Conference of constitutional control bodies of Central Asia "The Role of the Constitutional Court in Safeguarding the Supremacy of the Constitution" Strasbourg, 28-29 October 2015 Professor Dr JASNA OMEJEC President of the Constitutional Court of the Republic of Croatia Full Professor at the Law Faculty, University of Zagreb Member of the Venice Commission from the Republic of Croatia PRINCIPLE OF THE SEPARATION OF POWERS AND THE CONSTITUTIONAL JUSTICE SYSTEM Mr Chairman, Ladies and Gentlemen, Dear Colleagues, First, I would like to thank the hosts for the kind invitation to participate in this important international conference. It is an honour to be among such notable justices from Central Asia here in Strasbourg. Somehow, I rejoice in the knowledge that we have all simultaneously, in different parts of the world, prepared for this trip, in order to meet here in the heart of the Council of Europe and the European Union. This important conference provides us with the opportunity to open mutual judicial dialogue between the countries of the Central Asian region and, at the same time, between them and Europe's representatives, especially the Venice Commission. Since we are talking about the constitutional justice system, our talks cannot be restricted only to the traditional principle of the separation of powers. Our examination must go beyond this: 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. Why not? Simply because it goes to the very essence of the structure of our states. It raises questions concerning the manner in which our 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, as Mollers pointed out, "Introducing the idea of separation of powers into these debates could serve as a transmission belt for the conversation between constitutional law and political theory and bring the two disciplines closer together ‒ considering that the concept dates back to a time when law and political theory were not wholly distinct from each other. ... This means that a purely political concept of constitutionalism is as deficient as a purely legal one. An important means of connecting legal and political constitutionalism ... is a model of separated powers that acknowledges the significance of both elements and identifies their proper place in a legitimate government structure. This is exactly what the epigraph by John Rawls refers to: purely legal and purely political constitutionalism both miss the very point of a constitution ‒ to mutually reinforce the legal and the political systems and to protect their differences. Therefore, 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."1 As Mollers mentioned in the above quotation, the concept of separation of powers dates back "to a time when law and political theory were not wholly distinct from each other". So, let us remember, with deep respect, an 18th century French social and political philosopher Charles- Louis de Secondat, baron de La Brède et de Montesquieu, and his work, The Spirit of Laws (1748),2 which is considered one of the greatest works in the history of political theory and jurisprudence.3 In very simple terms, under Montesquieu's model, the government is divided into legislative, executive and judicial powers. In the Book XI "Of the Laws which establish political liberty, with regard to the Constitution", in Chapter IV entitled "Of the Constitution of England", Montesquieu stated: "In every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law. By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions. By the third, he punishes criminals, or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other, simply, the executive power of the state. The political liberty of the subject is a tranquillity of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man need not be afraid of another. When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may 1 Mollers, Christoph (2013) The Three Branches: A Comparative Model of Separation of Powers, Oxford: Oxford University Press, pp. 3, 10. 2 The standard edition of The Complete Work of M. de Montesquieu translated from the French in Four Volumes, Volume the First (The Spirit of Laws), by T. Evans and W. Davies, London 1777, at <http://lf- oll.s3.amazonaws.com/titles/837/0171-01_Bk_Sm.pdf> (Last accessed: 30 September 2015). 3 However, "Montesquieu did not invent the doctrine of the separation of powers, and that much of what he had to say in Book XI, Chapter 6 of the De l’Esprit des Loix was taken over from contemporary English writers, and from John Locke. Montesquieu, it is true, contributed new ideas to the doctrine; he emphasized certain elements in it that had not previously received such attention, particularly in relation to the judiciary, and he accorded the doctrine a more important position than did most previous writers. However, the influence of Montesquieu cannot be ascribed to his originality in this respect, but rather to the manner and timing of the doctrine's development in his hands." Cf. Vile, M. J. C. (1998) Constitutionalism and the Separation of Powers, 2nd ed., Indianapolis: Liberty Fund, p. 83. 2 arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end of every thing, were the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals."4 The separation of powers, therefore, refers to the division of government responsibilities into distinct branches. Montesquieu asserted that these three branches of powers must be divided in person and in function and they must act independently, limiting any one branch from exercising the core functions of another. It is a way to most effectively safeguard liberties and guard against tyranny.5 As Vila said, Montesquieu "paved the way for the doctrine of the separation of powers to emerge again as an autonomous theory of government. This theory was to develop in very different ways in Britain, in America, and on the continent of Europe, but from this time on, the doctrine of the separation of powers was no longer an English theory; it had become a universal criterion of a constitutional government."6 Let us recall the USA and France to show that the doctrine of the separation of powers has different meaning in different countries. With regard to the American system of the separation of powers, one of the central personalities is certainly the fourth President of the United States, the co-author of the Federalist Papers, the Father of the US Constitution and the writer of the American Bill of Rights, James Madison. He retorted that a "pure", technical separation of three powers was neither what Montesquieu intended, nor was it practical. "[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."7 4 Montesquieu, The Spirit of the Laws, vol. 1, supra note 2, pp. 198‒199. 5 Separation of Powers ‒ An Overview, National Conference of State Legislatures ‒ NCSL, at <http://www.ncsl. org/research/about-state-legislatures/separation-of-powers-an-overview.aspx> (Last accessed: 1 October 2015). 6 Vile, Constitutionalism and the Separation of Powers, supra note 3, p. 105. 7 Madison, James. Federalist No. 47 ("The Particular Structure of the New Government and the Distribution of Power among Its Different Parts"), New York Packet, 30 January 1788, at <http://www.constitution. org/fed/federa47.htm> (Last accessed: 2 October 2015). 3 Implicit in Madison’s argument was an interesting challenge to the very doctrine of the separation of powers: what will prevent the accumulation of power in the absence of pure separation? The answer was to be found in a unique feature of the Constitution: the pairing of separated powers with a system of checks and balances.