Separate but concurrent public powers
By: Luis Beltrán Guerra G. - 12/05/2025
Share:
Law students hear terms from the very beginning of their studies that are repeated over the years. Among them are "the constituent and the legislator," so often mentioned that more than one person, when asked "How are you doing?", answers "I'm looking for the constituent," to which the former almost in unison adds, "I'm looking for the legislator." And in professional life, a few become disillusioned, among other reasons, for not having found them. But also due to the disillusionment with theorizing and its antithesis between "the terminologies specific to one discipline, so closely related to several others. This is the contrast between a "nomenclature" and real life."
We refer to among them "politics, republic, parliamentary and presidential, but more than once also dictatorial and even tyrannical, constituent power, constitution, constitutionality, constitutionalism, among them "the social", one of the most complex, sovereignty (perhaps the most abused, governing (of everything and for everyone), congress, parliament (the people gathered and with their diversity trying to understand each other and be understood), electoral system, but also to the loot (void election results transgressing all laws, as argued, for example, by the opposition in Venezuela regarding the last presidential elections), dictatorship, with and without popular support, senator, deputy (decades ago with clothing typical of the office, a custom that fashion, in concurrence with the elected, has led to the extremely opposite), armed forces (shaken in developing countries), leader, militia, fascism, racism, militarism, nepotism, despotism, oligarchy, partyocracy, participation, plutocracy (cultivated in academies and by those with the necessary talent to enter them, unfortunately not all), suffrage (popularly known as the vote, today devalued both in name and purpose), and, with apologies to linguistics, "stop counting (put an end to an enumeration)." It could be said that we have referred to "the preliminaries of the State and of society in general, unlike the interactions and conflicts between individuals." The reason is solely didactic and not because the essayist has wandered around with the first vocabulary (prolegomena of the State) since the age of 17 and is approaching 83 and still entangled in "theoreticism."
The title refers to one of the cardinal notions that underpins a democracy, that is, the exercise of sovereignty that the people delegate through suffrage to those who are to govern them. We are referring to the so-called “public power” (constituent assembly, government, judges) to guide us in pursuit of the common good,” which implies “economic growth, social justice, and human development.” And, therefore, it is best applauded to the extent that it benefits the greatest number of people. Let us understand that the transfer of popular power (sovereignty) converts (obviously) the proxy into “powerful,” a term that is prolific, for some a “noun” and others an “adjective,” but, most crucially, with a variety of uses: 1. “Domain, empire, faculty, jurisdiction (to command or execute something), 2. Forces of a State (in some hypotheses “civil” and in others “military”) and 3. Strength, vigor, capacity, possibility, power, absolute, arbitrary, despotic, phrases, by the way, common, nourishing the adjective “powerful,” with respect to which Rodrigo cannot fail to be mentioned. Borja, former President of Ecuador, who brings up the not-so-obscure saying "money is a powerful gentleman" by Francisco de Quevedo y Villegas, summarizing it thus: "The power of money has increased in social life at the same rate as corruption. There is almost nothing that money cannot achieve."
The syntheses encourage us to question the fate of "the separation of powers" within the context of the guidelines of political and constitutional theory. Has it been observed, does it truly apply, or is it merely a philosopher's advice for a hypothetical peace, subject to the diversity of our own interpretations? This reflection cannot be entirely dismissed. Even considering that historical definitions are still recognized today justifying the aforementioned "division," understood as "the obligation that the provisions of public power, in all its branches, comply with a complex of norms controlled by an independent authority, as sovereign as the one responsible for observing the norm." For Rodrigo Borja, "the United States has the merit of having made the abstract ideas of European philosophers of liberty a reality." The former President states that "the first concretization of the formula was made in the Constitution of 1787."
In the theoretical context, the separation of powers is a determining principle, seeking a balanced approach to the exercise of sovereignty, which belongs exclusively to the people. However, it is clear that this precept has been subject to distortions for some time, if not quite some time. Gaetano Silvestri, President of the Italian Constitutional Court, highlights this, referring to the process of "proselytization" in the conduct of government in his country. He warns that the fragmentation of public opinion, as expressed electorally through a variety of parties, mini-parties, groups, and cliques, has had a decisive impact on the separation of powers, at least in the way it was initially defined.
He states that the criticism of the traditional criterion used to distinguish different types of forms of government based on the degree of separation of powers remains valid, when the most reliable way to interpret them is to find the diversity of roles and structures of political parties, a circumstance that seems to determine that no system of government can today be classified as derived from "a rigorous and coherent application of the maxim." However, the professor reiterates that "it continues to constitute the point of attraction of the constitutional system. The unknown, therefore, seems to determine to what extent 'separation' constitutes 'a propensity,' rather than 'a rigorous, letter-by-letter obligation.' It is not an objective and obligatory maxim that requires strict, punctual, and exact compliance in accordance with the provisions of the law or contract. These inexorable obligations do not allow for flexibility or interpretations that could compromise their essence and entail: 1. Accuracy in interpretation, 2. Mathematical compliance, 3. Avoidance of ambiguities, 4. Obedience to deadlines, and 5. Responses to specific requirements. Each requirement must be observed, without neglecting any.
In more recent opinions, the so-called "separation of powers" postulates, on the one hand, the utility of the State fulfilling certain functions (the division of labor) and, on the other, that the recipients will benefit most to the extent that such functions are performed by different bodies, making it necessary to "respectively distribute and control the exercise of power." One could even imagine "a sovereign power, one and triune at the same time, which, while remaining one, can be broken down into three independent ones. It would therefore seem to be a metaphysical concept, analogous to the Christian mystery of the Trinity" (From the Separation of Powers to the Conflict between Constitutional Bodies, Professor David Delgado Ramos).
The efforts of those minds who conceived "the formula" cannot be overpraised, and they are disrespected if criticized on the grounds that they established presumed guidelines, which reality eventually rendered "speculative." It is difficult to classify the aforementioned formula as "conjectural," which would weaken its presumptive nature. The uncertainty regarding its relevance must be noted, as it also encompasses "the concurrence of powers," accounting for 50% or perhaps more of the recipe. Logic seems to dictate that if there is no separation, there can hardly be "concurrence." The wisdom to nourish democracy, defined under the terms "separation and concurrence," seems not to have nourished all the trees. Indeed, we read that a democratic and pluralistic citizenry demands a "theory of social justice" capable of regulating the diversity and plurality of demands and rights formulated by those who make up "the political community." A "theory of justice" for an appropriate combination in the defense of individual liberty, but with an entrepreneurial commitment to equality. In conclusion, we would be inclined to affirm, although it may seem obvious, that the difficulties of the separation of powers must be understood as the sources of non-competition.
Professor María Amparo Grau, our distinguished student, seemed to share the guidelines outlined several decades ago when she referred to "the complexity of the 'principle' given the responsibilities of a 'social state.'" She cites Manuel García-Pelayo, for whom there is no patented model or dogma for the division of powers, but rather that it has its own peculiarities of updating from time to time.
The two students, by mere chance, meet at the beginning, agreeing that they haven't yet found the constituent assembly or the legislator. And the principle of separation of powers they know is the one applied by their wives, who, due to disagreements when love dies, have divorced, taking half of the marital property. Not even the limitations arising from the struggle for a "social state" served as an excuse.
Comments are welcome.
«The opinions published herein are the sole responsibility of its author».