M Jashim Ali Chowdhury
PhD Candidate (Legislative
Studies)
King’s College London, UK
Published in the SCLS Law Review, Vol 2 Issue 3 (Sept, 2019), at pp 56-65
Online: http://sclsbd.org/journal/
1. Introduction
Yale Maestro Bruce Ackerman wrote his famous 93-page thesis on New Separation of Power in Volume 113, No. 3 of the Harvard Law Review in the year of 2000. Since then the theory has drawn unprecedented curiosity in the academic arena. One of Ackerman’s former students at Yale, Steven G. Calabresi questioned him though a 55-page “Why Ackerman is Wrong” thesis in the Constitutional Commentary Volume 18, No. 1 the next year.[1] Six years later, in 2007, Professor Cindy Skach of Harvard Law School came out with a 29-page thesis on “Newest” Separation of Power in the International Journal of Constitutional Law (I.CON).[2] Ackerman attacked the U.S. model of Separation of Power and proposed a British-German influenced version of Constrained Parliamentarianism. Calabresi would vigorously defend the U.S. Presidentialism. Skach would rather propagate a French influenced version of Semi-presidentialism feeding his “Newest” Separation of Power.
Approach of this Research Note Series is not critical, nor is it an analytical one. It is rather a mere exploratory or descriptive attempt to introduce the beginners in legal studies with modern trends of research and innovation over Montesquieu[3] and Madison[4] and their theory of Separation of Powers and Checks and Balances. Apart from telling what the contemporary scholars of Separation of Power are thinking, this article does not attempt a story or argument of its own. As part of the series, I propose to explain Bruce Ackerman in this issue of SCLS Law Review. I intend to explain Steven G. Calabresi and Cindy Skach in the upcoming two issues of the SCLS Law Review.
2. Ackerman’s New Separation of Power
At the outset, Professor Bruce Ackerman accepts that qualities and successes of Separation of Power as exercised within the U.S. He is not asking the U.S. to scrape its age-old Separation of Power and adopt the new one of him. Rather, he is questioning our conventional perception of the U.S. system as the best prescription of liberal constitutionalism for the world outside.[5] Arguing against the avowed triumphalism[6] of the U.S. styled Separation of Power, Ackerman asks whether the U.S. model is prescribed for the “right reasons”.[7] He believes that Montesquieu’s Separation of Power as reflected in the U.S. constitution through James Madison’s Checks and Balances fails to cut across the three great goals of governance in our time –
1) Democratic legitimacy
2) Governance Efficiency &
3) Well Protected Liberal Rights.
If the challenges of legitimacy, efficiency and rights protection are considered, the American and the French version of presidential governments are normatively inadequate and practically flawed.[8] Rather a British and German influenced system of Constrained Parliamentarianism supported by appropriate principles and institutions that would prove effective. Ackerman therefore comes out with a New version of Separation of Power which travels beyond Montesquieu and Madison’s ‘trinitarian formulation’ (executive, legislature and judiciary) of Separation of Power.[9]
3. On Democratic Legitimacy
Ackerman felt that the U.S. model may not ensure democratic legitimacy for new democracies because it has a potential of ending up in constitutional debacle in novice democracies. Hence, within his scheme of constrained parliamentarianism, no single institution is granted a monopoly over law-making power. Rather than concentrating power in the Westminster style, he seeks to immunize a series of different institutional actors from direct parliamentary control. The separate powers include the people acting through series referendum, a judicial review, a weak federal and more powerful national, legislative house.[10]
3.1. Problems of the U.S. Presidentialism
Ackerman finds that the U.S. presidentialism model is faulty in several respects. During the period of political tension, it creates unnecessary crisis in governability. During the time of full control, it paves way to perilous exercise of power. It blocks even the consideration of many attractive aspects of proportional representation. And it promotes “personality cult” at the cost of ideals and principles.[11]
Crisis in Governability
