Chapter 12 Separation Of Powers - CLoSA

The final part of the chapter will engage in an analysis of the ConstitutionalCourt's separation of powers jurisprudence and in so doing identify some importantemerging features and principles. Although the development of this jurisprudencehas necessarily been conducted on a case-by-case basis, a cumulative reading of theConstitutional Court's judgments illustrates that the doctrines and principlesidentified in this chapter have heavily influenced the Court's goal of distilling a'distinctively South African model of separation of powers'. This section further seeksto demonstrate that, although the judgments discussed go a long way towardsilluminating the separation of powers doctrine in South Africa, the ConstitutionalCourt's conceptualization of this doctrine is, much like South Africa's overallconstitutional project, an ongoing enterprise to which there are no full and finalanswers.12.2 Origins and conceptual framework of the separationof powers doctrine(a) 'Power arrests power': the historical development of the idea ofseparated powersThe articulation of an explicit doctrine of separation of powers as a distinctexplicatory theory of governance is generally thought to have its origin in thepolitical philosophy of the age of Enlightenment in seventeenth-century Europe,when political thinkers started to challenge the unlimited might and arbitrariness ofan absolute monarch. However, its basic aim is much older, i e to find a structure ofgovernment that prevents the accumulation of too much power in one institution.Mitigating power by way of diffusion has been a feature common to many societiesfor ages, even when they have followed a strictly hierarchical system of government.For example, in pre-colonial southern African societies, no separation of powerstechnically existed, because traditional leaders performed all functions ofgovernment, including dispute resolution.5 However, traditional leaders were alwaysexpected to consult with an advisory body (usually consisting of seniorOS 06-08, ch12-p4members of the society) or seek the approval of a popular assembly. As Tom Bennettand Christina Murray point out, even without formal constraints, no importantdecision could be taken without discussion in the council, giving the members of thegroup (or their representatives) opportunities to check self-interested action andeffectively limit the power of the ruler.6The idea that the accumulation of power can be (best) prevented by theintroduction of distinctive institutions with defined functions, areas of competenceand jurisdiction, which exercise public power in mutual co-operation, wasfoundational to the Roman republic of the sixth century BC. While the senate, a bodyof up to 600 men from (mostly) Roman nobility, engaged in general policy debates,made important decisions (such as decisions about entering into war and suing forpeace) and controlled the treasury, administrative and judicial functions weretransferred to annually elected officials (collectively called magistrates) with titles5See Tom Bennett & Christina Murray 'Traditional Leaders' in S Woolman, T Roux, J Klaaren, A Stein,M Chaskalson & M Bishop (eds) Constitutional Law of South Africa (2nd Edition, OS, December2005) Chapter 26, § 26.6(c).6Bennett & Murray (supra) at §§ 26.2, 26.6(c)(iii).

like consul or praetor depending on their rank and responsibilities. These wereelected by assemblies (the comitias) representing the Roman people.Much of the theoretical groundwork for such an arrangement was laid by theGreek philosopher Aristotle, who formulated the idea of a threefold division of publicpower as one of the requirements of a good constitution. Aristotle saw threeelements in every constitution: the deliberative element (responsible for law-makingand other important decisions), the element of the magistracies (everythingconcerning the day-to-day 'running' of the state) and the judicial element. 7 In hisview, when the drafters of a Constitution had reached the best arrangement for eachof the three elements, and they were all acting in the right 'proportion', theConstitution as a whole would work well. This background in Aristotelian theory andRoman practice was not lost and influenced the scholarly debate on how societiesought to be structured for centuries — although, in practical terms in medievalEurope, state power became increasingly concentrated in single rulers.8The emergence of all-powerful, absolute rulers whose authority was notrestrained, balanced and countered by other institutions led to the revitalization ofseparation of powers ideas in the seventeenth century. At that time, these ideaswere influenced by the developing liberal notions of personal freedom and civilliberties. Aristotle had focused on the well-being of the community as a whole, thepolis, and only indirectly on the individual. During the period of the Reformation andthe Renaissance, however, a growing emphasis was placed on the fact that publicpower should be exercised in the interests of the governed. Absolute monarchs couldnot be trusted in this regard, as 'there is the danger that they will think themselvesto have a distinct interest from the rest of the Community.'9OS 06-08, ch12-p5Thus, the idea that public power must be distributed and controlled was developedwith a view to the accountability of government to the will of the people. The basisfor today's notion of separation of powers was laid with the functional understandingthat democracy and the rule of law require both the division of powers and mutualchecks and balances. The main proponents of this idea were John Locke (1632–1704), Charles Baron de Montesquieu (1689–1755) and James Madison (1751–1836).Locke's work was based on his experiences with the Civil War in England around1650 and the Revolution of 1688, when King James II of England was overthrown bya union of parliamentarians, which effectively ended absolute monarchy in Britain bycircumscribing the monarch's powers. Although supportive of this development,Locke's concern was that absolute monarchical power should not just be replaced byabsolute parliamentary power. In his view, the concentration of influence in any oneinstitution entailed an inherent danger:[I]it may be too great a temptation to humane frailty apt to grasp at Power, for thesame Persons who have the Power of making Laws, to have also in their hands thepower to execute them, whereby they may exempt themselves from Obedience to the7Aristotle Politics Book IV, Chapter 14. In modern terms, Aristotle's drew a distinction between stateorgans and state functions.8MJC Vile Constitutionalism and the Separation of Powers (1967) 40; Lane (supra) at 22–25.9John Locke Two Treatises of Government II (1688) Chapter XI para 138.

