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.
Aristotle 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 (Histories, Book 6, 11–13).
John Calvin (1509–1564) favoured a system of government that divided political power between democracy and aristocracy (mixed government). 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 which 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 (later known as the Pilgrim Fathers) 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 (founded 1628), Rhode Island (1636), Connecticut (1636), New Jersey, and Pennsylvania had similar constitutions – they all separated political powers. (Except for Plymouth Colony and Massachusetts Bay Colony, these English outposts added religious freedom to their democratic systems, an important step towards the development of human rights.) Books like William Bradford's History of Plymoth Plantation (written between 1630 and 1651) 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 (1632–1704). He deduced from a study of the English constitutional system the advantages of dividing political power into the legislative (which should be distributed among several bodies, for example, the House of Lords and the House of Commons), 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. (The Kingdom of England had no written constitution.)
The term "tripartite system" is commonly ascribed to French Enlightenment political philosopher Baron de Montesquieu, although he did not use such a term. In reality he referred to "distribution" of powers. In The Spirit of the Laws (1748), 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 which was not excessively centralized in all its powers to a single monarch or similar ruler, form of government known then as "aristocracy". 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.
In every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the judiciary in regard to matters that depend on the civil law. By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions. By the third, he punishes criminals, or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other, simply, the executive power of the state.
Montesquieu argues that each Power should only exercise its own functions, it was quite explicit here:
When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.
Again, there is no liberty if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.
There would be an end of every thing, were the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.
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.
The executive power ought to be in the hands of a monarch, because this branch of government, having need of dispatch, is better administered by one than by many: on the other hand, whatever depends on the legislative power, is oftentimes better regulated by many than by a single person. But, if there were no monarch, and the executive power should be committed to a certain number of persons, selected from the legislative body, there would be an end of liberty, by reason the two powers would be united; as the same persons would sometimes possess, and would be always able to possess, a share in both.
Montesquieu did actually specify 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, while also likely to claim to be the least dangerous one.
Checks and balances is the principle that each of the Branches has the power to limit or check the other two and this creates a balance between the three separate powers of the state, this principle induces that the ambitions of one branch prevent that one of the other branches becomes supreme, and thus be eternally confronting each other and in that process leaving the people free from government abuses.
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. This is based on the idea that it is not enough to separate the powers and guarantee their independence but to give the various branches the constitutional means to defend their own legitimate powers from the encroachments of the other branches. They guarantee that the powers of the state have the same weight (co-equal), that is, to be balanced, so that they can limit each other, avoiding the abuse of state power. The origin of checks and balances, like separation of powers itself, is specifically credited to Montesquieu in the Enlightenment (in The Spirit of the Laws, 1748), under this influence 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 for the experience of the United States Constitution is presented as illustrative of the general principles applied in similar forms of government as well.
«But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.» «A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.»
|Legislative (Congress)||Executive (President)||Judicial (Supreme Court)|
Constitutions with a high degree of separation of powers are found worldwide. The UK system is distinguished by a particular entwining of powers. 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'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 (but not dependent on parliament) and although the judiciary has no power of review, the judiciary is still separate from the other 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 US 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 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.
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 modeled 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.
Hong Kong 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. Currently, Hong Kong has three branches of government as codified in the Basic Law, its constitution, which largely preserved political structures of the British colonial era, under the doctrine of one country, two systems:
The Chief Executive, elected by a 1200-member Election Committee which historically was dominated by pro-Beijing establishment members, is both head of the region and head of government, and chairs the Executive Council which is composed of "unofficial" members and government secretaries.
The legislature consists of 70 members, 35 of whom are elected by "functional" constituencies represented by members within various industries rather than the public at large. Separation of power between executive and legislature is, therefore, questionable.
The courts frequently exercise a power of judicial review of administrative actions and also decide matters of constitutionality of legislation, though this power is circumscribed under the power of the People's Republic of China's National People's Congress to make final determinations as to interpretation. Hence, the separation of powers is again structurally weak.
It is worth noting that the branches' separation of power may not be intended within the Hong Kong Basic Law as leaders of the PRC have publicly called for the three branches to cooperate and be led by the Chief Executive.
India follows constitutional democracy which offers a clear separation of powers. The judiciary branch is fairly independent of the other two branches with the power to interpret the constitution. Parliament has the legislative powers. Executive powers are vested with 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.
