ADMIN THEORY

ELIUD KABAMANYA

This paper is for class presentation PA 604: Administrative law. Please comments and collections are encouraged

Separation of power

This paper discusses the principle of separation of power as it applies in administrative laws. The paper covers definition of the key concepts; administrative laws, and the principle of separation of power. Second part is about the origin and development of the principle of separation of power. Third is the separation of power in administrative law and finally conclusion.

Definition of the concepts

Administrative law has been lacking a single precise definition due to growth of administrative processes and divergent from one country to another in application of administrative laws. (Yohannes and Michael 2009).  Scholars have provided different definitions in regard to administrative law.

Schwartz has defined administrative law as the law applicable to those administrative agencies, that posses delegated legislation and adjudicative authority. This definition limits the scope of administrative laws to laws applicable to administrative agencies.  Jenning define administrative law as the law concerning administration, it determine organization, powers and duties of administrative agencies. This definition also is criticized by scholars like Massey for failure to distinguish between administrative law and constitutional laws. Yohanne and Michael (2009) has provided two approach for understanding of administrative law, firstly administrative laws is concern with manner of exercising governmental power and secondly is functional approach, in which the ultimate purpose of administrative law is to control the exercise of governmental power against arbitrary acts, and abuse of those power.

Therefore administrative laws refer to the law that governs the relationships between the state and citizens, controlling the exercise of governmental powers against abuse of that power. It sets limit and discretion to decision making by government body and provide remedies for maladministration.

Separation of power as constitutional principle deals with the separation between government branches that is the legislature, the executive, and the judiciary. Shivji has defined the principle as the separation of functions between three arms of the state; the legislature, the executive and the judiciary (Shivji 2006). Despite the distinction of function the definition is silent about powers and composition of the three branches. It does not also tell us on the nature of separation as to whether it is strict separation or partial separation.

Vile (1967); made three argument in regard of the principle; first the government should be divided into three branches the legislature, the executive, and the judiciary, second each branch must exercise its own function and not allowed to encroach upon the function of other branch. Lastly members who compose these branches must be kept separately and distinct. (Carney 1993).  Regardless of the above definition the principle of separation of power must concern with separation of function and power among the arms of government. Secondly personnel in each branch must be kept separately from other branches. And these powers must create and maintain checks and balances among each others.

Origin and development of power

The separation of power can be traced back to the Greek philosopher Aristotle who argued for the element of good constitution. For Aristotle a well as arranged constitution required to have three arms that is the deliberative, the official and the judicial.  In his “politics” Aristotle remarks;

There are three elements in each constitution  in respect of which every serious lawgiver must  look for what is advantageous to it, if these are well arranged, the constitutional is bound to be well arranged, and the differences in constitutions are bound to correspond to these differences between each of these elements. The three are; first the deliberative, which discuss everything of common importance, second, the officials and third the judicial element.

Following the growing of absolute king, who had power over all the branches in English, John Locke (1689) in “The Second Treaties of the Government” argues for natural right and limited government. The government has to be divided into three branches in order to protect the tyranny from encroaching individual natural right. These include the legislature for laws making, the executive for implementation of laws and policies and the federative for security and foreign relations.  This arrangement lacked the judicial branch and it was based on trust that people elect the government in which put trust in turn for protection and supervise their property and rights, not on legal principle of separation of power.

Montesquieu (1689-1955) enlightens the idea of separation of power from the thinking of early philosopher and great thinkers. In his theory argued for separation of power in order to avoid tyranny and maintain individual liberty. Montesquiue’s thought that if all the powers joining in one organ there can be tyrannical laws. (Vishwanadham 2012).  Therefore to him power had to be divide strictly to three arms of government; the executive, the legislature and the judiciary.  Montesquieu in his writing “the spirit of the law (1748)” stated that “when legislative and executive powers are united in the same person, or in the same body of magistrate there can be no liberty if the power of judging is not separate from the legislative and the executive…….there would be an end to everything, if the same man or the same body were to exercise those three powers. (Benwell and Gay 2011:2, Vishwanadham 2012)

Therefore Montesquieu emphasized complete separation of power among the three branches, that one person or body should not be a member in more than one body. Second these three body or persons must develop a system of check and balances in order to maintain individual liberty against tyranny and arbitrariness. Many constitution especially a commonwealth constitutions, French and united state constitution built on Montesquieu is thinking but with different in application.  Despite the overlapping of functions at least the core functions of these three bodies are separate and distinct.

