Islam’s View on Separation of Powers

By: Ayatullah Professor Muhammad Taqi Misbah Yazdi
Another subject which needs to be dealt with at present is the separation of powers and government responsibilities. According to Islam, the government does not have a specific form or type suitable to a society with particular characteristics. According to Islam, the government may have a structure or form which is suitable to a small society composed by a limited number of families, or to a country with one billion-strong population or even a global society. Naturally, all the responsibilities and special functions of the government that bespeak of the raison d’être of the state—especially in densely populated societies—cannot be shouldered by a single or two persons.
Issues related to internal security, defense against foreign enemies, supervision of economic activities and international affairs, conduct of international relations, the observance of Islamic rites and the implementation of Islamic laws are also extremely heavy responsibilities. So, the option is to have division of labor. This division of labor can be done in two ways, viz. horizontally and vertically. That is, both sections of government activities are located in two separate compartments comprising two triangular shanks which do not intersect each other at the middle and finally end at the top of the pyramid.
In plain language, the best and most expressive similitude of government is a pyramid, hence, the term “pyramid (hierarchy) of power” has been chosen by political philosophers for government. The hierarchy of power is like a pyramid which has its own specific features. It consists of a triangular base and different sloping sides that meet in a point at the top.
Once we consider the government in its general sense, each side of the pyramid represents a section of government responsibilities. Based on the division of power in the political and legal philosophy of Montesquieu government power is divided into three branches—legislative, judiciary and executive—the three ‘sides’ or sections of government deal with legislation, adjudication and implementation. One part of government activities consists of codifying general and particular laws and ordinances; another part is related to the resolution of conflicts and differences according to law; yet another part deals with implementation of laws and management of society.

Grounds for overlapping of functions
It is true that division into three is appropriate and proper, but it must be noted that drawing dividing lines is not an easy job. In practice we can never totally remove enactment and codification of laws and ordinances as well as ratification of bylaws from the executive branch and not allow executive power at any level to engage in the enactment of executive orders and bylaws. Nowadays, in all democratic countries that have recognized the separation of powers, there is willy-nilly a degree of overlapping between legislation and implementation. The most evident form of overlapping of functions can be observed in parliamentary systems. Meanwhile, democratic systems are classified into two: parliamentary and presidential:
1. The parliamentary system of government is formed on the basis of the fusion of power. That is, all powers are concentrated in parliament. After the election of members of parliament (MPs) from among electoral candidates of various parties and the formation of parliament, high-ranking executive officials, such as the premier and cabinet ministers are elected from among the MPs. Under this system, parliament grants authority to ministers to head different ministries and it may also take back that authority.
2. The presidential system of government is based on the principle of separation of powers. Under this system, the president or chief executive is not elected by congress. Ministers are directly appointed by the president and the legislature cannot remove them. Reciprocally, the legislature is separate and independent from the executive. Under this system, the essential and irreconcilable difference between membership in congress and membership in cabinet is that the president cannot appoint an MP to a cabinet position unless the said MP resigns from his post in congress.
In the presidential system the president is directly elected by the people, and an overlapping of functions is observed. The codification of some ordinances and bylaws is delegated to the cabinet of ministers. Nowadays, in our country an executive order is legally sufficient to undertake some social, economic and other transactions. That is, the cabinet holds a meeting, and after a series of discussions and deliberations, issues an order which it also implements. Thus, the cabinet has been authorized to enact and ratify a set of ordinances in some cases.
Meanwhile, the function of parliament is legislation and ratification of bills but it also assumes executive functions in some cases. For example, signing contracts with foreign states is an executive matter, and as a rule, the executive has to directly sign them, but because of the importance and sensitivity of this issue, observance of all precautions, prevention of any abuse, essential scrutiny of the conditions of such contracts and necessary investigations and precautions are observed by the cabinet, then deliberated upon by the legislative house and implemented only after ratification and approval by the deputies.
In conclusion, the notion of separation of powers demands that the three powers—judiciary, legislative, executive—function independently but in practice there is overlapping of functions experienced by the varying political systems in the world. Of course, the more the separation of powers is observed, the more autonomous each power will be, and the chances of abuse of power and interference in each other’s functions will automatically decrease.