Separation of powers

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The separation of powers (or trias politica, a term coined by French political Enlightenment thinker Montesquieu) is a model for the governance of democratic states.

Under this international model the state is divided into branches, and each branch of the state has separate and independent powers and areas of responsibility; however, each branch is also able to place limited restraints on the power exerted by the other branches. The normal division of branches is into the executive (or government), the legislature, and the judiciary. The US system refers to the branches as "branches of government", while some systems use "government" to describe the executive.

Proponents of separation of powers believe that it protects democracy and forestalls tyranny; opponents of separation of powers believe that on the contrary it slows down the process. (This is also called the "Long Line" theory, originated by ancient southern folklore. No democratic system exists with an absolute separation of powers or an absolute lack of separation of powers. Nonetheless some systems are clearly based on the principle of separation of powers while others are clearly based on an entwining of powers.

Constitutions with a high degree of separation of powers are found worldwide, and are particularly common in the Americas, where the US system was the first such system. 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 President of India, who overlooks independent governing branches such as Election commission, Judiciary. Under the Indian constitution, just as in British System of government, Prime minister is a head of the governing party and functions through the selected group of ministers. Other countries, with little separation of power include New Zealand and Canada. Canada also makes limited use of separation of powers in practice, although in theory makes considerable distinction between branches of government.

Separation of powers systems are almost always presidential.

Contents

[edit] Writings of Montesquieu

Montesquieu described division of political power between an executive, a legislature, and a judiciary. He based this model on his perception of the British constitutional system, a system which he perceived to be based on a separation of powers between King, parliament and the law courts. Subsequent writers have noted that this was misleading since Great Britain had a very closely connected legislature and executive, and further links with the judiciary though combined with judicial independence.

[edit] Separation of powers and Presidentialism

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-man executive branch of state, the Federal Council. However some might argue that Switzerland does not have a strong separation of powers system, the Federal Council being initially appointed by parliament (but not dependent on parliament), and the judiciary having no judicial review powers.

[edit] Checks and balances

The phrase "checks and balances" was originally coined by Montesquieu. As such, when employing a system of checks and balances for governmental action to be processed, it must pass through a so-called Montesquieuian gauntlet. In a system of government with competing sovereigns (such as a multi-branch government or a federal system), "checks" refers to the ability, right, and responsibility of each power to monitor the activities of the other(s); "balances" refers to the ability of each entity to use its authority to limit the powers of the others, whether in general scope or in particular cases.

Keeping each independent entity within its prescribed powers can be a delicate process. Public support, tradition, and well-balanced tactical positions do help maintain such systems. Checks and balances make sure one branch is not too powerful.

The essential difference between the separation of powers as developed in common law theory and in France was that in the former, the checks and balances inherent in the mixed constitution and in Montesquieu's analysis were incorporated into the doctrine. In France, on the other hand, the judges were regarded as sources themselves of tyranny and not liberty as in England, and the hostility of Jean-Jacques Rousseau to any check or limit on the popular will, combined to establish the 'non-interference' model of the separation of powers.


  </ul>
 </td>
</tr>
<tr>
 <td valign="top">Legislative
(Congress)</td> <td valign="top">Executive
(President)</td> <td valign="top">Judicial
(Supreme Court)</td> </tr> <tr> <td valign="top">
  • Power to write laws
  • Power to enact taxes, authorize borrowing, and set the budget
  • Sole power to declare war
  • Various other powers of the federal government
  • Subpoena (investigative) power
  • Power to confirm Supreme Court judges and Executive cabinet officials
  • Each house is responsible for policing its own members.
  • Powers internal to the legislature are split between its two houses, the Senate and the House of Representatives. Only the House may originate spending bills. Only the House may impeach the President, but only the Senate may remove him or her from office. Only the Senate approves treaties and nominees.
  • Each house can prevent the other from passing any law.
  • Sole Federal Agency with the power to pass Constitutional amendments (by two-thirds majority and with the consent of three-quarters of the states)
  • Power to determine the size and structure of the courts
  • Power to determine the budgets of the courts
  • Responsibility for confirming judicial nominees
  • Power to impeach and remove judges
  • Power to determine courts' jurisdiction (except Supreme Court's original jurisdiction)
 </td>
 <td valign="top">
  • May veto about laws (but this may be overridden by a two-thirds majority in both houses)
  • May refuse to enforce certain laws
  • May refuse to spend money allocated for certain purposes
  • Sole power to wage war (operational command of the military)
  • Responsibility for making declarations (for example, declaring a state of emergency) and promulgating lawful regulations and executive orders
  • Executive privilege (refusal to submit to legislative subpoena)
  • Use of the bully pulpit to propose and advocate for laws
  • Responsibility to appoint judges
  • Power to grant pardons to federal offenders
 </td>
 <td valign="top">
  • May declare laws unconstitutional and unenforceable
  • Determines which laws apply to any given case
  • Sole power to interpret the law and apply it to particular disputes
  • Power to determine the disposition of prisoners
  • Appointed for life
  • Power to compel testimony and the production of documents
  • The appeals process enforces uniform policies in a top-down fashion, 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 being reviewed.)
  • May only rule in cases of an actual dispute brought between actual petitioners
  • Polices its own members
 </td>
</tr>

</table>

[edit] Maintaining balance

The 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, with voluntary retirement, and a high threshold for removal by the legislature. Recently the accusation of judicial activism has been levelled at some judges, and that the power of interpretation of law is misused.

