Мемлекеттік биліктің бөлінуі

Division of a state's government into branches

Separation of powers is the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with others. The typical division into three branches of government, sometimes called the trias politica model, includes a legislature, an executive, and a judiciary. It can be contrasted with the fusion of powers in monarchies, but also parliamentary and semi presidential systems where there can be overlap in membership and functions between different branches, especially the executive and legislative. The intention behind a system of separated powers is to prevent the concentration of power by providing for checks and balances. The separation of powers model is not always to create an outright limited government. It is often imprecisely and metonymically used interchangeably with the trias politica principle. While the trias politica model is a common type of separation, there are governments that have more or fewer than three branches.

Aristotle first mentioned the idea of a "mixed government" or hybrid government in his work Politics, where he drew upon many of the constitutional forms in the city states of Ancient Greece. In the Roman Republic, the Roman Senate, Consuls and the Assemblies showed an example of a mixed government according to Polybius (Histories, Book 6, 11–13). It was Polybius who described and explained the system of checks and balances in detail, crediting Lycurgus of Sparta with the first government of this kind.

John Calvin (1509–1564) favoured a system of government that divided political power between democracy and aristocracy (mixed government). Calvin appreciated the advantages of democracy, stating: "It is an invaluable gift if God allows a people to elect its own government and magistrates." In order to reduce the danger of misuse of political power, Calvin suggested setting up several political institutions that should complement and control each other in a system of checks and balances. In this way, Calvin and his followers resisted political absolutism and furthered the growth of democracy. Calvin aimed to protect the rights and the well being of ordinary people. In 1620 a group of English separatist Congregationalists and Anglicans (later known as the Pilgrim Fathers) founded Plymouth Colony in North America. Enjoying self rule, they established a bipartite democratic system of government. The "freemen" elected the General Court, which functioned as legislature and judiciary and which in turn elected a governor, who together with his seven "assistants" served in the functional role of providing executive power. Massachusetts Bay Colony (founded 1628), Rhode Island (1636), Connecticut (1636), New Jersey, and Pennsylvania had similar constitutions – they all separated political powers. (Except for Plymouth Colony and Massachusetts Bay Colony, these English outposts added religious freedom to their democratic systems, an important step towards the development of human rights.) Books like William Bradford's Of Plymouth Plantation (written between 1630 and 1651) were widely read in England. So the form of government in the colonies was well known in the mother country, including to the philosopher John Locke (1632–1704). He deduced from a study of the English constitutional system the advantages of dividing political power into the legislative (which should be distributed among several bodies, for example, the House of Lords and the House of Commons), on the one hand, and the executive and federative power, responsible for the protection of the country and prerogative of the monarch, on the other hand, as the Kingdom of England had no written constitution.

During the English Civil War, the parliamentarians viewed the English system of government as composed of three branches – the King, the House of Lords and the House of Commons – where the first should have executive powers only, and the latter two legislative powers. One of the first documents proposing a tripartite system of separation of powers was the Instrument of Government, written by the English general John Lambert in 1653, and soon adopted as the constitution of England for few years during The Protectorate. The system comprised a legislative branch (the Parliament) and two executive branches, the English Council of State and the Lord Protector, all being elected (though the Lord Protector was elected for life) and having checks upon each other. A further development in English thought was the idea that the judicial powers should be separated from the executive branch. This followed the use of the juridical system by the Crown to prosecute opposition leaders following the Restoration, in the late years of Charles II and during the short reign of James II (namely, during the 1680s). The first constitutional document to establish the principle of the separation of powers in government between the legislative, executive, and judiciary branches was Pacts and Constitutions of Rights and Freedoms of the Zaporizhian Host, written in 1710 by Ukrainian Hetman Pylyp Orlyk.

An earlier forerunner to Montesquieu's tripartite system was articulated by John Locke in his work Two Treatises of Government (1690). In the Two Treatises, Locke distinguished between legislative, executive, and federative power. Locke defined legislative power as having " the right to direct how the force of the commonwealth shall be employed" (2nd Tr., § 143), while executive power entailed the "execution of the laws that are made, and remain in force" (2nd Tr., § 144). Locke further distinguished federative power, which entailed "the power of war and peace, leagues and alliances, and all transactions with all persons and communities without [outside] the commonwealth" (2nd Tr., § 145), or what is now known as foreign policy. Locke distinguishes between separate powers but not discretely separate institutions, and notes that one body or person can share in two or more of the powers. Within these factors Locke heavily argues for "Autry for Action" as the scope and intensity of these campaigns are extremely limited in their ability to form concentrations of power. For instance, Locke noted that while the executive and federative powers are different, they are often combined in a single institution (2nd Tr., § 148). Locke believed that the legislative power was supreme over the executive and federative powers, which are subordinate. Locke reasoned that the legislative was supreme because it has law giving authority; "[F]or what can give laws to another, must need to be superior to him" (2nd Tr., §150). According to Locke, legislative power derives its authority from the people, who have the right to make and unmake the legislature:

