Separation of Powers and check and balance in

Nepalese context

Atmadev josh*

Abstract
The separation of powers is indispensable while framing the constitution as it recommends the
allocation of powers to the different institutions. This issue for Nepal is of utmost importance
not only because we are going to frame a new constitution but also because we need to be
restructured under the principles of federalism. However, the principle of separation of powers
cannot be completely followed. The principle of check and balance is necessary to rationalize
the separation of powers. Independence of judiciary is important for the protection of freedoms
and fundamental rights guaranteed by the constitution and there is no meaning of such rights
without independence of judiciary.

Separation of Powers
The separation of powers, also known as trias politica, is a model of the governance of
democratic states. The model was first developed in ancient Greece and came into widespread use
by the Roman Republic as part of the un-codified Constitution of the Roman Republic. Under this
model, the state is divided into branches or estates, each with separate and independent powers
and areas of responsibility. The normal division of estates is into an executive, a legislature, and a
judiciary.1
The doctrine of separation of powers developed over many centuries. The practice
of this doctrine can be traced back to the British Parliament’s gradual assertion of power and
resistance to royal decrees during the 14th century. English scholar James Harrington was one
of the first modern philosophers to analyze the doctrine in his essay Commonwealth of Oceana
(1656), Harrington—building on the work of earlier philosophers Aristotle, Plato, and Niccolò
Machiavelli—described a utopian political system that included a separation of powers. English
political theorist John Locke gave the concept of separation of powers more refined treatment in
his Second Treatise of Government (1690). Locke argued that legislative and executive powers
were conceptually different, but that it was not always necessary to separate them in government
institutions. Judicial power played no role in Locke’s thinking.2
The doctrine of "the separation of powers" as usually understood is derived from
Montesquieu3,whose elaboration of it was based on a study of Locke's writings4 What the doctrine
* Section Officer, Appellate Court Jumla.
1 http://en.wikipedia.org/wiki/Separation_of_powers visited at 29-May-2011
2 Microsoft Encarta 2008, Microsoft Corporation.
3 Phillips O. Hood et.al.Constitutional and Administrative Law (2001) pp. 12, Sweet & Maxwell, London.
4 Locke, Second Treatise of Civil Government Chaps. 12-13, Quoted in Ibid- Phillips O. Hood,

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must be taken to advocate is the prevention of tyranny by the conferment of too much power
on any one person or body, and the check of one power by another. There is an echo of this in
Blackstone's commentaries (1765), "In all tyrannical Governments... the right of making and of
enforcing the laws is vested in one and the same man, or the same body of men and where-so-ever
these two powers are united together there can be no liberty."5 Montesquieu, a French scholar,
conceived the principle of separation. He found out that the concentration of power in one person
or a group of persons resulted in tyranny. He therefore, felt that the governmental power should
be vested in three different organs, the legislature, the executive and the judiciary. The principle
can be stated as follows:
• Each organ should be independent of the other;
• No one organ should perform functions that belong to the others.

This theory has got different applications in France, USA, and England. In France, it
resulted in the rejection of the power of the courts to review acts of the legislature or the executive.
The existence of separate administrative courts to adjudicate disputes between the citizen and
the administration owes its origin to the theory, of separation of powers.6 The principle was
categorically adopted in the making of the Constitution of the United States of America. There is
no direct statement of the doctrine of Separation of Powers in the Constitution itself. It is inferred
from the opening sentence of each of the constitution's three articles. Article one begins by saying
"All legislative powers herein granted shall be vested in a Congress of the United States....", article
two begins with the statement as: "The Executive power shall be vested in the President of the
United States of America....", article three states: "The judicial power of the United States shall be
vested in one Supreme Court and in such inferior courts as the Congress may from time to time
ordain and establish. The Constitution makers thus provided that the operation of each of the
three processes of government should be entrusted to a separate agency. The legislative process
is operated by an independent Congress, the executive process by an independent President and
the judicial process by an independent Supreme Court and subordinate courts. There must be no
overlapping either of functions or of persons.
On the basis of this arrangement, the doctrine of the separation of powers has from the
first been early established as a principle of governmental organization in the United States and
it has been enforced by the courts exactly as any other legal rule. One of the many statements of
it is found in the judgment of the Supreme Court in Kalbourn vs. Thompson7. The court declared:
"It is believed to be one of the chief merits of the American system of written constitutional law
that all powers entrusted to government, whether state or national are divided into three grand
departments - the executive, the legislative and the judicial; that the functions appropriate to
each of these branches of public servants; and that the perfection of the system requires that the
lines which separate and divide these departments shall be broadly and clearly defined. It is also
essential to the successful working of this system that the persons entrusted with power in anyone
of these branches shall not be permitted to encroach upon the powers confined to others but that
each shall by the law of its creation be limited to its own department and no other."
The basic and integral scheme of the separation of powers requires conferment of the power
of judicial review in the judiciary. That is an acknowledged basic aspect of world constitutions and
constitutionality. Judicial review, as originally conceived is generally understood to emanate from
the judgment of chief Justice Marshall in the American Supreme Court in Marbury v. Madison
in the year 1803. It was strongly resented by the other wings, nevertheless, it had been forgotten
5 Ibid- Phillips O. Hood
6 S.P. Sathe, Administrative Law (1991) pp 16, N.M. Tripathi pvt.ltd. Mumbai, India.
7 A.C Kapoor, Select Constitutions (1995), pp. 140, Chand & Company ltd. New Delhi.

