Chapter Thirteen
Executive Authority
Dr Khalil Hussein
Professor at Lebanese University
Director of studies at Lebanese Parliament
In political science and constitutional law, the executive is the branch of government responsible for the day-to-day management of the state. In many countries, it is referred to simply as the "government", but this usage can be confusing in an international context. Under the doctrine of the separation of powers, the executive is not supposed to make laws (role of the legislature), nor to interpret them (role of the judiciary): in practice, this separation is rarely absolute. The executive is identified by the Head of Government. In a presidential system, this person (the President) may also be the Head of State, whereas in a parliamentary system he or she is usually the leader of the largest party in the legislature as is most commonly termed the Prime Minister (Taoiseach in the Republic of Ireland, (Federal) Chancellor in Germany and Austria). In France, executive power is shared between the President and the Prime Minister and this system has been reproduced in a number of former French colonies, while Switzerland and Bosnia and Herzegovina likewise have collegiate systems for the role of Head of State and Government. The Head of Government is assisted by a number of ministers, who usually have responsibilities for particular areas (e.g. health, education, foreign affairs), and by a large number of government employees or civil servants[1].
Head of government
The head of government is the chief officer of the executive branch of a government[2].
In parliamentary systems, the head of government is generally the Prime Minister, who usually heads a cabinet which most rely on the direct or indirect support of parliament. In essence, the Prime Minister is the leader of the largest elected party in a parliament. In Westminster Systems, like the United Kingdom, Canada or Australia, executive authority is nominally and theoretically vested in the Sovereign. However the Sovereign does not actively exercise executive powers, since this is performed by a Prime Minister and a Cabinet on her behalf.
Other countries have presidential systems, such in the United States of America. In Article II, Section 1, of the United States Constitution it is stated that, "The executive power shall be vested in a president of the United States of America." This makes the president the head of the executive branch of the federal government. To become president, a person must be at least thirty-five years old, a natural born American citizen, and a resident of the United States for at least fourteen years.
Semi-presidential systems may exist in some countries, and often have both a President and a Prime Minister. Such systems can be seen in countries such as France. However, the balance of power between the two heads of government may vary, and it is dependent on the country in question. Sri Lanka has witnessed a bitter power struggle between its President and Prime Minister, particularly due to a difference in political parties.
Role of the executive
The exact role of the executive depends on the constitution of the country. Not all of the following functions need be exercised by the central executive, particularly in federal countries: they may instead be exercised by local government[3] .
A good analogy is the owner - architect - contractor relationship. The Legislative branch acts as the architect to draw up the plans and specifications according to the wishes of the people who elected them, (The owners) and exercises oversight to make sure the Executive Branch acts by its authority with its advice and consent. The Executive branch executes the instructions given it by the Legislature, but has no power to act on its own without instructions, because that would put it in the position of acting legislatively.
The Laws issued by the Legislature must be complied with exactly. It is the Presidents job to Preserve, protect and defend them while executing them faithfully and it's the Judiciary's job to act as competent administrators to see that all parties are in compliance with the Constitution.
The main function of the Executive Branch is to do what it is instructed to do by Legislation produced by the Legislative Branch: the Executive Branch collects taxes and customs duties as instructed by the Legislative Branch and uses the money appropriated by the Legislative Branch to pay the salaries of government employees and for other government expenditure. As instructed by the Legislative Branch, it assures the internal and external security of the state by maintaining a police force and armed forces when instructed to do so by the Legislative Branch according to its rules[4].
The Executive Branch acting by and with the advice and consent of the Legislative Branch is also responsible for executing the regulating legislation drafted by the Legislative Branch to guide the many sectors of the economy, notably
· the Military
· the labor force (e.g. by enforcing labor laws)
· agriculture
· transportation
· energy provision
· housing and construction (e.g. by issuing building permits)
· commerce in general (e.g. by enforcing minimum standards, and notably by issuing a currency)
The Executive Branch may provide health and education services: regulating these areas as instructed by the Legislative Branch and operate nationalized industries, and promote research and culture.
Foreign relations
Even by fairly large countries such as France, Germany or the United Kingdom. No country has diplomatic missions in every sovereign state, and small countries. An important symbolic role of the executive is to represent the country abroad. Under international law, this responsibility falls on the Head of State and the Head of Government, who usually delegates some of the day-to-day responsibilities to a foreign minister. Holders of these posts have automatic diplomatic immunity abroad while they are in office, that is to say that they can only be tried before the courts of their home country (or, exceptionally, before an international court).
