The principle of Separation of Powers

EUROPEAN SCHOOL OF LAW AND GOVERNANCE

Explain the principles of separation of power with a
special view of the judiciary, between law jurisdiction
and law making

Introduction to law

Professor : Robert Muharremi

Student : Andi Belegu

Contents
Introduction ................................................................................................................................................... 3
1.

Separation of powers – Term and explanation...................................................................................... 3

2.

The history of the separation of powers ................................................................................................ 4
2.1 Ancient Greece.................................................................................................................................... 4
2.2 Ancient Rome ..................................................................................................................................... 4
2.3 Middle Ages ........................................................................................................................................ 5
2.4 Renaissance ......................................................................................................................................... 5

3.

Separation of powers in different systems and countries ...................................................................... 6
3.1

United States of America .............................................................................................................. 6

3.1.1

The legislative power ............................................................................................................ 6

3.1.2

The executive power ............................................................................................................. 6

3.1.3

The judicial power ................................................................................................................ 6

3.2

People Republic of China ............................................................................................................. 7

3.2.1
3.2.2

The executive branch ............................................................................................................ 7

3.2.3

The legislative branch ........................................................................................................... 7

3.2.4

The juridical branch .............................................................................................................. 7

3.2.5
4.

The political branch .............................................................................................................. 7

The military branch ............................................................................................................... 8

The separation of powers in the Republic of Kosovo ........................................................................... 8
4.1. The Assembly of Kosovo (The legislative) ....................................................................................... 8
4.2 The Government of Kosovo (The executive)...................................................................................... 9
4.2.1 The competences of the Prime Minister..................................................................................... 10

5.

The Justice System of Kosovo (The judiciary) ................................................................................... 10

6.

The Constitutional Court (The Judiciary) ........................................................................................... 11

Conclusion .................................................................................................................................................. 12
Bibliography ............................................................................................................................................... 13

2

Introduction
History and time has shown to human kind that concentrating too much power in the
hands to a person further more when this people abuse and are not the ones the power should be
concentrated to. History has shown that mankind has been a victim, millions of people died
because of the overuse of the political power over passing the amount of power they should
have. The case of Hitler, Enver Hoxha, Stalin and other dictators shows that the world should
have an order of separation of powers.
The separation of powers is a very important element of judiciary functioning worldwide. In
different countries and political systems the separation of powers is done in different ways and
different structures. This essay tends to give information about the functioning of the separation
of powers in different places.
First of all the essay will give some information about what the separation of powers mean, it
will show a short history and the juridical impact of this separation.

1. Separation of powers – Term and explanation
The separation of powers stands for an act of vesting the legislative, executive, and judicial
powers of government in separate powers. Basically the separation of powers means the division
of state or federal government into three independent branches. Under each branch every
institution or division has its own powers. The doctrine of the separation of powers distinct the
state in three main columns, the legislative which prepares and approves the laws and
regulations, the executive which applies the law, and the judiciary which oversees the application
and the applicability of a certain law.
The doctrine of the separation of powers originates from the very first political systems and
3

regulations of human ambient. Supported by lay and different legal regulations the separation of

powers regulates the relations and balances the impact of a certain person or committee in
different cases. 1
The separation of powers is dictated by the political system of a country, thus it derives from the
constitution and is regulated differently in countries with different political regulations such as
Monarchies, presidential, parliamentarians etc.

2. The history of the separation of powers

The separation of powers dates back in antiquity, the so called system of a mixed government
can be found in the very first political philosophies of Aristotle in Greece or in the Histories of
Polybius in Ancient Rome. The first separation philosophies were philosophies which integrated
elements of democracy, aristocracy, and monarchy specifically some of the issues were decided
by the majority of the people, some issues by few and some others by a single person.

