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Separation of powers
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Separation of powers, a term ascribed to French Enlightenment political philosopher Baron de Montesquieu, is a model for the governance of democratic states, having its origins in an ancient idea of mixed government. The model is also known as trias politica. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the uncodified Constitution of the Roman Republic. Under this model, the state is divided into branches or estates, each with separate and independent powers and areas of responsibility.
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Separation of powers, a term ascribed to French Enlightenment political philosopher Baron de Montesquieu, is a model for the governance of democratic states, having its origins in an ancient idea of mixed government. The model is also known as trias politica. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the uncodified Constitution of the Roman Republic. Under this model, the state is divided into branches or estates, each with separate and independent powers and areas of responsibility. The normal division of estates is into an executive, a legislature, and a judiciary.
Parliamentary democracies do not have distinct separation of powers. The executive, which often consists of a prime minister and cabinet ("government"), is drawn from the legislature (parliament). This is the principle of responsible government. However, although the legislative and executive branches are connected, in parliamentary systems there is usually an independent judiciary.
No democratic system exists with an absolute separation of powers or an absolute lack of separation of powers. Nonetheless, some systems are clearly founded on the principle of separation of powers, while others are clearly based on a fusion of powers.
Origins in the Constitution of the Roman Republic
The government of the Roman Republic divided power into three independent branches: the senate, the legislative branch, and the executive branch. The Senate made military and foreign policy, and directed domestic policy. It also issued orders to executive branch officials, which were usually obeyed. The Senate was not a legislative body and it did not pass laws. The legislative branch had two primary functions. First, it elected all executive officials. Election to such office usually meant automatic membership in the senate (senate terms were for life). The second major function of the legislative branch was to pass domestic laws. These legislative assemblies were not bodies of elected representatives. Rather, they were bodies of citizens, participating in a direct-democracy legislative system. The laws (Latin: lex) passed by these assemblies were called plebiscites, the modern equivalent of popular referendums. Members of the executive branch commanded the military, enforced the laws, and acted as high judges. A network of checks and balances existed between the three branches. This system of checks and balances was designed to prevent the accumulation of too much power into the hands of an individual.
Montesquieu's tripartite system
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, because Great Britain had a very closely connected legislature and executive, with further links to the judiciary (though combined with judicial independence). But in Montesquieu's time, the political connection between Britain's Parliament and the monarch's Ministry was not as close as it would later become.
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 the least dangerous. Some politicians decry judicial action against them as a "criminalization" of their behavior, but such "criminalization" may be seen as a response to corruption, collusion, or abuse of power by these politicians.
Separation of powers vs. fusion of powers
In democratic systems of governance, a continuum exists between "Presidential government" and "Parliamentary government". "Separation of powers" is a feature more inherent to presidential systems, whereas "fusion of powers" is characteristic of parliamentary ones. "Mixed systems" fall somewhere in between, usually near the midpoint; the most notable example of a mixed system is France's (current) Fifth Republic.
In fusion of powers, one government (invariably the elected legislature) is supreme, and the other estates are subservient to it. In separation of powers, each estate is largely (although not necessarily entirely) independent of the others. Independent in this context means either that selection of each estate happens independently of the other estates or at least that each estate is not beholden to any of the others for its continued existence.
Accordingly, in a fusion of powers system such as that of the United Kingdom, first described as such by Walter Bagehot, the people elect the legislature, which in turn "creates" the executive. As Professor Cheryl Saunders writes, "...the intermixture of institutions [in the UK] is such that it is almost impossible to describe it as a separation of powers." In a separation of powers, the national legislature does not select the person or persons of the executive; instead, the executive is chosen by other means (direct popular election, electoral college selection, etc.) 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. However, when the executive's party controls the legislature, the executive often reaps the benefits of what is, in effect, a "fusion of powers". Such situations may thwart the constitutional goal or normal popular perception that the legislature is the more democratic branch or the one "closer to the people", reducing it to a virtual "consultative assembly", politically or procedurally unable—or unwilling—to hold the executive accountable in the event of blatant, even boldly admitted, "high crimes and misdemeanors."
