Académique Documents
Professionnel Documents
Culture Documents
Contents
Introduction ................................................................................................................................................... 2
1. Separation of powers – Term and explanation ...................................................................................... 3
2. The history of the separation of powers ................................................................................................ 3
2.1 Ancient Greece .................................................................................................................................... 4
2.2 Ancient Rome ...................................................................................................................................... 4
2.3 Middle Ages ........................................................................................................................................ 4
2.4 Renaissance ......................................................................................................................................... 4
3. Separation of powers in different systems and countries ...................................................................... 5
3.1 United States of America .............................................................................................................. 5
3.1.1 The legislative power ............................................................................................................ 5
3.1.2 The executive power ............................................................................................................. 5
3.1.3 The judicial power ................................................................................................................. 6
3.2 People Republic of China .............................................................................................................. 6
3.2.1 The political branch ............................................................................................................... 6
3.2.2 The executive branch............................................................................................................. 6
3.2.3 The legislative branch ........................................................................................................... 6
3.2.4 The juridical branch............................................................................................................... 7
3.2.5 The military branch ............................................................................................................... 7
4. The separation of powers in the Republic of Kosovo ........................................................................... 7
4.1. The Assembly of Kosovo (The legislative) ........................................................................................ 7
4.2 The Government of Kosovo (The executive) ...................................................................................... 8
4.2.1 The competences of the Prime Minister ....................................................................................... 8
5. The Justice System of Kosovo (The judiciary) ..................................................................................... 9
6. The Constitutional Court (The Judiciary) ............................................................................................. 9
Conclusion ................................................................................................................................................... 10
Bibliography ................................................................................................................................................ 11
Introduction
History and time has shown to human kind that concentrating too much power in the hands to a person
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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.
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 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.
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
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first separation philosophies were philosophies which integrated elements of democracy, aristocracy, and
1
(Dupre 2011)
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.
2.4 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
4
2
(Anastasi 2010)
3
(Millar 2002)
4
(Litzinger 1993)
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
5
(Hampton 1997)
6
(Kilman, J. & Costello, G. 2000)
7
(Kilman, J. & Costello, G. 2000)
forcing a law the congress has the right to terminate such appointments by impeachment and restriction to the
president.8
8
(Kilman, J. & Costello, G. 2000)
6
9
(Kilman, J. & Costello, G. 2000)
10
(Joseph 2010)
11
(Joseph 2010)
12
(Joseph 2010)
13
(Joseph 2010)
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
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
7
14
(Joseph 2010)
15
(Joseph
2010)
16
The
constitution
of
Kosovo
–
Article
1
17
The
constitution
of
Kosovo
–
Article
4
–
1
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.
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 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
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18
The
constitution
of
Kosovo-‐
Article
65
19
The Constitution of Kosovo – Article 92
20
The Constitution of Kosovo – Article 93
21
The Constitution of Kosovo –Article 97
on the implementation of the foreign policy of the country, performs other duties as set forth by the Constitution
and the law.22
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
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
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22
The Constitution of Kosovo – Article 94
23
The Constitution of Kosovo – Article 102
24
The Constitution of Kosovo – Article 106
25
The Constitution of Kosovo – Article 112
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 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 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.
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26
The Constitution of Kosovo – Article 113
Bibliography
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.
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