In practice, this function of the executive is often delegated in part to the executive of another country, such as Andorra or San Marino have only one or two embassies. Despite their symbolic importance, foreign relations occupy only a small portion of the human and financial resources of the executive: the budget of the United States Department of State in 2004 was only 0.7% of the total budget of the United States federal government.
Relation to the legislature
While the legislature is responsible for approving the laws of a state, it does not usually, on its own, have the capacity to enforce them, notably in terms of employees and other infrastructure. The necessity to enforce a law if it is to be effective imposes a degree of cooperation between the legislature and the executive: the legislature may vote "free beer for all", but the executive would be in its role to ask "who pays the brewer?" In many countries the executive has the power to veto some or all types of legislation, or at least to delay their approval by insisting on a longer debate of the consequences[5].
Under the Westminster system, the Prime Minister and other ministers are members of the legislature, and in other parliamentary systems the executive is usually headed by the party or parties which control a majority in the legislature. This gives the executive some control over the legislation which is passed, but this control is rarely absolute in a democracy. In presidential systems, the executive and the legislature may be controlled by different political parties, a situation known as cohabitation: both sides must arrive at a compromise to allow the government to continue to function, although complete blockage is rare.
In general, the legislature has a supervisory role over the actions of the executive, and may replace the Head of Government and/or individual ministers by a vote of (no) confidence or a procedure of impeachment. On the other hand, a legislature which refuses to cooperate with the executive, for example by refusing to vote a budget or otherwise starving the executive of funds, may be dissolved by the Head of State, leading to new elections.
The legislature usually delegates some legislative power to the executive, notably to issue regulations or executive orders which complete a piece of legislation with technical details or points which might change frequently (e.g. fees for government services). The executive may also have powers to issue legislation during a state of emergency.
Relation to the judiciary
The Executive Branch acts by and with the advice and consent of the Legislation made by the Legislature and thus is subject to the Legislative Branch. (except in a dictatorship). The judiciary acts as a competent administrator to ensure compliance with the laws crafted by the Legislative Branch.
The laws which apply specifically to the executive are known as administrative law, although this should not be taken to imply that the executive is exempt from other laws such as human rights or the rules of war. The Executive Branch may be challenged in court for failure to comply with the decisions of the Legislative Branch. The idea of judicial review: is that the competent administrators in the judiciary have the responsibility to review compliance with Legislation wherever there is a party claiming injury. The Legislature Branch has the responsibility to supervise the execution of its laws and the compliance of the judiciary and the Executive branch with them.
The Legislature makes decisions and the Judiciary and the Executive Branch enforce its decisions with the help of the forces funded by the Legislature to enforce its laws (e.g. police force, prison service). The Legislative Branch is responsible for providing funding for courthouses, establishing and paying the salaries of judges: The Executive Branch is responsible for getting them built and staffed as instructed. The competent administration of the judicial system is the responsibility of the justice minister, also referred to as the attorney general.
The Legislative Branch makes laws and the Executive branch executes them as instructed. In the Department of Justice the Attorney General oversees the staff responsible for taking legal action in the public interest, for example enforcing Civil Rights, Public Safety, policing corporations, prosecuting them as any other criminal and protecting the interests of those who cannot defend themselves (e.g. children or the mentally handicapped). The authority to perform these functions is delegated by the legislature to be both the executive Branch and the judiciary as required. The executive is responsible for the day-to-day management after the Legislature decides to provid the necessary infrastructure and pay the necessary salaries.
Most countries have safeguards to protect the independence of the judiciary from the executive, such as the impossibility of the executive to dismiss a judge. Similar safeguards may apply to other categories of government employees, in order to allow them to conduct their functions without undue political pressure. In return, judges and government employees may be expected not to take part in active politics themselves. In the United States the Congress has all the power and the sole responsibility of removal by means of impeachment.
Local government
Individual states or provinces in a federal system have their own executives, legislatures and judiciaries in addition to the corresponding bodies at federal level. Even in non-federal systems, all but the smallest of countries have some form of local government, although legislative and (especially) judicial powers are often very limited. The distribution of executive powers between central and local government varies widely between different countries: for example, policing and education are local responsibilities in the United Kingdom but central responsibilities in France. An extreme example is Switzerland, where nationality, a central government responsibility in almost all other countries, is a matter for individual municipalities (albeit with federal minimum standards).