134 PRASHASAN The Nepalese Journal of Public Administration

those two centuries before chief Justice Marshall. It was Lord Coke who had said the same thing
in Dr. Bonham's Case. Now it is an acknowledged basic feature of the constitution. That is the
significance of the role of the judiciary envisaged by constitutions across the globe.8

Check and balance

The most convinced believers in the doctrine of the separation of powers acknowledged
that an absolute separation of the three departments of government would make government itself
impossible. According to Madison, the principle "does not require that the legislative, executive
and judiciary departments should wholly be unconnected with each other." He proceeded to prove
that "unless these three departments be so far connected and blended as to give each constitutional
control over the others, the degree of separation which the maxim requires as essential to a free
government can never in practice be duly maintained." Unlimited power, it was argued, was
always dangerous and the very definition of tyranny, unless power was made a check to power. It
could also be possible that different officials exercising different kinds of powers might pool their
authority together and act in a tyrannical way9.
The framers of the constitution, accordingly, introduced modification to the doctrine of the
separation of powers when they come to details by setting up what are called 'checks and balances'.
Having divided government into a three - fold process and having assigned to each process a
supposedly independent branch, the Philadelphia Convention authorized a very considerable
amount of participation in, or 'checking' of the affairs of each branch by the other two10. Expressed
in simple words, instead of complete separation of the three branches of government, each was
given enough authority in other functional areas to give it a check on its companion branches. The
object was to make exercise of power limited, controlled and diffused. So, it does not distribute
each of the three processes to one of these institutions with absolute exclusiveness.
In spite of the very definite words which have been quoted, the American constitution does
introduce some qualifications. Thus, although all legislative powers are granted to the Congress,
the President has power to veto its acts and his veto can be overridden only by a two thirds majority
in both houses; although executive power is vested in the president, he must ask the advice and
consent of the senate for the making of treaties and for important appointments, including those
of members of his own cabinet; and although judicial power is vested in a supreme court and
subordinate courts, the senate is empowered to try impeachments, including an impeachment on
the president, although when trail of the president on impeachment occurs, the Chief Justice of
the United States of America presides over the senate.11 These few examples are enough to show
that there is not a complete separation of the processes of government in the United States. They
overlap from one of the carefully separated institutions to another. The institutions themselves,
however, are much more rigidly separated; as it is an aspect of the separation of powers which
distinguishes the American constitution more obviously from some others.
In India, the executive is a part of the legislature. The president is the head of the executive
but he acts on the advice of the Council of Ministers. He can be impeached by the parliament.
The Council of Ministers is collectively responsible to the Lok Sabha and is therefore removable
by it. There is separation only so far as the judiciary and other organs of the government are
concerned. The judges of the superior courts are appointed by the government, although they can
be removed only by the parliament, and their salaries are provided by the constitution or can be
laid down by a law made by the parliament. The courts can declare legislative as well as executive
8 M. V. Pylee, Constitutions of the world (2003) p. xii, Universal Law Publishing Co. Pvt. Ltd.
9 (Kapoor), Supra n 7.
10 Ibid
11 K.C. Wheare, Modern Constitutions(1984), p. 26, Oxford University Press.

