The functioning of the checks and balances system main elements in different forms of government

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The functioning of the checks and balances system main elements in different forms of government

Zabavska Khrystyna

teaching assistant of the Department of Political Science and International Relations

Abstract: The article considers the system of checks and balances as an attribute of democracy. The author considers the peculiarities of functioning of elements of the checks and balances system. On the basis of comparative analysis, the characteristic features of the system of checks and balances in the presidential, parliamentary and mixed forms of government are singled out. The characteristic features of the system of checks and balances, which should be taken into account in the study of each particular state, are analyzed.

Keywords: checks, balances, division ofpowers, branches ofpower, republic, form of government, system, element.

Problem statement

Historical practice convincingly confirms that the principle of the distribution of power is an integral element of democracy and the rule of law, which ensures an adequate level of political freedoms and the human rights protection of the citizen. Nowadays, in the context of the global spread of democracy, the principle of separation of powers is formulated as a crucial challenge for countries that have embarked on democratic political transformations.Modern democratic practice shows that the observance of the principles of separation of powers and the functioning of the system of checks and balances differs from state to state. To a greater extent, the form of this or that functioning depends on the form of government. Scientific research in this direction is a necessary guarantee of the democratic transformations.study.

Analysis of recent research and publications

According to the topicality of the issue, modern scholars are increasingly turning to the problems of studying the system of checks and balances. Among the foreign scientists who are investigating this problem we may name Manova H., Aduchiyev B., Zuyeva K., Bulmer E. and others. Among the scholars who studied the principles of the formation and functioning of the checks and balances system Haidanenko N., Sylenko L., Soroka S., Shapoval V., Rebkalo V. and others should be named. The study of the system of checks and balances has extended in legal science. However, from the political science point of view, the problem of the elements of the checks and balances system remains poorly investigated. It should also be noted that there is a problem of the absence of a comprehensive study of checks and balances system elements at the structural and functional level, taking into account the specifics of each individual state.

The purpose of the article is to carry out an analysis of the functioning of the checks and balances system main elements in different forms of government.

Despite the fact that the foundations of research and functioning of the system of checks and balances have a long history, historically its first model of constitutional consolidation and, consequently, functioning, is associated with the formal approval of the presidential form of government in the United States in accordance with the Constitution of 1787.

However, the approach to the study of the system of checks and balances in the context of other forms of government rule allows a more complex assessment of the purpose and features of the functioning of the system in each particular state. Therefore, in our opinion, it would be advisable to deviate from the binding to the study of the system of checks and balances exclusively in the context of American constitutionalism. opposed presidential parliamentary

The form of government is the most important determinant of the functioning of the system of checks and balances. It is one of the components of a political reality within which a given set of mechanisms of the system of checks and balances functions. It indicates how the supreme power is organized in the state, how higher state bodies are formed, as well as the principles of interaction between them, the competence of each of these bodies and interaction with the population [10]. It is the form of government that defines the fundamental principles of the relationship between the main poles of power. In political science there are two main forms of government: the republic and the monarchy.

Republic is a form of government, in which the supreme power of the state are carried out by representative electoral bodies that are elected by the population for a certain period. Historically, the republic began intensively to emerge after the bourgeois revolutions in the 16th - 17th centuries, and is currently the dominant form of government in the world. Political science distinguishes the following main types of republics: presidential, parliamentary and mixed (semi-presidential and presidentialparliamentary).

The features of the presidential republic are as follows:

- the president is simultaneously the head of state and head of government, therefore the post of prime minister in such a republic is absent;

- the president alone forms the government that is accountable to him;

- the branches of power in the presidential republic have a clear circle of their powers and are independent. There is also a tight distribution of power [3 ;10;14].

The presidency, as an institution, was formed in the United States in the 18th century. and it actually coincides in time with the formal consolidation of the classical model of the system of checks and balances.

From the beginning of the XIX century the institution of presidency extends to the countries of Latin America, in the middle of the XIX century - in Europe, but the most widespread after the First World War [5]. However, today, the US remains the only presidential republic in the world, which is an example of democratic transformations with a low probability of authoritarian tendencies, as opposed to other states, where such a probability is perhaps the greatest problem of expedient use of mechanisms of the system of checks and balances. The legal and actual coherence of the use of the system of checks and balances affects the maintenance of US leadership among the democratic states of the world, as evidenced by the relevant ratings.

