Branches of Government | acryingshame.info
The relationship between courts and the other arms of government in promoting and control of decision making and substantive political equality between citizens. . To be sure, it utilised the administrative law concept of reasonableness to. Understanding the balance and relationships among legislative and other relationships exist between branches of government, including impeachment of Under his model, the political authority of the state is divided into legislative. Second, employees often fail to remember the proper relations between the governors and The framers of the Constitution believed that political liberty unavoidably As a result, the administrative arm of our government is assuming more.
To take but one example; President Zuma told Parliament on 15 March the following in answer to a question with regard to the role of courts: The three arms of government have very clear distinct functions. Those must be respected. The function of this Parliament is to legislate and conduct oversight Whilst it is the arm that makes the laws, it does not interpret the laws.
That is the duty of the judiciary that must check whether this arm has taken all the necessary constitutional understanding in making the law to ensure that it is not infringing on the Constitution. Is the law constitution? That is the job of the judiciary.
The executive must run the country; that is the job of the judiciary. The executive must run the country; that is its duty. In the process of all of this, these different arms respect one another. They work together, they must coordinate this, because they belong to one and the same state.
In turn, this line of argument has been used to suggest that the judiciary, because it does not 'run the country', should not intrude into core areas of social and economic policy. This observation is then invoked as a justification for an approach of extreme deference when deciding upon all aspects of government policy.
From this vantage point, deference becomes the corollary to separation of powers Fortunately, the Constitutional Court has examined the doctrine of separation of powers over some time, thereby providing far more subtle guidance to this potential problem. In particular, the Court has considered the argument that the doctrine of separation of powers will be undermined, if executive decisions are all too easily set aside and the judiciary then crosses a boundary into the executive's sphere.
In Justice Alliance of South Africa v President of RSA, 19 the Constitutional Court emphasised the importance of the doctrine of separation of powers in ensuring that courts are able to discharge their constitutional duty with regard to ensuing the legitimate exercise of public power.
The court has consistently noted that the doctrine of separation of powers does not mean that a court is impotent when faced with a constitutional challenge to a decision of the executive or legislation from the legislature.
He said that the rule that: He then went on to explain: The only possible connection might be that rationality has a different meaning and content if separation of powers is involved then otherwise. In other words, the question whether the means adopted are rationally related to the ends and executive decision-making cases somehow involves a lower threshold than in relation to precisely the same decision involving the same process in the administrative context.
Rationality does not conceive of differing thresholds. It cannot be suggested that the decision that would be irrational in an administrative law setting might mutate into a rational decision if the decision being evaluated was an executive one.
The separation of powers has nothing to do with whether a decision is rational. In these circumstances the principle of separation of powers is not of particular importance in this case.
Either the decision is rational or it is not.
Separation of Powers
What becomes important in assessing the task of courts when faced with the invocation of the doctrine of separation of powers appears to be less an emphasis about the doctrine and more about how a court works within the confines of the doctrine to promote a better dialogue between the legislature, executive and the courts.
In turn the task should be directed to improve the principle of democratic accountability of public institutions and their commitment to constitutional rights. This particular submission is luminously highlighted in the instructive article of Williams referred to earlier, in which she compares the approach of the German and South African Constitutional Courts, the latter in Mazibuko and the former in a case known as Hartz IV. This case concerned a review of social legislation which was introduced in Germany.
The court was required to evaluate social legislation which introduced new social benefits. In its judgment the German Constitutional Court, engaged in a detailed examination of the evidence regarding the legislature's methodology in determining various social benefits, reviewed the calculations thereof and assessed whether both the initial calculations and subsequent changes were empirically justified and therefore plausible.
Without an express constitutional provision of socio and economic rights in the governing constitutional text, the court worked with the fundamental right to human dignity in Article 1 1 of the German Constitution and found that the mandate of the court was to test whether a transparent calculation of a minimum level of subsistence had been provided with the new benefits and whether these new benefits could be justified in terms of the constitutional principle of dignity as the Court articulated it.
