Separation of powers


Separation of powers

The separation of powers, often imprecisely used interchangeably with the trias politica principle,[1] is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic. Under this model, the state is divided into branches, each with separate and independent powers and areas of responsibility so that no one branch has more power than the other branches. The normal division of branches is into an executive, a legislature, and a judiciary. For similar reasons, the concept of separation of church and state has been adopted in a number of countries, to varying degrees depending on the applicable legal structures and prevalent views toward the proper role of religion in society.[citation needed]

Contents

Montesquieu's tripartite system

The term is ascribed to French Enlightenment political philosopher Baron de Montesquieu.[2][3] Montesquieu described division of political power among an executive, a legislature, and a judiciary. He based this model on the British constitutional system, in which he perceived a separation of powers among the monarch, Parliament, and the courts of law. Subsequent writers have noted that this was misleading[citation needed], because the United Kingdom had a very closely connected legislature and executive, with further links to the judiciary (though combined with judicial independence).

Montesquieu did specify that "the independence of the judiciary has to be real, and not apparent merely". "The judiciary was generally seen as the most important of powers, independent and unchecked", and also considered it dangerous.[citation needed]

Comparison with other systems

In democratic systems of governance based on the trias politica, a fundamental parallel and a fundamental difference exists between presidential systems and constitutional monarchic parliamentary system of government.

The parallel is that the 3 branches of government (legislative, executive, judicial) exist largely independent of each other. Each with its competences, prerogatives and its domain of activity, and exercising control over each other.

  • The legislative body has control of the executive finances, and has judiciary powers, it also has control of the way the judiciary works.
  • The judiciary often has control of laws not being contradictory to the constitution or other laws and it has the power to correct and control the way the executive body exercises it powers (to execute the law)

The difference is :

  • In presidential systems the incumbent of the Head-of-state is elected to office, and after transfer of power the president appoints his administration (ministers etc.)(link in the US) or a government headed by a prime minister is formed within the parliament (based on the majority in the parliament) (like in France). The latter might lead to a "cohabitation" where a president and his government belong to different parties or to different coalition. Also further down the ladder of political power regional or local legislative bodies and the chief executive is elected (State governor and State Senate in the US, the Conseil Communal and Bourgemestre in France).
  • In constitutional monarchic parliamentary systems only the legislative body is elected and a government formed on the basis of majority or coalitions of parties. Elected members of parliament have to resign form their mandate in order to accept an Executive office. This is true in regional and local councils are elected and the executive nominated.

In a parliamentary system, when the term of the legislature ends, so too may the tenure of the executive selected by that legislature. Although in a presidential system the executive's term may or may not coincide with the legislature's, their selection is technically independent of the legislature.

The 2 branch power systems may have systems in which certain branches have more than one power. Often a legislative body is elected, while the executive is nominated. The nominated executive branch also has power of presenting legislation, while the legislative body is only has a controlling function. In those system the judiciary is subservient to the executive and has no power to control either the executive or the legality of new legislative texts.

The separation of powers is a doctrine which provides a separate authority, which makes it possible for the authorities to check each others checks and balances (Executive Authority Act 1936).

Various models

Constitutions with a high degree of separation of powers are found worldwide. The UK system is distinguished by a particular entwining of powers. In Italy the powers are completely separated, even if Council of Ministers need the vote of confidence from both chambers of Parliament, that's however formed by a wide number of members (almost 1,000). A number of Latin American countries have electoral branches of government.

Countries with little separation of power include New Zealand and Canada. Canada makes limited use of separation of powers in practice, although in theory it distinguishes between branches of government.

Complete separation-of-powers systems are almost always presidential, although theoretically this need not be the case. There are a few historical exceptions, such as the Directoire system of revolutionary France. Switzerland offers an example of non-Presidential separation of powers today: It is run by a seven-member executive branch, the Federal Council. However, some might argue that Switzerland does not have a strong separation of powers system, as the Federal Council is appointed by parliament (but not dependent on parliament), and the judiciary has no power of review.

Three branches

Australia: three branches Flag of Australia.svg

Australia does not maintain a strict separation between the legislative and executive branches of government—indeed, government ministers are required to be a member of parliament—but the federal judiciary strictly guards its independence from the other two branches. However, under influence from the American constitution, the Australian constitution does define the three branches of government separately, and this has been interpreted by the judiciary to induce an implicit separation of powers. State governments have a similar level of separation of power, but this is generally on the basis of convention, rather than constitution.

