The separation of power

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CONTENTS

Introduction

1. Legislature

2. Executive (government)

3. Judiciary

4. Other branches of power

5. System of checks and balances

Conclusion

The list of the used literature

INTRODUCTION

Separation of powers is a model for the governance of democratic states. Under this model the state apparatus is divided into branches, and each branch of the state has separate and independent powers and areas of responsibility. By the term “independent” political scientists mean that each branch is either selected independently of the other branches, or at least is not dependent upon the other branches for its continued existence.

The normal division of branches is into the

· legislative,

· the executive (or government),

· and the judicial.

No democratic system exists with an absolute separation of powers or an absolute lack of separation of powers. Nevertheless some systems are clearly founded on the principle of separation of powers, while others are clearly based on a fusion of powers. «Separation of powers» is a feature more inherent to presidential systems, whereas «Fusion of powers» is characteristic of parliamentary systems. There also exist «mixed systems» which combine characteristics of these systems.

In a separation of powers, each branch is largely (although not necessarily entirely) independent from the other branches. Thus the executive branch is not created by the legislature, but by some other means (for example, by direct popular election).

With fusion of powers, one branch (invariably the elected legislature) is supreme, and the other branches are subservient to it. Accordingly, in a fusion of powers system (the best-known is that of the United Kingdom) the legislature is elected by the people, and then this legislature «creates» the executive. In a parliamentary system, when the term of the legislature ends, so does the tenure of the executive.

1. LEGISLATURE

A legislature is a type of representative deliberative assembly with the power to adopt laws. Legislatures are known by many names, the most common are parliament, assembly and congress, although these terms also have more specific meanings. The name “parliament” is derived from the French parlement, the action of parler (to speak): a parlement is a talk, a discussion, hence a meeting (an assembly, a court) where people discuss matters. The competences of the legislature are the following. The parliament

· Writes and enacts laws

· Enacts taxes, authorizes borrowing, and sets the budget

· Usually has sole power to declare war

· May start investigations, especially against the executive branch

· Often appoints the heads of the executive branch

· Sometimes appoints judges

· Ratifies treaties

The structure of parliament may vary. Parliaments may consist of chambers or houses, and are usually either bicameral or unicameral - although more complex models exist, or existed. A unicameral parliament consists of only one legislative chamber. Many countries with unicameral legislatures are often homogeneous unitary states. People of these countries consider an upper house or second chamber unnecessary (for example, Croatia, Greece, Norway, Ukraine). In the United Kingdom, the devolved Scottish Parliament, National Assembly for Wales and Northern Ireland Assembly are also unicameral.

Other nations, such as the United Kingdom and Canada, have technically bicameral systems that function much as unicameral systems, because one house is largely ceremonial and retains few powers. Thus, in the United Kingdom, control of the House of Commons determines control of the government, and the unelected House of Lords has the power only to delay legislation and to recommend amendments.

Supporters of unicameralism note the need to control government spending and the elimination of redundant work done by both chambers. If an upper house is democratic, it simply mirrors the equally democratic lower house, and is therefore duplicative. In many instances, the states that now have unicameral legislatures were once bicameral and subsequently eliminated the upper chamber.

Critics of unicameralism point out the advantages of a bicameral system that affords to attain greater level of consensus on legislative issues. A feature of unicameralism is that urban areas with large populations have more influence than sparsely populated rural ones. In many cases the only way to get sparsely populated regions on board a unified government is to implement a bicameral system (such as the early United States).

Bicameralism (bi + Latin camera, chamber) is the practice of having two legislative or parliamentary chambers. Thus, a bicameral parliament is a legislature which consists of two chambers or houses. Some countries, such as Argentina, Australia, Belgium, Canada, Germany, India, Russia, and the United States link their bicameral systems to their federal political structure. In the United States, Australia and Brazil, for example, each state is given the same number of seats in the legislature's upper house (in the US - 2 senators from every state).

This takes no account of population differences between states. It must ensure that smaller states are not overshadowed by more populous ones. In the lower houses of each country, these provisions do not apply. Representation of the state is based on the quantity of state's population. For example, Delaware has 1 and Florida 25 congressmen in the House of Representatives. The bicameral system, therefore, is a method of combining the principle of democratic equality with the principle of federalism -- all citizens are equal in the lower houses, while all states are equal in the upper houses.

