Formal checks on executive power result from constitutional limitations. Restraints are the core of constitutionalism and hence some system of restraints is central to the constitution of any regime that aspires to constitutional government.
Simply by establishing the framework of government, any constitution in a measure acts as a restraint on power. Provision of specific ways and means for governmental action by implication forbids others.
But constitutions go further and specifically limit powers by stating the bounds of governmental authority and by establishing fixed and fair procedures for governmental action. The rules are guaranteed against arbitrary action by governors, that is, men are to be governed only by law.
The rule of law is probably the deepest and strongest tradition of constitutionalism and it has been the central aim of constitutional reform in all lands. Rule of law is nothing more nor less than the principle that public authorities hold and derive their powers and exercise those on the basis of specific provisions of the constitution or the laws made there under, and that every act of every person occupying elective or appointive office is done under the authority of law.
All such acts are subject to judgment and control by appropriate legal authority as to whether they were in fact justified by law. Where the action of any public authority infringes or abridges his fundamental rights, that legal authority must be a court of law.
As a corollary of this principle, those who act on behalf of the government are personally answerable for any illegal act and are liable to trial or civil action for any wrong they may do. No servant of the State can claim special privileges or immunities.
But the most meaningful check on the behaviour of the executive results from the glare of publicity shone by free press and from the presence of an organized Opposition. A free press presents news, expresses opinion, disseminates knowledge, and helps in moulding and shaping public opinion. Political executive in a constitutional democracy is accountable for what it does and there is a periodical and daily assessment of its policies and programmes.
The Opposition criticises and exposes the government, press gives it wide publicity and the electorate takes them to task at the next general election. For a constitutional regime responsible Opposition is indispensable. It is not only a restraining factor on governmental behaviour but also an expression of loyal discontent. It possesses a real chance to become the government in the future.
Diligent and responsible Opposition is, therefore, the major check which a democratic regime provides upon corruption, defective administration and abuse of authority. Jennings has aptly said that dictators who have to appeal to the country at frequent intervals are the servants of the people and not their masters.
Even in democratic regimes references are often made to President or Prime Ministerial dictatorship. Whatever is the extent of the powers of the President of the United States or the Prime Ministers of the United Kingdom and India, all leaders, as Michael Curtis says, “must have known that it is wiser to use honey than vinegar.”
The leader cannot use coercion, in any form, too frequently. Nor should he expect his orders to be agreed to and executed automatically. A Prime Minister must always strive to maintain cabinet unity, to accommodate the more extreme supporters to the House, which makes ministerial responsibility and to carry his party with him as also the electorate when time requires that he shall meet it.
Similarly, General De Gaulle, with his substantial powers, had to carry the country with him to the extent of avoiding the loss of majority support in the National Assembly or defeat of his supporters in parliamentary elections.
Even a dictatorial executive may find it beneficial to appear limited. It may, for example, issue laws and orders in the name of the assembly, or cabinet, or similar bodies with more revolutionary sounding names, but in practice there may all be agencies to legitimatize the executive, not to check it.