Friday, April 19, 2013

FDA Talking Points Series: Checks and Balances

The ability of the U.S. Congress to impeach the U.S. President is one of the chief checks on the U.S. executive branch of government. (Photo source: icollector.com)
The Foundation for Democratic Advancement (FDA) takes the position that checks and balances of government bodies are consistent with a free and democratic society, because these checks and balances will help prevent government corruption and unreasonable impairment of human and political rights. In addition, checks and balances help ensure the voice of the people from electoral districts are reflected in governmental decisions through ensuring adequate voice of governmental bodies and providing mechanisms for public say on governmental decisions. In its electoral fairness audits, the FDA values sound and effective checks and balances between government bodies such as a parliament or house of representatives, executive, and judiciary, and checks and balances by the people and media on government.

Example of checks and balances

UNITED STATES

Summary of Findings

There are three branches of government, executive, bicameral congress, and judiciary, all with political power over government policy and legislation, and checks and balances. For example, the Congress's power over legislation is offset by the President's power to veto and propose legislation, and the judiciaries' power to overrule legislation which violates the Constitution (FDA Electoral Fairness Report on the United States, 2012, Revised 2013).

Note there is no legislative check and balance between the U.S. federal government and the U.S. national media. The U.S. bicameral congress can impeach the U.S. President. However, there are no mechanisms for citizen-initiated referendum on national issues or recall of federal elected officials.

Legislative Research

The U.S. federal government is divided into three branches: legislative (comprised of Congress and Senate), presidency (executive), and judiciary (U.S. Constitution, Article I, Sections 1, 2, 3; Article II, Section 2, 2012; Article III, Section 2).

The U.S. House of Representatives and Senate have legislative power; the President has the executive power of government; the judiciary has power cases involving the U.S. Constitution, laws, and treaties under its authority (U.S Constitution, Article I, Sections 1, 2012; Article II, Section 2; Article III, Section 2).

The President has the power to veto bills from the Congress and Senate, and the House of Representatives and Senate with two-thirds vote in each house have the power to overrule presidential vetoes (U.S. Constitution, Article I, Section 7, Clause 2, 2012).

Every bill must pass in the U.S. House of Representatives and Senate to become law (U.S. Constitution, Article I, Section 7, Clause 2, 2012).

The President, Vice President and other civil officers can be impeached by the U.S. Congress and Senate for convictions of treason, bribery, and other serious crimes and/or wrongdoing (U.S. Constitution, Article II, Section 4, 2012).

The U.S. Constitution may be amended by a two-third vote of both the U.S. Congress and Senate, or two-thirds of states which call for a convention on proposing amendments to the Constitution, and the amendments are ratified if three-fourths of the state legislatures support the amendments (U.S. Constitution, Article V, 2012).


CANADA

Summary of Findings

There are three branches of government, bicameral parliament, governor general, and judiciary. The Senate, comprised of those with mostly non-elected positions, has limited say over legislation, and the judiciary is restricted to constitutional and legislative oversight. Due to the tradition of strict party discipline, a party with majority of the Parliament has control over legislation. A Prime Minister and his Cabinet, with a majority of the Parliament, has excessive powers. The checks on the Prime Minister are limited to constitutional and legislative oversight and exercise of Parliament powers via the Supreme Court, a vote of no confidence, which is highly unlikely when the Prime Minister has a majority, the Senate, which can merely delay the passage of legislation, the Governor General, which has taken on a ceremonial role, and federal elections. The first-past-the-post system exacerbates the powers of the Prime Minister because it allows for a political party with minority popular electoral support to have majority control of the Canadian Parliament (FDA Electoral Fairness Report on Canada, 2013).

Note there is no legislative check and balance between the Canadian federal government and the Canadian national media. In addition, the Canadian Prime Minister cannot be recalled by the Canadian electorate nor are there federal provisions for citizen-initiated national referendums

Some of the Legislative Research

Executive Power

Powers of the Prime Minister

To appoint the Governor General of Canada (through whom the PM technically exercises most of his/her powers, some of which are listed below) (History, 2013).

