Analysis of Separation of Powers in Contemporary Democracies

This essay provides a comprehensive analysis of the separation of powers, a fundamental principle of modern constitutionalism. It explores the roles of the legislative, executive, and judicial branches, emphasizing their distinct functions in lawmaking, governance, and justice administration, respectively. The essay highlights the importance of checks and balances to prevent the abuse of power and maintain a legal framework that protects citizens. It examines the challenges to the absolute separation of powers, particularly in countries with less mature democracies, where interference from the executive branch can undermine judicial independence. The essay also discusses the influence of political and financial powers on the judiciary and advocates for an independent judiciary. Furthermore, it contrasts democratic states with totalitarian and laboratory-of-power states, analyzing how the separation of powers is implemented and sometimes distorted. The essay concludes by emphasizing the significance of countervailing power, especially through social movements, in ensuring accountability and promoting the common good. The author, a student, connects these concepts to their future career in business, underscoring the vital role of an independent judiciary.

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Separation of Powers
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Introduction
Division or separation of power is a principle characteristic of contemporary constitutionalism in
any common wealth country. This acts as a guarantee for the citizen and the state itself that there
is a legal framework that has been put in place to prevent abuse of power and possible arbitrary
action by any arm of the government by a public institution (Webb, 2013). Normally, in most
common wealth countries the theory of separation of power divides arms of the government
namely: The first, is the legislative arm or parliament which is responsible for formulating,
promulgating, reforming and repealing the laws. The second, is the judiciary or the courts which
are tasked by the constitution to administer justice and the third is the executive or government
seeks compliance (Campbell, 2004).
Undoubtedly, one of the major concerns of society is, today, corruption and its impunity;
Another, the fulfillment of the equality of all before the law. From here it is not trivial to
consider whether, in the constitutional context in which most citizens find themselves, the real
guarantee of the separation of powers is possible (Vile, 2014). In most jurisdictions especially in
countries that do not have mature democracies, there is a lot of meddling in other arms of the
government especially from the government that makes it impossible to have absolute separation
of powers.
The judiciary is constitutionally conceived as the one emanating from the people and must
monitor the effective enforcement of laws. In such a condition, it must be independent and
immovable. However, today it is seen as the opposite: elitist, voluntarist, alien to social reality,
and implacable with the weak but lax with the powerful. This is the view in most countries.

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The consolidation of a judicial power that, on the one hand, when applying the laws does not
interpret them according to the social needs of their time, is verified (Warner and Sullivan,
2004). And, on the other hand, it does not emanate from the people, but is exercised in the name
of interests outside of social justice. In short, it is not an independent state power, but is bent to
interests of all kinds, without at all identifying with the concept of egalitarian justice.
The judiciary should be a public service whose resources were managed by a public
administration - call if you want the Ministry of Justice - but its government should be in the
hands of judges or jurists absolutely alien to the game of parliamentary majorities. The judiciary
would have to be governed by an autonomous body, thus guaranteeing its independence, made
up of peole not dependent on any major political or associative force.
A truly autonomous model of government of judges would not rush to sanction a judge, who was
in criminal proceedings for having decided to imprison a "powerful" person, with close contacts
with political and economic power (Ten Napel and Voermans, 2016). On the contrary, he would
investigate the circumstances of this unusual affair in order to facilitate his protection. With this
exemplary behavior it would avoid, from now on, interferences and disturbances in the
jurisdictional performance of all the judges. In most instances when a powerful person is being
prosecuted, there is always a lot of influence by either the executive or parliament to influence
the outcome of the judiciary (Hage, 2016). The doctrine of separation of powers would prohibit
this kind of influence.

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In a broad sense, we could include the State Attorney General and the Constitutional Court in the
judiciary. These are constitutional bodies with important jurisdictional functions; Bodies that -
improved in the administration of justice- are undoubtedly perceived as belts of transmission of
interests of other powers.
With this system of appointments, it is easy to understand that both the Constitutional Court and
the Attorney General's Office are fully impregnated with political interests in its functioning
(Stephens, 2007). In a matter of scrupulous respect for the separation of powers, it would be
unthinkable that in a criminal proceeding the prosecutor would assist the defense of a member of
an influential figure in the government.
It is well known by all that the legislative, executive and judicial represent the three great powers
on which the State is based. But let us not be mistaken: from a purely divisive perspective, this
separation exists in both totalitarian states and democratic states (Stephens, 2007). The
important thing is not the nominalism, but the competence domain of each power and the
interrelations between them. This is the only way to analyze if they really operate in a true
democratic space or if, on the contrary, it is a mere cataloging with a democratic appearance.
The legislative power essentially has two functions that can not be waived: making laws and
controlling the executive. On the other hand, the executive is responsible to govern and to the
judicial to apply the laws and the norms of its development. These are your basic skills and
nothing new is in this scheme.
From this consideration it is easy to understand that the legislative power and the judiciary have
a superior importance to the executive, while both must exercise a common function that governs

