Judicial activism refers to judicial
rulings that are suspected of being based on personal opinion, rather
than on existing law. It is sometimes used as an antonym of judicial restraint.
The definition of judicial activism and the specific decisions that are
activist are controversial political issues. The question of judicial
activism is closely related to constitutional interpretation, statutory construction, and separation of powers.
The phrase has been controversial since its beginning. An article
by Craig Green, "An Intellectual History of Judicial Activism," is
critical of Schlesinger's use of the term; "Schlesinger's original
introduction of judicial activism was doubly blurred: not only did he
fail to explain what counts as activism, he also declined to say whether
activism is good or bad."
Even before this phrase was first used, the general concept already existed. For example, Thomas Jefferson referred to the "despotic behaviour" of Federalist federal judges, in particular Chief Justice John Marshall.
Definitions
A survey of judicial review in practice during the last three decades
shows that 'Judicial Activism' has characterised the decisions of the
Supreme Court at different times.
Black's Law Dictionary
defines judicial activism as a "philosophy of judicial decision-making
whereby judges allow their personal views about public policy, among
other factors, to guide their decisions."
Political science professor Bradley Canon has posited six dimensions along which judge courts may be perceived as activist:
majoritarianism, interpretive stability, interpretive fidelity,
substance/democratic process, specificity of policy, and availability of
an alternate policymaker. David A. Strauss has argued that judicial
activism can be narrowly defined as one or more of three possible
actions: overturning laws as unconstitutional, overturning judicial precedent, and ruling against a preferred interpretation of the constitution.
Others have been less confident of the term's meaning, finding it instead to be little more than a rhetorical shorthand. Kermit Roosevelt III
has argued that "in practice 'activist' turns out to be little more
than a rhetorically charged shorthand for decisions the speaker
disagrees with"; likewise, the solicitor general under George W. Bush, Theodore Olson, said in an interview on Fox News Sunday, in regards to a case for same-sex marriage he had successfully litigated, that "most people use the term 'judicial activism' to explain decisions that they don't like." Supreme Court Justice Anthony Kennedy has said that, "An activist court is a court that makes a decision you don't like."
Debate
Detractors of judicial activism charge that it usurps the power of
the elected branches of government or appointed agencies, damaging the
rule of law and democracy. Defenders of judicial activism say that in many cases it is a legitimate form of judicial review, and that the interpretation of the law must change with changing times.
A third view is that so-called "objective" interpretation of the
law does not exist. According to law professor Brian Z. Tamanaha,
"Throughout the so-called formalist age, it turns out, many prominent
judges and jurists acknowledged that there were gaps and uncertainties
in the law and that judges must sometimes make choices." Under this view, any judge's use of judicial discretion
will necessarily be shaped by that judge's personal and professional
experience and his or her views on a wide range of matters, from legal
and juridical philosophy to morals and ethics. This implies a tension
between granting flexibility (to enable the dispensing of justice) and
placing bounds on that flexibility (to hold judges to ruling from legal
grounds rather than extralegal ones).
Some proponents of a stronger judiciary argue that the judiciary
helps provide checks and balances and should grant itself an expanded
role to counterbalance the effects of transient majoritarianism,
i.e., there should be an increase in the powers of a branch of
government which is not directly subject to the electorate, so that the
majority cannot dominate or oppress any particular minority through its
elective powers.
Other scholars have proposed that judicial activism is most
appropriate when it restrains the tendency of democratic majorities to
act out of passion and prejudice rather than after reasoned
deliberation.
Moreover, they argue that the judiciary strikes down both elected
and unelected official action, in some instances acts of legislative
bodies reflecting the view the transient majority may have had at the
moment of passage and not necessarily the view the same legislative body
may have at the time the legislation is struck down. Also, the judges
that are appointed are usually appointed by previously elected executive
officials so that their philosophy should reflect that of those who
nominated them, that an independent judiciary is a great asset to civil
society since special interests are unable to dictate their version of
constitutional interpretation with threat of stopping political
donations.