In Canada, the country as a whole is divided into a number of Senate Divisions, each with a different number of Senators (from 1 to 24), based on a number of factors. In Germany, India, and Pakistan, the upper houses are even more closely linked with the federal system, being appointed or elected directly by the governments of each subject of federation.

There are also instances of bicameralism in countries that are not federations, but which have upper houses with representation on a territorial basis. For example in Spain the Spanish Senate functions as a de facto territorial-based upper house.

In a few countries, bicameralism involves the combination of democratic and aristocratic elements. The best known example is the British House of Lords, which includes a number of hereditary peers, while the other house, the House of Commons, is entirely elected. Over the years, there have been proposals to reform the House of Lords, some of which have been at least partly successful -- the House of Lords Act 1999 limited the number of hereditary peers (as opposed to life peers, appointed by the government) to 92, down from around 700. For example, Margaret Thatcher is a life peeress. The ability of the House of Lords to block legislation is curtailed by the Parliament Act. Further reform of the Lords is planned; reform would almost certainly include the removal of the remaining hereditary peers.

Another example of aristocratic bicameralism was the Japanese House of Peers, abolished after World War II and replaced with the present House of Councillors.

Many bicameral systems are not connected with either federalism or an aristocracy, however. Japan, France, Italy, the Netherlands, the Philippines, the Czech Republic, the Republic of Ireland and Romania are examples of bicameral systems existing in unitary states. In countries such as these, the upper house generally exists solely for the purpose of examining and possibly vetoing the decisions of the lower house.

In some of these countries, the upper house is indirectly elected. Members of France's Senate, Ireland's Seanad Йireann are chosen by electoral colleges consisting of members of the lower house and local councillors, while the Netherlands' First Chamber is chosen by members of provincial assemblies.

The relationship between the two chambers varies; in some cases, they have equal powers, while in others, one chamber is clearly superior in its powers. The lower house is almost always the originator of legislation, and the upper house is usually the body that offers the «second look» and decides whether to veto or approve the bills.

A nation's Prime Minister («PM») is almost always the leader of the majority party in the lower house of parliament, but only holds his or her office as long as the «confidence of the house» is maintained. If members of parliament lose faith in the leader for whatever reason, they can often call a vote of no confidence and force the PM to resign. This can be particularly dangerous to a government when the distribution of seats is relatively even, in which case a new election is often called shortly thereafter.

2. EXECUTIVE (GOVERNMENT)

In political science and constitutional law, the executive is the branch of government responsible for the day-to-day management of the state.

Under the doctrine of the separation of powers, the executive is not supposed to make laws (role of the legislature), nor to interpret them (role of the judiciary). In practice, this separation is rarely (if ever) absolute. The executive is a headed by the Head of Government. In a presidential system, this person (the President) may also be the Head of State, whereas in a parliamentary system he or she is usually the leader of the largest party in the legislature. He or she is most commonly termed the Prime Minister (Taoiseach in the Republic of Ireland, (Federal) Chancellor in Germany and Austria). In France, executive power is shared between the President and the Prime Minister and this system has been reproduced in a number of former French colonies, while Switzerland and Bosnia and Herzegovina likewise have collegiate systems for the role of Head of State and Government. The Head of Government is assisted by a number of ministers, who usually have responsibilities for particular areas (e.g. health, education, foreign affairs), and by a large number of government employees or civil servants.

The exact role of the executive depends on the constitution of the country. Not all of the following functions need be exercised by the central executive, particularly in federal countries: they may instead be exercised by local government.

The two main functions of the executive are:

· to collect taxes and customs duties and to use the money to pay the salaries of government employees and other government expenditure;

· to assure the internal and external security of the state, notably by maintaining a police force and armed forces.

The executive is also responsible for regulating many (if not most) sectors of the economy, notably

· the labour force (e.g. by enforcing labour laws)

· agriculture

· transportation

· energy provision

· housing and construction (e.g. by issuing building permits)

· commerce in general (e.g. by enforcing minimum standards, and notably by issuing a currency).

The executive may provide health and education services: at the very least, it usually has a role in regulating these areas. It may also operate nationalized industries, and promote research and culture.