The U.S.-French model will not be quick in vesting ‘full authority’ in a reformist political force in power. Executive, legislature and court would be elected or appointed through separate process and for separate duration. In the U.S. president would get four years, House of representative would get two years, Senate would get six years with a shuffle every two years and judges would get a life.[12] In France, President would get seven years, Parliament would get five years and judges would get nine years with a shuffle every three years.[13]
A political force seeking to inject significant changes in the system would need more than one - typically three successive - elections to get an absolute control over all the three branches of the state.[14] Compared to that, only one election in the U.K Westminster system may be enough for a political force to take hold over the executive and legislature. Absent the power of judicial review over legislation, Westminster system seems more convenient for fulfilment of popular demand.[15]
Now, during this period of ‘impasse’[16] and lack of full authority, president and legislature may engage in constructive consultation - which Ackerman calls the Madisonian Hope[17] - or indulge in an unhealthy power struggle and thereby a constitutional breakdown – which Ackerman calls the Linzian Nightmare.[18] Typically the new democracies blindly adopting the U.S. model is highly likely to fall into “crisis in governability.”[19]
Perils of Full Authority
Even at the time of Full Authority, the U.S. version would divulge into ‘a race against the constitutional clock’.[20] Since a president or party is in constant danger of losing their hard-earned Full Authority in the new election cycle within just two years, legislative program may be driven symbolic and populist tendencies. Compared to that the Westminster parliamentary system would generate a rather mid-term efficiency program of action. The new election cycle within next five years would make sure that government does not aim too distant-eyed goals. Rather mid-range targets with strong popular support are likely to sustain the wrath of a possible adverse government in the next election.[21] It must however be accepted that, if we ignore the problem of short distance sprit against the constitutional clock, the U.S. model of staggered elections will better protect long term reforms than the Westminster parliamentary system.
Exclusion of Proportional Representation
Many a constitution in the Europe has adapted their Westminster parliamentary system to introduce a system of Proportional Representation. Proportional representation involves distribution of parliamentary seats among the parties in proportion to the popular vote they receive in the election. It is seen that the Westminster parliamentary election based on first-paste-the-post system results in suppression of third parties by assigning them very few seats in parliament though their nationwide support is considerable.[22] The European constitutions based on the Proportional Representation makes it impossible to ignore the third parties in the formation of government and the coalition governments are usually formed on the basis of cross party alliances. This brings more legitimacy to the governance.
The Proportional Representation has its own dilemma as well. Government’s frequently fall due to rift between the coalition partners and smaller parties get veto over important policies of the majority party. Ackerman still believes that proportional representation’s greater legitimacy is worth the price, if the risk of government instability can be minimized through ‘clever constitutional engineering’.[23] A threshold like minimum percentage of popular support — ‘say four or five percent’ — for the parties to be called in coalition cabinet would help repair the instability.[24] Also, a requirement of ‘constructive no confidence’ may ask the opposition forces to affirmatively form a government before the old one is ousted.[25] This would prevent the opposition parties from over throwing a government simply because they don’t like the current one. The German system has been able to generate stability through these devices. On the same count, a Westminster parliament appears to be able to establish stable government if it accommodates the Proportional Representation system to generate more legitimacy in governance.
