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 (or who controls the state). The model was first developed in ancient Greece. Under this model, the state is divided into branches, each with separate and independent powers and areas of responsibility so that the powers of one branch are not in conflict with the powers associated with the other branches. The typical division of branches is into a legislature, an executive, and a judiciary. It can be contrasted with the fusion of powers in a parliamentary system where the executive and legislature (and sometimes parts of the judiciary) are unified.

History

Antiquity

Aristotle first mentioned the idea of a "mixed government" or hybrid government in his work Politics where he drew upon many of the constitutional forms in the city-states of Ancient Greece. In the Roman Republic, the Roman Senate, Consuls and the Assemblies showed an example of a mixed government according to Polybius (Histories, Book 6, 11-13).

Bipartite systems

In the sixteenth century, John Calvin favoured a system of government that divided political power between democracy and aristocracy (mixed government). Calvin appreciated the advantages of democracy: "It is an invaluable gift if God allows a people to elect its own government and magistrates."[2] In order to further reduce the danger of misuse of political power, he suggested setting up several political institutions which should complement and control each other in a system of checks and balances. In this way, Calvin and his followers resisted political absolutism and furthered the growth of democracy. Calvin's aim was to protect the rights and the well-being of ordinary people.[3] In 1620, a group of English separatist Congregationalists and Anglicans, who later became known as Pilgrim Fathers, founded Plymouth Colony in North America. Enjoying self-rule, they established a bipartite democratic system of government. The "freemen" elected the General Court, which functioned as legislative and judiciary and which in turn elected a governor, who together with his seven "assistants" served in the functional role of providing executive power.[4] Massachusetts Bay Colony (founded 1628), Rhode Island (1636), Connecticut (1636), New Jersey, and Pennsylvania had similar constitutions. They all separated political powers. Except for Plymouth Colony and Massachusetts Bay Colony, these English outposts added religious freedom to their democratic systems, an important step towards the development of human rights.[5][6] Books like William Bradford's History of Plymoth Plantation were widely read in England. So the form of government in the colonies was well known in the mother country, also to philosopher John Locke. He deduced from a study of the English constitutional system that political power was to be divided into the legislative, which should be distributed among several bodies, for example, the House of Lords and the House of Commons, on the one hand, and the executive and federative, responsible for the protection of the country and prerogative of the monarch, on the other hand. England had no written constitution.[7]

Montesquieu's tripartite system

Montesquieu

The term tripartite system is ascribed to French Enlightenment political philosopher Baron de Montesquieu.[8][9] In The Spirit of the Laws (1748), Montesquieu described the separation of political power among a legislature, an executive, and a judiciary. Montesquieu's approach was to present and defend a form of government which was not excessively centralized in all its powers to a single monarch or similar ruler. He based this model on the Constitution of the Roman Republic and the British constitutional system. Montesquieu took the view that the Roman Republic had powers separated so that no one could usurp complete power.[10][11][12] In the British constitutional system, Montesquieu discerned a separation of powers among the monarch, Parliament, and the courts of law.

Montesquieu did actually 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 was considered dangerous.[13]

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 the United States Congress to alter the composition and jurisdiction of the federal courts. Both bipartite and tripartite governmental systems apply the principles of the separation of powers to allow for the branches represented by the separate powers to hold each other reciprocally responsible to the assertion of powers as apportioned by law. The following example of the separation of powers and their mutual checks and balances for the experience of the United States Constitution is presented as illustrative of the general principles applied in similar forms of government as well.

Legislative (Congress) Executive (President) Judicial (Supreme Court)
  • Passes bills; has broad taxing and spending power; regulates inter-state commerce; 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, as well as to raise, support, and regulate the military.
  • 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 approval 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.

Comparison between tripartite and bipartite national systems

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, and even though the Council of Ministers needs a vote of confidence from both chambers of Parliament, that represents a large 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.

New Zealand's constitution is based on the principle of separation of powers through a series of constitutional safeguards, many of which are tacit. The Executive's ability to carry out decisions often depends on the Legislature, which is elected under the Mixed Member Proportional system. This means the government is rarely a single party but a coalition of parties. The Judiciary is also free of government interference. If a series of judicial decisions result in an interpretation of the law which the Executive considers does not reflect the intention of the policy, the Executive can initiate changes to the legislation in question through the Legislature. The Executive cannot direct or request a judicial officer to revise or reconsider a decision; decisions are final. Should there be a dispute between the Executive and Judiciary, the Executive has no authority to direct the Judiciary, or its individual members and vice versa.

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 although the judiciary has no power of review, the judiciary is still separate from the other branches.

