What is Democracy? (60): Is Separation of Powers Compatible With All Types of Democracy?

OK, that question is probably way too ambitious for a blogpost. There are dozens of types of democracy, so let’s just look at two types: presidential democracy and parliamentary democracy (PrD and PaD for short in what remains). And that means not only limiting the scope of the investigation but also simplifying it: there are many different types of PrD or PaD (the Westminster model is one form of PaD, the US system is one form of PrD). But that’s what you have to do if you want to keep your blogposts relatively short and readable.

Moreover, separation of powers is an enormously complex topic as well, so again I’ll have to simplify. I’ll focus on two of the three powers that are traditionally distinguished: the executive and the legislative powers and ask how separation between these two powers is compatible with PrD and PaD.

First, why is separation between these two powers an important value? For the same reason that separation of powers in general is important: to create checks and balances and to pit different powers of the state against each other so that there is less risk of tyrannical government and collusion of different powers against the people. The executive power, which normally executes the laws voted by the legislative power, usually also has a veto power against certain acts of legislation in order to limit the risk of oppressive or unjust legislation. Sometimes, when it gets very bad, the executive can also disband the legislative power and provoke new elections. Conversely, the legislative power often has the power to demand accountability and transparency from the executive power. If the legislative believes that the executive power acts in impermissible ways it can vote laws that make those acts illegal. And so on.

What are the main differences between PrD and PaD? In a PrD – where you have of course also a parliament – the executive power is elected directly by popular vote. People elect a president and this president selects her government. The people also elect members of parliament in separate elections.

In a PaD, the executive isn’t elected directly by the people. The people elect only the members of parliament. The political party (or parties) that manage to get a majority of elected members of parliament then form a government (often after coalition negotiations between parties when there isn’t one party that has managed to acquire a majority of representatives in parliament).

A PrD seems better able to respect the separation between the executive and legislative powers. A president doesn’t sit in parliament and doesn’t rely on the approval of the legislative for her political survival and hence she is unlikely to always have the same views as the legislative majority. Checks and balances can work. She has an independent mandate from the people and she can have a view that’s different from the view of the parliamentary majority. In PaD, the executive is a product of a parliamentary majority. It’s often even composed of some members of the parliamentary majority who sit both in the government and in parliament. Therefore, it isn’t common in a PaD for the executive to counteract the legislative or vice versa. In a PaD, these two powers are more or less the same. The executive is the parliamentary majority and parliament as such is systematically in agreement with the executive. It’s only the parliamentary minority that can voice opposition. But that’s it: it has a voice but it can’t effectively block executive initiatives, since it’s merely a minority. The act of legislation often originates in the executive that in fact has the power to enact whatever legislation it wants since it automatically has the support of the parliamentary majority. Why is that the case? Members of the parliamentary majority who aren’t part of the executive are often second rate party members who are easily persuaded to approve the legislative initiatives of the executive because their political career depends on the support from the senior party members who make up the executive. For the same reasons, the accountability and transparency requirements are often sidestepped because the parliamentary majority doesn’t want to embarrass the executive.

So, PaD abandons part of the separation of powers in order to gain efficiency. Parliamentary systems, compared to presidential systems, can act in a more decisive and a quicker manner (in theory at least). In a PrD, the president can block legislation coming from parliament or can have her legislative proposals voted down by a parliamentary majority.

However, this efficiency advantage of PaD compared to PrD is often lost when coalitions are necessary. This is why some parliamentary systems avoid proportional representation – which tends to produce more than two political parties with representatives in parliament – and use some kind of district system combined with first-past-the-post elections – which tends to lead to two party systems and hence avoids the need for coalitions.

Of course, this doesn’t mean that PaD doesn’t have any separation of powers at all. It usually has an independent judiciary that can act as a counterweight and that can use for example judicial review to invalidate laws that are incompatible with the constitution. So it really isn’t easy to say which system is preferable. Efficiency is perhaps just as important as separation. Yet the direct election of the executive, which is typical of PrD and also the basis of many of the advantages of PrD compared to PaD, generates more popular control and hence more democracy, and that is important as well. And finally. PrDs are more stable. So on balance I think I prefer PrD.

Separation of Powers and Human Rights

The theory of the separation of powers traditionally differentiates between three branches of power:

  • the legislative power (parliament)
  • the executive (the government, the administration and the police)
  • and the judiciary.

Separation of powers means independence of powers with regard to each other. The three powers are separated and divided organizations of the state. No power can assume the competence or functions of another power or can interfere with another power’s business. A few examples:

  • The executive should not vote laws (the so-called “government by decree”).
  • The legislative power should not appoint or dismiss the government or the head of the executive (this should be a prerogative of the people).
  • The judiciary should be able to work without political interference from the legislative power or from the executive, and should be able to judge cases in an independent and impartial way. The judge should not be an instrument of politics or a “political worker” who executes the decisions of the executive, as was the case in Soviet Russia for example. He is subject only to the law, and the law, contrary to an order by Comrade Stalin for example, cannot be used to influence verdicts because it is general and neutral.
  • Judges should not interfere in legislation or politics (they enter the stage when the work of politics is already accomplished; they apply the law as it is voted by the legislative).

