Separation of Power

Introduction:
Separation of Power is one of the most controversial issues worldwide. The doctrine has played a
major role in the formation of constitutions of numerous countries. The essence of this doctrine
states the presence of clear demarcation lines in the function of the organs of a state- the
executive, the legislative and the judiciary. While some argue in favor of strict separation, others
refer to strict separation as impossible in reality as the functions of these organs are inter-related.
Like many countries worldwide, the doctrine of separation of power is well established in the
constitution of Bangladesh.
Separation of Power: Definition
The theory of Separation of Power advocates the separate and independent functioning of the 3
organs of the government. The Legislature should use only law making powers; the Executive
should only undertake law enforcement functions and the Judiciary should only perform
adjunction or judicial functions.
According to the theory of Separation of Power, the powers and responsibilities of these organs
should be clearly defined and kept separate which is essential for securing the liberty of the
people and for enabling the government to work systematically and efficiently.
Its origin is traceable to Plato and Aristotle. During the 16th and 17th centuries, French
philosopher John Bodin and British politician Locke respectively had expressed their views
about the theory of separation of power. But Montesquieu has formulated this doctrine
systematically, scientifically, and clearly in 1748 for the first time. According to Baron
Montesquieu, in his book The Spirit of the laws (1748) concentration or combination of the three
governmental powers in one person or organ establishes despotism of that person or organ and
virtually ends all liberty. So the power and the function of the state must be distributed in
different organs and functions.
Separation of Power: The 3 Organs in the Constitution of Bangladesh
The constitution of Bangladesh provides details about the nature of the 3 organs of the
government and also comprehensive guidelines as to how the various organs of the government
are to carry out their assigned responsibilities. Though the Constitution makes a broad
distribution of powers, it does not envisage separation of powers in its rigid form.
1) The Executive (Part IV; Art 48-58)
2) The Legislative (Part V; Art 65-93)
3) The Judiciary (Part VI; Art 94-116)

The Executive: (photocopy porsi)

This branch is run by the majority in the legislature in a parliamentary form of
government. The executive is composed of the President, the Prime Minister and a
Council of Ministers.
The executive determines the policies of the government and supervises the execution of
the policies and enforcement of the laws passed by the legislature. The actual work of
execution of the policies and enforcement of the laws is done by the members of the
services of the Republic.
The executive is responsible to Parliament and remains at the helm of affairs so long as it
enjoys the confidence of the majority in Parliament. It exercises some legislative power
and performs certain adjudicative functions.
The Legislature:
Article 65 of the Constitution of Bangladesh provides for a unicameral legislature called
Parliament (Jatiya Sangshad) in which is vested the legislative powers of the Republic.
It is composed of 350 members of which 300 members are directly elected by popular
votes; the rest of the seats are reserved for women nominated by their respective parties.
The Jatiya Sangsad id the apex institution of accountability system of Bangladesh and
also empowers the government while giving its legitimacy.
JS performs a number of functions, the most important of which is law making. However,
Parliaments legislative law is subject to the provisions of the Constitution and any law
that is inconsistent with those provisions is void.
The Judiciary:
Part VI of the Constitution deals with judiciary. It is a co-ordinate and coequal organ with
the other two organs, though it has to perform the delicate task of ensuring compliance
with provisions of the Constitution by all the organs of the State.
It comprises all the courts and tribunals.
It interprets law; set up legal disputes; ensures the fundamental rights of the citizens;
impose penalty on the offenders.
The judicial power is vested in the courts with the Supreme Court at the apex.
two-tiered: a) Supreme Court; b) Subordinate Courts
Supreme Court comprises of the High Court Division and the Appellate Division. It
exercises appellate, revisional and inherent jurisdiction. It holds the power of
superintendence and control over the subordinate courts.

 Subordinate courts are created by some relevant statutes. Civil Courts, Criminal Courts
and Administrative Tribunals are part of this court.

Why Absolute Separation of Power is not possible?

1. Checks and Balance:
Despite the Constitution of Bangladesh, advocating the doctrine of separation of power, the
organs of the government are inter-related. Ideally such interrelation refers to the organs
cooperating with each other and also preventing one another from assuming too much power.
This relationship is called the doctrine of checks and balance, where the function of one branch
is to serve t contain and modify the power of another. Through this mechanism, the framers of
the constitution seek to protect the nation against tyranny.
However, the scenario of Bangladesh is far away from the concept of checks and balance. A
close scrutiny of the provisions of the constitution of Bangladesh shall make it clear that in
reality, the doctrine of checks and balance has been disregarded, thus ensuring the dominance of
the executive over the legislature and judiciary.
2. Ordinance Making Power of the Executive:
Ordinance-making is an exercise of the legislative power. In order to meet emergent situations,
the executive has been given power to make law for short duration by promulgating Ordinance
under Article 93. If Parliament stands dissolved or is not in session and the President is satisfied
that circumstance exists which renders immediate action necessary, he may make and promulgate
an Ordinance to meet the emergent situation.
3. Rule Making Power of the Executive:
The Constitution has conferred power on the President to make rules on specified subjects. These
rules are of two categories. In the first category fall the rules specifying the manner in which
orders and instruments made in the name of the President are to be attested or authenticated and
the rules of business allocating different departments of the government to different Ministries
and laying down the procedure to be followed by the different Ministries in the exercise of the
executive functions. In this category also fall the rules to govern the appointments of judicial
officers and magistrates exercising judicial functions. It was held in the case of Secretary,
Ministry of Finance v. Masdar Hossain.
In the second category fall the rules which gives the President has power to frame rules to
regulate the procedure of Parliament until such time Parliament makes its own rules of procedure
and once Parliament has made the rules, the rules made by the President will cease to have any

