The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic. Under this model, the state is divided into branches, each with separate and independent powers and areas of responsibility so that no branch has more power than the other branches. The normal division of branches is into an executive, a legislature, and a judiciary. For similar reasons, the concept of separation of church and state has been adopted in a number of countries, to varying degrees depending on the applicable legal structures and prevalent views toward the proper role of religion in society.
Montesquieu's tripartite system
The term is ascribed to French 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 the United Kingdom 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 it dangerous.
Comparison between Presidential and Parliamentary systems
In democratic systems of governance based on the trias politica, a fundamental parallel and a fundamental difference exists between presidential systems and constitutional monarchic parliamentary system of government.
The parallel is that the three branches of government (legislative, executive, judicial) exist largely independent of each other, with their own prerogatives, domains of activity, and exercises of control over each other.
- The legislative body has control of the executive finances, and has judiciary powers, it also has control of the way the judiciary works.
- The judiciary often has control of laws not being contradictory to the constitution or other laws and it has the power to correct and control the way the executive body exercises its powers (to execute the law)
The difference between the two systems is:
- In presidential systems, the incumbent of the Head-of-state is elected to office and, after transfer of power, appoints his administration (like in the United States, with unitary executive) or a government headed by a prime minister is formed within the parliament, based on the elected majority (like in France). The latter might lead to a "cohabitation" where a president and his government belonging to different parties or coalitions.
- In constitutional monarchic parliamentary systems, only the legislative body is elected and a government formed on the basis of majority or a coalitions of parties. Elected members of parliament have to resign from their mandate in order to accept an executive office. This is true in regional and local councils are elected and the executive nominated.
- In a parliamentary system, when the term of the legislature ends, so too may the tenure of the executive selected by that legislature. However, in a presidential system, the executive's term may or may not coincide with the legislature's, as their selection is technically independent of the legislature.
Two-branch power systems may have systems in which certain branches have more than one power. Often a legislative body is elected, while the executive is nominated. The nominated executive branch also has power of presenting legislation, while the legislative body only has a controlling function. In those systems, the judiciary is subservient to the executive and has no power to control either the executive or the legality of new legislative texts.
The separation of powers is a doctrine which provides a separate authority that makes it possible for the authorities to check each other's checks and balances (see United States Executive Authority Act 1936).
Constitutions with a high degree of separation of powers are found worldwide. The UK system is distinguished by a particular entwining of powers. In Italy the powers are completely separated, even if Council of Ministers need the vote of confidence from both chambers of Parliament, that's however formed by a wide number of members (almost 1,000). 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 also subscribes to the principle of 'Separation of Powers' through a series of constitutional safeguards. The Executive requires regular approval from the Legislature to carry out decisions. The Mixed Members Proportionate framework also caters for a coalition of parties to form government where a majority from a single party does not exist. 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 change the legislation. However, they can not direct or request a judicial officer to revise or reconsider a decision. These 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.
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 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, 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.
The government of France is divided up into three branches:
Hong Kong is a largely self-governing Chinese territory pursuant to the Sino-British Joint Declaration, an international treaty registered with the United Nations. Currently, Hong Kong has three branches of government as codified in the Basic Law, which preserves the political setup of the British colonial era under the doctrine of one country, two systems:
The Chief Executive, elected by a 1200-member Election Committee, is both head of the region and head of government, and chairs the Executive Council which composes of unofficial members and government secretaries. The law courts exercise the power of judicial review of constitutionality of legislations and administrative actions, and emphasis the separation of powers in their rulings. The Chief Justice also stated this position in the ceremonial opening of the legal year. However, politically separation of powers is usually argued against, with the leaders of the People's Republic of China and supportive politicians publicly requesting for the three branches to cooperate and emphasizing an "executive-led" system.
India follows a parliamentary system of government, which offers a clear separation of powers. The judiciary branch is fairly independent of the other two branches. Executive powers are vested with the President and Prime Minister, who are assisted by the Cabinet Secretary and other Secretaries. All three branches have "checks and balances" over each other to maintain the balance of power.
- Parliament - legislature
- Prime Minister, Cabinet, Government Departments & Civil Service - executive
- Courts - judiciary
Although the doctrine of separation of power plays a role in the United Kingdom's constitutional doctrine, the UK constitution is often described as having "a weak separation of powers" A. V. Dicey, despite its constitution being the one to which Montesquieu originally referred. For example, in the United Kingdom, the executive forms a subset of the legislature, as did to a lesser extent the judiciary until the establishment of the Supreme Court of the United Kingdom. The Prime Minister, the Chief Executive, sits as a member of the Parliament of the United Kingdom, either as a peer in the House of Lords or as an elected member of the House of Commons (by convention, and as a result of the supremacy of the Lower House, the Prime Minister now sits in the House of Commons) and can effectively be removed from office by a simple majority vote. Furthermore, while the courts in the United Kingdom are undoubtedly 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 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).
The British legal systems are based on common law traditions, which require:
In the United States Constitution, Article why 1 Section I gives Congress only those "legislative powers herein granted" and proceeds to list those permissible actions in Article I Section 8, while Section 9 lists actions that are prohibited for Congress. The vesting clause in Article II places no limits on the Executive branch, simply stating that, "The Executive Power shall be vested in a President of the United States of America." The Supreme Court holds "The judicial Power" according to Article III, and it established the implication of Judicial review in Marbury 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, protect the "opulent minority" from the majority, and to induce the branches to cooperate, government 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 allow 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.
Judicial (Supreme Court)
- Is the commander-in-chief of the armed forces
- Executes the instructions of Congress.
- May veto bills passed by Congress (but the veto may be overridden by a two-thirds majority of both houses)
- Executes the spending authorized by Congress.
