Unless power is checked, you cannot have liberty
"… it is requisite the government be so constituted as one man need not be afraid of another."
— Montesquieu, The Spirit of the Laws
PUBLISHED in 1748, Montesquieu's The Spirit of the Laws remains, after over 250 years, one of the seminal works of political theory. Among this Age of Enlightenment philosopher's preoccupations was the relationship between power and freedom, and how the distribution of power in a government can be the crucial factor between a state of liberty and one of despotism. In exploring this theme—how best liberty can be preserved in a system of government—he developed on the idea of the separation of powers, which is now taught in school-level social science, and which has since become one of the most accepted ideas of how a state should be structured. And though much of modern state structures and constitutions can be traced back to this ideal, all over the world overt and covert attempts can be witnessed today for the powers that be to consolidate these distinct powers. And for that reason, whether as a basis of argument in showing the importance of this separation or for debate into how exactly this balance can be achieved, Montesquieu's political thinking continues to be an important part of global political discourse.
Put briefly, every government, whatever be its form, has three powers: the executive, the legislative and the judiciary. Independent of each other, the three can function to keep each other in check, curtail abuse, prevent consolidation of power, and—of supreme importance to Montesquieu as evident from the quote above—ensure the liberty of the "subject." He goes on to explain his logic why this concentration of power is undesirable. In summary, if the same body were to be in charge of framing the law and of executing it, there would be apprehensions of "tyrannical laws" made to be executed in a "tyrannical manner." Again, if the legislative and the judiciary were one, "the life and liberty of the subject would be exposed to arbitrary control," since the judge would be the formulator of the law. And, probably most importantly, were the executive and the judiciary consolidated, then threat arises that one's judge "might behave with violence and oppression."
This principle is enshrined in most constitutions of today. Writing of the failure of the Congress to hold the US Executive to check in 2017, Mickey Edwards, a former term member of Congress, wrote: "Presidents have managed to accumulate such a prominent place at the top of what is now increasingly a pyramid rather than a horizontal structure of three connected blocks because for more than a generation, Congress has willingly abandoned both its constitutional responsibilities and its ability to effectively serve as a check on the executive even when it wishes to do so." The separation of powers does not, it seems, sit well with strongmen leaders. President Trump was all fire and fury when the courts declared his travel ban illegal (although, in 2018, a later version of the ban was upheld by the Supreme Court).
In the first Constitution of Bangladesh which came into effect on December 16, 1972, the model of state set out was a parliamentary system, patterned after the Westminster model. In it, the separation of powers was provided for, and the functions of each laid out. But as Nizam Ahmed in a research paper titled "Executive-Judiciary Relations" points out: "However, since the constitution provided for a cabinet government, with the executive owing its origin and remaining collectively responsible to the parliament, no complete separation was possible." This overlap between the executive and the legislative is present in almost all parliamentary systems—what was the primary concern in the Constitution was of the separation of the executive and judiciary. A system of checks and balances, which was in effect all thrown to the dust in 1975, was ordained by the Constitution, so that the judiciary could remain independent in its duties, and hold to account the actions of the executive and the legislative. And though limitations to the extent of the independence of the judiciary have been pointed out—for example, the lack of power to enforce its directives and the immunity of MPs among others—the framers of the Constitution were clearly striving to strike the right balance of power between the three powers.
Inaccurate as it was on Montesquieu's part to see the structure of England laid out in his ideal way, his logic is well established in the brief chapter—concentration of power leads to despotism and is dangerous for liberty. Thus, in his reasoning, with the separation of the three powers, there can be liberty in a monarchy; without, there can be none in even a republic. His idea of liberty, at least in the political sense, is the exercise of one's will limited by the rights of others, the unlimited freedom to do as one will after consideration of the rights of the collective. Thus, in his treatise, even the liberty of the state is checked by this separation of powers to ensure that no man needs be afraid.
Much has of course changed since Montesquieu wrote The Spirit of the Laws. But it is not in the specifics that he remains important to representative democracies today. It is for the principle—that the powers of the state should be checked by each other. His interests in other cultures and states led him to examine the forms of government and distribution of power and see where liberty is best attained. His warning that this concentration of power can lead to despotism (populist or otherwise) even in democratic structures remains undoubtedly relevant. In effect, Montesquieu's ideal of complete separation of powers is probably unattainable. His work clearly shows that by separation, he did not mean unconnected, but rather a structure where the three parts serve the whole, but also strive towards checking the disproportionate increase in each other's powers.
Following Montesquieu's line of thought, it stands that the sometimes so-called fourth power, that is the media, though not part of the state structure, because of its essentially public-service nature, must also remain separate and independent. The US Constitution, which owes much of its spirit to the works of Montesquieu and his peers, through the first amendment of the Bill of Rights, established that principle: no law shall be passed that can potentially prohibit the free exercise of the freedom of speech, or of the press. Relatively younger, we as a nation incorporated these rights and the state structure's mechanism for checks and balances in our Constitution when it was drafted. How strongly we have strived since then to ensure that this ideal is translated to reality is a different question altogether.
Moyukh Mahtab is a member of the editorial team at The Daily Star.