«

»

Aug 09

The Explainer: Separation of Powers and Checks and Balances sources

This week the principle of the separation of powers and checks and balances was the topic of the show.

The different kinds of government that existed at the time of the American revolution, and the guiding principle required to make each work, came from  “Montesquieu: The Spirit of the Laws (Cambridge Texts in the History of Political Thought)” (Charles de Montesquieu) (the version I have seems out of print, released by The Hafner Library of Classics). The book itself is available on line, though in older translations. One online version of The Spirit of Laws can be accessed here. An earlier work of his was  Considerations on the Causes of the Greatness of the Romans and their Decline.

Ideas, such as those put forward by Montesquieu, the reasons they were so attractive and influential, and how that attraction and influence can be gleaned from what the American revolutionaries said, did, and wrote, is tackled by Gregory S. Ahern in Virtue, Wisdom, Experience, Not Abstract Rights, Form the Basis of the American Republic. Liberty Haven also has a useful essay: The Founding of the American Republic: 5. The Enlightenment Impetus.

The debates on what America’s governing principles should be, and what its Constitution should contain, produced The Federalist Papers, which are required reading for anyone wanting to understand the issues of the times.

Among the fears of course of the American founding fathers was the “tyranny of the majority.” The first book I was ever given on the American principles of government was written by a Frenchman: “Democracy in America” (Alexis de Tocqueville) (I have enjoyed reading, and re-reading portions of, this book, but have never really been engaged by the Federalist Papers, for example). Chapter XVI: Causes Which Mitigate The Tyranny of the Majority in the United States is particularly relevant to this episode of the show. (You can access all of Democracy in America online).

The dynamics of the leaders of the American Revolution and how they grappled with their mutual suspicions and hostilities is engagingly tackled in “Founding Brothers: The Revolutionary Generation” (Joseph J. Ellis), which I’d recommend to anyone. “His Excellency: George Washington (Vintage)” (Joseph J. Ellis) also makes for fascinating reading, as does “John Adams” (David McCullough) (all these books are available in Philippine bookstores).
A viewer violently objected to my characterization of the American founding fathers as “paranoid people.” But they were.  Here’s a bit of dialogue from The West Wing, Season 6, episode 8, “In The Room” just as an example, among many, that this isn’t only my view:

Vinick: The Founding Fathers didn’t set up a government based on trust. They could have designed a government based on trust in our ability to govern fairly but they knew that power corrupts so they invented checks and balances. That was genius. The Founding Fathers did not want me to trust you and they did not want you to trust me.
Josh: Well they must be very proud of us.

We made use of some helpful online charts.

First, on the parliamentary system;: a very clear and useful chart showing how parliamentary supremacy functions.  Second, a Checks and Balances Flow Chart. Another useful chart breaks down each branch’s checks and balances vis a vis the rest.

Online resources are rich: Scholastic.com compares and contrasts parliamentary with presidential, but also aggregates many useful links.

An important, unofficial, check and balance to the parliamentary system, is access to the media. See this web page, Political Frameworks, which compares and contrasts the presidential and parliamentary systems and points to the role of media in parliamentary democracies.

This essay by Ambeth Ocampo provided a useful quote for the show: Mabini asked why the Malolos Constitution was patterned after those of countries that adopted them in times of peace. Mabini’s criticism of the First Republic are accessible online: read his La Revolucion Filipina, in particular Chapter IX.

Supporters of parliamentary government should also be aware with the existing dissatisfaction with that system that exists in countries with parliaments.  Allan Gregg has an interesting essay on what Canadians consider the limitations of their parliamentary system -and some solutions he’d like to propose. A speech by someone working for the Parliament of India also has interesting observations and proposals.

Finally, something two guests (Rep. Locsin and last night’s guest, Dr. Kiko Magno, professor of Political Science at DLSU) both agreed on: neither one can think of any country where a public used to electing national officials, gave up that power. Dr. Magno could only think of the parliamentary system being abandoned in favor of the presidential system in countries emerging from British rule; but  as for independent countries to abandon presidential for parliamentary, he can’t think of any examples. He pointed out that generally, the parliamentary system has evolved from monarchy; and represents an evolutionary process more often than not, while the presidential system is the result of a more revolutionary process.

My closing statement for the show was as follows:

Parliaments and presidential governments have both fallen under the sway of dictators.

