Table of Contents
Chapter-1
1.1
Concept
The theory of
‘separation of power’ is formulated by French philosopher Montesquieu. The
theory of ‘Separation of power’ states that the role of government should be
distinguished and they should be execute by different organs consisting of
different bodies of persons so that each department should be limited to its
own area of action without influencing upon others, and that it should be
independent within that area. This helps government to govern the nation
without any obstacles. The
concentration of power within same person results to the abuse of authority and
such an organization becomes dictatorial. So there must be the decentralization
of power so as to run the state without any disturbance.
Separation of power usually stands for
the separation of the three main spheres of government, namely, Legislative,
Executive and Judiciary. Within the constitutional context the meaning of the
terms:
i.
Legislative
ii.
Executive
iii.
Judiciary
"The legislative is considered to
be sovereign law making body. It have power to make, amend and repeal rules of
law. Executive as decision making body it execute and enforce rules of law and Judiciary
as body to interpret the laws.”
1.2 Objective
i.
To understand about the separation of
power of Nepal.
ii.
To find out its impact on law making
process of Nepal.
1.3 Methodology
The source of research would be
secondary source like books and internet.
1.4 Limitation
The research shall be based on only to
the context of Nepal. It is related to only one
Organ of the state that is legislative as law making
process.
Chapter-2
2.1 Analysis
As the power to only one person or
organ resulted to tyranny so theory of separation of power states that:
·
Each organ should be independent of the
other,
·
No one organ should perform functions
that belong to the others.
In the Interim
constitution, the provisions about separation of powers and check and balance
do not much differ, in surface than the constitution of the Kingdom of Nepal,
2047 B.S. The executive power of Nepal shall, pursuant to this constitution and
other laws, be conferred in the council of Ministers. The law making authority
is conferred to the legislature parliament.
Authorities
relating to justice in Nepal shall be trained by courts and other judicial
institutions in accordance with the provisions of this constitution, the laws
and the known principles of justice. Legislative consensuses do not have different
separation of powers. The executive, which often consists of a prime minister
and cabinet, is drawn from legislature. This is the principle of responsible
government. However, although the legislative and executive branches are
connected in parliamentary systems, there is usually an independent judiciary
and the government’s role in the parliament does not give them unlimited
legislative influence.
The executive
which frames policy, executes it, and runs the country consists of chosen and
some designated members of parliament, who are under the control of parliament.
So on the parliament which exercised over-all legislative supremacies is made
up of the commons representatives, but is inspired most of the time, by the
programs of the executives. Although the executive is remain in the power but
the executive can dissolved the legislative parliament if it find that the
house is not concerning its doings.
The Supreme
Court is self-governing and arbitrates upon conflicts between state
institutions, and between the state and individuals, but judges are removable
by the legislative parliament. Parliament may permit the legislation but the
Supreme Court may acknowledged it unconstitutional. The nomination of Supreme
Court judges is made by the constitutional council.
The entire power
of legislations belong to Parliament, but the executive can still question
orders under and other subordinate legislation. All three
important organs of the state- the executive the legislative and the judiciary
are separate branches of the system of government, but the executive and
legislature must effort together in the framework of a proper relationship, if
the country is to be properly governed.
Chapter-3
3.1 Conclusions
As a conclusion
the separation of power of Nepal is found to be different and those three
organs are related with each other although they have different power. The
separation of powers is certainly neither an complete nor a predominant feature
of the Nepalese Constitution. Nevertheless, it is a concept which is firmly
rooted in constitutional tradition and thought. The separation of powers is
indispensable while framing the constitution as it recommends the allocation of
powers to the different institutions.
References
Dahal, G. P. (2013, December ). THE SEPERATION OF
POWER: AN EXPERIMENT OF THEORY AND PRACTICE . TRIBHUVAN UNIVERSITY JOURNAL,
51-60.
joshi, A. (n.d.). Separation of Powers and check and
balance in Nepalese context. The Nepalese Journal of Public Administration,
133-138.
Mojapelo, J. P. (2013, april). The doctrine of
separation of powers. Advocate, 37-46.
[1]
Mojapelo, J. P. (2013, april). The doctrine of
separation of powers. Advocate, 37-46.
[2]
joshi, A. (n.d.). Separation of Powers and check
and balance in Nepalese context. The Nepalese Journal of Public
Administration, 133-138.
[3]
Dahal, G. P. (2013, December ). THE SEPERATION
OF POWER: AN EXPERIMENT OF THEORY AND PRACTICE . TRIBHUVAN UNIVERSITY
JOURNAL, 51-60.
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