Laws they make, and suit the Law, both in its making and execution, to their ownprivate advantage.10Locke was influenced by natural law assumptions such as that all men are by naturefree and equal and that legitimate governments are those which have the consent ofthe people. For this reason, there was a need 'to think of methods of restraining anyexorbitances of those to whom [the people] had given the authority over them, andof balancing the power of government, by placing several parts of it in differenthands'.11 This was Locke's essential thought: separation of powers as a means tocounter the power-accumulating tendencies of human nature. To preventarbitrariness, his prescription for the executive power (in his view, the King) was thatit should not be concerned with law-making, while the legislature, on the other hand,should only be concerned with the passing of general rules and, equally important,should be dissolved on a regular basis so that it would consist of different peoplefrom time to time.12Although quite revolutionary for his time, Locke's understanding of separation ofpowers differed in important ways from later conceptions of this doctrine. First,Locke still saw the judicial function as part of the executive, as it was for him part ofthe implementation of abstract legal rules.13 Secondly, advocating theOS 06-08, ch12-p6then emerging English model of parliamentary supremacy, he did not think of aneffective institutional counterbalance to the legislature, but only of proceduralrestraints.14The division of state power between three distinctive institutions was introducedby Montesquieu, who is generally credited with devising the modern conception ofseparation of powers. Montesquieu's singular contribution was to conceive thejudicial power as an independent state function, thereby treating it as a form ofpower equivalent to legislative and executive power, and laying the theoretical basisfor the independence of the judiciary.15 Montesquieu conceived his theory as anempirical study in which he examined all kinds of regimes present and past. In thisendeavour, he started from a rather gloomy view of human nature, similar to that of10Locke (supra) at Chapter XII, para 143.11Locke (supra) at Chapter VIII, para 107.12See FA Hayek The Constitution of Liberty (1960) 170.13Locke divided state functions mainly between law making (legislative power) and lawimplementation, including adjudication (executive power). He nevertheless advocated threedistinctive governmental powers because he distinguished between internal 'executive power'(where the executive was subject to the control of the legislature) and external 'federative power',i e foreign affairs, which cannot be conducted subject to predetermined abstract legal rules and inwhich the executive is not subject to the control of the legislator. See Vile (supra) at 66–67.14See Vile (supra) at 68–70.15Although Montesquieu did not accord the judicial branch an exactly equal status with thelegislative and executive branches of government, he clearly intended the judiciary to beindependent of the other two. See Vile (supra) at 96.