In contrast, the U.S. styled separation of power is hard wired and less suitable to go with Proportional Representation system. As long as the public cast separate votes for legislature and presidency, there will be periods of impasse as well as full authority. A system of proportional representation, if introduced in the legislature, is sure to create further instability within the House. Consider five to six parties having strong say in the Congress. Will such a Congress be able to challenge a President and come out with an alternative policy when there is situation of ‘Linzian Nightmare’ arising at a time of ‘impasse’? Ackerman therefore concludes that combination of the U.S. model with the Proportional Representation marks the highest toxic separation.[26]
Glorification of Personality Cult
Ackerman argues that U.S. presidentialism invites people to repose trust in personality driven president who would stand in footing different from his political party, seek to leave an impression of his own in the constitutional legacy of the country even if it requires him to collaborate and cooperate with the opposite party in control of the legislature.[27] Parliamentary model, on the other hand, would rely more party policies. Party or coalition in power would be quick in dumping a Prime Minister who is unpopular. Again, it will be suicidal for the Prime Minister to traverse the party line.[28] Parliamentary government thus “creates an incentive for the leadership, as well as the followership, to push in the latter direction”.[29]
3.2. Constrained Parliamentarianism
A forceful critique of the U.S. presidentialism, Ackerman however is not a die-hard fan of pure Westminster model either. He would rather prescribe a doctrine of “Constrained Parliamentarianism”. Constrained Parliamentarianism would enhance the legitimacy of governance by bringing an increased public participation in legislative process and an entrenched judicial review. Ackerman calls this a new trinitarian formulation of separation - parliament plus the people plus the court.[30]
Bringing the People back in action
While the U.S. Presidentialism stands unhelpful, does the Westminster parliamentarianism do well in restraining the authoritarian zeal of the majority? Ackerman thinks it a mistake to consider every single electoral victory as ‘a broad and deep mandate’ to do what the majority likes. The Westminster system unfortunately constitutionalises the mistake by awarding a plenary legislative power to the victors. Ackerman’s suggestion in this regard is to create a dualistic structure of law making which will bring people back in action. where matters of ‘central political importance’ will be dealt through a ‘higher law track’ which may involve direct popular participation through referendum (i.e., requirement of two-thirds or three forth majority plus referendum for amending written constitutions). The ‘normal law track’ would require simple majority in the floor.[31]
Now, the politicians must be restrained from excessive use or abuse of referendum as a tool to suppress the parliament and the opposition. Constitutions should make sure that referendums are called only in rare cases of central political importance. A parliament may be restrained from calling perhaps more than one referendum within its tenure. A special super-majority requirement may be required to call a referendum.[32] The deliberative quality of the referendum campaign must be ensured by making sure that a mobilized public support is generated through an informed and broad-based public deliberation between the proponents and opponents of a proposal. Both sides must have substantial funds to make their case so that a fluke of political strategy does not end in legislation.[33] An additional source of inspiration could be the Swiss practice which follows a principle of serial referenda. Switzerland requires two separate votes in referendum on fundamental or highly contested matters.[34]
Putting the Court as Constraint
While the U.K judiciary traditionally lacked the power of judicial review,[35] Ackerman would draw inspiration from the judicial review power of German constitutional court. It is important that political principles enacted by the people must not be thwarted by the legislature. To this end, the judiciary would work for bringing the people endorsed higher principles into ‘operational realities.’[36] In this regard, Ackerman feels that a German style system of appointment in the higher judiciary might serve the purpose of strong and impartial judicial review. Powered by the Proportional Representation system, the minority parties in German Bundestag held an effective veto over the judges’ appointment and the nomination of any ‘notorious party heck’ to the court is likely to fail.[37]
3.3. A One-and-a-Half Chamber Solution
Ackerman’s last bite in Democratic Legitimacy structure is a one-and-a-half chamber solution to bicameralism. He is convinced that is comparatively easy to build a robust second chamber in a non-federal state than in a federalist one.[38] One-and-a-half chamber formula is a practicable way of doing this.[39] A one-and-a-half chamber is different from bi-cameral chambers of equal power and authority. Ackerman prefers a dominant house of commons is supplemented by a relative weak upper chamber. Fundamental principles of constitutionalism would remain protected through the system of ‘higher law track’ of referendum mentioned earlier.
What happens if we discard the asymmetrical one-and-a-half chamber system and rather choose a perfectly symmetrical system of two co-equal chambers? Ackerman argues that in such situation, we will have to create a truly powerful and independent presidency. This is because both of the chambers in the legislature might seek to establish a prime minister and cabinet of their own, in case two different parties emerge victorious in the lower and upper chambers.[40]
Again, if a U.S. styled independent presidency is introduced, president might favour issues and interest of his own region over the whole nation.[41] Alternatively, some presidents might attempt to suppress ‘petty regional parochialisms’ in the guise of protecting national interest.[42] Not ending there, the fiercely divided bi-cameral legislature may not come out with viable alternatives to the presidential monopoly and we fall in the Linzian Nightmare. We have seen the same problem in relation to presidents with legislature constituted by proportional representation system which is discussed earlier.
