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The separation of powers, also known as trias politica, is a model for the governance of democratic states. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the uncodified Constitution of the Roman Republic. Under this model, the state is divided into branches or estates, each with separate and independent powers and areas of responsibility. The normal division of estates is into an executive, a legislature, and a judiciary.

The opposite of separation of powers is the fusion of powers, often a feature of parliamentary democracies. In this form, the executive, which often consists of a prime minister and cabinet ("government"), is drawn from the legislature (parliament). This is the principle of responsible government. Although the legislative and executive branches are connected in parliamentary systems, there is often an independent judiciary. Also, the government's role in the parliament does not give them unlimited legislative influence.

PHYLICIA

Constitution of the Roman Republic

The government of the Roman Republic divided power into three independent branches: the Senate, the Assemblies, and the Magistrates.

The Senate made military and foreign policy, and directed domestic policy. It also issued orders to executive branch officials, which were usually obeyed. The Senate did pass laws.

The Assemblies, as the legislative branch, had two primary functions. First, they elected all magistrates. Election to such office usually meant automatic membership in the senate (senate terms were for life). The second major function of the legislative branch was to pass domestic laws. These legislative assemblies were not bodies of elected representatives. Rather, they were bodies of citizens, participating in a direct democracy legislative system. The laws (Latin: lex) passed by these assemblies were called plebiscites, the modern equivalent of popular referendums.

The members of the executive branch, called magistrati (censors, consuls, praetors, etc.), commanded the military, enforced the laws, and acted as high judges. A network of checks and balances existed between the three branches. This system of checks and balances was designed to prevent the accumulation of too much power into the hands of a single person.

Montesquieu's tripartite system

The term is ascribed to Frenchmarker Enlightenment political philosopher Baron de Montesquieu. Montesquieu described division of political power among an executive, a legislature, and a judiciary. He based this model on the British constitutional system, in which he perceived a separation of powers among the monarch, Parliament, and the courts of law. Subsequent writers have noted that this was misleading, because Great Britain had a very closely connected legislature and executive, with further links to the judiciary (though combined with judicial independence).

Montesquieu did specify that "the independence of the judiciary has to be real, and not apparent merely". "The judiciary was generally seen as the most important of powers, independent and unchecked", and also considered the least dangerous. Some politicians decry judicial action against them as a "criminalization" of their behavior, but such "criminalization" may be seen as a response to corruption, collusion, or abuse of power by these politicians.

Comparison with fusion of powers

In democratic systems of governance, a continuum exists between "Presidential government" and "Parliamentary government". "Separation of powers" is a feature more inherent to presidential systems, whereas "fusion of powers" is characteristic of parliamentary ones. "Mixed systems" fall somewhere in between, usually near the midpoint; the most notable example of a mixed system is France's (current) Fifth Republic.

In fusion of powers, one government (invariably the elected legislature) is supreme, and the other estates are subservient to it. In separation of powers, each estate is largely (although not necessarily entirely) independent of the others. Independent in this context means either that selection of each estate happens independently of the other estates or at least that each estate is not beholden to any of the others for its continued existence.

Accordingly, in a fusion of powers system such as that of the United Kingdommarker, first described as such by Walter Bagehot, the people elect the legislature, which in turn "creates" the executive. As Professor Cheryl Saunders writes, "...the intermixture of institutions [in the UK] is such that it is almost impossible to describe it as a separation of powers." In a separation of powers, the national legislature does not select the person or persons of the executive; instead, the executive is chosen by other means (direct popular election, electoral college selection, etc.) In a parliamentary system, when the term of the legislature ends, so too may the tenure of the executive selected by that legislature. Although in a presidential system the executive's term may or may not coincide with the legislature's, their selection is technically independent of the legislature. However, when the executive's party controls the legislature, the executive often reaps the benefits of what is, in effect, a "fusion of powers". Such situations may thwart the constitutional goal or normal popular perception that the legislature is the more democratic branch or the one "closer to the people", reducing it to a virtual "consultative assembly", politically or procedurally unable—or unwilling—to hold the executive accountable in the event of blatant, even boldly admitted, "high crimes and misdemeanors."

