Mehriban Eldar qizi Babakhanova
Lecturer of Azerbaijan University of Languages
Dissertator of the Academy of State Administration under the President of the Republic of
Azerbaijan
E. mail: [email protected]
Workshop 15: The mutations and transformation of division of powers: the constitutional
organization
Parliamentary control in the context of the principle of division of powers
Abstract
This paper analyses the relationship between control function of parliament and
separation of powers and the relationship between parliament and executive. Parliamentary
oversight is neglected area of research in many jurisdictions and there is very limited discussion
on the area. So this is followed by a discussion on the constitutional and legislative framework of
control and separation of powers.
An attempt is made to outline the challenges of the parliamentary control.
Examination of the parliamentary control from the position of the theory of division of
powers is aimed in the first place at the analysis of controlling powers of the legislative bodies
for determining the workability of the mechanism of checks and balances
Key words: parliament, control, division of powers,
Introduction
It is necessary to begin the study of the role of the control and application of power with
the investigation of the theory of the division of powers - a large scale and most popular
doctrine, within the frames of which the problems of interaction of the state power and society
are studied. The author thinks that the demand for the restriction of the supreme state power by
means of its division is a natural consequence of the development of state-legal reality.
Realization of the principle of division of powers into legislative, executive and judicial
presupposes not only the division of their functions, but also preservation of the unity of their
strategic goals1. The division of powers does not violate the unity of the democratic state power
and by no means presupposes the creation of a China Wall among various branches of power2.
The branches of power are the elements of a whole, of the elements of the state power. They
must function and work jointly within a system3.
Division of powers – Why is it so necessary?
History has not once witnessed that unlimited power in the hands of one person or a
group in the majority of cases leads to the repression of others or to the restriction of their rights.
The division of powers in conditions of democracy prevents the abuse of power and ensures
freedom for all.
The theory of the division of powers presupposes the presence of a source of power. It is
mainly the people. On the state-legal level it means the creation of a state mechanism for the
realization of the will of the people by taking into account the changing political and economic
situation and social conditions by proceeding from the needs of life, society and citizens4.
Division of power exists in the form of interaction, mutual control, checks and balances among
the branches of power. Undoubtedly, in the division of power the population may take an active
part in the process of adoption of decisions by the state directly or through their representatives
more than in the case of domination of one of the branches of power. Realization of this
principle ensures the optimal work of the system of checks and balances among the elements of
the state apparatus, and thus, it promotes the establishment of the command of law on the state5.
The main purposes of the division of powers are not allowing autocracy, but ensure the
democratic ways of existence and construction of the state mechanism6.
1. Principle of division of powers and the phenomenon of the parliamentary control
The theory of the division of powers is a leading teaching at present on a less or more
optimal organization of the state power. The said theory is based on the idea of the necessity of
ensuring the rights and freedoms of each man and of creating chances for each member of the
society to provide a high level of life on the account of maximally possible protection of man
from the arbitrariness of the state. The basic principle of the theory of division of the power is
the organization of the power in the state b dividing it into three branches: legislative, executive
and judicial. It is true that in all the democratic states the only source of all the power is the
people, the power is characterized by …unity, integrity7,” therefore to speak of its division in the
true meaning of this word is not completely correct, it is also incorrect to use such notions as
“the legislative power”, “executive power”, “judicial power.” It will be much true to speak of the
division of the state power to branches in conformity with their functions and to use such notions
as “the legislative branch of power”, “executive branch of power”, “judicial branch of power”.
However, the last three notions are rarely used; on the contrary the notions of “the legislative
power”, “executive power”, and “judicial power” are in common use. Thus, the more progressive
organization of the state power presupposes its functional division into three branches:
legislative, executive and judicial. Functionalism of the present classification or division means
that each of the said branches has its own state powers and also powers able to prevent the
interference of the two other branches of power into the sphere of its powers. The first powers
may be called “the powers of the main activity”, the second one - “powers of protective
activity”. The powers of the main activity of the state organs, which represent the legislative
branch of power, include basically the powers for the implementation of the law-making process.
In this process the said organs chosen by the people first analyze, then synthesize and finally fix
their will in form of a law obligatory for all. The powers of the main activity of the state organs,
which represent the executive branch of power, as it is known, include the powers for the
implementation of the will of the people fixed in the process of making laws and solution of
different issues on the basis of the law.
