Montesquieu #SeparationofPowers #அதிகாரப்பங்கீடு #மாண்டெஸ்க்யூ

#மாண்டெஸ்க்யூவின் #அதிகார_பங்கீடு

#Separation_of_Powers

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மாண்டெஸ்க்யூவின் அதிகார பங்கீடு (Separation of Powers) படி நாடாளுமன்றம், நீதிமன்றம், ஆட்சியாளர்கள் தங்களுக்கு ஒதுக்கப்பட்டுள்ள அதிகாரம் என்ற வரம்புக்குள் மக்கள் நல அரசில் மக்கள் நலப் பணிகளை ஆற்றவேண்டும். நீதித்துறை, நாடாளுமன்றம், ஆட்சியாளர்கள் வரம்புக்குள் இருந்து இயங்கவேண்டும்.   ஒன்றின் மீது ஒன்று ஆதிக்கமோ, அதிகாரமோ செலுத்தினால், ஆரோக்கியமான குடியாட்சி இல்லாமல் குழப்பங்கள்தான் ஏற்படும். 

Montesquieu's most influential work divided French society into three classes (or trias politica, a term he coined): the monarchy, the aristocracy, and the commons. Montesquieu saw two types of governmental power existing: the sovereign and the administrative. The administrative powers were the executive, the legislative, and the judicial. These should be separate from and dependent upon each other so that the influence of any one power would not be able to exceed that of the other two, either singly or in combination. This was a radical idea because it completely eliminated the three Estates structure of the French Monarchy: the clergy, the aristocracy, and the people at large represented by the Estates-General, thereby erasing the last vestige of a feudalistic structure.

The theory of the separation of powers largely derives from The Spirit of Law:

‘IN every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law.’

‘By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions. By the third, he punishes criminals, or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other, simply, the executive power of the state.’

— The Spirit of the Laws, Book XI[19][20]

Montesquieu argues that each Power should only exercise its own functions, it was quite explicit here:

‘When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.’

‘Again, there is no liberty if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.’

‘There would be an end of every thing, were the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.’

— The Spirit of the Laws, Book XI[19][20]

If the legislative branch appoints the executive and judicial powers, as Montesquieu indicated, there will be no separation or division of its powers, since the power to appoint carries with it the power to revoke.

‘The executive power ought to be in the hands of a monarch, because this branch of government, having need of dispatch, is better administered by one than by many: on the other hand, whatever depends on the legislative power, is oftentimes better regulated by many than by a single person.’

‘But, if there were no monarch, and the executive power should be committed to a certain number of persons, selected from the legislative body, there would be an end of liberty, by reason the two powers would be united; as the same persons would sometimes possess, and would be always able to possess, a share in both.’

— The Spirit of the Laws, Book XI[19][20]

Likewise, there were three main forms of government, each supported by a social "principle": monarchies (free governments headed by a hereditary figure, e.g. king, queen, emperor), which rely on the principle of honor; republics (free governments headed by popularly elected leaders), which rely on the principle of virtue; and despotisms (enslaved governments headed by dictators), which rely on fear. The free governments are dependent on fragile constitutional arrangements. Montesquieu devotes four chapters of The Spirit of the Laws to a discussion of England, a contemporary free government, where liberty was sustained by a balance of powers. Montesquieu worried that in France the intermediate powers (i.e., the nobility) which moderated the power of the prince were being eroded. These ideas of the control of power were often used in the thinking of Maximilien Robespierre.

Montesquieu advocated reform of slavery in The Spirit of Law. As part of his advocacy he presented a satirical hypothetical list of arguments for slavery.

இதைப்பற்றி பிரணாப் முகர்ஜி டெல்லியில் நடந்த கூட்டத்தில் பேசியுள்ளார். அரசியலமைப்பு சட்டம்தான் பிரதானமானது. நாட்டை வழி நடத்தும் ஜீவன் ஆகும். அதன் வழி நடப்போம். அதிகாரப் பங்கீடு என்ற மாண்டெஸ்க்யூ தத்துவத்தின் அடிப்படையில் நம்முடைய குடியாட்சி பணிகளை நமக்கு நாமே மேற்கொள்வோம் என்று கூறியிருந்தார்.

அதன் ஆங்கிலப் பதிவு இதோ-

Cautions Against Judicial Activism

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Pranab Mukherjee cautioned judges against the perils of “judi cial activism“, saying the equilibrium in the exercise of authority must be maintained at all times and self-restraint should be used when confronted with such a situation.

Maintaining that the Constitution is supreme, Mukherjee said: “Each organ of our democracy must function within its own sphere and must not take over what is assigned to the others.“

“Judicial activism should not lead to the dilution of separation of powers, which is a constitutional scheme. The balance of power between the three organs of the State is enshrined in our Constitution,“ he said, stressing that “the Constitution is supreme“. The president said that the equilibrium in the exercise of authority must be maintained at all times and noted that the exercise of powers by the legislature and executive is subject to judicial review.

“However, the only check possible in the exercise of powers by the judiciary is self-imposed discipline and self-restraint by the judiciary itself,“ he said, while inaugurating the fourth retreat of the judges of the Supreme Court at the National Judicial Academy in Bhopal.

Mukherjee said that the independence and integrity of the judiciary is “of the highest importance, not only to the judges but also to the people at large who seek judicial redress against perceived legal injury or executive excess“.

He also lauded the judiciary for “enlarging the scope of justice“ in a developing country like India.

“For the enforcement of our develop ing country, our judiciary has enlarged the scope of justice. For the enforce ment of fundamental rights, the Su preme Court, through judicial innova tion and activism, has expanded the common law principle of `locus stan di',“ he said.

The president further noted that “it has been made possible for courts to permit anyone with sufficient interest and acting bona fide to maintain an action for judicial redress and to activate the judicial process“.

“In the support of rights, courts have found a postcard written by a citizen or newspaper article to be material enough to set off judicial action.This has helped to bring justice closer to the common man,“ he said.

#Montesquieu

#SeparationofPowers  #அதிகாரப்பங்கீடு 

#மாண்டெஸ்க்யூ

-கே.எஸ். இராதாகிருஷ்ணன். 

20-04-2020

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