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the good government of nations (Hart and Raz, 2012). The executive is essentially the power that
must be controlled most because it has the most power. The executive, headed by the
government, controls the most important essentialities of the Administration (education, health,
justice, army, police, etc.). Its power is immense and the limits have to put the legislative. The
judiciary intervenes when the individual wrongfully trespasses such limits and, of course, the
government may have temptations to transfer them (in fact, sometimes many governments
transfer them) and the judiciary must exercise control (Hart and Raz, 2012).
Therefore, both the legislative power and the judiciary represent limits that the executive can not
- or should not - pass through. Thus, the legislature designs and establishes the legal framework
in which the government must act; Warns that the provisions contained in the law are those that
must be developed, usually through regulations, by the different ministerial departments. When
the executive does not respect the lines set by the legislature - whether by abusing them or by
breaking them - the judiciary must come into play and restore legal order.
The three powers have their origin in the people and one should ask what one expects from
parliamentarians, rulers and judges. A truly democratic society demands - or must demand - that
its representatives make fair laws that reach the common good and the general interest (Bell-
Rehwoldt, 2005). Such a requirement means that governments carry out their activity in
accordance with that common good and general interest since the councils of ministers must tend
to achieve that good in accordance with the general needs of the citizens who make up the social
body. For their part, judges must interpret and apply laws and regulations in such a way that the
general interest expressed by the normative provisions is effective and visible to all citizens.

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In short, the people must wait - if it chooses - that the three powers interact in the benefit of a
whole and not only of its parts.If this is so, the separation of powers would be no more than the
theory of the common good insofar as the common good is the end and the legislative, executive
and judicial are the means by which the State counts to arrive at such end. This is what would
happen in democratic states.
This does not always happen. In the states of totalitarian court, the power par excellence is the
executive. This is the organizer and the one who enforces their mandates in any way (Bell-
Rehwoldt, 2005). The executive is the one that watches for the creation of laws supervising a
legislative. The judiciary stands in the executive hand of the executive. In this type of state, the
legislative and judicial powers are in fact instruments of the executive, which, in a syllabic
manner - and sometimes not so much - is responsible for controlling legislative assemblies and
for placing like judges. Thus, there is confusion between the common good and the good of the
ruler. Sometimes, these states seek in the principle of separation of powers the democratic
disguise that all their arms of government are working independently (Coalition Provisional
Authority memorandum number 12, 2004).
In these type of democracies, the government allows access, especially in the international order,
to organizations and groups of greater democratic character. In this way, the principle of
separation of powers is used as a mere instrument of image, but without any democratic content.
But there is a third type of state in which the principle of separation of powers is conceived as a
laboratory of power and influence . In these States there is a parliament, a government and some
judges. Citizens vote every four years and every four years approve or censure the work of the
government. Well, through the elections, whether general or local, the parliamentarians are

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elected, they elect the president of government and the latter appoints his ministers (Hage, 2016).
These States have judges who are members of the judiciary, through an anachronistic system of
access, but the judges of the highest judicial bodies are the fruit of political consensus; That is,
influenced by politics. In this type of state, legislative, executive and judicial power converge in
the political power of majorities in such a way that the political majority, leaving the polls,
imposes its power (parliamentary, government and judicial).
In this type of states there is a fourth occult and opaque power that is financial. This fourth
power does not exist as such in totalitarian states, since financial power, in this type of state, is
embedded directly in the executive (Coalition Provisional Authority memorandum number 12,
2004). That is to say, there is a symbiosis between executive power and financial power. In many
states that call themselves democratic, this economic power supports the political majority in the
confidence that their provision will have a financial consideration, which translates into huge
profits at the expense of the common good (cram101 textbook reviews., 2014). Usually this
economic power is nourished by oligarchs and high bourgeois who do not conceive themselves
as members of the social body, but rather as directors of the future of all as if it were an
orchestra.
If the classical powers have to converge on the good Common and in the general interest of all,
it is observed that economic power distorts this convergence for the sake of the particular good
of a few in detracting from the general interest of many others. Therefore, the principle of
separation of powers is altered in the sense that the three powers are at the service of individual
interest (Domhoff, 2003). The conclusion can not be other than that this third type of state is
dangerously close to the states of totalitarian court. In other words, this state proudly presumes to

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respect the separation of powers and that everything works as it should (Gordillo and Flogaitis,
2003).
It is important to note that the balance to power is given by counter-power. A constructive,
enriching and, above all, peaceful countervailing power. This counter power can manifest itself
in many different ways but the most important is associative. In this field, social movements play
a very important role. It is these movements that turn a closed society into an open society, those
that erect society at the apex of the common good and those who make the real control of the
powers, especially of the legislative and executive (Domhoff, 2003).
For my future work in business, all the branches of power are important, but the most important
of this branches is the judiciary. An independent judiciary is important because it gives one the
confidence to know that any breach of contract and trust from my clients or any other person that
we are doing business with will get justice in court and my business will not be affected by a
judiciary that can be easily compromised.

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References
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Coalition Provisional Authority memorandum number 12. (2004). [Baghdad, Iraq?]: [Coalition
Provisional Authority].
Domhoff, G. (2003). Changing the powers that be. Lanham, Md.: Rowman and Littlefield
Publishers.
Gordillo, A. and Flogaitis, S. (2003). An introduction to law. London: Esperia Publications.
Hage, J. (2016). Introduction to law. [Place of publication not identified]: Springer International
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Halberstam, D. (2012). Powers That Be. Open Road Media.
Hardt, M. and Negri, A. (2011). Commonwealth. Cambridge (Mass.): Belknap Press of Harvard
University Press.
Hart, H. and Raz, J. (2012). Concept of Law. Oxford: Oxford University Press.

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Stephens, G. (2007). Locke, Jefferson, and the Justices -- Foundations and Failures of the USG.
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Ten Napel, H. and Voermans, W. (2016). The Powers That Be. Leiden: Leiden University Press.
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