IN PARLIAMENT How Separation Of Powers Work In A Democratic System Posted by on Feb 5, 2008, 02:55

Separation of powers, a term coined by French political Enlightenment thinker Baron de Montesquieu, is a model for the governance of democratic states. The model is also known as Trias Political. Under this model, the state is divided into branches or estates and each estate of the state has separate and independent power and areas of responsibility.

The normal division of estates is the Executive,Legislative, and the Judiciary. Proponents of separation of powers believe that it protects democracy and forestalls tyranny and on the reverse, opponents of separation of powers, such as Professor Charles M. Harding pointed out that, regardless of whether it accomplishes this end, it also slows down the process of governance, promotes executive dictatorship and unaccountability, and 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.

Separation of powers vs. fusion of powers

In democratic systems Separation of powers is a feature more inherent to presidential systems. Mixed systems of governance fall somewhere in between, usually near the midpoint; the most notable example of a mixed system is evident in France. In the case of fusion of powers, one estate (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 tied to any of the others for its continued existence. Accordingly, in a fusion of power system, 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." In a separation of powers, the national legislature does not select the person or persons of the executive; instead, the executive is chosen by other means (direct popular election, 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 legislatures, her 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.

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. 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 checks and balances system, the judicial branch has the right to say that something is unconstitutional, like a law or a bill. 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.

 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.

State and local governments

Many countries mirror the executive/legislative/judicial division of the government. Major cities and provinces 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 country’s government, the geographic jurisdiction of local judges is often not coterminous with municipal boundaries. 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. Alternatively, if the executive branch is granted few powers, there is the danger of when the executive cannot control or cannot operate alongside the legislature, and then government action to solve society's problems can be limited. Political scientists have also noted the tendency for separation-of-power systems, especially with strong executives. 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. Sometimes systems with clearly defined separation of powers are difficult for the average person to understand, resulting in a nebulous political process and leading to a lack of engagement. Proponents of parliamentary systems 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 contestability and compromise, rather than a culture of winner takes all political domination.