Separation and balance of power and discretionary power in public administration

• Author: Oana Saramet
• Position: Faculty of Law, 'Transilvania' University of Brasov, Romania
• Pages: 437-452

Separation and balance of power and discretionary power

in public administration

Lecturer Oana ȘARAMET1

Abstract

Separation and balance of powers is one of the fundamental principles which is a

fundamental element of the rule of law in any contemporary. The recognition of this

principle does not imply that even public administration authorities must have a rigid

behaviour, and that they are not allowed to have and exercise a discretionary power, a

right of appreciation. However, the exercise of such power or right must be within the

limits of that principle and, implicitly, of the principle of legality. Nowdays, we can observe

that any public authority, as well as those in the sphere of public administration, tries to

force the limits of its discretionary power, or such a behaviour could affect the correct and

constitutional functioning of the rule of law. This article is intended to be only an initial

approach to identifying the constitutional aspects relevant to the proposed theme by using

methods such as comparative or systemic method. Thus, we want to identify those

constitutional mechanisms that constitutional legislators have established to prevent

overcoming the limits of this discretionary power. Later, through other articles, we will

have the opportunity to identify the risk factors that arise in such situations, as well as

possible solutions to reduce or even eliminate these factors.

Keywords: separation and balance of powers, discretionary power, public

administration, excess of power.

JEL Clasiffication: K10, K23

1. Introduction

Although explicitly enshrined in constitutional provisions, as it is, for

example, in the case of Romania2, or in Portugal3, or in South Africa4 or Estonia5,

1 Oana Șaramet - Faculty of Law, „Transilvan ia” University of Brașov, Romania,

oana.saramet@unitbv.ro.

2 According to art. 1 par. (4) of the Constitution of Romania, republished, "the state is organized

according to the principle of separation and balance of powers - legislative, executive and judicial -

within constitutional democracy". The Romanian Constitution, republished, is available online at:

http://www.cdep.ro/pls/dic/site.page?id=339, last visited: 20.04.2018.

3 The Portuguese constitutional provisions of Art. 2 corroborated with those of art. 111 state that the

state is based on the separation and interdependence of powers in order to achieve an economic,

social and cultural democracy and to strengthen participatory democracy, no organ capable of

exercising sovereign power, and no body exercising regional autonomy or local authority can not

delegate their powers to other organs, except in the circumstances and under the conditions

expressly provided by the Constitution or by laws. The Portuguese Constitution is available online

at: https://www.constituteproject.org/constitution/Portugal_2005?lang=en, last visited: 20.04.2018.

4 According to art. 40 par. (1) and (2) of the Constitution of South Africa, in this republic, the

authorities exercising sovereign power will be distinct and interdependent, the governance being

438 Volume 8, Issue 2, June 2018 Juridical Tribune

or possible to be interpreted from constitutional provisions, as in the case of

Slovenia6, or of South Korea 7 or of Argentina8, the separation and balance of

powers in the state, the fundamental principle underlying the organization and

functioning of any democratic state, any state of law at present, is at the same time

and paradoxically challenged9 or even denied10 at times.

Over time, the doctrine has reevaluated this principle and found that

several elements, which appeared after its construction in its modern version by

Montesquieu11 , "which created the normative theory as it is known today" 12 ,

influenced its content.

organized at national, regional and local level, and also distinct, interdependent and based on mutual

relationship. This constitution is available online at: https://www.constituteproject.org/

constitution/South_Africa_2012?lang=en, last visited: 20.04.2018.

5 According to art. 4 of the Constitution of Estonia, "the activities of the Parliament, the President, the

Government of the Republic and the courts are organized in accordance with the principle of

separation of powers and the balance of powers". This constitution is available online at:

https://www.constituteproject.org/constitution/Estonia_2015?lang=en, last visited date: 20.04.2018.

6 This Constitution, by art. 116 and the following, enshrines an entire chapter of the organization of

the state, and it is obvious that the basis of this organization is the principle of separation and

balance of power in the state, considering that the constitutional identification and construction

of the three legislative, executive and judicial - as we have recalled before, as well as the

relations established between them, as well as the reciprocal control arrangements held by each

of them. The Constitution of Slovenia is available online at:

https://www.constituteproject.org/constitution/Slovenia_2013?lang=en, last visited: 20.04.2018.

7 Neither this Constitution expressly provides for the principle of the separation and balance of

powers in the state, but starting with art. 40 regulates the authorities exercising these powers,

starting with the legislative power, exercised by the National Assembly, continuing with the

executive, exercised by the President of the Republic together with the Prime Minister and the

members of the State Council, mainly, and ending with the judicial power exercised by the courts

thus respecting the classical order of these powers, and regulating the mechanisms and

constitutional levers by which they mutually limit each other, collaborating and control each other.

The Constitution of South Korea (Republic of Korea) is available online at:

https://www.constituteproject.org/constitution/ Republic_of_Korea_1987?lang=en, last visited:

20.04.2018.

8 In Part II of the Constitution of Argentina, the "National Authorities" are regulated, and the first

Title is devoted to the "Federal Government", namely the legislative power, the executive power,

the judiciary, a distinct chapter being for the Public Ministry. This constitution is available online at:

https://www.constituteproject.org/constitution/Argentina_1994?lang=en, last visited: 20.04.2018.

9 For more on this, see, for example: Ioan Muraru, Elena Simina Tănăsescu, Drept constituţional şi

instituţii politice, Lumina Lex, Bucharest, 2001, p. 271-275, or Ion Deleanu, Instituţii şi proceduri

constituţionale în dreptul comparat şi în dreptul român, C. H. Beck, Bucharest, 2006, p. 45-57.

10 See in this regard, for example, Louis Fisher, Constitutional conflicts between Congress and the

President, Princeton University Press, 1985, p.10 and following.

11 Through his work, De l'esprit des lois, Montesquieu not only identified the three branches of

government, such as we know them today - the legislature, the executive (also called executive

power regarding issues related to the law of nations, but sour even it called the executive power)

and the judiciary (also called the executive power regarding civil law matters, which it also

identifies as the judicial power itself), but mentioned the need for a system by which these powers

to control each other so that none of them will capture or dominate the other two, identifying

mechanisms and means of mutual control in this respect. See Montesquieu (Charles-Louis de

Secondat, baron de La Brède et de Montesquieu), Despre spiritul legilor, vol. I, Scientific

Publishing House, Bucharest, 1964, p. 195 and following.