Part II The Relationship Between the Legislature and the Executive, 4 Kenya’s Budding Bicameralism and Legislative–Executive Relations

2016 ◽  
Author(s):  
Bosire Conrad M
Keyword(s):  
Political Culture ◽  
Separation Of Powers ◽  
Historical Context ◽  
Checks And Balances ◽  
Degree Of Separation ◽  
Presidential System ◽  
The Relationship ◽  
Overall Effectiveness ◽  
New System

This chapter examines the changes in the 2010 Kenyan constitution, which have resulted in a higher degree of separation of powers between the legislature and executive with an elaborate system of checks and balances. The decision to opt for a presidential system of government (as opposed to a parliamentary or mixed one) and the re-introduction of the Senate are the defining features of the legislative and executive organs. However, the new system is superimposed on a longstanding institutional and political culture that was based on the presence of executive dominance in legislative affairs in a unicameral setting. The new system of government will, therefore, operate in a broader social, political, and historical context that will have a greater impact on their overall effectiveness.

scholarly journals Control parlamentario y convergencia entre presidencialismo y parlamentarismo

2016 ◽  
pp. 61 ◽  
Author(s):  
Javier García Roca
Keyword(s):  
Latin American ◽  
Separation Of Powers ◽  
Political Representation ◽  
Party Systems ◽  
Political Responsibility ◽  
Checks And Balances ◽  
Presidential System ◽  
Presidential Systems ◽  
Parliamentary Oversight ◽  
Cross Fertilization

Es posible comparar presidencialismo y parlamentarismo en los controles parlamentarios. Sin control parlamentario, no puede existir democracia representativa, tampoco en el presidencialismo. Las normas constitucionales y de los Reglamentos ya reflejan ya esa tendencia en Iberoamérica. Esta conclusión lleva a que el clásico debate sobre ambos sistemas de gobierno deba contemplarse de una manera distinta. Hay una pluralidad de tipos presidenciales y semipresidenciales de confusa diferenciación en la realidad. El presidencialismo originario estadounidense es antiguo y difícilmente exportable. El presidencialismo iberoamericano contemporáneo se ha ido parlamentarizando. Existe actualmente un continuum en el binomio presidencialismo/ parlamentarismo con diferencias de grado más que cualitativas. Se advierten tres tendencias: la presidencialización del parlamentarismo europeo, la parlamentarización del presidencialismo iberoamericano, e influencias recíprocas entre los Reglamentos parlamentarios. Pluripartidismo extremado, representación proporcional, y un entendimiento absolutista de la separación de poderes presidencial, que impida los controles parlamentarios, son rasgos incompatibles. La solución más fácil está en abandonar ese entendimiento absolutista que no garantiza bien constitucional alguno. La duración fija del mandato presidencial y la idea de que el Presidente debe responder de forma diferida y directa ante el electorado hacen imposible mecanismos de control- responsabilidad política de su figura, pero puede bastar con reforzar los de control-fiscalización para construir checks and balances y representación política en el Parlamento.It is perfectly possible to compare presidentialism and parlamentarism with regard to controls. Without parliamentary oversight representative democracy does not exist, not even in the presidential system. Constitutional norms and Standing Orders already reflect this tendency in Latin America. This conclusion leads us to a different approach to the classic controversy on both systems of government. There are various kinds of presidential and semi-presidential systems in practice and the differences among them become confusing. The original US presidential system is somewhat outdated and difficult to export. Current Latin American presidentialism has adopted parliamentary patterns. The binomial presidentialism/parlamentarism is nowadays more a continuum with differences in degree rather than in quality. Three tendencies can be detected: European parliamentarism has evolved towards presidential leadership, Latin American presidentialism has incorporated parliamentary tools, and, finally, cross-fertilization among Parliamentary Standing Orders has developed. Extreme multi-party systems, proportional representation, and an absolutist understanding of presidential separation of powers which makes parliamentary oversight impossible are incompatible features. The easiest solution emerges from abandoning that separatist interpretation: such a strong separation on behalf of what? The fixed presidential term of office and the idea that the President should be directly accountable to the electorate and not to the Parliament make mechanisms of political responsibility especially difficult, but certain devices of control-supervision could be enough to achieve checks and balances and parliamentary political representation.

scholarly journals Checks and Balances: The Concept and Its Implications for Corruption

2021 ◽  
Vol 17 (2) ◽  
Author(s):  
Luciano Da Ros ◽  
Matthew M. Taylor
Keyword(s):  
Separation Of Powers ◽  
Checks And Balances ◽  
Behavioral Norms ◽  
Political Forces ◽  
Apparent Correlation ◽  
And Control ◽  
The Relationship ◽  
Control Of Corruption ◽  
Western Democracies ◽  
Soft Factors