France Flag of France.svg

The government of France is divided up into 3 branches.

Hong Kong: three branches Flag of Hong Kong.svg

Hong Kong is a largely autonomous Chinese territory established under the principle of one country, two systems. Hong Kong has three branches of government as codified in the Basic Law, which preserves the political setup of the British colonial era:

  • Government - executive
  • Legislative Council - legislature
  • Judiciary (Court of Final Appeal and other courts and tribunals) - judiciary

The Chief Executive, elected by a 800-member Election Committee, is both head of the region and head of government, and chairs the Executive Council which composes of unofficial members and government secretaries. The law courts exercise the power of judicial review of constitutionality of legislations and administrative actions, and emphasis the separation of powers in their rulings. The Chief Justice also stated this position in the ceremonial opening of the legal year.[4] However, politically separation of powers is usually argued against, with the leaders of the People's Republic of China, the sovereign of Hong Kong, requesting publicly for the three branches to cooperate, and pro-Beijing politicians emphasising an "executive-led" system.[5]

India: three branches Flag of India.svg

The democratic system in India also offers a clear separation of powers. India follows a parliamentary system of government. The Judiciary branch is fairly independent of the other two branches. Executive powers are vested with the President who is assisted by the Cabinet Secretary and other Secretaries. All three branches have "checks and balances" over each other to maintain the balance of power. Executive branch is under the President of India, Vice-President of India and Cabinet Secretary (India).

United Kingdom: three branches Flag of the United Kingdom.svg

  • Parliament - legislature
  • Prime Minister, Cabinet, Government Departments & Civil Service - executive
  • Courts - judiciary

Although the doctrine of separation of power plays a role in the United Kingdom's constitutional doctrine, the UK constitution is often described as having "a weak separation of powers" A. V. Dicey, despite its constitution being the one to which Montesquieu originally referred. For example, in the United Kingdom, the executive forms a subset of the legislature, as did—to a lesser extent—the judiciary until the establishment of the Supreme Court of the United Kingdom. The Prime Minister, the Chief Executive, sits as a member of the Parliament of the United Kingdom, either as a peer in the House of Lords or as an elected member of the House of Commons (by convention, and as a result of the supremacy of the Lower House, the Prime Minister now sits in the House of Commons) and can effectively be removed from office by a simple majority vote. Furthermore, while the courts in the United Kingdom are undoubtedly amongst the most independent in the world, the Law Lords, who were the final arbiters of judicial disputes in the UK, until recently sat simultaneously in the House of Lords, the upper house of the legislature, although this arrangement ceased in 2009 when the Supreme Court of the United Kingdom came into existence. Furthermore, because of the existence of Parliamentary sovereignty, while the theory of separation of powers may be studied there, a system such as that of the UK is more accurately described as a "fusion of powers".[citation needed]

The development of the British constitution, which is not a codified document, is based on this fusion in the person of the Monarch, who has a formal role to play in the legislature (Parliament, which is where legal and political sovereignty lies, is the Crown-in-Parliament, and is summoned and dissolved by the Sovereign who must give his or her Royal Assent to all Bills so that they become Acts), the executive (the Sovereign appoints all ministers of His/Her Majesty's Government, who govern in the name of the Crown) and the judiciary (the Sovereign, as the fount of justice, appoints all senior judges, and all public prosecutions are brought in his or her name).

The British legal systems are based on common law traditions which require:

  • Police or regulators cannot initiate complaints under criminal law but can only investigate (prosecution is mostly reserved for the Crown Prosecution Service), which prevents selective enforcement, e.g. the 'fishing expedition' which is often specifically forbidden.
  • Prosecutors cannot withhold evidence from attorneys for the defendant; to do so results in mistrial or dismissal. Accordingly, their relation to police is no advantage.
  • Defendants convicted can appeal, but only fresh and compelling evidence not available at trial can be introduced, restricting the power of the court of appeal to the process of law applied.

