DOCTRINE OF SEPARATION OF POWERS

LEGISLATIVE, EXECUTIVE AND JUDICIAL POWERS

by: VANESSA T. VIRTUSIO, DMD

MONTESQUIEU'S THEORY OF SEPARATION OF POWERS

Though the history of the doctrine of separation of powers is traceable to the

ancient times of Aristotle, and subsequently 16th and 17th century philosophers
such as John Bodin and Locke. It was the French Jurist, Montesquieu who gave it
a systematic and scientific formulation. In his book "Esprit de Lois" ( the Sprit of
Laws), Montesquieu, for the first time, extensively discussed the doctrine and its
form.

According to Montesquieu' s theory, it means that no one person or nobody

should be vested with all three types of powers. In every state there are three kinds
of powers, the legislative power, the power executing the matters falling with the
law of nations, and the power executing the matters which fall within the civil law.

There must be a division of functions on the following basis: the legislature

should make laws but not administer or enforce them, the executive must
administer the made laws but neither influence the legislature in the making of the
laws nor stand in judgment of the same and the judiciary must determine the rights
and uphold justice without taking over the functions of law-making or
administration.

He further said that such separation is necessary in order to ensure that

justice does not become arbitrary and capricious. Montesquieu states that "when
the legislature and executive powers are united in the same persons or in the same
body of magistrates there can be no liberty, because apprehensions may arise,
lest the same monarch or separate should enact tyrannical laws.

There is no liberty if the judicial power is not separated from the legislative
and the executive.

SEPARATION OF POWERS

 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.
Doctrine of Separation of Powers entails:

◈ the division of the powers of the government into three, which are
legislative, executive, and judicial

◈ the distribution of these powers to the three major branches of the

government, which are the Legislative Department, Executive Department,
and the Judicial Department.

Purpose of the Doctrine

◈ Prevention of Monopoly of Power

◈ Separation not Exclusive

◈ Checks and Balances

◈ Presidential System
Principle of Separation of Power

Under the principle of co-equal and coordinate powers among the three (3)
branches, the officers entrusted with each of these powers are not permitted to
encroach upon the powers confided to the others.

The word “legislative” is derived from the Latin “lex” which means “law.”

Laws are rules or collection of rules, whether written or unwritten, prescribed under
the authority of a political society for the common good

Legislative branch

◈ The Legislative branch is authorized to make laws, alter, and repeal them
through the power vested in the Philippine Congress. This institution is
divided into the Senate and the House of Representatives.

◈ the law-making branch of the government

Legislative Power as exercised by Congress

◈ power of appropriation

◈ power of taxation, and

◈ power of concurrence

Bicameralism and Composition of Congress

◈ Congress, to whom legislative power is vested, “shall consist of a Senate

and a House of Representatives.”

◈ Bicameralism is a traditional form of legislative body consisting of two

chambers or houses, one representing regional interests and the other
representing national interests.

Two houses:

◈ the House of Representatives

◈ the Senate

◈ House of Representatives, which is concerned with local issues

◈ the Senate, which is concerned with national issues.

These two are co-equal branches and their primary function is law-making.

Party-list Representation

◈ aims at establishing representation of the underprivileged.

◈ It is a social justice tool designed not just to make the underprivileged mere
beneficiaries of law but to make them lawmakers themselves
Parameters for Allocation of Seats.

◈ Twenty percent allocation in the House (Sec. 5(2), Art. VI);

◈ To qualify to a seat, at least two percent of the votes is casted on the party;

◈ A qualified party is entitled to a maximum of three seats;

◈ Proportional representation as to the number of additional seats vis-à-vis

the total number of votes cast.

INDEPENDENT BODIES

◈ the Electoral Tribunals

◈ Commission on Appointments

Electoral Tribunal

◈ shall be the sole judge of all contests relating to the election, returns, and
qualifications of their respective Members

◈ shall be composed of nine members, three are Justices of the Supreme

Court, and six are members of the Senate or the House of Representatives,
as the case may be.

Commission on Appointments

◈ created to check the appointing power of the President, specifically in

appointments to importance offices in the government.

◈ function of the Commission is to approve or disapprove the nominations

submitted to it by the President to appointments that require its approval.

Non-legislative and other Powers of Congress

◈ initiation and holding of impeachment (Art. XI, Sec. 2),

 ◈ acting as a constituent assembly (Article XVII, Sec. 1),

◈ declaration of existence of war (Art. VI, Sec. 1),

◈ approval of Presidential appointments through the Commission on

Appointments (Art. VI, Sec. 17), and

◈ deciding election cases involving its members (Art. VI, Sec. 16).

The Executive branch is composed of the President and the Vice President who
are elected by direct popular vote and serve a term of six years. The Constitution
grants the President authority to appoint his Cabinet. These departments form a
large portion of the country’s bureaucracy.

The Judicial branch holds the power to settle controversies involving rights that are
legally demandable and enforceable. This branch determines whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction
on the part and instrumentality of the government. It is made up of a Supreme
Court and lower courts.

Judicial Power

◈ refers to the power of the different courts of justice to interpret and apply
the laws in particular cases

Interpretation- refers to the process by which the court discovers the true meaning
of the language used by the law
application of the law - refers the process by which the court relates the pertinent
legal provisions to the set of facts of a particular case.

Who Exercises Judicial Power?

◈ Section 1, Article VIII, states that judicial power is vested in one Supreme
Court and in such lower courts as may be established by law. This means
that the power to interpret and apply the laws in actual controversies is given
to, first, the Supreme Court, and, second, to other/lower courts.

Composition

Executive branch

◈ President

◈ Vice President

◈ his Cabinet.

Legislative branch

◈ Senate - 24 Senators

◈ House of Representatives

◈ 250 members including the party-list representative

◈ District representatives (80%)

◈ Party-list representative (20%)

Judicial branch
- composed of 15 members

1 Chief Justice

14 Associate Justice

PRINCIPLE OF CHECKS AND BALANCES

The three co-equal departments are established by the constitution in as balanced

position as possible.

To maintain this balance or to restore it if upset, each department is given certain

powers with which to check the others.

Legislative branch (Congress)

◈ Writes the laws

◈ Confirms presidential appointments
◈ Ratifies treaties
◈ Grants money
◈ Declares war
Checks on the Judicial branch:

 May propose constitutional amendments to overrule judicial decisions

 May impeach Supreme Court justices
 May reject appointments to the Supreme Court

Checks on the Executive branch:

 May reject appointments

 May reject treaties
 May withhold funding for presidential initiatives
 May impeach the president
 May over ride a veto

Executive branch (President)

◈ Proposes laws
◈ Commands armed forces
◈ Appoints ambassadors and other officials
◈ Conducts foreign policy
◈ Negotiates treaties

Checks on Legislative branch:

 May adjourn Congress in certain situations

 May veto bills

Checks on Judiciary branch:

 Appoints judges

Judicial branch (Supreme Court)

◈ Interprets the Constitution and other laws

◈ Reviews lower court decisions
Checks on Executive branch:

 May declare executive actions unconstitutional

Checks on Legislative branch:

 May declare laws unconstitutional