But in defense of the presidential system, presidents who have become dictators have often had to shut down a constitutionally-independent congress, as marcos did in 1972. There is less of an opportunity in the presidential system to legitimize a dictatorship: a congress may not stop a tank, but the tanks having to surround congress on behalf of a president means no one can suffer from the delusion that what’s happening is either constitutional, or legal.

I once saw a documentary on the unicameral parliament of china. It’s a singe-party dictatorship, of course. Two delegates dared to vote against their party. Fellow delegates rushed to shake their hands -how thrilling, they said, to see democracy in action!

One of the two said, if it’s so thrilling, why didn’t you also vote against? The only response they got was, “well, you know, there are many reasons…”

Actually, only one. There aren’t any checks and balances.

(The documentary is the BBC’s China: The Power and the People, part 1 of a fascinating 4-part series.

Technorati Tags: , , , , ,

14 comments

1 ping

Skip to comment form

  1. Alex Bernardo

    There’s a lot to chew on in your piece, but I’ve come to realize that democracy is fleeting; whatever system a nation adopts dictatorship looms in one form or another. The reason, I think, is that there is a fundamental conflict between democracy and politics. Democarcy of couse must allow politics to thrive. Yet politics being concerned with power seeks not just to attain it, but also to preserve it, indeed, to monopolize it as well.

    Sue Cameron wrote an interesting piece in the Weekend FT entitled “Leadership deals that demean democracy”. She narrated humourously: “When a California politician lost a Senate race in the 1960s, he remarked: ‘The people have spoken… the bastards.'”

    Anyway, what piqued my interest in the article was her point about parliamentary systems being subverted by a form of party dictatorship and she offers Australia’s and the UK’s as prime examples. I’ll quote liberally: “Mr. Blair (UK’s Prime Minister Tony Blair) refuses to say when he will step down; Mr. Howard (Australia’s Prime Minister John Howard) has announced he will seek a fifth term. Messrs Brown (Gordon Brown-UK’s Chancellor of the Exchequer and supposed PM in waiting) and Costello (Peter Costello-Australia’s Treasurer and supposed successor to Howard) feel cheated of their rightful inheritance.

    “Yet, in a democracy, no one has a ‘right’ to office beyond that conferred by the people. In Australia and Britain, however, the people are not being consulted. Instead, the backroom dealing over the leadership of two nations looks more like mafiosi choosing a new godfather than the mature exercise of democracy.”

    Curbing power should be a dynamic and evolving aspect of any democracatic system. Which system does a better job in doing it: parliamnetary or presidential? I’m not sure. The people should not sit comfortably on laws drafted in the past that claim to guarantee their rights. These laws after all are written by politicians who lust for power.

  2. mlq3

    Alex, my researches for the show have made me realize that, too, but also confirms an initial impression I got when I first encountered Filipinos who want the parliamentary system: the British model is simply too alien; it ignores the equally valid, to my mind, solutions embarked upon Indonesia; and regardless of what well-meaning non-politicians desire, parliamentary proposals are merely a disguise to achieve one party government, which to my mind is a step back to the 1970s and 1930s in our national experience.

    Much of the motivations behind parliamentary advocacies is distrust and worse, contempt for the electorate, when the behavior of the electorate has a strong logic of its own, though that logic may be offensive to the professional politicians, the middle and upper classes, etc. It is as reasonable as proposing we limit suffrage to property owners, etc.: something that’s the political and social equivalent of putting toothpaste back in the tube.

  3. vic

    In a very strong party system Parliamentary System of Government, it is very seldom that the PM turn into a tyrant because he usually govern according to the Party’s Ideology, Programs and Principles instead of his/her personal agenda. And since it is the party membership that installed the PM to the position by electing him to the leadership (of the party), the Party in extreme circumstances could also replace the leader (by calling a new Leadership contest) and thereby effectively replacing the Prime Minister. That is to follow the rule of the system that the Party who was declared winner in the last election has the right to form a government with its leader as the PM or Premier (in case of Provinces or member state in federation). But this would not stop the party as a whole to dictate the business of the government in Authoritarian fashion or even a tyrannical one.

    In the British, Canadian, and few other former Colonies where the PM is not the head of State, the sovereign power still lies with the Throne. And although Queen Elizabeth II function is limited to perfunctory and ceremonial, She still has the power to dissolve any government under her sovereign.

    Aside for the opposition party or parties if significant in number, the Media is one very significant Check and Balance in a Parliamentary System. Take the case of Toronto, Canada’s largest city, the media is equally divided into similar Political Party camps, each guarding each other party’s interests and keeping an eye on the opposition. Editors depending their own party policy and always find ways of criticizing the oppositions. But again the Media itself is check by our very simple and effective libel and slander law. So it seems that in any form of democratic government the check and balance are always “built in”. It is just a matter of setting them up right.

