Which of the following power sharing among legislature, executive and judiciary are an example of

The system of separation of powers divides the tasks of the state into three branches: legislative, executive and judicial. These tasks are assigned to different institutions in such a way that each of them can check the others. As a result, no one institution can become so powerful in a democracy as to destroy this system.

Inhaltsverzeichnis Show

The Three Powers: Legislature, Executive, Judiciary
Clear Distinctions
The Legislative Power
The Executive Power
The Judicial Power (Judiciary)
And the Parties?
New Face of Separation of Powers: The Opposition exercising Control
The Legislature checks the Executive
The Legislature is also Subject to Control
The Legislature and the Judiciary
The Executive
1. The Judiciary
2. The Executive
3. The Legislature

The Three Powers: Legislature, Executive, Judiciary

Checks and balances (rights of mutual control and influence) make sure that the three powers interact in an equitable and balanced way. The separation of powers is an essential element of the Rule of Law, and is enshrined in the Constitution.

Clear Distinctions

The separation of powers is also reflected in the fact that certain functions must not be exercised by one and the same person. Thus, the Federal President cannot at the same time be a Member of the National Council, or a judge who is appointed Minister or elected to be a Member of the National Council must be temporarily suspended from his/her judicial duties.

The Legislative Power

The first of the three powers has the task of passing laws and supervising their implementation. It is exercised by Parliament – i.e. the National and Federal Councils – and the Provincial Diets.

The implementation of laws is the task of the executive and judicial branches

The Executive Power

The executive branch has the task of implementing laws. It comprises the Federal Government, the Federal President and all federal authorities including the police and the armed forces.

The Judicial Power (Judiciary)

Judges administer justice, viz. they decide disputes independently and impartially. It is their task to ensure that laws are complied with. Judges cannot be deposed and cannot be assigned other positions against their will.

And the Parties?

As in other democratic countries the separation of powers is also in Austria affected by the realities of the Party State. The Members of government are, as a rule, members of those parties which have a majority in Parliament.

New Face of Separation of Powers: The Opposition exercising Control

As a result, one important democratic task is more and more often taken over by the opposition parties: controlling the Government. The classical separation of powers is given a new dimension – the confrontation of the governing majority and the opposition. While this aspect is not enshrined in the written Constitution, it is a fact of political reality.

The Legislature checks the Executive

Parliament exercises control over the executive, it checks the work of the Federal Government and the administrative institutions. The Government has to justify itself to Parliament in respect of everything it does or causes the administration to do.

The Legislature is also Subject to Control

On the other hand, the Executive – in the person of the Federal President acting on a proposal made by the Federal Government – has the right to dissolve the National Council. Laws passed by the National Council can be checked by the Constitutional Court and declared null and void if they are found to be unconstitutional.

The Legislature and the Judiciary

The only influence legislature has on the judiciary is that it passes the laws that the courts have to comply with.

The Executive

The two components of the Executive – the Administration and the Judiciary – are organised upon strictly separate lines, with one exception: the Administration is checked by the courts of public law (the Administrative Court, the Constitutional Court and the Asylum Court).

The Constitution contains strict rules on how tasks are assigned to the Administration or the Judiciary. To give one example: Fines exceeding a certain amount can only be imposed by courts.

Answer:

The correct answer is option (c) – Horizontal Distribution of Power.

Power is shared among different levels of Government because it ensures a system of checks and balances. Hence power is shared among different levels of Government – Legislature, Executive, and Judiciary.
In the Horizontal distribution of power, different organs of Government placed at the same level can exercise different powers.
This kind of power separation ensures that there are no unlimited powers in the hands of just one organ.
Each organ keeps a check on the other organ.
This kind of power separation ensures that there is balance of power among different institutions.
The Governments and Ministers are responsible to the various state assemblies and Parliament.
Although Judges are appointed by the Executive, the Judges have the powers to keep a check on the laws made by the legislature or keep a check on the functioning of the Executive.

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1. The Judiciary

The Judiciary includes judges and the courts. The role of the Judiciary is to interpret the law when there is a legal dispute.

