Constitution Ch7 (Legal Issues) - PDF

Chapter VII: Doctrine of Separation of power Chapter outline The concept and origin of separation of powers Importance of the doctrine/why Separation of Power? Separation of powers in parliamentary and presidential systems Separation of powers under the FDRE Constitution The legislative or...

Chapter VII: Doctrine of Separation of power Chapter outline The concept and origin of separation of powers Importance of the doctrine/why Separation of Power? Separation of powers in parliamentary and presidential systems Separation of powers under the FDRE Constitution The legislative organ ( Composition, power and function) The Executive Organ( Composition, power and function) The Judiciary ( power and function) The concept and origin of separation of powers ▪ The legislature enacts the laws, the Executive applies the laws and the judiciary interprets the laws. ▪ The idea can be traced back to Aristotle who argued for a mixed system of government, but it was in the 18th century through the writings of Montesquieu, Locke, Blackstone, that the doctrine gained substantial support. The concept and origin of separation of powers(2) ▪ Montesquieu in his publication, Spirit of the Laws, is considered one of the great works in the history of political theory and jurisprudence, and it inspired the Declaration of the Rights of Man and the Constitution of the United States. ▪ Under his model, the political authority of the state is divided into legislative, executive and judicial powers. ▪ He asserted that, to most effectively promote liberty, these three powers must be separate and acting independently. ▪ Separation of powers, therefore, refers to the division of government responsibilities into distinct branches to limit any one branch from exercising the core functions of another. The intent is to prevent the concentration of power and provide for checks and balances.(Horizontal Separation of Powers) ▪ The legislative branch is responsible for enacting the laws of the state and appropriating the money necessary to operate the government. ▪ The executive branch is responsible for implementing and administering the public policy enacted and funded by the legislative branch. ▪ The judicial branch is responsible for interpreting the constitution and laws and applying their interpretations to controversies brought before it. ▪ The three departments of government are to be separated and distinct. ▪ They are to be independent of one another, and each can exercise only one type of authority, legislative, executive or judicial. 1. The same person cannot compose more than one of the three departments of the government. 2. One department should not interfere with the acts of the other two departments 3. one department should not discharge the functions of the other two departments. Each branch must be separate in terms of function, person, and institution. ▪ Given the division of powers, it should also be noted that the authorities of the three organs or departments of the government are interrelated. ▪ They are to a large extent dependent upon another. Ministers are politically responsible to parliament, and legally responsible to courts. ▪ Complete separation is found to be not possible. ▪ A complete separation of powers, in the sense of a distribution of the three functions of government among three sets of organs, with no overlapping or co- ordination, would bring government to a stand still.  Separation of Powers, in USA Division of government into three branches, each with their own powers and responsibilities. Legislative Branch – Congress Executive Branch – President Judicial Branch – Supreme Court Importance of the doctrine/why Separation of Power? For Check and Balances - In order to prevent the abuse of powers, the power of the government should not be left entirely to one body or person; instead it should be separated or divided in some way. - Divided the power of government into three major functions. These were: law-making function (the legislative), Law-applying function (the executive) and law-enforcing function (the judicial). - The three branches of government should “chuck and balance” on each other. - It would allow one branch to limit another and to prevent one from becoming supreme, but one branch must not exercise the whole power of another, nor obtain control over another branch, for example the executive should not be able to vote legislative and decide when a new legislation should be elected. - Limit the power of the government - Efficiency of tasks - Technical and professional issues can be handled better - Decrease the Burden of one Branches of the government - Broaden Liberty Separation of powers in parliamentary and presidential systems Differences 1. In parliamentary system, there is a mix between the legislative and the executive branches of the government - A parliamentary system is a system of government where the executive branch of the government (a branch which is entrusted with the task of policy formulation and execution) is being dependent on the direct or indirect support and supervision of the legislative branch of government. - The separation of powers is not clear between the executive and the legislative branches, unlike the presidential system 2. Parliamentary system has a clear differentiation between the Head of Government and the Head of State, with the Head of Government being the Prime Minister or Premier, and the Head of State often being an appointed figurehead or hereditary monarch with only minor or ceremonial powers. 