Introduction
I have tried to study the rise and fall of empires, nations as political entities through the study of rise and fall of public powers of the individuals or body of individuals occupying the offices or centers of sovereign public powers and have broadly categorised the powers exercised by such sovereign public persons or body of persons into three broad classes i.e. legislative, executive and judicial capable of affecting the rights and liberties of private individuals who constituted the subjects of such sovereign public power and found that the rise and fall of the political entities of the subject nations and the strength and weakness of its subjects varied with different permutations and combinations of these different class of powers in the same or different persons. The once produced tyranny the other produced private enterprise or otherwise one helped great empires and greater political entities, the other hindered or helped to divide the political entities. It is like energy acquiring the character of force with a magnitude and direction in one case, capable of doing a work in the desired direction, the other, for the loss of direction and destruction of the work. I have tried to analyse the effects of combination of two or more powers of the above three broad classes of powers in the one or same persons in the hierarchy and its affect on the rights and liberties of the citizens as well as on the public interest by analysing the historical precedents. I have broadly analysed historical events from Greek history, Roman history, Indian history, Islamic and Christian movements, British Empire, American model of government and different combinations of the powers like political power with economic power, legislative power with executive power etc. or all the powers in one or more persons in hierarchy in the history.
I have first analysed the combinations of different governmental powers and the sources of abuse of power, then public power with private enterprise and lastly religious power with public power and their likely impact on the rights and liberties of individual persons and finally I have suggested that the personal separation of powers should be affected in all walks of public life possessing the public powers which includes the corporate power as a part of public power and the model for effecting the personal separation of power at all levels of public powers. The reader is given to critically view the correctness or otherwise of such an idea and its usefulness and practicability in the modern social public life.
Combination of Different Governmental Powers - Sources of Abuse of Power
It is axiomatic that all men are by nature endowed with certain inalienable rights including “right to life, liberty, pursuit of happiness”. When the men live in society, it is a social compact by which the whole people coordinate with each person and each person with whole people that all shall be govern by certain laws and principles for the common good. These ideas are the two reflections of historical processes formulated by the great political thinkers, among which include Plato, Aristotle, Locke, Rousseau and Hobbes.
It is axiomatic that institutions of Government are devised as a means to end and not an end in itself i.e. the Government is created by contract or otherwise to serve the welfare of the people. It is stated in the Massachusetts document “the end of Government is to secure the existence of body politics, to protect it and to furnish the individuals who compose it with the power of enjoying in safety and tranquility, their natural rights and blessings of life”. A Government which fails to serve the ends for which it was set up has breached express or implied contract under which it was established forfeiting the loyalty of it’s people and it is the right of the people to alter or to abolish it and to institute new Government, laying its foundations on such principles and organizing it’s powers in such ways as to them shall seem most not likely to affect their safety and happiness which is found in history and experience. There is always conflict between private interest and public interest when any person is vested with public power to dispense with or dispose off life, liberty and property of others. There is a tendency of that person to maximize his own self-interest in the expense of the public if there are no restrictions and checks and balances in exercise of such public power by that person. If all the public powers are vested in the same person, then the rights of the public are at peril as the person symbolizes the tyranny with no predictable rights and remedies to the public at large. The public powers have been broadly classified into three categories i.e. legislative, executive and judicial. If all such three powers vested in the same person, it is nothing but tyranny. If more than two powers combine in one person, it is still possible for abusing the public power for personal ends at the expense of the public unless there exist the clear checks and balances in system. The combining of two powers may be of either legislative and executive or legislative and judicial or executive and legislative or executive judicial or judicial legislative or judicial executive. Any one or more combination in one person may be either less or more productive of public mischief.
The first person who has critically analyzed the functioning of various governmental powers in actual working in various systems of Government and the conflicts/governmental powers with the private powers, rights and liberties of it’s people was a Montesque. He has declared the doctrine of separation of powers to minimize the abuse of governmental powers by persons vested with public powers. He has studied various constitutions and systems of government and found that the personal separation of powers is the best guarantee against the arbitrary powers and control over the life and liberty of its subject and the said doctrine was further expounded and adopted by the framers of the American Constitution and incorporated the same in their Constitution.