2.1 Ancient Greece
In the ancient Greece Plato in his book the Republic divided governing in five basic types;
Democracy (government by the people), oligarchy (government by few) , Timocracy
(Government by the honored), Tyranny (government by one), and aristocracy (government by
the best ). Afterward Aristotle embraced the Plato’s ideology and systems but excluded
timocracy, he brought a combination of oligarchy and democracy creating an ideal system of
government under law, and he discovered a cycle system of changes between the three forms and
called it the kyklos or anacyclosis. After Aristotle, Polybius argued that all states have a
governing system which is a combination of the three forms Aristotle proposed and called it a
mixed government system. 2

2.2 Ancient Rome
In Rome they were manifesting the theory of Aristotle. The system was separated in the three
subject of Aristotle, the monarchy was embodied by consuls, the aristocracy by the senate, and
4
1

2

(Dupre 2011)
(Anastasi 2010)

democracy by the elections and the public gatherings. The main person to develop the theory of
Separation of powers in Rome was Cicero who was influenced by Polybius. 3

2.3 Middle Ages
The history of the separation of powers continues also in the darkest era of mankind in the
middle ages. Thomas Aquinas would be the person who would proclaim the equality and the
need for distribution of powers by this time. He expressed his ideas in his letter On Kingship. He
gave the idea that a monarchy with some limitations set by the aristocracy and democratic
elements, would be the best governing system to use. He emphasized the monarch’s duty to
uphold the divine and natural law and abides by limitations imposed by the monarch and the
custom law. 4

2.4 Renaissance
As everything else also the political thinking grew during the time of Renaissance and
enlightenment period of history. By this time Cicero got extremely well regarded and many of
his ideas were embraced. Also Polybius got reread and his system was pleasing for that period o
the mixed government became a central aspect of politics which by this time developed to
republicanism. So many famous philosophers of renaissance such as Hobbes, Locke, Vigo,
Montesquieu, Rousseau, Kant etc. discussed in details about the theories of mixed governing.
Apart from the others the one who was more devoted to this topic was Montesquieu who was the
author of the concept of the separation of powers. This system of Montesquieu is known as the
Montesquieu Tripartite System5
In the modern era the governing system can’t be imagined without the idea of the separation of
powers. Every single country has its way of the form of separation they apply in their borders.
The modern form of the separation of powers proposed by Montesquieu is still the most used one
the one that separated the power in Executive, Legislative and Judiciary.

5
3

(Millar 2002)
(Litzinger 1993)
5
(Hampton 1997)
4

3. Separation of powers in different systems and countries
According to the political the system of power separation is structured in different manners
following you can find some examples of power separation in different countries.

3.1 United States of America
The United States of America according to the constitution is a country with a pure presidential
system where the president is elected by the people themselves. The power in the United States
is separated in three main branches, the executive, the legislative and the judicial. In order to
prevent the abuse of power this branches are kept distinct between each other. The separation of
powers in United States is associated with a system of checks and powers. 6
3.1.1

The legislative power

Congress has the sole power to legislate for the United States and may not delegate their
lawmaking responsibilities to any other agencies. This doctrine of no delegation doctrine helps
the congress to approve laws which are unlikely to go to the Supreme Court which has the
authority to push them back .
3.1.2

7

The executive power

The executive powers belong to the president office. The president is the Commander in chief of
army and nave, Militia of several states, and has the power to make treaties and appointments to
office with the advice and consent of the senate and should take care that laws are faithfully
executed. Thus the president cannot force the law himself but is instructed by the congress. In
some cases if the President does not show capability of forcing a law the congress has the right to
terminate such appointments by impeachment and restriction to the president.8
3.1.3

The judicial power

The power of deciding cases and controversies belongs to the juridical system .The highest legal
institution of the United States is the Constitutional Court which is formed by the judges of the
Supreme Court appointed by the president in consent of the senate. The state also has lower level

6
6

(Kilman, J. & Costello, G. 2000)
8
7

courts and other juridical institutions regulating the relations between people, between people
and state etc. 9

3.2 People Republic of China
The People Republic of China ( hereinafter referred as PRC) divides its powers in 5 branches. 10
3.2.1

The political branch

The political branch is essentially the Communist Party of China. Since China is a one-party
state, this branch monopolizes all the other branches. Anyway the party is the most powerful one
known in the world because it has about 80 million members. 11

3.2.2

The executive branch

This is the state council consisting of 50 people selected by the National People’s Congress
(Legislative Branch). The current premier of China Li Keqiang is responsible to oversee the state
and provincial governments and the Communist party of China. 12
3.2.3

The legislative branch

This is the National People's Congress, which is the only legislative body in China, instead of
being split into 2 like the US with its Senate and House of Representatives. It's mainly a forum
for debating bills put forward by the Political Branch, and it has very rarely refused one. A vast
majority of its members are also in the Communist Party of China. 13
3.2.4

