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The Separation of Legislative and Executive Powers
Abstract
The Constitution of 1787 establishes a strict system of separated and divided powers. Congress is divided into two, separately elected chambers, and members of the legislative branch may not hold offices in either the executive or judicial branches of the federal government. Despite the prominence of the U.S. presidential model, it has not proven as influential in the wider world as have other U.S. innovations in constitutional design (for example, entrenched human rights safeguarded through independent courts vested with the power of judicial review). In fact, most liberal democracies, including the many new governments established in the aftermath of World War II and after the fall of the Soviet Union in the late 1980s and early 1990s, have rejected the presidential model in favor a parliamentary system that features a balance, rather than a separation, of powers between the three branches of government. In particular, parliamentary systems do not observe any separation of legislative and executive power; the same persons hold and exercise both legislative and executive powers. In part, this choice reflects the lessons of history: most presidential systems have failed when divided government gave rise to a constitutional crisis. Thus, although a matter of pressing concern and central importance to the Framers of the U.S. Constitution, separating and dividing legislative and executive power tends to lack salience in most modern constitutional democracies. This essay considers some of the root causes of this U.S. fixation with separating and dividing legislative and executive power, and posits a pervasive distrust of government, its institutions, and its incumbent officers as a primary reason for the U.S. embrace of presidentialism (despite its obvious and significant downside with respect to the efficiency of government). In the United States, we embrace inefficiency as the guardian of liberty. From a global perspective, however, efficient government is not necessarily the enemy of liberty–and inefficiency constitutes, not a virtue, but a vice in constitutional design.
Today, all the Constitutional systems in the world 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. 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. The doctrine was popularized by Baron de Montesquieu. It was wholly embraced under the 1999 Constitution of Nigeria and the principles have been imbibed into the legal tradition of Nigeria. The following questions emanate from this: what is the origin of the doctrine of separation of powers? How has the doctrine been used in the Nigeria? What is the position of the doctrine in Nigeria? What is the future of the doctrine of separation of powers especially with the nascent challenges to our democratic practices? Can the principles be made more effective to promote efficiency in governance? These are the questions which this paper seeks to answer and provide workable solutions to.
Placing the National Guidelines of State Policy (GBHN or PPHN) made by the People's Consultative Assembly (MPR) as a guideline for the President can potentially reposition MPR above the President. Such an idea of a state has been implemented in Indonesia for no less than 54 years (1945-1999). This paper aims to analyze the basic characteristics of the presidential system and assess the compatibility of PPHN with the presidential system, with the novelty which then offers a model for pouring PPHN into laws and regulations that align with Indonesia's presidential system. Based on the conceptual and theoretical approaches, it can be concluded: First, the basic character of a presidential system is to separate the legislature from the executive, so no accountability mechanism puts the President down as subordinate to the legislature. PPHN implementation can shift this separation towards an accountability model, a feature of a parliamentary system. Second, PPHN can be re-enforced in a presidential system, with the prerequisite that no accountability mechanism puts the President under MPR. Third, pouring PPHN into the form of a Law replacing the RPJPN Law will be more relevant to avoid a government system shifting. However, providing a checks and balances mechanism for the President through the House of Representatives' budgetary rights is still necessary.
This chapter summarizes current constitutional design regarding the Defence Constitution. It is based on the review of national constitutions and seeks to establish a common ground for writing and amending constitutions. It reviews the aspects of defence and war powers by encompassing the constitutional status and functions of military forces and national security institutions. Further it elaborates on ex-ante control of military missions abroad and the power of military command and the power to declare war or emergency. This chapter forms part of Vol. I of Writing Constitutions.
Judicial independence is increasingly viewed as a sine qua non of democratic constitutionalism. But in spite of a widespread consensus on the importance of having an independent judiciary, debates about the meaning of judicial independence persist in the literature. For scholars interested in comparative constitutional law, the uncertainty surrounding the definition of judicial independence is particularly vexing and raises several challenging questions: is there a universal set of conditions necessary for judicial independence? Or are there perhaps several models of a judicial independence? One issue that arises from these various questions is whether it is possible to develop a taxonomy of judicial independence. Although taxonomies inevitably produce an incomplete picture of the objects they classify, a taxonomy can assist comparative law scholars by providing an analytical framework for comparison. In Part 1 of this paper, the author explores the conceptual problems associated with finding a universal definition of judicial independence, arguing that there is no single, satisfactory definition of judicial independence. In Part 2 of the paper, the author addresses some of the methodological problems associated with developing a qualitative taxonomy. This is followed by a discussion of the organizing criteria that will be used to construct the four models of judicial independence found in the author’s proposed taxonomy.
This article explores the significance of the law for enhancing social capital and the trust necessary for economic transactions. Trust is a complicated concept, which contains both rational cognitive and emotional affective aspects. While the law has been criticized by many social scientific researchers for undermining affective trust, this theory is a misguided one. Relying on purely private trust is limited, especially in a relatively complex economy. By providing assurances of contract performance, the law can help create trustworthy behavior, which in turn can increase both cognitive and affective societal trust. After examining the existing literature on the association of law and trust, I conduct cross-country research showing that the concepts are not antagonistic but tend to go together. Moreover, the use of the law can produce a better and broader, less xenophobic trust in a society.
The Administrative Procedure Act (APA) has been out of date from the day it was written because it fails to address the administrative character of the modern state. The APA imposes procedural requirements on agency rulemaking and adjudication, two activities that are singled out because they resemble legislation and judicial decision making in the premodern state. The requirements for adjudication are based on the procedural rules that govern courts; the requirements for rulemaking would be based on the procedural rules that govern legislatures, but because very few such rules exist, they are also based on the rules that govern courts. Courts then enforce these requirements according to vague, nearly incomprehensible standards, further judicializing the APA's requirements. This Article recommends that a new, administratively oriented APA be drafted. The statute should reflect the premise that the modem administrative state is a distinctively new mode of governance, founded on the principle of instrumental rationality. Procedural requirements should be based on this principle and should apply to all administrative action-not only rulemaking and adjudication, but also the policy making and implementation functions that comprise the bulk of administrative action. These requirements would ensure that agency action be reasonably designed to achieve the goals stated by the legislature or by the agency itself. They would be enforced by Congress and the administrative hierarchy as well as by courts, and the standards for court enforcement would be clarified to avoid judicialization.