There are three main functions of government: making laws, implementing laws, and enforcing laws. These functions are carried out by three “branches” of government:
• The legislative branch (making laws)
• The executive branch (implementing laws)
• The judicial branch (enforcing laws)
A very important feature of democratic government is that these three branches of government are independent of each other. Even though the functions of the three branches are very closely related, each branch is given its own rights, responsibilities and powers, which no other branch can interfere with. This idea is called “separation of powers” and is usually outlined in the constitution of a state.
The main purpose of the separation of powers is to prevent tyranny of one institution over the others (and over the state in general). In many authoritarian governments, real power is held by only one branch of government (usually the executive). The other branches are easily intimidated or controlled by the executive branch. This undermines the rule of law and often leads to corruption and instability. Separation of powers avoids this by sharing the power between different branches so that one branch cannot gain too much power.
Separation of powers also means that no branch can act on its own without cooperating with the others. Forcing the different branches to agree on important decisions promotes participation and transparency.
Checks and Balances
An important result of the separation of powers is that it creates a system of checks and balances. This system allows the different branches to limit each other’s power so that the three branches’ power is balanced (or at least, more equal). For example, in the United States, only the legislature has the power to create a law, but the president has the right to veto (cancel or refuse) the laws that the legislature wants to create.
Systems of checks and balances also lead to a situation where the different branches have to work together because they depend on each other. For example, in the United States, the executive is the commander-in-chief (the leader) of the military, but only the legislature is allowed to declare war. In this example, the power to command the military and the power to declare war are equally important. However, because they are held by different branches, neither the executive nor the legislature has the power to fight a war on its own (McLaughlin 2013: 74-77).
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Case study: Checks and Balances in the Philippines. The 1987 constitution allocates the legislative power, or the authority to make laws and to alter and repeal them, to the Congress of the Philippines. Congress consists of a Senate and a House of Representatives. The executive power, or the power to execute or enforce laws, is vested in a president. In the exercise of this power, the president is assisted by, or acts through, the extensive executive bureaucracy under his or her control. Finally, judicial power, or the authority to settle disputes involving legal rights, is vested in one Supreme Court and in the lower courts established by law. While supreme in the exercise of their respective powers, these branches must conform to a system of checks and balances as provided by the constitution. This system provides points of contact between branches through which one branch can check the others in the exercise of their allocated powers. Among the major checks and balances provided by the constitution are the following: The President’s Veto Power Every bill passed by Congress needs to be presented to the president for his or her approval before it becomes law. If the president does not approve, he or she shall veto the bill and return it to Congress along with his or her objections. The president’s veto may be overturned only by a vote of two-thirds of all the members of the House of Representatives as well as of the Senate, voting separately. Checks on Martial Law Powers Congress may revoke a suspension or declaration of martial law by a vote of at least a majority of both houses voting jointly. This revocation by Congress cannot be set aside by the president. Only Congress may extend the proclamation or suspension beyond the initial 60 days period upon a similar vote of at least a majority of both houses voting jointly, upon the initiative of the president. The Supreme Court may review the sufficiency of the factual basis of the proclamation or suspension in an appropriate proceeding filed by any citizen, which must be decided within thirty days from its filing. Budget Proposal, Appropriation and Execution While the executive, in the execution of laws, is inevitably given authority to disburse or to pay out the biggest proportion of the government budget, it can only do so if supported by an appropriation made by Congress. But this power of Congress to appropriate the entire government budget by law (called the General Appropriations Act) is itself subject to numerous limitations, including checks-and-balance by the president. Senate Concurrence on Treaties and International Agreements The constitution provides some checks in the exercise of the president’s prerogatives over foreign affairs. For one, no treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate. The Supreme Court also has the power to declare a treaty and international or executive agreement unconstitutional. Checks on Presidential Power to Appoint The constitution has provided for a congressional check on appointments of officials at the highest levels of government. The appointment of these officials require the consent of a Commission on Appointments. The Commission on Appointments consists of the Senate President, twelve senators and twelve members of the House of Representatives. Legislative Inquiry and Question Hour The Senate or the House of Representatives or any of its committees may conduct inquiries in aid of legislation. They may also request the heads of departments to appear before them and be heard on any matter pertaining to their departments. Judicial review. The judiciary has the power to check the other departments through the exercise of its power of judicial review. Source: Philippine Democracy Assessment: Rule of Law and Access to Justice |