Separation of power and administrative law

Separation of power as constitutional principle, advocate for functional, authority and membership separation between the branches of government; the legislature, the executive and the judiciary. Administrative law advocates for the control the exercise of government power and regulates the relationship between the state and individual citizens. It allow for second or delegated legislation whereby an agency or anybody can make laws to regulate its affairs. For instance local government council in Tanzania they make by-laws to administer their local affairs.

Secondary administrative laws allow for judicial and non-judicial mechanism for adjudicating matters in their scope. Non-judicial approach involves the use of administrative tribunals; ombudsman and any other administrative mechanism to judge cases and decide issues in their scope for example labour cases may be adjudicated under labour tribunals.

In administrative law there is no strict separation of power as one branch can interfere in the function of other branch. The legislature can be interfered by executive branch; the executive branch can interfere in the work of judicial branch. But the core function of each branch remains constitutionally applying. Administrative laws sits well with partial separation of power, scholars has argued that “it could be impossible for government to perform its duties under strict separation of power” the strict doctrine is merely a theory with inevitability of application in practices, government do not implement it fully but compromise on the functions and power. (Carnery 1993, Benwell and Gay 2011).

In commonwealth countries like Tanzania where there is parliamentary executive, the principle of separation of power faces a challenge. One person can be a member of more than one branch or body at the same time. For instance United Republic of Tanzania constitution 1977 section 4 (1 &2) provide for separation of power between the executive, legislature and the judiciary. But these separations are not strict because the same constitution provide for the president and cabinet members who are member of the parliament. Shivji in his paper “debating constitution amendment in Tanzania’ pointed out the existence of public servants who are members of legislature these include provincial commission, and district commissioners. The president also has the power to appoint judges and commissioners of the court according to 1977 constitution of United Republic of Tanzania. Despite these circumstances then the question is to whether the principle of separation of power as constitutional principle exist in Tanzania?

Conclusion

The principles of separation of power provide the good separation of government activities and provide the principle of accountability, whereby citizens can judge their political representative by looking at their core functions. Although the principle of separation of power is taken to be key principle of any constitutional, there is a circumstance where these principles hold no water and remain a theory as many scholars would comment. For instance the presidential system whereby the president is the head of state, and government, and command in chief, he or she has the power over all internal matters and external matters, therefore he/she may abolish all of these for his political gain. In Uganda, Obote enacted the 1966 interim constitution which established a strong executive. Obote thought of central strong executive, being the need of Ugandan to have national unity. The constitutional abolished monarchies and twisted the court to make decisions that were favorable to executive will, and this marks the beginning of Uganda dictatorship (Isanga 2009).

Second the conclusion may take us to analysis of the United Republic of Tanzania  2014 constitutional proposal as to whether the proposal is based on clear separation of power?,  the proposal propose the separation of executive from legislatures by establishing ministers who are not member of parliament and abolish the position of prime minister. And also the proposals abolish the president sit in the parliament but only to assent the bill. On the other hand the president is given power to appoint judged and other commissioners of the court. (URT Proposal 2014). The question is; does that arrangement guarantee the separation of power as explained by constitutional theorist? Second, are there a meaningful check and balances among branches within the proposal?

References

Benwell R and Gay O (2011); the Separation of Powers. Parliamentary Constitution Centre House of Common Library. United Kingdom

 Carnery G (1993); Separation of powers in the Westminster System, Australian study of parliament group (Queensland Chapter). Parliament house, Brisbane

Isanga, M. J. (2009); African Courts and Separation of Powers, a Comparative Study of Judicial Review in Uganda and South.  Northwestern Interdisciplinary Law Review Volume 2, No 1, 2009

Shivji I (2006); Debating the Constitutional Amendment in Tanzania. HakiElimu Tanzania

URT (2005); United Republic of Tanzania constitution 1977

URT Draft (2014); United Republic of Tanzania constitution proposal for new constitution 2014

Vishwanadham L (2012); Doctrine of Separation of Powers and Significance and Importance of Judicial Powers in India in VSRD-Technical and non-technical journal vol.3 (6)