4. Functional Specialisation
The second purpose of Bruce Ackerman’s New Separation is ensuring a politically impartial and professional bureaucracy and court that will work for implementation of legislative objectives.[43] Basic premise of the specialisation argument is that the power to make laws must be separated from the power to implement them.[44] Of course, ‘few questions (of legislative policy) ... imperatively require the attention of democratic statesmen’. Apart from those, vast area of administrative policies should be cordoned off for the career administrators. De-politicisation of the administration also helps attract talented people to the professional service to the state.[45]
The U.S. and Westminster system vis a vis Functional Specialisation
A U.S. president and a U.K. prime minister face very different bureaucratic system. A new government in the U.K. would need around a hundred bureaucrats, policy advisors and political consultants to take control over the administration. A new U.S., on the other hand would need around four thousand.[46] Yet the advantage is in Westminster prime minister’s favour.
Bureaucracy under the parliamentary system has powerful incentive to follow the new political boss and it is unhelpful for the administration to go beyond the government and address the political constituency. American bureaucracy on the other hand is struck in between the congress-president’s constant struggle for authority. Federal agencies survive by balancing between the conflicting forces by mobilising friendly interest groups in multifarious areas of the society and state.[47]
Presidential authority of executive law making and legislative power sharing in the U.S. carries with it a serious threat to rule of law. A president caught in the period of ‘impasse’ would attempt to legalise his political programs and implement it by politicizing the administration despite ‘whatever-laws-happen-to-be-on-the-books’. Prime minister, on the other hand, will usually be in the mode of ‘full authority’. It therefore is not much necessary for the prime minister to manipulate the administration for his legislative program. It is the people and parliament all that matters for him.[48]
Integrity and Regulatory Branch
Now, how to achieve an impartial and professionally specialised administration? Ackerman believes that public administration should have ‘an integrity branch which would oversee that bureaucratic decisions are not up for sale to the highest bidder.’[49] A regulatory branch on the other hand, would look for normative quality and inner discipline of public administration that encourages greater public access and transparency and judicial oversight.[50] The question is how to harness ‘a credible system’ of integrity and public participation and judicial review?[51] Ackerman finds constrained parliamentarianism far better serving the purpose than the American-style separation of power.[52]
The Integrity Branch
Ackerman refers to the public accounts committee, parliamentary standing committees from the Westminster system and also the special prosecutor system from the U.S. and special system as the examples of integrity branch institutions.[53] Also, the separate integrity branches from Hong Kong and Singapore could be successful if insulated properly.[54] Basic idea is that we should travel beyond our traditional trinitarian perception of separation and look for separate integrity branch armed with powers, budget and incentives to engage in ongoing oversight.[55]
The Regulatory Branch
Ackerman suggests marrying of the American Administrative Procedure Act to the Westminster system.[56] This is because the German Administrative Procedures Act emphasises exclusively on the abuse of individual rights. American Administrative Procedure Act on the other hand, pouts high emphasis on legitimation of the administrative decision making through constant public access, participation and input to the system.[57] Ultimate recourse to an independent judiciary for correction of administrative overreaching would also be there.
5. Protection of Liberal Rights
Democratic legitimacy wing of Ackerman’s project seeks to restrain the politicians from gaining full authority through a single election. It would not be able to prevent them forever from gaining the full authority through victories in successive election. Functional specialisation wing of the project seeks to insulate an informed and impartial administration from the political suppression by generating functional specialization in judges and bureaucrats. The third wing – protection of liberal rights- goes ‘deeper and seeks to impose ultimate limits on the legislative authority of democratically elected politicians.’[58] Ackerman offers two reasons for the protection scheme. Liberal rights protection is necessary for the protection of democracy itself and fundamental rights of the people themselves.