United States examples
The following rulings have been characterized as judicial activism.
District of Columbia v. Heller
- 2008 Supreme Court decision affirming that the Second Amendment
protects an individual right, unrelated to military service, to keep and
bear arms.
While the term was first coined and is often used in the United
States, it has also been applied in other countries, particularly common law jurisdictions.
India
India has a recent history of judicial activism, originating after the emergency in India which saw attempts by the Government to control the judiciary.Public Interest Litigation was thus an instrument devised by the courts to reach out directly to the public, and take cognizance though the litigant may not be the victim. "Suo motu" cognizance allows the courts to take up such cases on its own. The trend has been supported as well criticized. New York Times author Gardiner Harris sums this up as India’s judges have
sweeping powers and a long history of judicial activism that would be
all but unimaginable in the United States. In recent years, judges
required Delhi’s auto-rickshaws to convert to natural gas to help cut
down on pollution,
closed much of the country’s iron-ore-mining industry to cut down on
corruption and ruled that politicians facing criminal charges could not
seek re-election.
Indeed, India’s Supreme Court and Parliament have openly battled for
decades, with Parliament passing multiple constitutional amendments to
respond to various Supreme Court rulings.
All such rulings carry the force of Article 39A of the Constitution of India, although before and during the Emergency the judiciary desisted from "wide and elastic" interpretations, termed Austinian, because Directive Principles of State Policy are non-justiciable. This despite the constitutional provisions for judicial review and B R Ambedkar
arguing in the Constituent Assembly Debates that "judicial review,
particularly writ jurisdiction, could provide quick relief against
abridgment of Fundamental Rights and ought to be at the heart of the
Constitution."
Recent examples quoted include the order to Delhi Government to convert the Auto rickshaw to CNG, a move believed to have reduced Delhi's erstwhile acute smog problem (it is now argued to be back) and contrasted with Beijing's.
Israel
The Israeli approach to judicial activism has transformed significantly in the last three decades, and currently presents an especially broad version of robust judicial review and intervention.
Additionally, taking into consideration the intensity of public life in
Israel and the challenges that the country faces (including security
threats), the case law of the Israeli Supreme Court touches on diverse and controversial public matters.
The term Fourth Estate or fourth power refers to the press and news media
both in explicit capacity of advocacy and implicit ability to frame
political issues. Though it is not formally recognized as a part of a
political system, it wields significant indirect social influence.
The derivation of the term fourth estate arises from the traditional European concept of the three estates of the realm:
the clergy, the nobility, and the commoners. The equivalent term
"fourth power" is somewhat uncommon in English, but it is used in many
European languages, including German (Vierte Gewalt), Spanish (Cuarto poder), and French (Quatrième pouvoir), to refer to a government's separation of powers into legislative, executive, and judicial branches.
In modern use, the term is applied to the press, with the earliest use in this sense described by Thomas Carlyle in his book On Heroes and Hero Worship:
"Burke said there were Three Estates in Parliament; but, in the
Reporters' Gallery yonder, there sat a Fourth Estate more important far
than they all."
In Burke's 1787 coining, he would have been making reference to the traditional three estates of Parliament: The Lords Spiritual, the Lords Temporal and the Commons.
If, indeed, Burke did make the statement Carlyle attributes to him, the
remark may have been in the back of Carlyle's mind when he wrote in his
French Revolution (1837) that "A Fourth Estate, of Able Editors, springs up; increases and multiplies, irrepressible, incalculable." In this context, the other three estates are those of the French States-General: the church, the nobility and the townsmen. Carlyle, however, may have mistaken his attribution: Thomas Macknight, writing in 1858, observes that Burke was merely a teller at the "illustrious nativity of the Fourth Estate". If Burke is excluded, other candidates for coining the term are Henry Brougham speaking in Parliament in 1823 or 1824 and Thomas Macaulay in an essay of 1828 reviewing Hallam's Constitutional History: "The gallery in which the reporters sit has become a fourth estate of the realm." In 1821, William Hazlitt (whose son, also named William Hazlitt, was another editor of Michel de Montaigne—see below) had applied the term to an individual journalist, William Cobbett, and the phrase soon became well established.