The juridical branch

The Judicial Branch. This is the Supreme People's Court, along with 300 other tribunals. Hong
Kong and Macau are excluded from this. As well as judging Constitutional cases, this court also
judges criminal cases, unlike the US Supreme Court. 14

9

7

(Joseph 2010)
11
(Joseph 2010)
12
(Joseph 2010)
13
(Joseph 2010)
14
(Joseph 2010)
10

3.2.5

The military branch

The Military Branch. This is the Central Military Commission, responsible for the People's
Liberation Army (Includes the Army, Navy and Air Force) and the People's Armed Police
(Equivalent to US National Guard). This branch is responsible for all of China's military
agencies. 15

4. The separation of powers in the Republic of Kosovo

According to the constitution of the Republic of Kosovo, the state is defined as an independent,
sovereign, democratic, and indivisible state. The republic is a state of its citizens. It exercises the
authority based on respect of human rights and freedoms of its citizens and all other individuals
within its borders. The state has no territorial claims against or shall seek no union with any state
or part of any state. 16
According to the highest legal document of the state which states that “Kosovo is a democratic
Republic based on the principle of separation of powers and the checks and balances among
them as provided in this Constitution.”17

4.1. The Assembly of Kosovo (The legislative)
The assembly of Kosovo has one hundred and twenty deputies which have the power to adopt
the laws, resolutions and other general acts, decides the amendment of the constitution, has the
power to announce referenda in accordance with the law, ratifies international treaties, approves
the budget of the Republic, elects and dismisses the president and deputy presidents of the
assembly, elects and may dismiss the President of the Republic, elects the government and
expresses no confidence in it , oversees the work of the government and other public institutions
that report to the Assembly in accordance with the Constitution and the law, elects the members
of the Kosovo Judicial Council and the Kosovo Prosecutorial Council in accordance with the
Constitution, proposes the judges for the Constitutional Court, oversees the foreign and security
8
15

(Joseph 2010)
The constitution of Kosovo – Article 1
17
The constitution of Kosovo – Article 4 – 1
16

policies, gives the consent to the President’s decree announcing a state of emergency, and
decides and decides regard to general interest issues as set forth by the law. 18
The Assembly is elected for a mandate of four years but the Mandate of the Assembly of Kosovo
may be extended only in a State of Emergency for emergency defense measures or for danger to
the Constitutional order or to public safety of the Republic of Kosovo and only for as long as the
State of Emergency continues as regulated by the Constitution.

4.2 The Government of Kosovo (The executive)
The Government of Kosovo consists of the Prime Minister, deputy prime ministers and
ministers. The Government implements laws and other acts adopted by the Assembly of Kosovo
and exercises other activities within the scope of responsibilities set forth by the Constitution and
the law. The Government makes decisions in accordance with this Constitution and the laws,
proposes draft laws, proposes amendments to existing laws or other acts and may give its opinion
on draft laws that are not proposed by it.19
Following the Constitution the Government has the power to propose and implement the internal
and foreign policies of the country, promote the economic development of the country, propose
draft laws and other acts to the Assembly, make decisions and issues legal acts or regulations
necessary for the implementation of laws, propose the budget of the Republic of Kosovo, guide
and oversee the work of administration bodies, guide the activities and the development of public
services, propose to the President of the Republic of Kosovo the appointment and dismissal of
the heads of diplomatic missions of the Republic of Kosovo, propose amendments to the
Constitution, may refer Constitutional questions to the Constitutional Court, exercise other
executive functions not assigned to other central or local level bodies.20
The Government is accountable to the Assembly of Kosovo regarding its work.21

9
18

The constitution of Kosovo- Article 65

The Constitution of Kosovo – Article 92
21
The Constitution of Kosovo –Article 97
19
20

4.2.1 The competences of the Prime Minister

The Prime Minister has the following competencies, represents and leads the
Government, ensures that all Ministries act in accordance with government policies, ensures the
implementation of laws and policies determined by the Government, may change members of the
Government without the consent of the Assembly, chairs the Kosovo Security Council, appoints
the Kosovo Police General Director, consults with the President of the Republic of Kosovo on
matters of intelligence, in cooperation with the President, jointly appoints the Director, Deputy
Director and Inspector General of the Kosovo Intelligence Agency, consults with the President
on the implementation of the foreign policy of the country, performs other duties as set forth by
the Constitution and the law.22

