Naslov
Principle of the Separation of Powers and the Constitutional Justice System

Autori
Omejec, Jasna

Vrsta, podvrsta i kategorija rada
Sažeci sa skupova, pp prezentacija, znanstveni

Skup
Conference of bodies of Constitutional control of Central Asia "The Role of the Constitutional Court in Safeguarding the Supremacy of the Constitution"

Mjesto i datum
Strasbourg, Francuska, 28.10.2015. - 29.10.2015

Vrsta sudjelovanja
Plenarno

Vrsta recenzije
Nije recenziran

Ključne riječi
Principle of the Separation of Powers; National Constitution; Constitutional Court; Central Asia countries; Croatia

Sažetak
The work deals with the Montesquieu's theory of separation of powers ("When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty … Were [the judiciary power] joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control ; for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end to everything …” Spirit of the Laws), as well as the "Madisonian Model" of checks and balances ("[Montesquieu] did not mean that these [branches] ought to have no partial agency in, or no control over, the acts of each other. His meaning … can amount to no more than this, that where the whole power of one [branch] is exercised by the hands that hold the whole power of another, the fundamental principles of a free constitution are subverted. [T]here is not a single instance in which the several [branches] of power have been kept absolutely separate and distinct", The Federalist Papers: No. 47). It also deals with Article 16 of the 1789 French Declaration, which prescribes that any society, in which the separation of powers is not determined, has no Constitution. After that, the work goes beyond the traditional principle of the separation of powers: to an examination of the role, place and meaning of the constitutional justice system in the light of this principle. This is not an easy issue to discuss, because it goes to the very essence of the structure of the states and raises questions concerning the manner in which the states are governed. Therefore, issues related to the separation of powers and constitutional justice are not only of a legal nature, but they are also political issues par excellence. Indeed, the idea of separation of powers "could serve as a transmission belt for the conversation between constitutional law and political theory and bring the two disciplines closer together" (Mollers, Christoph (2013) The Three Branches: A Comparative Model of Separation of Powers, Oxford Constitutional Theory, Oxford: OUP, 3). As Mollers pointed out, "separation of powers should not be understood as a pure instrument of restraining political power. It is also an instrument that constitutes this power. There is no legitimate structure of separated powers without a political lawmaker, but the idea of a 'political lawmaker' is in itself not a purely political one." (Mollers, 10). In this light, the constitutions of five countries of the Central Asian region (Kazakhstan, Kyrgyz Republic, Tajikistan, Turkmenistan and Uzbekistan) have been examined. After the collapse of the Soviet Union, these five countries took different paths in establishing new states. However, they all guaranteed the principle of the separation of powers in their new constitutions. Moreover, the Constitution of Kazakhstan also explicitly refers to the system of checks and balances, while the Constitution of Turkmenistan refers to the achievement of a balance among all branches of power. At the same time, the bodies of constitutional control in Central Asia represent the whole variety of constitutional justice systems. Turkmenistan does not have a Constitutional Court at all. On the other hand, there are traditional constitutional courts in Uzbekistan and Tajikistan. Kazakhstan has a Constitutional Council and the Kyrgyz Republic has a special Constitutional Chamber of the Supreme Court. Presenting the models of government in Croatia and Germany, the author pointed out that there is variety of modern constitutionalism based on the very same idea of the separation of powers, which is normatively as well as factually open to different institutional solutions. It also clearly shows that we must ask ourselves how the idea of separated powers was put into effect in different traditions. This is the only way to show its normative and descriptive value for contemporary legal orders.

Izvorni jezik
Engleski

Znanstvena područja
Pravo

POVEZANOST RADA