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
. 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.
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.
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.
One of the enlightenment thinkers which heavily influenced the American Republic was a French bloke with a big nose by the name of
Charles de Secondat, baron de Montesquieu
. He came up with a technology called Separation of Powers. This is where government is divided into three distinct and independent areas; making laws, implementing laws and interpreting laws. We know these as the Legislative, Executive and Judicial.
The US has one of the purest systems of separation of powers, as well as one of the strongest systems of checks and balances. This is where each arm monitors the operations of the branches of government. I will discuss this in terms of the American Washington system.
Westminster systems need not apply
Back before liberal democracy they had a problem where kings, despots, tyrants etc used to make laws up on the spot, enforce those laws on the spot, hand down sentences on the spot and tax people on the spot. It represents arbitrary government and got a bit of a bad name.
The American founding fathers looked to all the present systems of government, read up on the enlightenment philosophers and decided to come up with something better. A system of government that was resilient to the negative and selfish passions of politicians. One that would make America free forever from the tyranny and despotism of being subject to a King.
They put down all this thinking into the US Constitution and Hamilton, Madison and Jay explained it in great detail in the
. A must read for anyone interested in the philosophical basis of the American republic.
Executive: In the US system this is the Administration headed by the elected President. The executive cannot make laws, nor interpret them or pass sentence on them. The President can only execute the laws that the legislative branch of government has made.
Legislative: This can be bicameral or unicameral. In the US it is bicameral with a Senate and a House of Representatives. These two houses make the laws and money bills. These are the laws that the Executive must execute. It also provides the funding to execute those laws.
Judicial: This branch interprets laws that are made by the legislative.
The separation of powers doctrine also contains counterbalance. For instance the legislative must approve the executive's appointments to the judicial. The executive can veto a legislative bill. The judicial can determine a law made by the legislative unconstitutional.
These stop the branches acting in a tyrannical manner in their own little fiefdoms of distinct power.
This is all tied together with a constitution. A single document that describes in detail the powers of each branches and the checks and balances on each branch. The constitution defines the limits of executive, legislative and judicial authority. As a consequence, when interpreting government action, it is an absolute.
Through the factional system, politicians have impugned themselves to varying degrees from the limits written into constitutions. The next iteration or innovation for liberal democracy will probably be having a democratically elected magistrate who's sole concern and authority, is to ensure that the constitution is not being broken and tyranny being committed.
x-posted to husi
Mid-term elections as a check and balance on the Executive are impossible in Australia due to the Feds and States being Westminster systems. This means the Executive is embedded in the Legislative as the Prime Minister or Premier led Executive Cabinet, not to mention the Executive functions of the Governor-General/Governors and Monarch. Would Australia benefit by having a Presidential system at the federal level? We are certainly mature enough and there have been some Australian governments that could have done with a party-machine based check and balance on their behaviour in parliament.
America was in the grips of civic excitement last night; televisions, websites, phones - all running hot. A friend of mine who runs a prominent political website spent his day watching the loads on the webservers increase as the east coast Americans left work, and the west coast Americans began to start slowing down the workday in the expectation of voting or going home.
Because of the inter-connected nature of the world with the reach of the internet, much of the world got caught up in it too. The Australian blogs being a good example. America watching is not only fun but wise, as the wealthiest and most powerful nation on the planet everyone is always keen to try and predict where the elephant in the room will choose to sit. It makes prudent sense.
The US mid-terms are a function of a Federal Presidential system. Australia does not have anything like it as we are a Federal Parliamentary system. Australia does not separate the executive and legislative branches of government.
In the United States the President is the Executive and is responsible for executing the laws that the Legislative (Congress - Senate and House of Representatives) make. Separating those two branches of government, the third is the judicial, is called
>separation of powers
Australians do not vote directly for the Executive in Australian Government as the Executive position is messy. There are four executive authorities in the
; the Queen, the Governor-General, the Governor-General in Council and the Federal Executive Council. The constitution delegates the monarch's executive powers to the Governor-General. But the Governor-General is a Jekyll and Hyde constitutional position who can act independently as the
, or under the Federal Executive Council's advice as the
Governor-General in Council
Consequently, in the Australian Constitution, the Governor-General can dismiss an Executive Council, but the Executive Council can recommend the dismissal of the Governor-General in Council who must take that advice. That is not a check and balance; it is similar to what software developers call a
and an indication of poor design.
