The People’s Republic: Constitutional basis

CONTINUED FROM LAST WEEK

Here again, it is easy to appreciate that the concentration of all these organs in the hands of one man in a state is bound to lead to tyranny. The holder of such powers is certain to wield them in favour of some -especially his own children, relatives, and friends – to the prejudice of others. In any case, he cannot be expected to have equal affection or consideration for all the members of the community as a paterfamilias would for all the members of his family. Indeed, the possession of all these powers would be more likely than not to corrupt him to the extent that he would become a veritable menace and object of hate to the majority of the people in the State. It was because Plato was keenly aware of these dangers that he proposed a ‘philosopher-king’ for his republic which is not of this earth’. Even Hobbes was not unaware of the dangers of concentrating power in the hands of one man. But he had thought that only a leviathan could effectively reconcile the violently conflicting interests of the solitary, poor, brutish creatures that he had in mind. As such creatures never existed and will never exist, Hobbes’ invention of the Leviathan was both irrelevant and uncalled for, and his defence of absolute monarchy or kingship, or of might being right, is untenable and without foundation.

However, since no family which entered into a union with another would voluntarily submit to tyranny or the rule of a leviathan, and since it is not possible to have on earth here a ‘philosopher-king’ of Plato’s conception – a king who will be so rigorously educated, impersonal, unselfish, and public-spirited as to be absolutely free from any trait of partial affections, and love all his subjects equally – mankind has evolved a system by means of which the organs of state operate independently of one another.

For instance, the devices have been adopted whereby:

(1) persons who are entrusted with the functions of each of the organs are separate and distinct; that is to say, no government functionary will belong to more than one organ;

(2) one organ as such will not perform the functions of the other organs; that is to say, the Executive, for instance, will not perform the functions of the Legislature, even though the same persons are’ members of both; and (3) one organ will not control or interfere with any other organ in the latter’s performance of its functions; that is to say, all the three organs will be independent of one another ,in the exercise of their allotted functions, so that the Executive, for instance, will not control or interfere with the Judicature. In constitutional parlance, this type of arrangement is known as separation of powers.

From the time of Locke and more especially since Montesquieu, political philosophers have extolled the virtues of separation of powers. By making the three organs of State independent of one another, it is possible to provide checks and balances among them, and avoid the dangers which arise from the concentration of powers in the hands of one man or one group of men. In this way, arbitrary rule is precluded, and the fundamental rights of the citizen are assured. In other words, separation of powers is not just an abstract doctrine or an academic legalistic formula; in practical politics,it is a most potent means to the outlawry of tyranny, and the enthronement of democracy.

Before we pass on to the next topic, we would like to emphasize some of the peculiarities of these three organs. For reasons which we have sufficiently elaborated, the members of the legislative and executive organs are subject to periodic elections. In other words they are subject, for their continuance in or removal from office, to the periodic good sense, whims, and caprices of the electorate. But the judicial organ is not and must not be subject to the same treatmentas the other two organs. In order that they may perform their preeminent and sacred role as impartial arbiters in all disputes and matters, the members of the Judicature must be absolutely free from the effects and taints of political manoeuvres.

This is more so in a country with a federal constitution. Because, apart from disputes or matters between individuals, between a state or central authority and an individual, there will also be those between state and state, and between Central and state authorities. In all these, the judges are to be seen to dispense justice impartially in addition to actually dispensing it, then their appointment, promotion, conditions of service, and tenure of office must be free from any semblance of control or influence by one or more of the rivalling political parties.

In these days, judges need thorough training and extensive experience to qualify them to adjudicate on the many complicated matters, and interpret the multitude of tangled legislations that come before them. If the office ofajudge is to provide any attraction to the best in the legal profession, it must provide security of tenure as well as congenial conditions of service. In other words, judges must be treated differently from, and with better consideration than, the politicians. , ..

The same thing goes for public servants. In these days, the members of the, Legislature, Executive, and Judicature cannot discharge their allotted functions successfully without the active collaboration of a large number of public servants. They too must be properly trained. They must be very competent and experienced in their chosen fields. To ensure the continuity of the public services, they must have a permanent career which old age alone, usually prescribed by law, may terminate. Because of their special training and expert knowledge, they are expected to advise the members of the Executive in the process of policy-making, and to assist them in executing such policies as have been approved by the Legislature or some other appropriate Agency of the State. In tendering advice, they must be objective and fearless; and in carrying out Executive decisions, they must be free from any tinge of partial affection.

CONTINUES NEXT WEEK

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