Separation Of Powers Is Explicit On The Constitutional Powers Of The 3 Arms Of Government

Michael Richmond Smart-Abbey, PhD

Sovereignty emanates from the people and should be exercised in trust in accord with will of the People according to the 1992 Constitution of Ghana. The 4^th Republic of Ghana practices and Constitutional Democracy rooted in Separation of Powers authored by Baron de Montesquieu, Charles-Louis de Secondat; “The Spirit of the Laws” that describes forms of government of any Sovereign State. So, Baron propounded the three [3] Arms of Government; The Executive, The Legislature and The Judiciary to administer governance on the rocks of Rule of Law and respect to human rights and civil liberties that defines Democracy as government of the People, by the People and with the People. Therefore, Baron’s expositions in the “Spirit of the Laws” connote that Democracy stands with the People and not the Sovereign Power. Upon this “Medieval Political Thought” that the Constitutions of many Sovereign States were written and promulgated into Laws which is best practiced in Western Democracies..

Montesquieu was one of the great political philosophers of the Enlightenment. Insatiably curious and mordantly funny, he constructed a naturalistic account of the various forms of government, and of the causes that made them what they were and that advanced or constrained their development. He used this account to explain how governments might be preserved from corruption. He saw despotism, in particular, as a standing danger for any government not already despotic, and argued that it could best be prevented by a system in which different bodies exercised legislative, executive, and judicial power, and in which all those bodies were bound by the rule of law. This theory of the separation of powers had an enormous impact on liberal political theory, and on the framers of the constitution of the United States of America. He was born on January 19th, 1689 at La Brede, near Bordeaux, to a noble and prosperous family. He was educated at the Oratorian College de Juilly, received a law degree from the University of Bordeaux in 1708, and went to Paris to continue his legal studies. On the death of his father in 1713 he returned to La Brède to manage the estates he inherited, and in 1715 he married Jeanne de Lartigue, a practicing Protestant, with whom he had a son and two daughters. In 1716 he inherited from his uncle the title Baron de La Brède et de Montesquieu and the office of Président à Mortier in the Parlement of Bordeaux, which was at the time chiefly a judicial and administrative body. For the next eleven years he presided over the Tournelle, the Parlement's criminal division, in which capacity he heard legal proceedings, supervised prisons, and administered various punishments including torture

So, Separation of Powers [SOP] is a key proponent of Baron De Montesquieu political theory of Governance. It was couched “Le Siec Du Humaire” [Spirit of the Law, 1748] which forms the basis of the establishment of the 3 Arms of Government i.e. The Executive, Legislature and the Judiciary. Montesquieu argued that each power should only exercise its own functions that; when Legislative and Executive powers are united in same person or in the same body of Magistrate, there can be no liberty because apprehension may arise, lest the same monarch or senate should enact tyranny laws to execute them tyrannically. Again Montesquieu argues that there is no liberty if the Judiciary is not separated from the Legislature and the Executive. Were it joined with the Legislative, the life and liberty of the subject would be exposed to arbitrary control; for the Judge will then be the Legislator. Were it is joined to the Executive powers; the Judge may behave with violence and oppression. There would be an end to everything, were the same body, whether of nobles or of the people, to exercise those three powers that of enacting laws, executing the public resolutions and trying the causes of individuals. Because, the judiciary ought to be independent and unchecked, Montesquieu then resolved that the independence of the judiciary ought to be real and not apparent. End.

So, with reference to Montesquieu Theory of SOP, it is explicit on the functions of the 3 Arms of Government that when one tries to exercise superior power over the other it breeds conflict and there would be no liberty. That if the Legislative powers is joined to the Executive or same as Judiciary, there will be no liberty, that if the Legislative powers is joined to the Judiciary, It would exercise arbitrary control and the Judge may behave with violence and oppression. These disputes that Montesquieu settled in the separation of powers is what has arisen in the legal framework of Ghana in recent times—the conflict between the Legislature and Judiciary which can largely be resolved by Constitutional Review to ensure that the 3 Arms of Government conforms to the status quo of the SOP Theory of Governance. So, with reference to the Speaker of Parliament declaring 4 seats of parliament vacant, it is in line with the standing order of Parliament which Parliament applying to which the Judiciary has no jurisdiction over. This is because Parliament is exercising application of its Standing Orders of Article 97 clause 1h and g and not interpreting Laws. However, it is the Legislature [Parliament] that makes Laws that are binding on the State. The SOP clearly identifies that anytime the Judiciary interferes in the work of the Legislature, it assumes the role as Legislator and when the Judiciary is influenced by executive powers against the Legislature, the Judiciary exercises arbitrary powers which is violence and oppressive to the legislature.

Thus, Baron argues that Democracies can be corrupted in two ways: by what Montesquieu calls "the spirit of inequality" and "the spirit of extreme equality" (SL 8.2). The spirit of inequality arises when citizens no longer identify their interests with the interests of their country [When few citizens takes decision for the Country against the Larger interest of the Country] and therefore seek both to advance their own private interests at the expense of their fellow citizens, and to acquire political power over them [Oppression]. The spirit of extreme equality arises when the people are no longer content to be equal as citizens, but want to be equal in every respect [When the Executive denies the people Social Contract]. So, Baron reiterates that in a functioning democracy, the people choose magistrates to exercise executive power, and they respect and obey the magistrates they have chosen. If those magistrates forfeit their respect, they replace them. When the spirit of extreme equality takes root, however, the citizens neither respect nor obey any magistrate. They "want to manage everything themselves, to debate for the senate, to execute for the magistrate, and to decide for the judges" (Spirit of the Laws, SL 8.2). Eventually the government will cease to function, the last remnants of virtue will disappear, and democracy will be replaced by despotism. This predicament that the SOP cease to occur as risen in how the SOP theory is being misapplied in Ghana by means of abuse of Constitutional Powers of the Judiciary. That is what the Executive and the Judiciary are doing, suppressing and usurping the Constitutional mandate given to the Legislature which contravenes the dictates of the “Spirit of the Laws” Doctrine routed in the SOP Theory. The independence of the Legislature [Parliament] has been abused which the SL theory describes as violence and oppressive which will breed conflict within the SOP as in the 3 Arms of government which have co-equal powers in the exercise of their mandates.