The powers of the main activity of state organs representing the judicial branch of power
include basically the powers, which settle in a civil manner the conflicts emerging between the
judicial and executive bodies of the state because of the contradictions in their views. Very often
“the legislative power has its own view of how the executive power must act, while the executive
power has also its own view concerning the law-making activity of the legislative power8.”
These two branches of power in no way must be held by one person or accumulated in one
person’s hands. “If the legislative and executive powers of the state merge and are possessed by
one person or body, there will not be freedom, because this monarch or senate may create
tyrannical laws in order to apply them tyrannically.” The said branches of power by no means
must occur in the hands of one person, because “if the legislative and executive powers merge
and belong to one person or institution, the freedom of the citizens will suffer, because the lawmaker will behave as the judge. If the judicial and executive powers are merged, then the judge
will have the chance to become an oppressor. If a state body or institution consists only of
dignitaries, aristocrats or common people, and if they have in their hands all these three powers,
all will perished, because they become the law-makers, executor of laws and persons who judge
for the committed crimes or settle the conflicts of persons9.”
The said branches of power themselves are not interested in the accumulation of all three
powers in one’s hands, because it leads to the loss of power and influence. To obstacle it they
use their protective activity power, and the aggregate of these activities together with the
precisely working mechanism of their application form the system of checks and balances. Thus,
the division of the state power means that there are three independent powers and in reality there
are no chances for them to assimilate the powers of each other illegitimately. None the less, the
said independence of the branches of power does not mean that they function in isolation. On the
contrary, the state functions only when these three branches of power work in close cooperation.
One of them cannot exist and function without the others, for instance, legislative without
executive power or vise-versa. It is impossible to have an absolute division of powers into
branches; otherwise none of these branches could function normally. J. Madison saw it clearly
enough, who noted in this connection: “There is not a case when the legislative, executive and
judicial powers…happened to be completely autonomous10”, and it is not even demanded that
they should be completely isolated from each other11.”
However, close relations among the branches of the state power inescapably demand the
equality of the branches of the state power in their triumvirate, though each of them would have
liked to possess all the state power and function alone and independently without the assistance
of other branches of the power.
As far as back John Lock noted in his book “Administration of the State” about the
recognition of the supremacy of the legislative power like this: “In all the cases when there exists
a government, the legislative power is supreme…The legislative power must be supreme in case
of necessity, the other branches of power in the person of some members or parts of the society
spring from that or are in its subjection12.”
The only source of power in all the democratic states is the people. The will of the people
is the basis of all the decisions adopted by the state through the representation of the people,
therefore the will of the people must find its expression in all the adopted decisions.
When speaking about the supremacy of the legislative branch of power, it is important to
specify one thing and try to draw the attention to the circumstances mentioned above. Supremacy
of the legislative branch of power does not mean that this branch is more important than the
other two. Had it been like that, then there would have been a misbalance among the branches of
the state power in their interrelations with each other, while the harmonious organization of the
state presupposes the establishment of relations on the initial independence of the branches of
power, on the equality of these branches and, consequently, on their equality.
In other words, by getting the power only from one source of power, that is, from people,
for expressing their will and for the adoption of decisions based on the will of the people, the
legislative branch of power has no right to exercise any action included into the domain of the
competence of the executive power. None the less, the legislative power authorized by the
people enjoys the right of controlling the fulfillment of the adopted laws by the executive power.
Otherwise, if the legislative branch of power had not the right to control the actions of the
executive power, it would have led to such a fact that of all the adopted decisions and laws based
on the will of people and which express the interests of people, would have been fulfilled only
those which would have satisfied the interests of the executive branch of power as well, and also
the decisions not based on the will of people, and even possibly contradicting their interests, but
fully satisfying the interests of a sufficiently narrow group of persons, who represent the
executive power. And as it is known, the executive power must exercise its powers only within
the frames of law by observing the norms of law strictly.
Thus, the command of the legislative branch of power, which in essence is the primary
one in nature, entitles it to control the activity of the executive branch, the latter being secondary
in comparison with it. In its turn, it is to the point to say that the possibility of conducting the socalled “parliamentary control” by the highest executive power in itself tells of the command of
the legislative power, of its being the primary power. The secondariness of the executive power
tells of its being a controlled branch connected at the same time of its being obedient to law. It is
true that in connection with this confirmation it is necessary to remind that in the present stage of
development “the governance of the state is completely a complicated phenomenon in life”,
therefore it must enjoy a certain freedom in its activities”. It is true that to have freedom in
administration must not be a complete arbitrariness (mera voluntas), but conform to the goals set
by the legislator for rule of the state.