Typical branches

Three branches

Australia

Australia does not maintain a strict separation between the legislative and executive branches of government—indeed, government ministers are required to be members 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.

Austria

The Constitution of Austria was originally written by Hans Kelsen, the prominent constitutional scholar in Europe at that time. Kelsen was to serve as a part of the judicial court of review for Austria as part of its tripartite government.

Hans Kelsen was the principal author of the tripartite Constitution of Austria and the Constitution of Czechoslovakia.

Czechoslovakia

The Constitution for Czechoslovakia was written by Hans Kelsen at about the same time as he wrote the Constitution for the government of Austria in 1920. The Constitution was written as a tripartite government with judicial review. This principle model used was the United States Constitution.

France

According to the Constitution of the Fifth Republic, the government of France[14] is divided up into three branches:

Hong Kong

Hong Kong is a self-governing Chinese territory pursuant to the Sino-British Joint Declaration, an international treaty registered with the United Nations. Currently, Hong Kong has three branches of government as codified in theBasic Law, which preserves the political setup of the British colonial era under the doctrine of one country, two systems:

The Chief Executive, elected by a 1200-member Election Committee, is both head of the region and head of government, and chairs the Executive Council which is composed of unofficial members and government secretaries. The law courts exercise the power of judicial review of constitutionality of legislation and administrative actions, and emphasize the separation of powers in their rulings. The Chief Justice also stated this position in the ceremonial opening of the 2010 legal year.[16] However, politically separation of powers is usually argued against, with the leaders of the People's Republic of China and supportive politicians publicly requesting for the three branches to cooperate and emphasizing an "executive-led" system.[17]

India

India follows a parliamentary system of government, which offers a clear separation of powers. The judiciary branch is fairly independent of the other two branches. Executive powers are vested with the President and Prime Minister, who are assisted by the Cabinet Secretary and other Secretaries. But practically the separation of powers does not exist between Legislature and Executive, as Prime Minister is elected by Parliament itself. Hence in India, there is no separation between Legislature and Executive. All three branches have "checks and balances" over each other to maintain the balance.[18]

Pakistan

United Kingdom

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).

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 amongst the most independent in the world, the Law Lords, who were the final arbiters of judicial disputes in the UK 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".

Until 2005, the Lord Chancellor fused the Legislature, Executive and Judiciary, as he was the ex officio Speaker of the House of Lords, a Government Minister who sat in Cabinet and was head of the Lord Chancellor's Department which administered the courts, the justice system and appointed judges, and was the head of the Judiciary in England and Wales and sat as a judge on the Judicial Committee of the House of Lords, the highest domestic court in the entire United Kingdom, and the Judicial Committee of the Privy Council, the senior tribunal court for parts of the Commonwealth. The Lord Chancellor also had certain other judicial positions, including being a judge in the Court of Appeal and President of the Chancery Division. The Lord Chancellor combines other aspects of the constitution, including having certain ecclesiastical functions of the established state church, making certain church appointments, nominations and sitting as one of the thirty-three Church Commissioners. These functions remain intact and unaffected by the Constitutional Reform Act. In 2005, the Constitutional Reform Act separated the powers with Legislative functions going to an elected Lord Speaker and the Judicial functions going to the Lord Chief Justice. The Lord Chancellor's Department was replaced with a Ministry of Justice and the Lord Chancellor currently serves in the position of Secretary of State for Justice.

The judiciary has no power to strike down primary legislation, and can only rule on secondary legislation that it is invalid with regard to the primary legislation if necessary.

Under the concept of parliamentary sovereignty, Parliament can enact any primary legislation it chooses. However, the concept immediately becomes problematic when the question is asked; "If parliament can do anything, can it bind its successors?". It is generally held that parliament can do no such thing.

Equally, while statute takes precedence over precedent-derived common law and the judiciary has no power to strike down primary legislation, there are certain cases where the supreme judicature has effected an injunction against the application of an act or reliance on its authority by the civil service . The seminal example of this is the Factortame case, where the House of Lords granted such an injunction preventing the operation of the Merchant Shipping Act 1988 until litigation in the European Court of Justice had been resolved.

The House of Lords ruling in Factortame (No. 1), approving the European Court of Justice formulation that "a national court which, in a case before it concerning Community law, considers that the sole obstacle which precludes it from granting interim relief is a rule of national law, must disapply that rule", has created an implicit tiering of legislative reviewability; the only way for parliament to prevent the supreme judicature from injunctively striking out a law on the basis of incompatibility with Community law is to pass an act specifically removing that power from the court, or by repealing the European Communities Act 1972.