The legal mechanisms constraining the powers of the three branches depend a great deal on the popular sentiment of the people of the United States. Popular support establishes legitimacy, and makes possible the physical implementation of legal authority. National crises (such as the Civil War, the Great Depression, pre-Pearl enjoyed their sovereign powers continuously since the founding of the republic.)

The system of checks and balancing is also self-reinforcing. Potential abuse of power is deterred and the legitimacy and sustainability of any power grab is undermined by the ability of the other two branches to take corrective action. This is intended to reduce opportunities for tyranny.

However, as James Madison wrote in Federalist 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 wields dominant, unbalanced, power over the other branches.

[edit] Fourth branch: Independent executive agencies

The federal executive is a very large bureaucracy, and due to civil service rules, most middle- and low-level employees do not change when a new person becomes President. (New high-level officials are usually appointed and must be confirmed by the Senate.) Moreover, semi-independent agencies (such as the Federal Reserve or the Federal Communications Commission) may be created by the legislature within the executive, which exercise legally defined regulatory powers. High-level regulators are appointed by the President and confirmed by the legislature, and must follow the law and perhaps 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

[edit] Fourth branch: The press

The press has also been described as a "fourth power" because of its considerable influence over public opinion (which it wields by widely distributing facts and opinions about the various branches of government). Public opinion in turn affects the outcome of elections, as well as indirectly influencing the branches of government by, for example, expressing public sentiment with respect to pending legislation. The press is also sometimes referred to as the Fourth Estate, a term of historical 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. An example of this was the Watergate scandal; where two Washington Post reporters exposed government corruption and coverup at the highest levels of government. This exposure caused many individuals to either resign, be fired, or prosecuted. Within the last decades it has been well established that large Media conglomerates have heavily influenced the press by editorializing the reported stories. This has been accomplished by the procurement of various News entities who have lost their autonomy and impartiality. It is well known that Media Conglomerates are staunch supporters of various government officials. Patterns of past performance have indicated that the conglomerate editorializing have usually been in favor of such Officials. This has caused somewhat of a deterioration in the "voice of the people".

[edit] Fourth branch: Direct Democracy

Direct Democracy

Initiative

Referendum

Recall

[edit] Politics as a check

Modern day politics may now be seen as a form of check and balance. The leader of the opposition has the ability to scrutinize the work of the government thus ensuring a further safeguard against any abuse of power by the executive. As a consequence, a leader may fall from power at the following election.

[edit] State and local governments

The American states mirror the executive/legislative/judicial split of the federal government. Major cities tend to do so as well, but in general, the arrangements for 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, and the like.

Juries (groups of randomly selected citizens) also have an important role in the check-and-balance system. They have the sole authority to determine the facts in most criminal and civil cases, 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.

[edit] Unusual systems not using three branches

[edit] Palestinian Authority: Two branches

When the Gaza Strip was given to Palestinian control in 2005, it only had executive and legislative branches. Plans, if any, for a judicial branch have not yet been described.

[edit] Venezuela: Multiple branches

Main article: Politics of Venezuela

Under reforms to the constitution made by controversial President Hugo Chavez and accepted in a referendum, politics of Venezuela has more than three branches: These are the executive, the legislature, the judiciary, and the citizenry. In addition, reference is made to an electoral branch of government.

[edit] Taiwan (Republic of China) : Five branches

Some countries take the doctrine further than the three-branch system. The government of the Republic of China, for example, has five branches: the Executive Yuan, Legislative Yuan, Judicial Yuan, Control Yuan, and Examination Yuan. (Some European countries have rough analogues to the Control Yuan in the forms of ombudsmen, separate from the executive and the legislature.)

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.[1]

[edit] Rejection of the separation of powers: Parliamentary systems

Countries such as the United States use a system of separation of powers. Around the world, a more common system is the parliamentary system. In parliamentary democracies, the executive branch is dependent on, and in a sense part of, the legislature.

[edit] Case study: United Kingdom

Further information: Constitution of the United Kingdom

Separation of powers is a traditional part of the political thought of the United Kingdom. The executive is drawn from the legislature, and is subordinate to it. Since the executive is drawn from the leadership of the dominant party in parliament, party discipline often results in a de facto situation of executive control of the legislature, although in fact MPs can reject their leadership and vote against them (this is relatively rare but happens from time to time). The House of Lords is the highest court of appeal for civil matters in the United Kingdom and for criminal matters for England, Wales and Northern Ireland, however the House of Lords is the highest appeal for civil cases in Scotland. These appeals are heard by Lords of Appeal in Ordinary (Law Lords) who, in effect, are a committee of the House of Lords. This means that the highest court of appeal is part of the House of Lords and thus part of the legislature. At times, various Home Secretaries have taken decisions which in other countries are judicial, such as the release, or continued detention, of prisoners. Thus it can be seen that in the United Kingdom the three "powers" are not separated, but are entwined. However, this has never threatened British civil government. In contrast, many countries which have adopted separation of powers (especially in Latin America) have suffered from instability (coups d'etat, military dictatorships etc.). Some observers believe that no obvious case exists in which such instability was prevented by the separation of powers.