Other branches

The Auditory

With the title Comptroller General, Auditor General or Comptroller and Auditor General, the European Union's Court of Auditors and Taiwan's Control Yuan are individual or bodies of independent ombudsmen. They are often independent of the other branches of government.

Their purpose is to audit government expenditure and general activity. This is also known as checks and balances.

The Electoral

Costa Rica's Supreme Elections Tribunal is a branch of government that manages elections. Similar independent institutions exist in many other democratic countries, however they are not seen as a branch of government. In many countries, these are known as Electoral Commissions.

The Popular

see: Direct democracy, Initiative, Referendum, Recall election

Even though in democracies the electorate has the power to elect their representatives, some have called for a more direct populist majority rule.Critics argue this may contravene separation of power, weaken existing checks and balances, provide for oppression of the minority by the majority.

In the Constitution of Venezuela, the "citizen's power" is a formal branch of government, though it acts like auditors' branches in other jurisdictions.

The Bureaucracy

The federal executive of the United States is a very large bureaucracy, and due to civil service rules, most middle- and low-level government workers do not change when a new President is elected. (New high-level officials are usually appointed and must be confirmed by the United States Senate.) Moreover, semi-independent agencies (such as the Federal Reserve or the Federal Communications Commission) may be created within the executive by the legislature. These agencies exercise legally defined regulatory powers. High-level regulators are appointed by the President and confirmed by the legislature; they must follow the law and certain lawful executive orders. But they often sit for long, fixed terms and enjoy reasonable independence from other policy makers. Because of its importance to modern governance, the regulatory bureaucracy of the executive is sometimes referred to as a "fourth" branch of government.

This separation is even more pronounced in the United Kingdommarker. The separation was a prominent element of the Yes Minister comedy television series.

The Press

The press has been described as a "fourth power" because of its considerable influence over public opinion (which in turn affects the outcome of elections), as well as its indirect influence in the branches of government by, for example, its support or criticism of pending legislation or policy changes. It has rarely, however, been a formal branch of democratic government; nor have political philosophers suggested that it become one.

The press is also sometimes referred to as the Fourth Estate, a term of French origin, which is not related to the modern three-branch system of government.

Originally, the First Amendment of the United States Constitution explicitly guaranteed freedom of the press only against interference by the federal government. Later this right was extended by the United States Supreme Courtmarker in the Incorporation Cases to cover state and local governments.

Traditionally, the press has been the "voice of the people", keeping government somewhat in check. Examples of this were the Watergate scandal, where two Washington Post reporters exposed corruption and coverup at the highest levels of government, or the Adscam (Sponsorship scandal) which was uncovered by the press in Canadamarker. This exposure caused the resignation, firing, or prosecution of many officials.

There exist situations where the press can affect public opinion in ways that are contrary to the spirit of separation of powers. One of the most compelling of these situations is when the state controls the content and distribution of the information disseminated by the press. However, even if the press is immune to censorship and compulsion from the government, the controlling entity of a press association or media outlet must almost always edit, and may editorialize, providing opportunities to affect public opinion in ways that may contradict public interest. In all cases, the "voice of the people" (as perceived by some) is modified by the opinions of those producing the stories.

phyliciaparticular examples.

Various models

Constitutions with a high degree of separation of powers are found worldwide. The UK system is distinguished by a particular entwining of powers. India's democratic system also offers a clear separation of power under Lok Sabha (lower house of parliament), Rajya Sabha (upper house of Parliament), and the President of India, who overlooks independent governing branches such as the Election commission and the Judiciary. Under the Indian constitution, just as in the British system, the Prime Minister is a head of the governing party and functions through a selected group of ministers. In Italymarker the powers are completely separated, even if Council of Ministers need the vote of confidence from both chambers of Parliament, that's however formed by a wide number of members (almost 1,000).

Countries with little separation of power include New Zealand and Canada. Canada makes limited use of separation of powers in practice, although in theory it distinguishes between branches of government.

