Separation of Powers: Models and Interpretations
The Division of Powers
The model offered by Baron de Montesquieu was clearly influenced by British constitutional practice. Its basic ideas are as follows:
- The main functions of the state, divided into legislative, executive, and judicial, are attributed to Parliament, the government, and courts of justice, respectively.
- The powers are interrelated through a system of corrective measures, vetoes, and controlling the activity of others. There is an integration of technical criteria and values. The basic idea of this approach is that the way to monitor and influence state power can only be done from the same state power. This serves as an institutional complement to social pluralism.
This model was already adopted by the entire tradition of constitutionalism. The emphasis will be to give the specific functions varied according to political circumstances. In general, the constitutions were influenced by the democratic principle supported by a strong vision of popular sovereignty. A greater role was taken on by the legislature, as in the French revolutionary constitution of 1791 or the Spanish in 1812. Today, there are two major models of organization of the division of powers, which correspond to the differences between parliamentary systems and presidential systems.
Presidential Interpretation
This is a rigid division of powers, whose most significant example is the American Constitution of 1787, the oldest written constitution in the world, which is still in force.
In it, there is a strict division between various organs, imbued with the principle of democratic legitimacy. The president appoints or replaces ministers or secretaries. Neither the president nor the government are part of the legislature. The legislature, comprised of the House of Representatives and Senate, representing the Congress, cannot censure the executive. The independent judiciary enjoys a level of autonomy hard to find in other systems. The President has certain legislative powers, such as the suggestion of a legislative program and the possibility to veto congressional legislation. The President also has functions that alter the independence of the judiciary, as the President appoints, with Senate approval, members of the Supreme Court. Congress, the Senate in particular, is also involved in the appointment of key officials and has important functions in the field of development and approval of budgets, the establishment of commissions of inquiry and investigation on the work of the executive and can never be dissolved by it.
Parliamentary Interpretation
This is typical of what is technically considered a flexible separation of powers. There is an intimate legislative dependence between the legislative and executive power, as the executive should be able to enjoy the confidence of the legislature and is subject to the possibility of being overthrown by censorship. The government is part of Parliament, and the Government is actively working with the Parliament, which never stops to collect a certain autonomy to control the government through questions, motions, research committees, plus the ability to unseat the government through a vote.