Montesquieu
Montesquieu was the person in charge in introducing the concept of separation of power indirectly back in 18th century when he published his masterpiece book called ‘The spirit of the Laws’. In order to have better understanding of the concept itself, it is better to get to know the person behind the theory.
According to Stanford Encyclopedia of Philosophy, Charles-Louis de Secondat, Baron de La Brede et Montesquieu was born January 19th 1689 at La Brede, a place in France. He had his education at the Oratorian College de Juilly, then pursue in University of Bordeaux as a Law student. After receiving his law degree in 1708, he then went to Paris to continue his legal studies. He had then inherited his uncle’s title of Baron de La Brede et de Montesquieu and office of President a Mortier in the Parliament of Bordeaux.
Montesquieu’s major masterpiece works are the Persian Letters and The Spirit of the Laws. Both of his work were acknowledged worldwide and fascinated especially by non-European. The Persian Letters is a novel consisting of letters sent to and from two fictional Persians, who set out for Europe in 1711. One of the great themes of the Persian Letters is the virtual impossibility of self-knowledge portrayed by the character.
His second masterpiece is called ‘The Spirit of the Laws’. In which the book was aim to explain human laws and social institutions. According to Montesquieu positive laws and social institutions are created by a fallible human being who are subjected to ignorance and error. He believes that the key to understand different laws and social system is to recognize that they should be adapted to a variety of different factors. He holds the idea of power should be separated so that it would not be abuse. For such, there should be three sorts of power in every government, which are the legislative, the executive and the judiciary.
Montesquieu was one of the great political philosophers of the Enlightenment. He constructed a naturalistic account of the various forms of government and that made them what they were and that advanced or constrained their development. He used this account to explain how government might be preserved from corruption. He later passed away on February 10, 1755 in Paris, at the age of 66.
Separation of Power
Montesquieu once stated in his book The Spirit of Law in 1748: “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty…there is no liberty if the powers of judging is not separated from the legislative and executive… there would be an end to everything, if the same man or the same body… were to exercise those three powers.”
The definition of separation of power according to Legal information institute is a political doctrine of constitutional law under which the three branches of government; executive, legislative and judiciary. This concept of separation of power were meant to prevent any existent of absolute power, concentration of power, as well as the abuse of power. Each branch of government carries distinct responsibilities which limits any one branches from exercising core function of another.
The legislative branch of government is responsible for enacting the laws of the state and appropriating the money that is necessary to operate the government. While, the executive branch are the body that responsible to implement and administer the public policy enacted and funded by the legislative branch. Furthermore, the executive main job is to enforce all the law written by the legislature and had been interpreted by the judiciary. The executive can be the source of certain types of law, such as a decree or executive order. Whereas, the judicial is the authoritative body that is responsible for dealing with all legal cases involving the government responsible for interpreting the constitution and laws.
Islamic Perspectives
According to a journal titled ‘Separation of Power: an Islamic Perspective’ by Mohammaad Hashim Kamali (2008), the author relates the concept of separation of power with the concept of Syariah and the concept of Tawhid in Islam. In terms of executive centralism in Separation of power, quoted from the author:
“To say that caliphate had no place for separation of powers is predicated on the analysis that the caliph is designated into office by the people according to the principles of wakāla (representation) and walāya (delegated authority that originally belongs to the umma). The head of state, being the wakīl or representative of the community by virtue of a contract of agency/representation thus becomes the repository of all political power.”
In which, we can understand that the existence of executive is align with Shariah. Thus, many Muslim countries applies the same mechanism of legislators as the body that creates law based on the Shariah. The main differ may be on the limit of the power possess in western country and Muslim country. Meanwhile other commentator, such as Wahba al-Zuhaily wrote on his comparative note:
“Islam validates the principle of separation of powers. This is because legislation in Islam ensues from the Qur’an and Sunna, consensus (ijmāʿ) of the umma, and ijtihād. The principle of ijmāʿ in Islam manifests the will of the people. Both the Islamic and western democracies reject despotism and consider the people as the locus of authority in political and government affairs.”
For the next division of power, the legislation, Islamic perspective on this one is that there is no place for independent legislation to take place and no separate legislative organ is needed to fulfill that role as the Shari’ah can limit and take over the legislative powers of the state itself. Nonetheless, the existence of legislative is still permissible as long as it does not go against the Shari’ah, but there is still other opinion upon this matter.
Regarding the third division of power, the Judiciary, in Islam it is considered as a major preoccupation of Islam and Shari’ah and great reward be given to those who administer justice. Islam highlight on the importance of prevailing justice (‘adl) and was mentioned a lot in the holy Quran touching on injustice and oppression (zulm) as a reminder. Therefore, the judiciary element in Islam is very much accepted in Shari’ah in order to restore peace and justice. Quoted from the author Hashim Kamali:
“Judgment (qaḍā’) is by definition a declaratory task that is vested in the judge; the latter ascertains the ruling of Shari’ah and declares its application to a dispute before him. The judge does not, in other words, create a ruling (ḥukm) in the absence of any evidence in Shari’ah.”
To conclude, the separation of power is not a substantive principle of Shariah, but the elements content in it is partially similar the judicious policy (siyasah shar’iyyah) and well accepted in Islam for making better government and satisfy public interest.
This comes to the question of why some so-called “Islamic countries” do not practice or apply this democratic concept of separation of power if it is not against the religion? Well, that’s simply because of politics and power, not much to do with religion.
Aisyah Hadi is a Political Science degree holder from International Islamic University Malaysia (IIUM). Currently pursuing her study in Master of Strategic and Defense Studies in Universiti Malaya (UM).
The views expressed in this article are the authors’ own and do not necessarily reflect Ajar Demokrasi editorial stance.