5. The Justice System of Kosovo (The judiciary)
Judicial power in the Republic of Kosovo is exercised by the courts. The judicial power is
unique, independent, fair, apolitical and impartial and ensures equal access to the courts. Courts
shall adjudicate based on the Constitution and the law. Judges shall be independent and
impartial in exercising their functions. The right to appeal a judicial decision is guaranteed unless
otherwise provided by law. The right to extraordinary legal remedies is regulated by law. The
law may allow the right to refer a case directly to the Supreme Court, in which case there would
be no right of appeal.23
For the purpose that the conflict interest to not be present in the Republic the judges may not
perform any function in any state institution outside of the judiciary, become involved in any
political activity, or be involved in any other activity prohibited by law. Judges are not permitted
to assume any responsibilities or take on any functions that would in any way be inconsistent
with the principles of independence and impartiality of the role of a judge. 24

10
24
22
23

6. The Constitutional Court (The Judiciary)
The Constitutional Court is the final authority for the interpretation of the Constitution and the
compliance of laws with the Constitution. The Constitutional Court is fully independent in the
performance of its responsibilities.25
The Assembly of Kosovo, the President of the Republic of Kosovo, the Government, and the
Ombudsperson are authorized to refer the following matters to the Constitutional Court; the
question of the compatibility with the Constitution of laws, of decrees of the President or Prime
Minister, and of regulations of the Government, the compatibility with the Constitution of
municipal statutes. The Assembly of Kosovo, the President of the Republic of Kosovo and the
Government are authorized to refer the following matters to the Constitutional Court, conflict
among constitutional competencies of the Assembly of Kosovo, the President of the Republic of
Kosovo and the Government of Kosovo, compatibility with the Constitution of a proposed
referendum, compatibility with the Constitution of the declaration of a State of Emergency and
the actions undertaken during the State of Emergency, compatibility of a proposed constitutional
amendment with binding international agreements ratified under this Constitution and the review
of the constitutionality of the procedure followed, questions whether violations of the
Constitution occurred during the election of the Assembly. A municipality may contest the
constitutionality of laws or acts of the Government infringing upon their responsibilities or
diminishing their revenues when municipalities are affected by such law or act. Ten or more
deputies of the Assembly of Kosovo, within eight days from the date of adoption, have the right
to contest the constitutionality of any law or decision adopted by the Assembly as regards its
substance and the procedure followed. Thirty or more deputies of the Assembly are authorized to
refer the question of whether the President of the Republic of Kosovo has committed a serious
violation of the Constitution. Individuals are authorized to refer violations by public authorities
of their individual rights and freedoms guaranteed by the Constitution, but only after exhaustion
of all legal remedies provided by law. The courts have the right to refer questions of
constitutional compatibility of a law to the Constitutional Court when it is raised in a judicial
11

proceeding and the referring court is uncertain as to the compatibility of the contested law with
the Constitution and provided that the referring court’s decision on that case depends on the
25


compatibility of the law at issue. The President of the Assembly of Kosovo refers proposed
Constitutional amendments before approval by the Assembly to confirm that the proposed
amendment does not diminish the rights and freedoms guaranteed by Chapter II of the
Constitution, and other additional jurisdiction which may be determined by law.26

Conclusion

The separation of powers has been a much discussed topic worldwide. Different countries have
different ways of regulating the separation of powers. In its beginning the separation may have
been seen as a system which would never work, but now there is no possibility that allows a
country or a system to function without a separation of powers.
Periodically speaking the separation of powers has helped the implementation of the idea of
respect to the human rights. Technically speaking there has always existed a bunch of people
with powers and another bunch that respected their powers and respected their rule. It has always
existed a system of separation but during the medieval time is obtained a certain form supported
by legal acts.

12
26


Bibliography

Anastasi, Aurela. Historia e Institucioneve. 2010.
Dupre, Ben. 50 Political Ideas you really need to know. 2011.
Hampton, Jean. Political Philosophies and Political Ideologies. 1997.
Joseph, William A. Politics in China : An Introduction. 2010.
Kilman, J. & Costello, G. The Constitution of the United States of America:
Analysis and Interpretation. 2000.
Litzinger, Trans. C. I. Commentary on Aristotle’s Nicomachean Ethics. 1993.
Millar, Fergus. The Roman Republic in political thought. 2002.
The Constitution of Kosovo- The Assembly of the Republic of Kosovo

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The principle of Separation of Powers

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