Political Institutions: Legislature, Executive, Judiciary

Legislature

Governing, as we have seen, is about making decisions which affect the lives of large numbers of people. Some of these decisions require new laws or changes to existing laws to bring them into effect so that the individuals and/or groups to whom they apply become aware of the government’s wishes and requirements. In a democratic system of government this formal power to make the law (i.e. to legislate) is vested in a legislative body (the legislature) which is elected either wholly or partly by the people. As indicated above, this process of choosing a representative decision-making body by popular election is a central feature of the democratic approach to government.

Leaving aside for one moment the relative power of the legislative and executive branches of government, it is possible to identify a number of common features which apply to legislatures and the legislative function in most, if not all, democratic states. These include the following:

• A bicameral legislature, that is, a legislature with two chambers: an upper house and a lower house, each with specific powers and roles in the legislative process.In most countries each chamber comprises representatives chosen by a separate electoral process and hence may be dominated by the same party or different parties or by no single party, depending on the electoral outcome. For a legislative proposal to be accepted, the consent of both chambers is normally required.

This is one of the many checks and balances normally found in democratic systems of government.

• A multi-stage legislative process involving the drafting of a legislative proposal, its discussion and consideration, where necessary amendment, further debate and consideration and ultimate acceptance or rejection by either or both legislative chambers. Debates on the general principles of a proposed piece of legislation would normally involve all members of each chamber, whereas detailed discussion tends to take place in smaller groups or committees.
• An executive-led process, that is, one in which most major legislative proposals emanate from the executive branch of government. In a presidential system of government (e.g. the USA) the chief executive (the President) is normally elected separately by the people and is not part of the legislature (in other words there is a ‘separation of powers’). In a parliamentary system (e.g. the UK) members of the executive may also be members of the legislative body and hence may be in a position to control the legislative process.
• Opportunities for legislative initiatives by ordinary representatives, that is, arrangements which permit ordinary members of the legislative assembly to propose new laws or changes to existing laws. In practice such opportunities tend to be limited and dependent to a large degree for their success on a positive response from the political executive.
• Opportunities to criticize and censure the government and, in some cases, remove it from office (e.g. through impeachment) this is a vital function within a democratic system of government in that it forces decision makers to defend their proposals, explain the logic of their actions and account for any mistakes they may have made. Opposition parties play an important role in this context with in the legislative body and through media coverage can attack the government and articulate alternative views to the wider public. Specialist and Standing Committees for scrutinizing legislation and the day-to-day work of the executive branch of government also usually exist in democratic regimes.
• Control of the purse strings, that is, the power to grant or deny government the money required to carry out its policies and legislative program. In theory this is a formidable power, given that no government can operate without funds. In practice the power of the legislature to deny funding to a democratically elected government may be more apparent than real and, where necessary, compromise tends to occur between the executive and legislative branches of government.

As will be evident from the comments above, legislating is a complex and time consuming process, offering numerous opportunities for individuals and groups both within and outside the legislative body (e.g. pressure groups) to delay and disrupt the passage of legislation. While no government can guarantee to achieve all its legislative aims, there is a cultural expectation in a democracy that, as far as possible, promises made before an election will be put into effect at the earliest opportunity by the democratically elected government. Such an expectation usually provides the incumbent administration with a powerful argument for legislative support on the occasions when it is confronted with intransigence within the legislative assembly or hostility from outside sectional interests.

Executive

Governing is not only about making decisions; it is also about ensuring that these decisions are put into effect in order to achieve the government’s objectives. Implementing governmental decisions is the responsibility of the executive branch of government.

In modern states the term ‘the executive’ refers to that relatively small group of individuals chosen to decide on policy and to oversee its implementation; some of these individuals will hold political office, others will be career administrators and advisers, although some of the latter may also be political appointees. Together they are part of a complex political and administrative structure designed to carry out the essential work of government and to ensure that those responsible for policy making and implementation are ultimately accountable for their actions.

The policy-making aspect of the executive function is normally the responsibility of a small political executive chosen (wholly or in part) by popular election. Under a presidential system of government, the chief executive or President is usually chosen by separate election for a given period of office and becomes both the nominal and political head of state. He/she subsequently appoints individuals to head the various government departments/ministries/bureaux which are responsible for shaping and implementing government policy. Neither the President nor the heads of departments normally sit in the legislative assembly, although there are sometimes exceptions to this rule (e.g. the Vice-President in the United States).

