Charles Montesquieu in the development of modern Constitution.

A constitution is a system for government that establishes the rules and principles of an autonomous political entity. In the case of countries, this term refers specifically to a national constitution defining the fundamental political principles, and establishing the structure, procedures, powers and duties of a government. Most national constitutions also guarantee certain right to the people. The term constitution can be applied to any overall law that defines the functioning of a government, including several historical constitutions that existed before the development of modern national constitutions.[1]

A constitution is an amalgam of constitutional rules and constitutional principles, which goes under the name of constitutionalism. A number of constitutional principles are applied to construct a democratic constitution. Such principles include the Separation of Powers, the Rule of Law, Independence of Judiciary, Parliamentary Supremacy and Bills of Rights. The extent to which these principles are reflected in the constitution gives us an idea of whether or not the constitution is democratic.[2]

The modern constitution may be regarded as the constitution which established a democratic standard for the separation of powers in government between the legislature, executive and judiciary.[3]

The doctrine of separation of powers is one of the basic constitutional principles in the modern constitutions. It refers to the state power being separated and vested in three organs or branches of the state to prevent the abuse of power. These are the Legislature, the Executive and the Judiciary.[4]

This principle of separation of powers traces its origins at least as far back as Aristotle’s time in his book titled “Politics, Book IV.[5] During the age of enlightment, several philosophers such as John Locke (1632-1704) when philosophing on the theory of social contract in his book “The Second Treatise on Civil Government” noted the temptations to corruption that exist where “... the same persons who have the powers of making laws to have also in their hands the power to execute them ... “., thus he advocated the principle in his writings, whereas others, such as Thomas Hobbes strongly opposed it.[6]

It was French philosopher, Charles de Montesquieu (1689-1755), who gave the Doctrine of Separation of Powers its modern famous formulation as a result of visiting England in 1729-1731. In his The Spirit of Laws (1748), Montesquieu considered that English liberty was preserved by its institutional arrangements. In his writings, he elaborates what he is most famous for today, his theories of separation of powers in a viable and free polity. Without containing and balancing legislative, executive and judiciary power there is no freedom and no protection against abuse of power. His writing was highly influenced by his desire to secure the rights of individuals and their properties, he argued convincingly for the reduction of arbitrary decision making and an extension of the Rule of Law not only for the personal safety and benefits of the citizens, but as a decisive benefit and competitive advantage of the state as well. This basic principle of liberal democracy has eventually become mainstream all over the civilized world.

Charles Montesquieu was concerned with the preservation of political liberty which was developed in book 11 of “The Spirit of the Laws”. Political liberty is to be found, he says, when there is no abuse of power. But constant experience shows that every man invested with power is liable to abuse it, to prevent this abuse it is necessary from the nature of things that one power should be a check to another. When the legislative and executive powers are united in the same person or body, there can be no liberty. Again there is no liberty if the judicial power is not separated from the legislative and the executive. There would be an end of everything if the same person or body were to exercise all power.[7]

Charles Montesquieu therefore played a very big role in dividing the powers of the government into the Legislative power, the Executive power in matters pertaining to the law of nations and the powers of judging which are also known as the judicial powers. He wrote, “In every state there are three kinds of powers; the Legislative power, the power executing the matter, falling within the law of nations, and the power executing the matters which fall within the civil law. Through the first, the prince or magistrate makes the laws for the time being of for all time, and amends or repeals those previously made. Through the second he makes war ad peace, sends and receives ambassadors, establishes order, prevents invasions. Through the third he punishes crimes and judges the disputes of private individuals. This last is called judicial power, and the second is known as the Executive power.[8]

The Doctrine of Separation of Powers by Charles Montesquieu has become an interesting idea among the constitutional lawyers. As a result, the Doctrine of Separation of Powers as it has been formulated by Charles Montesquieu underwent through modifications by way of explanations which have led to the formation of an existing Doctrine of Separation of Powers in the modern Constitution.