The Federal Executive Council is drawn from the Legislative body which in Australia is Parliament. The Executive Council can draw its members from the Senate and House of Representatives, totally breaking any form of separation of powers between Executive and Legislative in Australian government between those two branches.
The fear from systems that collapse different branches of government into the same body is that it will produce illiberal and arbitrary outcomes. For instance, dictatorship is a political position that places the executive, legislative and judicial responsibilities into one person. The success of the Westminster system in Britain was to route away the absolute executive power the monarch had in their political system into parliament which slowly became more and more representative and democratic. The innovation of the American system was to make real and functional the complete separation of powers.
However, as we have seen in both systems, party discipline can over-ride structural designs for checks and balances and leave the Executive unencumbered by parliamentary or congressional scrutiny. Both countries saw limited oversight of the Executive's execution of laws while the Australian Parliament and American Congress both used party majorities to ram through legislation without sufficient internal or public reflection.
The US mid-term elections were as much about returning a check and balance to the Washington system of governance as anything else and it is through the design of the system that it is possible. The US house of Representatives comes up for re-election every two years while a third of the US Senate is up for election with each House election. The President's position is every four years. So there is a staggering of the election cycles between the Executive and Legislative.
This means that in the middle of a Presidential term American voters can place a party machine check and balance in the Legislative by having the opportunity to vote for House and Senate elections. Australian voters do not have the same opportunity other than an occasional bi-election to show their satisfaction or dissatisfaction. There have been more than a few Australian Executive Councils who could have done with a re-ordering of Parliament to place a check and balance on their executive behaviour and arrogance but since the Parliament is both Executive and Legislative that is impossible in the Australian system.
Am I arguing for a separate executive and a Presidential system for the Australian Federal government? Yes. The argument against Presidential systems is that they are less stable than Parliamentary ones, this is mainly because the Parliament collapses two branches into one giving the Prime Minister greater power than a President has. Pseudo-tyrants and one-party states can exist in a Parliamentary system, they cannot in a Presidential one.
Australia is a mature nation who has shown a strong commitment to liberal democracy and political stability. Even our most turbulent times such as the dismissal of Jack Lang and Gough Whitlam have been pretty tame by world standards. Through our commitment we have even made the clunky old archaic Westminster operate with some appearance of efficiency while dumping the absolute
present in it. But that doesn't overcome the lack of separation of powers or missing checks and balances inherent in the Westminster system and Constitutional Monarchy.
Australia can easily handle a Presidential system. It is the logical iteration of democratic improvement from a constitutional monarchy that will simplify our constitutional system. Not only that, Australia can improve the constitutional form of a separate executive and bicameral legislative, so the nation after us that chooses a Presidential system will use the Australian Constitution as its template.
x-posted at clubtroppo
Parliamentary systems can cause electoral confusion. Voters in parliamentary elections do not get to directly vote for the executive. They vote for their local representative in the legislative. The executive is formed from the legislative based on being able to secure stable numbers to establish government.
Voters have to vote in their own interests. Do they vote in their legislative interests, or their executive interests? In the House it is a bit moot as the House is dominated by executive discipline and the Executive Cabinet is largely, though not entirely, formed from the House. In comparison voters tend to vote in their legislative interests in the Senate.
Sacha Blumen wrote a letter
to the Star Observer on this issue.
This is where strong horizontal separation of powers is an asset. If the President was a completely separate branch of government from Parliament then there is no electoral confusion. You would be voting for the President (PM) directly on one ballot - in other words your executive electoral interest; while voting your legislative interests in the House and Senate on other ballot papers.
If we had complete separation of powers Sacha would not have had to put pen to paper.
During the Constitutional Conventions of the 1890s there were three competing constitutional schools, the British, the American and the Swiss. Most preferred the British system of parliament with its constitutional monarchy and embedded executive in the legislative. Henry Higgins was an admirer of the Swiss Canton system but a distinct minority at the conventions while Andrew Ingliss-Clark preferred the American federal system which at the time was the most innovative and sophisticated political structure. Federalism, Senate as a state house and a written constitution were aspects of the American School which we take for granted today in the Australian national government.
