THE DIVISION OF THE POWER

By: Miguel Molina Díaz

HISTORICAL ANTECEDENTS: THE ABSOLUTISM

At the end of the Middle Ages, feudalism, as a social and political system, was replaced by a new form of government denominated absolutism, which is a sovereign monarchy without limits and control, that recognize to the subjects just the duty to obey. This historical moment in which the European monarchies use this form of government lasted from the 16th century to the 18th century. The theories of the Middle Ages related to the Mandate of Heaven assume that God gives the right to rule to the Church and to the institutions headed by the king. With the appearance of the Protestant Reform the Roman Catholic Church lost their political influence in Europe; this resulted in the strengthening of monarchies who concentrated the power. Other factor that favored absolutism was the growing national identity as a consequence of wars.

The central government became strong in the European countries and their territorial limits were determined with precision. Nicolas Machiavelli said that the ideal prince or ruler had to establish his absolute power to avoid political corruption and dissensions inside the state. For that purpose he suggested to use any means including violence. So absolutism recovered the power related to the church and politics in one person’s hand.

France was the best example of absolutism during the 17th and 18th centuries. Louis XIV, one of the most tyrannical rulers said: “I am the State” justifying his despotism and the unlimited use of his power. In the second part of the 18th century another French ruler, Louis XVI, applied financial reforms that were not successful in maintaining the economical stability for the lower class which couldn´t satisfy their basic needs. Meanwhile the royal family squandered the budget in their luxuries and opulent obsessions. This historical event marked the beginning of the French Revolution which was the first step of the Illustration in order to accomplish liberal democracy and the principle of the division of powers.

THE TREE BRANCHES IN THE MODERN STATE: LIBERALISM AND ILLUSTRATION

John Locke was the first philosopher who thought in liberal ideas as the necessity to divide the total and absolute power. Some years later the French political thinker and also philosopher Charles Baron de Montesquieu created the political theory about the separation of powers and that was an argument used by the French revolutionaries. Montesquieu considered that the main threat to freedom was the power, but as the latter was indispensable to prevent society from falling into anarchist, his solution was to divide it in three great pieces: The Legislative Power, in charge of creating the laws and the juridical framework of the nation; the Executive Power, in charge of administering the State under those laws and that juridical framework; and the Judicial Power, which was responsible for the administration of justice. This all resulted in a balance of powers and a system of brakes and counterweights where power limits power, so people’s liberties were protected. These powers or branches had to be independent from each other so one branch can’t interfere with another. The principle of the separation of powers and the right of the free determination of the people were the two great advantages of the Illustration. Jean Jacques Rousseau complemented this theory saying that the rules and standards have to come from the sovereign will of the people as a Social Pact, so the sovereignty belongs to the citizens.

This political theory was adopted at first by the North American constitutionalists. They established in their Constitution, which was the first one in the world, the three institutions that take on each of the three branches. They gave the legislative power to a Congress composed by two chambers or houses that write, discourse and vote the laws; the executive power was given to the President as the head of the government and the state, he is elected by the people for 4 years; and the Judicial Power was in charge of the Supreme Court as the head of the judicial system, this is a mechanism for the resolution of disputes.

The civilized world adopted the principle of the division of powers in their constitutions as the United States and that separation became the most important part of the liberal democracy. Today the majority of the countries have followed this principle of the Modern State to guaranty the peoples’ rights and freedom, and to avoid abuses of power. There are states where their political systems are called parliamentarian, presidential, or parliamentarian monarchy. These three types of states’ systems have their three branches divided from each other and the principle works correctly. The legislative branch can have one house or two houses. The first one has a parliament with just one house and the second one is made of two houses such as Senate and the House of Representatives, or Lords and Commons as in United Kingdom. Depending on the fact that the state is presidential or parliamentarian the executive branch can be in charge of the President or Prime Minister, the one who is the head of the government.

In Ecuador, after the last constitutional change, the legislative power has the National Assembly formed by 124 members; the executive power has the President of the Republic as the head of the National Government which also is formed by the vice-president, ministers and secretaries; and the judicial power is under the responsibility of the National Court of Justice and the National Council of the Judicature. In order to give more equilibrium and balance to the system, the Constitutional Assembly created two other powers that also have to be independent from each other. The first one is the Electoral Function in charge of guaranteeing the transparence of all the electoral processes, making sure that people’s intention is respected. And the last one is the Function of Transparency and Social Control which is in charge of running the Organisms of Control such as the Superintendences, and selects the best people to form these organisms.