Complete separation-of-powers systems are almost always presidential, although theoretically this need not be the case. There are a few historical exceptions, such as the Directoire system of revolutionary France. Switzerland offers an example of non-Presidential separation of powers today: It is run by a seven-member executive branch, the Federal Council. However, some might argue that Switzerland does not have a strong separation of powers system, as the Federal Council is appointed by parliament (but not dependent on parliament), and the judiciary has no power of review.

Australia: three branches

Australia does not maintain a strict separation between the legislative and executive branches of government—indeed, government ministers are required to be a member of parliament—but the federal judiciary strictly guards its independence from the other two branches. However, under influence from the American constitution, the Australian constitution does define the three branches of government separately. State governments have a similar level of separation of power, but this is generally on the basis of convention, rather than constitution.

People's Republic of China

Costa Rica: five branches

As the aftermath of the 44-day civil war in 1948 (after former President and incumbent candidate Rafael Álgel Calderón Guardia tried to take power through fraud, by not recognising the results of the presidential election that he had lost), the question of which transformational model the Costa Rican State would follow was the main issue that confronted the victors. A Constituent Assembly was elected by popular vote to draw up a new constitution, enacted in 1949 and still in force. This document was an edit of the constitution of 1871, as the constituent assembly rejected more radical corporatist ideas proposed by the ruling Junta Fundadora de la Segunda República (which, although having come to power by military force, abolished the armed forces). Nonetheless, the new constitution increased centralization of power at the expense of municipalities and eliminated provincial government altogether, at the time it increased the powers of congress and the judiciary.

It established the three supreme powers as the legislature, executive, and judicial branches, but also created two other autonomous state organs that have equivalent power but not equivalent rank. The first is the Supreme Elections Tribunal (electoral branch) which controls elections and makes unique, unappealable decisions on their outcomes.

The second is the office of the Comptroller General (auditory branch), an autonomous and independent organ nominally subordinate to the unicameral legislative assembly. All budgets of ministries and municipalities must pass through this agency, including the execution of budget items such as contracting for routine operations. The Comptroller also provides financial vigilance over government offices and office holders, and routinely brings actions to remove mayors for malfeasance, firmly establishing this organization as the fifth branch of the Republic.

European Union

First, note that the European Union is a supranational institution, and is neither a country nor a federation; but as the EU wields political power, and is fully aware of its "democratic deficit", it attempts to comply with the principle of separation of powers. There are five institutions of the European Union. The functioning of the EU is split into intergovernmental and supranational spheres (see three pillars of the European Union). In intergovernmental matters, most power is concentrated in the Council of the European Union - giving it the characteristics of a normal international organization. Here, all power at EU level is in one branch. In the latter there are four main actors. The European Commissionmarker 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 81 & 82 (competition law ); although the ECJ remains the final arbiter. The European Parliamentmarker is one half of the legislative branch and is directly elected. The Council itself acts both as the second half of the legislative branch and also holds some executive functions (some of which are exercised by the related European Council in practice). The European Court of Justice acts as the independent judicial branch, interpreting EU law and treaties. The remaining institution, the European Court of Auditors, is an independent auditory authority (due to the sensitive nature of fraud in the EU).



France

Germany: three branches and six bodies

The six main bodies enshrined in the Basic Law for the Federal Republic of Germany are:

The Bundesversammlung is primarily constituted of members of the Bundestag and Bundesrat.

Besides the constitutional court the judicial branch at the federal level is made up of five supreme courts - one for civil and criminal cases (Bundesgerichtshof), and one each for administrative, tax, labour, and social security issues. There are also state (Länder / Bundesländer) based courts beneath them, and a rarely used senate of the supreme courts.

Hungary: four branches and six bodies

The four independent branches of power in Hungary are: the parliament (legislative), the government (executive), the court system (judicary) and the office of the public accuser (i.e. attorney general).

  • Parliament (Magyar Országgyűlés): elected every 4 years by the people in a highly complex, two-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 (2/3rd) 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 4 year terms. He/she has ceremonial powers only, signs laws into power and commands the military in time of peace.


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 became 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.

The press (media) is not a fifth pillar of the Hungarian statehood and has never been so, the printing press having been strictly censored from 1686 until 1989. Hungarian newspapers, television, and radio channels are currently free, but heavily partisan and biased towards their funders, they do not investigate scandals occurring in their own political side. The state-run television and radio channels are indirectly controlled by the government, which installs their directors and allocates yearly budget. The largest daily and weekly newspapers (Népszabadság and HVG) are run by liberal, pro-socialist party (pro-government) media ventures. Conservative newspapers (the largest being the Magyar Nemzet) have restricted financial means and are relegated to black-and-white only ink print to this day.

Taiwan: five branches

Some countries take the doctrine further than the three-branch system. The politics of the Republic of China, for example, has five branches: the Executive Yuanmarker, Legislative Yuan, Judicial Yuan, Control Yuan, and Examination Yuan.

Due in part to the Republic's youth, the relationship between its executive and legislative branches are poorly defined. An example of the problems this causes is the near complete political paralysis that results when the president, who has neither the power to veto nor the ability to dissolve the legislature and call new elections, cannot negotiate with the legislature when his party is in the minority.

United Kingdom

Although the principle of separation of power plays a role in the United Kingdom's constitutional doctrine, the UK constitution is often described as having "a weak separation of powers" , despite its constitution being the one to which Montesquieu originally referred. For example, in the United Kingdom, the executive forms a subset of the legislature, as did—to a lesser extent—the judiciary until the establishment of the Supreme Court of the United Kingdommarker. The Prime Minister, the Chief Executive, sits as a member of the Parliament of the United Kingdommarker, either as a peer in the House of Lordsmarker or as an elected member of the House of Commonsmarker (by convention, and as a result of the supremacy of the Lower House, the Prime Minister now sits in the House of Commonsmarker) and can effectively be removed from office by a simple majority vote. Furthermore, while the courts in Britain are undoubtedly amongst the most independent in the world, the Law Lords, who are the final arbiters of judicial disputes in the UK, until recently sat simultaneously in the House of Lordsmarker, the upper house of the legislature, although this arrangement ceased in 2009 when the Supreme Court of the United Kingdommarker came into existence. Furthermore, because of the existence of Parliamentary sovereignty, while the theory of separation of powers may be studied in Britain, a system such as that of the UK is more accurately described as a "fusion of powers".

The development of the British constitution, which is not written down in one document, is based on this fusion in the person of the Monarch, who has a formal role to play in the legislature (Parliament, which is where legal and political sovereignty lies, is the Crown-in-Parliament, and is summoned and dissolved by the 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).

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

United States: three branches

In the United States Constitution, Article I Section I gives Congress only those "legislative powers herein granted" and proceeds to list those permissible actions in Article I Section 8, while Section 9 lists actions that are prohibited for Congress. The vesting clause in Article II places no limits on the Executive branch, simply stating that, "The Executive Power shall be vested in a President of the United States of America." The Supreme Court holds "The judicial Power" according to Article III, and it established the implication of Judicial review in Marbury vs Madison. The federal government refers to the branches as "branches of government", while some systems use "government" to describe the executive. The Executive branch has attempted to claim power arguing for separation of powers to include being the Commander in Chief of a standing army since the Civil war, executive orders, emergency powers and security classifications since WWII, national security, signing statements, and the scope of the unitary executive.

Checks and balances

To prevent one branch from becoming supreme, and to induce the branches to cooperate, governance systems that employ a separation of powers need a way to balance each of the branches. Typically this was accomplished through a system of "checks and balances", the origin of which, like separation of powers itself, is specifically credited to Montesquieu. Checks and balances allows for a system based regulation that allows one branch to limit another, such as the power of Congress to alter the composition and jurisdiction of the federal courts.