Other branches
Auditory
With the title Comptroller General, Auditor General or Comptroller and Auditor General, the European Union's Court of Auditors and Taiwan's Control Yuan are individual or bodies of independent ombudsmen. They are often independent of the other branches of government.
Their purpose is to audit government expenditure and general activity. Also non as checks and balance
Civil examination
Sun Yat Sen proposed a branch of government based on the Imperial examination system used in China. The "Examination Yuan" (Traditional Chinese: ???; pinyin: Kaoshì Yuàn), as it is called in Taiwan, is in charge of validating the qualification of civil servants. This structure has been implemented in the Republic of China.
Data
In Germany, as in the rest of the EU, there is a notion of data protection. In Germany it is represented by its own commissioners. Additionally there is the BStU dealing with the Stasi archives and the German Federal Archives, each providing access to data only in accordance with special laws.
Electoral
Costa Rica's Supreme Elections Tribunal is a branch of government that manages elections. Similar independent institutions exist in many other democratic countries, however they are not seen as a branch of government. In many countries, these are known as Electoral Commissions.
The people
Many philosophers and political scientists believe that democratic governments are created and constitutions exist to serve the people. The people have their own system of checks and balances by electing the legislative and executive branches. The government also draws its power directly from the people. Without the people, there is no government, just as without the legislative branch, there can be no judicial branch.
In the Constitution of Venezuela, the "citizen's power" is a formal branch of government, though it acts like auditors' branches in other jurisdictions.
See also:
Independent executive agencies
The federal executive of the United States is a very large bureaucracy, and due to civil service rules, most middle- and low-level government workers do not change when a new President is elected. (New high-level officials are usually appointed and must be confirmed by the United States Senate.) Moreover, semi-independent agencies (such as the Federal Reserve or the Federal Communications Commission) may be created within the executive by the legislature. These agencies exercise legally defined regulatory powers. High-level regulators are appointed by the President and confirmed by the legislature; they must follow the law and certain lawful executive orders. But they often sit for long, fixed terms and enjoy reasonable independence from other policy makers. Because of its importance to modern governance, the regulatory bureaucracy of the executive is sometimes referred to as a "fourth" branch of government.
This separation is even more pronounced in the United Kingdom. The separation was a prominent element of the Yes Minister comedy television series.
The press
The press has been described as a "fourth power" because of its considerable influence over public opinion (which in turn affects the outcome of elections), as well as its indirect influence in the branches of government by, for example, its support or criticism of pending legislation or policy changes. It has rarely, however, been a formal branch of democratic government; nor have political philosophers suggested that it become one.
The press is also sometimes referred to as the Fourth Estate, a term of French origin, which is not related to the modern three-branch system of government.
Originally, the First Amendment of the United States Constitution explicitly guaranteed freedom of the press only against interference by the federal government. Later this right was extended by the United States Supreme Court in the Incorporation Cases to cover state and local governments.
Traditionally, the press has been the "voice of the people", keeping government somewhat in check. Examples of this were the Watergate scandal, where two Washington Post reporters exposed corruption and coverup at the highest levels of government, or the Adscam (Sponsorship scandal) which was uncovered by the press in Canada. This exposure caused the resignation, firing, or prosecution of many officials.
There exist situations where the press can affect public opinion in ways that are contrary to the spirit of separation of powers. One of the most compelling of these situations is when the state controls the content and distribution of the information disseminated by the press. However, even if the press is immune to censorship and compulsion from the government, the controlling entity of a press association or media outlet must almost always edit, and may editorialize, providing opportunities to affect public opinion in ways that may contradict public interest. In all cases, the "voice of the people" (as perceived by some) is modified by the opinions of those producing the stories.
The press around the world
Freedom of the reporting media is generally considered to be essential for the perpetuation of democratic governments, and it is found in all strong democracies, regardless of the organizational principle of the "branches" of government.
Many governments financially support public broadcasting in some way, but in strong democracies these media outlets can enjoy wide editorial latitude.