Locke: human beings in power have the tendency to abuse it. 16 But Montesquieuthought that such tendencies need not prevail because the structure of government,as embodied in the constitution of a nation, could make a difference.For Montesquieu, the separation of powers doctrine was foundational to anyconstitution that sought to prevent the abuse of power and advance personalfreedom:[There is no] liberty if the power of judging is not separate from legislative power andfrom executive powers. . . . All would be lost if the same man or the same body ofprincipal men, either of nobles, or of the people, exercised these three powers: that ofmaking the laws, that of executing public resolutions, and that of judging the crimes orthe disputes of individuals.17Jan-Erik Lane has noted that Locke's constitutionalism is focused on the concept oflimited government, of restrained and restricted political power to ensure the libertyof the individual, while Montesquieu focused on the fact that such liberty is mostlikely to survive in a state where executive, legislative and judicial power are not inthe same hands.18 What they had in common was that they regarded separation ofpowers as a means directly to prevent the accumulation of power and, even moreimportantly, indirectly to ensure that every member of society enjoyed individualrights and freedoms.19OS 06-08, ch12-p7Montesquieu's point was that separation of powers was crucial for goodgovernment. He believed that only the separation of powers would create a situationin which the common good would be advanced. Some 50 years before the Jacobinsin the aftermath of the French revolution would disguise their reign of terror as areign of virtue, Montesquieu strongly emphasized that even a government with thebest intentions needed to be limited: 'Is it not strange, though true, to say thatvirtue itself has need of limits?'20Additionally, Montesquieu realized that limitations imposed by procedural or evensubstantive laws would not suffice to prevent the abuse of power. Instead, such legallimitations had to be supported by alternative sources of political power, which also16Montesquieu The Spirit of the Laws (1748, translated and edited by Anne M Cohler, Basia CarolynMiller & Harold Samuel Stone, 1989) Book XI Chapter 4 155 ('. . . it has eternally been observedthat any man who has power is led to abuse it; he continues until he finds limits.')17Montesquieu (supra) at Book XI Chapter 6 157.18See Lane (supra) at 39.19It was exactly this focus on individual liberty that persuaded writers advancing communism orsocialism to reject the idea of separation of powers. A government of the working class demandedabsolute accountability of every state function to the 'masses'. Mutual checks and balances areunnecessary where 'revolutionary forces' exercise all power and control all state functions. For anappraisal of the apparent mixing of state functions during the short-lived Paris Commune of 1871by Karl Marx, see Theunis Roux 'Democracy' in S Woolman, T Roux, J Klaaren, A Stein, AChaskalson & M Bishop Constitutional Law of South Africa (2nd Edition, OS, July 2006) Chapter 10,§ 10.2(a).20Montesquieu (supra) at Book XI Chapter 4 155 ('Qui le dirait! La virtue même a besoin de limites.'Some English editions have used a different translation more congruent with the French original:'Who would think it! Even virtue has need of limits.')

meant bringing social forces into consideration.21 To make separation of powerswork, a Constitution would have to distribute power between the different branchesof government: 'To prevent this abuse, it is necessary from the very nature of thingsthat power arrests power.'22James Madison later picked up on this insight (though without explicitly referringto Montesquieu) when he outlined the structure of the US Constitution:But the great security against a gradual concentration of the several powers in thesame department, consists in giving to those who administer each department thenecessary constitutional means and personal motives to resist encroachments of theothers. The provision for defense must in this, as in all other cases, be madecommensurate to the danger of attack. Ambition must be made to counteract ambition.The interest of the man must be connected with the constitutional rights of the place. 23OS 06-08, ch12-p8Hannah Arendt has called Montesquieu's insight the 'forgotten principle underlyingthe whole structure of separated powers', because it realizes that power must belimited and kept intact at the same time. Separation of powers must not have adisabling, but an enabling function:Power can be stopped and still be kept intact only by power, so that the principle of theseparation of powers not only provides a guarantee against the monopolization ofpower by one part of the government, but actually provides a kind of mechanism, builtinto the very heart of government, through which new power is constantly generated,without, however, being able to overgrow and expand to the detriment of other centresor sources of power.24As much as Montesquieu made one of the most enduring conceptual contributions totoday's understanding of the separation of powers doctrine, he did not outlineinstitutional mechanisms to serve his ideal. The task of putting Montesquieu's ideasinto practice was left to James Madison and his fellow 'founding fathers'. Drawing ontheir experience with the far-reaching powers of colonial governors, the framers of21Montesquieu placed great emphasis on the accommodation of the different strata of society, inparticular the nobility, of which he himself was part. To separate powers not only according to theirfunction, but also along social lines was of great importance to him: 'Here, therefore, is thefundamental constitution of the government of which we are speaking. As its legislative body iscomposed of two parts, the one will be chained by the other by their reciprocal faculty of vetoing.The two will be bound by the executive power, which will itself be bound by the legislative power.The form of these three powers should be rest or inaction.' Montesquieu (supra) at Book XI Chapter6 164 (my emphasis). Although Montesquieu does not mention the judiciary in this context, henevertheless speaks of three powers. Instead of state powers here he has social powers in mind,referring to the monarch as the head of the executive, the nobility (comprising the upper house ofParliament) and the bourgeoisie, represented in the second chamber or lower house of Parliament.This class emphasis is also visible from his argument that members of the aristocracy should notbe judged in the ordinary courts of law, but in courts made up of their peers, because 'importantmen are always exposed to envy; and if they were judged by the people, they could beendangered . . .' Montesquieu (supra) at 163.22Ibid at Book XI Chapter 4, 155 ('Pour qu'on ne puisse abuser du pouvoir, il faut que, par ladisposition des choses, le pouvoir arrête le pouvoir.') Depending on the translation, the last part ofthis sentence may read 'power must be a check on power'.23Alexander Hamilton, James Madison & John Jay The Federalist Papers No 51 (1788, JM Dent Edition,1992) 266 ('The Federalist').24Hannah Arendt On Revolution (1963) 151–152 (emphasis in the original).

