Separation of Powers and Parliamentary Systems


Montesquieu's writings on the doctrine of separation of powers heavily influenced the American founding fathers such as Madison and Hamilton. The American Presidential system has proven to be one of the most stable and clean political systems. Yet other Presidential systems have proven open to usurpation by dictators and tyrants.

The Parliamentary system in comparison was an emergent system that grew out of the need to route power away from a Monarch while still maintaining their ceremonial authority. It mixes the executive and legislative arms of government, yet has proven a fairly stable form of liberal democracy.

It is fair to say that an future evolutionary form of Australian Government, at the state and federal level will have to incorporate a parliamentary system. There are many well established conventions and the Australian people are familiar with the system. Consequently, the positives and negatives of the parliamentary system need to be understood so any evolutionary system encourages the former and inhibits the latter.

Checks and Balances


Montesquieu divided the political sphere into sovereign and administrative. The monarch occupied the sovereign component and the administrative was dominated by the executive, legislative and judicial arms. This is the separation of powers. They are defined by;

  • The executive executes laws.
  • The legislative makes laws.
  • The judicial interprets laws.


For example in a libertarian civic society. The Executive runs the police force. The Legislative makes the laws that the police force enforces and the Judicial interprets those laws to determine any punitive measures against offenders. That is government at its most simplest. Nothing about health, education, roads, child-care, tax-breaks, etc etc etc.

Oneness


An aspect of Montesquieu's political philosophy is that the separation of powers is at its most strongest when no individual can occupy a position in more than one branch of government at the one time. In Madison's implementation of this philosophy in the American republic, separation of powers is the means by which liberty is preserved and government's predilection to tyranny inhibited.

From the Federalist Paper No.47;


One of the principal objections inculcated by the more respectable adversaries to the Constitution, is its supposed violation of the political maxim, that the legislative, executive, and judiciary departments ought to be separate and distinct. In the structure of the federal government, no regard, it is said, seems to have been paid to this essential precaution in favour of liberty. The several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts. No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded.

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.


Madison saw that having those department's wholly separate from each other an operating in isolation was just as dangerous to liberty as having their powers collapsed into one person. Madison sought to tap the natural negative passions of humanity in the American implementation of Montesquieu's separation of powers, so that the three arms of government were balanced against each other in a kind of natural harmony. Where each arm would be maintaining a watchdog on each other. Protecting their own arm's influence and power while ensuring that the other arms do not gain more influence and power - especially at their own expense.

The magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a negative on every law; nor administer justice in person, though he has the appointment of those who do administer it. The judges can exercise no executive prerogative, though they are shoots from the executive stock; nor any legislative function, though they may be advised with by the legislative councils. The entire legislature can perform no judiciary act, though by the joint act of two of its branches the judges may be removed from their offices, and though one of its branches is possessed of the judicial power in the last resort. The entire legislature, again, can exercise no executive prerogative, though one of its branches constitutes the supreme executive magistracy, and another, on the impeachment of a third, can try and condemn all the subordinate officers in the executive department.


In the United States we see this balancing act in the appointment of Judges to the Supreme Court. The Executive nominates judges. The Legislative has to confirm those appointments.

Governor-General and Prime Minister


In the Australian Parliamentary systems, the Executive is the Governor or Governor-General. The Legislative is the upper and lower houses. In the case of the States it is the Legislative Assemblies and Legislative Councils. For the Commonwealth Government it is the Senate and House of Representatives.

Parliamentary systems have an Executive Council that is composed of the chair and the Executive Cabinet. The Governor or Governor-General is the head of the Executive Council. The Prime Minister or Premier heads the Executive Cabinet who advises the Governor-General or Governor respectively. The cabinet is composed of senior ministers in the majority government such as the Treasurer and Foreign Minister.

A formal reading of the Australian Constitution would have the reader believe all Executive Authority is contained in the Governor-General as the Queen's representative. There is no mention of the position of Prime Minister. Section's 60 through 62 contain the mention of the Executive Council;

61. The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.

62. There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as Executive Councillors, and shall hold office during his pleasure.

63. The provisions of this Constitution referring to the Governor-General in Council shall be construed as referring to the Governor-General acting with the advice of the Federal Executive Council.


The Governor-General is largely a ceremonial position whose Executive powers don't extend far beyond commissioning governments, dissolving parliament and writs for elections. There is also the gnarly reserve powers. The implied power of the Governor-General to dissolve an elected government. This occurred when John Kerr removed the Gough Whitlam Government in 1975, and in NSW when Phillip Game removed the government of Jack Lang during 1932.

The informal power of the Executive arm of government is completely tied up in the Prime Minister and Executive Cabinet. Australia practices one of the most absolute forms of party discipline, consequently most of the Executive power is tied into the Prime Minister. Backbenchers are nothing more than numbers for the policies of the Prime Minister when bills come to parliamentary vote. This is true for the House of Representatives and Senate.