And when the people have said we will submit to rules, and be governed by laws made by such men nobody else can say other men shall make laws for them; nor can the people be bound by any laws but as such as are enacted by those whom they have chosen, and authorized to make laws for them. Locke maintains that there are restrictions on the legislative power. Locke says that the legislature cannot govern arbitrarily, cannot levy taxes, or confiscate property without the consent of the governed (cf. "No taxation without representation"), and cannot transfer its law making powers to another body, known as the nondelegation doctrine (2nd Tr., §142).

Constitutions with a high degree of separation of powers are found worldwide. A number of Latin American countries have electoral branches of government. The Westminster system is distinguished by a particular entwining of powers, such as in New Zealand. New Zealand's constitution is based on the principle of separation of powers through a series of constitutional safeguards, many of which are tacit. The Executive's ability to carry out decisions often depends on the Legislature, which is elected under the single member representative or mixed member proportional systems. This means that government may be of a single party or a coalition of parties. The Judiciary is also free of government interference. If a series of judicial decisions result in an interpretation of the law which the Executive considers does not reflect the intention of the policy, the Executive can initiate changes to the legislation in question through the Legislature. The Executive cannot direct or request a judicial officer to revise or reconsider a decision; decisions are final. Should there be a dispute between the Executive and Judiciary, the Executive has no authority to direct the Judiciary, or its individual members and vice versa. Complete separation of powers systems are almost always presidential, although theoretically this need not be the case. There are a few historical exceptions, such as the Directoire system of revolutionary France. Switzerland offers an example of non Presidential separation of powers today: It is run by a seven member executive branch, the Federal Council. However, the Federal Council is appointed by parliament (but not dependent on parliament) and, although the judiciary has no power of review, the judiciary is still separate from the other branches.

Australia does not maintain a strict separation between the legislative and executive branches of government—indeed, government ministers are required to be members of parliament—but the federal judiciary strictly guards its independence from the other two branches. However, under influence from the U. S. constitution, the Australian constitution does define the three branches of government separately, which has been interpreted by the judiciary to induce an implicit separation of powers. State governments have a similar level of separation of power but this is generally on the basis of convention, rather than constitution.

The Constitution of Austria was originally written by Hans Kelsen, a prominent constitutional scholar in Europe at that time. Kelsen was to serve as a part of the judicial court of review for Austria as part of its tripartite government.

The Constitution of Brazil, in its second article, establishes that there are three "powers of the Union, independent and harmonic, the Executive, the Legislative and the Judiciary".

The Commonwealth (Latimer House) Principles have been adopted in Abuja, Nigeria, in 2003.

The Constitution of the Czech Republic, adopted in 1992 immediately before the dissolution of Czechoslovakia, establishes the traditional tripartite division of powers and continues the tradition of its predecessor constitutions. The Czechoslovak Constitution of 1920, which replaced the provisional constitution adopted by the newly independent state in 1918, was modelled after the constitutions of established democracies such as those of the United Kingdom, United States and France, and maintained this division, as have subsequent changes to the constitution that followed in 1948 with the Ninth of May Constitution, the 1960 Constitution of Czechoslovakia as well as the Constitutional Act on the Czechoslovak Federation of 1968.

Hong Kong is a Special Administrative Region established in 1997 pursuant to the Sino British Joint Declaration, an international treaty made between Britain and China in 1984, registered with the United Nations. The Hong Kong Basic Law, a national law of China that serves as the de facto constitution, divides the government into Executive, Legislative, and Judicial bodies. However, according to the former Secretary for Security, Regina Ip, also a current member of the Executive Council(ExCo) and Legislative Council of Hong Kong, Hong Kong never practices Separation of Powers after the handover of Hong Kong back to China. Nevertheless, Hong Kong's policy was decided by the Governor in Council before 1997, and it became the Chief Executive in Council afterwards. No matter when, some members of the Executive Council are also members of the Legislative Council. When the same person holds positions in the executive and legislative branches at the same time, the two powers are integrated rather than separated, and so it does not constitute a strict separation of powers, it is because checks and balances has been lost. This institutional practice existed long before 1997 during the British rule and has been followed ever since.