Local government may be funded through local taxes (often property taxes), through a grant from the central government or through a combination of the two. The head of the local executive of a municipality is usually known as the mayor; various terms exist for the head of the executive at other levels of local government. The local executive is usually supervised by an elected council, which is responsible for setting the rates of local taxes (where these exist, and often only to a limited extent) and for approving the budget of the local executive. The central government may also have a supervisory role, which may go as far as the power to dissolve the local government completely in exceptional cases[6].
As mentioned above, it is essential to consider the different roles of local (or State) government when comparing the roles of the executives in different countries: the provision of public education is an executive function whether it is provided by the central government (France), state governments (Germany), local education authorities (England and Wales) or school boards (United States).
Head of state
Head of state or Chief of state is the generic term for the individual or collective office that serves as the chief public representative of a monarchic or republican nation-state, federation, commonwealth or any other political state. His or her role generally includes personifying the continuity and legitimacy of the state and exercising the political powers, functions and duties granted the head of state in the country's constitution[7].
Constitutional models
Different countries have different executive systems but in essence four major, generalizing categories can be distinguished:
· the non-executive Head of State system in which the head of state does not hold any executive power and mainly plays a symbolic role on behalf of the state.
· the parliamentary system in which the head of state possesses theoretical executive power but the exercise of this power is delegated to a head of government.
· the presidential (or imperial) system in which the head of state is also the head of government and actively exercises executive power and,
· the semi-presidential system in which the head of state shares exercise of executive power with a head of government.
Non-executive heads of state
One form that the head of state role takes can be loosely called the non-executive head of state model. Its holders are excluded completely from the executive: they do not possess even theoretical executive powers or any role, even formal, within the government. Hence their states' governments are not referred to by the traditional parliamentary model head of state styles of His/Her Majesty's Government or His/Her Excellency's Government. Within this general category, variants in terms of powers and functions may exist. The king of Sweden, since the passage of the modern Swedish constitution (the Instrument of Government) in the mid 1970s, no longer has any of the parliamentary system head of state functions that had previously belonged to Swedish kings but still receives formal cabinet briefings monthly in the Royal Palace. In contrast, the only contact the Irish president has with the Irish government is through a formal briefing session given by the Taoiseach (prime minister) to the President. However, he or she has no access to documentation and all access to ministers goes through the Department of An Taoiseach (prime minister's office)[8].
Parliamentary system
In parliamentary systems the head of state may be merely the nominal chief executive officer of the state, possessing theoretical executive power[9] (hence the description of the United Kingdom monarch's government as His/Her Majesty's Government, a term indicating that the government acts on H.M.'s behalf and not parliament's). In reality however, due to a process of constitutional evolution, powers are usually exercised by a cabinet, presided over by a prime minister or President of the Government who is answerable to the legislature (e.g. parliament). This answerability requires that someone be chosen from parliament who has parliament's support (or at least not parliament's opposition - a subtle but important difference). It also gives parliament the right to vote down the government, forcing it either to resign or seek a parliamentary dissolution. Governments are thus said to be responsible (or answerable) to parliament, with the government in turn accepting constitutional responsibility for offering constitutional Advice to the head of state.
In parliamentary monarchies considering themselves democratic, the legitimacy of the unelected head of state typically derives from the tacit approval of the people via the elected representatives. Accordingly, at the time of the Glorious Revolution, the English Parliament acted of its own authority to name a new King and Queen (joint monarchs Mary II and William III); likewise, Edward VIII's abdication required the passage of a law in the parliament of each of the Commonwealth Realms. In monarchies with a written constitution, the position of monarch is a creature of the Constitution and could quite properly be abolished through a democratic procedure of constitutional amendment, although there are often significant procedural hurdles imposed on such a procedure (as in the Constitution of Spain).
In reality, numerous variants exist to the position of a head of state within a parliamentary system. The older the constitution, the more constitutional leeway tends to exist for a head of state to exercise greater powers over government, as many older parliamentary system constitutions in fact give heads of state powers and functions akin to presidential or semi-presidential systems, in some cases without containing reference to modern democratic principles of accountability to parliament or even to modern governmental offices. For example, the 1848 constitution of the Kingdom of Italy was sufficiently ambiguous and outdated by the 1920s to give King Victor Emmanuel III leeway to appoint Benito Mussolini to power in controversial circumstances.
Some Commonwealth parliamentary systems combine a body of written constitutional law, unwritten constitutional precedent, Orders-in-Council, letters patent, etc. that may give a Head of State or their representative additional powers in unexpected circumstances (such as the dismissal of Australian prime minister Gough Whitlam by Governor-General Sir John Kerr.)
