Carlos Gómez Ribas
Llicenciat en Dret i Ciències Polítiques
Investigador al Network for the Advancement of Social and Political Studies
The limitation of the use of public faculties to avoid institutional repression is not a new debate, John Locke and the pre-revolutionary French authors like Montesquieu already talked about it as a necessary feature of any democratic system. This limitation of faculties, implemented through the separation of powers, protects individuals’ rights from potential abuses by the State. With this in mind, the debates promoted by the authors of the Federalist Papers during the birth of the United States of America consolidated the distribution of power as an indispensable part of a democratic country. But it was Montesquieu who emphasized that the concentration of power on one entity produces tyranny denying any freedom. The existence of checks and balances within the State avoids the accumulation of all institutional power in one body, allowing the other public organs control the proper use of authority. For that reason the separation of powers is of such importance, because without it there is no liberty, and without liberty, there is no possible democracy.
Although the importance of this separation of powers has been widely accepted as a principle since the XVIII century, the models of how it should be implemented have not always been the same. Different authors have emphasized different considerations, especially regarding two topics: the distribution of weight among the different powers, and the interaction between them. But these are not the only important issues to be considered when applying the theory, the number of powers constituted should also be considered. For instance, originally the judicial power was not included as independent power from the executive; the separation was only between those who create the law (legislative) and those who implement it (executive). Another example of the different possible practical configurations of the separation of powers is the attempt by some countries (like Costa Rica or Mexico) to define an organism in charge of the surveillance of the electoral processes as the forth power of the State, namely the electoral power. The debate about the practical implementation of the separation of powers has been long and rich, with all democratic countries fulfilling the principle but with distinctly different configurations between nations.
Despite the importance given to the separation of powers as a way to prevent abuses by public institutions, societies are still not free of these abuses. Unfortunately, the partisan use of public resources is not an exception in today’s politics, as several governments promote scenarios that jeopardize equal opportunities for all the actors of the political competition process. The interferences by executive powers in areas that should be mostly bureaucratic, like the organization of elections, are still too frequent. Rulers use their privileged position to keep their authority, disregarding the neutrality that is expected from the institutions that should serve all citizens. Executives use the power of the system to create situations that complicate the tasks of the opposition in order to perpetuate them in power. Particularly graphic examples are the meddling of some Latin-American governments (like Ecuador) in the electoral regulation or in the media’s freedom, either favouring the government or hindering the opposition’s task. But they are not the only ones. Other obstructive methods include the use of organisms to decide which candidates are legitimated to run for a position in an election and which are not (like Iran). At the end, choosing candidates even before the electoral campaign starts is the best way to assure that you will achieve the desired results. But also Western countries are not free from the selfish use of public resources, although those manipulations are usually subtler, such as the use of the police inquiries at specific moments, the differential coverage of certain political parties by public media or the distribution of television licences. Therefore, in order to improve the quality of our democracy, politicians who decide and implement the rules cannot be the same that run for political offices. In other words: players should not make the rules of the game.
However, the solution to those problems cannot be the creation of more independent agencies, entities that despite being part of the State administration are not subject to government control. Those can be manipulated to support the government if necessary as seen before. On the other hand, they can become so independent that they end up turning into an untouchable undemocratic and technocratic power above any accountability. Therefore, relying on technocrats managing our common matters if it is not possible to know what they are doing might be problematic. With the current institutional configuration it is difficult for the citizens to monitor the areas that are under civil servants authority; a very important matter, as civil servants are a crucial part of the State’s instruments. Civil servants are an unelected group of individuals ruling an important part of the administration, creating a powerful specialized elite above effective control: a technocracy. Sadly, as Esther Llull says, what characterizes technocracy is the tendency to supplant the political power rather than support it with their advice, assuming for itself the decisional function. In order to have healthy societies, citizens need to trust institutions, and that is just possible if their personal opinions are taken into consideration and there is accountability over public actions. However, accountability cannot exist without tools to control institutions. Hence, it is necessary to go further and find a solution that balances public responsibility and independence, giving citizens the tools to express their concerns and object to the actions taken by the technocrats.
The answer to this problem is to divide the executive power in two. Creating in that way, two governments independent from each other, with delimited competences and separate elections. This system helps to avoid situations in which democracies end up -due to the actions of its leaders- in regimes where the use of elections masks the reality of lack of democracy. Removing certain tools from the rulers reduces the risk of ending up in situations such as those experienced in Hungary or Venezuela where the actions carried out by rightfully elected leaders produce a decline in the quality of democracy towards soft forms of tyranny. Thus, one government would be similar to the current governmental institutions and the other would be dedicated -among other things- to looking after the political competition process and ensure its fairness. This division would increase the independence in the management of some areas, while, at the same time, it would submit managers to greater accountability. The possibility of removing office holders through elections would allow citizens to monitor the actions of those individuals who should simply act as moderators of the political system.