Abstract It is often assumed that checks and balances are effective in curbing corruption, in part because checks and balances are so often assumed to be synonymous with the separation of powers. We argue that checks and balances are only one of several potential manifestations of the separation of powers. We suggest that the apparent correlation between checks and balances and control of corruption is driven by a variety of conditions antecedent to both. Using examples from Western democracies, we demonstrate that the concept of checks and balances is by itself an empty vessel, made effective only by “hard” factors such as the balance of political forces and “soft” factors such as the adherence of elites to particular behavioral norms. This does not mean that checks and balances cannot be useful, but rather that our assumptions about their precise utility may be misinformed: the relationship between checks and balances and curbing corruption is at best indirect.

scholarly journals MAKNA PERSETUJUAN BERSAMA DPR DAN PRESIDEN DALAM PEMBENTUKAN UNDANG-UNDANG

2019 ◽  
Vol 3 (1) ◽  
pp. 44-59
Author(s):  
Aris Arianto ◽  
Afif Hasbullah ◽  
Sholihan Sholihan
Keyword(s):  
Research Method ◽  
Separation Of Powers ◽  
Collective Agreement ◽  
Checks And Balances ◽  
Presidential System ◽  
The Law ◽  
Mutual Agreement

The establishment of the Act must be approved by the President as stated in Article 20 of the 1945 Constitution paragraph (2). Interesting when Indonesia uses a presidential system with the separation of powers. However, in the formation of the Act involving the President. Article 20 paragraph (2) of the 1945 Constitution confirms the necessity of mutual agreement in the discussion and ratification of the Law. However, there are other assertions, namely that in Article 20 paragraph (5) of the 1945 Constitution, even without the President's signature, the Act can still be promulgated within 30 days of the Draft Law being discussed. Things like that can't just happen without a reason. Therefore, the writing of this study will look for the meaning of the agreement between the DPR and the President in the formation of the Law and how the legal politics of Article 20 paragraph (5) of the 1945 Constitution. The writing of this study is focused on researching and searching for the meaning of mutual agreement and focusing on legal politics from Article 20 paragraph 5 of the 1945 Constitution. The research method in this writing is normative juridical. The results of the research can be concluded that the meaning of the joint agreement between the DPR and the President in the establishment of the Law is an agreement in determining the policy in the form of a Law which is a reflection of the principle of checks and balances. Legal politics Article 20 paragraph (5) of the 1945 Constitution is an affirmation of Article 20 paragraph (2) of the 1945 Constitution or can be called an affirmation of collective agreement. The establishment of the Act must be approved by the President as stated in Article 20 of the 1945 Constitution paragraph (2). Interesting when Indonesia uses a presidential system with the separation of powers. However, in the formation of the Act involving the President. Article 20 paragraph (2) of the 1945 Constitution confirms the necessity of mutual agreement in the discussion and ratification of the Law. However, there are other assertions, namely that in Article 20 paragraph (5) of the 1945 Constitution, even without the President's signature, the Act can still be promulgated within 30 days of the Draft Law being discussed. Things like that can't just happen without a reason. Therefore, the writing of this study will look for the meaning of the agreement between the DPR and the President in the formation of the Law and how the legal politics of Article 20 paragraph (5) of the 1945 Constitution. The writing of this study is focused on researching and searching for the meaning of mutual agreement and focusing on legal politics from Article 20 paragraph 5 of the 1945 Constitution. The research method in this writing is normative juridical. The results of the research can be concluded that the meaning of the joint agreement between the DPR and the President in the establishment of the Law is an agreement in determining the policy in the form of a Law which is a reflection of the principle of checks and balances. Legal politics Article 20 paragraph (5) of the 1945 Constitution is an affirmation of Article 20 paragraph (2) of the 1945 Constitution or can be called an affirmation of collective agreement.

