शक्ति पृथकीकरण र नियन्त्रणको सिद्धान्त.pdf

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1. Separation of Power
•OrigingoesbacktothefourthcentauryBCwhenAristotleinhis
treatiseentitledPoliticsdescribedthreeagenciesofgovernment:
The General Assembly (Deliberative function)
The Public Officials (Official function)
The Judiciary (Judicial function)
•British Parliamentary System of 17
th
centaury
•Two treatise of government by John Locke (1689)
Legislative
Executive
Federative
•Lockedidnotconsideredeachbranchesco-equal,northeywere
designedtooperateindependently.Heconsideredlegislative
branchsupreme.Similarly,Executivefunctionreferstointernal
functionsandfederativefunctionreferstoexternalfunctions;both
offunctionsareincontrolofmonarch.

2. Baron de Montesquieu on Separation
of Power : “Spirit of the Laws, 1748”
•Whenthelegislativeandexecutivepowersareunitedinthesame
personorbody,therecanbenoliberty,becauseapprehension
mightariselestthesamemonarchorsenateshouldenacttyrannical
laws,toexecutetheminatyrannicalmanner.
•Again,thereisnoliberty,ifthejudiciarypowerbenotseparatefrom
thelegislativeandexecutive.Wereitjoinedwiththelegislative,the
lifeandlibertyofthesubjectwouldbeexposedtoarbitrarycontrol;
forthejudgewouldbethenthelegislator.Wereitjoinedtothe
executivepower,thejudgemightbehavewithviolenceand
oppression.
•Therewouldbeandendofeverything,wereitthesamemanorthe
samebody,whetherofthenoblesorthepeople,toexercisethose
threepowers,thatofenactingthelaws,thatofexecutingthepublic
resolutions,andoftryingthecasesofindividuals.

3. Baron de Montesquieu on Separation
of Power : “Spirit of the Laws, 1748”
•Montesquieu, talks about separation of power among
Legislative, Executive and Judicial bodies.
•He discussed about the importance of clear delineation of
power among three branches of government.
•Separation of Power is important part of constitutionalism. It is
established principle that government has three organs-
Law making by legislature
Law implementation by executive
Law interpretation by Judiciary
•Powershouldbeseparatedandshouldbecarriedoutbythree
separateorgans.Eachorganisseparateandindependentin
termsoffunction.Pressisregardedasfourthandcivilsociety
asfifthorgan.

4. Types of Separation of Power
1.No separation of Power-absolute power residing
in one person or body exercising executive,
legislative and judicial powers.
2.Pure separation of Power-Power being diffused
among the three separate bodies exercising
separate functions with no overlaps in function
or personnel.
3.Weak separation of Power-Power and personnel
being largely but not totally separated with
checks and balances in the system to prevent
abuse of power.

5. Some exception of Separation of
Power
•USA:-
1.Vice-president as chairman of Senate
2.DuringImpeachmentmotionagainstthe
president,chiefjusticeofsupremecourtworkas
chairmanofcongress.
•Inparliamentarysystemthereisdouble
membership(membershipofparliamentand
executive).Butatimplementationlevelthereare
bureaucratsofdifferentservicestoworkin
differentorgans.Thereareparliamentary
committeestocheckupongovernmentfunctions.

6. What do you mean by separation of
power?
1.One person not to sit in two organs.
2.Function of one organ not to be carried out
by another.
3.One organ should not interfere with other
organs function.

7. Check and Balances
•Check and balance requires control on each
organ of state by another organ.
•Balance means making equilibrium among
three organs.
•Check-control
•Balance-equilibrium via sharing of power

8. Legislative Control over executive &
Judiciary
•By not making laws as required by executive.
Legislative is independent in making laws by
looking at the existing scenario and foreseeing the
future.
•By removing president with impeachment.
•By not passing the required legislation.
•By not passing the budget.

9. Executive Control over legislature and
Judiciary
•By using veto (President can veto the laws made by
congress).
•Super majority can wash out the veto of president.
•PM is head of constitutional council (Nepal).
Constitutional Council according article 284 of
Constitution of Nepal recommends Chief Justice,
Chief and member of Constitutional Bodies.
•President calls house and ends house(Article 93)
•Government Presents the Bill in parliamentary
system (Nepal Army, APFand Nepal Police related
and Fiscal Bill).

10. Judicial control over others
•Judiciary controls legislative and executive by
power of judicial review.By this, judiciary may
declare the work done by the two as void. The
executive and judicial action must be according to
constitution.
•Interpretation of Constitution (Article 133, 144)

11. Others Checks
•Media and press are important check on the functioning of
government. Above all, people are the supreme check on
any system of governance.
•Responsibility and Accountability of government-
Principle of responsible government
Ministerial accountability
•Government should not act irresponsibly (Trustworthiness
of government itself and whether expectation of people are
met or not)
•Government should act according to the public opinion
•Government should be answerable to the parliament
Individual ministerial accountability and,
Collective Ministerial Accountability)