separation of powers


  • 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, as the Kingdom of England
    had no written constitution.

  • Typical branches[edit] • Executive • Legislature • Judiciary Additional branches[edit] • Auditory • Central bank • Civil service commission • Constitutional court[32] • Electoral[33]
    • Moderating • Human rights commission • Ombudsman • Prosecutory • Presidency[34] Three branches[edit] Australia[edit] Main article: Separation of powers in Australia 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.

  • Locke defined legislative power as having “… the right to direct how the force of the commonwealth shall be employed” (2nd Tr., § 143), while executive power entailed the
    “execution of the laws that are made, and remain in force” (2nd Tr., § 144).

  • Iran[edit] Main article: Government of Islamic Republic of Iran § Political Structure Absolute Guardian of Islamist Jurist – Supreme leader • Government – Executive • The
    legislature of Islamic Republic of Iran – Legislative • Judicial system – Judicial Ireland[edit] Main article: Constitution of Ireland • Oireachtas – legislature • Taoiseach, Cabinet, Government Departments – executive • High Court and lower
    courts – judiciary Italy[edit] Main article: Constitution of Italy In Italy the powers are separated, even though the Council of Ministers needs a vote of confidence from both chambers of Parliament (which represents a large number of members,
    around 600).

  • Subsidiarity (vertical separation of powers): • Supranational directives (EU legislation) and international treaties are subjected to approval of the federal level (the federal
    level being Belgium the nation state) • The federal level comprises the following: o A bicameral parliament (House of Representatives and Senate) (in 2014 this became a directly elected house and an indirectly appointed Senate of the regions)
    o A federal government (led by the Prime Minister, ministers and secretaries of state)  Tasked with overseeing justice, defence, foreign affairs, social security, and public health o High Court, Constitutional Court, Cassation Court and Council
    of State • The regional level comprises the following: o A unicameral parliament o A regional government led by the minister-president (ministers and secretaries of state) is tasked with regional matters • Provinces also have similar structures:
    o A unicameral provincial council o A nominated provincial governor assisted by deputies is tasked with provincial matters o Appellate Court, Assizes Court • An intermediate level of Arrondissements subdivides the provinces o it has only an
    executive level with arrondissemental commissars • City and communal entities (local government): o A city or communal council o A mayor, assisted by aldermen, is tasked with local matters o Magistrates Court, Correctional Court (three judges)
    o Justice of the peace and Police Court judges (single judge courts) Secularism (separation of state and religion): • The king, the head of state, holds no political authority and requires executive approval by a minister for every action
    and statement; he nominates the ministers but he does not choose them (his executive powers); he signs and decrees the laws voted in parliament (his legislative powers); • The head of state is commander in chief of the military (in title only),
    politically the military depends on the Minister of Defence and the chiefs of staff are responsible towards parliament and take their orders from the Minister of Defence and the government; • Certain functions are deemed incompatible and people
    must resign from their function if they want to assume responsibilities in another function (military commanders have never been government ministers, even during a war).

  • 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.

  • 51) is presented as illustrative of the general principles applied in similar forms of government as well:[30] 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.

  • Denmark[edit] Main articles: Constitution of Denmark and Government of Denmark • Parliament – legislature • Prime Minister, Cabinet, Government Departments and Civil Service
    – executive • High Courts and lower courts – judiciary France[edit] Main article: Political system of France According to the Constitution of the Fifth Republic, the government of France[46] is divided into three branches: • Executive.

  • [50] • President can set aside a law passed by the legislative or an advice given by the Union Council of Ministers when it is inconsistent with the constitution of India.

  • 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 then 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.

  • 319, McLachlin J. affirmed the importance of respecting the separate roles and institutional capacities of Canada’s branches of government for our constitutional order, holding
    that “[i]t is fundamental to the working of government as a whole that all these parts play their proper role.

  • [42] The separation of powers is much stricter between the judicial branch, on the one hand, and the elected legislative and executive branches, on the other hand.

  • [10] A further development in English thought was the idea that the judicial powers should be separated from the executive branch.

  • In framing a government that 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.

  • One of the first documents proposing a tripartite system of separation of powers was the Instrument of Government, written by the English general John Lambert in 1653, and
    soon adopted as the constitution of England for few years during The Protectorate.

  • New Zealand’s constitution is based on the principle of separation of powers through a series of constitutional safeguards, many of which are tacit.

  • When the same person holds positions in the executive and legislative branches at the same time, the two powers are integrated rather than separated, and so it does not constitute
    a strict separation of powers, it is because checks and balances has been lost.

  • For example, in giving the majority judgment in Ontario v Criminal Lawyers’ Association of Ontario,[41] Justice Karakatsanis stated: All three branches have distinct institutional
    capacities and play critical and complementary roles in our constitutional democracy.

  • [35] State governments have a similar level of separation of power but this is generally on the basis of convention, rather than constitution.

  • [21] 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 executive in regard to
    matters that depend on the civil law.

  • However, under influence from the U.S. constitution, the Australian constitution does define the three branches of government separately, which has been interpreted by the
    judiciary to induce an implicit separation of powers.

  • 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).

  • Separation of powers is the division of a state’s government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are
    not in conflict with others.