Thus, we see that the administrative act is not a mere execution of laws, but an act of free
and purposeful activity within the frames of law and applicable to the goals of the governance
established by the law. Governance is recognized as an action liable to law. Liability of the
administrative act to law is not the simple observance of law, it is something more complicated.
Liability of the administrative law to law means the observance of the limits of law determined
for the administrative organ for freedom in its activity and for adapting its activity to the goals
determined by the provisions of law13.
However, it would be wrong to think that the right of the legislative organ to control the
activity of the executive power proceeds only from supremacy of the legislative branch of power
in the triumvirate of powers. It will be more exact to think that the parliamentary control itself
proceeds just from the division of power into branches, including from such an important
moment that this division is the recognition of the supremacy of the legislative power over other
branches in the sovereignty of the people.
The very principle of the division of powers does not allow any other branch of power
possess unlimited authorities14. In connection with it, the branch of power entitled to adopt a
decision, naturally suffices with its fulfillment. However, if, for example, adopting a decision
you have no right to implement it in life yourself, as someone else is entitled to realize it, you
must have at least the power to control its realization in order not to allow the implementer “ do
it exactly or visa-versa” and not turn it into a fiction. By taking part in the adoption of laws the
parliament cannot be indifferent to the execution of these laws, which becomes a material
expression of its work after their due legalization. It must have the authority to control their
implementation.
Thus, the right of the legislative power to control the activities of the executive power is
also connected with such a fact that it does not allow the violation of the balance of powers, even
usurpation of the power completely. It also allows make corrections in the laws adopted by its
own self.
Now it is completely evident that the right of the legislative branch of power, that is,
parliamentary control, derives from two sources, at which Ch. Montesquieu pointed in his time.
He wrote in particular that “firstly, it is necessary to elect the parliament, which represents the
people, in order to adopt laws and control the implementation of the laws passed by them, this
task may be fulfilled by them better than anyone else15, secondly, in free states the legislative
power has the right and must control on how the laws adopted by it are implemented...
However the right of the parliament to control the activities of other branches of the s
power has a third source.
It is obvious that each branch of the state power possesses certain powers of protective
activity. These powers allow them prevent other branches of power interfere into the sphere of
their competence. The right of the parliamentary control refers just to those competences of the
legislative power. Moreover, this right is the leading one among other rights mentioned above,
because, while conducting the control, the legislative power may detect violations or possible
means for the improvement of laws, and this, in its turn, may serve a basis for undertaking other
preventive or protective measures.
In the light of the afore-said it is important to note that the realization of such powers by
the legislative branch of the state power, that is, the right of the parliamentary control, is one of
the significant conditions of the effective work of the system of checks and balances, because
control in general, and also including the parliamentary control, may be called one of the
“whales”, which form the nuclear of the said system. And the very system of checks and
balances, which allows each branch of the state power control the others, is the cornerstone of
the principle of division of powers, because its action has been aimed directly at restricting the
means of one branch of the state power to usurp the whole state power. ”Organizational-legal
expression of the principle of division of the power presupposes the presence of the system of
checks and balances16. Thus, the right of the legislative branch of power to have control on the
executive branch of power results or proceeds:
*firstly, from the right of the legislative branch of power by virtue of its
representativeness in nature in the triumvirate of powers, in other words, from the peculiarities
of powers of the main activity of the legislative branch of power, the essence of which is that
only the parliament has been authorized as the only source of power in the state, because the
people entrusted on it to express their will and to adopt decisions based on that will, and also to
control the implementation of the adopted laws by which the legislative power controls the
implementation of the will of the people into life;
*secondly, from the volume of powers of the main activity of the legislative branch of
power, the essence of which is, on the one hand, that the parliament is entitled only to adopt
laws, but not entitled to implement them into life, because the implementation of laws is in the
competence of the government, it means that the legislative branch of power is restricted in the
manifestation of its own will, nevertheless, on the other hand, the parliament is entitled to
demand from the government to fulfill the decisions made by it;
*thirdly, from the powers of the protective activity of the legislative branch of power, the
essence of which is that only as a result of the realization of such a power as the parliamentary
control it may serve a reason for beginning the materialization of the majority of other powers of
the protective activity.
