SOP summmary notes.docx - Constitutional Law Topic 4 The Doctrine of Separation of Powers The separation of functions distinct areas of responsibility

SOP summmary notes.docx - Constitutional Law Topic 4 The...

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Constitutional Law: Topic 4 The Doctrine of Separation of Powers The separation of functions : distinct areas of responsibility and authority on each of the three branches and preventing one branch from taking responsibility for tasks allocated to another branch Legislature Executive Judiciary National S 43(a) S 85 S 163 Provincial S 43(b) S 125 Local S 43(c) & S 151 S 151 Purpose and Principles Locke = division of government functions into legislative, executive and foreign relations Montesquieu = legislative, executive and judicial (this has survived) Consider pre-colonial African societies. Context is important: absolute power possessed by the European monarchs. The idea of dividing power was a response to this problem as a way of limiting absolute power. Consider US Constitution NB: No constitutional system encompasses FULL SoP where each branch is completely isolated from the other. Differs across constitutional systems; NO universal model of SoP. The Constitution limits the exercise of public power both procedurally and substantively. It is a system that restricts the powers of individual branches of government institutionally, procedurally and structurally; aiming to stop the abuse of government power and ensure the proper exercise of power. The interim Constitutional restrictions on the exercise of public power = procedural and substantive Substantive – justiciable BoR; constitutional commitment to values e.g. rule of law ( post apartheid) Procedural – basis for institutional, procedural and structural division of public power. Power should not be concentrated; some level of exclusiveness or specialization in functions (Apartheid) Constitution set out the need for this doctrine, however there is no express mention of it in the 1996 Constitution. The underlying principles of ‘accountability, responsiveness and openness’ imply the need for SoP. The purpose of implementing the doctrine is to prevent the concentration of power in any one governmental institution and ensure that all branches are held accountable to the others for their actions. Having to be accountable
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relies on the transparency and openness of the activities of each branch, this preventing the abuse of power. Also achieved by the proper distribution of power is the protection of human rights and political liberty. Through restricting the power given to each branch, the public is protected from the abuse of this power which can be used to infringe on their rights. The procedural nature of SoP can therefore be seen as having the substantive benefits. No constitutional system can encompass a full SoP and there is no universal mode for the principle. Each society and time period incorporates SoP in a different way and sets its own boundaries. There are four underlying principles that contribute to the doctrine: 1. The division of governmental power across three branches: trias politica. Legislature- Parliament and NCOP. Executive- President and Cabinet. Judiciary – courts and judges 2. The separation of functions : whereby each branch is given specific
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  • Spring '17
  • Professor Peterson
  • Separation of Powers

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