5.1. Representational Reinforcement through the Democracy Branch
Parties once in power seek to prevent further electoral test and restrict the peoples’ right to vote freely. Reigning politicians normally try to entrench their regime against popular reversals at the polls.[59] Electoral laws and Commission therefore would need to monitor campaign finance, fairness of congressional redistricting and honest counting of the peoples’ vote. Ackerman calls it Representational Reinforcement through Democracy Branch institutions of the state.
5.2. Fundamental Rights Protection:
The third purpose of separation of powers, according to Ackerman, is protection of liberal rights of the citizens. Ackerman builds up his New Separation Model for both of the two contradictory approaches to human rights protection - laissez faire approach and activist or distributive justice approach.
Laissez Faire Approach
The Laissez faire approach believes in self-enforcing aspect of human rights and wants the state to be as less interfering as possible. It looks down upon the hyperactivity of government in rights implementation regime.
Now, the U.S. model of Separation of Power may provide a sort of guarantee at the time of impasse but appear a danger during a time of full authority.[60] Once the system ripe into full authority, political forces may take retrogressive measures for human rights and entrench them before the next electoral cycle. Due to the complexity of the system, it may not be so easy to get rid of the retrogressive developments even if the government responsible suffers a backlash at the next election. Courts and bureaucracy hyper-politicised during the time of full authority will also be useless in resisting or altering retrogression.
In case of constrained parliamentarianism, the laissez-faire seems to fit well in the system. As mentioned earlier, the constrained parliament nurtures strong judicial review by a constitutional court, which will be “a front-line guardian of fundamental rights”. Even where the court fails, the electoral system in constrained parliamentarianism allows serious repercussion for the recalcitrant anti-human rights regime. A new pro-human rights government will have decisive advantage in quickly altering the retrogressive regime of the previous government.[61] As mentioned earlier, constrained parliamentarianism does not allow a Linzian nightmare of power struggle, hyper-politicization of bureaucracies and courts. Of course, the protection afforded by the U.S. styled separation during the period of impasse will be missing. But the reward of avoiding the entrenchment of illiberal policies by a ruthless Full Authority is ‘worth the risks of constrained parliamentarianism.’[62]
Activist Liberalism or Distributive Approach
Activist liberals believe in positive action by the government in promoting human rights. In such case, the systematic impasses of the U.S. styled separation would irk the activist liberals. Also, they will also not find the constrained parliamentarianism altogether satisfactory. Since the politicians look for re-election chance by favouring the rich and educated. Unless a successful popular mobilization is done – which is very time consuming and difficult, the electoral politics both in separation of power and constrained parliamentarianism would tolerate the entrenched injustices of the status quo.[63] Question of resource involved, the Courts will be inefficient to effectively guard the positive socio-economic rights of the citizens.[64] The only option for a liberal activist then would be to challenge the traditional trinitarianism and call for a Distributive Justice Branch.
Building a Distributive Justice Branch
The distributive justice branch will be designed to tackle the problems of implementation.[65] Constitution would need to guarantee a specified share of the public finance.[66] Also, the mandate of the branch would need to be drafted very cautiously. Instead of giving it “a free-wheeling mandate to deliver complicated goods and services, we should charge it with the narrow, but fundamental, task of providing a minimum cash grant to the target population.”[67]
6. Instead of An Epilogue
Ackerman’s purposes, rationale and design of the proposed New Separation being clear by now, its better we finish this note with dioramic presentation of his model in the next page:
Footnotes
[1]Steven G. Calabresi (2001), "The Virtues of Presidential Government: Why Professor Ackerman Is Wrong to Prefer the German to the U.S. Constitution". Constitutional Commentary. Vol 18 No 1, pp 51-104, University of Minnesota https://scholarship.law.umn.edu/concomm/1042
[2] Cindy Skach (2007), “The “Newest” Separation of Power”, International Journal of Constitutional Law (I.CON) Vol. 5, pp 93-121
[3] Montesquieu’s theory of Separation of executive, legislative and judicial power has formed the basis of the U.S. Constitution and modern constitutionalism till date.