Considering the system of checks and balances in the presidential republic, one should first of all pay attention to the role and place of the branches of power in this form of government. It should be noted that one of the main features of the presidential republic is the strict separation of powers and the separation of powers. The legal equality and independence of the three branches of power in such states correlates with coherence in their activities and mutual control and accountability [9]. Therefore, the presidential- republican form of government has become a classic example of the application of such key elements of the system of checks and balances as the law of the legislative veto of the president and the impeachment of the head of state.

The presidential republic form of government assumes that the president acts as a veto player in the field of legislative activity. The use of the veto in the presidential republics is the main tool in the hands of the president, with which he can influence the course of the legislative process. At the same time, the frequency of the use of the right of veto depends on the composition of the parliament. As a result, the president begins to apply this right more often in conditions where the majority in the parliament belongs to another political force. When the president has a significant «support» among deputies - there is no need to use this mechanism [2].

It should be noted that the right of veto is the most powerful counterbalance to the legislative branch of power on the part of the president. After all, more often than not, the president in the presidential republic is deprived of yet another powerful tool of political influence - the right to dissolve parliament [11]. Such a right may be found only in the constitutions of some African republics.

However, the influence of the executive branch on the legislature in the presidential republic is quite significant, given the president's right to legislate, to actively intervene in the legislative process through the right of veto and thus to be a source of rulemaking. For example, the procedure for overcoming the veto in the United States is very complicated, and Congress is far from always able to refute the President's objections. The real power of the veto in the United States is so great that the President has the opportunity to effectively influence the legislative process with the sole threat of its use [11].

An important advantage of the president in the presidential republic within the framework of the system of checks and balances is his influence on the formation of the personal composition of senior public officials in various spheres of state life. Obviously, such appointment does not take place without the participation of the legislature: the parliamentary approval is required for appointment. However, the president has ample opportunities to build a power vertical according to his own model. For example, in the United States, the Cabinet, which includes senior officials such as Vice-President of the United States, Secretary-General of the United States, US Attorney General, Minister of Defense, Minister of the Interior, Minister of Finance, etc., are appointed by the President with the consent of the Senate [19].

Control by the executive branch over the legislative is quite essential. For example, in Brazil, the government has the right to deprive any member of the mandate. However, in the classical presidential republic, the government plays, more often, the role of an advisory body, and all the completeness of executive power belongs to the rational institute of the head of state. In the presidential republic there is practically no mechanism for contraction and a vote of no confidence in the government, except for some states, where these mechanisms are of a formal nature.

Impeachment is the most important lever of influence and control over the legislative branch of power over the executive in the presidential republic. The procedure for impeachment may be subjected to a president or other senior public official. Each presidential republic has its own peculiarities in the functioning of the system of checks and balances. However, it is possible to distinguish the general features of impeachment as one of the key elements of the system of checks and balances:

1. Impeachment may be initiated by individual members of parliament with the participation of the minimum required number of parliamentarians by means of a bill or resolution.

2. The process of impeachment is multistage and involves successive stages of attributing the guilty official.

3. The impeachment must be supported by the constitutional majority of the parliament.

4. Legal acts of the state are usually well-defined grounds for presidential impeachment proceedings.

5. The procedure for impeachment takes place in the political and legal area with the obligatory participation of the judicial branch of government.

In the presidential republic, a counter signature system may be provided, however, it is not necessary, as the executive (ministers) are directly accountable to the president. Thus, the legally established principle of counter-signing within the system of checks and balances in the presidential republic is of a formal nature.

Usually, the executive power in the presidential republics is deprived of the right to legislative initiative. However, the practice proves that it can be implemented in different ways. In the United States, the right of legislative initiative is the exclusive prerogative of Congress members, but the president makes a bill on the budget [19]. In Mexico and Venezuela, the president has the full right of legislative initiative, however, it can be rejected by a simple majority of parliamentary votes.

When considering the elements of the system of checks and balances in the republics of the presidential type should take into account the following features:

1. The USA became the first country in the world to succeed in consolidating the presidential form of government and the system of checks and balances as its characteristic feature at the constitutional and legal level. Instead, many states that have embarked on democratic reforms much later, following the US, failed to repeat their success.

