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Checks and Balances

Faculty of Law UI

Counterbalancing influences by which an organization or system is regulated, typically those ensuring that political power is not concentrated in the hands of individuals or groups.

Checks and balances was the system added to the separation of powers to make sure on group doesn't become more powerful than the others. This means each branch observes the other groups and what they are currently doing so that they don't have more power over what the others are doing. 

 A system that allows each branch of a government to amend or veto acts of another branch so as to prevent any one branch from exerting too much power

Definitions

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It was John Locke who came up with the idea about the necessity to divide state power into 3 (three) functions namely (1) Legislative, (2) Executive, and (3) Federative.

Based on John Locke’s idea, Montesquieu in his book published in 1748, “L’Esprit des Lois” (The Spirit of Laws), divided state power into 3 (three) branches, namely (1) legislative, (2) executive and (3) judicial powers.

Separation of Power

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To prevent one branch from becoming supreme,

To protect the "opulent minority" from the majority, and

To induce the branches to cooperate, government systems that employ a separation of powers need a way to balance each of the branches

The term ‘separation of powers’ is misleading

Powerholders are separated between different institutions

But many powers are shared between institutions

Better description:‘Separated institutions

sharing powers’ (Richard Neustadt, 1960)

Checks and Balances

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Checks and Balances Mechanism

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Faculty of Law UI

Checks and Balances Mechanism

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In the context of Indonesian state administration system following the amendments to the Constitution in 1999 -2002, the concept of separation of powers is applied by referring to the following principles:

First, the legislative, executive and judicial powers have different functions, namely to make laws, to implement laws and to administer courts in order to enforce laws and justice, respectively.

Second, it is not allowed to hold concurrent positions in those three branches of power.

Reformation 1998

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Third, none of these institutions can intervene in the implementation of their respective functions.

Fourth, the principle of checks and balances prevails among the branches of power.

Fifth, the branches have equal positions with coordinative function rather than subordinative function.

(Moh. Mahfud MD)

Reformation 1998

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MPR

BEFORE AMANDMENT UUD 1945

BPK DPR PRESIDEN DPA MA

AMANDMENT UUD 1945

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kpu

TNI/POLRI

dewan pertimbangan

badan-badan lain yang fungsinya ber kaitan dengan kekuasaan kehakiman

KYKementerian

Negara

PUSAT

TUN

Militer

Agama

Lingkungan Peradilan

PEMDA PROVINSI

DPRDKPD

PEMDA KAB/KOTA

DPRDKPD

bank sentral

DPR DPDMPR

PERWAKILAN BPK PROVINSI

Presiden/Wakil

PresidenBPK MA MK

UUD 1945

DAERAH

Umum

AFTER AMANDMENT UUD 1945

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Each institution: ◦ Has separate membership ◦ Is chosen by a different method◦ Is chosen for a different length of time

In 2008No person can serve in two institutions at the same time

Obama and Biden were members of the Senate when they were elected to the presidency and vice presidency

On election to the executive branch, their seats in the Senate became vacant

Separation of powers

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Legislative Branch

Executive Branch

Judicial Branch

Art. 23F par (1)Art. 5 par (1)Art. 20 par (1), (2), etcArt. 11 par (2)Art. 13 par (2), and (3)

Art. 7B par (1), (2), ectArt. 24C par 2

Art. 7CArt. 24A par (3)Art. 24A par (3)

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Art. 23F par (1) Art. 5 par (1) Art. 20 par (1), (2), etc Art. 11 par (2) Art. 13 par (2), and (3)

Legislative and Executive

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Art. 7B par (1), (2), ect Art. 24C par 2

Judicial and Executive

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Art. 7C Art. 24A par (3) Art. 24A par (3)

Judicial and Legislative

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Art. 14?