In old days men had the rack. Now
they have the Press. That is an improvement certainly. But still it is
very bad, and wrong, and demoralizing. Somebody — was it Burke? — called
journalism the fourth estate. That was true at the time no doubt. But
at the present moment it is the only estate. It has eaten up the other
three. The Lords Temporal say nothing, the Lords Spiritual have nothing
to say, and the House of Commons has nothing to say and says it. We are
dominated by Journalism.
In United States English, the phrase "fourth estate" is contrasted with the "fourth branch of government",
a term that originated because no direct equivalents to the estates of
the realm exist in the United States. The "fourth estate" is used to
emphasize the independence of the press, while the "fourth branch"
suggests that the press is not independent of the government.
The networked Fourth Estate
Yochai Benkler, author of the 2006 book The Wealth of Networks, described the "Networked Fourth Estate" in a May 2011 paper published in the Harvard Civil Liberties Review. He explains the growth of non-traditional journalistic media on the Internet and how it affects the traditional press using WikiLeaks as an example. When Benkler was asked to testify in the United States vs. PFC Bradley E. Manning
trial, in his statement to the morning 10 July 2013 session of the
trial he described the Networked Fourth Estate as the set of practices,
organizing models, and technologies that are associated with the free
press and provide a public check on the branches of government.
It differs from the traditional press and the traditional fourth estate
in that it has a diverse set of actors instead of a small number of
major presses. These actors include small for-profit media
organizations, non-profit media organizations, academic centers, and
distributed networks of individuals participating in the media process
with the larger traditional organizations.
Alternative meanings
In European law
In 1580 Montaigne proposed that governments should hold in check a fourth estate of lawyers selling justice to the rich and denying it to rightful litigants who do not bribe their way to a verdict:
What is more barbarous than to see a nation [...] where justice is lawfully denied him, that hath not wherewithall [sic]
to pay for it; and that this merchandize hath so great credit, that in a
politicall government there should be set up a fourth estate [tr. French: quatriesme estat (old orthography), quatrième état (modern)] of Lawyers, breathsellers and pettifoggers [...].
— Michel de Montaigne, in the translation by John Florio, 1603
None of our political writers ...
take notice of any more than three estates, namely, Kings, Lords, and
Commons ... passing by in silence that very large and powerful body
which form the fourth estate in this community ... The Mob.
This sense has prevailed in other countries: In Italy, for example, striking workers in 1890s Turin were depicted as Il quarto stato—The Fourth Estate—in a painting by Giuseppe Pellizza da Volpedo.] A political journal of the left, Quarto Stato, published in Milan, Italy, in 1926, also reflected this meaning.
Far-right theorist Julius Evola saw the Fourth Estate as the final point of his historical cycle theory, the regression of the castes:
[T]here are four stages: in the
first stage, the elite has a purely spiritual character, embodying what
may be generally called "divine right." This elite expresses an ideal of
immaterial virility. In the second stage, the elite has the character
of warrior nobility; at the third stage we find the advent of
oligarchies of a plutocratic and capitalistic nature, such as they arise
in democracies; the fourth and last elite is that of the collectivist
and revolutionary leaders of the Fourth Estate.
Separation of state powers: executive, legislative, judicial; classification of systems of government based on their principles
Charles-Louis de Secondat, Baron de La Brède et de Montesquieu; 18 January 1689 – 10 February 1755), generally referred to as simply Montesquieu, was a French judge, man of letters, and political philosopher.
He is famous for his articulation of the theory of separation of powers, which is implemented in many constitutions throughout the world. He is also known for doing more than any other author to secure the place of the word "despotism" in the political lexicon. His anonymously published The Spirit of the Laws in 1748, which was received well in both Great Britain and the American colonies, influenced the Founding Fathers in drafting the United States Constitution.
