Editor in Chief: Moh. Reza Huwaida Sunday, January 21st, 2018

Separation of Powers

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Separation of Powers

Every modern state stands on four basic pillars also termed as organs of the state. These include Legislature, Executive, Judiciary and Media. Media has been considered as one of the pillars in modern world as the role of media in the state affairs has gained much importance. In the developed countries of the world, wherein media has been structured on the basis of modern technology and active role of journalism, it has proved to be a check on other pillars.

All the four organs of the state play their role in the development of a state and it is their appropriate interaction that can make a state function successfully. Every state is formed in order to guarantee the rights of the people who are their citizens. Modern welfare states even move one step ahead by announcing the role of the state to be the welfare of all its members. So they believe that state in itself is not an end rather it is a mean to an end and that end is the welfare of the people.

In order for a state to function in such a way so as to guarantee the welfare of the most of its citizens there should be 'Separation of Powers' among the organs of the state. The separation of powers suggests that the different organs of the state have the capacity to function on their own, without any compelling influence from other organs. This is to guarantee accountability and fair play in the matters of the government.

The concept of the separation of power, though introduced in modern politics by Montesquieu, has its root in ancient Greece and was widely practiced during the Roman Republic. Therefore, the name Trias Politica which is a substitute for the 'Separation of Power' has Greek root, though the structure of legislature, judiciary and executive were not in the way they exist in modern states.

Montesquieu, a French political thinker who lived during the Enlightenment in Europe, came with the idea of separation of powers to guarantee that the different organs of the state may function as per their own specialties and responsibilities and are not hijacked by the ruling elite for their own self-centered benefits. Montesquieu was greatly influenced by the political setup of Great Britain and considered it a clear example of separation of powers.

He emphasized on the separation with the fears that if judiciary is not separated from the executive or legislature, there is every possibility that the law is utilized for safeguarding the interests of the ruling elite. He emphasized particularly on a separate judiciary, "the independence of the judiciary has to be real and not apparent merely". From 'real' he meant that judiciary be separate in its function practically not just theoretically.

It has been one of the most dominating demands of the justice that the makers of the law themselves should also be put to trial and even punished for their violation of the law. As in most of the human societies the ruling elite have been so easily capable of using the law for their benefit that there is a believe in politics that 'justice is the will of the rich'. Once the rich and the powerful in society become strong enough so as to undermine the law and order system, the doom of the system is ascertained from that particular point.

Legislature within a state has the task of making law. This mostly includes the parliament. It does not depend on the structure of the parliament that whether it is unicameral or bicameral, all it depends upon is the capacity of the parliament to make law. And all the forms of government whether parliamentary form or a presidential form, need to have the basic pillars, but in the presidential form of government the separation of power becomes very evident or even essential.

The executive formed in a presidential form of a government is not necessarily party members elected by the people, except for the president. The presidential system of America is one of the most dominant and successful presidential systems in the world that can be used as an example. The cabinet formed by the president, are mostly the people who are specialized professionals not necessarily practical politicians.

The cabinet in America is considered as one of the strongest political bodies in the world. It can do anything, except for violating the law. Further, it can not completely control the legislature and stands completely separated from the judiciary. The judiciary can take legal actions against whosoever violates the law. Even the American president has to appear for a judicial procedure if there is any allegation on him/her.

The system running in our country Afghanistan is one of the presidential systems in the world. Keeping in view the prevalent differences in the country it is advisable that there should be a strong central government. And the president should enjoy powers, so that it should be able to take important decisions speedily and on time. But all these can never be achieved on the basis of violation of separation of power. The idea of separation of power as explained earlier is very much advisable for a system to work with accountability and fair play and especially when the system is a presidential system.

The judiciary, executive and legislature are not separated as per the idea, and the president seems in total control of all the affairs. The judiciary has not been able to prove its separate identity and has been able to act as per the directions of the president. Though there have been many allegations on the executive members, they are yet to be brought to courts and trialed openly.

Even the courts have remained silent on the matters regarding the violation of the constitution of the country. The executive on the other hand, though has been striving to a certain extent to prove its separate identity, has not been able to influence the policies of the executive and has only been able to fall in a dispute with the judiciary.

The current clash between the judiciary and legislature is a clear example. This is not what the separation of power suggests. Definitely, it seeks for the accountability of one organ by others but never suggests the deadlocks that are generated by the clashes, because such deadlocks can prove very much disadvantageous for the affairs of the government.

For a better performance the government has to make sure that the different organs of the state have all the potential to function on their own and at the same time have the capacity to hold one another accountable, otherwise the unchecked authority and power can easily corrupt the people involved.

Dilawar Sherzai is the permanent writer of the Daily outlook Afghanistan. He can be reached at outlookafghanistan@gmail.com

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