...One of the Prominent topics included in the Enlightenment phase was the concept of Separation of Power. The ideal created by Baron de Montesquieu, the concept was based on three separate branches: executive, judicial, and legislative, along with the concept of keeping them separate to form a more balanced government. With this concept, many different documents have been created supporting this ideal. Such as the U.S. Constitution, The Saint Domingue Constitution of 1801 and the Declaration of the Rights of Man and of The Citizen. One of the highlighted ideals that were created during the Enlightenment period was Separation of Power. This was the concept of the three branches of government being separated and to be able to perform checks and balances. Congress makes the laws, but the President can “veto” or reject them and the Supreme Court can declare them unconstitutional. Thus, each branch is separate and serves a different purpose within the government as a whole. Baron de Montesquieu is the main creator of this idea. Baron de...
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...SEPARATION OF POWER: A COMPARATIVE STUDY INTRODUCTION The research topic deals with the concept of „the separation of powers. The researcher would like to highlight the concept of separation of powers and then gradually comes to the point separation of powers in England and US. After that the researcher would like to articulate the separation of powers in India. The doctrine of “the separation of powers” as usually understood is derived from Montesquieu whose elaboration of it was based on a study of Locke’s writings and an imperfect understanding of the eighteen century English constitution. Montesquieu, a research scholar, conceived the principle of separation of power. He found that concentration of power in one person or group of persons resulted in tyranny. He therefore, felt that the governmental power should be vested in three organs, the legislature, the executive and the judiciary. The principle can be stated as follows: (1) Each organ should be independent of the other; (2) no one organ should perform functions that belong to the other. Lock and Montesquieu derived the contents of this doctrine from the developments in the British constitutional history of the early 18th century. In England after a long war between parliament and the King, they saw the triumph of Parliament in 1688 which gave Parliament legislative supremacy culminating in the passage of the Bill of Rights. This led ultimately to recognition by the King of legislative and tax powers of...
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...been brought up by different ideas and concepts in documents, like the Magna Carta or the English Bill of Rights, and people like Thomas Hobbes or John Locke. A few of the most influential concepts in the development of the U.S constitutional government is the freedom of the people, freedom to petition, and the separation of powers. The freedom of the people has been a key factor in the development of the U.S. constitutional. In this form of democracy, the people have the power. This was important to the development of the government because it gives people the hand in the way they want to live. They vote on who they choose to lead them, different laws they want to follow so they don’t feel like they are being controlled by the government or one appointed ruler. Another concept that was influential to the constitutional government of the U.S. is the freedom of petition. This is another way that the people have freedom. It was written in English Bill of Rights that that citizens had the right to petition the king without fear of arrest. It gives people the freedom of speech, to speak their mind without worrying about being arrested and prosecuted. When adding this to the constitutional government, it gave more power and freedom to the people. The separation of powers is the final key concept in the development of the U.S. government. The separation of powers is a big concept because it limits the power one person has. It divides the powers between different people, so one person...
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...Legal Studies Essay ‘Discuss the importance of the separation of powers in upholding the rule of law in Australia.’ Upholding the rule of law in Australia retains an importance with confiding in the separation of powers, this can certainly be explored through the relationship between the Magna Carta and the legal concept of the Habeas corpus and the understanding of the separation in powers and how they uphold the rule of law. The relationship between The Magna Carta and the legal concept of Habeas Corpus is of close proportions as the Habeas Corpus roots from the 17th century adding a greater advancement in legal times toward the Magna Carta which was contextually developed in June 15, 1215, which King John set as a guarantee to all...
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...Branches of the Government Learning Team D HIS 301 Professor Bruce Franklin Branches of the Government “Historically, the concept of Separation of Powers dates back as far as ancient Greece. The concepts were refined by contemporaries of the Framers, and those refinements influenced the establishment of the three branches in the Constitution” (Mount, 2014). The idea of a separation of powers first appeared in the political philosophy of Montesquieu. He advocated for a government where each branch had clear cut rules on what they could and could not do. This idea of a separation of government, or a government that was for the people would be perpetuated by other philosophers throughout the Enlightenment era. The founding fathers sought to create the United States government in the same way. Each branch is empowered with distinct powers. The government is set up this way in order to prevent abuse of power. Each branch is able to exercise a form of control over each other. Within the constitution are articles. Within each article, it outlines the separations of powers for each branch of the government. Article one outlines The Legislative. Which is made up of The Senate and the House of Representatives Article two is composed of The Executive branch. This entails the President, his Vice-President and the state departments. Article three explains the judicial branch. This also covers federal and the Supreme Court. With this kind of system in place, it creates a kind of...
