Fusion of powers

Fusion of powers is a feature of some parliamentary forms of government, especially those following the Westminster system, where the executive and legislative branches of government are intermingled. It is contrasted with the more rigorous separation of powers[1] found in presidential and semi-presidential forms of government where the legislative and executive powers are in origin separated by popular vote. Fusion of powers exists in many, if not a majority of, parliamentary democracies, and does so by design. However, in all modern democratic polities the judicial branch of government is independent of the legislative and executive branches.

The system first arose as a result of political evolution in the United Kingdom over many centuries, as the powers of the monarch became constrained by Parliament.[2] The term fusion of powers itself is believed to have been coined by the British constitutional expert Walter Bagehot.[3]

Examples

Australia

As Australia has a partially Westminster-derived parliamentary system, the executive branch is entirely composed of members of the legislative branch.[4]

Canada

Senator Eugene Forsey of Canada remarked that "in Canada, the Government and the House of Commons cannot be at odds for more than a few weeks at a time. If they differ on any matter of importance, then, promptly, there is either a new government or a new House of Commons."[5]

France

The current French Fifth Republic provides an example of the fusion of powers from a country which does not follow the Westminster system. Rather France follows a model known alternatively as a semi-presidential system or 'mixed presidential-parliamentary' system, which exists somewhere between parliamentary democracies and presidential democracies.

Israel

Israel has a Westminster-derived parliamentary system, in which the Government is generally made up of members of the Knesset, Israel's parliament. It is legally possible in Israel to appoint ministers who are not members of Knesset, but that is usually not done in practice. By law, the Prime Minister and Deputy Prime Minister must be members of Knesset.[6]

United Kingdom

The United Kingdom is generally considered the country with the strongest fusion of powers. Until 2005, the Lord Chancellor was a full fusion of all branches, being speaker in the House of Lords, a government minister heading the Lord Chancellor's Department and head of the judiciary.

Sweden

The parliamentary system in Sweden has since its new constitution in 1974 instituted a fusion of powers whereby the principle of "popular sovereignty" serves as the guiding light of principle of government and forms the first line of the constitution.[7]

Advantages

One advantage of a fusion of powers, according to promoters, is that it is easier for the government to take action. There exists virtually no way for there to be a deadlock in the manner that can sometimes occur where the legislature and executive are separated,[8] but see the 1975 Australian constitutional crisis for a counter-example (regarding the dual executive nature of some parliamentary systems).

Disadvantages

The disadvantage with a fusion of powers, paradoxically, is the power it gives to the executive, not the legislative, arm of government. In a fusion of powers, the head of government must have the confidence of a majority in the legislature. If the majority is made up of members of one's own party, the head of government can use these supporters to control the legislature's business, thus protecting the executive from being truly accountable and at the same time passing any laws expedient for the government. A revolt by members of the government's own party (or, if the government is a coalition or minority government, by supporting parties) is possible, but party discipline, along with a tendency by many electorates to vote against unstable governments, makes such a revolt unattractive and therefore rare.

Many states have responded to this by instituting or retaining multicameral legislatures, in which all houses must pass legislation in the same form. The responsible house is usually the most powerful and the only house with the actual power to terminate the government. Other houses, though, can often veto or at least delay controversial bills, perhaps until the government's performance can be judged by the electorate. They also provide additional forums for inquiry into the conduct of the executive. In addition, since the government's future is not at stake in other houses, members of the governing party or coalition in these houses can be freer to oppose particular government policies they disagree with. A second approach to curbing executive power is the election of the responsible house by some form of proportional representation, as in the case of Japan. This often, but not necessarily, leads to coalitions or minority governments. These governments have the support of the legislature when their survival is at stake but less absolute control over its proceedings.

A fusion of powers was specifically rejected by the framers of the American constitution, for fear that it would concentrate a dangerous level of power into one body. However, other countries reject the presidential system for the same reason, arguing it concentrates too much power in the hands of one person, especially if impeachment is difficult.

See also

References

  1. ^ Montesquieu, The Spirit of Laws
  2. ^ Martin C. Needler (1991). The Concepts of Comparative Politics. Greenwood Publishing Group. p. 116. ISBN 978-0-275-93653-2.
  3. ^ The Harmonious Constitution
  4. ^ "Chapter 2". Parliament of Australia. Retrieved 2 October 2017.
  5. ^ "How Canadians Govern Themselves". Library of Parliament, Canada.
  6. ^ "Basic Law: The Government (2001)".
  7. ^ http://www.riksdagen.se/en/Documents-and-laws/Laws/The-Constitution/
  8. ^ http://www2.hawaii.edu/~fredr/6-lap9a.htm
Alberta Act

The Alberta Act (French: Acte de l'Alberta), effective 1 September 1905, was the act of the Parliament of Canada that created the province of Alberta. The Act is similar in nature to the Saskatchewan Act, which established the province of Saskatchewan at the same time. Like the Saskatchewan Act, the Alberta Act was controversial because (sec. 21) it allowed the Government of Canada to maintain control of all of Alberta's natural resources and public lands. Alberta did not win control of these resources until the passage of the Natural Resources Acts in 1930.