Thus, the right of the legislative branch of power to control the activity of the executive power
derives from the very essence of the principle of the division of powers.
Thus, evidently, there is the following interrelation: the right of the parliamentary control
proceeds from the principle of the division of powers, the realization of the parliamentary control
confirms and develops the principle of division of powers. Presence of such an interrelation
allows us speak about the existence of the phenomenon of the parliamentary control in the
context of the principle of division of powers, which, in its turn, gives us a chance to study in
detail the many-sided essence of the said phenomenon, to throw light on all its sides and apply
the obtained knowledge into practice.
2. The essence of the parliamentary control
What is the parliamentary control in essence?
It is not easy to answer to this question, because, unlike many notions, a more or less
satisfactory definition of the “parliamentary control” has not yet been coined in the theory.
Parliamentary oversight primarily represents the power of the representative body to affect and
have control over the executive and its agencies. In a democracy, this is a means of ensuring the
accountability of the executive and other institutions as applicable.
Control of the parliament on the activity of the government may be determined as a
complex of measures for examining the execution of laws by the government adopted by the
parliament. However, it is necessary to note here two moments at once. Firstly, parliamentary
control may be conducted fully and properly when the supreme legislative organ has the right to
control not only the activity of the highest organ of the executive power, that is, the government,
but also the activities of other organs of the executive power. Along with it, it is logical and
scientific from practical point of view to spread this controlling function on the activities of
enterprises in which the majority of shares belong to the state. Secondly, the parliamentary
control, reduced only to checking, inspecting and the like, as it was noted above, will be
senseless, the control must also include measures for removing the discovered violations.
The level of development of the parliamentary control has an impact on the level of
democracy in the country. In other words, the more developed is the parliamentary control in the
state, the more democratic is the political regime in it. At the same time it is possible to make a
reverse assertion: the more developed is the power of the people in the state, the more developed
in it is the parliamentary control.
Thus, when the level of understanding of the people in the country is high and they
understand that they are the only source of power, it naturally leads to such a fact that the said
people will constantly and with assurance use all the levers of influence at their disposal on the
legislative organ of power, that is, on the parliament in order to implement into life their will in
law-making, as well as their less important powers, which is the controlling power. The strength
of the influence of the people, who can apply to them concrete sanctions for improper fulfillment
of their powers, depends on the depth and precision of understanding by each parliamentarian
and the parliament wholly. Their comprehension of the responsibility in the form of the
application of the said sanctions also depends on it. Consequently, the degree or level of
reflection of the real will of the people in the decisions adopted by the parliament and the effect
of the control of the parliament on the fulfillment of the decisions by the government also
depends on the force of the influence of the people. It is clear that to adopt a decision is not yet
enough, it is necessary to implement this decision into life, and to implement it duly. Thus, the
people who understand their role in the state are able to influence the adoption of decisions
which respond to their interests and on the ardent exercise of control by the parliament on the
fulfillment of the said decisions by the government. In other words, development of the
parliamentary control depends on the development of democracy in the state.
As it was already said above, there is a feedback, the more developed is the parliamentary
control, the higher is the level of democracy in the political regime of the state.
Thus, conduction of strict control on the activity of the government in the fulfillment of
the decisions adopted by the parliament, without a due interference into its powers increase the
responsibility of the government and of its members for the due fulfillment of each state
decision. This in its turn leads to the due fulfillment of any decision; otherwise, necessary
sanctions may be applied. Fulfillment of decisions, which express the will of the people, by the
government in full conformity with the said will, leads to strengthening democracy in the
country, on the one hand, the possibility of fulfilling the decisions in this manner decreases, and
sometimes it even leads them to “nil” at the final end, it satisfies not the interests of the people,
but the interests of particular persons or group of persons, for instance, of the members of the
same government, and on the other hand, the consciousness of the people sharpens, when they
begin to understand their role as an only source of power in the state, they aspire to influence
actively on the process of adoption of decisions and on the state of their own lives.