In the light of this development, the decision by Parliament to declare 4 seats vacant is valid and stands the test of time routed in the SOP theory and must be uphold by the Legislature [Parliament] in the spirit of the Laws that establishes the 3 Arms of Government. In doing so, it is imperative to note that The Supremacy of the Judiciary does not extend to the Legislature that has co-equal powers with the judiciary under SOP except on the matter of Interpretation of the Law but where the decision of Parliament matters on application of Standing Order which there has been precedent and not Interpretation of the Laws, then the Judiciary [Supreme Court] has no jurisdiction over Parliament to injuct or stall a decision of Parliament. This means that the Judiciary, the Supreme Court have no jurisdictional powers to overturn a decision of Parliament let alone a stay of execution on a Parliamentary decisions except when it resolves to interpret a CI or an LI of Parliament. Stay of Execution is granted on judgment of a court ruling not parliamentary decisions. Nonetheless, there is nowhere in the Constitution that mandates the Judiciary to quash a ruling of the Legislature which represents people’s power. Parliament has its own laws and standing orders. Those are not subject to Judiciary interference let alone to quash a decision of Parliament which Montesquieu explained in detail in the SOP Theory. So, in our current predicament as a country, one could say that the Apex Court decision to grant stay of execution on the subject ruling of Parliament is scandalous and violates the rights and civil liberties of the Parliament of Ghana thus, the decision of the Apex Court is not binding on Parliament who exercises its mandate without interference of the Executive and the Judiciary by the powers vested to the Legislature by the SOP. What the Supreme Court has done is to wage war on the Legislature and on natural justice and rule of Law which could breed conflict as Baron argues.

The Apex Court has exercised arbitrary powers over the Legislature which is oppressive and violent as stated in the SOP Theory that, when Executive powers is joined with the Judiciary conflict arises. That is exactly what the NPP Caucus and the Judiciary seeks to do which Parliament must resist and ensure that all deliberations and decisions of Parliament are binding on all Parliamentarians and should be uphold by the Judiciary and the Executive. So, as it stands the NDC remains the Majority Caucus in Parliament and any attempt by the Judiciary to stampede on the legitimacy of Parliament could amount to contempt of Parliament and overthrow of the 1992 Constitution for which reason, the Judiciary must be summoned by parliament to appear before it to face the full rigor of the Law and procedure. If the Supreme Court decision stays, conflict will arise between the Judiciary and Legislature which many Ghanaians alleges that the Executive has joined the Judiciary to persecute the Legislature in order for the Executive to have full control over the 3 Arms of Government. When this happens, the 8^th Parliament will end abruptly and prematurely. Parliament will cease to function and government businesses ceases until next year. If the Apex Court ruling stays, one day a citizen will run to Court when the President declares a State of Emergency to stay execution of the President decision who has the powers to do so and who himself is not above the Law.

To conclude, Montesquieu argues in the SOP Theory that in a democracy, the people are sovereign. They may govern through ministers, or be advised by a senate, but they must have the power of choosing their ministers and senators for themselves. The principle of democracy is political virtue, by which Montesquieu means "the love of the laws and of our country" (SL 4.5), including its democratic constitution. The form of a democratic government makes the laws governing suffrage and voting fundamental. The need to protect its principle, however, imposes far more extensive requirements. On Montesquieu view, the virtue required by a functioning democracy is not natural. It requires "a constant preference of public to private interest" (SL 4.5); it "limits ambition to the sole desire, to the sole happiness, of doing greater services to our country than the rest of our fellow citizens" (SL 5.3); and it "is a self-renunciation, "the whole power of education is required" (SL 4.5). A democracy must educate its citizens to identify their interests with the interests of their country, and should have censors to preserve its mores. It should seek to establish frugality by law, so as to prevent its citizens from being tempted to advance their own private interests at the expense of the public good; for the same reason, the laws by which property is transferred should aim to preserve an equal distribution of property among citizens. Its territory should be small, so that it is easy for citizens to identify with it, and more difficult for extensive private interests to emerge. So, the clarion call by Ex- President and Presidential Candidate of the NDC in the upcoming general elections for Constitutional Review is apt and in right direction in order to resolves the entire Constitutional crisis that has arisen out of the various conflicts between the 3 arms of government. Ghanaians should support this call in order to purge the Judiciary which is perceived by many Ghanaians to be corrupt and doing the bidding of the Government in Power, the NPP.

God bless Our Homeland Ghana and make our Nation great and strong.

Article By
MICHAEL RICHMOND SMART-ABBEY, PHD [POLITICAL & PUBLIC POLICY ANALYST, GOVERNANCE AND SECURITY EXPERT, WRITER & AUTHOR, COLUMNIST: MODERN GHANA NEWS WEBSITE, ICA TV NEWS AND EVENING TRIBUNE NEWS PAPER] [email protected]

REFERENCES
1.Wikipedia
2. Stanford Encyclopedia of Philosophy