The Alberta Act is part of the Constitution of Canada.

Calgary Declaration

The Calgary Declaration, also known as the Calgary Accord, was an agreement made between most premiers of the provinces and territories of Canada regarding how to approach future amendments to the Constitution. It was signed in Calgary, Alberta, on September 14, 1997, by all Canadian premiers and territorial leaders except Quebec's Lucien Bouchard. The Declaration had followed controversial and divisive constitutional debate in Canada seen during the patriation of the Constitution in 1982, and the subsequent collapse of the Meech Lake and Charlottetown Accords.

Constitution Act (British Columbia)

Constitution Act, 1996 is a provincial Act passed by the British Columbia legislature. The Act outlines the powers and rules governing the executive and legislative branches of the provincial government of British Columbia.

Unlike the Constitution of Canada, the British Columbia Constitution is a regular Act of the legislature and can be amended by a normal majority vote.

British Columbia is the only province of Canada to have such an act.

Dialogue principle

In Canadian constitutional law, the dialogue principle is an approach to the interpretation of the Canadian Charter of Rights and Freedoms where judicial review of legislation is said to be part of a "dialogue" between the legislatures and the courts. It specifically involves governments drafting legislation in response to court rulings and courts acknowledging the effort if the new legislation is challenged.

This approach was introduced by constitutional scholar Peter Hogg and has had acceptance in much of the academic world and in courts. Nevertheless, it remains a controversial principle as it attempts to justify what many critics see as judicial activism in the courts.

Divided government in the United States

In the United States, divided government describes a situation in which one party controls the executive branch while another party controls one or both houses of the legislative branch.

Divided government is seen by different groups as a benefit or as an undesirable product of the model of governance used in the U.S. political system. Under said model, known as the separation of powers, the state is divided into different branches. Each branch has separate and independent powers and areas of responsibility so that the powers of one branch are not in conflict with the powers associated with the others. However, the degree to which the President of the United States has control of Congress often determines his political strength - such as the ability to pass sponsored legislation, ratify treaties, and have Cabinet members and judges approved.

The model can be contrasted with the fusion of powers in a parliamentary system where the executive and legislature (and sometimes parts of the judiciary) are unified. Those in favor of divided government believe that such separations encourage more policing of those in power by the opposition, as well as limiting spending and the expansion of undesirable laws. Opponents, however, argue that divided governments become lethargic, leading to many gridlocks. In the late 1980s, Terry M. Moe, a professor of political science at Stanford University, examined the issue. He concluded that divided governments lead to compromise which can be seen as beneficial, but he also noticed that divided governments subvert performance and politicize the decisions of executive agencies.

Early in the 20th century, divided government was rare, but since the 1970s it has become increasingly common.

Executive (government)

The executive is the organ exercising authority in and holding responsibility for the governance of a state. The executive executes and enforces law.

In political systems based on the principle of separation of powers, authority is distributed among several branches (executive, legislative, judicial)—an attempt to prevent the concentration of power in the hands of a small group of people. In such a system, the executive does not pass laws (the role of the legislature) or interpret them (the role of the judiciary). Instead, the executive enforces the law as written by the legislature and interpreted by the judiciary. The executive can be the source of certain types of law, such as a decree or executive order. Executive bureaucracies are commonly the source of regulations.

In the Westminster political system, the principle of separation of powers is not as entrenched. Members of the executive, called ministers, are also members of the legislature, and hence play an important part in both the writing and enforcing of law.

In this context, the executive consists of a leader(s) of an office or multiple offices. Specifically, the top leadership roles of the executive branch may include:

head of state – often the supreme leader, the president or monarch, the chief public representative and living symbol of national unity.

head of government – often the de facto leader, prime minister, overseeing the administration of all affairs of state.

defence minister – overseeing the armed forces, determining military policy and managing external safety.

interior minister – overseeing the police forces, enforcing the law and managing internal safety.

foreign minister – overseeing the diplomatic service, determining foreign policy and managing foreign relations.

finance minister – overseeing the treasury, determining fiscal policy and managing national budget.

justice minister – overseeing criminal prosecutions, corrections, enforcement of court orders.In a presidential system, the leader of the executive is both the head of state and head of government. In a parliamentary system, a cabinet minister responsible to the legislature is the head of government, while the head of state is usually a largely ceremonial monarch or president.

