Separation of powers

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Separation of powers, or "Trias Politica" a term coined by French political Enlightenment thinker Baron de Montesquieu^[1][2], is a model for the governance of democratic states.

Under this model the state is divided into branches, and each branch of the state has separate and independent powers and areas of responsibility. The normal division of branches is into the executive (or government), the legislative, and the judicial.

Proponents of separation of powers believe that it protects democracy and forestalls tyranny; opponents of separation of powers, such as Professor Charles M. Hardin^[3] have pointed out that, regardless of whether it accomplishes this end, it also slows down the process of governing, it promotes executive dictatorship and unaccountability, and it tends to marginalize the legislature.

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

Montesquieu's triparate system

Montesquieu described division of political power between an executive, a legislature, and a judiciary. He based this model on the British constitutional system, in which he perceived a separation of powers between king, Parliament, and the courts of law. Subsequent writers have noted that this was misleading, since Great Britain had a very closely connected legislature and executive, with further links to the judiciary (though combined with judicial independence). But in Montesquieu's time, the political connection between Britain's Parliament and the king's Ministry was not as close as it would later become.

Montesquieu did precise that "the independence of the judiciary has to be real, and not apparent merely".^[4] "The judiciary was generally seen as the most important of powers, independent and unchecked", and also considered the least dangerous.^[4] Some politicians calls the judicial action against them "criminalization", but criminalization of politics is a response to collusion among politicians.^[5]

Separation of Powers vs. Fusion of Powers

In organizing a democratic system of governance, there exists a continuum between what is commonly called "Presidential government" and "Parliamentary government". "Separation of powers" is a feature more inherent to presidential systems, whereas "Fusion of powers" is characteristic of parliamentary systems. There also exist "mixed systems," which fall somewhere near the midpoint of the continuum, most notably France's (current) Fifth Republic.

With fusion of powers, one branch (invariably the elected legislature) is supreme, and the other branches are subservient to it. In a separation of powers, each branch is largely (although not necessarily entirely) independent of the other branches. By independent, political scientists mean that each branch is either selected independently of the other branches, or at least is not dependent upon the other branches for its continued existence.

Accordingly, in a fusion of powers system — the best-known is that of the United Kingdom, which was first described as such by Walter Bagehot — the legislature is elected by the people, and then this legislature "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."^[6] In a separation of powers, the person or persons (executive branches can have multiple members) of the executive are not selected by the legislature, but by some 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. In a "presidential" system, the executive's term may or may not coincide with the legislature's, but again, his selection is technically independent of the legislature. However, when the executive's party controls the legislature, there may sometimes develop an effective "fusion of powers" in favor of the executive. 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

Officials 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 independent ombudsmen. They are often independent of the other branches of government.

Their purpose is to audit government expenditure and general activity.

Civil examination

Sun Yet Sen proposed a branch of government based on the traditional 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.

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 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.

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