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...There are both similarities and differences, when referring to checks and balances and separation of powers. Both have to do with the Government. But separation of powers is a model of government in which different parts of the government are in charge of different tasks; in the United States, these parts are known as the Legislative, Executive, and Judicial. Checks and balances is a means of trying to ensure that these three parts of government stay equal, and that one does not try to take over another. Separation of powers was first introduced as a government model in ancient Greece, and was used largely in the Roman republic. Under this Government model, the state is divided into separate and independent entities. The normal separation of branches is into executive, a legislature, and judiciary. The legislative branch makes the laws, the executive branch enforces and carries out the laws to the public, and the judicial branch interprets the laws. Interestingly, not only does each branch have a certain power, each branch has a certain power over the other branch. This is done to keep them balanced and to prevent one from getting too much control. This is known as “Checks and Balances.” The concept of checks and balances comes from the United States constitution. The different branches of government check each other’s power so that no branch has more power than the other. An example would be if the legislative branch wants to pass a law, they first present it as...
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...The three arms of government and the separation of powers • What are the three arms of government? • Explain the meaning of the doctrine of the separation of powers, and its rationale. • Discuss the extent to which the doctrine of the separation of powers is followed in practice in Australia. • 3 arms of govt: legislature (parliament), executive (“government”) and the judiciary • Parliament/legislature – makes laws (legislation / statutes / Acts of Parliament) • Executive/ government – formulates policy, “manages the country”; they do administer the law through government departments (e.g. Dept of Immigration applies The Migration Act to specific cases); collect taxes (revenue), and provide essential services (e.g. hospitals, roads, education) • Judiciary = courts/judges; apply and interpret the law (judges do make law but most of the time this is a slow, evolutionary process) • Rationale / justification for the separation of powers doctrine is that a concentration of power in one person (or one group of people) is likely to lead to corruption (an abuse of power). • Is the separation of powers doctrine observed in practice in Australia? • There is no true separation between the executive and legislative branches – as the party holding a majority of seats in the House of Reps is entitled to form government (and in practice, government is “in control” of Parliament, at least the House of Reps). • There is a true separation between the judiciary and the other two...
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... the American Revolution came into fruition and became not only a war of freedom from British rule but also a war that capitalized on political theories such as liberty and equality. In liberty, Montesquieu introduces his concept of individual rights. Lastly, in equality, Montesquieu introduces his idea of separation of powers in government. Before one can comprehend the theories of Montesquieu, one must first understand the philosopher Montesquieu. Montesquieu, a French philosopher, highly believed in a liberal government and had a high interest in law. Born from an aristocratic family, Montesquieu attended the University of Bordeaux and obtained a law degree. After his uncle’s death, Montesquieu became the Président à Mortier in the Parliament of Bordeaux. The position mainly dealt with judicial and administrative matters. Because this was a high administrative position, Montesquieu was more involved with the schematics of government. This is perhaps where Montesquieu drawn one of his major political theories: equality. The quote “constant experience shows us that every man invested with power is apt to abuse it ...” (Munro 48) depicts Montesquieu’s belief of equality in government. In other words, he believed in the concept of separation of powers in government. Furthermore, he believed that government should be divided into three branches: executive, judicial and legislative. Each branch should be kept in checks and...
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...Presidential Power Barack Obama had formerly said “Change will not come if we wait for some other person or some other time. We are the ones we've been waiting for. We are the change that we seek.” But there’s an accurate method and invalid method in undertaking such changes. Especially when conversing about the President of the United States the precise procedure, phases and guidelines are being assumed to be executed. In retrospect of President Obama prior decisions and actions, it can be obviously seen that he has been neglecting to obey presidential rules and regulation. On more than one occasion President Obama has overstepped his boundaries because, he has ignored boundaries of the constitution, taken action without congress approval, and he has undermined the...
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...1. Separation of power is a fundamental principle that underlies the three branches of government establish by the Philippine constitution. a) Be able to explain the meaning and purpose of the principle of separation of powers. Separation of power describes the distribution of the executive, judicial, and legislative responsibilities of a government among separate and distinct branches. b) Be able to explain the status and the nature of the relationship of the three branches. The three branches of the government operates independently of the others. This is known as “the separation power” c) What is the principle of blending of power? Blending of power is actually sharing of power of the different department of the government whereby one department helps and coordinates with the other in the exercise of a particular power, function, or responsibility. 2. Be able to: a) Explain the principle of check and balance. "Checks and balances" is a concept set up in the whereby the various powers of any government are divided into 3 separate branches with no one branch having all of such powers. b) What are the purposes of the principle of the check and balance? The purpose of the principle of the check and balance is it guarantees that no part of the government becomes too powerful. For example, the legislative branch is in charge of making laws. The executive branch can veto the law, thus making it harder for the legislative branch to pass the law....