In contrast, in a parliamentary system the roles of head of state and head of government are separated, with the former usually largely ceremonial and carried out by either a president (e.g. Germany, India) or a monarch (e.g. UK, Japan). The head of government (e.g. Prime Minister), while officially appointed by the head of state,is an elected politician, invariably the head of the party victorious in a general election or at least seen to be capable of forming a government, possibly in coalition with other parties. Once appointed, the head of government chooses other individuals to head the different government departments/ministries and to be part of a collective decision-making body (e.g. a Cabinet) which meets to sanction policy proposals put forward through a system of executive committees and subcommittees (e.g. Cabinet Committees). These individuals, along with the head of government, are not only part of the executive machinery of the state but also usually members of the legislative assembly and both ‘individually’ and ‘collectively’ responsible to the legislature for the work of government.

The day-to-day administration of government policy is largely carried out by non-elected government officials (sometimes referred to as civil servants or bureaucrats) who work for the most part in complex, bureaucratic organisations within the state bureaucracy. Apart from their role in implementing public policy, government officials help to advise ministers on the different policy options and on the political and administrative aspects of particular courses of action. Needless to say, this gives them a potentially critical role in shaping government policy, a role which has been substantially enhanced over the years by the practice of granting officials a significant degree of discretion in deciding on the details of particular policies and/or on how they should be administered.

Whereas politicians in the executive branch of government tend to be transitory figures who come and go at the whim of the head of government or of the electorate most, if not all, officials are permanent, professional appointees who may serve a variety of governments of different political complexions and preferences during a long career in public administration. Whatever government is in power, officials are generally expected to operate in a non-partisan (i.e. neutral) way when advising their political masters and when overseeing the implementation of government policy. Their loyalty in short is to the current administration in office,

a principle which helps to ensure a smooth transition of government and to guarantee that the upheaval caused by a general election does not prevent the business of the state from being carried out as usual.

Judiciary

Governing is not just about making and implementing laws; it is also about ensuring that they are applied and enforced; the latter is essentially the role of the third arm of government, namely the judiciary and the system of courts. Like political institutions, legal structures and processes tend to a degree to be country specific and vary according to a number of influences including history, culture and politics. For example, while some states have a relatively unified legal system, others organised on a federal basis usually have a system of parallel courts adjudicating on federal and state/provincial law, with a Supreme Court arbitrating in the event of a dispute. In some countries a proportion of the judges may be directly or indirectly elected by the public, in others they may be appointed by government and/or co-opted by fellow judges. Business students should make themselves familiar with the legal arrangements within their own country. In this section we look briefly at the judicial function as related to the concept of democracy.

Whereas in total itarian systems of government the judiciary is essentially the servant of the ruling élite (e.g. the ‘party’), in a democracy it is an accepted principle that there should be a separation between the judicial function and the other two branches of government in order to protect the citizen from a too powerful state. This notion of an impartial and independent judiciary, free to challenge the government and to review its decisions, is regarded as one of the hallmarks of a democratic system of government; a further manifestation of the doctrine of the separation of powers.

In practice of course, notions of judicial independence and role within the democratic political process tend to be the subject of certain amount of debate, particularly in countries where senior appointments to the judiciary appear to be in the gift of politicians (e.g. Supreme Court judges in the United States are nominated by the President with the consent of the Senate) or where individuals with judicial powers also have an executive and/or legislative role (e.g. the Lord Chancellor and Home Secretary in Britain). Equally there are questions over the degree to which the courts should have the power to review the constitutionality of decisions made by a democratically elected government. In the United States, for example, the Supreme Court has a long-established right to declare a law void if it conflicts with its own interpretation of the American constitution. In contrast in Britain, the legal sovereignty of Parliament and the absence of a codified written constitution push the judiciary towards trying to interpret the intentions of the framers of government legislation and any legal decision unwelcomed by the government can be reversed by further legislation. That said, it is interesting to note that in recent years there has been an increased willingness on the part of the British judiciary to review administrative decisions, particularly those made by ministers.

Other aspects, too, call into question how far in modern democratic states there is a total separation between the different arms of government (e.g. increasing use of administrative courts/tribunals) and whether it makes sense to rigidly distinguish between rule making and rule adjudication. Certainly some of the past judgments by the United States Supreme Court (e.g. in the area of civil rights) demonstrate that the courts can be influential in shaping decisions on major issues of policy and suggest that the judiciary are susceptible to influences from their own values or to general societal pressures. In short it seems fair to suggest that under current legal arrangements, legal adjudication is not far removed from the world of politics; arguably we may like to perpetuate the myth of an entirely separate and independent judiciary since this is a necessary aspect of the stability of many existing political systems.