The doctrine of separation of powers implying personal separation of powers, was stated by the Montisquo in the following words.
“ When the legislative and executive powers are united in the same person, or in the same body or magistrates, there can be no liberty. Again, there is no liberty if the judicial power is not separates from the legislative and executive powers. Where it joined with the legislative power, the life and liberty of the subject would be exposed to arbitrary control; for the Judge would then be the legislator. Where it joined with the executive power, the Judge might behave with violence and oppression. There would be an end of everything were the same man or the same body to exercise these three powers…”
The same was understood and expounded by the Madison in the pederlist No.47 as “The accumulation of all powers, legislative, executive and judicial, in the same hands whether of one, a few, or many and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny”.
I totally agree with the said observations and findings and anything less than that is productive of abuse of public power and public mischief.
All powers can be divided into two categories i.e. public power and private power. It can further be stated that public power includes all powers that is not purely private power. The sovereign power exercise by the state bodies is a part of the public power. This can also be stated in its converse i.e. public interest and private interest. The inter-relationship between these two powers is a continuing one. It is not static. It always remains in a dynamic disequilibria.
A study of this dynamic disequilibria of the relevant historical period consists in the analysis of the various branches of social life. Time becomes an important variable in the study of these relationships. The science and technologies, material progress and the institutional arrangements in the social life affects the power, structures and equations and which in turn also affects the science and technology, material progress and social institutions. It can be said that there will be a dialectical relationship between these institutional and the power structures and material progress.
For instance, you take the economic laws, an individual if acting as an entrepreneur as a producer, will try to maximize his economic interest and profit by using all powers at his disposal and when the same person acts as a consumer, will try to maximize his utility given the budget constraint. It is in tune with law of nature. But if the same person is holding the public power at his command, the conflict of his public duty with the tendency of an individual as a human being to maximize his self-interest either in the form of maximizing his own profit or maximizing his own utility is writ at large. Various devices have been suggested and practiced by people to minimize this conflict of interest.
In the case of sovereign state powers and the offices created to exercise such powers, the powers and the offices have been broadly classified into three categories i.e. legislative, executive and judicial. Each of these state powers have the capacity to affect the rights and liberties of the private persons and citizens rights, liberties and properties. Therefore, every person desires that the said powers should be so exercised as to not to affect their rights, liberties and properties and even if they take any decision, which affects their interest, there should be reasonable safeguards and on certain principles of predictability. They always entertain an apprehension that if more power is concentrated in such persons holding the public offices, their rights and liberties are at peril. In the history, it is true that the person holding the public power always mixed it with his private interest and the same will become a threat to the interest of the public. When dictatorial powers are conferred or usurped by certain individuals or bodies of individuals, they always tended in the end as capable of being exercised for their private ends. Therefore, the people demanded for establishment of institutions which divides these powers into separate persons as a checks and balances system for due exercise of the public powers. The British legal history is an illustration of this process where judicial powers have been separated from the King and so also the legislative powers while the King was exercising royal prerogative as the State head of executive. But the British form of Government later times combined the executive though separate, but yet forming part of legislature and responsible to the legislature did not totally separate these two wings. The relationship between the executive and legislatures in British form of Government has become an embodiment of same person capable of exercising both legislative and executive powers making the crown titular head. If the leader of the majority party in the Legislature is elected as the Prime Minister as the executive head of the State, he is representing in a way the head of the executive i.e. combining two powers in one person. In case of American form of Government, the powers are separated, the mode of electing the heads of these three wings are separated and fine tune of checks and balances system has been evolved to check the powers and also to meet the emergency situations. A study of Roman, Greek and experience also indicates the evolution of separation of powers theory. But separation of powers theory in practice and during the end of the period before institution of the concept of emperor, the executive became too powerful with all the military powers at his command with all political rivals removed and the other institutions of legislative and judicial wings too weak to resist the persons occupying the office with dictatorial ambitions of subverting all the powers and institutions to their private ends.
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