F. No Separation of Powers Between the Executive and the Legislature

Author:Patrick J. Monahan - Byron Shaw

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The doctrine of the "separation of powers" was developed in the seventeenth and eighteenth centuries by the English philosopher John Locke and by the French jurist Charles-Louis Montesquieu. Both Locke and Montesquieu believed that there should be a clear separation among the executive, legislative, and judicial branches of government. They reasoned that such separation was necessary to prevent tyranny. As Locke stated: "[i]t may be too great a temptation to humane frailty, apt to grasp at Power, for the same Persons who have the power of making

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laws, to have also in their hands the power to execute them."127The principle of the separation of powers is expressed most clearly in the U.S. constitution. There is a clear separation between the executive and the legislative branches, with neither the president nor members of the Cabinet permitted to sit or vote in Congress. Nor does the president have the power to direct the affairs of Congress or to compel it to adopt legislation. The U.S. constitution also incorporates a complicated series of checks and balances that prevents either the executive or the legislature from dominating the other branch. For example, the president has the power to veto legislation, but this veto may itself be overridden by a two-thirds vote in each House of Congress. Treaties may be negotiated by the president but must be approved by a two-thirds majority in the Senate. Many of the president’s appointments to key office, including the Supreme Court, are subject to confirmation by Congress.128There is no such separation of legislative and executive functions in the Canadian context. The key members of the executive, the prime minister and the Cabinet, must hold seats in Parliament. The government also has the power to control and direct the affairs of the House of Commons. In part, this control is derived from the fact that, in accordance with the principles of responsible government, the government controls a majority of seats in the House of Commons. It can therefore be assured that most of its legislative proposals will be adopted by the House and the Senate. The government’s control over the House is reinforced through its ability to set the House agenda and to determine which matters will be debated and voted on. The vast majority of the House’s time is devoted to "government orders" - that is, the consideration of government legislation or other business. Although a limited amount of time...

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