Biography
Château de la Brède
Montesquieu was born at the Château de la Brède in southwest France, 25 kilometres (16 mi) south of Bordeaux.
His father, Jacques de Secondat, was a soldier with a long noble
ancestry. His mother, Marie Françoise de Pesnel, who died when Charles
was seven, was an heiress who brought the title of Barony of La Brède to
the Secondat family. After the death of his mother he was sent to the CatholicCollege of Juilly, a prominent school for the children of French nobility, where he remained from 1700 to 1711. His father died in 1713 and he became a ward of his uncle, the Baron de Montesquieu. He became a counselor of the Bordeaux Parliament in 1714. The next year, he married the Protestant Jeanne de Lartigue, who eventually bore him three children. The Baron died in 1716, leaving him his fortune as well as his title, and the office of président à mortier in the Bordeaux Parliament.
Montesquieu's early life occurred at a time of significant governmental change. England had declared itself a constitutional monarchy in the wake of its Glorious Revolution (1688–89), and had joined with Scotland in the Union of 1707 to form the Kingdom of Great Britain. In France, the long-reigning Louis XIV died in 1715 and was succeeded by the five-year-old Louis XV. These national transformations had a great impact on Montesquieu; he would refer to them repeatedly in his work.
The title page of the first volume of Montesquieu's De l'Esprit des loix (1st ed., 1748)
Montesquieu withdrew from the practice of law to devote himself to study and writing. He achieved literary success with the publication of his 1721 Persian Letters, a satire representing society as seen through the eyes of two imaginary Persian visitors to Paris and Europe, cleverly criticizing the absurdities of contemporary French society. He next published Considerations on the Causes of the Greatness of the Romans and their Decline (1734), considered by some scholars, among his three best known books, as a transition from The Persian Letters to his master work. The Spirit of the Laws was originally published anonymously in 1748. The book quickly rose to influence political thought
profoundly in Europe and America. In France, the book met with an
unfriendly reception from both supporters and opponents of the regime.
The Catholic Church banned The Spirit – along with many of Montesquieu's other works – in 1751 and included it on the Index of Prohibited Books. It received the highest praise from the rest of Europe, especially Britain.
Montesquieu was also highly regarded in the British colonies in North America as a champion of liberty (though not of American independence). According to one political scientist,
he was the most frequently quoted authority on government and politics
in colonial pre-revolutionary British America, cited more by the
American founders than any source except for the Bible. Following the American Revolution, Montesquieu's work remained a powerful influence on many of the American founders, most notably James Madison of Virginia, the "Father of the Constitution". Montesquieu's philosophy that "government should be set up so that no man need be afraid of another"
reminded Madison and others that a free and stable foundation for their
new national government required a clearly defined and balanced
separation of powers.
Lettres familières à divers amis d'Italie, 1767
Besides composing additional works on society and politics,
Montesquieu traveled for a number of years through Europe including
Austria and Hungary, spending a year in Italy and 18 months in England, where he became a freemason, admitted to the Horn Tavern Lodge in Westminster, before resettling in France. He was troubled by poor eyesight, and was completely blind by the time he died from a high fever in 1755. He was buried in the Église Saint-Sulpice, Paris.
Philosophy of history
Montesquieu's philosophy of history minimized the role of individual persons and events. He expounded the view in Considérations sur les causes de la grandeur des Romains et de leur décadence that each historical event was driven by a principal movement:
It is not chance that rules the
world. Ask the Romans, who had a continuous sequence of successes when
they were guided by a certain plan, and an uninterrupted sequence of
reverses when they followed another. There are general causes, moral and
physical, which act in every monarchy, elevating it, maintaining it, or
hurling it to the ground. All accidents are controlled by these causes.
And if the chance of one battle—that is, a particular cause—has brought
a state to ruin, some general cause made it necessary for that state to
perish from a single battle. In a word, the main trend draws with it
all particular accidents.
In discussing the transition from the Republic to the Empire, he
suggested that if Caesar and Pompey had not worked to usurp the
government of the Republic, other men would have risen in their place.
The cause was not the ambition of Caesar or Pompey, but the ambition of
man.
Political views
Montesquieu is credited as being among the progenitors, which include Herodotus and Tacitus, of anthropology,
as being among the first to extend comparative methods of
classification to the political forms in human societies. Indeed, the
French political anthropologist Georges Balandier
considered Montesquieu to be "the initiator of a scientific enterprise
that for a time performed the role of cultural and social anthropology". According to social anthropologist D. F. Pocock, Montesquieu's The Spirit of the Laws
was "the first consistent attempt to survey the varieties of human
society, to classify and compare them and, within society, to study the
inter-functioning of institutions." Montesquieu's political anthropology gave rise to his theories on government. When Catherine the Great wrote her Nakaz
(Instruction) for the Legislative Assembly she had created to clarify
the existing Russian law code, she avowed borrowing heavily from
Montesquieu's Spirit of the Laws, although she discarded or altered portions that did not support Russia's absolutist bureaucratic monarchy.
Montesquieu's most influential work divided French society into three classes (or trias politica, a term he coined): the monarchy, the aristocracy, and the commons. Montesquieu saw two types of governmental power existing: the sovereign and the administrative. The administrative powers were the executive, the legislative, and the judicial.
These should be separate from and dependent upon each other so that the
influence of any one power would not be able to exceed that of the
other two, either singly or in combination. This was a radical idea
because it completely eliminated the three Estates structure of the French Monarchy: the clergy, the aristocracy, and the people at large represented by the Estates-General, thereby erasing the last vestige of a feudalistic structure.
«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 executive 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.»
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.»
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.»
Likewise, there were three main forms of government, each supported by a social "principle": monarchies (free governments headed by a hereditary figure, e.g. king, queen, emperor), which rely on the principle of honor; republics
(free governments headed by popularly elected leaders), which rely on
the principle of virtue; and despotisms (enslaved governments headed by dictators),
which rely on fear. The free governments are dependent on fragile
constitutional arrangements. Montesquieu devotes four chapters of The Spirit of the Laws
to a discussion of England, a contemporary free government, where
liberty was sustained by a balance of powers. Montesquieu worried that
in France the intermediate powers (i.e., the nobility) which moderated
the power of the prince were being eroded. These ideas of the control of
power were often used in the thinking of Maximilien Robespierre.
While addressing French readers of his General Theory, John Maynard Keynes described Montesquieu as "the real French equivalent of Adam Smith,
the greatest of your economists, head and shoulders above the
physiocrats in penetration, clear-headedness and good sense (which are
the qualities an economist should have)."
Meteorological climate theory
Another example of Montesquieu's anthropological thinking, outlined in The Spirit of the Laws and hinted at in Persian Letters, is his meteorological climate theory, which holds that climate
may substantially influence the nature of man and his society. By
placing an emphasis on environmental influences as a material condition
of life, Montesquieu prefigured modern anthropology's concern with the
impact of material conditions, such as available energy sources,
organized production systems, and technologies, on the growth of complex
socio-cultural systems.
He goes so far as to assert that certain climates are superior to
others, the temperate climate of France being ideal. His view is that
people living in very warm countries are "too hot-tempered", while those
in northern countries are "icy" or "stiff". The climate of middle
Europe is therefore optimal. On this point, Montesquieu may well have
been influenced by a similar pronouncement in The Histories of Herodotus,
where he makes a distinction between the "ideal" temperate climate of
Greece as opposed to the overly cold climate of Scythia and the overly
warm climate of Egypt. This was a common belief at the time, and can
also be found within the medical writings of Herodotus' times, including
the "On Airs, Waters, Places" of the Hippocratic corpus. One can find a
similar statement in Germania by Tacitus, one of Montesquieu's favorite authors.
