Historical Development of Separation of Powers

The separation of powers is a fundamental pattern for governance of any country. This pattern is the most important constitutional constituent in any country throughout the globe. When we hear the term separation of powers we immediately understand that it consists of three branches in most countries. The separation of powers is a pure model of democratic societies and it consists of executive, the legislature and judiciary branches. The separation of government responsibilities into different branches commonly limits them from exercising the fundamental functions of each other. The reason is to stave off the concentration of power on one branch and to diversify the government’s liabilities. However, in UK we can notice one characteristics of unwritten constitution; the exhibition of separation of powers but it is not complete, because there is an overlapping of the Lord Chancellor and the Parliamentary Sovereignty. In this essay the importance of the separation power in a modern society will be discussed with the reference to UK system and to Uzbekistan constitution. Moreover, we will discuss the history of separation of powers. Furthermore executive, the legislature and judiciary powers will be discussed in details in terms of functions and liabilities of each separately. As the system of government always evolves in term of political and economical practice, new conventions, statutes, degrees will need to be devised in order to protect the liberty and rights of the people. The importance of separation of power can be seen in monitoring the political system and advocate new measures when the rights of people are threatened. Doubtless the separation of powers is a decision for this process and concept.

Historical Development of the Concept

The separation of powers concept was first originated in ancient Greece and became widespread in the Roman Republic as part of the initial Constitution of the Roman Republic. The Aristotle (384-322 BC) in his book “The Politics” stated that: “There are three elements in each constitution in respect of which every serious lawgiver must look for what is advantageous to it; of these are well arranged, the constitution is bound to be well arranged, and the differences in constitutions are bound to correspond to the differences between each of these elements. The three are, first, the deliberative, which discusses everything of common importance; second, the official; and third the judicial element.”

At the time of Edward I reign (1272-1307) the separation of powers was emerged in England, with the appearance of Parliament, the Council of King and the courts. Baron Montesquieu, French Enlightenment political philosopher, how lived in England from 1729-1731 promote the concept of “Montesquieu’s tripartite system”. This term describe the division of political power into executive, the legislature, and a judiciary. Baron Montesquieu ascribed this model to the British constitutional system, “a separation of powers among the monarch, Parliament, and the courts of law.” However this was misleading because Untied Kingdom had close connection of executive and legislature. Baron did specify in his book “De l’spirit des Lois” that “the independence of the judiciary has to be real and not apparent merely”. “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty…Again; there is no liberty if the power of judging is not separated from the legislative and executive. If it were joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; because the judge would then be the legislator. If it were joined to the executive power, the judge might behave with violence and oppression. There would be and end to everything, if the same man, or the same body, whether of the nobles or the people, were to exercise those three powers, that of enacting laws, that of executing public affairs, and that of trying crimes or individual causes”

In Uzbekistan the separation of power became essential with Article 11 of Uzbek Constitution. “The principle of the separation of powers between the legislative, executive and judicial authorities shall underline the system of State authority in the Republic of Uzbekistan.”

The doctrine of separation of powers actually doesn’t insist for the consideration that it should be three institutions which operate isolated from each other. It cannot be a point for UK because it has an overlapping of the figure of the Lord Chancellor and Parliamentary Sovereignty. For example in Republic of China they have five branches, the legislative yuan, executive yuan, judicial yuan, control yuan and examination yuan. However it is not logical to state that in China the monitoring of political system is better developed then in Uzbekistan or UK.

Branches of powers

Executive power

Executive power in political system plays very vital role and it is a branch of the state which has sole authority and responsibility in administration of the state bureaucracy, moreover to implement the statutes and laws as created by the legislature and interpreted by the judicial system. The division of power into three subdivisions is essential to the democratic value of the separation of power. In the Republic Uzbekistan the executive is the Cabinet of Ministers. President is responsible for the formation of the Cabinet of Ministers; however, under the proposal of the President the candidacy of Prime Minister shall be considered and approved by both chambers Oliy Majlis. Moreover, the head of the government of the Republic of Karakalpakstan is a member of the Cabinet of Ministers too.

The role of Cabinet of Ministers is to provide for effective existence of economy, social sphere, law execution and other resolutions by Oliy Majlis, decrees, statutes and orders issued by the President of Uzbekistan. Additionally, according to modern legislature, Cabinet of Ministers also have a right to issue orders and resolutions which has a binding force for execution on the whole territory of the republic of Uzbekistan by all bodies, enterprises, organizations, citizens, authorities and institutions.