Wade, the renown English Constitutional Lawyer says that the Doctrine may mean three different things: the first thing is that the same person should not form part of more than one of the three organs of government, for example, ministers who are the members of executive should not sit in parliament; the other one is that one organ of government should not control or interfere with the exercise of its function y another organ, for example, the ministers who are the executives should not be responsible to parliament; also one organ of the government should not exercise the functions of another organ, for example, the ministers should not have legislative powers. Wade rightly observes the dangers of strict application of the Doctrine and so he emphasized upon the checks and balances which are essential to prevent an abuse of the enormous powers usually placed in the hands of the executives.[9]

Madison’s explanation is more elaborative. He says in urging for the separation of powers, Montesquieu did not mean that these departments ought to have no partial agency in, or control over, the acts of each other. His meaning as his own words imports was that where the whole power of one department is exercised by the same hand which possesses the whole power in another department, the fundamental principles of a free constitution are weakened. Hence, in Madison’s view, the Doctrine was one of mutual restraints or checks and balances [10]                                                                        

Griffith and Street on the other hand, argue that the meaning of the Doctrine of the Separation of Powers lies in its appeal for dispersal of the state’s powers among many hands.[11]

Therefore, all those explanations which were put forward by different lawyers aimed at making some modifications to the Doctrine as was formulated by Montesquieu and make it clear as it is appearing in the modern constitution.

However, Montesquieu was criticized on the ground that his exposition of the Doctrine was based on the British Constitution of the first part of the 18^th Century as he knew it. Unfortunately his division of power did not exactly fit the said constitution. The greatest mistake made was his failure to appreciate the scope of powers of the Executive. To him, executive power meant only the power executing matters falling within the law of nations, which is, making war and peace, sending and reception of ambassadors, establishing order and preventing invasion.[12]

This is not the only mistake. There are many others which he committed leading to the conclusion that Montesquieu did not make a thorough analysis of the British Constitution. But, in spite of these criticisms, Montesquieu succeeded in lying down the foundation for the modern doctrine of the separation of powers.

The Doctrine of Separation of Powers as was formulated by Charles Montesquieu is one of the basic constitutional principle which is widely used in the modern constitutions of several countries. The United States Constitution goes further than any other in applying the Doctrine. Thus, the federal executive powers are vested in the president, the federal legislative power is vested in congress and the federal judicial power is vested in the Supreme Court since, the theory of separation of powers was said to have influenced James Madison of Virginia, the father of constitution in the United States of America, who wrote supporting the incorporation of the Doctrine in the US constitution.[13]

In Tanzania the Union Constitution of 1977[14] in Article 4 stipulates separation of powers. But, in Tanzania, we do not have a complete separation of powers as was formulated by Charles Montesquieu. The head of the executive is also part of the legislature and the cabinet is derived from the National Assembly and sits in the National Assembly.[15]

Generally, the Doctrine of Separation of Powers as was formulated by Charles Montesquieu is one of the fundamental principles of the modern constitution. The Doctrine advocates that each organ of the state should be left performing its function, but the implementation of the idea has been difficult. Hence, there has been the interference of the theory of Checks and Balances so as to ensure the proper operation of the Doctrine of Separation of Powers.

BIBLIOGRAPHY

STATUTE                                                                                                                         

 The Constitution of the United Republic of Tanzania of 1977 CAP 2 R.E 2002

BOOKS                                                                                                                      

I.G.Shivji, (2004) CONSTITUTIONAL AND LEGAL SYSTEMS OF TANZANIA, Mkuki na Nyota Publishers, Dar-es-salaam

N.Parpworth, (2004) CONSTIUTIONAL AND ADMINISTRATIVE LAW, 3^rd Edn, Oxford University Press, London

P.Jackson and P.Leopold, (2001) CONSTITUTIONAL AND ADMINISTRATIVE LAW, 8^th Edn, Sweet and Maxwell Ltd, London

                                                                                                            

MANUALS

C.K.Mtaki, (1996) CONSTITUTIONS AND LEGAL SYSTEMS OF EAST AFRICA, 1^st Edn, Dar es Salaam, Tanzania

                                                  

OTHER SOURCES

http://www.textbooksonline.tn.nic.in/Book

Aristotle

http://www.opsi.gvt.uk/revised statutes/acts/ukpga

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[1] government

[2] I.G.Shivji, Constitutional and Legal Systems of Tanzania, pg 41

[3] http://en.wikipedia.org/wiki/constitution/general-features

[4] Ibid                                      

[5] Aristotle

[6] C.K.Mtaki, Constitutions and Legal Systems of East Africa, pg 191

[7] O.Phillips, Constitutional and Administrative Law, pg 12

[8] C.K.Mtaki, Constitutions and Legal Systems of East Africa, pg 196

[9] Ibid

[10] Ibid

[11] C.K.Mtaki, Constitutions and Legal Systems of East Africa, pg 196

[12] http://www.opsi.gvt.uk/revised statutes/acts/ukpga

[13] http://www.law.anu/edu/av

[14] CAP 2 R.E 2002

[15] I.G.Shivji, Constitutional and Legal Systems of Tanzania, pg 43