Like every parliamentary form of government, there is no real separation between Legislature and Executive, rather a continuum between them due to the confidence link. By the way, the balance is protected by Constitution also between these two branches. and, obviously, between them and the judiciary branch, which is really independent.
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 (privy council). King and council was a known concept that people had lived with for a long time and was for the most part comfortable with. The 1814 constitution came about as a reaction to external events, most notable the Treaty of Kiel see 1814 in Norway. There was no revolution against the current powers that had been the case in the US 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. (See Statsrådssaken (Norwegian Wikipedia page))
With this came a switch to a parliamentary system of government and while the full process takes 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 and this led to a call for electoral reform that saw the introduction of a 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 function 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 you'll find very little on the topic of separation of powers or checks and balances in the works of Norwegian political sciences today.
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).
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 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".
Until 2005, the Lord Chancellor fused 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 (No. 1), 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, 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 US 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, and 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 United States Constitution, Article 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 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 of the government, 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 that removes any dependence on the Executive, with voluntary retirement and a high threshold for dismissal by the Legislature, in addition to a salary that can not be diminished during their service.
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 American Civil War, executive orders, emergency powers and security classifications since World War II, national security, signing statements, and the scope of the unitary executive.
«In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them.» «It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal.»
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.
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 (represented in the Schematic overview of Belgian institutions):
Trias Politica (horizontal separation of powers):
Subsidiarity (vertical separation of powers):
Secularism (separation of state and religion):
In the aftermath of the 43-day civil war in 1948 (after former President and incumbent candidate Rafael Álgel Calderón Guardia tried to take power through fraud, by not recognising the results of the presidential election that he had lost), the question of which transformational model the Costa Rican State would follow was the main issue that confronted the victors. A Constituent Assembly was elected by popular vote to draw up a new constitution, enacted in 1949, and 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 (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 Tribunal Supremo de Elecciones de Costa Rica (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.
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 (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 (Länder / Bundesländer) 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:
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 become the fourth column of Hungarian democracy only in recent times: after communism fell in 1989, the office was made independent by a new clausule XI. of the Constitution. The change was meant to prevent abuse of state power, especially with regards to the use of false accusations against opposition politicians, who may be excluded from elections if locked in protracted or excessively severe court cases.
To prevent the Hungarian accuser's office from neglecting its duties, natural human private persons can submit investigation requests, called "pótmagánvád" directly to the courts, if the accusers' office refuses to do its job. Courts will decide if the allegations have merit and order police to act in lieu of the accuser's office if warranted. In its decision No. 42/2005 the Hungarian constitutional court declared that the government does not enjoy such privilege and the state is powerless to further pursue cases if the public accuser refuses to do so.
Notable examples of states after Montesquieu that had more than three powers include:
Calvin's republican sympathies derived from his view of human nature as deeply flawed. Compound or mixed governments reflect the reality that human frailty justifies and necessitates institutional checks and balances to the magistrate's presumed propensity to abuse power. It was this commitment to checks and balances that became the basis of Calvin's resistance theory, according to which inferior magistrates have a duty to resist or restrain a tyrannical sovereign.
Constitutional law is a body of law which defines the role, powers, and structure of different entities within a state, namely, the executive, the parliament or legislature, and the judiciary; as well as the basic rights of citizens and, in federal countries such as the United States and Canada, the relationship between the central government and state, provincial, or territorial governments.
Not all nation states have codified constitutions, though all such states have a jus commune, or law of the land, that may consist of a variety of imperative and consensual rules. These may include customary law, conventions, statutory law, judge-made law, or international rules and norms. Constitutional law deals with the fundamental principles by which the government exercises its authority. In some instances, these principles grant specific powers to the government, such as the power to tax and spend for the welfare of the population. Other times, constitutional principles act to place limits on what the government can do, such as prohibiting the arrest of an individual without sufficient cause.