An important symbolic role of the executive is to represent the country abroad. Under international law, this responsibility falls on the Head of State and the Head of Government, who usually delegate some of the day-to-day responsibilities to a foreign minister. In practice, this function of the executive is often delegated in part to the executive of another country, especially by small countries such as Lichtenstein, Monaco, San Marino. No country has diplomatic missions in every sovereign state, and small countries such as Andorra or San Marino have only one or two embassies. Despite their symbolic importance, foreign relations occupy only a small portion of the human and financial resources of the executive: the budget of the United States Department of State in 2004 was only 0.7% of the total budget of the Federal government of the United States.

While the legislature is responsible for approving the laws, it does not usually have the capacity to enforce them. The necessity to enforce an effective law imposes a degree of cooperation between the legislature and the executive. For example, the legislature may vote «free beer for all», but the executive would ask «who pays the brewer?» In many countries the executive has the power to veto some or all types of legislation, or at least to delay their approval by insisting on a longer debate of the consequences. For example, the President of the USA, of Russia Federation, Ukraine may recommit an adopted law to the Parliament.

Under the Westminster system, the Prime Minister and other ministers are members of the legislature, and in other parliamentary systems the executive is usually headed by the party or parties which control a majority in the legislature. This gives the executive some control over the legislation which is passed, but this control is rarely absolute in a democracy. In this system the executive as a rule proposes most of laws. In presidential systems, the executive and the legislature may be controlled by different political parties, a situation known as cohabitation: both sides must arrive at a compromise to allow the government to continue to function, although complete blockage is rare.

In general, the legislature has a supervisory role over the actions of the executive, and may replace the Head of Government and/or individual ministers by a vote of (no) confidence or a procedure of impeachment. On the other hand, a legislature which refuses to cooperate with the executive, for example by refusing to vote a budget or otherwise starving the executive of funds, may be dissolved by the Head of State, leading to new elections.

The legislature usually delegates some legislative power to the executive, notably to issue regulations or executive orders which complete a piece of legislation with technical details or points which might change frequently (e.g. fees for government services). The executive may also have powers to issue legislation during a state of emergency.

Individual states or provinces in a federal system have their own executives, legislatures and judiciaries in addition to the corresponding bodies at federal level. Even in non-federal systems, all but the smallest of countries have some form of local government, although legislative and (especially) judicial powers are often very limited. The distribution of executive powers between central and local government varies: for example, policing and education are local responsibilities in the United Kingdom but central responsibilities in France.

Local government may be funded through local taxes (often property taxes), through a grant from the central government or through a combination of the two. The head of the local executive of a municipality is usually known as the mayor. The local executive is usually supervised by an elected council, which is responsible for setting the rates of local taxes (where these exist, and often only to a limited extent) and for approving the budget of the local executive. The central government may also have a supervisory role, which may go as far as the power to dissolve the local government completely in exceptional cases.

In principle, the executive is subject to the law (except in a dictatorship). The laws which apply specifically to the executive are known as administrative law, although this should not be taken to imply that the executive is exempt from other laws such as human rights or the rules of war. In some cases, the decisions of the executive may be challenged in court, a procedure known as judicial review: in general, the judiciary has the power to censure the executive in specific individual cases, while it is for the legislature to supervise the executive on a more general (and political) level.

3. JUDICIARY

The judiciary or judicial system is the system of courts which administer justice in the name of the sovereign or state, a mechanism for the resolution of disputes.

The term is also used to refer collectively to the judges, magistrates and other adjudicators. A magistrate is a judge of the peace and usually he/she is not a lawyer. The magistrate judges less serious cases in small local courts. An adjudicator is a non-state judge, an arbiter.

The judiciary:

· Determines which laws apply to any given case

· Determines whether a law is unconstitutional

· Has sole power to interpret the law and to apply it to particular disputes

· May nullify laws that conflict with a more important law or constitution

· Determines the disposition of prisoners

· Has power to compel testimony and the production of evidence

· May rule only in cases of an actual dispute brought between actual petitioners

Supreme and higher courts may provide uniform policies in resolving the certain categories of case. They may issue the compulsory interpretation of laws for lower courts.