Legislative

Executive

Judicial

  • Also known as Congress.
  • Makes all laws.
  • Controls all the money; taxes, borrows, and sets the budget (with exception of unappropriated spending by central bank).
  • Has sole power to declare war.
  • Oversees, investigates, and makes the rules for the government and its officers.
  • Confirms the heads of the executive branch.
  • Confirms federal judicial appointments, and defines by law the jurisdiction of the judicial branch in cases not specified by the Constitution.
  • Ratifies treaties.
  • Originates and tries cases of impeachment.
  • Also known as the President.
  • Preserves, protects and defends the Constitution.
  • Faithfully executes the laws of the United States.
  • Executes the instructions of Congress.
  • May veto laws (but the veto may be overridden by Congress by a 2/3 majority) or refuse to execute them if s/he deems them unconstitutional.
  • Executes the spending authorized by Congress.
  • Executes the instructions of Congress when it declares war or makes rules for the military.
  • Declares states of emergency and publishes regulations and executive orders.
  • Creates treaties, and appoints judges and other executive heads, both with the advice and consent of the Senate.
  • Has the power to grant pardons for crimes against the United States.
  • Also known as the Supreme Court, with inferior courts that are created and limited by Congress.
  • Determines which jurisdiction any given case falls under.
  • May refuse to enforce laws that it deems unconstitutional.
  • Determines the disposition of prisoners.
  • May legally compel testimony and the production of evidence as the law provides.
  • Judges and competently administers uniform policies via the appeals process, but gives discretion in individual cases to low-level judges (the amount of discretion depends upon the standard of review, determined by the type of case in question).
  • Oversees and administers members of the judiciary.


Maintaining balance

The theoretical independence of the executive and legislative branches is partly maintained by the fact that they are separately elected and are held directly accountable to the public. There are also judicial prohibitions against certain types of interference in each others' affairs. (See "separation of powers" cases in the List of United States Supreme Court cases.) In recent years, there have been accusations that the power to interpret the law is being misused (judicial activism) by some judges in the US. In the checks and balances system, the judicial branch has the right to say that something is unconstitutional, like a law or a bill (Credited to an opinion written by Chief Justice John Marshall in the case of Marbury v. Madison (1803)).

The legal mechanisms constraining the powers of the three branches depend a great deal on the sentiment of the people. A common perception is that popular support establishes legitimacy and makes possible the actual implementation of legal authority. National crises (such as the Civil War, the Great Depression, pre-Pearl Harbor World War II, the Vietnam War) have been the times at which the principle of separation of powers has been most endangered, either through official "misbehavior" or through the willingness of the public to sacrifice such principles if more pressing problems are solved. The system of checks and balances is also self-reinforcing. Potential abuse of power may be deterred, and the legitimacy and sustainability of any power grab is hindered by the ability of the other two branches to take corrective action; though they still must actually do so, therefore accountability is not automatic. This is intended to reduce opportunities for tyranny sometimes.

However, as James Madison wrote in Federalist No. 51 regarding the ability of each branch to defend itself from actions by the others, "But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates." Bicameralism was, in part, intended to reduce the relative power of the legislature by turning it against itself, by having "different modes of election and different principles of action." (This is one of the arguments against the popular election of Senators, which was instituted by the Seventeenth Amendment.) But when the legislature is unified, it can obtain dominance over the other branches.

State and local governments

The American states mirror the executive/legislative/judicial division of the federal government. Major cities tend to do so as well, but the arrangements of local and regional governments vary widely. Because the judicial branch is often a part of a state or county government, the geographic jurisdiction of local judges is often not coterminous with municipal boundaries.

In many American states and local governments, executive authority and law enforcement authority are separated by allowing citizens to directly elect public prosecutors (district attorneys and state attorneys-general). In some states, judges are also directly elected.

Many localities also separate special powers from their executive and legislative branches through the direct election of sheriffs, school boards, transit agency boards, park commissioners, etc.

Juries (groups of randomly selected citizens) also have an important role in the checks-and-balances system. They have the sole authority to not only determine the facts in most criminal and civil cases, but to judge the law, acting as a powerful buffer against arbitrary enforcement by the executive and judicial branches. In many jurisdictions they are also used to determine whether or not a trial is warranted, and in some places Grand Juries have independent investigative powers with regard to government operations.

Venezuela: five branches

The constitution establish that the government of Venezuela has five branches: the executive, the legislature, the judiciary, an electoral branch, and a citizen's branch that acts as an auditor.

Related restraint-of-power concepts



See also



References



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