If we are to understand the emerging concept of ‘Separation of Powers’, we must understand the idea that the condition that gave birth to the holy trinity of ‘Separation of Powers’ i.e. the Legislature, Executive and Judiciary – was completely different. We must also understand that Montesquieu’s own analyses were vaguely incorrect. It can be said that the three organs of governance were born in the nascent stages of a liberal paradigm, which had propelled the birth of State in its insipient form. The three tiers were created because the State was construed as an entity that would perform only minimal functions i.e. of a night-watchman State. It was the era of classical laissez faire.
The Second World War and the Beveridge Report paved way for a Modern Welfare State. In the 1950’s, behaviouralism conceptualized the functional aspect of governance. Gabriel Almond brought it to an elevated level by gestating a structural and functional analysis of government. The Latin American countries first paved way for incorporation of independent agencies within their constitutions. Peter Strauss and John Ackerman, both exponents of functional aspects of governance, have provided justification to dismantle Montesquieu’s original doctrine.
However, the new dimension of Separation of Powers owes its origins to a multi-faceted debate between Formalism and Functionalism. American legal scholars, who were well aware of the increasing power of the administrative agencies, engineered this debate in question. Simultaneously, this very idea was also applied by the U.S. Supreme Court in several of its judgements.
For the Formalist, questions of a horizontal governmental structure are to be resolved with reference to a fixed set of rules – and not with reference to some purpose of those rules. With regard to the source of the rules, they are to be derived from the text of the existing constitutions and original interpretations of that particular text. Gary Lawson describes a Formalist as one who, “treats the constitution’s three ‘resting’ clauses as effecting a complete division of otherwise unallocated federal governmental authorities among the constitutionally specified legislative, executive and judicial institutions. Any exercise of governmental power, and any governmental institutions exercising that power, must either fit within one of the three formal categories thus established, or find explicit constitutional authorization for such a deviation. The Separation of Powers and the exercising institutions do not match and the constitution does not specifically permit such a blending”.
Thus, the structural provisions within a constitution specify the type (legislative, executive and judicial), and place (Congress/Parliament, President/Prime Minister, Supreme Court) of all government power. This is particularly eminent in the American Constitution.
Nevertheless, this doctrine has also been criticized on several grounds. To identify and place rules correctly is a serious obstacle for the Formalist. To begin with, the emerging growth of independent agencies is overlooked. Independent agencies perform a variety of functions, most perform a mixture of all functions of the three organs of governance – such as rule-making and adjudication. General rules that bind the parties resemble, in many cases, the exercise of power vested exclusively in the legislative bodies. This aspect is aptly described by Elizabeth Magill, who further goes on to criticize Formalism by quoting Madison from a Federalist paper, recalling Madison’s admonition that “experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces – the Legislature, Executive and Judiciary. The Formalist position would, if consistently followed in the courts, require dramatic alternation of contemporary institutional arrangements and prevent experimentation along similar lines in future”.
On the other hand, however, while a Formalist is committed to rule-based decision-making, a Functionalist would resolve the structural disputes – not in terms of a fixed set of rules, but in terms of evolving standards designed to advance the ultimate purpose of a system. The leading exponent of Functionalism, Professor Peter L. Strauss, developed a comprehensive approach that captures the virtues of a new system. The Functionalist shares some of the Formalist’s tools, i.e. the text, the original interpretation. But, the Functionalist applies it differently. He is more concerned with the reality of the existing government. For the Functionalist, the new administrative and independent agencies can be accommodated in the theory of Separation of Powers.
To quote Professor Strauss “as long as Separation of Powers is maintained at the very apex of governance, a checks and balances inquiry into the relationship of the three named bodies to the agencies and each other seems capable in itself.” Strauss abandons the Formalist effort to place administrative agencies in one branch. Instead he directs focus on the relationship between administrative agencies, and the holy trinity of the theory at the apex of governance.
This new, emerging concept of Separation of Powers which is trying to get over the tripartite concept of government and the value laden concept of power, was also recognized by the noted scholar MJC Vile in his book “Constitutionalism and Separation of Power”. The demands made upon modern governments, and the complexity of their aims, demand new techniques, new procedures and new forms. The relevance of older theories and traditional thought systems are placed under the spotlight of doubt. Certain Schools of Government have adopted a scientific approach to the study of politics and constitutionalism, too. What is now emphasized is the functional aspect of governance, and a break-up of “power” as a concept before Separation of Powers.
Trends in institutional development of already advanced Western countries are somewhat difficult to fit into, and new molds are thus to be found. An account of the concept of ‘power’, which has intrigued modern sociological thought, should be considered alongside older understandings of ‘power’ and the novel area of its function and structure. The constitutional theory, from the point of view of function, structure and process is to be studied. It shows that the idea of power was never prevalent, new branches of government are possible and that other organs are interdependent – mutually interacting and connected to a value-existing pattern.