The judge must apply the law (rather than their personal, moral, or political views) to make decisions and provide reasons for these decisions. This is an important check on the powers of the Judiciary by ensuring that laws are made by elected representatives in Parliament (the Legislature) and any disputes concerning these laws are decided by an independent, impartial body according to those laws.

Another significant check on the power of the Judiciary is judicial review. This means review by higher courts. The Judiciary has the power to strike down laws made by the Legislature and declare actions of the Executive unlawful. Judicial review ensures the other arms of Government are accountable under the law and are restrained from enacting laws that may be unconstitutional (and therefore invalid and unenforceable) and behaving unlawfully. This is a highly important check on the power of the Government because it provides a legal process in the courts for individuals to challenge the decisions of the Government. It also upholds an important rule of law principle: all individuals are equal and accountable under the law, and no one is above the law, regardless of their status or rank.

Lastly, the Constitution ensures judicial independence from the Executive and Legislature and protection from political interference by protecting the tenure and remuneration of the Judiciary. Therefore, a judge cannot merely be sacked (or pay reduced) if they make a decision that Government in power dislikes.

2. The Executive

The Executive includes ministers and the government departments, agencies, and statutory bodies they are responsible for. The role of the Executive is to propose (but not pass laws) and then implement laws passed by the Legislature into operation. It has the power to oversee Government Agencies and Departments and deal with social, economic, or environmental issues as they arise.

Checks and balances on the Executive ensure their power is used in a way set out by law. As mentioned before, the judiciary is the primary check on the overuse and misuse of power by the Executive.

Another check on the power of the Executive is scrutiny by the Legislature and Parliamentary Committees who have the ability to ask the Executive questions in Parliament and to disallow laws passed by the Executive. The Executive is also held accountable by the Shadow Cabinet and the ‘Opposition’ who are frequently critical of Government policy and legislation.

It is important to note that there is only partial separation of powers between the Executive and Legislature in Australia as members of the Executive are drawn from Parliament. It is also important to note that in the Executive arm lies the greatest potential and practice for power and, therefore, corruption.

3. The Legislature

The Legislature is an assembly of elected representatives, known as the Parliament, who has the legislative power to make laws. According to Tom Bingham, the Legislature, under the Constitution, may enact any legislation it chooses:

the Parliament has no legislative superior. The courts have no inherent powers to invalidate, strike down, superseded or disregard the provision of an ambiguous statute duly enacted by Parliament and indeed, an extremely limited power to enquire whether a statute has been duly enacted…

A further internal check on the legislature is that bills can only be passed according to parliamentary rules and procedures. For example public readings of the bills and the bills being made publicly available on the Parliament website enable scrutiny by the public and the media. The bi-cameral system of Government – one which has an Upper and Lower House of Parliament – is a significant check on the power of the Legislature. The important debate and scrutiny of bills within the ‘party room’ enable members of the Legislature to express the views and concerns of those who they represent. It is an important internal check on the power of the Legislature. The Upper House has been described as:

the most important of the constitutional checks on balances on excessive concentration of power…It is the one place where Government can, of right, be questioned and obliged to answer.

– NSW Legislative Practice Chapter 2

Another important check on the power of the Legislature is the ability of the Governor General to dissolve the Legislature, which is only done in exceptional circumstances. The Governor General also must give royal assent to laws passed by the Legislature.

Further, the Constitution balances the law-making power between Federal and State Governments. The Federal Government has the power to legislate with regard to issues such as defence, taxation and immigration, whilst State Governments can make laws in areas such as roads, hospitals, and schools.

Rule of law principles also guide law making. Laws should not be retrospective. This means that once a court decision is handed down, the Legislature cannot then reverse this decision by introducing laws that illegalise actions that were deemed legal at the time by the courts The laws must consider how they delegate power, and must not include arbitrary, overly discretionary or retrospective provisions, be clear, able to be complied with and relatively stable.

Whilst the judiciary is a check to ensure all legislation is lawful, the Legislature also acts as a check on the Judiciary because it can pass laws that override the decisions of the courts.