[4] The 1787 formulation of Checks and Balances in the U.S. is credited to James Madison, one of the founding fathers of the U.S. Constitution.
[5] Bruce Ackerman (2000), The New Separation of Powers, Harvard Law Review, Vol 113 No 3, pp 633-725. Ackerman says: “It is one thing for Americans to try to make the best of their evolving scheme of checks and balances, quite another to hold it up as an inspir-ing beacon for liberal democrats everywhere. (p 642)
[6] Ibid, at p 634
[7] Ibid, at p 724
[8] Ibid, at p 725
[9] Ibid, at p 725
[10] Ibid, at p 685
[11] Ibid, at p 663
[12] Ibid, at p 649
[13] Ibid, at p 648
[14] Ibid, at p 643
[15] Ibid, at p 643
[16] Ibid, at p 644 (Period of Impasse is a time when the control over the executive, different houses of the legislature and even the judiciary belongs to ideologically opposing political forces)
[17] Madisonian Hope is defined as the embodiment of James Madison’s hope that the U.S. System of Checks and Balances would force the opposing political forces controlling different branches of the state to come to a constructive dialogue for resolving constitutional deadlock.
[18] Supra note 5, at p 645 (Linz argues that the U.S. separation of powers “has been one of America’s most dangerous exports”, especially in the south of its border. Linzian Nightmare is a situation where the frustrated presidents seeks to “disband intransigent congresses and install themselves as caudillos with the aid of the military and/or extraconstitutional plebiscites.” Linz’s arguments will be found in Juan J. Linz, Presidential or Parliamentary Democracy: Does It Make A Difference? In (Juan J. Linz & Arturo Valenzuela (eds) THE FAILURE OF PRESIDENTIAL DEMOCRACY Vol 1(3) (1994).
[19] Ibid, at p 646
[20] Ibid, at p 650
[21] Ibid, at p 650
[22] Ibid, at p 655
[23] Ibid, at p 655
[24] Ibid, at p 653
[25] Ibid, at p 654
[26] Ibid, at p 656
[27] Ibid, at p 659
[28] Ibid, at p 658-59
[29] Ibid, at p 663
[30] Ibid, at p 668
[31] Ibid, at p 664
[32] Ibid, at p 665
[33] Ibid, at p 667
[34] Ibid, at p 669
[35] Keep in mind that the Human Rights Act of the UK came into force in 1998. Constitutional Reform Act establishing a separate supreme court and limited judicial review came in 2005, while Ackerman wrote the thesis in 2000.
[36] Supra note 5, at p 667
[37] Ibid, at p 668
[38] Ibid, at p 670
[39] Ibid, at p 674
[40] Ibid, at p 672
[41] Ibid, at p 675
[42] Ibid, at p 676
[43] Ibid, at p 685
[44] Ibid, at p 686
[45] Ibid, at p 687
[46] Ibid, at p 700-701
[47] Ibid, at p 695-697, 699
[48] Ibid, at p 709
[49] Ibid, at p 691
[50] Ibid, at p 694
[51] Ibid, at p 694
[52] Ibid, at p 686
[53] Ibid, at p 692
[54] Ibid, at p 693
[55] Ibid, at p 691-92
[56] Ibid, at p 710-711
[57] Ibid, at p 694
[58] Ibid, at p 712
[59] Ibid, at p 714
[60] Ibid, at p 719
[61] Ibid, at p 719
[62] Ibid, at p 720
[63] Ibid, at p 720
[64] Ibid, at p 721
[65] Ibid, at p 721
[66] Ibid, at p 722
[67] Ibid, at p 722
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