  4. DJB

    MLQ3,
    The shape and modus operandi of a future Philippine Parliament can already be seen in the behavior of the current Lower House of Congress, which is disgusting to say the least. I think I agree with the suggestion that evolutionarily speaking the presidential system is more advanced in the structure of checks and balances available for redress and correction. The empirical observation that no example can be found of polities giving up the right to vote for national leaders is quite telling. Politically this is probably a very important thing. It will be the lynchpin around which Filipinos will rally against the chacha of JDV, even if they somehow get passed the Supreme Court, which I have a feeling they may be able to. A plebiscite could be held as soon as November according to his timetable. A good pithy slogan to encapsulate the basic point is needed, like “No to Chacha. No to Jose de Venecia!” People will understand that.

  5. ellen

    Manolo, comment of one visitor in my blog:
    npongco Says:

    August 10th, 2006 at 9:11 am

    I salute Manolo Quezon, grandson of the late President Manuel Quezon. It’s time to run for public office. You may start in Congress all the way up to the Senate and then higher office later. You’re still young and talented. Most of all, your love for the country will carry you throughout your political career if you choose to take this route to helping the country. You have our support!

  6. John

    Constitutionally, the principle of check and balance simply means that one department is allowed, under the Constitution, to resists the encroachments upon its prerogatives or to rectify mistakes or excesses committed by the other department. (Cruz, Phil. Political Law, 2002 ed., p. 76) I suggest that before we moved our attention to the parliamentary system, we have to appreciate the many check and balances that our Constitution put in place: e.g. the veto power of the President as check to the laws of the legislature (Section 27(1), Article VI, 1987 Constitution), the veto-override power of the Congress (Section 27(1), Article VI, 1987 Constitution), the power of the judiciary to declare laws and executive orders unconstitutional (Section 1, Article VIII, 1987 Constitution), the impeachment power of Congress (Section 3, Article XI, 1987 Constitution) et. al. I do not think these checks and balances are not working in our present system. I believe they do work. The real problem is that they are working too much in our system leading us to gridlocks and inefficiency. We often forget that, in the words of President F. D. Roosevelt, “our constitution wisely declares separation, but the impulse of common purpose declares a union.” That is, our institutions are not working for a common purpose. Self-interest governs the different departments of our government. Gridlocks and inefficiencies thrive wherever self-interest directs the government especially in a presidential system where there are more check and balances. Common purpose is the lacking ingredient in our still comparatively young democracy. Whatever system we choose, whether parliamentary or presidential, if self-interest rules our ways, nothing will happen to us.

  7. hvrds

    I personally enjoyed your first piece on the origin of parliament. However I was disappointed by the fact that in your discussion you never dealt with the rationale for government in the first place. The origins of representative government started with the early parliament of the tribes. The chief, usually had a council of elders, his privy council, the forerunner of cabinet and he usuually shared power with his fellow warriors as the central government. Chiefs were decided on the field of battle. Please note that up to the early part of the 19th century dueling was as an accepted form of resolving disputes. Families, clans then became communities then towns. You cannot separate the rationale for government from the form of government. Hence your presentation comes out superficial.

    You have to combine John Locke with Montesquieu. Property rights and the protection of property rights and the giving up of some natural rights in favor of an institution is the basis of the social contract of representative government. The breakinbg of that social contract is the basis for revolution. The rationale of government’s existence is economics. The economic base.

    Your not enjoying the Federalist papers is quite understandable since it clearly shows the mindset of both Madison and Hamilton who were discussing the dialectical history of man’s development.

    It shows very clearly in Article I Section 8 of the U.S. Constituion which are the economic provisioons of the the same.

    Hamilton’s influence in those two sections is very apparent. He became the First Secretary of the Treasury of the U.S. and was the architect of the dirigist principles of the newly formed Republic. In principle he wanted the U.S. built along the lines of Athens and Sparta combined. A commercial republic but backed up with a strong military force (national military force) Their democracy then was a form of democratic centralism.

    Please note the changes that brought forth liberal democratic systems was liberal economic principles and the industrial revolution. The Age of Capitalism…

    For that you have to credit Adam Smith and Karl Marx.

    Geroge Will the conservative columnist of the Washington Post always loves to comment that the idea that there are over a hundred and fifty nation states (the U.N. membership) in the world is false.