United States: three branches Flag of the United States.svg

In the United States Constitution, Article 1 Section I gives Congress only those "legislative powers herein granted" and proceeds to list those permissible actions in Article I Section 8, while Section 9 lists actions that are prohibited for Congress. The vesting clause in Article II places no limits on the Executive branch, simply stating that, "The Executive Power shall be vested in a President of the United States of America."[6] The Supreme Court holds "The judicial Power" according to Article III, and it established the implication of Judicial review in Marbury vs Madison.[7] The federal government refers to the branches as "branches of government", while some systems use "government" to describe the executive. The Executive branch has attempted to claim power arguing for separation of powers to include being the Commander in Chief of a standing army since the Civil war, executive orders, emergency powers and security classifications since WWII, national security, signing statements, and the scope of the unitary executive.

Checks and balances

To prevent one branch from becoming supreme, protect the "opulent minority" from the majority, and to induce the branches to cooperate, government systems that employ a separation of powers need a way to balance each of the branches. Typically this was accomplished through a system of "checks and balances", the origin of which, like separation of powers itself, is specifically credited to Montesquieu. Checks and balances allow for a system based regulation that allows one branch to limit another, such as the power of Congress to alter the composition and jurisdiction of the federal courts.

Legislative (Congress) Executive (President) Judicial (Supreme Court)
  • Passes bills; has broad taxing and spending power; controls the federal budget; has power to borrow money on the credit of the United States (may be vetoed by President, but vetoes may be overridden with a two-thirds vote of both houses)
  • Has sole power to declare war.
  • Oversees, investigates, and makes the rules for the government and its officers.
  • Defines by law the jurisdiction of the federal judiciary in cases not specified by the Constitution
  • Ratification of treaties signed by the President and gives advice and consent to presidential appointments to the federal judiciary, federal executive departments, and other posts (Senate only)
  • Has sole power of impeachment (House of Representatives) and trial of impeachments (Senate); can remove federal executive and judicial officers from office for high crimes and misdemeanors
  • Is the commander-in-chief of the armed forces
  • Executes the instructions of Congress.
  • May veto bills passed by Congress (but the veto may be overridden by a two-thirds majority of both houses)
  • Executes the spending authorized by Congress.
  • Declares states of emergency and publishes regulations and executive orders.
  • Makes executive agreements (does not require ratification) and signs treaties (ratification requiring by two-thirds of the Senate)
  • Makes appointments to the federal judiciary, federal executive departments, and other posts with the advice and consent of the Senate. Has power to make temporary appointment during the recess of the Senate
  • Has the power to grant "reprieves and pardons for offenses against the United States, except in cases of impeachment."
  • Determines which laws Congress intended to apply to any given case
  • Exercises judicial review, reviewing the constitutionality of laws
  • Determines how Congress meant the law to apply to disputes
  • Determines how a law acts to determine the disposition of prisoners
  • Determines how a law acts to compel testimony and the production of evidence
  • Determines how laws should be interpreted to assure uniform policies in a top-down fashion via the appeals process, but gives discretion in individual cases to low-level judges. The amount of discretion depends upon the standard of review, determined by the type of case in question.
  • Federal judges serve for life

Other systems

Belgium: complex model Flag of Belgium.svg

Belgium is currently a federated state that has imposed the trias politica on different governmental levels. The constitution of 1831 - which was considered one of the most liberal of its time - limited the powers of its monarch and imposed a rigorous system of separation of powers:

  • principles of the Belgian structure

Trias politica ( horizontal separation of powers ), Subsidiarity ( vertical separation of powers ) and Secularism ( separation of state and religion)

  • Horizontal separation of powers
    • the legislative power was attributed to an elected parliamentary body elected with a representative general election system (one person one vote);
    • the executive power was attributed to the Council of Ministers, the ministers are appointed by the King; Ministers are usually chosen from the elected members of parliament, however they resign form their elected seat, also non-elected people can be nominated minister.
    • the judicial power is in the hands of the courts, Magistrates are nominated in by the minister (on proposal from a Council of the Magistrates),
      • Magistrates can be nominated to become Judge (sitting magistrates) or Instructing judge (investigating judge) of Procureur (public prosecutor) (the standing magistrates)
      • the executive branch of the government is responsible to provide the physical means to execute its role (infrastructure, staff, financial means).
    • Judges and some other people cannot run for elected office while they are nominated to certain positions (i.e. military, police-officers, clergy, notaries, bailiff's).
      • The 1830 constitution was liberal in the sense that it imposed a limitation on the Monarch's powers, installed 3 independent political powers (next to the military power being subjected to the executive branch) and described a strict secularist notion of the state (separation between the state and the institutions of the (Catholic)church)
        • the Head of State (King) is politically incompetent and requires executive approval by a minister for every of his actions and his statements, he nominates the ministers but he doesn't choose them (his executive powers), he signs and decrees the laws voted in parliament (his legislative powers);
        • the head of state is commander in chief of the military (in title only), politically the military depends of the Minister of Defense and the chiefs of staff are responsible towards parliament and take their orders from the Minister of Defense and the government;
        • certain functions are deemed incompatible and as such people have to resign from their function if they want to assume responsibilities in another function (i.e. military commanders have never been government ministers, not even during war-time)
  • Vertical separation of powers