To appoint Senators to the Canadian Senate (The Senate Today, 2013).

To appoint Supreme Court justices and other federal justices (Supreme Court Act, Section 4(2)).

To appoint all members of the Cabinet [to remove any member of the Cabinet] (Guide to the Canadian House of Commons, 2011).

To appoint the entire board of the Bank of Canada (Bank of Canada Act, Section 6(1), 1985).

To appoint the heads of the military, Royal Canadian Mounted Police, and other government agencies (Governor in Council Appointments, 2012).

To appoint CEO's and Chairs of crown corporations such as the CBC (Broadcast Act, Section 36(2)).

To dissolve Parliament and choose the time of the next federal election (within a 5 year limit) (Charter of Rights and Freedoms, Section 4(1)).

To run for re-election indefinitely (no term limits) (Constitution Act, Section 14, 1867).

To ratify treaties (The Royal Prerogative, 2013).

To declare war (Constitution Act, section 12, 1867; The Royal Prerogative, 2013).

To determine Canadian federal laws including election law within the constraints of the Canadian Constitution and Charter and contingent on passage in the Parliament (Constitution Act, Section 41, 1867).

Checks on the Prime Minister

First-past-the-post, the current way to determine federal election winners, allows parties to form a majority of the Canadian Parliament without representing at least an absolute majority of the voting public (The Electoral System of Canada, 2012).

The Canadian Supreme Court (Supreme Court Act, Section 4(2)).

The Parliament through a vote of no confidence can remove the Prime Minister (House of Commons Procedure and Practice, 2000).

The Senate can delay or impede legislation (A Legislative and Historical Overview of the Senate of Canada, 2001).

The Governor General’s powers to hold the Prime Minister accountable to the Queen and people have evolved into a ceremonial role (Constitutional Role, 2013).

The Prime Minister appoints the unelected Governor General, and therefore it follows that the Prime Minister can remove the Governor General (History, 2013).

Freedom of Expression (Charter of Rights and Freedoms, Section 2).

Civil suits within the Federal Court System (Federal Courts Act, Section 17(1)-(2)(a)-(d), 1985).

The Canadian electorate votes every four to five years (Charter of Rights and Freedoms, Section 4(1)).


VENEZUELA

Summary of Findings

Venezuela has four main branches of government: National Executive, National Assembly, Judiciary, and Ombudsman Office. These branches create checks and balances that work to protect the interests of Venezuelans as a whole. In addition, Venezuela allows citizen referendums including recall referendums at all levels of government. The President has no term limits; however, in order to continue his/her period in office s/he must win the national election every six years.

Note there are checks and balance between the Venezuelan federal government and the national media during election periods through, for example, mass media time quota provisions for candidates and parties.

Legislative Research

The Venezuelan President is in power for six years, and may be re-elected with no term limit (Bolivarian Republic of Venezuela Constitution, First Amendment, Article 230).

Deputies to the National Assembly are elected for five years and may be reappointed or re-elected, depending on position, with no term limit (Bolivarian Republic of Venezuela Constitution, First Amendment, Article 192).

The Venezuelan government has four main independent branches of government: National Executive, National Assembly, Judiciary, and Citizen Power (represented by an ombudsmen office). The National Executive lead by the President and Vice-President is in charge of running the country; the National Assembly is the authority of national legislation; the judiciary led by the Supreme Court is authority on the Constitution and enforcing law, and the Ombudsman Office is in charge of protecting the people’s interests and rights (Bolivarian Republic of Venezuela Constitution, Articles 72-74, 225-283, 347-350).