    John Locke, Smith and Marx all agreed that the price of commodites correlates to the labor input.

    Marx was not an economist but he was a sociologist. He correctly pointed to the fatal flaw in industrial capitalism. Overproduction and obsolecence. -Modern speak – deflation and depression.

    Smith rightly brought out the fact of efficiency in “free” markets with the big “IF” at the the start of his every theory.

    Marx correctly pointed out his analysis based on the anatomy of society (class system or the human food chain))and the constant clashing of power and wealth and its influence on the market. Hence Stiglitz won a Nobel prize in economics pointing out the lack of symmetry in economics. Meaning- humans do not all think alike.

    That brought forth Keynes who offerred the solution – to prevent depressions you simply inflate. That is where the challenge lies today. Exporting inflation is also known as imperialism. The poor countries know it as free trade. It is said Keynes died of stress after the formation of the first Bretton Woods agreement when the Americans refused to go with the idea of a neutral international currency that he had called Bancor.

    Please note:

    First published in 1776, The Wealth of Nations is generally regarded as the formulation of contemporary economic thought. Adam Smith a Scottish professor of moral philosophy, expounded the then- revolutionarry doctrine of economic liberalism.. The book’s importance was immediately recognized by Smith’s peers and later economists have shown an unusual consensus in their admiration for his ideas. Combining economics, political theory, history, philosophy and practical programs, Smith assumes that human self-interest is the base psychological drive behind economics and that a natural order in the universe makes all the individual, self-interest strivings add up to the social good. His conclusions, that the best program is to leave the economic process alone and that government is useful only as an agent to preserve order and to perform routine functions,is now known as laissez-faire economics or non-interventionism. In noting for the first time the significance of the division of labor and by stating the hypothesis that a commodity’s value correlates to its labor input, Smith anticipated the writings of Karl Marx. Like Marx’s Das Kapital and Machiavelli’s The Prince, his great book marked the dawning of a new historical epoch. Edwin Canaan, economist.

    “Adam Smith’s enormous authority resides, in the end, in the same property that we discover in Marx: not in any ideology, but in an effort to see to the bottom of things.”
    –Robert L. Heilbroner, economist who worked with J.K. Galbraith.

    Forms of government are superfical the essence is the rationale or substance of governance. Hence you take your list of weak and or distentegrating states and you will see poor economic stats. The per capita income of every country is a simple measurement that mesures how high the ladder of industrial development a country is. Weak economics weak government.

  8. mlq3

    ellen, that’s flattering but i’m not cut out for elected office.

  9. hvrds

    Please note that we have certain myths about the formation of democracy especially since we are basically a colonial construct.
    The evolution of democratic governments most especailly the American form went through the foundries of history. Struggle and demands of freedom. Below are exerpts from Lincoln’s first inaugural address. It clearly shows his briliant mind and devotion to duty, God and nation as he saw fit to carry out. He clearly declares that war is a political necessity if forced upon the government. At the tinme of his inaugural a few states had already seceeded from the Union. He was desperately still trying to win them back. Personally he was against slavery but :

    …..”I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.”

    …. “Those who nominated and elected me did so with full knowledge that I had made this and many similar declarations and had never recanted them; and more than this, they placed in the platform for my acceptance, and as a law to themselves and to me, the clear and emphatic resolution which I now read:
    Resolved, That the maintenance inviolate of the rights of the States, and especially the right of each State to order and control its own domestic institutions according to its own judgment exclusively, is essential to that balance of power on which the perfection and endurance of our political fabric depend; and we denounce the lawless invasion by armed force of the soil of any State or Territory, no matter what pretext, as among the gravest of crimes.”

    “This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing Government, they can exercise their constitutional right of amending it or their revolutionary right to dismember or overthrow it. I can not be ignorant of the fact that many worthy and patriotic citizens are desirous of having the National Constitution amended. While I make no recommendation of amendments, I fully recognize the rightful authority of the people over the whole subject, to be exercised in either of the modes prescribed in the instrument itself; and I should, under existing circumstances, favor rather than oppose a fair opportunity being afforded the people to act upon it. I will venture to add that to me the convention mode seems preferable, in that it allows amendments to originate with the people themselves, instead of only permitting them to take or reject propositions originated by others, not especially chosen for the purpose, and which might not be precisely such as they would wish to either accept or refuse. I understand a proposed amendment to the Constitution—which amendment, however, I have not seen—has passed Congress, to the effect that the Federal Government shall never interfere with the domestic institutions of the States, including that of persons held to service. To avoid misconstruction of what I have said, I depart from my purpose not to speak of particular amendments so far as to say that, holding such a provision to now be implied constitutional law, I have no objection to its being made express and irrevocable.”