In most nations, such as the United States, India, and Singapore, constitutional law is based on the text of a document ratified at the time the nation came into being. Other constitutions, notably that of the United Kingdom, rely heavily on unwritten rules known as constitutional conventions; their status within constitutional law varies, and the terms of conventions are in some cases strongly contested.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 as in some others. 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.Federalist No. 47
Federalist No. 47 is the forty-seventh paper from The Federalist Papers. It was published on January 30, 1788 under the pseudonym Publius, the name under which all The Federalist Papers were published. James Madison was its actual author. This paper examines the separation of powers among the executive, legislative, and judicial branches of government under the proposed United States Constitution due to the confusion of the concept at the citizen level. It is titled "The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts".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 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. The term fusion of powers itself is believed to have been coined by the British constitutional expert Walter Bagehot.Government of Colombia
The Government of Colombia
is a republic with separation of powers into executive, judicial and legislative branches.
Its legislature has a congress,
its judiciary has a supreme court, and
its executive branch has a president.The citizens of Colombia cast votes concerning their government, and they employ a public sector office for an inspector general to oversee the public interface of the government. This safeguards the public, and guarantees the human rights spelled out in the Constitution of 1991, which provides the framework for a welfare state and a unitary republic.
Colombia has "control institutions" that mix government and public officials, who work alongside one another. For example, the public's inspector general works closely with the government's controller general, whose job it is to ensure governmental fiscal responsibility. An independent Ombudsman deals with maladministration complaints and functions.Government of France
The Government of the French Republic (French: Gouvernement de la République française) exercises executive power in France. It is composed of the Prime Minister, who is the head of government, and both junior and senior ministers. Senior ministers are titled as Ministers (French: Ministres), whereas junior ministers are titled as Secretaries of State (French: Secrétaires d'État).
The Council of Ministers is the main executive organ of the government, and is established in the Constitution and presided over by the President of the Republic.Health regions of Canada
Health regions, also called health authorities, are a governance model used by Canada's provincial governments to administer and deliver public health care to all Canadian residents.
Health care is designated a provincial responsibility under the separation of powers in Canada's federal system. Most health regions or health authorities are organized along geographic boundaries, however, some are organized along operational lines.Judicial independence
Judicial independence is the concept that the judiciary should be independent from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government or from private or partisan interests. Judicial independence is important to the idea of separation of powers.
Different countries deal with the idea of judicial independence through different means of judicial selection, or choosing judges. One way to promote judicial independence is by granting life tenure or long tenure for judges, which ideally frees them to decide cases and make rulings according to the rule of law and judicial discretion, even if those decisions are politically unpopular or opposed by powerful interests. This concept can be traced back to 18th-century England.
In some countries, the ability of the judiciary to check the legislature is enhanced by the power of judicial review. This power can be used, for example, by mandating certain action when the judiciary perceives that a branch of government is refusing to perform a constitutional duty or by declaring laws passed by the legislature unconstitutional.Judicial review
Judicial review is a process under which executive or legislative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws acts and governmental actions that are incompatible with a higher authority: an executive decision may be invalidated for being unlawful or a statute may be invalidated for violating the terms of a constitution. Judicial review is one of the checks and balances in the separation of powers: the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority. The doctrine varies between jurisdictions, so the procedure and scope of judicial review may differ between and within countries.Judiciary
The judiciary (also known as the judicial system, judicature, judicial branch or court system) is the system of courts that interprets and applies the law in a country, or an international community. The first legal systems of the world were set up to prevent citizens to settle conflicts with violence.The judiciary mainly interprets and applies the law, but can in some systems create law.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.Parliament of Namibia
Parliament is the law-making body of Namibia's legislature. It consists of two chambers:
The National Assembly (Lower chamber) initiates and approves laws. It consists of 104 members, 96 of which are elected by parliamentary election. The other eight are appointed by the president.
The National Council (Upper chamber) advises the National Assembly on any required changes to subordinate laws that result from law-making in the National Assembly. It can be tasked by the National Assembly to perform other tasks. The National Council consists of 42 representatives of the Regional Councils; every Regional Council in the 14 regions of Namibia elects three representatives.All cabinet members are members of the lower house. This situation has been criticised by Namibia's civil society and the opposition as creating a significant overlap between executive and legislature, undermining the separation of powers. The seniority of cabinet members generally relegate ordinary MPs to the back benches.Presidential system
A presidential system is a democratic and republican system of government where a head of government leads an executive branch that is separate from the legislative branch. This head of government is in most cases also the head of state, which is called president.