A Foot On Each Bank of the Murrumbidgee


The Australian Prime Minister and State Premiers have a foot in two arms of government; the Executive and Legislative. The Prime Minister and Premiers have control over what laws are enacted, how those laws are funded and how they are implemented. Courtesy of party discipline, the will of the Prime Minister is rarely, if ever crossed.

This congruence of the Executive and Legislative powers is the weakness in the Parliamentary system and where liberty requires the maximum protection. A Prime Minister can write a tyrannous law. Through party discipline can have it passed in the House of Representatives and Senate. Through convention the ceremonial Governor-General passes it. The Prime Minister, through the offices of the Executive; such as the Australian Federal Police, Australian Defence Force, Immigration Department etc; can then execute that law in an arbitrary manner.

We might scoff thinking we are a reasonable people, with a reasonable government, and that this it will never happen in Australia. But Australians are human too, and suffer from the negative passions as much as anyone else from other nations. Australian government history is littered with instances of tyranny against minorities and individuals.

Violence of Faction


Party discipline is very strong in Australia. Conscience voting in the House of Representatives and Assemblies is almost unheard of. Another issue with parties or factions is their potential violence. Once they reach the majority in government, they can use the monopoly on violence and coercion of the government to punish their opponents. Violence can be open, and include baton wielding police and military; it can also be insidious. Other examples of the violence of faction include;



In the parliamentary system faction can also play a positive as well as negative role. As scrymarch noted, factions can be used to tack upstream against the political opinion of the majority. The change from protectionist policies to economic rationalism, and the volatility those policies entailed, is a good example of this.

Ironically it is likely that the factional structure of the majority government is what keeps the Prime Minister position from becoming a permanent dictator. Westminster systems suffer from a slow oscillation in the change of government, but this preferable to a usurper illegally claiming the Executive position.

The negative passions of humans include the desire for more power, and the desire to rule others in an absolute manner. In a liberal democracy the closest thing to this is the Prime Minister or Premier position. For every Prime Minister there is a Parliament full of Representatives who desire that position. A Prime Minister that reaches too far will be challenged by others wanting the throne.

The Prime Minister is not an elected position, those that occupy it do so at the pleasure and patience of the majority party. A President is a singular elected position and more open to being usurped for it. This does not mean that Parliamentary government is superior to a Presidential system. Both have their advantages and disadvantages.

Protecting Liberty


The straddling of the Prime Minister and Executive Cabinet across two arms of government is a cause for concern. It makes the enacting and execution of tyrannous laws particularly easy. In the case of minorities and individuals who have no representation in Parliament, it places them at undue risk to be subject to such laws.

The Australian Republic must first protect liberty. The operation of government is a secondary concern. For the purposes of equity, the Governor-General position must be popularly elected and have the confidence and legitimacy that stems from it. By the same token the Governor-General and Prime Minister must not be squabbling over who has the real Executive authority in the Westminster government.

Taking the protection of liberty and a popularly elected Governor-General as starting points this suggests the role of the Governor-General should be the enforcement of a Bill of Rights. Stopping repugnant and tyrannous legislation that comes from the Parliament. The Bill of Rights will serve to codify the legislation that the Governor-General can veto. If the Governor-General steps outside of that authority, it is impeachment time.

This role for the Governor-General protects the rights of the individual, but does not take in the potential for that role to be polluted by party discipline. Another arm of government is needed, a Fourth Estate in addition to the Executive, Legislative and Judicial. These are the Ratifiers. This is group of individuals, approximately one percent of the population at any time, that are chosen by sortition to give their vote to a particular bill.

The Ratifiers cannot vote yes for a bill, they can only vote no or abstain. An opt-out form of bill voting. They also do not contribute to the debate on a bill as Ratifiers. they can contribute as citizens, but not as Ratifiers. Being a Ratifier on a bill infers no title or authority. They are an anonymous group. A secret ballot for a legislative bill.

The Ratifiers are there as a statistical weight against party politics to stop truly repugnant legislation from ever getting to the Governor-General.


cam
cam 2005-04-04 03:13:53.0
Scrymarch : Good long view, and timely: If you generalise the Separation of Powers pattern described by Montesquieu and various constitutions around the place you get something this bloke calls Separation of Duties.Within this you've got delegation to specialists: separate command structures for the military, and to the civil service in Westminster and Imperial China.The civil service is merely a brake on the executive, and often a highly effective one I'm sure, but lacks the formal veto power that would make it an equal branch of government.It's kind of impressive that the American system of checks and balances works even though it's relentlessly partisan and the drafters were determined to avoid the "evils of faction". The separation of powers between the Presidency and Congress boils down to the Senate filibuster at the moment.Which is why the article is timely. Since the advent of the Australian Democrats the Australian Senate has had a roll-your-own separation of powers where the lower house is the House of the Executive and the upper house is the House of Legislative Review. The forthcoming government majority will give us the chance to see how the British and Canadians run their show. They seem to muddle through ok with their weak upper houses but I hope it's a brief political vacation.I also note with amusement that if you hold Kerr acted correctly or established a useful convention, as some monarchists do, the figurehead of the Governor-General is more powerful than the figurehead of the monarch, as he has more frequent occassions where he has to exercise his own judgement.