Venezuelan people have the power to submit referendum bills to the National Assembly if the people in favor of the bill represent at least twenty-five percent of the electors registered. Treaties, conventions or agreements that could compromise national sovereignty or transfer power to supranational bodies, may be submitted to a referendum on the initiative of the President of the Republic in Council of Ministers, by the vote of two-thirds or the members of the Assembly, or fifteen percent of the voters registered and entered in the civil and voter registration (Bolivarian Republic of Venezuela Constitution, Article 73).

Venezuelan people have to power to submit referendum bills to wholly or partially repeal existing laws if the people in favor of the referendum have support from at least 10 percent of the registered electors (Bolivarian Republic of Venezuela Constitution, Article 74).

Venezuelan people have to power to submit referendum bills to abrogate laws issued by the President of the Republic under Article 236 if those in favor of the referendum have the support of at least 5 percent of the registered electors. The validity of referendum requires at least 40 percent support from registered electors (Bolivarian Republic of Venezuela Constitution, Article 74).

Budget laws including taxation are not subject to referendum nor are laws for protecting, guaranteeing, and developing human rights (Bolivarian Republic of Venezuela Constitution, Article 74).


 References

A Legislative and Historical Overview of the Senate of Canada. (2001). May 2001. Parliament of Canada. Retrieved from http://www.parl.gc.ca/About/Senate/LegisFocus/legislative-e.htm. Bank of Canada Act. (1985). Last amended December 19, 2912. Retrieved from http://laws-lois.justice.gc.ca/eng/acts/B-2/

Bolivarian Republic of Venezuela Constitution. (2012). National Electoral Council. Retrieved from http://www.cne.gov.ve/web/normativa_electoral/constitucion/indice.php

Broadcast Act. (1991). February 1, 1991. Retrieved from the Department of Justice http://laws-lois.justice.gc.ca/eng/acts/B-9.01/page-1.html

Charter of Rights and Freedoms. (1982). April 17, 1982. Retrieved from the Department of Justice http://laws-lois.justice.gc.ca/eng/Const/page-15.html#h-38

Constitution Act. (1982). April 17, 1982. Retrieved from the Department of Justice http://laws-lois.justice.gc.ca/eng/Const/page-15.html#h-38

Constitutional Role. (2013). The Governor General of Canada. Retrieved from http://www.gg.ca/events.aspx?sc=1&lan=eng

FDA Global Electoral Fairness Report on the United States. (2013). Revised. Foundation for Democratic Advancement. Retrieved from http://democracychange.org/2013/04/2012-fda-electoral-fairness-report-on-the-united-states/

FDA Global Electoral Fairness Report on Venezuela. (2013). Revised. Foundation for Democratic Advancement Retrieved from http://democracychange.org/2013/04/2012-fda-global-electoral-fairness-report-on-venezuela/

Governor in Council Appointments. (2012). April 13, 2012. Government of Canada. Retrieved from http://appointments.gc.ca/prflOrg.asp?OrgID=RCM&type-typ=1&lang=eng

Guide to the Canadian House of Commons. (2011). December 2011. Library of Parliament. Retrieved from Parliament of Canada http://www.parl.gc.ca/About/Parliament/GuideToHoC/who-e.htm

History. (2013). The Governor General of Canada. Retrieved from http://www.gg.ca/document.aspx?id=14615.

Federal Courts Act. (1985). Last amended December 12, 2012. Retrieved from http://laws-lois.justice.gc.ca/eng/acts/F-7/

Supreme Court Act. (1985). Retrieved from http://laws-lois.justice.gc.ca/eng/acts/S-26/page-1.html

The Electoral System of Canada. (2012). July 19, 2012. Elections Canada. Retrieved from http://www.elections.ca/content.aspx?section=res&dir=ces&document=part1&lang=e

The Royal Prerogative. (2013). Canadian Crown. Retrieved from http://www.canadiancrown.com/uploads/3/8/4/1/3841927/the_royal_prerogative.pdf

U.S. Constitution. (2012). Cornell University Law School. Retrieved from http://www.law.cornell.edu/constitution/






Mr. Stephen Garvey Executive Director Foundation for Democratic Advancement

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