DOCTRINE OF SEPARATION OF THE POWERS

1- Historical Context The history of the separation of the powers has its roots in Aristotle, who had already mentioned a sort of separation of powers in Politics. But in fact the theory of the separation of powers came mainly through the philosophers during the Enlightenment. John Locke pointed to the theory of the division of the powers. According to him, the Legislative and the Executive could not be exercised by the same people, once we know about the human fragility. Montesquieu, with The spirit of laws, was who established the theory in its current form, with an executive, a legislative and a judiciary power. According to Montesquieu, the legislative power should be composed of a body that represents the peoples will. And the decisions should be taken by the executive power. He stresses the necessity of the existence of this separation because he believes that one in the power, without a control, could abuse it. He mentions that the power breaks the power and with these three powers controlling one another, that would be more possible to reach equilibrium. According to him, there would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals1. Regarding to this, the system of separation of the powers comes to ensure freedom, aiming to prevent tyranny and domination of a power over another. Therefore, this theory is considered to be essentially democratic. Indeed, there is no strict separation of powers, what means that for the modern state to reach its goals, it is essential to have a coordination of the powers. 2 Separation of Powers in the Brazilian Case The classical Separation of the Powers is based in three pillars, the Legislative, the Executive and the Judiciary Powers. They have limited functions. The first is permitted to create laws, the second will execute the laws created by the legislative power and the third will force the others to comply with pre-determined laws. In order to mention a concrete example, the Constitution of the Federative Republic of Brazil states in its second paragraph the Separation of Powers: Are Powers of the Republic, independent and harmonic in relation to each other, the Legislative, the Executive and the Judiciary 2(free translation based upon the original
1 2

Montesquieu, The spirit of the laws, Batoche Books, Kitchener, 2001, P. 173/174. Constitution of the Federative Republic of Brazil, 1988.

text). This clause is one of the so-called everlasting clauses (clusulas ptreas), which are not possible to be changed. Notwithstanding the essential function of the separation of the powers in the modern societies, its presence in the structure of power is not absolute. There are some interventions from each power in the others competences, what indicates the absence of pure powers into the systems. Concerning to the impurity of the systems, there are several situations (in the Brazilian case) capable to illustrate the mixed powers, such as the legislative role performed by the Executive Power through the edition of Provisory Measures (article 84 of the Brazilian Constitution) real laws edited by the President of the Republic, with pre-determined duration. The judiciary function is performed by the Legislative when the so-called Account Courts judges and analyzes the expenses of the other powers. CPI (Inquiry Parliamentary Commission) is an example that demonstrates how the Legislative could assume some functions inherent to the Judiciary Power. Finally it is possible to assure that the Judiciary is also assuming some functions that are originally beyond your own competences, for instance the case of purchasing goods or contracting services, what must follow a public purchasing process called Licitation, indicating activities typically from the Executive Power, namely taking decisions. The case above brings out the existence of concurrent competences between the Powers, despite of their formality separation in order to prevent deviations that could disturb the Equilibrium of Powers. 3 Separation of Powers in the Europe Union The European Union is, however, not a state, but despite of its different nature (supranational frame), the division of the powers is properly the same one observed in modern democratic States. Analyzing the Treaty on European Union, and especially the Title that deals about provisions on the institutions, it is clear that the European Union values the separation of the powers also as condition of democracy. The framework of its institutions, mentioned in the Article 13, first paragraph of the Treaty on European Union, is demanded to promote the EUs values drafted in the preamble, Articles 2 and 10 of the Treaty. The democracy is one of these values allocated in the Treaty. In the contemporary societies democracy is linked to the idea of Separation of the Powers. The Article 13 enrolls the Institutions of the European Union, such as the European Parliament (Legislative), the European Council (Executive), the Council (Legislative), the European Commission (Executive), the Court of Justice of the European Union (Judiciary), the European Central Bank, the Court of Auditors. The separation of the powers is formally delineated in the Treaty. The European Parliament jointly with the Council, assume Legislative and Budgetary functions, exercising political control and consultation (Art. 14). The European Council shall promote the development of the Union, defining its general political directions and priorities (Art. 15).

The article 17 shows the competences of the Commission, such as the promotion of the general interest of the Union, taking appropriate initiatives to that end, ensuring the application of the Treaties and other functions. According to its functions it is evident that the Commission assumes Executive Powers on the European Union. The Article 19 states that the Judiciary aims to ensure the observation of the law regarding to the interpretation and application of the Treaties. Not less important is the principle of the subsidiarity mentioned in the articles 4 and 5 of the Treaty on European Union. It brings out the possibility of the action of a Member State in areas in which the European Unions Institutions are not competent to acting. As democratic States, all the Members need to observe the Separation of Powers and if they act in cases filling gaps of the European Union, it is evident that the European Union will still have the separation of the powers. Notwithstanding the Separation of the Powers be one of the assumptions of the European Unions Treaties, there is some dispositions that weaken the Balance of Powers, jeopardizing the so-called Equilibrium of the Powers. The Article 13, second paragraph promotes the Division of the Powers establishing competences to each of them (Each institution shall act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them ). This article drafts also the principle of the mutual sincere cooperation between the Powers, what could attend more the interests of the Union (The institution shall practice mutual sincere cooperation). At the same time, the article 294, paragraph 2 of the Treaty on the Functioning of the European Union shows that the Commission, European Unions Executive Institution, shall submit a proposal to the European Parliament and the Council, initiating the legislative process. Acting like this, the Commission assumes classical Legislative Competences, fact that jeopardize the Balance of Powers. Besides this democratic deviance it is important to stress the lack of Competence of the European Parliament. The Parliament has limited functions in the European Unions framework. It is quite evident the supremacy of the Executive Institution of the European Union, namely the Commission, in comparison to the competences performed by the Parliament. However, the new Treaty of Lisbon enlarges the Powers of the Parliament, strengthening this important democratic Institution in the context of the European Union, throughout the increase of its competences. Therefore, despite of the numerous clauses stressing the importance of the Separation of the Powers within the European Unions Treaties, it is evident some deviances that jeopardize the classical Balance of Powers.