Separation of powers, therefore, refers to the division of
responsibilities into distinct branches to limit any one branch from
exercising the core functions of another. The intent of separation of
powers is to prevent the concentration of unchecked power by providing
for "checks" and "balances" to avoid autocracy,
over-reaching by one branch over another, and the attending efficiency
of governing by one actor without need for negotiation and compromise
with any other.
The separation of powers model is often imprecisely and metonymically used interchangeably with the trias politica principle. While the trias politica is a common type of model, there are governments which utilize bipartite, rather than tripartite, systems as mentioned later in the article.
The separation of powers model is often imprecisely and metonymically used interchangeably with the trias politica principle. While the trias politica is a common type of model, there are governments which utilize bipartite, rather than tripartite, systems as mentioned later in the article.
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).
Early modern biparty systems
John Calvin (1509–1564) favoured a system of government that divided political power between democracy and aristocracy (mixed government). Calvin appreciated the advantages of democracy, stating: "It is an invaluable gift if God allows a people to elect its own government and magistrates."
In order to reduce the danger of misuse of political power, Calvin
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 aimed to protect the rights and the well-being of ordinary people. In 1620, a group of English separatist Congregationalists and Anglicans (later known as the 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 legislature and judiciary and which in turn elected
a governor, who together with his seven "assistants" served in the
functional role of providing executive power. 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.) Books like William Bradford's History of Plymoth Plantation (written between 1630 and 1651) were widely read in England. So the form of government in the colonies was well known in the mother country, including to the philosopher John Locke
(1632–1704). He deduced from a study of the English constitutional
system the advantages of dividing political power 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 power, responsible
for the protection of the country and prerogative of the monarch, on the
other hand. (The Kingdom of England had no written constitution.)
Montesquieu's separation of powers system
The term "tripartite system" is commonly ascribed to French Enlightenment political philosopher Baron de Montesquieu, although he did not use such a term. In reality he referred to "distribution" of powers. In The Spirit of the Laws (1748), Montesquieu described the various forms of distribution 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, form of government known then as
"aristocracy". 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.
In the British constitutional system, Montesquieu discerned a
separation of powers among the monarch, Parliament, and the courts of
law.
In every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the judiciary in regard to matters that depend on the civil law. By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions. By the third, he punishes criminals, or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other, simply, the executive power of the state.
— The Spirit of the Laws, Book XI
Montesquieu argues that each Power should only exercise its own functions, it was quite explicit here:
When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.
Again, there is no liberty if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.
There would be an end of every thing, were the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.
— The Spirit of the Laws, Book XI
Separation of powers requires a different source of legitimization,
or a different act of legitimization from the same source, for each of
the separate powers. If the legislative branch appoints the executive
and judicial powers, as Montesquieu indicated, there will be no
separation or division of its powers, since the power to appoint carries
with it the power to revoke.
The executive power ought to be in the hands of a monarch, because this branch of government, having need of dispatch, is better administered by one than by many: on the other hand, whatever depends on the legislative power, is oftentimes better regulated by many than by a single person. But, if there were no monarch, and the executive power should be committed to a certain number of persons, selected from the legislative body, there would be an end of liberty, by reason the two powers would be united; as the same persons would sometimes possess, and would be always able to possess, a share in both.
— The Spirit of the Laws, Book XI
Montesquieu did actually specify that the independence of the judiciary has to be real, and not merely apparent. The judiciary was generally seen as the most important of the three powers, independent and unchecked, while also likely to claim to be the least dangerous one.
Checks and balances
Checks and balances is the principle that each of the Branches has
the power to limit or check the other two and this creates a balance
between the three separate powers of the state, this principle induces
that the ambitions of one branch prevent that one of the other branches
becomes supreme, and thus be eternally confronting each other and in
that process leaving the people free from government abuses.
Immanuel Kant
was an advocate of this, noting that "the problem of setting up a state
can be solved even by a nation of devils" so long as they possess an
appropriate constitution to pit opposing factions against each other.
Checks and Balances are designed to maintain the system of
separation of powers keeping each branch in its place. This is based on
the idea that it is not enough to separate the powers and guarantee
their independence but to give the various branches the constitutional
means to defend their own legitimate powers from the encroachments of
the other branches.
They guarantee that the powers of the state have the same weight
(co-equal), that is, to be balanced, so that they can limit each other,
avoiding the abuse of state power. The origin of checks and balances,
like separation of powers itself, is specifically credited to Montesquieu in the Enlightenment (in The Spirit of the Laws, 1748), under this influence was implemented in 1787 in the Constitution of the United States.