Parliamentary sovereignty is the concept in British constitutional law that a parliament has ultimate authority over all affairs of government, except the monarch.

  • Parliament can make law concerning anything, as long as Royal assent is given.
  • No Parliament can bind its successor (that is, it cannot pass a law that cannot be changed or reversed by a future Parliament).
  • No body except Parliament can change or reverse a law passed by Parliament.

This means that any legal instrument, international treaty and constitutional convention limiting parliament's power can be overturned by parliament by a simple majority, (assuming Royal assent is given). This is in direct opposition to the concept of separation of powers.

The Crown has distinct functions in its different spheres. Curiosities - such as the Lord Chancellor having an executive, legislative, and judicial role; and the House of Lords being a legislative chamber, but including some senior judges - are in the process of reform. The Constitutional Reform Act 2005 seeks to bring a small amount of separation of powers to the British system. Some have defended the current system on the grounds that it discourages judges from making law by judicial rather than legislative means.

In recent years there has been talk of the creation of a UK supreme court, although details are undecided. If this were to come into being, it would not be as independent and powerful as the US Supreme Court. It would, however, produce a limited separation of powers as it would be a largely independent high judicial body. On the other hand, it will be partially dependent on whichever government parliament should choose. Crucially, parliament would be able to dissolve such a supreme court by a simple majority vote, under the doctrine of parliamentary sovereignty.

[edit] The press around the world

Media freedom is generally considered to be a core supporting mechanism for 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 one way or another, but in strong democracies, even these media outlets enjoy strong editorial independence from the government.

An independent press acts as a powerful check against all forms of government, because it provides information about its activities to the public.

[edit] Criticisms

It can be argued that there is no natural distinction between executive and legislative forms of government: legislation passed must always be enacted, and much executive action requires new laws. As such, the division can be said to be an artificial one. This is borne out by the fact that there is no current constitutional system which adopts a complete separation of powers, in the sense of a distribution of the three functions among three independent sets of organs with no overlapping or coordination. Some of the early American States and the French Constitution of 1791 tried strictly to give effect to this doctrine but failed. Instead, most constitutions give slightly overlapping powers to each branch, such as the US president's legislative ability to veto, or judicial power of 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'etat, military dictatorships, civil war etc). If the separated executive is granted strong powers, it may well encourage instability, because it is less consensus-orientated than a parliamentary system, and because it accustoms the population & political elite to an excessively dominant individual 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, at least in theory.

Alternatively, if the separated executive is granted few powers, there can be the danger of political gridlock. When the executive cannot control, or in some cases even work with, the legislature, then government action to solve society's problems can be limited. This can be the case when attempting to deal with short-term crises (such as the French government finding it difficult to pass laws to deal with a flailing economy), or to deal with longer term problems (like the failure of the US government to provide universal healthcare, despite numerous bills and longterm public support for such a system).

Political scientists have also noted the tendency for separation of power system, especially those with strong executives, to develop into two-party systems. As the executive functions as a "winner takes all" position, voters and lobby groups tend to operate strategically and will support their preferred choice from the two leading candidates, feeling that a third candidate is a wasted vote or donation. As the executive is usually considered the most important position in government (even in systems with strong legislatures like the U.S.), members of the legislature will coalesce into groups supporting the two dominant executive candidates.

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 strong separation of powers are pointed out as difficult to understand for the average person, when the political process is often somewhat fuzzy. Then a parlamentarian system often provides a clearer view and it is easier to understand how "politics are made". This is sometimes important when it comes to engaging the people in the political debate and increase the citizen participatory.

[edit] Related restraint-of-power concepts

  • Federalism - (also known as vertical separation of powers) Preventing abuse by dividing governing powers, the separation is usually between 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.

[edit] See also

ca:Separació de poders da:Magtadskillelse de:Gewaltenteilung es:Separación de poderes eo:Disigo de povoj fr:Séparation des pouvoirs id:Pemisahan kekuasaan is:Þrískipting ríkisvaldsins it:Separazione dei poteri he:הפרדת רשויות lt:Valdžių pasidalijimo principas ms:Pembahagian kuasa nl:Scheiding der machten ja:権力分立 no:Maktfordelingsprinsippet nn:Maktfordelingsprinsippet pl:Trójpodział władzy pt:Teoria da separação dos poderes ru:Разделение властей sk:Deľba moci fi:Vallan kolmijako -oppi sv:Maktdelningsprincipen vi:Tam quyền phân lập yi:אויטאריטעט צעטיילונג zh:三权分立

Separation of powers

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