An independent press acts as a powerful check on all forms of government by providing information about governmental activities to the public. There are weighty arguments to suggest that the press is the external 4th branch which continuously scrutinizes a government's operations, with David Blunkett's two resignations as both Home Secretary(2004) and Secretary of State for Work and Pensions (2005) as particular examples.
Various models around the world
Constitutions with a high degree of separation of powers are found worldwide. The UK system is distinguished by a particular entwining of powers. India's democratic system also offers a clear separation of power under Lok Sabha (lower house of parliament), Rajya Sabha (upper house of Parliament), and the President of India, who overlooks independent governing branches such as the Election commission and the Judiciary. Under the Indian constitution, just as in the British system, the Prime Minister is a head of the governing party and functions through a selected group of ministers. 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).
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.
Australia: three branches
People's Republic of China
Costa Rica: five branches
After eight years of social conflict, the question of who would lead Costa Rica and which transformational model the State would use was decided by who killed the president. A constituent assembly followed and drew up a new constitution, approved in 1949. This document was an edit of the constitution of 1871, as the constituent assembly rejected more radical corporatist ideas proposed by the ruling junta. Nonetheless, the new constitution increased centralization of power at the expense of municipalities and eliminated provincial government altogether.
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 (auditory 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 branches of the European Union are slightly mixed due to the complex nature of the EU's design. There are five institutions of the European Union. The functioning of the EU is split into intergovernmental and supranational spheres (see three pillars 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. 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 auditory authority (due to the sensitive nature of fraud in the EU).
France
Germany: three branches and six bodies
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 primiraliy constituted of members of the Bundestag and Bundesrat.
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.
Republic of China ("Taiwan"): five branches of government
Some countries take the doctrine further than the three-branch system. The politics of the Republic of China, for example, has five branches: the Executive Yuan, Legislative Yuan, Judicial Yuan, Control Yuan , and Examination Yuan.
Due in part to the Republic's youth, the relationship between its 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.
United Kingdom
Although the principle 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", 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 does—to a lesser extent—the judiciary. The Prime Minister, the chief executive, must by convention be a Member of the House of Commons and can effectively be removed from office by a simple majority vote. Furthermore, while the courts in Britain are undoubtedly amongst the most independent in the world, the Law Lords, who are the final arbiters of judicial disputes in the UK, sit simultaneously in the House of Lords, the upper house of the legislature, although this arrangement will cease in 2009 when the Supreme Court of the United Kingdom comes into existence. Furthermore, because of the existence of Parliamentary sovereignty, while the theory of separation of powers may be studied in Britain, a system such as that of the UK is more accurately described as a "fusion of powers."
The development of the British constitution, which is not written down in one 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 Queen who must give her Royal Assent to all Bills so that they become Acts), the executive (the Queen appoints all ministers of Her Majesty's Government, who govern in the name of the Crown) and the judiciary (the Queen, as the fount of justice, appoints all senior judges, and all public prosecutions are brought in her name).
The British legal system is based on common law traditions which require:
United States: three branches
In the United States Constitution, Article I 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." The Supreme Court holds "The judicial Power" according to Article III, and it established the implication of Judicial review in Marbury vs Madison. 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 usurp power from Congress 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 now the concept of a unitary executive.
Checks and balances
To prevent one branch from becoming supreme, and to induce the branches to cooperate, governance 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 allows 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
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Executive
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Judicial
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- Also known as Congress
- Makes all laws.
- Controls all the money; taxes, borrows, and sets the budget.
- Has sole power to declare war.
- Oversees, investigates, and makes the rules for the government and its officers.
- Appoints the heads of the executive branch.
- Confirms federal judicial appointments.
- Ratifies treaties.
- Originates cases of impeachment.
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- Preserves, protects and defends the Constitution
- Faithfully executes the laws of the United States
- Executes the instructions of Congress
- May veto laws but the veto may be overridden by Congress by a 2/3 majority.
