Constitutional Law: Separation of Powers

• Lecture 2 covers constitutional law and the separation of powers.
• The lecture is presented by Dr. Dennis Penu.

Recap of Connection Week 1

• Montesquieu stated that there would be an end to everything if the same person or body exercised the three powers, being those of legislature, execution and judiciary.

Separation of Powers

• Separation of powers serves to limit governmental power, which in turn guarantees the rights of citizens.

Doctrine of the Separation of Powers

• The government should be divided into 3 branches: the legislature, the executive, and the judiciary.
• Each branch has a function: legislative, executive, or judicial.
• Each branch is confined to its own function, with no encroachment on other branches.
• Individuals involved in the three branches of government should be separate and distinct, with no individual being a member of more than one branch.
• Each branch will be checked by the others, so no single group controls the state's machinery.
• Constitutional law can prescribe separation based on membership, function, and institution.

Week 2 Learning Objectives

• Understand the role of the legislature in constitutional systems.
• Understand the role of the executive in constitutional systems.
• Understand the role of the judiciary in constitutional systems.
• Understand the constitutional checks that the three branches have on each other.
• Understand the distinction between presidential and parliamentary systems of government.

Legislature

• Legislature is also referred to as Parliament.
• Parliaments use both Representative and Direct democracy.

Constitutional Sources of Legislative Powers

• Parliament is not the same as Legislature.
• The sources of power may be Constitutionally designated legislation to Parliament, Legislative reserve or Delegated Legislation.

Role of Parliament

• Parliament has checks on the Executive Branch
• These checks include:
• Right of Information
• Right of Investigation
• Power of the Purse
• Power of Legislation

The Executive Branch

• The executive branch includes the group of persons responsible for running the daily affairs of state.
• This branch is typically led by a ministerial cabinet.

Role of the Executive

• Responsibilities of the Executive
• Setting legislative priorities
• Implementing policy and legislation
• Conducting foreign policy and defenses
• Structuring the public budget

Executive Branches: Internal vs. External roles

• Internal: Commander and chief, figurehead for national unity, appoint officers, lead departments, execute the laws, policy/legislative proposal, the public budget.
• External: Official representation and diplomatic functions, making treaties, military interventions, foreign affairs.

The Judiciary

• The Judiciary is symbolized by the courts.
• Responsibilities include:
  • Interpretation of Legislation
  • Judicial Review of Legislation
  • Judicial Review of Treaty Law Compliance
  • Protection of human rights

Judicial Review

• This is when a judge/court reviews the lawfulness of a decision or action made by a public body.
• Kelsen's pyramid illustrates the hierarchy of legal norms, Constitution > Statutes > Decrees > Executive Regulations

Judicial Review of Legislation

• Principles to resolve a conflict between norms are:
• Lex superior: A higher norm in conflict with a lower norm means the superior norm prevails.
• Lex posterior: A later norm prevails over an earlier norm if they conflict.
• Lex specialis: When two norms conflict but are in the same hierarchy, the more specific norm prevails.

Categorizations of Judicial Review Processes

• Ex Ante Review: Review of bills prior to becoming legislation.
• Ex Post Review: Review of actual legislation already in force.
• Concrete Review: Review of legislation with an actual court dispute.
• Abstract Review: Occurs without an actual court dispute.

Categorizations of Judicial Systems

• Centralized, where only higher or specialized courts handle judicial review.
• Decentralized, where judicial review is possible in lower courts.

Judicial Review of Legislation – Outcomes

• Disapplication: The statute still stands however is set aside in a particular context.
• Annulment: The statute ceases to exist.

State and Governance Systems

• Types of leadership
• Presidential system: President
• Parliamentary Presidential system: Prime Minister / Chancellor, President
• Parliamentary Monarchical system: Prime Minister, Monarch
• Monarchical system: Monarch

Presidential Systems

• The Head of Government is the President.
• Holds their own mandate and a fixed term.
• The President does not need support/confidence of parliament to remain in power.
• Is often involved in the lawmaking process with veto power or advisory opinion.

Parliamentary System

• The Head of Government is the Prime Minister.
• Chosen by parliament
• Accountable with a vote of (no) confidence
• Usually different from the Head of State

Semi-Presidential System

• There is a mixed system of the dual executive.
• The President (head of state) is elected by popular vote.
• The Prime Minister (head of government) is elected by parliament.
• Neither President nor Parliament is in full control of the appointment and removal of the Prime Minister.

Advantages & Disadvantages

• Presidential System
  • Advantages:
    • Direct mandate reflecting citizens' preferences
    • Stability with a fixed term in office, providing predictability
    • Separation of powers
  • Disadvantages:
    • Tendency towards populism and authoritarianism
    • Potential for political gridlock, especially if the President lacks a parliamentary majority
    • Possibility of cronyism
• Parliamentary System
  • Advantages:
    • Inclusiveness through coalition governments
    • Flexibility, allowing for easy changes in the Head of Government
    • High relevance of political parties
  • Disadvantages:
    • Instability, particularly in coalition governments
    • Lack of solid separation of powers
    • Inclusiveness can lead to lack of boldness
    • Power of political parties can exclude voters