In UK the executive branch formulates policy and is responsible for its execution. The head of executive branch in United Kingdom is the Queen. This branch consists of the Prime Minister, the Cabinet of Minister and the Ministers but in contrast to Uzbekistan, ministers of the Crown are elected members of House of Parliament, Commons or Lords, whereas in Uzbekistan Ministers are elected by President and approved by Oliy Majlis. Nevertheless we can see that that the role of separation of powers in executive branch plays a significant role in monitoring the political system.

The legislature

The legislature can be expressed as a deliberative body with the power to amend, pass and abolish laws. The law which was created by a legislative body is called legislation or statutes. Moreover the legislature has an exclusive authority to raise taxes and adopt budget.

In Republic of Uzbekistan the highest state representative body of legislature is Oliy Majlis. Oliy Majlis consists of two members the Legislative Chamber (Lower House) and the Senate (Upper House). The main responsibilities of two Chambers are; “to adopt the Constitution of the Republic of Uzbekistan; to introduce amendments and addenda into Constitution; to pass and introduce amendments and addenda to Constitutional and other laws; to pass resolution on holding a referendum and setting its date; set main directions of both domestic and foreign policies and pass the state strategic programs; to define the structure and powers of legislative, executive, and judicial branches of power; to approve resolutions on adding new state structures into the Republic of Uzbekistan and cancel them; to pass the State budget and monitor its execution; to institute state awards and ranks; to form the Central Election Committee; to review and approve the candidacy of the Prime Minister proposed by President; to ratify and denounce international treaties.” [1]

In UK the Parliament has a legislative supremacy and crucial power over all political bodies in the UK. The Queen in Parliament is the sovereign law making body. However there are three bodies such as the Queen, the House of Lords and the House of Commons. According to Diceyan theory of parliamentary sovereignty, Parliament can produce or abolish any law they want with a simple majority of votes of the House of Commons’ members. There is no special procedure in British constitution which states that an Act of Parliament can be legally invalid. However if the statute was established and approved by Parliament, nobody can change it, even constitution of UK, because we face here with the pure Parliament sovereignty conception. Additionally Diceyan theory expressed “there is no higher form of law than the will of Parliament.” Whereas in Uzbekistan Oliy Majlis and President can abolish any law in accordance with constitutional values. However the monitoring of political system through the legislature branch is central for separation of power.

The Judiciary

The judiciary branch has its own implementation in political system of the country. It interprets and applies the law in accordance with constitutional and democratic values. Moreover, judiciary provides a system for the resolution of disputes in accordance with civil and common law traditions. In Uzbekistan which follows the traditions of civil law countries, the judiciary generally does not create law or enforce law, but interprets law and applies it to the facts of each case, whereas, in United Kingdom which follows the common law tradition judges can make law with their judgments.

In Uzbekistan the judicial power of political system consists of Constitutional Court, Supreme Court and Supreme Economic Court, Supreme and Economic Courts of the Republic of Karakalpakstan, as well as town, district and economic courts. It is independent from legislature and executive branches. [2] Supreme Court of Uzbekistan has the highest position in judicial body on criminal, civil and administrative legal cases. Its decisions are final and have binding force for execution on the territory of Uzbekistan. In contrast to Uzbekistan, in England the judicial functions are overlapping to some extent between parliament and the executive, because of the office of Lord Chancellor.

Many legal scholars think that the office of Lord Chancellor is a violation of the doctrine of separation of power. According to Martinez, the Lord Chancellor is a head of the judiciary and is formally recognized as President of Supreme Court, Court of Appeal, High Court and Crown Courts, and the country courts. However the Lord Chancellor is a member of executive; he is a senior member of Cabinet Minister. In spite of everything the Lord Chancellor contrives to join both memberships (judiciary and executive). Moreover it allows political system run smoothly and effectively.

According to my opinion for pure independence of any country and liberty of people and protection of the rights I will add the ideological branch and conceptual branch. Through ideological branch people will promote the goals of the whole country and to teach people to be cohesive in achieving the goal, whereas conceptual branch will be responsible for stating new goals of the country according to the public interests and constitution.

Conclusion

In conclusion I would like to say that in spite of my opinion concerning the pure independence of the country the doctrine of separation of powers globally took a control over political system of each country. Unsurprisingly most people believe that the concept of separation of powers is a central in governing the political system of country. Historical development of this concept shows us the significance of the separation of powers expressed by Aristotle in his book “The Politics” and Baron Montesquieu, French Enlightenment political philosopher in his concept of “Montesquieu’s tripartite system”. However, all three branches the legislature, executive and judiciary constitute the powerful ideology of effective political system in the country. The importance of separation of power can be seen; I was mentioned, in monitoring the political system and advocate new measures when the rights of people are threatened. Doubtless the separation of powers is a decision for the process of devising the protection of the liberty and rights of the people.