Separation of Powers in African Constitutionalism

2016 ◽  
Keyword(s):  
Separation Of Powers ◽  
The Political ◽  
Constitutional Design ◽  
Checks And Balances ◽  
Design And Implementation ◽  
Constant Friction ◽  
Common Problems ◽  
The Impact ◽  
The Relationship

This book examines one of the critical measures introduced by African constitutional designers in their attempts to entrench an ethos of constitutionalism on the continent. Taking a critical look at the different ways in which attempts have been made to separate the different branches of government, the book examines the impact this is having on transparent and accountable governance. Beginning with an overview of constitutionalism in Africa and the different influences on modern African constitutional developments, it looks at the relationship between the legislature and the executive as well as the relationship between the judiciary and the political branches. Despite differences in approaches between the various constitutional cultures that have influenced developments in Africa, there remain common problems. One of these problems is the constant friction in the relationship between the three branches and the resurgent threats of authoritarianism which clearly suggest that there remain serious problems in both constitutional design and implementation. The book also studies the increasing role being played by independent constitutional institutions and how they complement the checks and balances associated with the traditional three branches of government.

scholarly journals Checking the Other and Checking the Self: Role Morality and the Separation of Powers

2021 ◽  
Vol 30 (4) ◽  
pp. 45-54
Author(s):  
Hillary Nye
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Decision Makers ◽  
Constitutional Democracy ◽  
Moral Concept ◽  
Checks And Balances ◽  
The Rule Of Law ◽  
Role Morality ◽  
Moral Ideals ◽  
The Relationship

The concepts of the rule of law, the separation of powers, and checks and balances are related in complicated ways. Jacob T Levy brings this to light in his thought-provoking McDonald Lecture, “The Separation of Powers and the Challenge to Constitutional Democracy.”1 In this response to Levy’s paper I want to further explore the relationship between these three ideas. I will argue that, when thinking about the rule of law, we must consider the idea of “role morality” and its place in constraining power. We should think of the constraints on power that stem from role morality as “internal” as opposed to “external” checks on power. I also suggest that we would do well to broaden our understanding of what the rule of law requires, and to think of it not just as a matter of ensuring impartiality and formal legal equality in the sense that the law applies to all actors within the system. We might benefit from thinking of the rule of law as a weightier moral concept that demands that decision-makers comply with moral ideals, and not just with the rules as laid out.

scholarly journals 12. The Relationship between Parliament, the Executive and the Judiciary

2019 ◽  
pp. 325-357
Author(s):  
Alison L. Young
Keyword(s):  
Supreme Court ◽  
Separation Of Powers ◽  
Case Law ◽  
Checks And Balances ◽  
Parliamentary Sovereignty ◽  
The Supreme Court ◽  
The Uk ◽  
The Relationship ◽  
Traditional Understanding

When examining the recent evolution of the Constitution, it is argued that the UK has become more ‘legal’ as opposed to ‘political’. The last twenty years has seen a growth in legislation and case law, particularly that of the Supreme Court, regulating aspects of the UK constitution. This chapter investigates this claim. It argues that, whilst we can point to a growth in both legislation and case law, when we look at the case law more closely we can see that the courts balance an array of factors when determining how far to control executive actions. These factors include an analysis of the relative institutional features and constitutional role of the legislature, the executive and the courts. This evidence, in turn, questions the traditional understanding of the separation of powers as a hidden component of the UK constitution. It is not the case that courts merely balance the rule of law and parliamentary sovereignty in order to determine how far to control executive actions. Rather, the courts determine how to make this balance through the lens of the separation of powers, evaluating institutional and constitutional features. In doing so, they are upholding necessary checks and balances in the UK constitution.

scholarly journals President Andrew Johnson Impeached: The First Presidential Impeachment in American History

2021 ◽  
pp. 212-221
Author(s):  
Tatiana Alentieva ◽  
Keyword(s):  
Separation Of Powers ◽  
The United States ◽  
Political Struggle ◽  
Checks And Balances ◽  
Theoretical Concepts ◽  
Lower House ◽  
History Of ◽  
Visual Materials ◽  
Secretary Of War ◽  
The Relationship

Introduction. The article is devoted to the mechanism of impeachment procedure on the example of the first practical application of it in the history of the U.S. in relation to President Andrew Johnson. This created a necessary precedent in the further political struggle between the branches of government and has made the study of the history of the first presidential impeachment an urgent problem. Impeachment cases were brought against six subsequent presidents: Cleveland, Hoover, Truman, Nixon, Reagan, and G.W. Bush in the lower house of Congress. W. Clinton and D. Trump’s impeachment was discussed in the Senate, but was not successful. Methods and Materials. The article is based on materials from the American press as well as cartoons. The novelty of the source base is in combination of verbal and visual materials. The author used theoretical concepts developed within the framework of interdisciplinarity. The problem-chronological approach was the methodological basis of the research. In American historiography, Johnson is regarded as the “worst” President in U.S. history. However, the debate over the legitimacy of the first impeachment of a President in U.S. history has not subsided until now. In American studies, the impeachment of Andrew Johnson has not been specifically considered. Analysis. The conflict between the President and Congress was caused by the Reconstruction policy. The confrontation between the two branches of government led to impeachment. The President was charged in connection with the dismissal of Secretary of War E. Stanton, which was a violation of the Tenure of Office Act. The article examines how the impeachment procedure was implemented by Congress and why it failed. Results. Despite the failure, the first impeachment of a President in the history of the United States showed the effectiveness of the “checks” and “balances” mechanism in implementing the principle of separation of powers. It has become a deterrent to the relationship between the President and Congress.

