Separation of powers


The separation of powers is a representation for the governance of a state. Under this model, a state's government is divided into branches, each with separate, independent powers and responsibilities so that powers of one branch are not in conflict with those of 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 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 by limiting any one branch from exercising the core functions of another. The intent of separation of powers is to prevent the concentration of 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 separation, there are governments that have greater or fewer than three branches, as mentioned later in the article.

History

Antiquity

first mentioned the idea of a "mixed government" or hybrid government in his work Politics, where he drew upon many of the constitutional forms in the city-states of Ancient Greece. In the Roman Republic, the Roman Senate, Consuls and the Assemblies showed an example of a mixed government according to Polybius.

Early modern mixed government

favoured a system of government that divided political power between democracy and aristocracy. 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 that 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 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, Rhode Island, Connecticut, New Jersey, and Pennsylvania had similar constitutions – they all separated political powers. Books like William Bradford's Of Plymouth Plantation 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. He deduced from a study of the English constitutional system the advantages of dividing political power into the legislative, 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.

Tripartite System

During the English Civil War, the parliamentarians viewed the English system of government as composed of three branches - the King, the House of Lords and the House of Commons - where the first should have executive powers only, and the latter two legislative powers. Few years later, one of the first documents proposing a tripartite system of separation of powers was the Instrument of Government, written by the English general John Lambert in 1653, and soon adopted as the constitution of England for few years during The Protectorate. The system comprised a legislative branch and two executive branches, the English Council of State and the Lord Protector, all being elected and having checks upon each other.
A further development in English thought was the idea that the judicial powers should be separated from the executive branch. This followed the use of the juridical system by the Crown to prosecute opposition leaders following the Restoration, in the late years of Charles II and during the short reign of James II.

Montesquieu's separation of powers system

The term "tripartite system" is commonly ascribed to French Enlightenment political philosopher Baron de Montesquieu, although he did not use such a term but referred to "distribution" of powers. In The Spirit of the Laws, 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 whose powers were not excessively centralized in a single monarch or similar ruler. 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.
Montesquieu argues that each Power should only exercise its own functions. He was quite explicit here:
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.
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.

Checks and balances

The principle of checks and balances is that each branch has power to limit or check the other two, which creates a balance between the three separate branches of the state. This principle induces one branch to prevent either of the other branches from becoming supreme, thereby securing political liberty.
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. The idea is that it is not enough to separate the powers and guarantee their independence but the branches need to have the constitutional means to defend their own legitimate powers from the encroachments of the other branches. They guarantee that the branches have the same level of power, that is, are balanced, so that they can limit each other, avoiding the abuse of power. The origin of checks and balances, like separation of powers itself, is specifically credited to Montesquieu in the Enlightenment. Under this influence it 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 from the experience of the United States Constitution is presented as illustrative of the general principles applied in similar forms of government as well:

Comparison between tripartite and bipartite national systems

s with a high degree of separation of powers are found worldwide. A number of Latin American countries have electoral branches of government.
The Westminster system is distinguished by a particular entwining of powers, such as in 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 and, although the judiciary has no power of review, the judiciary is still separate from the other branches.

Typical 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 U.S. constitution, the Australian constitution does define the three branches of government separately, which 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.

Czech Republic

The Constitution of the Czech Republic, adopted in 1992 immediately before the dissolution of Czechoslovakia, establishes the traditional tripartite division of powers and continues the tradition of its predecessor constitutions. The Czechoslovak Constitution of 1920, which replaced the provisional constitution adopted by the newly independent state in 1918, was modelled after the constitutions of established democracies such as those of the United Kingdom, United States and France, and maintained this division, as have subsequent changes to the constitution that followed in 1948 with the Ninth-of-May Constitution, the 1960 Constitution of Czechoslovakia as well as the Constitutional Act on the Czechoslovak Federation of 1968.

Denmark

According to the Constitution of the Fifth Republic, the government of France is divided into three branches:
is a Special Administrative Region established in 1997 pursuant to the Sino-British Joint Declaration, an international treaty made between Britain and China in 1984, registered with the United Nations. The Hong Kong Basic Law, a national law of China that serves as the de facto constitution, divides the government into Executive, Legislative, and Judicial bodies.
However, according to the former Secretary for Security, Regina Ip, also a current member of the Executive Council and Legislative Council of Hong Kong, Hong Kong never practices Separation of Powers after the handover of Hong Kong back to China.

India

follows constitutional democracy which offers a clear separation of powers. The judiciary is independent of the other two branches with the power to interpret the constitution. Parliament has the legislative powers. Executive powers are vested in 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.
In Italy the powers are separated, even though the Council of Ministers needs a vote of confidence from both chambers of Parliament.
Like every parliamentary form of government, there is no complete separation between Legislature and Executive, rather a continuum between them due to the confidence link. The balance between these two branches is protected by Constitution and between them and the judiciary, which is really independent.

Malaysia

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. King and council was a known concept that people had lived with for a long time and for the most part were comfortable with. The 1814 constitution came about as a reaction to external events, most notable the Treaty of Kiel. There was no revolution against the current powers, as had been the case in the U.S. 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. While the full process took 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, which led to a call for electoral reform that saw the introduction of 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 functions 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, very little on the topic of separation of powers or checks and balances can be found in the works of Norwegian political sciences today.

