we find these three branches of government, albeit in different shapes and forms and
with slightly different definitions of their respective powers.
The US Constitution provides a clear example of a Montesquieuvian separation of powers
model:- Article I stipulates that Congress is the legislature;
- Article II defines the President as the head of the executive power; and
- Article III establishes the Supreme Court and regulates the subordinate federal courts.
Many other constitutions, such as the one of Iceland, are less doctrinal in their numbering
but still refer explicitly to legislative, executive and judicial tasks as distinct functions.
Even the constitution of the Vatican acknowledges that these three functions can be
distinguished, even though all three of them are in fact exercised by the Pope.
In Western democracies, the legislative function is typically assigned to the
directly elected parliament, although not necessarily on an exclusive basis.
Sometimes the legislature is defined as Parliament and the Head of State acting together,
such as in Iceland or the United Kingdom. Legislative powers may be exercised by regional
authorities in federal systems, or international organizations of which a state is member, or
by the people themselves in a referendum. Even where legislative power lies with parlia-
ment proper, the executive typically takes the initiative to introduce new laws and secure
their adoption. Sometimes even the institutional separation between the parliament and the
government is blurred: in France, government members cannot be parliament members at
the same time, whereas in the United Kingdom government members actuallyhave to be
members of parliament, and they sit on benches in the parliamentary plenary hall among the
other members.8.2.3 Independent Courts
The aspect of the separation of powers that is probably easiest to imagine, much
more so than the separation between parliament and government, is the indepen-
dence of the courts and of the judges sitting in the courts. The guiding principle,
which is also enshrined in Article 6 of the European Convention on Human Rights,
is in particular to ensure that neither a court nor its judges can be abolished at whim
or be dismissed. Appointment for life may be one of such mechanisms to ensure
that the government cannot put pressure on judges to decide one way or another or
otherwise interfere with the administration of justice.
Elected Judges Another way of trying to secure this principle is the election of
judges by popular vote so that they are answerable to the community and do not
depend on the government for appointment or reappointment.
The majority of US states feature elected judges, even though US federal judges are
appointed rather than elected.
In Europe, the notion of elected judges is usually met with distrust since the
emphasis is put on the judiciary’s professionalism rather than on popularity. As a
matter of fact, election campaigns for judgeships tend to stress the candidates’ strict
stance on crime, which in the long run can drive up incarceration rates (the number
170 A.W. Heringa