In presidential countries, the executive is elected and is not responsible to the legislature, which cannot in normal circumstances dismiss it. Such dismissal is possible, however, in uncommon cases, often through impeachment.
The title "president" has persisted from a time when such person personally presided over the governing body, as with the President of the Continental Congress in the early United States, prior to the executive function being split into a separate branch of government.
A presidential system contrasts with a parliamentary system, where the head of government is elected to power through the legislative. There is also a hybrid system called semi-presidentialism.
Countries that feature a presidential or semi-presidential system of government are not the exclusive users of the title of president. Heads of state of parliamentary republics, largely ceremonial in most cases, are called presidents. Dictators or leaders of one-party states, popularly elected or not, are also often called presidents.
Presidentialism is the dominant form of government in the continental Americas, with 19 of its 23 sovereign states being presidential republics. It is also prevalent in Central and southern West Africa and in Central Asia.Semi-presidential system
A semi-presidential system or dual executive system is a system of government in which a president exists alongside a prime minister and a cabinet, with the latter being responsible to the legislature of a state. It differs from a parliamentary republic in that it has a popularly elected head of state, who is more than a mostly ceremonial/non-executive (the powers, limitations differ in different parliamentary republics, that this type of president would have tended to be 'reserve'/emergency and non-partisan in nature), figurehead (a president in a dual executive system also has political powers), and from the presidential system in that the cabinet, although named by the president, is responsible to the legislature, which may force the cabinet to resign through a motion of no confidence.While the Weimar Republic (1919–1933) exemplified an early semi-presidential system, the term "semi-presidential" was introduced by a 1959 article by journalist Hubert Beuve-Méry and popularized by a 1978 work by political scientist Maurice Duverger, both of which intended to describe the French Fifth Republic (established in 1958).Separation of powers in Australia
The doctrine of the separation of powers in Australia divides the institutions of government into three branches: legislative, executive and judicial. The legislature makes the laws; the executive put the laws into operation; and the judiciary interprets the laws. The doctrine of the separation of powers is often assumed to be one of the cornerstones of fair government. A strict separation of powers is not always evident in Australia; instead the Australian version of separation of powers combines the basic democratic concepts embedded in the Westminster system, the doctrine of "responsible government" and the United States version of the separation of powers. The issue of separation of powers in Australia has been a contentious one and continues to raise questions about where power lies in the Australian political system.
Although it is assumed that all the branches under the separation of powers do not overlap, for example like the US, there is sometimes a 'common ground' between all three levels. In Australia there is little separation between the executive and the legislature, with the executive required to be drawn from, and maintain the confidence of, the legislature. In Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan the High Court of Australia held that a strict division between these two levels was not practical and re-affirmed the Constitution to outline this (German, 2012).
The first three chapters of the Australian Constitution are headed respectively "The Parliament", "The Executive Government", and "The Judicature". Each of these chapters begins with a section by which the relevant "power of the Commonwealth" is "vested" in the appropriate persons or bodies. The historical context in which the Constitution was drafted suggests that these arrangements were intended to be connected with federal ideas along American lines.
On the other hand, the Constitution incorporates responsible government, in which the legislature and the executive are effectively united. This incorporation is reflected in sections 44, 62 and 64 of the Constitution.Separation of powers in Singapore
Separation of powers in Singapore is founded on the concept of constitutionalism, which is itself primarily based upon distrust of power and thus the desirability of limited government. To achieve this, the Constitution of the Republic of Singapore splits the power to govern the country between three branches of government – the legislature, which makes laws; the executive, which executes them; and the judiciary, which enforces them. Each branch, while wielding legitimate power and being protected from external influences, is subjected to a system of checks and balances by the other branches to prevent abuse of power. This Westminster constitutional model was inherited from the British during Singapore's colonial years.
The Singapore system of government, as with those of a number of other Commonwealth jurisdictions, exhibits a partial separation of powers. The Cabinet is a parliamentary executive as the Prime Minister and other ministers are drawn from the Members of Parliament (MPs). Hence, it is the Cabinet that drives Parliament's legislative agenda. In addition, the executive possesses some law-making power as it is authorised to issue subsidiary legislation, while the President is a member of both the executive and the legislature.