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.
«But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.» «A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.»
| Legislative (Congress) | Executive (President) | Judicial (Supreme Court) |
|---|---|---|
|
|
|
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. 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
Additional branches
- Auditory
- Electoral – in which election commissions, tribunals or courts are maintained separately from other branches
- Prosecutory
- Civil service commission
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 US 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
Hans Kelsen was the principal author of the tripartite Constitution of 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.
Czech Republic
The Constitution of the Czech Republic, adopted in 1992 immediately before the dissolution of Czechoslovakia, establishes the traditional tripartite division of powers and continues the tradition of its predecessor constitutions.
The Czechoslovak Constitution of 1920,
which replaced the provisional constitution adopted by the newly
independent state in 1918, was modeled after the constitutions of
established democracies such as those of the United Kingdom, United States and France, and maintained this division, as have subsequent changes to the constitution that followed in 1948 with the Ninth-of-May Constitution, the 1960 Constitution of Czechoslovakia as well as the Constitutional Act on the Czechoslovak Federation of 1968.
Denmark
- Parliament – legislature
- Prime Minister, Cabinet, Government Departments and Civil Service – executive
- High Courts and lower courts – judiciary
France
According to the Constitution of the Fifth Republic, the government of France is divided into three branches:
- Executive. This includes the popularly elected president as well as the prime minister and cabinet. The French Prime minister is nominated by the president, but the government is responsible to the lower house of the legislature, the National Assembly.
- Legislature. A bicameral legislature that includes the Senate (upper house) and the National Assembly (lower house). The relationship between the two houses is asymmetric, meaning that in case of dispute, the National Assembly has the final word according to Article 45 of the Constitution.
- Judiciary. This includes the judicial and administrative orders. It also includes a constitutional court.
Hong Kong
Hong Kong is a Special Administrative Region established in 1997 pursuant to the Sino-British Joint Declaration, an international treaty made between Britain and China in 1984, registered with the United Nations. Currently, Hong Kong has three branches of government as codified in the Basic Law, its constitution, which largely preserved political structures of the British colonial era, under the doctrine of one country, two systems:
- Legislative Council – legislature
- Government – executive
- Judiciary (Court of Final Appeal and other courts and tribunals) – judiciary
The Chief Executive, elected by a 1200-member Election Committee
which historically was dominated by pro-Beijing establishment members,
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 legislature consists of 70 members, 35 of whom are elected by
"functional" constituencies represented by members within various
industries rather than the public at large. Separation of power between executive and legislature is, therefore, questionable.
The courts frequently exercise a power of judicial review of administrative actions and also decide matters of constitutionality
of legislation, though this power is circumscribed under the power of
the People's Republic of China's National People's Congress to make
final determinations as to interpretation. Hence, the separation of powers is again structurally weak.
It is worth noting that the branches' separation of power may not be intended within the Hong Kong Basic Law as leaders of the PRC have publicly called for the three branches to cooperate and be led by the Chief Executive.
Further, Deng Xiaoping was quoted to have categorically dismissed Hong Kong having a "Trias Politica" system.
India
India follows constitutional democracy
which offers a clear separation of powers. The judiciary branch is
fairly independent of the other two branches with the power to interpret
the constitution. Parliament has the legislative powers. Executive powers are vested with the President who is advised by the Union Council of Ministers headed by the Prime Minister.
The constitution of India vested the duty of protecting, preserving and
defending the constitution with the President as common head of the
executive, parliament, armed forces, etc. not only for the union government but also the various state governments in a federal structure.
All three branches have "checks and balances" over each other to
maintain the balance of power and not to exceed the constitutional
limits.
- President can set aside a law passed by the legislative or an advise given by the Union Council of Ministers when it is inconsistent with the constitution of India.
- Even if the president accepts a law passed duly by the legislative, it can be repealed by the Supreme Court after a fair trial if it is against the Basic structure of the constitution. Any citizen of India can approach the Supreme Court directly to repeal the unconstitutional laws made by the legislative or executive.
- President can be impeached after conducting a fair trial by the parliament for his unconstitutional orders/decisions.
- President can be asked to step down by the judiciary for his unconstitutional orders/decisions on the grounds of losing eligibility criteria of the president.