Other examples of heads of state in parliamentary systems using greater powers than usual, due either to ambiguous constitutions or unprecedented national emergencies, include the decision by King Léopold III of the Belgians to surrender on behalf of his state to the invading German army in 1940, against the will of his government. Judging that his responsibility to the nation by virtue of his coronation oath required him to act, he believed that his government's decision to fight rather than surrender was mistaken and would damage Belgium. (Leopold's decision proved highly controversial. After World War II, Belgium voted on whether to allow him back on the throne. It did so, but because of the ongoing controversy he ultimately abdicated.)
Presidential system[10]
Some constitutions or fundamental laws provide for a head of state who is not just in theory but in practice chief executive, operating separately from, and independent from, the legislature. This system is sometimes known as a presidential system because the government is answerable solely and exclusively to a presiding, acting head of state, and is selected by and on occasion dismissed by the head of state without reference to the legislature. It is notable that some presidential systems, while not providing for collective executive answerability to the legislature, may require legislative approval for individuals prior to their assumption of cabinet office and empower the legislature to remove a president from office (for example, in the United States of America). In this case the debate centres on the suitability of the individual for office, not a judgement on them when appointed, and does not involve the power to reject or approve proposed cabinet members en bloc, so it is not answerability in the sense understood in a parliamentary system.
Some presidential systems may also include a prime minister but as with the other ministers they are responsible to the President, not the legislature. In many such instances the office is of minimal political importance, sometimes even held by some administrative technocrat rather than a politician. A prime minister in a presidential system lacks the constitutional and political dominance of a prime minister in a parliamentary system and is often seen as simply a politically junior figure who may run the mechanics of government while allowing the president to set the broad national agenda. One could say that, whereas in parliamentary systems a prime minister may be master of his or her party and the government, prime ministers in presidential systems are usually the servants, with the Head of State the master of the government who can employ or terminate anyone, including the prime minister, at will.
Presidential systems are a notable feature of constitutions in the Americas, including those of the United States, Brazil, and Mexico. Most presidents in such countries are selected by democratic means (popular direct or indirect election); however, like all other systems, the presidential model also encompasses people who become head of state by other means, notably through military dictatorship or coup d'état, as seen in South American, Middle Eastern, and other presidential regimes. Some of the characteristics of a presidential system (i.e., a strong dominant political figure with an executive answerable to them, not the legislature) can also be found among absolute monarchies, parliamentary monarchies, and Communist regimes, but in most cases of dictatorship apply their stated Constitutional models in name only and not in political theory or practise[11].
In the 1870s in the United States, in the aftermath of the impeachment of President Andrew Johnson and his near-removal from office it was speculated that the United States, too, would move from a presidential system to a semi-presidential or even parliamentary one, with the Speaker of the House of Representatives becoming the real center of government as a quasi-prime minister. This did not happen and the presidency, having been damaged by three late nineteenth century assassinations (Lincoln, Garfield, and McKinley) and one impeachment (Johnson), reasserted its political dominance by the early twentieth century through such figures as Theodore Roosevelt and Woodrow Wilson.
Semi-presidential systems
Semi-presidential systems combine features of presidential and parliamentary systems, notably a requirement that the government be answerable to both the President and the legislature[12]. The constitution of the Fifth French Republic provides for a prime minister who is chosen by the president but who nevertheless must be able to gain support in the National Assembly. Should a president be of one side of the political spectrum and the opposition be in control of the legislature, the president is usually obliged to select someone from the opposition to become prime minister, a process known as Cohabitation. President François Mitterrand, a Socialist, for example was forced to cohabit with the neo-Gaullist (right wing) Jacques Chirac, who became his prime minister from 1986 -1988.
In the French system, in the event of cohabitation, the president is often allowed to set the policy agenda in foreign affairs and the prime minister runs the domestic agenda.
Other countries evolve into something akin to a semi-presidential system or indeed a full presidential system. Weimar Germany, for example, in its constitution provided for a popularly elected president with theoretically dominant executive powers that were intended to be exercised only in emergencies and a cabinet appointed by him from the Reichstag which was expected in normal circumstances to be answerable to the Reichstag. Initially, the President was merely a symbolic figure with the Reichstag dominant.