A comparison of the decisions in Mazibuko and Hartz IV reveals that, in both cases, courts were faced with the invocation of the doctrine of separation of powers.
But the doctrine is not unambiguous and does not come to the courts in a neatly creased and folded manner. This latter belief suggests an interesting question: Is there a conflict between the basic aims of constitutional government and the goals and methods of modern public administrators? Responses to this question vary on a continuum from those who view civil servants as "power-mad, undemocratic minions of satanic, un-American forces" to those who view them as all-benevolent, responsive servants of the public, possessing the wisdom of Plato's philosopher-kings.
The answer to our question lies somewhere between the two extremes Hill and Hebert Trying to answer this question, Herbert McClosky surveyed several high-level federal administrators. He wanted to learn their attitude about several democratic ideals such as limited government and the right to counsel McClosky His results created considerable controversy because many respondents a little more than 25 percent did not embrace the ideals Hill and Hebert McClosky's results did not convince some critics, however, that public administrators held undemocratic attitudes.
As support, his critics argued that his survey statements described abstract theoretical possibilities, not actual situations, related to the civil servants' actual work. They also asserted that numerous structural and legal rules check public administrators when making and carrying out activities that concerned the public Hill and Hebert These rules may be substance rules that represent the core mission of the agency and are the standards followed when processing clients according to agency procedures.
Examples include police department arrest and booking procedures and welfare eligibility criteria. Some scholars believe, however, that too many rules work to constrain public administrators. Consequently, some administrators often ignore the lesser rules as a way to conserve time so that they can accomplish the overall agency mission. An example might be the willingness of the police not to pursue speeders who are five miles over the speed limit Prottas Prottas also contends that, instead of constraining the public administrator, numerous rules contribute to the use of discretion that can result in the withholding of benefits.
Public administrators can also become obsessed with departmental decisions and precedents despite the injustice or hardship they may cause individuals.
As a result, administrators often develop indifference toward the feelings of their clients. Their enthusiasm for regulations and formal procedure coupled with their fixation on their department has two major repercussions.
First, administrators do not consider the government as a whole. Second, employees often fail to remember the proper relations between the governors and the governed.
Separation of Powers | Legislative, Executive, Judicial
Consequently, they violate an essential democratic principle Robson Thus, while some believe that the regulatory demands of the agency limit bureaucratic decision making, others see a quite different picture. So far, we have presented a negative outlook toward the values of the public administrator. Please do not construe this as an effort to portray the administrative agency as an unnecessary part of the public sector.
After all, as far back as Woodrow Wilson, scholars and practitioners recognized that the administrative sector played important roles in our government. For example, public agencies support the functions of the executive branch, alleviate the onus of a crowded judicial docket, and carry out the laws the legislative branch initiates.Legislative, Executive and Judicial Control Over Administration
Additionally, some scholars and analysts believe that many agencies are client centered, believe in client participation, and represent the citizenry Waldo Still others argue that the public bureaucracy protects constitutionalism because of efforts to perform public service and represent clients Long In conclusion, while consistent sentiment exists to reduce the public administrative sector, we believe that a reduced role would entail serious risks.
In brief, the Reagan administration and Congress approved several changes that significantly deregulated the industry that allowed institutions to benefit from a strong real estate market when making loans to real estate developers. When the housing market cooled, however, many commercial real estate developers experienced serious problems. Eventually the federal bailout of the failed savings and loans industry cost taxpayers hundreds of billions of dollars. Today, many are concerned that the Enron bankruptcy will also eventually cost taxpayers if the federal government attempts to alleviate the financial losses suffered by the company's employees.
When waste, fraud, and abuse do occur, the public wants to know why government procedures were lax. Thus, citizen demands and concerns lead to bigger government. So maybe the problem is not the reduction of administrative power, but its control. Therefore, scholars debate it and do not accept responses without significant retorts. Some will ask, for example, whose values are we talking about. Others will say that the passage of time has dated identified values.