- Parliament can impeach judges of Supreme Court and High Courts of states for their incompetence and mala fides. Higher bench of judges can set aside the incorrect judgements of smaller bench of judges to uphold the constitution.
Iran
- Government – Executive
- The legislature of Islamic Republic of Iran – Legislative
- Judicial system – Judicial
Italy
In Italy the powers are separated, 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).
Like every parliamentary form of government, there is no real separation between Legislature and Executive, rather a continuum between them due to the confidence link. By the way, the balance is protected by Constitution also between these two branches. and, obviously, between them and the judiciary branch, which is really independent.
Malaysia
- Parliament – legislature
- Prime Minister, Cabinet, Government Departments and Civil Service – executive
- Federal Courts and lower courts – judiciary
Nepal
- Legislative Parliament – Legislature
- Prime Minister, Cabinet of Minister and Government Departments – Executive
- Supreme Court – Judiciary
Norway
- Parliament – legislature
- The King, Prime Minister, Cabinet of Norway, Government Departments and Civil Service – executive
- The Supreme Court, High Courts and lower courts – judiciary
A note on the status of separation of power, checks and balances, and balance of power in Norway today.
In the original constitution of 1814 the Montesquieu concept was
enshrined, and the people at the time had the same skepticism about
political parties as the American founding fathers and the
revolutionaries in France. Nor did people really want to get rid of the
king and the Council of State (privy council). King and council was a
known concept that people had lived with for a long time and was for the
most part comfortable with. The 1814 constitution came about as a
reaction to external events, most notable the Treaty of Kiel see 1814 in Norway. There was no revolution against the current powers that had been the case in the US and France.
As there was no election of the executive, the king reigned
supremely independent in selecting the members of the Council of State,
no formal political parties formed until the 1880s. A conflict between
the executive and legislature started developing in the 1870s and
climaxed with the legislature impeaching the entire Council of State in
1884.
With this came a switch to a parliamentary system of government and while the full process takes decades, it has led to a system of parliamentary sovereignty
where the Montesquieu idea of separation of powers is technically dead
even though the three branches remain important institutions.
This does not mean that there are no checks and balances.
With the introduction of a parliamentary system, political parties
started to form quickly and this led to a call for electoral reform that
saw the introduction of a Party-list proportional representation
in 1918. The peculiarities of the Norwegian election system generate
6–8 parties and make it extremely difficult for a single party to gain
an absolute majority. It has only occurred for a brief period in the
aftermath of World War II where the Labour Party had an absolute majority.
A multi-party system
parliament that must either form a minority executive or a coalition
executive function as a perfectly good system of checks and balances
even if it was never a stated goal for the introduction of multiparty
system. The multiparty system came about in response to a public outcry
of having too few parties and a general feeling of a lack of
representation. For this reason you'll find very little on the topic of
separation of powers or checks and balances in the works of Norwegian
political sciences today.
Pakistan
- Parliament – Legislative
- Prime Minister and their Cabinet – Executive
- Supreme Court and lower courts – Judicial
United Kingdom
- Parliament – legislature
- Prime Minister, Cabinet, Government Departments and Civil Service – executive
- Courts – judiciary
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:
- 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 counsel 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
George Washington at Constitutional Convention of 1787, signing of U.S. Constitution
U.S. Supreme Court Justice Antonin Scalia testified before the Senate Judiciary Committee about separation of powers and checks and balances of the U.S. Government
Separation of powers was first established in the United States Constitution,
the founding fathers included features of many new concepts, including
hard-learned historical lessons about the checks and balances of power.
Similar concepts were also prominent in the state governments of the
United States. As colonies of Great Britain, the founding fathers
considered that the American states had suffered an abuse of the broad
power of parliamentarism and monarchy. As a remedy, the US Constitution
limits the powers of the federal government through various means, in
particular, the three branches of the federal government are divided by
exercising different functions, and the executive and legislative powers
are separated in origin by separate elections and the judiciary is kept
independent, each branch controls the actions of others and balances
its powers in some way.
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." 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.
The presidential system adopted by the Constitution of the United
States obeys the balance of powers sought, and not found, by the
constitutional monarchy. The people appoint their representatives to
meet periodically in a legislative body, and, since they do not have a
king, the people themselves elect a preeminent citizen to perform, also
periodically, the executive functions of the State. The direct election
of the head of state or of the executive power is an inevitable
consequence of the political freedom of the people, understood as the
capacity to appoint and depose their leaders. Only this separate
election of the person who has to fulfill the functions that the
Constitution attributes to the president of the government, so different
by its nature, and by its function, from the election of
representatives of the electors, allows the executive power to be
controlled by the legislative and submitted to the demands of political
responsibility.