In common law (Anglo-Saxon) jurisdictions, case law (precedents) is created by the courts' interpretations as a result of the principle of stare decisis (literally “to stay on decided”).

In civil law (Roman-German) jurisdictions, courts interpret the law, but are, at least in theory, prohibited from creating law, and thus, still in theory, do not issue rulings more general than the actual case to be judged; in practice, jurisprudence plays the same role as case law.

Judicial independence is maintained by life appointments of judges, with voluntary retirement, and a high threshold for removal by the legislature. The judiciary is frequently immune to arbitrary dismissal by other branches.

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. For example, Supreme Court of the USA several times changed its attitude to the issue of capital punishment.

The judiciary cannot enforce its decisions without the help of the executive (e.g. police force, prison service). The executive is also responsible for providing courthouses and paying the salaries of judges. This technical management of the judicial system is the responsibility of the justice minister, sometimes called the attorney general.

In some countries, the executive is responsible for taking legal action in the public interest, for example prosecuting criminals or protecting the interests of those who cannot defend themselves (e.g. children or the mentally handicapped). In other countries, these functions are under the direct responsibility of the legislature or the judiciary, although the executive is still usually responsible for the day-to-day management (e.g. providing offices and paying salaries).

Most countries have safeguards to protect the independence of the judiciary from the executive, such as the impossibility of the executive to dismiss a judge. Similar safeguards may apply to other categories of government employees, in order to allow them to conduct their functions without undue political pressure. In return, judges and government employees may be expected not to take part in active politics themselves.

legislative executive government judicial

4. OTHER BRANCHES OF POWER

Apparatus of some states has more than three branches of power. There several examples. Under reforms to the constitution promoted by President Hugo Chбvez and accepted in a referendum, 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. Costa Rica has the similar system of branches of power. Three supreme powers are the legislature, executive, and judicial branches; there are also 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 Controller 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 Controller 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.

Taiwan also has five branches: the Executive Yuan, Legislative Yuan, Judicial Yuan, Control Yuan (auditory branch), and Examination Yuan.

The five institutions of the European Union represent four branches of power:

· European Commission - executive

· European Parliament and Council of the European Union - legislative

· European Court of Justice - judicial

· European Court of Auditors - auditory.

5. SYSTEM OF CHECKS AND BALANCES

To prevent one branch from becoming supreme and to induce the branches to cooperate government employs a system of «checks and balances». A term «checks and balances» is generally credited to Montesquieu. A system of checks and balances refers to the various procedural rules which allow one branch to limit another. For example, the US Congress may alter the composition and jurisdiction of the federal courts. Otherwise the American President may veto legislation passed by Congress. The word 'veto' comes from a Latin word and literally means I forbid. The veto can be absolute (as in the U.N. Security Council, whose permanent members can block any resolution) or limited (as in the legislative process of the United States, where two-thirds of Congress can override the President's veto).

Each country employing a separation of powers will have its own system of checks and balances; the closer a country lies to the presidential end of the continuum, the more checks will likely exist between the branches, and the more equal the branches will be in relative powers.

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.

CONCLUSION

So, separation of powers, a term ascribed to French Enlightenment political philosopher Baron de Montesquieu, is a model for the governance of democratic states, having its origins in an ancient idea of mixed government. The model is also known as "trias politica".

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.

Proponents of separation of powers believe that it protects liberty and democracy, avoiding tyranny. Opponents of separation of powers question whether it indeed does protect liberty, pointing out that it may slow down the process of governing (through gridlock and other means), promote excesses of executive power and unaccountability, and tend to marginalize the legislature.

No democratic system exists with an absolute separation of powers or an absolute lack of separation of powers. Nonetheless, some systems are clearly founded on the principle of separation of powers, while others are clearly based on a fusion of powers.

LIST OF THE USED LITERATURE

1. Katy Jean Harriger, Separation of powers: documents and commentary, - CQ Press, 2003, - 410 p.

2. Vince Flynn, Separation of Power, - Simon & Schuster, 2009, - 544 p.

3. Thomas Campbell, Separation of powers in practice, - Stanford University Press, 2004, - 235 p.

4. Roger Masterman, The Separation of Powers in the Contemporary Constitution: Judicial Competence and Independence in the United Kingdom, - Cambridge University Press, 2011, - 296 p.

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