Constitutional Law and Separation of Powers

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INTRODUCTION The doctrine of separation of powers is political in nature and is not a legal principle. Despite this obvious fact, the importance of this theory cannot be over emphasised. This doctrines origin is most associated with the French writer Baron de Montesquieu but also can be traced to ancient Greece especially in the work of Aristotle titled ‘‘Politics’’[1]. Separation of Powers is essential to the organisation of a state and to the concept of constitutionalism. Montesquieu in his book ‘‘The Spirit of the Laws’’ in one of the chapters entitled ‘‘On The Constitution of England’’ expressed himself clearly on this doctrine ‘‘when legislative power is united with executive power in a single body of the magistracy, there is no liberty...nor there is liberty if the power of judging is not separate from legislative power and from executive power... all would be lost if the same man or the same body of...people exercised these three powers...making the laws...executing and that of judging...’’. The true essence of separation of powers is to ensure that the three branches of government are independent and prevent the abuse of power. The contemporary view of the separation of power however is that there should be interplay between each institution of the state as a complete separation of the institutions could result in legal and constitutional deadlock. Rather than have a pure system of separation of powers, there should be checks and balances to ensure that no institution encroaches significantly on the function of the other. IMPACT OF THE CONSTITUTIONAL REFORM ACT 2005 Before considering the impact of the Constitutional Reform Act 2005 on the issue of separation of powers in Britain, it is not only imperative but also pertinent to ask whether there is a complete separation of powers in the British system and the answer is ‘NO’. A separation of
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