Judicial independence
is maintained by appointments for life that removes any dependence on
the Executive, with voluntary retirement and a high threshold for
dismissal by the Legislature, in addition to a salary that can not be
diminished during their service.
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.
«In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them.» «It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal.»
Other systems
Republic of China
According to Sun Yat-sen's idea of "separation of the five powers", the government of the Republic of China has five branches:
- Executive Yuan – led by the premier but in actuality it is the president who sets policy – executive
- Legislative Yuan – unicameral – legislature
- Judicial Yuan – its Constitutional Court (highest) and Supreme Court have different jurisdictions – judiciary
- Control Yuan – audit branch
- Examination Yuan – civil service personnel management and human resources
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 standing constituent assembly 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.
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):
- The legislative power is attributed to an elected parliamentary body elected with a representative general election system (one person one vote).
- The executive power is attributed to the Council of Ministers. Ministers are formally appointed by the King, though in practice the prime minister decides the composition of his cabinet. The ministers are usually from the elected members of parliament (non-elected people can also be nominated). However, they must first resign from their elected seat.
- The judicial power is in the hands of the courts. Magistrates are
nominated by the minister (on proposal from a Council of the
Magistrates).
- Magistrates can be nominated to become a 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 (military, police-officers, clergy, notaries, bailiffs).
Subsidiarity (vertical separation of powers):
- Supranational directives (EU legislation) and international treaties are subjected to approval of the federal level (the federal level being Belgium the nation state)
- The federal level is composed of the following:
- 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 (led by the Prime Minister and the ministers and secretaries of state)
- Tasked with overseeing justice, defense, foreign affairs, and social security, public health
- High Court, Constitutional Court, Cassation Court and Council of State
- The regional level is composed of the following:
- A monocameral parliament
- A regional government led by the minister-president (ministers and secretaries of state) is tasked with regional matters.
- Provinces also have similar structures:
- A monocameral provincial council
- A nominated provincial governor assisted by deputies is tasked with provincial matters.
- Appellate Court, Assisses Court
- An intermediate level of Arrondissements subdivides the provinces
- it has only an executive level with an arrondissemental commissars
- City and communal entities:
- A city or communal council
- A mayor, assisted by aldermen, is tasked with local matters.
- Magistrates Court, Correctional Court (three judges).
- Justice of the peace and Police Court judges (single judge courts)
Secularism (separation of state and religion):
- The king, the head of state, holds no political authority and requires executive approval by a minister for every action and statement; he nominates the ministers but he does not 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 people must resign from their function if they want to assume responsibilities in another function (military commanders have never been government ministers, even during a war)
Costa Rica
In the aftermath of the 43-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 Tribunal Supremo de Elecciones de Costa Rica (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 it complies 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.
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).
- Council of the European Union – executive and legislative
- European Commission – executive, legislative and quasi-judicial
- European Council – executive
- European Court of Auditors – audit
- Court of Justice of the European Union and the General Court – judicial
- European Parliament – legislative
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:
- Federal President (Bundespräsident) – formally executive, but mainly representative in daily politics
- Federal Cabinet (Bundesregierung) – executive
- Federal Diet (Bundestag) & Federal Council (Bundesrat) – bicameral legislative
- Federal Assembly (Bundesversammlung) – presidential electoral college (consisting of the members of the Bundestag and electors from the constituent states)
- Federal Constitutional Court (Bundesverfassungsgericht) – judiciary
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:
- Parliament (Magyar Országgyűlés): elected every 4 years by the people in a highly complex, one-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). The President's task is to oversee the functioning of the democracy. Most of his/her powers are ceremonial only: like signing laws into power and commanding the military in time of peace. But before signing, once he/she can also return accepted bills with advices to the Parliament for reconsideration, he/she can also request nullification in advance from the Constitutional Court. He can negotiate with civil/professional unions regarding the bills. Without the President's permission, the country can neither declare war nor deploy the armed forces.
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.
Historical
Notable examples of states after Montesquieu that had more than three powers include:
- Quadripartite Systems:
- The Empire of Brazil (1822–1889) had, in addition to the three traditional powers, the moderating power, which was exercised solely by the Emperor, and which function was resolving conflicts between the other powers.