Fulton–Favreau formula

The Fulton–Favreau formula was a proposed formula of amendment of the Constitution of Canada developed by federal justice minister E. Davie Fulton and Quebec Liberal Guy Favreau in the 1960s. The Fulton–Favreau formula would have achieved the patriation of the Constitution.

Implied repeal

The doctrine of implied repeal is a concept in constitutional theory which states that where an Act of Parliament or an Act of Congress (or of some other legislature) conflicts with an earlier one, the later Act takes precedence and the conflicting parts of the earlier Act becomes legally inoperable. This doctrine is expressed in the Latin phrase "leges posteriores priores contrarias abrogant".

Implied repeal is to be contrasted with the express repeal of legislation by the legislative body.

Under United States law, "implied repeal" is a disfavored doctrine. That is, if a court can reconcile the two statutes with any reasonable interpretation, that interpretation is preferred to one that treats the earlier statute as invalidated by the later one.

Interpellation (politics)

Interpellation is a formal request of a parliament to the respective government. It is distinguished from question time in that it often involves a separate procedure. In many parliaments, each individual member of parliament has the right to submit questions (possibly a limited amount during a certain period) to a member of the government. The respective minister or secretary is then required to respond and to justify government policy. Interpellation thus allows the parliament to supervise the government's activity. In this sense, it is closer to a motion of censure. In English, the parliamentary questioning sense of "interpellation" dates from the late 19th century. It has been adopted from French constitutional discourse.

In some countries, for example Finland and Slovenia, interpellations are more or less synonymous with a motion of no confidence because they are automatically connected with a vote of confidence and their express purpose is to determine the confidence enjoyed by the government or a minister. In Finland, the government must reply to an interpellation in a plenary session within 15 days. After receiving the reply to the interpellation, parliament debates the matter and proceeds to vote on whether the government or a particular minister enjoys the confidence of Parliament.

Legislature

A legislature is a deliberative assembly with the authority to make laws for a political entity such as a country or city. Legislatures form important parts of most governments; in the separation of powers model, they are often contrasted with the executive and judicial branches of government.

Laws enacted by legislatures are known as primary legislation. Legislatures observe and steer governing actions and usually have exclusive authority to amend the budget or budgets involved in the process.

The members of a legislature are called legislators. In a democracy, legislators are most commonly popularly elected, although indirect election and appointment by the executive are also used, particularly for bicameral legislatures featuring an upper chamber.

London Conference of 1866

The London Conference was held in London, in the United Kingdom and began on December 4 1866, and was the final in a series of conferences or debates that led to Canadian confederation in 1867. Sixteen delegates from the Province of Canada, Nova Scotia, and New Brunswick gathered with officials of the British government to draft the British North America Act, 1867.

The London Conference was a continuation of the Quebec Conference held earlier about the seventy-two Resolutions. A major issue of contention was the education system, with Roman Catholic bishops lobbying for guarantees protecting the separate school system. This was opposed by delegates from the Maritimes, and the compromise reached was Section 93 of the Act, which guaranteed separate school systems in Quebec and Ontario but not in Nova Scotia or New Brunswick. The result of this meeting was the British North America Act. This was the last of the conferences discussing Confederation.

John A. Macdonald was the chairman of the conference. Queen Victoria assented to the bill and the Dominion of Canada was created when it came into force on July 1, 1867.

New Jersey Legislative Council

The New Jersey Legislative Council was the upper house of the New Jersey Legislature under the New Jersey Constitution of 1776 until it was replaced by the New Jersey Senate under the Constitution of 1844.

Queen-in-Parliament

The Queen-in-Parliament (or, during the reign of a male monarch, King-in-Parliament), sometimes referred to as the Crown-in-Parliament or, more fully, in the United Kingdom, as the King/Queen in Parliament under God, is a technical term of constitutional law in the Commonwealth realms that refers to the Crown in its legislative role, acting with the advice and consent of the parliament (including, if the parliament is bicameral, both the lower house and upper house). Bills passed by the houses are sent to the sovereign, or governor-general, lieutenant-governor, or governor as her representative, for Royal Assent, which, once granted, makes the bill into law; these primary acts of legislation are known as acts of parliament. An act may also provide for secondary legislation, which can be made by the Crown, subject to the simple approval, or the lack of disapproval, of parliament.