Thereby, one of the branches of the new split executive would be dedicated to the promotion of public policies. This first organ would be responsible for deciding on the more political issues and the political parties would fight for it. It would be appointed and supported by the parliament after political elections –or directly elected in presidential systems- to generate political momentums and social commitments. Like now, it would be the central player in the political arena, as it would lead the public debate with its initiatives. In cooperation with the legislative, that branch would be responsible for deciding where and how money is spent, and it would discuss ideas about how society should be changed and implement policies that try to achieve it. For instance, it would be in charge of areas such as the investments in infrastructures, welfare state policies, foreign affairs, economy promotion, …
The other branch of the executive would be in charge of the non-partisan decisions. It would be dedicated to managing the less political issues, in some sense, the more administrative matters. Which competences correspond to each branch would be a decision made by citizens in their constitutional arrangement, but this new government would deal with all those areas that must be administrated independently of the political ideas of the people that are managing it. Of course we cannot expect public managers not to have their own political ideas, but we can create an institutional architecture that helps to prevent biased behaviour. Having non-partisans managers ruling some areas would reinforce a public environment where all the political alternatives are on equal conditions, and where all the options can really reach the parliament and the government after a fair confrontation. Politicians would lose their capacity to pressure citizens, as they would not have the tools to do it anymore. They would have to focus on making their ideas more appealing and at the same time citizens would have the possibility to remove managers in specific areas. To promote that situation, the areas that would be under this second branch are those without direct political scope like: electoral administration, media surveillance, police, civil service, public prosecution, domestic intelligent agencies, the army (could be shared by the two branches), justice administration (but not the judges who should be completely independent), and rescue services teams.
The requirements for membership in the executive would be different according to the branch, with a ban to be a member of the two branches at the same time. To become a member of the first branch the requirements each country has already in place to be a member of their actual governments would probably be the best suited. In order to be a member of the new branch some degree of independence from the political parties that are running for a place in parliament, would be required. Of course the specific features would vary from one country to another, but in general candidates for this government would have to follow a series of requirements to assure their independence. This could include not being allowed to have any party affiliation five years previous to the elections, not having been appointed to any relevant office by any political party before, elections clearly separated in time, age requirements, differences in the length between the terms of office within the two branches and that candidates should have a previous relevant career, either in the civil service or in the private sector. Additionally, there could be the impossibility of future appointments to any position by the political branch -reducing the incentives to be blackmailed or to receive some consideration for the services rendered.
Regarding the method to elect the second branch, even though there are many good systems, a way that introduces different views within the same organ seems to be the most suitable one to achieve the goal of having an independent organ. Simply by the fact of having different approaches within the same organ ensures that more opinions of the society are taken in consideration. To obtain this result, it is important to find a model in which no electoral list can get all the seats at stake. Hence, firstly, the decision of how many members that branch should have, has to be made. Later, competitive elections to fill the seats of that part of the executive are organized. The candidates could run for office within a list, or as individuals. Then, the electors could vote for as many candidates as they want, up to one third of the seats of the organ, to assure the representation of different positions. After adding all the votes, the candidates with the highest number of votes would become members of this branch. That electoral system produces that although the citizens could vote having in mind a party schema, at least different ideologies would form part of this executive. Finally, once the members of that branch have been chosen, the presidency could rotate every six months among its members.
Summing up, that division of the executive power in two different branches would be useful to create a safer environment in terms of institutions interference; a new step towards a more effective State ruled by the citizens. Creating a system with more independence for the population, but also with more accountability over those holding an office. It is worth highlighting that this article only proposes to split the government, not the legislative, which would remain with its current configuration. Hence, the parliament would continue to monitor the two branches of the executive power, as well as the administration, through parliamentary mechanisms like parliamentary committees. A supervision that is completed, of course, with the surveillance performed by the courts over all public actors, whether parliamentarians or governments’ members. Thus, we would be facing a political system with the same tools to supervise the activity of the government that we have now, but with less incentive for the individuals that hold an office to act in a self-interested way. We have to be aware that elections cannot express the real concerns of the society without certain guarantees that ensure the discussion of the public matters in a free environment and enable the confrontation of all options in equal footing. To do that, it is necessary to guarantee the equality of all citizens and their ideas not only in the electoral period, but also during the rest of the parliamentary term. The two-branches system would not only reduce the partisan use of the state resources; it would also avoid the judiciary and police attacks on the opposition for political reasons. Therefore, we would be closer to an authentic democracy where all citizens can act with a higher degree of freedom and where the imposition of some ideas over others would be more difficult.