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...DELEGATED LEGISLATION MYTH OR REALITY INTRODUCTION Delegated Legislation, as the name itself suggests, means the delegation of the power of law making by the legislature to the other organs of the government. In India, there is separation of powers between the organs of the government but this separation is not in water tight compartments. Delegated Legislation in India is seen when the legislature, delegates some of the law making powers to the executive. The aim of the doctrine of separation of powers is to guard against tyrannical and arbitrary powers of the State. The rationale behind the doctrine is that, if all power is concentrated in one and the same organ, it would give rise to the danger that it may enact tyrannical laws, and also execute them in a despotic manner. In the face of the complex socio-economic problems demanding solution in a modern welfare state, it has been agreed by many legal scholars that the strict application of the separation theory is no longer possible to apply the nevertheless, it has not become completely redundant and its chief value lies in emphasizing the fact that it is absolutely essential to develop adequate checks and balances to prevent administrative arbitrariness. Thus, it has been stated about the doctrine, “Its objective is the preservation of political safeguards against capricious exercise of power; and incidentally, it lays down lines of an effective division of functions. Its logic is the logic of popularity rather than strict...
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...UOI v R. Gandhi/ Madras Bar Association v UOI, (2010) 2 Comp LJ 577 (SC). Author’s Name: Aditi Tambi Registration Number: 11A008 TABLE OF CONTENTS Introduction………………………………………………………………..2 Rule of Law…………………………………………………………………4 Separation of Power……………………………………………………….6 Development of Tribunalisation in India………………………………..8 UOI v R.Gandhi……………………………………………………………....10 * Facts………………………………………………………………....10 * Issues………………………………………………………………...12 * Contentions of Petitioner………………………………………….12 * Contentions of Respondent………………………………………...13 * Provisions of Law in Question……………………………………...13 * Judgment……………………………………………………………...15 Conclusion………………………………………………………..20 INTRODUCTION The author in the in this project will deal with the case for and against the Tribunalisation of company law in India. The following discussion culminates from the Constitutional Bench Judgment of the Supreme Court that upheld the establishment of the National Company Law Tribunal (NCLT) and the National Company Law Appellate Tribunal (NCLAT), in an appeal filed by the Union of India against a Madras High Court judgment. The case in discussion is Union of India v. R. Gandhi / Madras Bar Association v UOI. What was effectively held in the judgment was to uphold the legislative competence of the Parliament to create the NCLT and NCLAT. In the present case, upon recommendations of Eradi Committee, constituted to suggest measures to avoid unnecessary delay in litigation, Parliament...
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...relations.” In his article, Fr. Bernas aimed at setting up a common ground in every Filipino’s perception on the underlying message of the said principle. The separation of church and state is exceedingly important to be understood so that opinions shared would be based on a common understanding of such important concept. That is probably one of the few points on which everyone on all sides of the debate can readily agree upon — their reasons for agreeing may differ, but they do concur that the separation of church and state is one of the key constitutional principles in history. As presented, an honored principle of the Philippine Constitution is the separation of Church and State under Article 2, Section 6 of the Philippine Constitution. This has been the issue that Fr. Bernas tackled in his article especially in regards with the conditions that the said principle sets. Coming from a simple understanding of the meaning, I perceived that the separation of the Church and State means that the said organizations are two separate institutions that neither directs the affairs of the other. The State cannot aid one religion, aid all religions or prefer one religion over the other; and that every one is free to profess his belief or disbelief in any religion (De Leon, 2008). This is essentially the substance of the concept, however, Fr. Bernas further clarified the explanation by stating that the government is not involved in choosing church leaders and these leaders do not serve...
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...Hong Kong has a special legal position which overrides administrative, legislative and judicial organs and that the separation of powers is not suitable for Hong Kong.” With reference to the constitutional arrangement of Hong Kong, to what extent is this statement valid? In the 25th anniversary of the promulgation of the Basic Law on September 12, the director of the central government’s liaison office in Hong Kong, Zhang Xiaoming gave a speech entitled “A Correct Understanding of the Characteristics of the Political System of the Hong Kong Special Administrative Region”. He said that the separation of power will not implement in Hong Kong. He also stated that the Chief Executive has “a special legal position” that he can overrides executive, legislative and judicial organs (Zeng, 2015). His speaking was criticized by the public and caused much controversy. In my opinions, the view of Zhang Xiaoming is valid in a small extent according to the constitutional arrangement in Hong Kong. It means that the Chief Executive of Hong Kong does not necessarily have an overriding power over administrative, legislative and judicial organs and that the separation of powers may suit in Hong Kong. First of all, we need to know what separation of powers and the functions of executive, legislative and judicial organs are. The separation of powers means that all the powers that are entrusted to the government are divided into three main departments, the executive, legislative and judicial...
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...Rights Act survives, legislatures must walk a fuzzy line between compliance with the statute and the treatment of race as the predominant consideration … [which] may be an unworkable distinction.” The concept of unworkability lies at the heart of why, in some situations judicial intervention is necessary to preserve separation of powers principles, and to protect constitutional freedoms. For this reason, deference to the legislature can, in some instances, contribute to arbitrary deprivations of constitutional freedoms. 3. THE ISSUE(S) ENABLE THAT THE COURT TO DEVELOP WORKABLE RULES TO GUIDE LOWER COURTS, LEGISLATORS, AND OTHER...
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