effect. The President can also in consultation with the Speaker make rules regulating the
recruitment and conditions of service of persons appointed to the Secretariat of Parliament and
these rules would hold the field until Parliament makes provisions in this regard. Art. 133
provides that the service of the Republic shall be regulated by rules made by the President until
Parliament makes laws to regulate the appointment and conditions of service of persons in the
service of the Republic.
4. Rule Making Function of the Executive:
Apart from the power of making rules conferred by the Constitution, the executive is entrusted
with rule making function by Acts of Parliament. Because of intricacies and technical
complications in various fields and because of vast expansion of the functions of a welfare State,
Parliament today does neither have the expertise nor the time to go for extensive legislation on
all subjects. More often than not Parliament makes a skeleton law providing guideline and
leaving the details of the rules to be framed by the executive. This is a necessity of modern time
and cannot be avoided and it is not practicable to do away with this delegation of legislative
power which has been specifically sanctioned by the Constitution. This enables the government
to obtain the help of persons who are experts in the field and this also saves the time of
Parliament.
However, such mechanism essentially requires parliamentary approval which is lacking in our
country because the rules are usually drafted by the civil servants who may have their own
interest to secure. Behind the curtain lobbies of vested interests often influence the rule-making
exercise.

5. Presence of the Executive Members in the Parliament & the Parliamentary

Committees:
The Parliament consists of the ministers of the executive branch. Likewise, Ministers can also
be the members of the Parliamentary Committees. Under such circumstances, the supervisory
role of the committees over the concerned ministries is seriously curtailed. In both the cases, the
legislators rightful functions and roles are interfered by the executive members. Also, Article 70
of the constitution of Bangladesh refrain the MPs to speak against the irregularities and
wrongdoings of the ministers of their political party as by doing so, they might be jeopardizing
with their own position in the party as well as in the parliament.
6. Executive Control over the Legislation:
The executive has the power of summoning, prorogation and dissolution of Parliament, a
period exceeding 60 days cannot pass between the end of a session and the first sitting of the
next session of Parliament.

The executive may require reconsideration of a legislation passed by Parliament. Practically

all legislations are sponsored by the executive. No Money Bill or Bill for expenditure from
public accounts can be presented before Parliament without the recommendation of the
executive.
7. Parliament Control over the Executive:
According to the Rules of Procedure of Parliament, Bills for legislation must be presented before
Parliament. Taxation and appropriations are not authorised without an Act of Parliament. Annual
budgets are to be placed before and demands for grants must be made to Parliament. All these
offer innumerable opportunities to Parliament to discuss, question, criticize and the government
policies, the conduct of the administration and the execution of law. No money can be spent
without an Appropriation Act and Parliament is empowered to fix the emoluments, allowances
and privileges of the President, Prime Minister and other Ministers. This gives Parliament an
opportunity to control the executive. The members of Parliament are the direct representatives of
the people and by making the executive responsible to Parliament responsibility of the executive
to the people is maintained.
8. Executive Dominated Judiciary
Article 115 of the constitution: Appointments of persons in the judicial service or as magistrates
exercising judicial functions shall be made by the President in accordance with rules made by
him in that behalf. It is noticeable in this article that the President with exercising this power is
not required to consult the Chief Justice of Bangladesh.
However, according to the Article 48(3) of the Constitution of Bangladesh, the President cannot
exercise his powers whatever, without the advice of the Prime Minister, except of course his
power to appoint the Prime Minister. This is how the executive organ of controls the judiciary.
Their appointments, postings, transfers, promotions, punishments etc. are at the hands of the
President or for that matter, the government.
9. Executive Recruiting Subordinate Court Judges:
Often, executive branch ministries to work as their legal officers recruit judges from the
subordinate judiciary. Generally ministries do not have legal officers of their own, and the public
prosecution service is an ad hoc arrangement. Arguably, judicial independence is compromised
when a person acts as both a prosecutor and a judge. Law officers have to defend government
positions while judges might rule against the government. A directive of the Masdar Hossain
Judgment calls for the roles of judges and prosecutor to be separated. Unfortunately, so far this
directive has not been carried out.

10. Power of Judicial Review of Legislative Functions by the Supreme Court

Article 102 of the Constitution of Bangladesh gives the Supreme Court the power of judicial
review to see that the Parliament does not overstep the limits set by the constitution. Art. 102 do
not specifically grant any power of judicial review of legislation on the ground of contravention
of the provisions of the Constitution other than the provisions of Part III of the Constitution.
However, judicial review of laws is implicit in any written Constitution providing for a limited
government, that is, a government in which powers of all functionaries are limited and
circumscribed by the Constitution, and absence of express power of judicial review is of no
consequence. When art. 102 is read with art.7 there is no difficulty in finding the power of the
Supreme Court to declare void any provision of law on the ground of inconsistency with any
provision of the Constitution and the Supreme Court has been exercising that power in
applications filed under art. 102.
Conclusion
All the above discussion it is evident that governments in their actual operation do not opt for the
strict separation of powers because it is undesirable and impracticable. It is clear that there is no
strict separation of powers as it is difficult to establish that because all the organs of the
government are inter related about in terms of their activities. On the other hand separation of
powers are also problematic because if every power are in one hand that absolute power also
creates problem that time abuse of power occur. However, whether in its theoretical conception
or its practical usage, the doctrine of Separation of Powers is essential for the effective
functioning of a democracy.