- Executes the spending authorized by Congress
- Executes the instructions of Congress when it declares war or makes rules for the military
- Declares states of emergency and publishes regulations and executive orders
- Appoints judges with the advice and consent of the Senate
- Has the power to grant pardons for crimes against the United States
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- Determines which jurisdiction any given case falls under
- Judges when a law is unconstitutional
- Has the responsibility to administer Constitutional law and to apply it to constitutional disputes
- Determines the disposition of prisoners
- May legally compel testimony and the production of evidence as the law provides.
- Judges and competently administers uniform policies 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.)
- Oversees and administers members of the judiciary
- Is subject to impeachment by Congress
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Maintaining balance
The theoretical independence of the executive and legislative branches is partly maintained by the fact that they are separately elected and are held directly accountable to the public. There are also judicial prohibitions against certain types of interference in each others' affairs. (See "separation of powers" cases in the List of United States Supreme Court cases.) Judicial independence is maintained by life appointments of judges, with voluntary retirement, and a high threshold for removal by the legislature. In recent years, there have been accusations that the power to interpret the law is being misused (judicial activism) by some judges in the US. In the checks and balances system, the judicial branch has the right to say that something is unconstitutional, like a law or a bill (Credited to an opinion piece by Chief Justice John Marshall presiding over the case of Marbury v. Madison (1803)).
The legal mechanisms constraining the powers of the three branches depend a great deal on the sentiment of the people. A common perception is that popular support establishes legitimacy and makes possible the actual implementation of legal authority. National crises (such as the Civil War, the Great Depression, pre-Pearl Harbor World War II, the Vietnam War) have been the times at which the principle of separation of powers has been most endangered, either through official "misbehavior" or through the willingness of the public to sacrifice such principles if more pressing problems are solved. The system of checks and balances is also self-reinforcing. Potential abuse of power may be deterred, and the legitimacy and sustainability of any power grab is hindered by the ability of the other two branches to take corrective action; though they still must actually do so, therefore accountability is not automatic. This is intended to reduce opportunities for tyranny sometimes.
However, as James Madison wrote in Federalist No. 51 regarding the ability of each branch to defend itself from actions by the others, "But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates." Bicameralism was, in part, intended to reduce the relative power of the legislature by turning it against itself, by having "different modes of election and different principles of action." (This is one of the arguments against the popular election of Senators, which was instituted by the Seventeenth Amendment.) But when the legislature is unified, it can obtain dominance over the other branches.
State and local governments
The American states mirror the executive/legislative/judicial division of the federal government. Major cities tend to do so as well, but the arrangements of local and regional governments vary widely. Because the judicial branch is often a part of a state or county government, the geographic jurisdiction of local judges is often not coterminous with municipal boundaries.
In many American states and local governments, executive authority and law enforcement authority are separated by allowing citizens to directly elect public prosecutors (district attorneys and state attorneys-general). In some states, judges are also directly elected.
Many localities also separate special powers from their executive and legislative branches through the direct election of sheriffs, school boards, transit agency boards, park commissioners, etc.
Juries (groups of randomly selected citizens) also have an important role in the checks-and-balances system. They have the sole authority to not only determine the facts in most criminal and civil cases, but to judge the law, acting as a powerful buffer against arbitrary enforcement by the executive and judicial branches. In many jurisdictions they are also used to determine whether or not a trial is warranted, and in some places Grand Juries have independent investigative powers with regard to government operations.
Venezuela: five branches
The constitution establish that the government of Venezuela has five branches: the executive, the legislature, the judiciary, an electoral branch, and a citizen's branch that acts as an auditor.
Criticisms
It can be argued that there is no natural distinction between executive and legislative forms of government: legislation that is passed must always be executed, and much executive action requires new laws. This argument might be compared to the arangement between Architect, Contractor and Owner, where the architect designs a plan, the contractor executes it, and the owner pays. Not all plans are built as designed, but where there are change orders its the architect who writes them, where there are requisitions for payment its the architect who approves them, and where there are disputes its the architect who decides them.
As such, while the division can be said to be an artificial one, the roles defined by the division have different degrees of power and responsibility.In the United States the Legislative branch has all the power, the Executive branch has the responsibility to preserve, protect and defend the constitution and the laws of the United States and the Judicial branch decides.
