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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 ................................................................................................................................................... 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.

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 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
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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.

2.1 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 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

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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.

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
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laws which are unlikely to go to the Supreme Court which has the authority to push them back .

3.1.2 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

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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

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 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

                                                                                                                       
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

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 policies, gives

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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.

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

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
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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

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

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
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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  

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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