Thus, on the one hand, “the enterprises based on the representation of people become
the best political schools for the people”, and on the other hand, “by having the right and their
own share in exerting influence on the government, the electors naturally take an active and live
part in them. Open and public discussion of vitally important issues develops the political
thinking in people, the necessity for combining efforts, cultivates practical skills in citizens. It is
possible to say that only with the help of enterprises based on the representation of people the
public opinion may gain an appropriate maturity17”. The parliamentary control in this case serves
democracy best and the parliamentary control develops mostly owing to the high level of
democracy in the state.
Thus, parliamentary control may live and develop only in states with democratic political
regimes, otherwise, it is nonsense. It is also necessary to add that the parliamentary control and
democracy are interdependent and closely interconnected.
However, not only the developed parliamentary control and democracy in countries are
interrelated, there is also an interrelation between the force of influence, which the highest
legislative organ in the state possesses in exercising its controlling function, and the form of
governance, or form of rule. It is clear that the form of governance is the organization of the
highest organs of the state power and the order and form of relations among them.
Such interrelations are observed in all democratic states with monarchic form of rule and
in the countries with the republican form of rule.
Two classical forms of the republic are distinguished: parliamentary and presidential. In
few words and from a more interesting position for us, that is, from the position of the division
of powers into legislative and executive, each of them may be characterized like the following.
In the parliamentary republic the executive power in fact is the continuation of the
legislative. Parliament, or to say more exactly, the parliamentary majority, forms the government
and the prime minister and has the right to dismiss the government. The government resigns and
loses the majority in the parliament.
The system of state power in the parliamentary republic is rather asymmetric, because the
executive power is formed by the legislative power; the former depends on the latter. However,
such an imagination is not completely true, because, though the government is formed by the
parliament, and its life depends on the majority in the parliament, nevertheless, the executive
branch of power is sufficiently independent in its activity, though it is controlled by the
legislative power. Besides, even in such dependence of the executive power on the legislative
power the system of checks and balances, which functions effectively and all the time, does not
allow the legislative power interfere into the activity of the executive power.
Presidential republic is characterized by a large gap in the division of legislative and
executive powers than in the parliamentary republic. In this form of the republic the elected head
of the state is simultaneously the head of the government. Namely, he forms the government, in a
number of countries it is done with the consent of the parliament, in some others - without it. He
has also the right to dismiss the government. Because of it, the government is accountable to the
head of the state, but not to the parliament. In case of absence of such an unaccountability, and
consequently, absence of responsibility, allowed in the past and allows at present rarely
determine such a state as “irresponsible”.
What the parliamentary control in the presidential republics concerns, by force of the
above-mentioned reasons, we must say that it is less real and senseless than that in the
parliamentary republics.
Thus, from the position of the division of the power into legislative and executive
branches one may conclude that in the parliamentary republic the parliament and government are
more interdependent than in the presidential one, but this dependence is completely within an
admissible frame from the point of view of the principle of division of powers. Therefore, the
probability of conflict between the parliament and the government in the parliamentary republic
is quite minimal, but in the presidential republic the risk of conflict is sufficiently high, it may
even lead to a constitutional crisis, besides of all other reasons it may emerge as a result of
confrontation between the parliament and the head of the state if both of them have been elected
by the people and express their will.
It is clear that the control of the parliament on the activity of the government in the
parliamentary republic is much more a natural and painless process than in the presidential
republic. A strong parliamentary control is more important namely for the presidential republic
than for the parliamentary republic.
3.Contemporary problems of the parliamentary control
Parliamentary control is an integral part of democracy, but on one condition. The essence
of this condition is that the parliamentary control will be on guard of the democratic
achievements in the state only when the parliamentary control itself is implemented into life by
the legislative branch of power democratically, that is, in conformity with definite principles.
Formula of the parliamentary control in simple form may be expressed like this: when
passing a law in the interests of the people, the parliament itself is interested in its proper
execution, but having no chance to execute it independently in conformity with the principle of
the division of power, it has the right to control the execution of the said law by the government.
Nevertheless, the parliament is not almighty.
Firstly, execution of the legislative function by the parliament takes a long time.
Therefore it simply does not have time for the conduction of control qualitatively. If it is unable
to control the implementation of all the laws adopted by its own self, but does it superficially,
which is quite natural, it is naturally playing into the hands of the executive power.