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acts unconstitutional.12 So we can say that the system operates in India is not based on the doctrine
of the separation of powers in it rigidly but there is the system of check and balance.
In Britain, there is unique system of government. There is no written form of constitution.
Britain has not adopted the principle of the separation of powers and check and balance
constitutionally. The monarch is the commander-in- chief of all the British Force during peace
and war. War is declared in her majesty’s name, peace and treaties are negotiated and concluded
in the name, peace and treaties are negotiated and concluded in the name and on behalf of the
Monarch. Government documents are published by Her Majesty’s Stationary Office. All people in
the United Kingdom are the loyal subjects of the monarch. In short, there is no act of government
which is not attributed to the monarch’s name and person. Her Majesty’s powers in terms of law
are uncontrolled, unrestricted and absolute.13 But all this is in theory. In practice, the monarch does
nothing by doing everything, the real power rests with the kings duly constituted ministers and
His Majesty remains only a symbol of authority.14
The British constitution establishes the supremacy of the parliament. It means that
parliament is supreme. It can make and cancel any kind of law and no court in the realm can question
its validity. The authority of the parliament is transcendental and absolute, and it embraces both
the enactments of ordinary laws and the most profound changes in the government itself. There is
no judicial review and no authority can declare that the laws made by the parliament are ultra.
It may be noted also that even in countries where the doctrine of the separation of
powers appears to be rejected, where legislative powers may be exercised by the executive
without restriction, and where the heads of the executive sit in parliament- it is usually applied
to a large extent where the judicial process is concerned. Indeed, in almost all countries where
the constitution establishes or permits the parliamentary executive, and the linking or fusing
of functions and institutions, it establishes the independence or separation of the judiciary to a
substantial degree.15

Nepalese Context:
In 1990, Nepal adopted its fifth and first fully democratic constitution. Although there
were many good features about that constitution, it failed to satisfy the demands of many Nepali
people. There was also a sense that the constitution of 1990 had limited involvement of the people
in its making and that it came formally into being not as an act of the people's sovereignty but
as a gift of the king. Among the shortcomings of the constitution in the eyes of many were the
insistence that Nepal is a Hindu kingdom, the inclusion of many important economic and social
right as "directive principles" only, which means they were not to be used as the basis for legal
claims; inadequate provisions for civilian control of the army; excessive power given to the
king; Ten years of Maoist insurgency and provisions that were not clear enough about the kings
powers, thus making it possible for those powers to be abused. After a people's movement (Jana
Andolan),in April, 2006, the king ultimate reinstated the parliament originally elected in 1999. The
re-established House of Representatives made the declaration, that the House of Representatives
was sovereign for the exercise of all the rights until another constitutional arrangement was made
to take the responsibility to gear ahead in the direction of full-fledged democracy and made an
end to the autocratic monarchy by institutionalizing the achievements of the present peoples'
movement, while safeguarding the achievements of the 1990 people's movement. The inconsistent
legal arrangements of the Constitution of the Kingdom of Nepal-1990 and other prevailing laws,
12 (Philip & Hood), Supra, n 3.
13 (Sathe), Supra n. 6, p. 9.
14 Ibid.
15 (Philips O. Hood), Supra n.3, p. 27