The concept of function has its roots in Greek Political thought. The idea is well described by MJC Vile, when he states, “the nature of the functions of government thus require considerable clarification. The abstract concepts of Legislature, Executive and Judiciary emerged after a long period in which man thought mainly in terms of the tasks which government had to perform, such as conducting was and diplomacy etc. The emergence of the idea of legislative and executive powers or functions had in itself little to do with an analysis of the essential nature of government, it was concerned move with the desire, by delimiting certain functional areas, to be able to restrict the rules to a particular aspect of government and so as to exercise limits on his powers.” The emphasis is on the terms of the functions of a political system, rather than the government. The problem of control of government action lies at the heart of constitutional thought. It necessitates on an over-all view of function, rather than a mere concern with the relationship between a government and the citizens of the State.
The original doctrine of Separation of Powers implied that the functions of government could be uniquely divided between the three branches of government in such a way, that no branch need ever exercise the function of another in practice. Such a division of function has never been achieved in practice. It can be suggested that the multi-functionality of political structure can be carried to the point where any attempt at a division of function is impossible. This situation arises from the fact that a statute or other policy decision can never present a rigid plan to be followed by civil servants, who must be allow certain discretion in the administrative of government programs.
If one pursues the analysis to its limits one can see that the exclusive allocation of rule-making, rule application or rule adjudication to particular organs of government is not only inconvenient, but it is almost impossible as well. Every act of every official embodies almost all the three types of activity. This further raises an idea of doubt over the legitimacy of the traditional doctrine.
The function of control, therefore, requires in some fashion a notion of balance; whether this balance is expressed within the government machinery, between government and people, or between the media of control themselves. The historic motion of balance cannot be jettisoned at the present stage of development of human institutions. We must reformulate the earlier theories so that they no longer seek a balance merely between the Executive, Legislature and Judiciary.
Over the past two decades there has been a veritable explosion in the number and power of independent agencies over the globe. The spread of electoral institutes, anti corruption agencies and other institutions has paralleled the equally important wave of creation of independent regulatory agencies. The new accountability agencies have their own institutional dynamics and must be understood on their own terms. John M. Ackerman’s study reveals that there are almost 250 independent accountability agencies with constitutional backing. They have various responsibilities and very different legal designs and powers. According to Ackerman there are three different ways in which theses agencies have been integrated into the overall constitutional framework. One path is to formally group together the most important agencies under a new branch of government like in Venezuela and Ecuador. The second way, is to include all of the agencies under a single branch in the constitution and subject them to a series of common regulations. Lastly, the third and the most common path is the ad hoc creation of such agencies at different times, and in different branches of countries’ respective constitutions.
Ackerman and other scholars who have adopted ‘Peter Strauss Powers’ tend to focus more on the Functional aspect of government. The term ‘power’ according to this theory, should be replaced with the “correct” phrase, i.e. Separation of Functions. The term ‘function’ is in consonance with Max Weber’s ‘Bureaucratic Culture’ and Gabriel Almond’s ‘Structural Functional Analysis’. The global wave of creation of independent accountability agencies holds great weightage for the future formation of Separation of Powers. It implies a sea change in the organization of State authority, which needs to be given its rightful place within contemporary theories of constitutional design. It is an example of innovation which flows principally from global ‘South’ and is important for India as well as new democracies.
Ackerman in his research has shown that at present there are 81 countries with independent agencies at the constitutional level. The total number of agencies is 248 and is mostly distributed in U.S.A., Europe, Africa and Asia. It can be said that the creation of independent agencies has become a strategy used by government reformers to start afresh.
The question to be asked is, whether these institutions tend to contest or complement deeper democratic reform. Cases such as of Chile, Greece, Mexico and Ecuador seem to offer hope with regard to possible independent accountability agencies. It can be seen as the birth of a new and different form of organization of State Power in a democratic context.
CONCLUSION:
In conclusion, it is evident that a new pattern is emerging before us. Its exponents are the underdogs of emerging political actors who have recently escaped chaotic political misadventure and have changed their direction of progress – such as in Latin America. We can learn the new techniques adopted by the Latin countries like Ecuador and Venezuela, to rebuild the problem with transparency and democracy in constitutions worldwide. It is a scientific and legal way to institutionalize ‘right based jurisdiction’ in the constitution. Constitutionalism has been given a new lease of life with a process that doesn’t focus on Powers of Government but on its Functions.
According to the new schools of thought, the archaic model of the holy trinity of governance is the symbol of a draconian, lethargic state that has sleeps over its weaknesses. The new organs are effectively ‘for the people’. The response to anomalies in the administration of the government has resulted in the popularity of agencies like Ombudsman.
By taking the precedent of its entire predecessor and institutionalizing the new dimension of Separation of Powers, we can achieve better governance.
– Shivam Jain Kakadia (V-III)