Secondly, it is hardly possible to enumerate all the issues, which must be solved through
the adoption of laws by the parliament. Thus, the sphere of the legislative activity of the
parliament is very immense. But its sphere of control is much more boundless, because,
implementation of laws by the executive power is a creative process to some extent. It is
explained, on the one hand, by such a fact that it was and will be natural for the executive power
to aspire for the implementation of laws in its own favor, on the other hand, to demand from the
executive power a pure mechanical implementation of laws will be simply absurd because of
inefficiency of such an implementation deprived of independence, which could have allowed, for
example, choose the means by taking into account the moment, if the goals have been defined by
the law categorically. As is known, “it is demanded efficiency from the executive power in its
activity in the operative rule of the public life and honesty in observing the laws18”. In
connection with it “the executive power must be given sufficiently enough authority and
independence for implementing its functions into life within the frames of law19”.
Thirdly, besides its legislative and controlling functions the parliament must also fulfill
other functions laid on it which require time and power.
Fourthly, the work of the parliament is periodical in nature, that is, unlike the work of the
organs of executive power, there are stoppages in the work of the parliament. Nevertheless, if the
stoppages in the legislative activity of the parliament are even completely admissible, stoppage
in its controlling activity is not admissible, but even dangerous. Lack of control of the legislative
power on the activity of the executive power even for a small period of time is able to lead to
serious negative consequences.
Thus, all the above-enumerated factors taken separately, and the more so as all the aboveenumerated factors taken together, do not allow the parliament to have a quality control on the
activities of the executive power. In connection with it the parliament cannot be as the only
organ of the parliamentary control.
4. The boundaries of exercising the parliamentary control
Exercise of control on the activities of the executive power by the legislative power is an
important direction in the activity of legislative power. The parliament, which is unable to fulfill
its controlling function or ignores the fulfillment of the controlling function, “withers out” as the
highest organ of legislative power and turns into an automatic machine for the adoption of laws,
in this case the organs of executive power will fulfill only those which are useful and beneficial
for them.
However, the exercise of control by the organs of the legislative power is not so
important. The most important is that separate officials taking part in this process understand the
essence of the parliamentary control and know what types of parliamentary control are there in
the world.
Classification of the types of the parliamentary control may be conducted on several
grounds.
Thus, the existing variety of the organs of the parliamentary control is taken as a basis,
and then it is possible to distinguish the following types of the parliamentary control:
*parliamentary control conducted by the parliament itself;
*parliamentary control conducted by the organs, which are in the structure of the
parliament, and by the officials (chambers of the parliament, committees and commissions of the
parliament, chairs of the chambers of the parliament, parliamentarians, etc.);
*parliamentary control conducted by the organs not included into the structure of the
parliament and by the officials (chamber of audit, commission on human rights under the
parliament, ombudsmanship, etc.).
It is possible to distinguish the following types of the parliamentary control:
*parliamentary control in the sphere of protection of human rights and freedoms in the
state;
*parliamentary control in the sphere of finances or financial parliamentary control;
*parliamentary control in the sphere of defense and security of the state;
*parliamentary control in the sphere of information or informational parliamentary
control;
*parliamentary control in the sphere of ecology or ecological parliamentary control, etc..
Three of the above-given grounds for the classification of the parliamentary control may
be admitted as basic ones and therefore sufficient, though it is possible to have classifications on
other grounds as well.
It is important for us to classify the types of parliamentary control, because by doing it we
make an attempt to throw light on the versatile essence of such a phenomenon as the
parliamentary control and strive to show not the whole might of the parliamentary control, but
how separate manifestations of its resources may raise the role of the legislative power in the
triumvirate of powers, and on the account of it provide the establishment of a balance among the
branches of power and assist the organization of the power in the state in strict order in
conformity with the principles of the division of powers.
However, the versatility of the essence of such a phenomenon, as the parliamentary
control, cannot be reflected fully if the boundaries of the conduction of parliamentary control are
not established.
The question is like this: must the parliamentary control have any limits or boundaries, if
it must have, then what are they? This is one of the not less important questions which arise
when the phenomenon of the parliamentary control is studied in the light of the principle of
division of powers.
To answer to the first part of the question is not difficult if we take into account all the
above-enumerated.
As it was noted a little above, it is true that the principle of the division of powers
presupposes such an organization of the power in the state, in which the state power is divided
into three branches. Such a functional division of powers presupposes not only the realization of
the power of the branch its activity in certain sphere, but also the adoption of measures for
preventing the two other branches not interfere into the sphere of the activity of other branches
of power. In other words, guarantee of non-interference of one branch of the power into the
sphere of activity of another branch of power is an important condition for the organization of
the power in the state in conformity with the principle of the division of powers.