Several countries, although having received their independence from the United Kingdom, operate under a system of President-in-Parliament, which formally designates the President as a component of Parliament alongside the House or two Houses.

Responsible government

Responsible government is a conception of a system of government that embodies the principle of parliamentary accountability, the foundation of the Westminster system of parliamentary democracy. Governments (the equivalent of the executive branch) in Westminster democracies are responsible to parliament rather than to the monarch, or, in a colonial context, to the imperial government, and in a republican context, to the president, either in full or in part. If the parliament is bicameral, then the government is responsible first to the parliament's lower house, which is more representative than the upper house, as it has more members and they are always directly elected.

Responsible government of parliamentary accountability manifests itself in several ways. Ministers account to Parliament for their decisions and for the performance of their departments. This requirement to make announcements and to answer questions in Parliament means that ministers must have the privileges of the "floor", which are only granted to those who are members of either house of Parliament. Secondly, and most importantly, although ministers are officially appointed by the authority of the head of state and can theoretically be dismissed at the pleasure of the sovereign, they concurrently retain their office subject to their holding the confidence of the lower house of Parliament. When the lower house has passed a motion of no confidence in the government, the government must immediately resign or submit itself to the electorate in a new general election.

Lastly, the head of state is in turn required to effectuate their executive power only through these responsible ministers. They must never attempt to set up a "shadow" government of executives or advisors and attempt to use them as instruments of government, or to rely upon their "unofficial" advice. They are bound to take no decision or action that is put into effect under the colour of their executive power without that action being as a result of the counsel and advisement of their responsible ministers. Their ministers are required to counsel them (i.e., explain to them and be sure they understand any issue that they will be called upon to decide) and to form and have recommendations for them (i.e., their advice or advisement) to choose from, which are the ministers' formal, reasoned, recommendations as to what course of action should be taken.

An exception to this is Israel, which operates under a simplified version of the Westminster system.

Separation of powers

The separation of powers is a model for the governance of a state. Under this model, a state's government is divided into branches, each with separate and independent powers and areas of responsibility so that the powers of one branch are not in conflict with the powers associated with the other branches. The typical division is into three branches: a legislature, an executive, and a judiciary, which is the trias politica model. It can be contrasted with the fusion of powers in some parliamentary systems where the executive and legislative branches overlap.

Separation of powers, therefore, refers to the division of responsibilities into distinct branches to limit any one branch from exercising the core functions of another. The intent of separation of powers is to prevent the concentration of unchecked power by providing for "checks" and "balances" to avoid autocracy, over-reaching by one branch over another, and the attending efficiency of governing by one actor without need for negotiation and compromise with any other.

The separation of powers model is often imprecisely and metonymically used interchangeably with the trias politica principle. While the trias politica is a common type of model, there are governments which utilize bipartite, rather than tripartite, systems as mentioned later in the article.

States-Provincial

The States-Provincial (in Dutch: Provinciale Staten, abbreviated PS – commonly known as simply the Staten) is the provincial parliament and legislative assembly in each of the provinces of the Netherlands. It is elected for each province simultaneously once every four years and has the responsibility for matters of sub-national or regional importance. Each States-Provincial is directly elected by the voters within the relevant province, and the number of seats in each States-Provincial is proportional to its population.

The States-Provincial originated as Estates assemblies in the Middle Ages, hence the name.

From 1813 to 1850 the noble members of the ridderschap chose one third of the members of States-Provincial. Johan Rudolf Thorbecke's reforms and his "Provinces Law" ("provinciewet") of 1850 brought this privilege to an end.

The States-Provincial choose the Gedeputeerde Staten as the executive organ of the province. Originally, the States-Provincial themselves had also executive powers and chose the Gedeputeerde Staten from their own members for daily governance. On 11 March 2003, the two institutions split; in other words, there was a change from fusion of powers to separation of powers.

The principal roles of the States-Provincial have become to set general policies, represent the people, approve provincial legislation and the annual budget and to oversee the executive. Both the Gedeputeerde Staten and the States-Provincial are presided over by the King's Commissioner in the province, appointed by the Crown every 6 years.

The last provincial elections were held 18 March 2015.

Three months after their election the combined members of the States-Provincial elect the members of the Senate of the States-General of the Netherlands.

Victoria Charter

The Victoria Charter was a set of proposed amendments to the Constitution of Canada in 1971. This document represented a failed attempt on the part of Prime Minister Pierre Trudeau to patriate the Constitution, add rights and freedoms to it and entrench English and French as Canada's official languages; he later succeeded in all these objectives in 1982 with the enactment of the Canada Act 1982.

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