3. Direct vote to the head of the Executive, in presidential systems Separation of powers under the FDRE Constitution Separation of Powers Horizontal and Vertical  DIVISION OF POWER Division of power between the center and subnational units- vertically or Political power – Legislative - Executive - Judicial functions horizontaly Both orders of government are autonomous with respect to the powers granted to them 14 POWER DIVISION The legislative organ ( Composition, power and function) Composition, Do we have bicameral Parliament? HPR, HoF? COMPOSITION In terms of the basis of composition of second chambers, there are range of variations In the United States, the Senate embodying the principle of equal representation of the states, notwithstanding disparities in their population, was the price that the larger states had to pay for the participation of the smaller states in the federation. Federal power is not permanently controlled by the few more populous states The legislative organ ( Composition, power and function) Function/Powers - The legislative function is the making of a new Law and the existing Law alternative or repeal. - It involves the enactment of general rules determine the structure and powers of public and authority and regulation the conduct of citizens and private organization. Ethiopia? With a completely different role, the Ethiopian HoF appears to stand as a fourth category HoF does not have a legislative function Some of the important powers conferred to the House under Article 62 include constitutional interpretation and organizing the Council of Constitutional Inquiry  THE HOUSE OF FEDERATION (HOF) 1. It is a house of Nations, Nationalities, and Peoples of the country 2. Interpretation of the constitution assisted by CCI. 3. National self determination including the right of secession and Inter-state territorial conflicts 4. Division of revenues derived from joint federal and state tax and subsidy formula The Executive Organ( Composition, power and function) Composition? Which institutions of the government are the executive?  EXCLUSIVE FEDERAL POWERS INCLUDE - DEFENSE - F O R E I G N A F FA I R S , - I M M I G R AT I O N , - M A J O R TA X AT I O N P O W E R S , - CURRENCY AND FOREIGN EXCHANGE, - F O R E I G N A N D I N T E R S TAT E T R A D E , - MARITIME SHIPPING, - I N T E R - R E G I O N A L C O M M U N I C AT I O N , - P O S TA G E AND M AT T E R S P H Y S I C A L LY T R A N S C E N D I N G S TAT E B O U N D A R I E S - H I G H W AY, - KEY ASPECTS OF ECONOMIC ACTIVIT Y The Judiciary ( power and function) 1. Dual court structure – federal and state. 2. Cassation power lies in the federal supreme court. Decisions on cassation have precedence on similar cases. The judicial function consists disputed questions of the facts of particular cases and Law according to the Law lied down by Parliament and expounded by the Courts. It is the branch that adjudicates upon conflicts between State Institution, between individuals and between state and individuals. This function is mainly exercised in Civil and Criminal Courts by professional judges who are appointed by the crown  CONT’D One level should respect the authority of the other – principle of non-interference There are 3 ways of power allocations I. Enumerated – powers exclusively given to either levels of government Enumerated power of federal government - currency making - military power, - declaration of war, international relations II. Residual- - powers retained by one level once the power of the other is enumerated , Powers not given either specifically to each level or concurrently 23  CONT’D iii. Concurrent- powers over which both the federal government and the states have control Jointly exercised by the two levels - Common policy making power - Taxation power 24  CONT’D Three options of power division a) Option 1, exhaustively listing central governments power leaving residual powers to the states - There is a tendency to empower the constituent elements - Example USA, 25  CONT’D b) Option 2, exhaustive list of the constituent states leaving the residual power to the central government - There is a tendency towards unity and a need to empower the central government - What if most of the powers are exhaustively listed and only few left for residual? E.g. Canada 26  CONT’D c) Option 3, Exhaustive list of – federal - state - concurrent powers - E.g India in case of conflicts, federal supremacy * Nigeria – exhaustive list of federal governments power and concurrent power , In case of conflict federal supremacy - Residual power to regions - Does not fit anyone of the options 27