In connection with it one of the main functions of the division of powers, which is the
controlling function, must be exercised by the said power as all its main and secondary functions
without the interference into the activities of the executive and judicial powers. It would be an
ideal if non-interference is ensured not only with the efforts of the executive or judicial branches
of power, but also by the good will of the legislative branches of power within reasonable limits.
Thus, the parliamentary control must have certain limits and it must have them in the
states where the power is organized in conformity with the principles of the division of powers.
But what are these limits?
Answer to the second part of the question put at the beginning is sufficiently important,
because, by the parliamentary control within the frames of this work it was decided to
understand the activity of the legislative power in controlling the activity of the executive power
and adoption of measures of reaction in case of discovery of the violation of laws by the
executive power in the process of implementation laws, but in this case the boundaries of the
activity of the legislative power were not determined clearly neither in the first, nor in the second
case. However, it is very important, because, as it is understood, the absence of boundaries in the
activity of the legislative power in the first case forms grounds for the interference into the
activity of the executive power, in the second case - for the interference into the activity of the
judicial power.
Interference of the legislative power into the activity of the executive power in the first
case may take place, for instance, when an organ of parliamentary control gives an instruction to
the subject under control on the ways of fulfillment of a law, which must be fulfilled obligatorily
and which does not stipulate the achievement of goals set in them by concrete means. At the
same time the executive power, as it was noted above, must have a certain independence in the
implementation of laws adopted by the parliament - the highest elected organ, and possess the
chance of an initiative in the choice of means of activity, if, of course, it has not been directly
stipulated in the law of the state.
Thus, while implementing into life its controlling function, the interference of the
legislative power into the activity of the other two branches of power is possible. Therefore the
parliamentary control must have limits. The boundaries of the parliamentary control end where
the authorities of the main activities of the executive and judicial powers begin, in conformity
with the principle of the division of powers the legislative branch of power has no right in any
case interfere into the sphere of their activities.
The principle of division of powers allows the legislative organ conduct controlling
measures in such forms as the appeal of the parliament to the government with inquiries and
interpellations, inquiries of parliamentarians, demand of the parliament obliging all the members
or separate members of the government to take part in the sessions of the parliament with the
purpose of getting answers to the questions directly, in which the parliament is interested,
establishment of permanent committees and commissions and control their activities,
establishment of provisional controlling committees and commissions, including investigation
commissions, and control their activities, establishment of other organs of parliamentary control
(chamber of audit, commission on human rights under the parliament, etc.) and control their
activities, appointment of commissioners for conducting parliamentary control in different
spheres of the life of society (ombudsman, etc.) and control their activities and others.
The principle of division of powers allows take a complex of measures on the results of
the parliamentary control such as, for instance, measures of reaction as vote of confidence or
vote of no-confidence in the government, appreciate positively or unsatisfactory the activity of
the government, impeach the president from office, use the institute of collective and individual
responsibility of the members of the government to the parliament as an organ elected by the
people.
Conclusion
Thus, to sum up to all the above-said it is necessary to note the followings:
*firstly, the versatile essence of the parliamentary control, which allows speak of it as a
phenomenon, may be partly cognized through apportionment and analysis of the types of the
parliamentary control;
*secondly, the types of the parliamentary control may be classified on several grounds:
on the existing variety of the organs of the parliamentary control, on the time of exercise of the
control by the legislative power on the activity of the executive power, on the sphere in which
the activities of the executive power and its functionaries are subject to the parliamentary
control;
*thirdly, on the time of exercise of the control by the legislative power on the activity of
the executive power, it is possible to distinguish such types of the parliamentary control as the
preventive parliamentary control, concomitant parliamentary control and subsequent
parliamentary control;
*fourthly, each of the above-enumerated types of the parliamentary control is
independent in significance, but in practice to exercise all the three together as three stages of a
single process, that is, of the parliamentary control, is able to ensure “the instantaneous” control
of the legislative power on the activity of the executive power, through it strengthening the
position of the principle of the division of power in the state;
*fifthly, each of the enumerated types of the parliamentary control may exist in its
specific form, but there are also forms common for all the three types of the parliamentary
control, each type of the parliamentary control in this or other form finds its expression in reality
with the help of definite organs of the parliamentary control, nonetheless, some of the mentioned
organs, in particular, the very parliament itself has the chance to take part in the exercise of all
the three types of the parliamentary control, each of the enumerated types of the parliamentary
control is usually accompanied by the application of certain warning measures about the
violations of laws of the state by the executive power and by certain measures for the committed
by the said branch of power, but some warning measures and the measures of reaction may be
applied by the legislative power within the frames of any of these three types of the
parliamentary control;
*sixthly, in conformity with the principle of the division of powers the parliamentary
control has definite limits lying where the powers of operative and executive-administrative
activity of the executive power and the powers of the judicial power for administering justice
begin;
*seventhly, comprehension of the significance of establishing the boundaries of the
parliamentary control allows organize the interrelation of the legislative and executive powers of
the state on the basis of the principle of division of powers, which in its turn allows speak about
the existence of the phenomenon of the parliamentary control.