2. The system of checks and balances in many presidential republics (except the USA) is untiring, and its elements are often formalized, since most of the powers are in the hands of the president (executive branch of government).

3. The presidential republics do not provide an extensive system of checks and balances, but a set of its elements is sufficient to maintain a political balance that makes all three branches of power equal, strong and independent.

4. The control function, which is equally carried out by the legislative and judicial branches of government, is a priority in order to prevent the usurpation of power by the powerful president and his representatives in the executive branch.

Another type of republic is parliamentary, which has the following features:

- the formal rule of the legislative branch, however, the developed multi-party system, as a rule, excludes the concentration of power in the hands of the parliament;

- Parliament forms the government that is accountable to it;

- the head of state carries out representative functions, and the real power belongs to the head of the executive power - the prime minister, the chancellor, etc.;

- government activities are supported by the parliamentary majority.

- president is elected by the parliament and performs formal functions, without significant influence of power [3; 4; 10]

Taking into account the fact that in the parliamentary republics the separation of powers is not so rigid, some researchers argue that there is not a separation of powers, but only its functional differentiation [5]. However, it should be noted that the parliamentary-republican form of government is inherent in a more ramified system of checks and balances than in the presidential republic.

In the parliamentary republic, the legislative branch of government forms a government that acts as a collegial bearer of the executive, responsible for the political course of the state, and enjoys the confidence of the parliamentary majority [].

Features of the system of checks and balances of the parliamentary republic include:

1. The presence of a strong parliament with broad powers creates opportunities for imbalances in the system of checks and balances, taking into account the key role of the parliament in the executive sphere. After all, the parliament (the coalition of parties) forms the future composition of the government, therefore, the people, in voting for the future composition of the parliament, essentially give their voice and the future composition of the government.

2. The system of checks and balances in the parliamentary republic is more diversified, however, according to some researchers, a real counterbalance to the legislative and executive branches of power can be only a strong and independent judicial branch.

3. An important role in the functioning of the system of checks and balances is played by the internal structure and party composition of the parliament. The composition of the government is determined by the deployment of political forces in parliament. The opposition plays an important role in the work of the parliament. In some parliamentary republics there is a practice of forming a minority government.

4. Limitation of presidential powers in the sphere of state governance. In a state with a parliamentary form of government, the president plays a minor role in the implementation of state power. In this case, it is formally empowered and may apply separate elements of the system of checks and balances with respect to other branches of government.

5. Absence of a popular vote for the election of the head of state. The president is elected by the parliament. The actual chairmanship in the state is exercised by the head of the party that won the election (the head of government - the prime minister). If any party has a clear majority in the parliament, the problems with the formation of the government usually do not arise, since its leader almost automatically becomes the prime minister.

The role of the president in all states with a parliamentary form of government is practically the same. He is endowed with the right to dissolve the parliament and authorized to implement it under specific constitutional conditions (specific reasons do not exceed 2-3). Among them, the dissolution of the parliament is usually the responsibility of the president, unless a positive result has been achieved in the use of parliamentary procedures for the replacement of a post or appointment to a post of prime minister or the formation of a personal government of the government, including cases of refusal to trust the newly formed government by the parliament. Also, the reason for the dissolution of parliament may be a vote of no confidence in the prime minister or the government as a whole, while acting as an alternative to the resignation of the government.

In addition, in the world practice there is the notion of «self-dissolution» of parliament. In many parliamentary republics, the dissolution of parliament serves as part of the procedure for a partial revision of the constitution. In this case, the dissolution of the parliament is, in essence, a procedure for selfdissolution, since it assumes that members of parliament, voting for decisions on the prospect of revision of the basic law, are aware of its consequences

In parliamentary republics there is the possibility to dissolve the parliament by the president under certain conditions of the legislature's inability to decide on a particular issue or the inability to exercise their powers. Often among such conditions is the rejection of the state budget, blocking the adoption of laws for a certain time, the inability to hold sessions, etc. [12].