The Effect of the Original Jurisdiction of the Caribbean Court of Justice on Regional Integration and National Law

2020 ◽  
pp. 528-554
Author(s):  
David S. Berry
Keyword(s):  
Regional Integration ◽  
Separation Of Powers ◽  
Historical Context ◽  
Appellate Court ◽  
European Union Law ◽  
Common External Tariff ◽  
Court Of Justice ◽  
The Caribbean ◽  
Caribbean Court Of Justice ◽  
The Relationship

The Caribbean Court of Justice (CCJ) serves as both a final appellate court and, under its original jurisdiction, as a treaty-interpreting court. Under this latter jurisdiction the CCJ has developed and enhanced the effectiveness of Caribbean Community law. It has introduced a number of legal doctrines, several of which parallel doctrines of European Union law. In doing so the Court has challenged fundamental national legal norms and traditions, including the dualist view of the relationship between international law and municipal law, the principles of constitutional supremacy and separation of powers, the role of legitimate expectations, and potential for indirect effect. This chapter introduces the CCJ’s original jurisdiction jurisprudence and places it in its legal and historical context. It identifies the different bases under which the CCJ can take jurisdiction, and critically discusses some of its foundational decisions in two areas, namely, free movement of persons and the rules related to the Common External Tariff. The chapter compares the jurisprudence of the CCJ to that of the European Court of Justice in order to assess the former’s potential effect upon Caribbean constitutional norms. The chapter concludes by suggesting that the CCJ has laid the foundations for significant legal developments which may reshape our understandings of the relationship between the regional and national spheres and the scope of authority within each sphere.

Part II The Relationship Between the Legislature and the Executive, 5 Legislative–Executive Relations in Presidential Democracies: The Case of Nigeria

2016 ◽  
Author(s):  
Sylvester Shikyil
Keyword(s):  
Good Governance ◽  
Separation Of Powers ◽  
General Introduction ◽  
Checks And Balances ◽  
Clear Separation ◽  
Presidential Democracies ◽  
Democratic Principles ◽  
The Military ◽  
The Relationship

This chapter examines how Nigeria’s legislature and executive interact and check each other in a manner that prevents the abuse of powers. Section 1 provides a general introduction. Section 2 focuses on the constitutional role of the legislature and the executive. Section 3 examines the features of Nigeria’s presidential system. Section 4 explores the areas of interaction between the legislature and the executive in the discharge of their constitutional roles. Section 5 discusses the causes of legislative–executive conflicts and their impact on good governance while Section 6 concludes. The chapter argues that although the constitution makes ample provisions for a clear separation of powers between the legislature, executive, and the judiciary as well as providing for checks and balances to guide the relationship between the three branches of government, democratic principles have not been fully embraced due to the military culture existing between 1966 and 1999.

Ein als „Präsidialsystem“ verkleidetes (autokratisch-)parlamentarisches Regierungssystem: Die Präsidentschafts- und Parlamentswahlen in der Türkei vom 24. Juni 2018

2019 ◽  
Vol 50 (4) ◽  
pp. 791-809
Author(s):  
Mahir Tokatlı
Keyword(s):  
Mixed Type ◽  
Separation Of Powers ◽  
Electoral System ◽  
State Of Emergency ◽  
Constitutional Amendments ◽  
Parliamentary System ◽  
Presidential System ◽  
Head Of Government ◽  
First Time ◽  
The Relationship

On the 24th of June 2018, for the first time Turkish citizens voted in separate elections for both parliament and the head of government . The constitutional amendments passed a year earlier in a controversial referendum became effective at the same time and transformed the parliamentary system of government into a so-called presidential system . However, regarding the relationship between the executive and legislative branches, the constitution reveals strong similarities to an Israeli experiment (1996 to 2002), which conversely was described as a mixed type or quasi-parliamentary system . The “alla Turca” variant presents a clear asymmetry concerning the horizontal separation of powers in favor of the president and creates a concentration of powers . Parliament is rigorously constrained in its powers, while the president permanently remains capable of acting unless an arithmetic three-fifths majority is formed that could recall him prematurely for political reasons . Under the undemocratic conditions of a semi-competitive electoral system and in a state of emergency that applied at the time, the AKP won both elections . [ZParl, vol . 50 (2019), no . 4, pp . 791 - 809]

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