After all, the framework in which we judge someone's values differs from one culture to the next and from one era to the next Gardner3. Many treatments of the question suggest, however, that democratic norms are important. Yet what are these democratic norms, and how can we apply them to the administrative sector?
Redford, a noted scholar of public administration, wrote that a slate of standards based on the democratic principles espoused in our Constitution exists. Voting procedures range from the formal procession of the division or teller vote in the British House of Commons to the electric voting methods employed in many U.
Another point of difference among legislatures concerns their presiding officers. These are sometimes officials who stand above party and, like the speaker of the British House of Commons, exercise a neutral function as parliamentary umpires; sometimes they are the leaders of the majority party and, like the speaker of the United States House of Representatives, major political figures; and sometimes they are officials who, like the vice president of the United States in his role as presiding officer of the Senate, exercise a vote to break ties and otherwise perform mainly ceremonial functions.
Legislative parties are of various types and play a number of roles or functions. In the United States House of Representatives, for example, the party is responsible for assigning members to all standing committees; the party leadership fills the major parliamentary offices, and the party membership on committees reflects the proportion of seats held by the party in the House as a whole. It is often said that the 20th century dealt harshly with legislatures, leading to executive aggrandizement.
Certainly, executives in most countries have assumed an increasingly large role in the making of law, through the initiation of the legislation that comes before parliaments, assemblies, and congresses, through the exercise of various rule-making functions, and as a result of the growth of different types of delegated legislation. It is also true that executives have come to predominate in the sphere of foreign affairs and, by such devices as executive agreements, which are frequently used in place of treaties, have freed themselves from dependence upon legislative approval of important foreign-policy initiatives.
Moreover, devices such as the executive budget and the rise of specialized budgetary agencies in the executive division have threatened the traditional fiscal controls of legislatures.
This decline in legislative power, however, is not universal. The United States Congress, for example, has preserved a substantial measure of its power. Indeed, congressional oversight of the bureaucracy is an area in which it has added to its power and has developed new techniques for controlling the executive.
The difficulties of presidents with legislative programs of foreign aid and the perennial congressional criticism of executive policies in foreign affairs also suggest that Congress continues to play a vital role in the governing process. The executive Political executives are government officials who participate in the determination and direction of government policy. They include heads of state and government leaders— presidentsprime ministerspremiers, chancellorsand other chief executives—and many secondary figures, such as cabinet members and ministers, councillors, and agency heads.
By this definition, there are several thousand political executives in the U. The same is true of most advanced political systems, for the making and implementation of government policy require very large executive and administrative establishments. In presidential systems, such as in the United States, the president is both the political head of the government and also the ceremonial head of state.
In parliamentary systems, such as in Great Britain, the prime minister is the national political leader, but another figure, a monarch or elected president, serves as the head of state.
In mixed presidential-parliamentary systems, such as that established in France under the constitution ofthe president serves as head of state but also wields important political powers, including the appointment of a prime minister and cabinet to serve as the government. The manner in which the chief executive is elected or selected is often decisive in shaping his role in the political system.
Thus, although he receives his seals of office from the monarch, the effective election of a British prime minister usually occurs in a private conclave of the leading members of his party in Parliament. Elected to Parliament from only one of several hundred constituencieshe is tied to the fortunes of the legislative majority that he leads.
By contrast, the U.
Even when the opposition party controls the Congress, his fixed term and his independent base of power allow him considerable freedom of maneuver. These contrasts explain many of the differences in the roles of the two chief executives.
The British prime minister invariably has served for many years in Parliament and has developed skills in debate and in political negotiation. His major political tasks are the designation of the other members of the cabinet, the direction of parliamentary strategy, and the retention of the loyalty of a substantial majority of his legislative party.