The legislature exercises a check upon the executive by imposing a weak sanction through the doctrine of individual ministerial responsibility. Cabinet ministers may be called upon to justify their policies in Parliament by elected MPs (backbenchers belonging to the ruling party and opposition MPs), as well as non-elected Members (Non-constituency members of parliament (NCMPs) and Nominated members of parliament (NMPs)).
In line with the concept of constitutional supremacy, the judiciary has the role of safeguarding the Constitution, and acts as an institutional check through its inherent power to strike down unconstitutional laws, and to invalidate acts or decisions by the executive which are inconsistent with the Constitution or with administrative law rules. However, judicial power is not unfettered and is also restrained by constitutional and legislative prohibitions. The judiciary also defers to the executive where non-justiciable matters are involved. Judicial independence allows the judiciary to check the exercise of power by the other branches of government more effectively, enhancing the idea of the separation of powers. Constitutional safeguards exist to secure the independence of Supreme Court judges, but a point of contention is that State Courts judges do not enjoy security of tenure as they are members of the Singapore Legal Service and may be transferred out of the State Courts to other departments of the Service by the Legal Service Commission.
The separation of powers in Singapore is also enhanced by intra-branch checking mechanisms. Within the executive, the Elected President adds to the overall scheme of checks and balances through his discretionary power to block certain government actions. However, the presence of an override mechanism wielded by Parliament blunts the office's powers. The Presidential Council for Minority Rights also serves as a check on the legislature by reviewing bills to ensure that they do not discriminate against racial and religious minorities. However, the Council's powers are constrained by the presence of an override mechanism as well.Separation of powers in the United Kingdom
The conception of the separation of powers has been applied to the United Kingdom and the nature of its executive (UK government, Scottish Government, Welsh Government and Northern Ireland Executive), judicial (England and Wales, Scotland and Northern Ireland) and legislative (UK Parliament, Scottish Parliament, National Assembly for Wales and Northern Ireland Assembly) functions. Historically, the apparent merger of the executive and the legislature, with a powerful Prime Minister drawn from the largest party in parliament and usually with a safe majority, led theorists to contend that the separation of powers is not applicable to the United Kingdom. However, in recent years it does seem to have been adopted as a necessary part of the UK constitution.
The independence of the judiciary has never been questioned as a principle, although application is problematic. Personnel have been increasingly isolated from the other organs of government, no longer sitting in the House of Lords or in the Cabinet. The court's ability to legislate through precedent, its inability to question validly enacted law through legislative supremacy and parliamentary sovereignty, and the role of the Europe-wide institutions to legislate, execute and judge on matters also define the boundaries of the UK system.Separation of powers under the United States Constitution
Separation of powers is a political doctrine originating in the writings of Charles de Secondat, Baron de Montesquieu in The Spirit of the Laws, in which he argued for a constitutional government with three separate branches, each of which would have defined abilities to check the powers of the others. This philosophy heavily influenced the writing of the United States Constitution, according to which the Legislative, Executive, and Judicial branches of the United States government are kept distinct in order to prevent abuse of power. This United States form of separation of powers is associated with a system of checks and balances.
During the Age of Enlightenment, philosophers such as Montesquieu advocated the principle in their writings, whereas others, such as Thomas Hobbes, strongly opposed it. Montesquieu was one of the foremost supporters of separating the legislature, the executive, and the judiciary. His writings considerably influenced the opinions of the framers of the United States Constitution.
Strict separation of powers did not operate in the United Kingdom, the political structure of which served in most instances as a model for the government created by the U.S. Constitution.Some U.S. states did not observe a strict separation of powers in the 18th century. In New Jersey, the Governor also functioned as a member of the state's highest court and as the presiding officer of one house of the New Jersey Legislature. The President of Delaware was a member of the Court of Appeals; the presiding officers of the two houses of the state legislature also served in the executive department as Vice Presidents. In both Delaware and Pennsylvania, members of the executive council served at the same time as judges. On the other hand, many southern states explicitly required separation of powers. Maryland, Virginia, North Carolina and Georgia all kept the branches of government "separate and distinct."Vesting Clauses
In United States constitutional law, the Vesting Clauses are three provisions in the United States Constitution which vest the United States' legislative power in the United States Congress, the executive power in the President, and judicial power in the Federal judiciary of the United States. The Constitution thus explicitly creates a separation of powers among the three branches of the federal government of the United States.
Separation of powers