Thus, the essence of such a phenomenon as the parliamentary control is versatile. It may
be viewed from different points of view, from different sides, through different specters, while
doing it, other aspects of the phenomenon of the parliamentary control unknown before will
come into view. The more this phenomenon is comprehended, the deeper will be the cognition of
the importance of the parliamentary control in raising the authority of the legislative power, in
achieving a balance in their triumvirate, and with it in the work of organization of the power in
the state in strict conformity with the principle of division of powers, as well much more
energetic will be the implementation of the very principle of the division of powers into life.
References
1.МарченкоМ.Н.
Проблемы
теории
государства
и
права.
Учебник.
М.:Проспект,2001.-С.312
2. Косов Р.В. Пределы власти (история возникновения, содержание и практика
реализации доктрины разделения властей) Издательство ТГТУ Тамбов. 2005.
3. Чиркин В.Е. Контрольная власть. – М.: Юристъ, 2008.
4. Манова Г.И. Теория права и государства. Учебник для ВУЗов. - М.: Издательство
БЕК.1996
5. Коломийцев В.Ф. Демократия – это гражданское общество и правовое государство//
«Гражданин и право.№4.апрель.2008
6. Хропанюк В.Н. Теория государства и права: Хрестоматия. Учебное пособие.М;
Интерстиль. 1998,С.936
7.Чиркин В.Е. Государствоведение:Учебник. М.-Юристь. 1999. С.400
8. Раянов Ф.М. Юриспруденция: Курс лекций. - Уфа.: издание Башкирского
Государственного Университета. 2001. - С. 189
9. Утяшев М.М. Курс лекций по истории политических и правовых учений.
— Уфа: Полиграфкомбннат, 1999.-С.272.
10. Федералист. Политические эссе А. Гамильтона, Дж. Мэдисона и Дж. Джея: Пер. с
англ. / Под общ. Ред., с предисл. H.H. Яковлева, комент. О.Л, Степановой. - М,:
Издательская группа "Прогресс" - "Литера", 1993. - С.323-327, С.ЗЗ 1-333
11. Барнашов А.М. Тоерия разделения властей: становление, развитие, применение.
Томск, Изд-во ТГУ.1988.С .10-11
12.Локк Дж. Избранные философские произведения. В 2-х т. М. Издательство соц.
Эконом. Литературы. 1960.Т.2, с.112
13. Тарановский Ф.В. Энциклопедия права, 3-е изд. - СПб.: Издательство "Лань", СанктПетербургский университет МВД России и Академия права, экономики и безопасности
жизнедеятельности, 2001. - С.524-525.
14. Раянов Ф.М. Юриспруденция: Курс лекций. - Уфа.: издание Башкирского
Государственного Университета. 2001. - С. 192.
15. . Монтескье Ш, Л. Избранные произведения. - М.: Гоеполитиздат, 1955. С. 290-291.
16. Теория права и государства. Учебник для вузов / Под ред. проф. Г.Н. Манова, - М.:
Издательство БЕК, 1996.-С.258.
17. Чичерин Б.Н. О народном представительстве. М.1899,С.45
18. Раянов Ф.М. Юриспруденция: Курс лекций. - Уфа.: издание Башкирского
Государственного Университета. 2001. - С. 193
19. Раянов Ф.М. Юриспруденция: Курс лекций. - Уфа.: издание Башкирского
Государственного Университета. 2001. - С. 194