Philip M. Parker in his book Physioeconomics
endorses Montesquieu's theory and argues that much of the economic
variation between countries is explained by the physiological effect of
different climates.
From a sociological perspective Louis Althusser, in his analysis of Montesquieu's revolution in method,
alluded to the seminal character of anthropology's inclusion of
material factors, such as climate, in the explanation of social dynamics
and political forms. Examples of certain climatic and geographical
factors giving rise to increasingly complex social systems include those
that were conducive to the rise of agriculture and the domestication of
wild plants and animals.
List of principal works
Memoirs and discourses at the Academy of Bordeaux (1718–1721):
including discourses on echoes, on the renal glands, on weight of
bodies, on transparency of bodies and on natural history.
La défense de «L'Esprit des lois» (In Defence of "The Spirit of the Laws", 1750)
Essai sur le goût (Essay on Taste, pub. 1757)
Mes Pensées (My Thoughts, 1720–1755)
A definitive edition of Montesquieu's works is being published by the
Société Montesquieu. It is planned to total 22 volumes, of which (at
February 2018) half have appeared.
The separation of powers is a model for the governance of a state.
Under this model, a state's government is divided into branches, each
with separate and independent powers and areas of responsibility so that
the powers
of one branch are not in conflict with the powers associated with the
other branches. The typical division is into three branches: a legislature, an executive, and a judiciary, which is the trias politica model. It can be contrasted with the fusion of powers in parliamentary systems and semi-presidential systems where the executive and legislative branches overlap.
Separation of powers, therefore, refers to the division of responsibilities into distinct branches of government
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.
The separation of powers model is often imprecisely and metonymically used interchangeably with the trias politica principle. While the trias politica
model is a common type of model, there are governments which utilise
bipartite, rather than tripartite, systems as mentioned later in the
article.
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.)
The term "tripartite system" is commonly ascribed to FrenchEnlightenmentpolitical philosopherBaron de Montesquieu although he did not use such a term but 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.
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.
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.
Montesquieu actually specified 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, but it is 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. That 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.»
Passes bills; has broad taxing and spending power; regulates inter-state commerce; controls the federal budget; has power to borrow money on the credit of the United States (may be vetoed by President, but vetoes may be overridden with a two-thirds vote of both houses)
Has sole power to declare war, as well as to raise, support, and regulate the military.
Oversees, investigates, and makes the rules for the government and its officers.
Defines by law the jurisdiction of the federal judiciary in cases not specified by the Constitution.
Has sole power of impeachment
(House of Representatives) and trial of impeachments (Senate); can
remove federal executive and judicial officers from office for high crimes and misdemeanors
Has the power to grant "reprieves and pardons for offenses against the United States, except in cases of impeachment."
Determines which laws Congress intended to apply to any given case
Exercises judicial review, reviewing the constitutionality of laws
Determines how Congress meant the law to apply to disputes
Determines how a law acts to determine the disposition of prisoners
Determines how a law acts to compel testimony and the production of evidence
Determines how laws should be interpreted to assure uniform policies in a top-down fashion via the appeals process, but gives discretion in individual cases to low-level judges. The amount of discretion depends upon the standard of review, determined by the type of case in question.
Comparison between tripartite and bipartite national systems
Constitutions with a high degree of separation of powers are found worldwide. The UK system is distinguished by a particular entwining of powers. 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.
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
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.
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[24] of the Constitution.
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.
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
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.
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). 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".
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:
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.
Separation of powers was first established in the United States Constitution,
wherein 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 United States
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. 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 Constitution, Article 1 Section I grants 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 judicial review was established 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 which remove any dependence on
the Executive, with voluntary retirement and a high threshold for
dismissal by the Legislature, in addition to a salary that cannot be
diminished during their service.
The federal government
refers to the branches as "branches of government", while some systems
use "government" exclusively 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.
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).
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.
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 Ángel 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).
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)
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.
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