the extent to which 1) the executive and legislature; 2) the executive and judiciary; and 3) the judiciary and legislature now overlap and interact in the united state of American presidential and Ethiopian parliamentary system of governments. Last but not the least deals with modifications made by the Americans to the original principle.
1. The origin of the doctrine of separation of powers
The modern design of the doctrine of separation of powers is to be found in the constitutional theory of John Locke (1632-1704). He wrote in his second treaties of Civil Government as follows: “It may be too great a temptation for the human frailty, apt to grasp at powers, for the same persons who have power of making laws, to have also in their hands the power to execute them, whereby they may exempt themselves from the law, both in its making and execution to their own private advantage.” It is clear that he was advocating the division of government functions into legislative, executive and judicial branches of government (Taddese, 2012:21).
However, it is the French philosopher (jurist) Montesquieu (1689–1755) who is usually credited with the first formulation of the doctrine of separation of powers. He based his exposition on the British Constitution. In the pertinent chapter of his well celebrated work, The spirit of the laws (1748), he purported to describe the British Constitutional system of the 18th Century so that it might serve as an example to France of a political dispensation founded on liberty, which according to him, was the supreme objective of a political society. Montesquieu’s analysis of the British system is generally accepted as political ideal which is worth pursuing. Montesquieu recognized the three basic pillars of state authority, which includes the executive, legislature and the judicial functions; and he added that these functions ought to vest in three distinct governmental organs with, in each instance, different office bearers. He supported his argument by saying: ‘all would be in vain if the same person, or the same body of officials, be it the nobility or the people, were to exercise these three powers: that of making laws, that of executing the public resolutions, and that of judging crimes or disputes of individuals’
His idea eventually developed into a norm consisting of four basic principles:
(a) The principle of trias politica, which simply requires a formal distinction to be made between the legislative, executive and judiciary components of the state authority.
(b) The principle of separation of personnel, which requires that the power of legislation, administration and adjudication be vested in three distinct organs of state authority and that each one of those organs be staffed with different officials and employees, that is to say, a person serving in the one organ of state authority is disqualified from serving in any of the others.
(c) The principle of the separation of functions which demands that every organ of state authority be entrusted with its appropriate functions only, that is to say, the legislature ought to legislate, the executive to confine its activities to administering the affairs of the state, and the judiciary to restrict itself to the function of adjudication.
(d) The principle of checks and balance, which represents the special contribution of the United States to the notion of separation of powers, and which requires that each organ of state authority be entrusted with special powers designed to keep a check on the exercise of functions by the others in order that the equilibrium in the distribution of powers may.
1.1. The goal of separation of power.
Many constitutional law scholarships today submit that the principle of separation of powers is at the heart of the rule of law and constitutionalism. This is because it serves various values of the rule of law of which the following are most important for the purpose of the paper. The first value is that separation of powers serves guarding against government tyranny. The main purpose of the separation of powers suggests that the principal institutions of state—executive, legislature and judiciary—should be divided in person and in function in order to safeguard liberties and guard against tyranny. One of the earliest and clearest statements of the separation of powers was given by Montesquieu in 1748:
When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty... there is no liberty if the powers of judging is not separated from the legislative and executive... there would be an end to everything, if the same man or the same body were to exercise those three powers.
A tyrannical government is a government with unconstrained coercive authority that retains the power to limit popular choice. Thus, separation of powers provides a structural guarantee of citizens where by government authority is constrained and reduced by dividing it among the different branches yet with some degree of check and balance among themselves. Another crucial value which emanates from the fundamental principle of the rule of law is the doctrine of separation of powers prevents arbitrary government. Even though the rule of law have various connotations and meanings for the reasons already discussed above, at its bottom it reflects a core requirement of legal regularity under which government actors derive their authority from and are bound by the law.
- Quote paper
- Masters Degree (Federalism and Local government studies ) Wondwossen Mengistu (Author), 2017, How the Doctrine of Separation of Power Works in the American Presidential System and Ethiopian Parliamentary System, Munich, GRIN Verlag, https://www.grin.com/document/388337