Pakistan

The development of the British constitution, which is not a codified document, is based on fusion in the person of the Monarch, who has a formal role to play in the legislature, the executive and the judiciary.
Although the doctrine of separation of power plays a role in the United Kingdom's constitutional life, the constitution is often described as having "a weak separation of powers" despite it being the one to which Montesquieu originally referred. For example, 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. 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 most judicial disputes in the U.K. 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 U.K. is more accurately described as a "fusion of powers".
Until 2005, the Lord Chancellor fused in his person the Legislature, Executive and Judiciary, as he was the ex officio Speaker of the House of Lords, a Government Minister who sat in Cabinet and was head of the Lord Chancellor's Department, which administered the courts, the justice system and appointed judges, and was the head of the Judiciary in England and Wales and sat as a judge on the Judicial Committee of the House of Lords, the highest domestic court in the entire United Kingdom, and the Judicial Committee of the Privy Council, the senior tribunal court for parts of the Commonwealth. The Lord Chancellor also had certain other judicial positions, including being a judge in the Court of Appeal and President of the Chancery Division. The Lord Chancellor combines other aspects of the constitution, including having certain ecclesiastical functions of the established state church, making certain church appointments, nominations and sitting as one of the thirty-three Church Commissioners. These functions remain intact and unaffected by the Constitutional Reform Act. In 2005, the Constitutional Reform Act separated the powers with Legislative functions going to an elected Lord Speaker and the Judicial functions going to the Lord Chief Justice. The Lord Chancellor's Department was replaced with a Ministry of Justice and the Lord Chancellor currently serves in the position of Secretary of State for Justice.
The judiciary has no power to strike down primary legislation, and can only rule on secondary legislation that it is invalid with regard to the primary legislation if necessary.
Under the concept of parliamentary sovereignty, Parliament can enact any primary legislation it chooses. However, the concept immediately becomes problematic when the question is asked, "If parliament can do anything, can it bind its successors?" It is generally held that parliament can do no such thing.
Equally, while statute takes precedence over precedent-derived common law and the judiciary has no power to strike down primary legislation, there are certain cases where the supreme judicature has effected an injunction against the application of an act or reliance on its authority by the civil service. The seminal example of this is the Factortame case, where the House of Lords granted such an injunction preventing the operation of the Merchant Shipping Act 1988 until litigation in the European Court of Justice had been resolved.
The House of Lords ruling in Factortame, 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:
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, 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, security classifications since World War II, national security, signing statements, and the scope of the unitary executive.

Other systems

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 :
Subsidiarity :
Secularism :
Imperial China
; Three Lords and Nine Ministers
Three Lords:
  1. Chancellor – executive leader
  2. Grandee Secretary – supervisory leader
  3. Grand Commandant – military leader
Nine Ministers / Nine Courts, etc.
; Three Departments and Six Ministries
  1. Department of State Affairs – edict execution
  2. # Ministry of Personnel
  3. # Ministry of Revenue
  4. # Ministry of Rites
  5. # Ministry of War
  6. # Ministry of Justice
  7. # Ministry of Works
  8. Secretariat – edict formulation
  9. Chancellery – edict review
; Ming and Qing dynasties
; Judicial
  1. Ministry of Justice – case judgement
  2. Censorate – case supervision
  3. Court of Judicature and Revision – case review
; Military
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 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.
People's Republic of China
The central government of the People's Republic of China is divided among several state organs:
  1. National People's Congress : the ultimate power of the state that makes the constitution and basic laws, and supervises and elects all following organs;
  2. Standing Committee of the National People's Congress : the permanent legislative organ that makes most laws, interprets the constitution and laws, conducts constitutional review, and supervises all following organs;
  3. President: acts as a ceremonial head of state in compliance with decisions made by the NPCSC but exercises an independent power to nominate the Premier of the State Council;
  4. State Council : the executive branch, whose Premier is the head of government;
  5. Central Military Commission : the military branch, whose Chairman is the commander-in-chief of the national armed forces including the People's Liberation Army, the People's Armed Police, and the Militia;
  6. National Supervisory Commission : the supervisory branch;
  7. Supreme People's Court : the judicial branch;
  8. Supreme People's Procuratorate : the prosecutorial branch.

    Costa Rica

In the aftermath of the 43-day civil war in 1948, 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. Nonetheless, the new constitution increased centralization of power at the expense of municipalities and eliminated provincial government altogether, and at the time it increased the powers of congress and the judiciary.
It established the three supreme powers as the legislative, 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, which controls elections and makes unique, unappealable decisions on their outcomes.
The second is the office of the Comptroller General, 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 ; 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. 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.
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, and one each for administrative, tax, labour, and social security issues. There are also state-based courts beneath them, and a rarely used senate of the supreme courts.

Hungary

The four independent branches of power in Hungary are divided into six bodies:
The independent pillar status of the Hungarian public accuser's office is a unique construction, loosely modelled on the system Portugal introduced after the 1974 victory of the Carnation Revolution. The public accuser 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 clause 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. 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: