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Separation Of Powers: Its Scope And Changing Equations

Introduction
There are three distinct activities in every government through which the will of the people are
expressed. These are the legislative, executive and judicial functions of the government.
Corresponding to these three activities are three organs of the government, namely the
legislature, the executive and the judiciary. The legislative organ of the state makes laws, the
executive enforces them and the judiciary applies them to the specific cases arising out of the
breach of law. Each organ while performing its activities tends to interfere in the sphere of
working of another functionary because a strict demarcation of functions is not possible in their
dealings with the general public. Thus, even when acting in ambit of their own power,
overlapping functions tend to appear amongst these organs.
The question which assumes significance over here is that what should be the relation among
these three organs of the state. Whether there should be complete separation of powers or
there should be co-ordination among them.

An analysis into these three organs and the relations between them is to be done with the
experience in different countries along with India which will give a clear idea about this doctrine
and its importance in different Constitutions.

Today all the systems might not be opting for the strict separation of powers because that is
undesirable and impracticable but implications of this concept can be seen in almost all the
countries in its diluted form.

Background
It is widely accepted that for a political system to be stable, the holders of power need to be
balanced off against each other. The principle of separation of powers deals with the mutual
relations among the three organs of the government, namely legislature, executive and
judiciary. This doctrine tries to bring exclusiveness in the functioning of the three organs and
hence a strict demarcation of power is the aim sought to be achieved by this principle. This
doctrine signifies the fact that one person or body of persons should not exercise all the three
powers of the government.

Montesquieu, a French scholar, found that concentration of power in one person or a group of
persons results in tyranny. And therefore for decentralization of power to check arbitrariness, he
felt the need for vesting the governmental power in three different organs, the legislature, the
executive, and the judiciary. The principle implies that each organ should be independent of the
other and that no organ should perform functions that belong to the other.

Montesquieu in the following words stated the Doctrine of Separation of Powers-


There would be an end of everything, were the same man or 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.

Through his doctrine Montesquieu tried to explain that the union of the executive and the
legislative power would lead to the despotism of the executive, for it could get whatever laws it
wanted to have, whenever it wanted them. Similarly the union of the legislative power and the
judiciary would provide no defence for the individual against the state. The importance of the
doctrine lies in the fact that it seeks to preserve the human liberty by avoiding concentration of
powers in one person or body of persons.
The same was expounded by the Madison as-
“The accumulation of all powers, legislative, executive and judicial, in the same hands whether
of one, a few, or many and whether hereditary, self-appointed or elective, may justly be
pronounced the very definition of tyranny”.

Therefore, separation of powers doctrine acts as a check against Tyrannical rule. The purpose
underlying the separation doctrine is to diffuse governmental authority so as to prevent
absolutism and guard against arbitrary and tyrannical powers of the state, and to allocate each
function to the institution best suited to discharge it.

Separation Of Powers Under Different Constitutions


Despite the safeguards it gives against tyranny, the modern day societies find it very difficult to
apply it rigidly. In principle they go for separation of powers and dilution of powers
simultaneously.

U.S.A.
The doctrine of separation finds its home in U.S. It forms the basis of the American
constitutional structure. Art. I vests the legislative power in the Congress; Art. II vests executive
power in the President and Art. III vests judicial power in the Supreme Court. The framers of the
American constitution believed that the principle of separation of powers would help to prevent
the rise of tyrannical government by making it impossible for a single group of persons to
exercise too much power. Accordingly they intended that the balance of power should be
attained by checks and balances between separate organs of the government. This alternative
system existing with the separation doctrine prevents any organ to become supreme.
Despite of the express mention of this doctrine in the Constitution, U.S. incorporates certain
exceptions to the principle of separation with a view to introduce system of checks and
balances. For example, a bill passed by the Congress may be vetoed by the President in the
exercise of his legislative power. Also treaty making power is with the President but it’s not
effective till approved by the Senate. It was the exercise of executive power of the senate due to
which U.S. couldn’t become a member to League of Nations. The Supreme Court has the power
to declare the acts passed by the congress as unconstitutional. There are other functions of an
organ also which are exercised by the other. India, too, followed U.S. in adoption of the checks
and balances which make sure that the individual organs doesn’t behold the powers absolutely.
This means that functioning of one organ is checked by the other to an extent so that no organ
may misuse the power. Therefore the constitution which gives a good mention of the doctrine in
its provisions also does not follow it in its rigidity and hence has opted for dilution of powers just
like India.

U.K.
Before we go to India, it’s important to know the constitutional setup of the country to which
India was a colony and ultimately owes the existence of the form of government it has. U.K.
follows a parliamentary form of government where the Crown is the nominal head and the real
legislative functions are performed by the Parliament. The existence of a cabinet system refutes
the doctrine of separation of powers completely. It is the Cabinet which is the real head of the
executive, instead of the Crown. It initiates legislations, controls the legislature, it even holds the
power to dissolve the assembly . The resting of two powers in a single body, therefore denies
the fact that there is any kind of separation of powers in England.

India
Though, just like American constitution, in Indian constitution also, there is express mention that
the executive power of the Union and of a State is vested by the constitution in the President
and the Governor, respectively, by articles 53(1) and 154(1), but there is no corresponding
provision vesting the legislative and judicial powers in any particular organ. It has accordingly
been held that there is no rigid separation of powers.
Although prima facie it appears that our constitution has based itself upon doctrine of separation
of powers. Judiciary is independent in its field and there can be no interference with its judicial
functions either by the executive or the legislature. Constitution restricts the discussion of the
conduct of any judge in the Parliament. The High Courts and the Supreme Court has been
given the power of judicial review and they can declare any law passed by parliament as
unconstitutional. The judges of the S.C. are appointed by the President in consultation with the
CJI and judges of the S.C. The S.C. has power to make Rules for efficient conduction of
business .

It is noteworthy that A. 50 of the constitution puts an obligation over state to take steps to
separate the judiciary from the executive. But, since it is a DPSP, therefore it’s unenforceable.

In a similar fashion certain constitutional provisions also provide for Powers, Privileges and
Immunities to the MPs , Immunity from judicial scrutiny into the proceedings of the house , etc.
Such provisions are thereby making legislature independent, in a way. The Constitution
provides for conferment of executive power on the President. His powers and functions are
enumerated in the constitution itself. The President and the Governor enjoy immunity from civil
and criminal liabilities.
But, if studied carefully, it is clear that doctrine of separation of powers has not been accepted in
India in its strict sense. The executive is a part of the legislature. It is responsible to the
legislature for its actions and also it derives its authority from legislature. India, since it is a
parliamentary form of government, therefore it is based upon intimate contact and close co-
ordination among the legislative and executive wings. However, the executive power vests in
the President but, in reality he is only a formal head and that, the Real head is the Prime
minister along with his Council of Ministers. The reading of Art. 74(1) makes it clear that the
executive head has to act in accordance with the aid and advice given by the cabinet.

Generally the legislature is the repository of the legislative power but, under some specified
circumstances President is also empowered to exercise legislative functions. Like while issuing
an ordinance , framing rules and regulations relating to Public service matters , formulating law
while proclamation of emergency is in force . These were some instances of the executive head
becoming the repository of legislative functioning. President performs judicial functions also .
On the other side, in certain matters Parliament exercises judicial functions too. It can decide
the question of breach of its privilege , and in case of impeaching the President; both the
houses take active participation and decide the charges

Judiciary, in India, too can be seen exercising administrative functions when it supervises all the
subordinate courts below . It has legislative power also which is reflected in formulation of rules
regulating their own procedure for the conduct and disposal of cases

So, it’s quite evident from the constitutional provisions themselves that India, being a
parliamentary democracy, does not follow an absolute separation and is, rather based upon
fusion of powers, where a close co-ordination amongst the principal organs is unavoidable and
the constitutional scheme itself mentions it. The doctrine has, thus, not been awarded a
Constitutional status. Thus, every organ of the government is required to perform all the three
types of functions. Also, each organ is, in some form or the other, dependant on the other organ
which checks and balances it. The reason for the interdependence can be accorded to the
parliamentary form of governance followed in our country. But, this doesn’t mean that this
doctrine is not followed in India at all.

Except where the constitution has vested power in a body, the principle that one organ should
not perform functions which essentially belong to others is followed. This observation was made
by the Supreme Court in the re Delhi Laws Act case, wherein, it was held by a majority of 5:2,
that, the theory of separation of powers is not part and parcel of our Constitution. But, it was
also held that except for exceptional circumstances like in A. 123, A. 357, it is evident that
constitution intends that the powers of legislation shall be exercised exclusively by the
Legislature. As Kania, C.J., observed-
Although in the constitution of India there is no express separation of powers, it is clear that a
legislature is created by the constitution and detailed provisions are made for making that
legislature pass laws. Does it not imply that unless it can be gathered from other provisions of
the constitution, other bodies-executive or judicial-are not intended to discharge legislative
functions?

In essence they imported the modern doctrine of separation of powers. While dealing with the
application of this doctrine, it is quintessential to mention the relevant cases which clarify the
situation further.

Separation of Powers and Judicial Pronouncements in India


In India, we follow a separation of functions and not of powers. And hence, we don’t abide by
the principle in its rigidity. An example of it can be seen in the exercise of functions by the
Cabinet ministers, who exercise both legislative and executive functions. A. 74(1) wins them an
upper hand over the executive by making their aid and advice mandatory for the formal head.
The executive, thus, is derived from the legislature and is dependant on it, for its legitimacy.
This was the observation made by the Hon’ble S.C. in Ram Jawaya v. Punjab.

On the question that where the amending power of the Parliament does lies and whether A. 368
confers an unlimited amending power on Parliament, the S.C. in Kesavananda Bharati held that
amending power was now subject to the basic features of the constitution. And hence, any
amendment tampering these essential features will be struck down as unconstitutional. Beg, J.
added that separation of powers is a part of the basic structure of the constitution. None of the
three separate organs of the republic can take over the functions assigned to the other. This
scheme cannot be changed even by resorting to A. 368 of the constitution . There are attempts
made to dilute the principle, to the level of usurpation of judicial power by the legislature.

In a subsequent case law, S.C. had occasion to apply the Kesavananda ruling regarding the
non-amend ability of the basic features of the constitution and a strict adherence to doctrine of
separation of powers can be seen. In Indira Gandhi Nehru v. Raj Narain , where the dispute
regarding P.M. election was pending before the Supreme Court, it was held that adjudication of
a specific dispute is a judicial function which parliament, even under constitutional amending
power, cannot exercise . So, the main ground on which the amendment was held ultravires was
that when the constituent body declared that the election of P.M. won’t be void, it discharged a
judicial function which according to the principle of separation it shouldn’t have done. The place
of this doctrine in Indian context was made a bit clearer after this judgment.

Though in India strict separation of powers like in American sense is not followed but, the
principle of ‘checks and balances’, a part of this doctrine is. Therefore, none of the three organs
can usurp the essential functions of the organs, which constitute a part of ‘basic structure’
doctrine so much so that, not even by amending the constitution and if any such amendment is
made, the court will strike it down as unconstitutional.

Conclusion
It has been well said by Lord Acton:- “Power corrupts and absolute Power tends to corrupt
absolutely” .
Conferment of power in a single body leads to absolutism. But, even after distinguishing the
functions, when an authority wields public power, then providing absolute and sole discretion to
the body in the matters regarding its sphere of influence may also cause abuse of such power.
Therefore, the doctrine of separation of powers is a theoretical concept and is impracticable to
follow it absolutely.

The status of modern state is a lot more different than what it used to be. It has evolved a great
deal from a minimal, non-interventionist state to an welfare state, wherein it has multifarious
roles to play, like that of a protector, arbiter, controller, provider. This omnipresence of the state
has rendered its functions becoming diverse and problems, interdependent and any serious
attempt to define and separate those functions would cause inefficiency in government. Hence,
a distinction is made between ‘essential’ and ‘incidental’ powers of an organ. According to this
differentiation one organ can’t claim the powers essentially belonging to other organ because
that would be a violation of the principle of separation of powers. But, it can claim the exercise
of the incidental functions of another organ. This distinction prevents encroachment of an organ
into the essential sphere of activity of the other.

It is the exercise of incidental powers only which has made executive grow everywhere in this
social welfare state. It has assumed a vital role but, it has not usurped any role from any other
wing. It just happened that the other two organs, namely, judiciary and legislature, became
unsuitable for undertaking the functions of this welfare state and as a consequence the
functions of the executive increased. As controller and provider, the judicial processes were
very time consuming and the legislature was overburdened with work. Therefore, it was in
natural scheme of things which made the administrators end up performing a variety of roles in
the modern state including those of legislature and judiciary too, to an extent.

Further, the check of the adjudicators over functionings of the other two has been regarded as
an ‘essential’ feature of the basic structure theory. The judicial review power is a preventive
measure in a democratic country which prevents administrators and law-makers to exercise
their whims and caprices on the lay man and turn it into a despotic regime. There have been
cases where the judiciary has dictated the ambit of their power to the implementers and the
mode to exercise it. Not even the representatives of people are immune to the power of the
courts. Two recent Supreme Court judgments- on the cash-for-query case and on the Ninth
Schedule – have once again brought the powers and roles of the legislature and the judiciary
into focus. In the case of the former, the court upheld the Lok Sabha’s decision to expel
members of Parliament, who were caught on camera taking bribes, but clearly rejected the
contention that it cannot review parliament’s power to expel MPs and claimed for itself the role
of final arbiter on decisions taken by the legislature. The judgment on the Ninth Schedule has
curtailed Parliament’s power to keep certain progressive laws outside judicial Review.

In the Second case, i.e., I.R. Coelho vs. State of Tamil Nadu , S.C. took the help of doctrine of
basic structure as propounded in Kesavananda Bharati case and said that Ninth Schedule is
violative of this doctrine and hence from now on the Ninth Schedule will be amenable to judicial
review which also forms part of the basic feature theory. The basic structure theory and the
Golden triangle comprising of A.14, 19, and 21, will now be the criterion in scrutiny of the Ninth
Schedule.
In a democratic country goals are enshrined in the constitution and the state machinery is then
setup accordingly. And here it can be seen that constitutional provisions are made as such to
support a parliamentary form of government where the principle can’t be followed rigidly. The
S.C. rulings also justify that the alternative system of checks and balances is the requirement,
not the strict doctrine. Constitutionalism, the philosophical concept of the constitution also insists
on limitations being placed upon governmental power to secure basic freedoms of the
individual. Hence, the conclusion drawn out of the study is that there is no strict separation of
powers but the functions of the different branches of the government have been sufficiently
differentiated.

Separation of powers
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Separation of powers, a term ascribed to French Enlightenment political


philosopher Baron de Montesquieu,[1][2] is a model for
the governance of democraticstates. 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.
Parliamentary democracies do not have distinct separation of powers. The
executive, which often consists of a prime
minister and cabinet ("government"), is drawn from the legislature
(parliament). This is the principle of responsible government. However,
although the legislative and executive branches are connected, in
parliamentary systems there is usually an independent judiciary and the
Governments role in Parliament does not give them unlimited Legislative
powers.

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.

Contents
 1 Origins in the Constitution of the Roman Republic
 2 Montesquieu's tripartite system
 3 Separation of powers vs. fusion of powers
 4 Other branches
 4.1 Auditory
 4.2 Civil examination
 4.3 Data
 4.4 Electoral
 4.5 The people
 4.6 Independent executive agencies
 4.7 The press
 4.7.1 The press around the world
 5 Various models around the world
 5.1 Australia: three branches
 5.2 People's Republic of China
 5.3 Costa Rica: five branches
 5.4 European Union
 5.5 France
 5.6 Germany: three branches and six bodies
 5.7 Republic of China ("Taiwan"): five branches of government
 5.8 United Kingdom
 5.9 United States: three branches
 5.9.1 Checks and balances
 5.9.2 Maintaining balance
 5.9.3 State and local governments
 5.10 Venezuela: five branches
 6 Criticisms
 7 Related restraint-of-power concepts
 8 See also
 9 Notes
 10 References

 11 External links

Origins in the Constitution of the Roman Republic


The government of the Roman Republic divided power into three
independent branches: the senate, the legislative branch, and the executive
branch. The Senate made military and foreign policy, and directed domestic
policy. It also issued orders to executive branch officials, which were usually
obeyed. The Senate was not a legislative body and it did not pass laws. The
legislative branch had two primary functions. First, it elected all executive
officials. Election to such office usually meant automatic membership in the
senate (senate terms were for life). The second major function of the
legislative branch was to pass domestic laws. These legislative assemblies
were not bodies of elected representatives. Rather, they were bodies of
citizens, participating in a direct-democracy legislative system. The laws
(Latin: lex) passed by these assemblies were called plebiscites, the modern
equivalent of popular referendums. Members of the executive branch
commanded the military, enforced the laws, and acted as high judges. A
network of checks and balances existed between the three branches. This
system of checks and balances was designed to prevent the accumulation of
too much power into the hands of a single person.

Montesquieu's tripartite system


Montesquieu described division of political power among an executive,
a legislature, and a judiciary. He based this model on the British
constitutional system, in which he perceived a separation of powers among
the monarch, Parliament, and the courts of law. Subsequent writers have
noted that this was misleading, because Great Britain had a very closely
connected legislature and executive, with further links to the judiciary
(though combined with judicial independence).
Montesquieu did specify that "the independence of the judiciary has to be
real, and not apparent merely".[3] "The judiciary was generally seen as the
most important of powers, independent and unchecked", and also considered
the least dangerous.[3] Some politicians decry judicial action against them as a
"criminalization" of their behavior, but such "criminalization" may be seen as
a response to corruption, collusion, or abuse of power by these politicians.[4]

Separation of powers vs. fusion of powers


In democratic systems of governance, a continuum exists between
"Presidential government" and "Parliamentary government". "Separation of
powers" is a feature more inherent to presidential systems, whereas "fusion of
powers" is characteristic of parliamentary ones. "Mixed systems" fall
somewhere in between, usually near the midpoint; the most notable example
of a mixed system is France's (current) Fifth Republic.

In fusion of powers, one government (invariably the elected legislature) is


supreme, and the other estates are subservient to it. In separation of powers,
each estate is largely (although not necessarily entirely) independent of the
others. Independent in this context means either that selection of each estate
happens independently of the other estates or at least that each estate is not
beholden to any of the others for its continued existence.

Accordingly, in a fusion of powers system such as that of the United


Kingdom, first described as such by Walter Bagehot, the people elect the
legislature, which in turn "creates" the executive. As Professor Cheryl
Saunders writes, "...the intermixture of institutions [in the UK] is such that it
is almost impossible to describe it as a separation of powers."[5] In a
separation of powers, the national legislature does not select the person or
persons[6] of the executive; instead, the executive is chosen by other means
(direct popular election, electoral college selection, etc.) In a parliamentary
system, when the term of the legislature ends, so too may the tenure of the
executive selected by that legislature. Although in a presidential system the
executive's term may or may not coincide with the legislature's, their
selection is technically independent of the legislature. However, when the
executive's party controls the legislature, the executive often reaps the
benefits of what is, in effect, a "fusion of powers". Such situations may
thwart the constitutional goal or normal popular perception that the
legislature is the more democratic branch or the one "closer to the people",
reducing it to a virtual "consultative assembly", politically or procedurally
unable—or unwilling—to hold the executive accountable in the event of
blatant, even boldly admitted, "high crimes and misdemeanors."

Other branches
Auditory

With the title Comptroller General, Auditor General or Comptroller and


Auditor General, the European Union's Court of Auditors and
Taiwan's Control Yuan are individual or bodies of independentombudsmen.
They are often independent of the other branches of government.

Their purpose is to audit government expenditure and general activity. Also


non as checks and balance
Civil examination

Sun Yat Sen proposed a branch of government based on the Imperial


examination system used in China. The "Examination Yuan" (Traditional
Chinese: 考試院; pinyin: Kǎoshì Yuàn), as it is called in Taiwan, is in charge
of validating the qualification of civil servants. This structure has been
implemented in the Republic of China.
Data

In Germany, as in the rest of the EU, there is a notion of data protection. In


Germany it is represented by its own commissioners. Additionally there is
the BStU dealing with the Stasi archives and the German Federal Archives,
each providing access to data only in accordance with special laws.
Electoral

Costa Rica's Supreme Elections Tribunal is a branch of government that


manages elections. Similar independent institutions exist in many other
democratic countries, however they are not seen as a branch of government.
In many countries, these are known as Electoral Commissions.
The people

Many philosophers and political scientists believe that democratic


governments are created and constitutions exist to serve the people. The
people have their own system of checks and balances by electing the
legislative and executive branches. The government also draws its power
directly from the people. Without the people, there is no government, just as
without the legislative branch, there can be no judicial branch.

In the Constitution of Venezuela, the "citizen's power" is a formal branch of


government, though it acts like auditors' branches in other jurisdictions.

See also:

 Direct democracy
 Initiative
 Referendum
 Recall election
Independent executive agencies

The federal executive of the United States is a very large bureaucracy, and
due to civil service rules, most middle- and low-level government workers do
not change when a new President is elected. (New high-level officials are
usually appointed and must be confirmed by the United States Senate.)
Moreover, semi-independent agencies (such as the Federal Reserve or
the Federal Communications Commission) may be created within the
executive by the legislature. These agencies exercise legally defined
regulatory powers. High-level regulators are appointed by the President and
confirmed by the legislature; they must follow the law and certain lawful
executive orders. But they often sit for long, fixed terms and enjoy reasonable
independence from other policy makers. Because of its importance to modern
governance, the regulatory bureaucracy of the executive is sometimes
referred to as a "fourth" branch of government.

This separation is even more pronounced in the United Kingdom. The


separation was a prominent element of the Yes Minister comedy television
series.
The press

The press has been described as a "fourth power" because of its considerable
influence over public opinion (which in turn affects the outcome of
elections), as well as its indirect influence in the branches of government by,
for example, its support or criticism of pending legislation or policy changes.
It has rarely, however, been a formal branch of democratic government; nor
have political philosophers suggested that it become one.

The press is also sometimes referred to as the Fourth Estate, a term of French
origin, which is not related to the modern three-branch system of
government.

Originally, the First Amendment of the United States Constitution explicitly


guaranteed freedom of the press only against interference by the federal
government. Later this right was extended by the United States Supreme
Court in the Incorporation Cases to cover state and local governments.

Traditionally, the press has been the "voice of the people", keeping
government somewhat in check. Examples of this were the Watergate
scandal, where two Washington Post reporters
exposed corruption andcoverup at the highest levels of government, or
the Adscam (Sponsorship scandal) which was uncovered by the press
in Canada. This exposure caused the resignation, firing, or prosecution of
many officials.

There exist situations where the press can affect public opinion in ways that
are contrary to the spirit of separation of powers. One of the most compelling
of these situations is when the state controls the content and distribution of
the information disseminated by the press. However, even if the press is
immune to censorship and compulsion from the government, the controlling
entity of a press association or media outlet must almost always edit, and
may editorialize, providing opportunities to affect public opinion in ways that
may contradict public interest. In all cases, the "voice of the people" (as
perceived by some) is modified by the opinions of those producing the
stories.
The press around the world
Freedom of the reporting media is generally considered to be essential for the
perpetuation of democratic governments, and it is found in all strong
democracies, regardless of the organizational principle of the "branches" of
government.

Many governments financially support public broadcasting in some way, but


in strong democracies these media outlets can enjoy wide editorial latitude.

An independent press acts as a powerful check on all forms of government by


providing information about governmental activities to the public. There are
weighty arguments to suggest that the press is the external 4th branch which
continuously scrutinizes a government's operations, with David
Blunkett's two resignations as both Home Secretary(2004) and Secretary of
State for Work and Pensions (2005) as particular examples.

Various models around the world


Constitutions with a high degree of separation of powers are found
worldwide. The UK system is distinguished by a particular entwining of
powers. India's democratic system also offers a clear separation of power
under Lok Sabha (lower house of parliament), Rajya Sabha (upper house of
Parliament), and the President of India, who overlooks independent
governing branches such as the Election commission and the Judiciary.
Under the Indian constitution, just as in the British system, the Prime
Minister is a head of the governing party and functions through a selected
group of ministers. In Italy the powers are completely separated, even if
Council of Ministers need the vote of confidence from both chambers of
Parliament, that's however formed by a wide number of members (almost
1,000).

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.

Complete separation-of-powers systems are almost always presidential,


although theoretically this need not be the case. There are a few historical
exceptions, such as the Directoire system of revolutionary
France. Switzerland offers an example of non-Presidential separation of
powers today: It is run by a seven-member executive branch, the Federal
Council. However, some might argue that Switzerland does not have a strong
separation of powers system, as the Federal Council is appointed by
parliament (but not dependent on parliament), and the judiciary has no power
of review.
Australia: three branches

People's Republic of China

Costa Rica: five branches

After eight years of social conflict, the question of who would lead Costa
Rica and which transformational model the State would use was decided by
who killed the president. A constituent assembly followed and drew up a new
constitution, approved in 1949. This document was an edit of the constitution
of 1871, as the constituent assembly rejected more radical corporatist ideas
proposed by the ruling junta. Nonetheless, the new constitution increased
centralization of power at the expense of municipalities and eliminated
provincial government altogether.

It established the three supreme powers as the legislature, executive,


and judicial branches, but also created two other autonomous state organs
that have equivalent power but not equivalent rank. The first is the Supreme
Elections Tribunal (electoral branch) which controls elections and makes
unique, unappealable decisions on their outcomes.

The second is the office of the Comptroller General (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 Comptroller also provides financial
vigilance over government offices and office holders, and routinely brings
actions to remove mayors for malfeasance, firmly establishing this
organization as the fifth branch of the Republic.
European Union
The branches of the European Union are slightly mixed due to the complex
nature of the EU's design. There are five institutions of the European Union.
The functioning of the EU is split into intergovernmental and supranational
spheres (see three pillars of the European Union). In intergovernmental
matters, most power is concentrated in the Council of the European Union -
giving it the characteristics of a normalinternational organization. Here, all
power at 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.
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 auditory authority (due to the sensitive nature of fraud in the
EU).

 European Commission - executive


 European Parliament - legislative
 Council of the European Union - legislative and executive
 European Court of Justice - judicial
 European Court of Auditors - auditory
France

Germany: three branches and six bodies

The six main bodies enshrined in the Basic Law for the Federal Republic of
Germany are:

 Federal President (Bundespräsident) - executive


 Federal Cabinet (Bundesregierung) - executive
 Federal Diet (Bundestag) & Federal Council (Bundesrat) - legislative
 Federal Assembly (Bundesversammlung) - presidential electoral
college
 Federal Constitutional Court (Bundesverfassungsgericht) - judiciary
The Bundesversammlung is primiraliy constituted of members of the
Bundestag and Bundesrat.

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.
Republic of China ("Taiwan"): five branches of government

Some countries take the doctrine further than the three-branch system. The
politics of the Republic of China, for example, has five branches:
the Executive Yuan, Legislative Yuan, Judicial Yuan, Control Yuan,
and Examination Yuan.

Due in part to the Republic's youth, the relationship between its 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.[7]
United Kingdom

Although the principle 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", 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 does—to a lesser
extent—the judiciary. The Prime Minister, the chief executive, must by
convention be a Member of the House of Commons and can effectively be
removed from office by a simple majority vote. Furthermore, while the courts
in Britain are undoubtedly amongst the most independent in the world,
the Law Lords, who are the final arbiters of judicial disputes in the UK, sit
simultaneously in the House of Lords, the upper house of the legislature,
although this arrangement will cease in 2009 when the Supreme Court of the
United Kingdom comes into existence. Furthermore, because of the existence
of Parliamentary sovereignty, while the theory of separation of powers may
be studied in Britain, a system such as that of the UK is more accurately
described as a "fusion of powers."

The development of the British constitution, which is not written down in one
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 Queen who must give her Royal Assent to all Bills so that
they become Acts), the executive (the Queen appoints all ministers of Her
Majesty's Government, who govern in the name of the Crown) and the
judiciary (the Queen, as the fount of justice, appoints all senior judges, and
all public prosecutions are brought in her name).

The British legal system is based on common law traditions which require:

 Police or regulators cannot initiate complaints under criminal law but


can only investigate (prosecution is mostly reserved for the Crown
Prosecution Service), which prevents selective enforcement, e.g. the
'fishing expedition' which is often specifically forbidden.
 Prosecutors cannot withhold evidence from attorneys for the defendant;
to do so results in mistrial or dismissal. Accordingly, their relation to
police is no advantage.
 Defendants convicted can appeal, but no new evidence can usually be
introduced, restricting the power of the court of appeal to the process of
law applied.
United States: three branches

In the United States Constitution, Article I 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."[8] The Supreme Court
holds "The judicial Power" according to Article III, and it established the
implication of Judicial review in Marbury vs Madison.[9] 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 usurp power from Congress arguing for Separation of
powers to include being the Commander in Chief of a standing army since
the Civil war, executive orders, emergency powers and security
classifications since WWII, national security, signing statements, and now
the concept of a unitary executive.
Checks and balances

To prevent one branch from becoming supreme, and to induce the branches
to cooperate, governance systems that employ a separation of powers need a
way to balance each of the branches. Typically this was accomplished
through a system of "checks and balances", the origin of which, like
separation of powers itself, is specifically credited to Montesquieu. Checks
and balances allows for a system based regulation that allows one branch to
limit another, such as the power of Congress to alter the composition and
jurisdiction of the federal courts.
Legislative Executive Judicial
 Also known as  Preserves, protects  Determines which jurisdiction
Congress and defends the any given case falls under
 Makes all laws. Constitution  Judges when a law is
 Controls all the  Faithfully executes unconstitutional
money; taxes, the laws of the  Has the responsibility to
borrows, and sets the United States administer Constitutional law
budget (with  Executes the and to apply it to constitutional
exception of instructions of disputes
unappropriated Congress  Determines the disposition of
spending by central  May veto laws but prisoners
bank). the veto may be  May legally compel testimony
 Has sole power to overridden by and the production of evidence
declare war. Congress by a 2/3 as the law provides.
 Oversees, majority.  Judges and competently
investigates, and  Executes the administers uniform policies via
makes the rules for spending the appeals process, but gives
the government and authorized by discretion in individual cases to
its officers. Congress low-level judges. (The amount
 Appoints the heads of  Executes the of discretion depends upon the
the executive branch. instructions of standard of review, determined
 Confirms federal Congress when it by the type of case in question.)
judicial appointments. declares war or  Oversees and administers
 Ratifies treaties. makes rules for the members of the judiciary
military
 Declares states of
 Originates cases of emergency and  Is subject to impeachment by
impeachment. publishes Congress
regulations and
executive orders
 Appoints judges
with the advice and
consent of the
Senate
 President and Vice-
President can be
impeached and
removed from
office by Congress

 Has the power to


grant pardons for
crimes against the
United States

Maintaining balance

The theoretical independence of the executive and legislative branches is


partly maintained by the fact that they are separately elected and are held
directly accountable to the public. There are also judicial prohibitions against
certain types of interference in each others' affairs. (See "separation of
powers" cases in the List of United States Supreme Court cases.) Judicial
independence is maintained by life appointments of judges, with voluntary
retirement, and a high threshold for removal by the legislature. 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. In the checks and
balances system, the judicial branch has the right to say that something is
unconstitutional, like a law or a bill (Credited to an opinion piece by Chief
Justice John Marshall presiding over the case of Marbury v. Madison (1803)).

The legal mechanisms constraining the powers of the three branches depend a
great deal on the sentiment of the people. A common perception is that
popular support establishes legitimacy and makes possible the actual
implementation of legal authority. National crises (such as the Civil War, the
Great Depression, pre-Pearl Harbor World War II, the Vietnam War) have
been the times at which the principle of separation of powers has been most
endangered, either through official "misbehavior" or through the willingness
of the public to sacrifice such principles if more pressing problems are
solved. 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 sometimes.

However, as James Madison wrote in Federalist No. 51 regarding the ability


of each branch to defend itself from actions by the others, "But it is not
possible to give to each department an equal power of self-defense. In
republican government, the legislative authority necessarily predominates."
Bicameralism was, in part, intended to reduce the relative power of the
legislature by turning it against itself, by having "different modes of election
and different principles of action." (This is one of the arguments against the
popular election of Senators, which was instituted by the Seventeenth
Amendment.) But when the legislature is unified, it can obtain dominance
over the other branches.
State and local governments

The American states mirror the executive/legislative/judicial division of the


federal government. Major cities tend to do so as well, but the arrangements
of local and regional governments vary widely. Because the judicial branch is
often a part of a state or county government, the geographic jurisdiction of
local judges is often not coterminous with municipal boundaries.

In many American states and local governments, executive authority and law
enforcement authority are separated by allowing citizens to directly elect
public prosecutors (district attorneys and state attorneys-general). In some
states, judges are also directly elected.

Many localities also separate special powers from their executive and
legislative branches through the direct election of sheriffs, school boards,
transit agency boards, park commissioners, etc.

Juries (groups of randomly selected citizens) also have an important role in


the checks-and-balances system. They have the sole authority to not only
determine the facts in most criminal and civil cases, but to judge the law,
acting as a powerful buffer against arbitrary enforcement by the executive
and judicial branches. In many jurisdictions they are also used to determine
whether or not a trial is warranted, and in some places Grand Juries have
independent investigative powers with regard to government operations.
Venezuela: five branches

The constitution establish that 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.

Criticisms
It can be argued that there is no natural distinction between executive and
legislative forms of government: legislation that is passed must always be
executed, and much executive action requires new laws. This argument might
be compared to the arrangement between Architect, Contractor and Owner,
where the architect designs a plan, the contractor executes it, and the owner
pays. Not all plans are built as designed, but where there are change orders its
the architect who writes them, where there are requisitions for payment its the
architect who approves them, and where there are disputes its the architect
who decides them.

As such, while the division can be said to be an artificial one, the roles
defined by the division have different degrees of power and responsibility.In
the United States the Legislative branch has all the power, the Executive
branch has the responsibility to preserve, protect and defend the constitution
and the laws of the United States and the Judicial branch decides.

There is currently no constitutional system which has a complete separation


of powers where there is a distribution of functions among three independent
organs with no overlapping or cross-coordination except for the United States
as described above. Some of the early American States and the French
Constitution of 1791 tried to enforce this doctrine strictly, but they failed.
Instead, most constitutions give slightly overlapping powers to each branch,
such as the US president's ability to veto legislation, or the power of judicial
appointment.
Some observers believe that no obvious case exists in which such instability
was prevented by the separation of powers. In parliamentary systems such as
the United Kingdom the three "powers" are not separated (although the
judiciary is independent). However, this has not threatened British stability,
because the strong tradition of parliamentary sovereignty serves the purpose
of limiting executive power.

In contrast, many countries which have adopted separation of powers


(especially in Latin America) have suffered from instability (coups d'état,
military dictatorships, civil war and unrest, etc). If the separated executive is
granted strong powers, it may well encourage instability, because it is less
consensus-oriented than a parliamentary system, and because it inures the
population and political elite to the influence of a dominant leader. In times
of instability, competing political groups can become obsessed with
controlling the executive office, and it is often the loss of a presidential
election which triggers greater instability. In a presidential system, there can
only be one winning party, and all others fail entirely to gain power. In
contrast, a parliamentary system can allow all political groups to have some
share in control of the executive by participating in a coalition.

Some are concerned that where the executive branch is granted few powers,
there is the danger of political gridlock. When the executive cannot operate
without waiting for the legislature to deliberate, then government action to
solve problems can be delayed. Others are concerned that where there is
deciciveness without deliberation the consequences can be grave.

Some political scientists have wondered whether there is a tendency for


separation-of-power systems, especially those with strong executives, to
develop into two-party systems. As the executive is as a "winner-take-all"
position, voters and lobby groups might tend to adopt a strategy of supporting
their preferred choice from the two leading candidates, the perception being
that a vote or donation to a third-party candidate is a waste. As the executive
is usually considered the most important position in government, members of
the legislature will coalesce into groups supporting the two dominant
executive candidates. Recently we have seen an alternative to this partisan
schism may be offered when there is a competent and cooperative
relationship established between branches respecting their established roles.
The categories of the functions and corresponding powers of government are
inclined to become blurred when it is attempted to apply them to the details
of a particular constitution. Some hold that the true distinction lies not in the
nature of the powers themselves, but rather in the procedure by which they
are exercised.

Sometimes systems with clearly defined separation of powers are complex


and difficult for any person to understand, resulting in a nebulous political
process and leading to a lack of engagement. Proponents of parliamentary
systems and the legislative process claim that they make it easier to
understand how "politics is done" by providing a clearer view of who does
what, who is responsible for what, and who is to blame. This is important
when it comes to engaging the people in political debate and increasing
citizens' interest and participation in politics. However, for a parliamentary
system to work effectively, institutional arrangements such as fair electoral
laws, freedom of the press, independent courts, due process, and the
independence of the Houses of Parliament must be so designed as to prevent
executive supremacy over the legislative and judicial branches while also
encouraging a culture of public debate, open government, accountable office
holders, and policy contest-ability and compromise, rather than a culture of
"winner takes all" political domination.

Related restraint-of-power concepts


 Federalism, also known as vertical separation of powers — Prevents
abuse by dividing governing powers, usually by separating municipal,
provincial, and national governments. See also subsidiarity.
 Rule of law - Prevents arbitrary exercise of the executive power,
preserves general and minority rights, and promotes stability and
predictability.
 Democracy and civil society - Attempts to constrain elected branches
of government to act in the public interest, not in self-interest.
 Separation of church and state or Laïcité - Ensures freedom of religion
by preventing government interference in its practice. Also constrains
the power of government by maintaining freedom of conscience and
belief.
 Civilian control of the military - Helps prevent dictatorship that
otherwise might occur through military rule.
 In some systems, an independent central bank.
 Separation of duties in organizations.
 Independent Civil Service.
 Negarchy - The self-interests of separate powers canceling one another
via indirect yet interdependent means.
 Multicameralism - The division of legislature into separate autonomous
chambers.

See also
 Constitution of the Roman Republic
 Absolute power
 Balance of power
 Corruption Perceptions Index - Parliamentary systems are, in general,
perceived as less corrupt than other systems
 Judicial activism
 List of democracy and elections-related topics
 Signing statement
 Unitary executive theory
 Fifth power

Notes
1. ^ "Baron de Montesquieu, Charles-Louis de Secondat (Stanford
Encyclopedia of Philosophy)". Plato.stanford.edu. Retrieved on 2008-
10-29.
2. ^ "K-Zone law - Separation of Powers: the reality". Kevinboone.com.
Retrieved on 2008-10-29.
3. ^ a b Przeworski 2003, p.26, p.13, p.223-4
4. ^ Przeworski 2003, p.14 [1]
5. ^ Cheryl Saunders. "Separation of Powers and the Judicial
Branch" (doc).
6. ^ Two examples of executives of more than one person are
a triumvirate (three rulers) and a constitutional monarchy (two rulers).
7. ^ "E-Notes: Why Taiwan's Political Paralysis Persists - FPRI".
Fpri.org. Retrieved on 2008-10-29.
8. ^ Constitution of the United States. [2]
9. ^ Madison, James. (8 February 1788) "The Structure of the
Government Must Furnish the Proper Checks and Balances Between
the Different Departments"The Federalist Papers No. 51

References
 Alec Stone Sweet, Governing With Judges: Constitutional Politics in
Europe2000 Oxford University Press ISBN 978-0-19-829730-7
 Adam Przeworski, JM Maravall, I NetLibrary Democracy and the Rule
of Law(2003)
 The Invention of the Modern Republic(March 2007) ISBN 978-0-521-
03376-3
 Manin, Bernard Principles of Representative Government(English
version 1997)
 MJC Vile Constitutionalism and the Separation of Powers(1967,
Indianapolis: Liberty Fund, 1998) Second edition.

External links
 Polybius and the Founding Fathers: the separation of powers
 Arbitrary Government Described and the Government of the
Massachusetts Vindicated from that Aspersion (1644)

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 Separation of Power
 Government, one of the most important factors in our life, is very complicated. After I
have studied the American government, I find out that the American government is the
most perfect and democratic government in the world. The government is doing their
jobs in the best interest of people, to protect people�s rights. The most important
concept I have learned about the American government, which guarantee the
government won�t get too much power over people, is the concept of separation of
powers.The Doctrine of Separation of powers is that political power should be divided
among several bodies as a precaution against tyranny. The ideal is opposed the
absolute sovereignty of the Crown, Parliament, or any other body. The blueprint for
United States� separation of powers is laid out in the U.S. Constitution and expanded
upon in the Federalist Papers. The checks and balances of the U.S. government involve
the vertical separation of powers among the executive (the Presidency), the legislature
(the two houses of Congress), and the judiciary (the federal courts). There is also a
horizontal separation between the federal government and the states. Defenders of
separation of powers insist that it is needed against tyranny, inclu

These powers include a number of varying areas. Constitution realized that power of
government coming from people. Finally, Article III deals with the judicial powers of the
United States. In the application of the theory of separation of powers to the United
States, the U. This was the argument that James Madison addressed in The Federalist
Papers. Therefore, the primary duty of government is to protect people�s rights. This is
a check that is put on the executive branch by the legislative branch. In addition, the
Constitution was an antidote for the �evils of democracy. In order constrain both
majorities as well as minority, the founders favored a less efficient government checked
and balanced against itself because it seemed safer than the risk of tyranny in a more
efficient system. It states that the judicial powers shall be vested in the Supreme Court
and in such inferior courts as Congress may establish. � Checks and balances and
separation of powers are concerned with checking both minority and majority
�factions� that spring from man�s self-interest. Chief Justice John Marshall in
Marbury v. � The prime purpose was to protect vested interests by such curbs upon the
masses as checks and balances, especially judicial review, and central government in
which only the House of Representatives was to be popularly elected. �The founders
were haunted by the monarchial system and this idea of checks and balances was
designed to cure the evils of that form of government. This becomes a check of
Congress of the judicial branch.