The principle of Subsidiarity defines that the competence to make decisions is established at the most relevant (competent) level of government.

    • Supranational directives (EU-legislation) and international treaties are subjected to approval of the federal level (the federal level being Belgium the nationstate
    • the federal level is composed of
      • a bicameral parliament (House of Representative and Senate) (in 2014 this will be a directly elected house and an indirectly appointed Senate of the regions)
      • a federal government (lead by the Prime Minister, Ministers and Secretaries of State)
        • competent for Justice, Defense, Foreign Affairs, and National Social security, Public Health
      • High court, Constitutional court, Cassation court
    • the regional level is split likewise
      • a monocameral parliament
      • a regional government lead by the Minister-president (Ministers and Secretaries of State)
        • competent for regional matter
      • High court, Constitutional court, Cassation court
    • the provinces also have the same structure
      • a monocameral provincial council
      • a provincial governor assisted by deputies and a Arrondissements-comissaris
        • comptent for provincial matters
      • Appellate court, Assisses-court
    • the cities and communal entities
      • a city or communal council
      • a Mayor (burgemestre) assisted by Aldermen
        • competent for local matters
      • Magistrates court, Correctional court (3 judges)
      • Justice of the peace and Police-court judges (single judge courts)

Costa Rica: three branches and two semi-branchesFlag of Costa Rica.svg

As the aftermath of the 44-day civil war in 1948 (after former President and incumbent candidate Rafael Álgel Calderón Guardia tried to take power through fraud, by not recognising the results of the presidential election that he had lost), the question of which transformational model the Costa Rican State would follow was the main issue that confronted the victors. A Constituent Assembly was elected by popular vote to draw up a new constitution, enacted in 1949 and still in force. This document was an edit of the constitution of 1871, as the constituent assembly rejected more radical corporatist ideas proposed by the ruling Junta Fundadora de la Segunda República (which, although having come to power by military force, abolished the armed forces). Nonetheless, the new constitution increased centralization of power at the expense of municipalities and eliminated provincial government altogether, at the time it increased the powers of congress and the judiciary.

It established the three supreme powers as the legislature, executive, and judicial branches, but also created two other autonomous state organs that have equivalent power but not equivalent rank. The first is the Supreme Elections Tribunal (electoral branch) which controls elections and makes unique, unappealable decisions on their outcomes.

The second is the office of the Comptroller General (audit branch), an autonomous and independent organ nominally subordinate to the unicameral legislative assembly. All budgets of ministries and municipalities must pass through this agency, including the execution of budget items such as contracting for routine operations. The Comptroller also provides financial vigilance over government offices and office holders, and routinely brings actions to remove mayors for malfeasance, firmly establishing this organization as the fifth branch of the Republic.

European Union Flag of Europe.svg

First, note that the European Union is a supranational polity, and is neither a country nor a federation; but as the EU wields political power, and is fully aware of its "democratic deficit", it attempts to comply with the principle of separation of powers. There are seven institutions of the European Union. In intergovernmental matters, most power is concentrated in the Council of the European Union – giving it the characteristics of a normal international organization. Here, all power at EU level is in one branch. In the latter there are four main actors. The European Commission acts as an independent executive which is appointed by the Council in conjunction with the European Parliament; but the Commission also has a legislative role as the sole initiator of EU legislation. An early maxim was: "The Commission proposes and the Council disposes"; and although the EU's lawmaking procedure is now much more complicated, this simple maxim still holds some truth. As well as both executive and legislative functions, the Commission arguably exercises a third, quasi-judicial, function under Articles 81 & 82 (competition law ); although the ECJ remains the final arbiter. The European Parliament is one half of the legislative branch and is directly elected. The Council itself acts both as the second half of the legislative branch and also holds some executive functions (some of which are exercised by the related European Council in practice). The European Court of Justice acts as the independent judicial branch, interpreting EU law and treaties. The remaining institution, the European Court of Auditors, is an independent audit authority (due to the sensitive nature of fraud in the EU).

