Separation of Powers Flashcards
(11 cards)
What is the separation of powers?
The separation of powers doctrine is a structural mechanism used to restrict the exercise of public power in a constitutional democracy.
The doctrine seeks to limit the powers of each branch of government: executive, legislature, and judiciary.
Therefore, the doctrine is the foundation for the division of institutions and the institutional division of public power. This creates a society where the abuse of power by government is lessened., and public power is exercised wisely or prudently in a manner that is non-abusive.
What is the premise of the separation of powers?
It is premised on the understanding that rather than trusting in the well-meaning or kindness of rulers, a more predictable and transparent way to prevent tyranny is by distributing power between different branches of government which, individually, can be held accountable.
Such distribution seeks to limit the possibility of an overconcentration of power in any one branch and also to create some level of exclusiveness or specialisation of functions in each of the branches.
How is the doctrine related to rights and liberties?
The modern conception of separation of powers is also about the protection of rights and liberties in addition to safeguarding political liberty. The institutional nature of the doctrine is to prevent the abuse of power through extra-constitutional conduct.
What are the four principles that make up the modern concept of the doctrine of the separation of powers?
- Trias politica: This principle divides governmental power across three branches which are the legislative branch (Parliament), executive branch (President/Prime Minister and Cabinet), and the judicial branch (the courts).
- Separation of politics: This principle provides that distinct areas of responsibility and authority must be given to each of the three branches of government. This prevents one branch from taking responsibility for the tasks allocated to another branch.
- Separation of personnel: Each branch of government must have specific persons assigned to it who are responsible, often exclusively, for the performance or execution of that branch’s functions.
- Checks and balances: Entails that each branch must be held accountable by other branches to check the exercise of power by each branch. In certain circumstances, this allows one branch to veto the actions taken by another branch. This ensures, first, that the branches remain connected in the discharge of their functions, and second, that the branches hold each other to account where provided by the constitution.
What is the function of the Legislature?
To enact law
Hold the executive accountable
Personnel - Members of parliament
What is the function of the executive?
To make policy
Implement and administer law
Make crucial appointments
Personnel - President, deputy president, ministers, and their departments
What is the function of the judiciary?
To interpret and adjudicate legal disputes
Declare invalid law or acts contravening the constitution
Personnel - Judges and magistrates
Does the South African Constitution expressly mention the separation of powers?
No. However, Constitutional Principle VI (6) in the interim Constitution required that the final Constitution incorporate a separation of powers between the three branches of government as well as the appropriate checks and balances on the exercise of power of each of these branches to ensure the democratic values of accountability, responsiveness, and openness. It is against this background that the doctrine of separation of powers must be seen as forming an integral component of South African constitutionalism.
What powers are constitutionally vested in Parliament in terms of the separation of powers?
Chapter 4 of the Constitution vests the national legislative authority in Parliament. Parliament is made up of the National Assembly and the National Council of Provinces.
Exercising legislative authority entails the power to make laws. This includes amending the Constitution, making ordinary laws, and the power to assign or delegate Parliament’s legislative powers.
Chapter 4 of the Constitution stipulates in whom the powers to legislate vest: members of the National Assembly and delegates to the National Council of Provinces. In their capacity as MPs, the Constitution empowers both members of the NA and delegates to the NCOP respectively to regulate their own process. Furthermore, the Constitution confers on the members of both Houses parliamentary privileges and immunities for all speeches made in Parliament and its committees.
How are Parliament’s powers constrained?
When exercising legislative authority, Parliament is constrained by the requirement to act in accordance with and within the limits of the Constitution.
Does the South African Constitution provide for a strict separation of powers between the legislature and executive?