the early American constitutions ensured that the principle of separation of powersplayed a central role in the structures of government for the first time.25 They startedfrom the same assumption as Montesquieu, i e that the division of power is essentialto prevent its abuse:The accumulation of all powers, legislative, executive, and judiciary, in the same hands,whether of one, a few, or many, and whether hereditary, selfappointed, or elective, mayjustly be pronounced the very definition of tyranny. 26One important aspect in the American implementation of the doctrine was thedistinction between a Constitution and ordinary legislation. For the majority ofAmericans at the time, the distinctive source of political power was the people. Itwas the people who constituted the state and expressed their will in the form of awritten Constitution.27 Against this, the legislature had only a delegated power,which needed to have limits, too. However, early experiences with some StateConstitutions and their systems of separated powers had shown that a simpleOS 06-08, ch12-p9division of functions had neither sufficiently acknowledged the idea of popularsovereignty, nor restricted the legislatures to the passing of general rules. Instead,the State legislatures had slowly absorbed more and more powers.28The problem of how to place limits on the legislature was thus the backgroundagainst which the drafters of the US Constitution, based on their reading ofMontesquieu, concluded that a strict separation of powers would not prevent theaccumulation of power.29 To put the principle that 'power arrests power' into practice,it would instead be necessary to draft a Constitution 'in which the powers ofgovernment should be so divided and balanced among several bodies of magistracy,as that no one could transcend their legal limits, without being effectually checkedand restrained by the others.'3025See, for example, the Constitution of Virginia of June 29, 1776 (Not to be confused with the VirginiaBill of Rights of June 12, 1776): 'The legislative, executive, and judiciary department, shall beseparate and distinct, so that neither exercise the powers properly belonging to the other: nor shallany person exercise the powers of more than one of them, at the same time; except that thejustices of the county courts shall be eligible to either House of Assembly.'26Hamilton, Madison & Jay The Federalist No 47 (supra) at 247 (Madison placed great emphasis onthe fact that a majority could abuse its power, too, and act contrary to the interests of a justsociety. 'It is of great importance in a republic not only to guard the society against the oppressionof its rulers, but to guard one part of the society against the injustice of the other part. . . . In asociety under the forms of which the stronger faction can readily unite and oppress the weaker,anarchy may as truly be said to reign as in a state of nature, where the weaker individual is notsecured against the violence of the stronger. . .' The Federalist No 51 at 267–268.)27See Vile (supra) at 158–159.28See Hamilton, Madison & Jay The Federalist No 48 (supra) at 254 ('The legislative department iseverywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.')29Hamilton, Madison & Jay (supra) at 257 ('[A] mere demarcation on parchment of the constitutionallimits of the several departments, is not a sufficient guard against those encroachments which leadto a tyrannical concentration of all the powers of government in the same hands.' In his writings,Madison pointed out several times that it was fully in line with Montequieu's theory to allow forsome mutual interference between the different branches of government.)

The idea of 'checks and balances' as a complement to the mere separation ofpowers was the decisive innovation. Although in a sense a breach of the doctrine,the Americans realized that checks and balances were nevertheless necessary to thesuccessful application of the separation of powers. In the Constitutional Conve

Chapter 12 Separation of Powers Sebastian Seedorf & Sanele Sibanda 12.1 Introduction 12.2. Origins and Conceptual Framework of the Separation of Powers Doctrine (a) 'Power arrests power': the historical development of the idea of separated powers (b) Constitutionalism, 'checks and balances' and the 'pure form' of separation of powers