There is currently no constitutional system which has a complete separation of powers where there is a distribution of functions among three independent organs with no overlapping or cross-coordination except for the United States as described above. Some of the early American States and the French Constitution of 1791 tried to enforce this doctrine strictly, but they failed. Instead, most constitutions give slightly overlapping powers to each branch, such as the US president's ability to veto legislation, or the power of judicial appointment.
Some observers believe that no obvious case exists in which such instability was prevented by the separation of powers. In parliamentary systems such as the United Kingdom the three "powers" are not separated (although the judiciary is independent). However, this has not threatened British stability, because the strong tradition of parliamentary sovereignty serves the purpose of limiting executive power.
In contrast, many countries which have adopted separation of powers (especially in Latin America) have suffered from instability (coups d'état, military dictatorships, civil war and unrest, etc). If the separated executive is granted strong powers, it may well encourage instability, because it is less consensus-oriented than a parliamentary system, and because it inures the population and political elite to the influence of a dominant leader. In times of instability, competing political groups can become obsessed with controlling the executive office, and it is often the loss of a presidential election which triggers greater instability. In a presidential system, there can only be one winning party, and all others fail entirely to gain power. In contrast, a parliamentary system can allow all political groups to have some share in control of the executive by participating in a coalition.
Some are concerned that where the executive branch is granted few powers, there is the danger of political gridlock. When the executive cannot operate without waiting for the the legislature to deliberate, then government action to solve problems can be delayed. Others are concerned that where there is deciciveness without deliberation the consequences can be grave.
Some political scientists have wondered whether there is a tendency for separation-of-power systems, especially those with strong executives, to develop into two-party systems . As the executive is as a "winner-take-all" position, voters and lobby groups might tend to adopt a strategy of supporting their preferred choice from the two leading candidates, the perception being that a vote or donation to a third-party candidate is a waste. As the executive is usually considered the most important position in government, members of the legislature will coalesce into groups supporting the two dominant executive candidates. Recently we have seen an alternative to this partisan schism may be offered when there is a competent and cooperative relationship established between branches respecting their established roles.
The categories of the functions and corresponding powers of government are inclined to become blurred when it is attempted to apply them to the details of a particular constitution. Some hold that the true distinction lies not in the nature of the powers themselves, but rather in the procedure by which they are exercised.
Sometimes systems with clearly defined separation of powers are complex and difficult for any person to understand, resulting in a nebulous political process and leading to a lack of engagement. Proponents of parliamentary systems and the legislative process claim that they make it easier to understand how "politics is done" by providing a clearer view of who does what, who is responsible for what, and who is to blame.
This is important when it comes to engaging the people in political debate and increasing citizens' interest and participation in politics. However, for a parliamentary system to work effectively, institutional arrangements such as fair electoral laws, freedom of the press, independent courts, due process, and the independence of the Houses of Parliament must be so designed as to prevent executive supremacy over the legislative and judicial branches while also encouraging a culture of public debate, open government, accountable office holders, and policy contest-ability and compromise, rather than a culture of "winner takes all" political domination.
Related restraint-of-power concepts
- Federalism, also known as vertical separation of powers — Prevents abuse by dividing governing powers, usually by separating municipal, provincial, and national governments. See also subsidiarity.
- Rule of law - Prevents arbitrary exercise of the executive power, preserves general and minority rights, and promotes stability and predictability.
- Democracy and civil society - Attempts to constrain elected branches of government to act in the public interest, not in self-interest.
- Separation of church and state or Laïcité - Ensures freedom of religion by preventing government interference in its practice. Also constrains the power of government by maintaining freedom of conscience and belief.
- Civilian control of the military - Helps prevent dictatorship that otherwise might occur through military rule.
- In some systems, an independent central bank.
- Separation of duties in organizations.
- Independent Civil Service.
- Negarchy - The self-interests of separate powers canceling one another via indirect yet interdependent means.
- Multicameralism - The division of legislature into separate autonomous chambers.
See also
External links
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