136 PRASHASAN The Nepalese Journal of Public Administration

with this declaration, were nullified to the extent of inconsistency.16 It had no any provisions
about judiciary's power and activity, although this action of parliament was seen having various
problems regarding the balance theory of powers. After this movement a decision was made to
have an Interim Constitution.
An important aspect of the Interim Constitution - which gives it its interim nature is
that, it provides for the setting up of the Constituent Assembly and the preparation of the new
constitution. The basics of the existing governmental, parliamentary, system remain in the Interim
Constitution. However, there is no longer a second house of parliament but most of its members
are merged into the House of Representatives and there had to be provision for the nominated
Maoist members of the house. The interim nature of the arrangements is also signified by the
insistence that decision making is to be by consensus, including the selection of the Prime Minister.
This was carried out to the extent that there was no provision for a vote of no- confidence in the
government. This was changed in the second amendment in June 2007. The fourth amendment
declared Nepal to be a federal democratic republic, created the post of president as a head of state
and a vice - president.
In the Interim Constitution, the provisions about separation of powers and check and
balance do not much vary, in surface, than the Constitution of the Kingdom of Nepal, 2047 B.S.
The executive power of Nepal shall, pursuant to this constitution and other laws, be vested in the
Council of Ministers.17 The law making power is vested to the legislature - parliament18. Powers
relating to justice in Nepal shall be exercised by courts and other judicial institutions in accordance
with the provisions of this constitution, the laws and the recognized principles of justice.
Parliamentary democracies do not have distinct separation of powers. The executive,
which often consists of a prime minister and cabinet ("government"), is drawn from the legislature
(parliament). This is the principle of responsible government. However, although the legislative
and executive branches are connected in parliamentary systems, there is usually an independent
judiciary and the government's role in the parliament does not give them unlimited legislative
influence.
There are some provisions in the Interim Constitution of 2000 regarding the judiciary
which are against the principle of independence of judiciary and the separation of power19.
Under the Interim Constitution, the chief justice is still appointed on the recommendation of the
Constitutional Council, but that body is effectively dominated by the executive. And the Judicial
Council is significantly less independent of the executive than it was under the 1990 Constitution.
In short, the Chief Justice will be a helpless minority voice in the advocacy of an independent
judiciary. On the face of it, the provisions for the removal of judges in the Interim Constitution are
similar to the provisions of the 1990 Constitution, but if the legislature is dominated by political
consensus, there is a risk that Supreme Court judges could be removed by political consensus too.
Lower Court judges are still removed by the Judicial Council, which may be executive-dominated.
And there is, worryingly, a new ground for the removal of Lower Court judges: on the grounds
of 'deviation of justice'; this language may open the way for the executive to remove judges who
make decisions that the executive does not like. The Interim Constitution also includes a vague
qualification about a candidate's moral character, which it says, needs to be considered during
a candidate's appointment, but such vaguely worded criteria can prove problematic like; who
is qualified to determine a candidate's character, and what characteristics would disqualify a
candidate on the grounds of poor moral character?’etc.

16 See more: http://www.himwaves.com/introduction.php?con=Nepal&id=96, visited at 02-Jun-09

17 Interim Constitution of Nepal, 2063, Article 37(1)
18 Interim Constitution of Nepal, 2063, Article 84(1)
19 Atmadev Joshi, Structure of Judiciary in Next Constitution, Nyayadoot, vol. 2, 2065, p. 106.

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 The constitution making process is going on and there is still uncertainty about which
type of government would be there in the future constitution of Nepal. The major debates are
about forms of government, independence of judiciary, federalism etc. which are closely related
with the separation of powers and check and balance. The final draft of the new constitution has
not been prepared yet as the reports of thematic committees are contradictory with each other in
principle agendas of power sharing.
In the case of Advocate Kamalesh Dubedhi et.al, Vs. Office of the Prime Minister et.al,20
Supreme Court has opined that the Interim Constitution of Nepal 2000 has the provision of
the separation of powers and check and balance, it has no provision of legislative/parliament
supremacy but it has the provision of constitutional supremacy. In the preamble, it has declared
freedom, fundamental rights and human rights of Nepalese citizens and further declared for the
independence of judiciary. The real meaning of state ruled by the rule of law is the declaration of
independence of judiciary. Independence of judiciary is important for the protection of freedoms
and fundamental rights guaranteed by the constitution and there is no meaning of such rights
without independence of judiciary.

Conclusion
The significance of the separation of powers can also be stated by saying that it is a doctrine
which is fundamental to the organization of a state and to the concept of constitutionalism in so
far as it prescribes the appropriate allocation of powers, and the limits of those powers to differing
institutions. The separation of powers is indispensable while framing the constitution as it
recommends the allocation of powers to the different institutions. This issue for Nepal is of utmost
importance not only because we are going to frame a new constitution but also because we need
to be restructured under the principles of federalism. However, the principle of the separation
of powers cannot be completely followed. The principle of check and balance is necessary to
rationalize the separation of powers. Independence of judiciary is important for the protection of
freedoms and fundamental rights guaranteed by the constitution and there is no meaning of such
rights without independence of judiciary.
(joshi610@gmail.com)

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138 PRASHASAN The Nepalese Journal of Public Administration