    “The Chief Magistrate derives all his authority from the people, and they have referred none upon him to fix terms for the separation of the States. The people themselves can do this if also they choose, but the Executive as such has nothing to do with it. His duty is to administer the present Government as it came to his hands and to transmit it unimpaired by him to his successor.

    “Why should there not be a patient confidence in the ultimate justice of the people? Is there any better or equal hope in the world? In our present differences, is either party without faith of being in the right? If the Almighty Ruler of Nations, with His eternal truth and justice, be on your side of the North, or on yours of the South, that truth and that justice will surely prevail by the judgment of this great tribunal of the American people.”

    “By the frame of the Government under which we live this same people have wisely given their public servants but little power for mischief, and have with equal wisdom provided for the return of that little to their own hands at very short intervals. While the people retain their virtue and vigilance no Administration by any extreme of wickedness or folly can very seriously injure the Government in the short space of four years.”

    “My countrymen, one and all, think calmly and well upon this whole subject. Nothing valuable can be lost by taking time. If there be an object to hurry any of you in hot haste to a step which you would never take deliberately, that object will be frustrated by taking time; but no good object can be frustrated by it. Such of you as are now dissatisfied still have the old Constitution unimpaired, and, on the sensitive point, the laws of your own framing under it; while the new Administration will have no immediate power, if it would, to change either. If it were admitted that you who are dissatisfied hold the right side in the dispute, there still is no single good reason for precipitate action. Intelligence, patriotism, Christianity, and a firm reliance on Him who has never yet forsaken this favored land are still competent to adjust in the best way all our present difficulty.”
    “In your hands, my dissatisfied fellow-countrymen, and not in mine, is the momentous issue of civil war. The Government will not assail you. You can have no conflict without being yourselves the aggressors. You have no oath registered in heaven to destroy the Government, while I shall have the most solemn one to “preserve, protect, and defend it.”
    “I am loath to close. We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.”

  10. RoelM

    MLQ3,

    I was somewhat disappointed with responses of your guest professor to your questions regarding parliamentary gov’t. It seems he has not been reading up adequately on the relevant political science literature. For instance, on the question of how to strengthen political parties, he does not even mention the role of the electoral system at all (first-past-the post, party-list proportional representation, single transferable vote, etc.) and ignores the post-World war II experiences of France and Germany in their efforts to improve their party systems. There is also the issue of checks and balances in a parliamentary set-up. He does not mention that for most modern parliamentary systems, there is an independent judiciary which is not subordinate to parliament and there are constitutional courts which have the authority to rule on constitutional questions even to the point of striking down laws and executive decrees. In fact, for most modern parliamentary systems, the fusion of powers applies only to the “political” organs of gov’t and does not apply to the other institutions.

    On another issue, political scientists have noted that presidential systems tend to become dictatorships more often than parliamentary systems. At one time or another, most presidential systems after WWII have succumbed to dictatorship while a large proportion of the parliamentary systems have managed to remain democratic throughout.

    Your show is to be commended however for discussing such vital issues and principles so necessary to understanding constitutional matters. May we have many more such presentations and more power to you.

  11. ian madrid

    caught the replay around 1am on ANC, its the first time I saw the show “The Explainer”. It was the mind boggling music theme of the show that actually entice me to look at the show. I found out that MLQ3 was hosting the show and it was like watching a lecture presentation of the topic at hand. I set aside what I’m doing to focus on watching. The topic for me to start off was not that interesting but after putting historical background/basis then its all good.

    Keep up with the show and I hope I could catch past episodes online.

  12. nicole

    hello, im nicole a nursing student. i just want to ask something. how is the system of checks and balances carried out in a parliamentary system? thanks

  13. IKSKRIBIDIGSKI

    Sir, pwede po bang paki explain sa amin kung ano talaga ang tunay na trabaho ng mga congressman at senador? at bakit ganun ka laki ang budget nila na bilyon-bilyon at ganun na ba ka mahal gumawa ng batas?

  14. Gidado Ahmed

    Hello, and good evening my question is pattaining:
    the role opf media as means of check and balance between the electoral and the governement.

  1. The Explainer Explained | The BLIPS Network

    […] Finally, I saw a complete episode of The Explainer last Tuesday. The topic was “Separation of Powers/Checks and Balances“. […]

Leave a Reply