- Declares states of emergency and publishes regulations and executive orders.
- Makes executive agreements (does not require ratification) and signs treaties (ratification requiring by two-thirds of the Senate)
- Makes appointments to the federal judiciary, federal executive departments, and other posts with the advice and consent of the Senate. Has power to make temporary appointment during the recess of the Senate
- 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.
- Federal judges serve for life
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:
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 appointed by the King, usually from the elected members of parliament (non-elected people can also be nominated). However, they must first resign from their elected seat.
- The judicial power is in the hands of the courts. Magistrates are nominated by the minister (on proposal from a Council of the Magistrates).
- Magistrates can be nominated to become a judge (sitting magistrates) or instructing judge (investigating judge) of Procureur (public prosecutor) (the standing magistrates).
- The executive branch of the government is responsible to provide the physical means to execute its role (infrastructure, staff, financial means).
- Judges and some other people cannot run for elected office while they are nominated to certain positions (military, police-officers, clergy, notaries, bailiffs).
Subsidiarity (vertical separation of powers):
- Supranational directives (EU legislation) and international treaties are subjected to approval of the federal level (the federal level being Belgium the nation state)
- The federal level is composed of the following:
- A bicameral parliament (House of Representative and Senate) (in 2014 this will be a directly elected house and an indirectly appointed Senate of the regions)
- A federal government (lead 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
- 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 provincial governor assisted by deputies and a arrondissements commissars is tasked with provincial matters.
- Appellate Court, Assisses Court
- City and communal entities:
- A city or communal council composed of a mayor, assisted by aldermen, is tasked with local matters.
- Magistrates Court, Correctional Court (three judges).
- Justice of the peace and Police Court judges (single judge courts)
Secularism (separation of state and religion):
- The king, the head of state, holds no political authority and requires executive approval by a minister for every action and statement; he nominates the ministers but he does not choose them (his executive powers); he signs and decrees the laws voted in parliament (his legislative powers);
- The head of state is commander in chief of the military (in title only), politically the military depends of the Minister of Defense and the chiefs of staff are responsible towards parliament and take their orders from the Minister of Defense and the government;
- Certain functions are deemed incompatible and people must to resign from their function if they want to assume responsibilities in another function (military commanders have never been government ministers, even during a war)
In the aftermath of the 44-day civil war in 1948 (after former President and incumbent candidate Rafael lgel Calder n 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 Rep blica (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 (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.
First, note that the European Union is a supranational polity, 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 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).
The three branches in German government are further divided into six main bodies enshrined in the Basic Law for the Federal Republic of Germany:
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 (L nder / Bundesl nder) based courts beneath them, and a rarely used senate of the supreme courts.
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 Orsz ggy l s): elected every 4 years by the people in a highly complex, two-round voting system
- Government (Magyar Korm ny): installed and removed by 50%+1 basic majority vote of the parliament, 4 year terms
- Supreme Court (Legfels bb B r s g): Chief justice elected by qualified (2/3) majority of the parliament, no government oversight
- Constitutional court (Alkotm nyb r s g): members elected by qualified majority of the parliament for 8 years, this body nullifies laws and has no government oversight.
- Chief public accuser (Legf bb gy sz): elected by qualified majority of the parliament, 6 year terms, office budget fixed, no government oversight.
- The President of the Republic (K zt rsas gi Eln k) is elected by qualified majority of the Hungarian parliament for 5 year terms (cannot be reelected more than once). 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 "p tmag nv d" 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.
Republic of China
According to Sun Yat-sen's idea of "separation of the five powers", the government of the Republic of China has five branches:
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 constitutional convention 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.
- Peter Barenboim, Biblical Roots of Separation of Powers, Moscow, Letny Sad, 2005. ISBN 5-94381-123-0, Permalink: http://lccn.loc.gov/2006400578
- Biancamaria Fontana (ed.), The Invention of the Modern Republic (2007) ISBN 978-0-521-03376-3
- W. B. Gwyn, The Meaning of the Separation of Powers (1965) (no ISBN)
- Bernard Manin, Principles of Representative Government (1995; English version 1997) ISBN 0-521-45258-9 (hbk), ISBN 0-521-45891-9 (pbk)
- Jos Mar a Maravall and Adam Przeworski (eds), Democracy and the Rule of Law (2003) ISBN 0-521-82559-8 (hbk), ISBN 0-521-53266-3 (pbk)
- Paul A. Rahe, ''Montesquieu and the Logic of Liberty'' (2009) ISBN 978-0-300-14125-2 (hbk), ISBN 978-0-300-16808-2 (pbk)
- Iain Stewart, "Men of Class: Aristotle, Montesquieu and Dicey on 'Separation of Powers' and 'The Rule of Law'" (2004)
- Iain Stewart, "Montesquieu in England: his 'Notes on England', with Commentary and Translation" (2002).
Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe (2000) ISBN 978-0-19-829730-7
- M. J. C. Vile, Constitutionalism and the Separation of Powers (1967, Indianapolis: Liberty Fund, 1998) Second edition. ISBN 0-86597-174-9 (hbk), ISBN 0-86597-175-7 (pbk)
- Steven G. Calabresi, Debate, ''The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause'', 157 '''U. Pa. L. Rev. PENNumbra''' 134 (2008).
- ''Why Our Next President May Keep His or Her Senate Seat: A Conjecture on the Constitution's Incompatibility Clause'', 4 '''Duke J. Const. L. & Pub. Pol'y''' 107 (2009).
- Saikrishna Bangalore Prakash, ''Why the Incompatibility Clause Applies to the Office of President'', 4 '''Duke J. Const. L. & Pub. Pol'y''' 143 (2009).
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