It is important not to mythologise about any political system as it then becomes impervious to necessary change but the American system remains more innovative constitutionally and democratically than the Australian one. The sheer diversity of the American federal system and the states maintaining the authority over elections, both primary and Presidential means American democracy is both messy and fascinating.
Australia has the upper hand in electoral technology but that has primarily been the states driving that innovation - not the national government. This is where the Australian system is messy, diverse and fascinating.
Sinclair Davidson, a former South African, commented
in an article about jury duty;
Having lived in a country where there is no trial by jury (because juries only benefit the guilty) we should be grateful for legal niceties like this.
I feel the same way about the American political system. I consider it superior to the Australian Washminster or British Westminster systems. Despite the messiness of the American deliberative processes, even as a non-citizen, I consider myself better protected constitutionally than in the Australian one as a citizen.
It is fashionable to dump on America, and some of the absurdities that come out of the American system, but its history, even this century have been one of increasing liberalism, constitutionalism and republicanism. It is to be admired.
Most Popular on South Sea Republic
The articles that have been viewed the most:
Most Popular Restaurants in Phoenix
Phoenix Eats Out
is the restaurant review site for Phoenix
and Old Town Scottsdale
which lists the modernist and contemporary restaurants, taverns and bars in the greater Phoenix area.
This is the list of the most popular restaurants pages from phoenixeatsout.com that have been viewed the most;
My personal favourite restaurants in Phoenix are AZ88
, Humble Pie
, Orange Table
, The Vig
and others coming close behind. View the complete list with the photo-journalistic style images on phoenixeatsout.com
Most Popular Hikes in Arizona
Arizona is an outdoor state and has lots of hiking in the city and around the state. Phoenix is unusual for most cities in having several large mountains in the center of the city with great hiking. Anyone who comes to Phoenix has to do the Echo Canyon trail on Camelback
and the Summit Hike on Squaw Peak
or Piesta Peak. The views of the city, suburbs and surrounding mountains are wonderful from Camelback and Piesta Peak.
For more experienced hikers there is the McDowell Mountains in North Scottsdale that has several difficult and strenuous hikes in Tom's Thumb
and Bell Pass
. Alternatively, you can hike the highest mountain in Arizona. At 12,600 feet Humphrey's Peak
is a long and difficult hike.
Alternate Australian Constitutions
Between 2004 and 2009 this site, southsearepublic.org
, was a constitutional blog based on scoop which focused on Australian and global constitutional issues.
One of the strongest aspects of it was the development of constitutions by those involved in the blog. These constitutions are the outcome:
The constitutions were built using principles from Montesquieu's separation of powers, the enlightnment's universal political rights and the ancient Athenian technology of sortition and choice by lot.
Archives For South Sea Republic
South Sea Republic started in 2004 as an Australian constitutional blog in 2004 based on scoop software. It was an immigrative outgrowth of Kuro5hin. The archives for each year since then;
The articles are ordered by views.
Who Is Cam Riley
I am an Australian living in the United States as a permanent resident.
I am a software developer by trade and mostly work in Java and jump between middleware and front end.
I originally worked in the New York area of the United States in telecommunications before moving to Washington DC and
working in a mix of telecommunications, energy and ITS. I started my own software company before heading out to
Arizona and working with Shutterfly. Since then I have joined a startup in the Phoenix area and am thoroughly enjoying myself.
I do a lot of photography which I post on this website, but also on flickr. I have a photo-journalistic website which lists
the modernist and contemporary restaurants in phoenix. I have a site on the Australian Flying Corps [AFC]
which has been around since the 1990s and which I unfortunately
lost the .org URL to during a life event; however, it is under the www.australianflyingcorps.com
The AFC website has gone through several iterations since the 90s and the two most recent are Australian Flying Corps Archives(2004-2002)
Australian Flying Corps Archives(2002-1999)
which are good places to start.
Websites Worth Reading
Websites of friends, colleagues and of interest;