John Locke in the 17th Century wrote that: “The three organs of state must not get into one hand… It may be too great a temptation to human frailty, apt to grasp at power for the same persons who have the power of making laws, to have also in their hands the power to execute them, whereby they may exempt themselves from obedience to the laws they make, and suit the law, both in its making, to their own privilege advantage and execution” (The Second Treatise of Civil Government (1689)).
This was further developed by a French Jurist, Baron Montesquieu. His writings were based on his exposure to the British Constitution in the early 18th Century. In the words of Montesquieu: “When the legislative and executive powers are united in the same person or in the same body of Magistrates, there can be no liberty… Again, there can be no liberty if the power of judging is not separated from the legislature and the executive. If the judicial power was joined with the legislature, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. If it were joined to the executive power, the judge might behave with violence and oppression. There would be an end to everything, if the same man, or the same body, whether of the nobles or the people, were to exercise those three powers, that of enacting laws, that of executing public affairs, and that of trying crimes or individual causes”. (Constitutional Law and History of Ghana (2009)).
In Youngstown Sheet and Tube Co. v Sawyer, President Truman ordered a seizure of the USA’s steel mills which were threatened with industrial strikes without congressional approval. On challenge, the court held that such a power could only be derived from the constitution and no such power had been granted by the constitution, and this power, cannot be implied.
The USA President in the Youngstown case, clearly attempted to usurp the powers of the legislature, thus congress, which the court without fear or favour, proceeded to curb the wings of the President. Had the court not taken this decision, in the words of Montesquieu: “… the life and liberty of the subject would be exposed to arbitrary control”.
Alhassan Salifu Bawah
(son of an upright peasant farmer)