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

United States

George Washington at Constitutional Convention of 1787, signing of U.S. Constitution

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."[19] The Supreme Court holds "The judicial Power" according to Article III, and it established the implication of Judicial review in Marbury v. Madison under the Marshall court.[20] 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 American Civil War, executive orders, emergency powers and security classifications since World War II, national security, signing statements, and the scope of the unitary executive.

Other systems

Taiwan

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.[21] 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.

Belgium

Belgium is currently a federated state that has imposed the trias politica on different governmental levels. The constitution of 1831, considered one of the most liberal of its time for limiting the powers of its monarch and imposing a rigorous system of separation of powers, is based on three principles (represented in the Schematic overview of Belgian institutions):

Trias Politica (horizontal separation of powers):

Subsidiarity (vertical separation of powers):

Secularism (separation of state and religion):

Costa Rica

In 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 remains 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

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 the 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.[22][23] [24] 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 101 & 102 TFEU (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

The three branches in German government are further divided into six main bodies enshrined in the Basic Law for the Federal Republic of Germany:

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

The four independent branches of power in Hungary (the parliament, the government, the court system, and the office of the public accuser) are divided into six bodies:

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 become 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.

See also

References

  1. ↑ This latter refers specifically to the separation of powers into three branches of government: legislative, executive and judicial.
  2. ↑ Quoted in Jan Weerda, Calvin, in Evangelisches Soziallexikon, Third Edition (1960), Stuttgart (Germany), col. 210
  3. ↑ Clifton E. Olmstead (1960), History of Religion in the United States, Prentice-Hall, Englewood Cliffs, N.J., pp. 9-10
  4. ↑ Fennell, Christopher. "Plymouth Colony Legal Structure". Histarch.uiuc.edu.
  5. ↑ Hanover Historical Texts Project
  6. ↑ Clifton E. Olmstead, History of Religion in the United States, pp. 69-76, 99-105, 114-116
  7. ↑ Otto Heinrich von der Gablentz, Gewalt, Gewaltenteilung, In Evangelisches Soziallexikon, col. 420
  8. ↑ "Baron de Montesquieu, Charles-Louis de Secondat (Stanford Encyclopedia of Philosophy)". Plato.stanford.edu. Retrieved 2008-10-29.
  9. ↑ "lawiki.org law — Separation of Powers: the reality". lawiki.org. Retrieved 2010-09-16.
  10. ↑ Price, Sara (February 22, 2011), The Roman Republic in Montesquieu and Rousseau - Abstract, retrieved November 19, 2012
  11. ↑ Schindler, Ronald, Montesquieu’s Political Writings, retrieved November 19, 2012
  12. ↑ Lloyd, Marshall Davies (September 22, 1998), Polybius and the Founding Fathers: the separation of powers, retrieved November 17, 2012
  13. ↑ Montesquieue, Charles-Louie. The Spirit of Laws.
  14. ↑ Duguit, Leon (1911). Traite de droit constitutionnel, vol. 1, La regle du droit: le probleme de l'Etat, Paris: de Boccard, p. 645.
  15. ↑ "Constitution du 4 octobre 1958". Retrieved 11 October 2013.
  16. ↑ "Chief Justice's Speech at Ceremonial Opening of the Legal Year 2010". Hong Kong Judiciary. Retrieved 2011-03-07.
  17. ↑ "Mature Enough for Democracy, And Sensible Too" (PDF). Global Asia. Retrieved 2011-03-06.
  18. ↑ Jain, M.P. (2010). Indian Constitutional Law. LexisNexis Butterworths Wadhwa Nagpur. p. 921. ISBN 978-81-8038-621-3.
  19. ↑ "Constitution of the United States". Archives.gov. 2000-09-15. Retrieved 2013-05-05.
  20. ↑ Madison, James. (8 February 1788) "The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments" The Federalist Papers No. 51
  21. ↑ "E-Notes: Why Taiwan's Political Paralysis Persists — FPRI". Fpri.org. Retrieved 2008-10-29.
  22. ↑ Bomberg, Elizabeth, Peterson, John, and Richard Corbett, eds. The European Union: How Does it Work? (3rd ed) (2012, Oxford University Press). ISBN 978-0-19-957080-5 and ISBN 0-19-957080-9.
  23. ↑ Corbett, Richard; Jacobs, Francis; Shackleton, Michael (2011). The European Parliament (8th ed.). London: John Harper Publishing. ISBN 978-0-9564508-5-2.
  24. ↑ Craig, Paul; de Búrca, Gráinne (2007). EU Law, Text, Cases and Materials (4th ed.). Oxford: Oxford University Press. ISBN 978-0-19-927389-8.

Further reading

External links