Germany: three branches and six bodies Flag of Germany.svg

The six main bodies enshrined in the Basic Law for the Federal Republic of Germany are:

  • Federal President (Bundespräsident) - executive
  • Federal Cabinet (Bundesregierung) - executive
  • Federal Diet (Bundestag) & Federal Council (Bundesrat) - legislative
  • Federal Assembly (Bundesversammlung) - presidential electoral college
  • Federal Constitutional Court (Bundesverfassungsgericht) - judiciary

The Bundesversammlung is primarily constituted of members of the Bundestag and in the same count by the Parliaments of the States (mostly called "Landtag") elected Electors.

Besides the constitutional court the judicial branch at the federal level is made up of five supreme courts — one for civil and criminal cases (Bundesgerichtshof), and one each for administrative, tax, labour, and social security issues. There are also state (Länder / Bundesländer) based courts beneath them, and a rarely used senate of the supreme courts.

Hungary: four branches and six bodies Flag of Hungary.svg

The four independent branches of power in Hungary are: the parliament (legislative), the government (executive), the court system (judiciary) and the office of the public accuser (i.e. prosecutor general).

  • Parliament (Magyar Országgyűlés): elected every 4 years by the people in a highly complex, two-round voting system
  • Government (Magyar Kormány): installed and removed by 50%+1 basic majority vote of the parliament, 4 year terms
  • Supreme Court (Legfelsőbb Bíróság): Chief justice elected by qualified (2/3) majority of the parliament, no government oversight
  • Constitutional court (Alkotmánybíróság): members elected by qualified majority of the parliament for 8 years, this body nullifies laws and has no government oversight.
  • Chief public accuser (Legfőbb ügyész): elected by qualified majority of the parliament, 6 year terms, office budget fixed, no government oversight.
  • The President of the Republic (Köztársasági Elnök) is elected by qualified majority of the Hungarian parliament for 5 year terms (cannot be reelected more than once). He/she has ceremonial powers only, signs laws into power and commands the military in time of peace.

The independent pillar status of the Hungarian public accuser's office is a unique construction, loosely modeled on the system Portugal introduced after the 1974 victory of the Carnation Revolution. The public accuser (attorney general) body has became the fourth column of Hungarian democracy only in recent times: after communism fell in 1989, the office was made independent by a new clausule XI. of the Constitution. The change was meant to prevent abuse of state power, especially with regards to the use of false accusations against opposition politicians, who may be excluded from elections if locked in protracted or excessively severe court cases.

To prevent the Hungarian accuser's office from neglecting its duties, natural human private persons can submit investigation requests, called "pótmagánvád" directly to the courts, if the accusers' office refuses to do its job. Courts will decide if the allegations have merit and order police to act in lieu of the accuser's office if warranted. In its decision No.42/2005 the Hungarian constitutional court declared that the government does not enjoy such privilege and the state is powerless to further pursue cases if the public accuser refuses to do so.

Republic of China: five branchesFlag of the Republic of China.svg

According to Sun Yat-sen's idea of "separation of the five powers", the government of the Republic of China has five branches:

The president and vice president as well as the defunct National Assembly are constitutionally not part of the above five branches. Before being abolished in 2005, the National Assembly was a constitutional convention and electoral college for the president and vice president. Its constitutional amending powers were passed to the legislative yuan and its electoral powers were passed to the electorate.

The relationship between the executive and legislative branches are poorly defined. An example of the problems this causes is the near complete political paralysis that results when the president, who has neither the power to veto nor the ability to dissolve the legislature and call new elections, cannot negotiate with the legislature when his party is in the minority.[8] The examination and control yuans are marginal branches; their leaders as well as the leaders of the executive and judicial yuans are appointed by the president and confirmed by the legislative yuan. The legislature is the only branch that chooses its own leadership. The vice president has practically no responsibilities.

See also

References

Further reading

External links


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