However, persistent political instability, in which governments often lasted only a few months, led to a change in the power structure of the Republic, with the president's emergency powers called increasingly into use to prop up governments challenged by critical or even hostile Reichstag votes. By 1932, power had shifted to such an extent that the German President, Paul von Hindenburg, was able to dismiss a chancellor and select his own person for the job even though the outgoing chancellor possessed the confidence of the Reichstag while the new chancellor did not. Subsequently President von Hindenburg used his power to appoint Adolf Hitler as Reich chancellor without consulting the Reichstag.
Single-party states
Since real political power belongs to the head of the sole legal party (often a communist party), in certain states under constitutions inspired by the former Soviet republics there was no formal office of head of state, but rather the head of the legislative 'soviet' branch of power was officially considered the head of state. In the Soviet Union this office had names Chairman of the Central Executive Committee of the USSR and Chairman of the Presidium of the Supreme Council as well as Chairman of the Central Executive Committee of the All-Russian Congress of Soviets in case of Soviet Russia (until 1922)[13].
This may even lead to an institutional variability, as in North Korea where after the presidency of party leader Kim Il Sung the office was vacant for years, the late president being granted the posthumous title (akin some ancient far eastern traditions to give posthumous names and titles to royalty) of president 'in eternity' (while all real power, as party leader, itself not formally for 4 years, was inherited by his son Kim Jong Il, initially without any formal office) until it was formally replaced on 5 September 1998 for ceremonial purposes by the office of the Chairman of the Presidium of the Supreme People's Assembly, while the party leader's post as Chairman of the National Defense Commission was simultaneously declared "the highest post of the state", not unlike Deng Xiaoping earlier in the People's Republic of China.
Complications with categorisation
While clear categories do exist, it is sometimes difficult to choose which category some individual heads of state belong to. Constitutional change in Liechtenstein in 2003 gave its head of state, the prince, unprecedented constitutional powers including a veto over legislation and power in theory to dismiss the cabinet. It could be argued that the strengthening of the prince's powers vis-a-vis the legislature has moved Liechtenstein into the semi-presidential category. Similarly the original powers given to the Greek president under the 1974 Hellenic Republic constitution moved Greece closer to the French semi-presidential model. And the theoretical power of the British monarch to dismiss his or her government at will would suggest that the United Kingdom should nominally belong to the semi-presidential category also. In reality, the category to which each head of state belongs is assessed not by theory but by practice. In practice no British monarch has forced a government from office since the early nineteenth century, while in reality the Greek Republic, even before the powers of the President of the Republic were curtailed in 1986, operated as a standard parliamentary system. Unless and until a Prince of Liechtenstein exercises the theoretical powers they now possess, the principality would still remain categorised as a parliamentary system.
Another complication exists with South Africa, in which the President is in fact elected by the legislature (like a Prime Minister) but also holds the title of President, serves for a fixed term, and is expected to be the nation's head of state. Nauru and Botswana are similar, both of which presidents, who are heads of state, are elected by the legislature.
[1] See Terence Daintith,The Executive in the Constitution: : Structure, Autonomy, and Internal Control,oxford university press,2002,p13.
[2]Douglas V, The Analysis Of Political Systems, Thomson Learning , 1959,ch 3&4.
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[3] See Regulatory takings implementation of Executive Order on government actions, Published by DIANE Publishing,2005.pp7-8.
[4] Chester I. Barnard ,The Functions of the Executive, Harvard University Press,2005.ch 5.
[5] See Robert Luce, Legislative Problems, The Lawbook Exchange, Ltd.1974,pp213-215.
[6]Fore more details see, Mackenzie Dalzell Chalmers, Local Government, Adamant Media Corporation,1998.
[7]Richard Hoyt, Head of State, Tor Books , 1986,p12.
[8] Examples of this category, invariably dating from the twentieth century, include:the President of Ireland. the King of Sweden (since 1975). the President of Germany. the Emperor of Japan (since 1947).
[9]Larry Johnston,For more details see , Politics: An Introduction to the Modern Democratic State,2ed , Broadview Press,1997.
[10] presidential in this context does not automatically imply a president but any head of state – elected, hereditary, or dictatorial - who presides. It is sometimes called the imperial model, without regard for the monarchic title emperor, rather referring to the luster.
[11] For more details see ,Douglas V. Verney ,The Analysis Of Political Systems. Routledge,2001.pp44-45.
[12]Robert Elgie ,Divided Government in Comparative Perspective, Oxford University Press,2004.
[13]Giovanni Sartori ,Parties and Party Systems: A Framework for Analysis, ECPR Press,1999,pp38-39.