Among the powers of the head of state in the context of the system of checks and balances in the states of parliamentary type of government, it should also be noted the possibility of appointing the head of government and ministers. However, such powers are limited to the formal approval of candidates proposed by the parliament for a particular ministerial portfolio. The same applies to the President's approval of the laws and the use of the right of veto over them. In the opinion of the Russian researcher A. Mishin, the veto in the parliamentary republic is «weak authority», which is used extremely rarely and only on the instructions of the government [9, p. 166-167]

The right of legislative initiative in a parliamentary republic is usually endowed by the government, or its individual members. Even in the event that the president is empowered by a legislative initiative, in practice most of the bills are initiated by the government and its members. It should also be noted that if members of the government are deprived of the right to submit bills to parliament, they are entitled to initiate laws as parliamentarians. However, in certain parliamentary republics, the government can be formed on an extra-parliamentary basis [13].

The interaction of the legislative and executive branches of power in a state with a parliamentary form of government is based on the parliamentary responsibility of the latter. In the vast majority of states, where the majority government is formed, the executive branch plays a decisive role in the legislative process. The parliamentary responsibility of the government is realized through the functioning of such an element of the system of checks and balances as a vote of no confidence (trust) of the government. It represents a mechanism used by the parliament to change the composition of the government, which has lost the support of the majority. The vote of no confidence is a key tool for controlling the legislative branch of power over the executive. However, for parliamentary republics, other methods of control are also needed, which are necessary to balance the balance of power between the legislative and executive branches of government. Among them: holding parliamentary and committee hearings, reports of individual ministers on implementation of their plans and observance of duties, holding parliamentary inquiries and consideration of parliamentary requests, etc. [4; 5].

For mixed (semi-presidential) types of republics a combination of signs of parliamentary and presidential types of republics is typical. The main indicator of the mixed type of republic is the ratio of the powers of the head of state and parliament in the mechanism of government formation. In particular, in the presidential-parliamentary republic, the president plays a more important role in forming a government that is more accountable to him. Instead, in the parliamentary- presidential republic, the power of the president is limited by the following factors: it does not possess the full power of the executive (that is, as a rule, it is not the head of government); the government is formed depending on the parity of the party factions in the parliament; the government is accountable to the parliament [4].

The monarchy is a form of government in which state power is wholly or partly in the hands of one person, a monarch, and passed on to the representatives of the ruling dynasty as a legacy. Depending on the scope of the powers of the monarch decided to distinguish between limited and unlimited monarchies.

Unlimited (absolute) monarchy - this is a kind of monarchy, in which the power of the monarch is absolute, he acts as a single state ruler, since it is not limited to any other body.The absolute monarchy was characterized by separate elements of the system of checks and balances, or their prototypes. For example, in some of the absolute monarchies of Europe there was an institution of counter-signation, but its meaning was symbolic. Also, the right of absolute veto could be applied, but it also did not have real force, since in any case there was no real counterbalance to the ruler's sole authority. Elements of the system of checks and balances in absolute monarchies were of a formal nature, therefore it is considered that this type of government is not characterized by a system of checks and balances.

Limited (constitutional) monarchy - a kind of monarchy, in which the power of the monarch is limited to the constitution. There are two types of limited monarchies: dualistic and parliamentary. For a dualistic monarchy, there is a dual source of power: the monarch represents the executive branch, and the parliament is the supreme legislative body. In the parliamentary monarchy, the powers of the monarch are symbolic, the parliament is the supreme legislative body, it forms the government [4]. Parliamentary monarchy in its content is actually the same as the parliamentary republic.

When studying the system of checks and balances of a particular state should take into account the following features:

1) The system of checks and balances is possible to be investigated fully, only by studying the features of each individual state.

2) The form of government has a decisive influence on the functioning of the system of checks and balances and determines the set of elements of the system, on the basis of which branches of power interact with each other.

3) The elements of the checks and balances system operate quite differently in different forms of government, taking into account also a number of other characteristics of the state, such as the form of state- territorial organization, the duration of observance of democratic principles of government and the historical practice of the application of the system of checks and balances .

4) Mixed (semi-presidential) republics possess the most extensive system of checks and balances. The complexity of their research lies in the practical implementation of the system of checks and balances, taking into account the real advantage of the powers of the parliament or the president.

Taking into account these peculiarities in the perspective of future political studies of the system of checks and balances, it is necessary to take into account the need for a method that would be directed towards a comprehensive analysis of the system of checks and balances. Today, in fact, there is a lack of complex approach to the study of system of checks and balances in different forms of government. In the direction of such studies, there are openwide opportunities for further scientific research.

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