Separation of power is the main constitutional principle which underpins most of the Western

constitution. It states that the power of state should be divided between the principle organs of the
state so no organ can dominate on each other and there could be a check and balance on each
others. Each of the organ has its defined spectrums and no organ is allowed to interfere with the
work of other organ. Basically now separation of power has become a central concept in modern
constitutions because it prevents from tyranny and abuse of power. The concept of Separation of
power revolves around three branches of state legislature (Parliament), executive (Government)
and Judiciary. The power of state is divided between these branches in order to avoid miss use of
power. There is a famous phrase of lord Acton that “power tends to corrupt and absolute power
corrupt absolutely”. The concept of separation of power is also popularised by the writing of French
philosopher Montesquieu and although the idea came from back from the time of Aristotle.

There are basically two theories regarding separation of

power strict theory and partial theory. The strict theory states that one organ should not interfere
or control the other organ and one organ should not exercise the power of other organ. The main
central point of the theory was that same person should not belong more then one of there main
institutions of state where as partial theory emphasis that three organ of states should be
sufficiently separated to avoid tyranny and primarily function of each of the organ should be
allocated in order to have clear check and balance between the organ. Some philosophers also
commented on separation of power as complete separation of power is not possible if enforced then
there will be a constitutional deadlock. Due to this more important is that we should focus on
balancing of power and effective check and balance between the organs of state. Here question
arises that is concept of separation of power essential for a state? Boiling Broke addressed this
question by saying that “ to protect state and liberty, it is must to make a equilibrium between three
organ of the states.” The main reason that make separation of power a constitutional principle is
preservation of liberty, effectively check and balance and Efficiency. It is said that if concepts of
separation of power is ignored and one institution interfere with other institution then state
function will be distributed. Aristotle first discovered that there are three organs, First deliberates
who discuss everything of common interest and second are officials and third are official judicial
elements. John locker said if all the organ of the state is handed over to a person there will be abuse
of power and here will be no stability in the environment. Whereas as Montesquieu also said that
there will be no liberty if the powers of executive, legislative and Judiciary is united in the same
person. Ivory Jennings said It doesn’t mean that there is no influence between organs but meant
that there shouldn’t been interfering power one institution over others. In separation of power
there is a famous commentary of William black stone he said that complete separation of power is
also not a good thing because if it happens legislative organ will over come the power of executive.

There is a famous commentary of Walter Bagehot in which he said

that the close relationship between executive and legislative represents the efficient secret of British
constitution. In the concept of separation of power there is also a very factor which is the
relationship of three organ of state. Firstly let’s discuss about the separation of power between
legislative and executive body. In Parliamentary democracy in UK there is no separation of power in
Parliament and government . Ministers and Prime minister is elected from legislative body rather
then opposition and is it mandatory for executive body to be a part of legislative body. The executive
body is accountable to legislative body. In additional executive body always depends up on the
support of legislative body otherwise executive can be ousted through no confidence motion. But
there is also huge overlaps between these two bodies E.g. executive members dominate the
parliament and control most of the parliamentary time and timetable. House of lord had a veto
power to block an act of Parliament but this power was taken from through legislation against them.
From then now both houses are dominated by executive body.

Next separation of power that we will discuss is

between Judiciary and executive. Here there is very strong separation of power because UK
Judiciary is independent. They can decide freely and have no influence of executive body on them.
Within Uk there is no body more independent then Judiciary body and it was enhanced in structural
scene through CRA 2005. Before CRA 2005 house of lord held position in all three branches of
government. Lord chancellor was a speaker in house of lord, also a member of executive and Head
of Judiciary and member house of lord appellant Committee. This was totally against the concept of
separation of power so the powers of lord chancellor was curtailed and only remains the member of
senior cabinet member. By constitutional conventions judges must not play an role in politics and
judges should not criticised by the executive body. Judiciary provides a check and balance on
executive via Judicial review.

Last but not the least the separation of power between legislative and
Judiciary. There is a very strong separation of power between both organs. Judicial law making is the
one of the most controversial overlaps in British constitution. There is no doubt that statutory
provisions are supreme then common law but through interpretation and development of common
law they retain new laws. Case R v attorney general. In this case courts protected fundamental
common law rights and restricted the executive (attorney General) . Burma oil company case. In this
case court decided against the executive but Parliament legislate against the court decision . The
statutory restrictions on the holding of positions in more than one branch of government e.g. no
MPs are not eligible to serve and judges and vice versa.

Separation of power is the concept of constitutional importance if it is ignored whole state system
can be distributed and there will be no proper working system in the state. Balance of power
between organs is the most important factor. If all the institution interfere each other Metter there
will be no liberty in the environment

Abdul Rahman khawaja