  • Each branch’s efforts to prevent either of the other branches from becoming supreme form part of an eternal conflict, which leaves the people free from government abuses.

  • Japan[edit] Main articles: Politics of Japan, Government of Japan, and National Diet Based on popular sovereignty, the Government of Japan is divided into the legislative,
    executive and judicial branches.

  • According to Locke, legislative power derives its authority from the people, who have the right to make and unmake the legislature:[16] And when the people have said we will
    submit to rules, and be governed by laws made by such men… nobody else can say other men shall make laws for them; nor can the people be bound by any laws but as such as are enacted by those whom they have chosen, and authorized to make
    laws for them.

  • According to the principle of checks and balances, each of the branches of the state should have the power to limit or check the other two, creating a balance between the
    three separate powers of the state.

  • Similar structural principles apply with provincial and territorial governments, including the strong separation between the judiciary and the elected branches.

  • However, 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.

  • [23] The executive power ought to be in the hands of a monarch, because this branch of government, having need of despatch, 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.

  • The interest of the man must be connected with the constitutional rights of the place.

  • [28] The following example of the separation of powers and their mutual checks and balances from the experience of the United States Constitution (specifically, Federalist

  • [28][29] Before Hamilton, many colonists in the American colonies had adhered to British political ideas and conceived of government as divided into executive and legislative
    branches (with judges operating as appendages of the executive branch).

  • The relationship between the two houses is asymmetric, meaning that in case of dispute, the National Assembly has the final word according to Article 45[47] of the Constitution.

  • [8][9] Tripartite system[edit] During the English Civil War, the parliamentarians viewed the English system of government as composed of three branches – the King, the House
    of Lords and the House of Commons – where the first should have executive powers only, and the latter two legislative powers.

  • Like every parliamentary form of government, there is no complete separation between Legislature and Executive, rather a continuum between them due to the confidence link.

  • 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.

  • “[2] In order to reduce the danger of misuse of political power, Calvin suggested setting up several political institutions that should complement and control each other in
    a system of checks and balances.

  • Montesquieu’s approach was to present and defend a form of government whose powers were not excessively centralized in a single monarch or similar ruler (a form known then
    as “aristocracy”).

  • [24] The judiciary was generally seen as the most important of the three powers, independent and unchecked.

  • 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.

  • The latter we shall call the judiciary power, and the other simply the executive power of the state.

  • 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.

  • [38] The judicial powers are primarily assigned to the provincial superior courts,[39] but provision was made for the creation of federal courts by Parliament.

  • • Even if the president accepts a law passed duly by the legislative, it can be repealed by the Supreme Court after a fair trial if it is against the Basic structure of the

  • 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.

  • The Supreme Court of Canada has repeatedly emphasised that the separation of powers is an important structural element of the Constitution of Canada.

  • o Judges and some other people cannot run for elected office while they are nominated to certain positions (military, police-officers, clergy, notaries, bailiffs).

  • There would be an end to everything, 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, executing
    the public resolutions, and trying the causes of individuals.

  • [citation needed] India[edit] Main articles: Lawmaking procedure in India, Constitution of India, and Supreme Court of India India follows constitutional democracy which offers
    a clear separation of powers.

  • The idea is that it is not enough to separate the powers and guarantee their independence but the branches need to have the constitutional means to defend their own legitimate
    powers from the encroachments of the other branches.

  • Trias politica (horizontal separation of powers): • The legislative power is attributed to a parliamentary body elected through a representative general election system (one
    person, one vote).

  • The Judiciary is also free of government interference.

  • — Justice Karakatsanis Canada, like other parliamentary countries using the Westminster system, has a fusion between the executive and the legislative branches, with the Prime
    Minister and other Cabinet ministers being members of Parliament.

  • “No taxation without representation”), and cannot transfer its law-making powers to another body, known as the nondelegation doctrine (2nd Tr., §142).

  • For example, in June 2021, the Speaker of the House of Commons directed a member of the public service to comply with an order of the House of Commons to share certain documents
    with the Commons, and the public servant refused to do so.

  • In The Spirit of Law (1748),[17] Montesquieu described the various forms of distribution of political power among a legislature, an executive, and a judiciary.

  • Switzerland offers an example of non-Presidential separation of powers today: It is run by a seven-member executive branch, the Federal Council.

  • Any citizen of India can approach the Supreme Court directly to repeal the unconstitutional laws made by the legislative or executive.

  • No matter when, some members of the Executive Council are also members of the Legislative Council.

  • [1] Early modern concepts of mixed government[edit] John Calvin (1509–1564) favoured a system of government that divided political power between democracy and aristocracy
    (mixed government).

  • If angels were to govern men, neither external nor internal controls on government would be necessary.

  • Montesquieu took the view that the Roman Republic had powers separated so that no one could usurp complete power.

  • The system comprised a legislative branch (the Parliament) and two executive branches, the English Council of State and the Lord Protector, all being elected (though the Lord
    Protector was elected for life) and having checks upon each other.

  • 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.

  • For instance, Locke noted that while the executive and federative powers are different, they are often combined in a single institution (2nd Tr., § 148).

  • It also includes a constitutional court.


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