However, this is not the end of the story. Independence does not mean that a power can do as it likes without accountability. The independence is limited because one power can control, correct, rebuke, limit or stop another power if there is an abuse of power or a violation of rights.

Some interference is necessary. Separation does not mean isolation. Powers are separated precisely because then they can check each other. If all power is concentrated in the same person or institution, then this power cannot be checked. There is no higher power than the state and hence the state must control, limit and correct itself (the “international community” is still very weak). If power has to limit itself, then it has to be divided into different parts. There must be powers and counter-powers, checks and balances. Every power moderates the other powers because every power holds the reins to force the other powers in a certain direction. A citizen must be able to go to one power in order to claim redress or compensation for violations of rights by other powers. Power protects against power and power can contradict and correct power.

Violations of human rights by one part of the state must be corrected by another part, otherwise human rights remain words without reality. Judges can control the laws of the legislature and the actions of the executive. If they find that these laws or actions are incompatible with the human rights included in the Constitution or in an international treaty, then the judges can declare these laws to be invalid or these actions to be unlawful, even if these laws and actions are supported by a democratic majority (which is normally the case in a democracy).

The power of the legislative, the executive and the majority is limited. The judiciary makes sure that both the legislative power and the executive act according to the highest law of the land, which is, after all, also an expression of the will of the majority (at least in an ideal democracy, because an ideal democracy allows the citizens to vote on the Constitution and on international treaties). Human rights and the Constitution can be used against the legislator in order to counteract the tyranny of the majority (also known as democratic oppression). When judges do this, they engage in what is called “judicial review“. The legislator can be wrong and laws can be oppressive. The law is more than just the will of the legislator. A valid law has to conform to certain requirements at the level of content, independently of the will of the legislator. A law cannot be anything, otherwise the rule of law would be a meaningless concept.

I mentioned a moment ago that the judiciary should not interfere with politics or legislation. However, is judicial review of legislation not a part of legislation? Controlling and invalidating laws, overruling the legislative power by way of a veto-right, creating a certain coherence in legislation, making sure that ordinary laws conform to the higher law (the Constitution), is this not legislation? And is it not legislation enacted by a non-elected minority which imposes its will on the majority of the people as it is represented in the legislative power, and which takes its decisions outside of the public debate? Should not an ideal democracy reject judicial review? In other words: is it not impossible for an ideal democracy to protect the rights and freedoms of the minority?

These questions are based on a false hypothesis. When a judge controls the conformity of an ordinary law and a higher law, he does not engage in legislation. He or she only makes sure that the higher law is strictly applied and respected. And as the higher law is the supreme expression of the will of the people – in an ideal democracy, the people can vote the Constitution – a judge only makes sure that the will of the people is strictly executed. There is nothing undemocratic about this and it has nothing to do with legislation. A judge who is confronted with a law which contradicts the Constitution cannot apply this law because otherwise he or she would be acting in an unlawful manner. The higher law has priority over the lower law. A lower law has to conform to the higher law, otherwise it is invalid and non-existing, “null and void”. A judge can declare the illegality of a law and can destroy a law without engaging in legislation.

The judge remains subject to the law and is not above the law or above the legislator when he or she invalidates a law. The judge remains subject to the higher law. Judicial review does not imply that the judiciary is more important or more powerful than the legislative power or than the will of the people. It only implies that the higher law is more important than the lower law and the higher legislator is superior to the lower legislator. Judicial review does not imply an exaggerated or a predominant political or legislative role for the judiciary compared to the role of the legislative power, at least as long as we consider the framing of a Constitution to be part of the legislative power. A judge can never decide on fundamental social problems or political conflicts. He or she can only apply the law, first the higher law and then the lower law.

Human rights possess a threefold significance: they are themselves standards of behavior; they constitute criteria for assessing the lawfulness of other rules (since they override all other norms, which are null and void in case of conflict); [and] they embody “instructions and guidelines” … for the creation and development of other rules. Antonio Cassese.

Individuals whose rights are violated can coerce the state – even though most of the time it is the other way around – but only on the condition that there is a separation of powers and that one power can be used against another.

However, this means that judges should not be predominantly in favor of one political party or one political philosophy, because otherwise they will review the laws from one and the same political perspective. If the judiciary is predominantly conservative, for example, then it will treat liberal laws in a very critical way and it will tend to systematically invalidate these laws because of their conservative interpretation of the Constitution.

Judicial control of the constitutionality of laws and government actions is only one example of a power limiting another. Here are some other examples:

  • A judicial verdict applies the law and is therefore dependent on the law. A judge cannot decide what is contrary to the law, which means that the legislator de facto limits the actions of the judiciary.
  • The executive is accountable to and is controlled by the legislative power. It has to give account of the way in which it has applied the laws. However, the legislative power cannot dismiss the government as a consequence of this control, at least as long as the government is directly elected, which is the case in an ideal democracy.
  • A president often has a veto-right and can block certain laws voted by the legislative power. This is acceptable on the condition that the president is directly elected.