Who then, according to the doctrine of separation of powers, should appoint
members to the three branches of government? In all the principal draft
constitutions produced so far — the Kariba draft, the NCA draft and the Law Society
draft — it is stated that all legal and political authority derives from the people, so
logically the people should elect the President and the Prime Minister as well as all
members of Parliament. And judges and other judicial officers should also be directly
elected by the people.
How Each Branch is Financed
It would be impractical to expect each branch of government to raise its own
finances. The financing of all the branches must therefore come from the central
government fiscus, and may limit their independence because whichever branch
controls the fiscus can starve the other branches of funds. In order to maintain the
independence of the different branches, the Constitution could make it obligatory for
each branch to be provided with adequate funding to carry out its functions.
Limitations on the Separation of Powers
There is probably no country in the world in which the doctrine of separation of
powers is applied strictly and absolutely. There are not always clear dividing lines
between administrative, legislative and judicial functions — jurists have wasted
oceans of ink and mountains of paper in trying to define those terms precisely — and
in a modern State there must be a great deal of co-operation and interaction
between the Executive and the Legislature, in particular, if the State’s business is to
be efficiently conducted. In modern countries, therefore, there is always some
overlapping of functions. For example:
•
Legislation has become so far-reaching and complex that Parliament cannot
enact all of it. Acts of Parliament must leave details to be filled in by regulations
made by other authorities, usually Ministers. Hence the Executive branch must be
given some law-making powers. At present all subsidiary legislation must be laid
before Parliament, but Parliament has no power to repeal it. It would be closer to the
ideal of separation of powers if Parliament did have such a power.
•
The role of government has expanded so greatly that many decisions which
affect peoples’ lives must be made quickly, and some of these decisions require
specialised knowledge which is not possessed by judges or magistrates. Many of
these decisions are made by administrative tribunals established by and answerable
to Ministers. Hence the Executive branch is increasingly given judicial powers. This is
not necessarily undesirable so long as the tribunal obey the basic standards of
fairness laid down by the law and so long as the courts are able to review their
decisions.
•
It is generally recognised that in a legal system such as ours, judges do not just
interpret the law. They develop and adapt the law to take account of changing
circumstances, and in that way they actually make law. Hence the judicial branch has
some law-making or legislative powers, but this power should not go beyond refining
and developing existing law.
•
In some countries the Head of State is elected by Parliament, not by the
people. This is usually the case where the Head of State is non-executive, but in
South Africa the executive President is elected by the National Assembly. While this
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