India follows constitutional democracy which offers a clear separation of powers. The judiciary is independent of the other two branches with the power to interpret the constitution. Parliament has the legislative powers. Executive powers are vested in the President who is advised by the Union Council of Ministers headed by the Prime Minister. The constitution of India vested the duty of protecting, preserving and defending the constitution with the President as common head of the executive, parliament, armed forces, etc.—not only for the union government but also the various state governments in a federal structure. All three branches have "checks and balances" over each other to maintain the balance of power and not to exceed the constitutional limits. President can set aside a law passed by the legislative or an advice given by the Union Council of Ministers when it is inconsistent with the constitution of India. Even if the president accepts a law passed duly by the legislative, it can be repealed by the Supreme Court after a fair trial if it is against the Basic structure of the constitution. Any citizen of India can approach the Supreme Court directly to repeal the unconstitutional laws made by the legislative or executive. President can be removed from office for unconstitutional decisions after an impeachment trial conducted by the parliament. President can be removed by Supreme Court of India under article 71(1) for electoral malpractice or on the grounds of losing eligibility for the position. Parliament can impeach judges of Supreme Court and High Courts of states for their incompetence and mala fides. A higher bench of judges can set aside the incorrect judgements of a smaller bench of judges to uphold the constitution.

In Italy the powers are separated, even though the Council of Ministers needs a vote of confidence from both chambers of Parliament (which represents a large number of members, around 600). Like every parliamentary form of government, there is no complete separation between Legislature and Executive, rather a continuum between them due to the confidence link. The balance between these two branches is protected by Constitution and between them and the judiciary, which is really independent.

Based on popular sovereignty, the Government of Japan is divided into the legislative, executive and judicial branches. All of the branches of government operate under the framework set by the post WWII Constitution ratified in 1947. Legislative power is vested in the bicameral parliament of Japan, the National Diet (国会, Kokkai). The Diet consists of the House of Councillors (参議院, Sangiin) as the upper house and the House of Representatives (衆議院, Shugiin) as the lower house. Members of both houses are elected under a parallel voting system. The executive power of the state is vested in the Cabinet of Japan (内閣, Naikaku). The Prime Minister (内閣総理大臣, Naikaku Sōri Daijin) serves as the head of the Cabinet and is designated from among the members of the Diet. As a parliamentary democracy, the Prime Minister and Cabinet ministers are responsible to parliament and can be dismissed by a motion of no confidence. Judicial power is vested in the Supreme Court (最高裁判所, Saikō Saibansho). It is the ultimate judicial authority on matters of constitutional and national law interpretation. It also has the power of judicial review, allowing it to review the constitutionality of laws.

Article 49 of the Mexican Constitution establishes that the Supreme Power of the Federation is divided in three Powers, the Executive, the Legislative and the Judiciary.

In the aftermath of the 43 day civil war in 1948 (after former President and incumbent candidate Rafael Ángel Calderón Guardia tried to take power through fraud, by not recognising the results of the presidential election that he had lost), the question of which transformational model the Costa Rican State would follow was the main issue that confronted the victors. A Constituent Assembly was elected by popular vote to draw up a new constitution, enacted in 1949, and remains in force. This document was an edit of the constitution of 1871, as the constituent assembly rejected more radical corporatist ideas proposed by the ruling Junta Fundadora de la Segunda República (which, although having come to power by military force, abolished the armed forces). Nonetheless, the new constitution increased centralization of power at the expense of municipalities and eliminated provincial government altogether, and at the time it increased the powers of congress and the judiciary. It established the three supreme powers as the legislative, executive, and judicial branches, but also created two other autonomous state organs that have equivalent power, but not equivalent rank. The first is the Tribunal Supremo de Elecciones de Costa Rica (electoral branch), which controls elections and makes unique, unappealable decisions on their outcomes. The second is the office of the Comptroller General (audit branch), an autonomous and independent organ nominally subordinate to the unicameral legislative assembly. All budgets of ministries and municipalities must pass through this agency, including the execution of budget items such as contracting for routine operations. The Comptroller also provides financial vigilance over government offices and office holders, and routinely brings actions to remove mayors for malfeasance, firmly establishing this organization as the fifth branch of the Republic.

Besides the three traditional branches: executive, legislative and judicial, Venezuela also has a citizens branch made up of the Republican Moral Council, which includes the Attorney General, ombudsman and the comptroller general, as well as an electoral branch, the National Electoral Council. A 2010 report by the Organization of American States highlighted the erosion of separation of powers in the country.