The judicial branch and its role in the state power mechanism
Table of contents: The Kazakh-American Free University Academic Journal №1 - 2010
Author: Kozhuganova Dinara, Kazakh-American Free University, Kazakhstan
The basic world tendency of the 21st
century is the law-governed state model priority and the theory of power
Power division arose at the earliest stages
of state formation and resulted in the specialization of different individuals’
and institutions’ power. There were discovered two settled tendencies: the
concentration of power in single hands and the necessity to divide power,
labor, and responsibility. Hence, the dual attitude towards power: on the one
hand, the fight of the separated institutions against its division, on the
other hand, the tendency to regulate the relations between the separated powers
and to remove the threat of conflicts between them.
The formation, functioning and development
of the independent judicial power are the priorities of the democratic and
law-governed state. Two principles are at the base of the state: supremacy of
law and power division to legislative, executive, and judicial branches. It
should be noted, the principle of law supremacy will not be realized completely
if the bodies of the judicial do not take notable position in the state power
mechanism. It points to the necessity of the judicial branch to be autonomous
and independent for its normal functioning and reformation.
The realization of the latter principle
(power division) is not to be realized in isolation from checks and balances. Nowadays
any state seeks to objectify checks and balances in national legislation. The
given system would be practical and interfere with the despotic influence of a
unitary power branch.
Power division is a principle or a theory
proceeded from the fact that independent power branches are necessary for
normal functioning of a state. They are the legislative, the executive, and the
judicial. The legislative is to belong to parliament, the executive – to
government, and the judicial – to court.
In legal science there are different
approaches and theories revealing the point of the above-mentioned principle.
The idea of power division originates from the ancient times
and the Middle Ages. It was mentioned first by Aristotle. Further it was
developed by John Locke (1632 - 1704). As a classical example it was worked out
by Charles Luis Montesquieu (1689 - 1755). Its modern form was developed by
Alexander Hamilton, James Madison, and John Jay (the authors of “Federalist”).
The power division principle originated theoretically and
practically in Ancient Greece and Ancient Rome. The analysis of political
patterns and forms of government made by Plato, Aristotle, and other ancient
thinkers paved the way the substantiation of the given principle at the age of
Theoretically the principle was developed in the Middle
Ages. First of all, it was evolved in the work of an English philosopher John
Locke “Two Treatises on State Governing”. In the given study Locke focuses his
attention on the necessity of law supremacy, power division, and the
recognition of an individual’s natural rights and liberties. His idea of power
division into the legislative, the executive, and the judicial branches is very
interesting, as it impedes the despotism displayed at the power concentration
in single hands. It must be noted that John Locke inclined towards the
legislative power supremacy.
The today’s doctrine of power division in its classical form
was formulated by Charles Luis Montesquieu. In his paper “On the Spirit of
Laws” published in 1748 Montesquieu wrote, “There are three powers in a state:
the legislative, the executive (managing the problems of an international law),
and the executive (managing the problems of a civil law). By virtue of the
first power, a sovereign or an institution develops a law. By virtue of the
second one, a sovereign or an institution declares war or makes peace, sends or
receives ambassadors, guarantees security, and averts invasion. By virtue of
the third branch, a sovereign or an institution punishes crimes and solves the
conflicts of private individuals. The latter may be called a judicial one, and
the second – just an executive power of the state”.
Montesquieu developed the point of checks and balances, as
he thought the division would not be effective without it. He stated, “It is
necessary to keep the order under which different powers could control each
The practical “balance” between the power branches is
attained by mutual limiting measures established by law.
The ideas of power division were developed further in the
works of James Madison (1751 – 1836). He took the USA as a model. Madison
convincingly proved that “the authority of the body must not be realized
directly or indirectly by another one”. He also proved that “the excessively
grown and comprehensive prerogative of the hereditary executive branch of
power, supported by the hereditary legislative” is very dangerous for people’s
freedom and independence. The unlawful seizure of power by the law-makers
results in the same tyranny as the usurpation of governing by the executive
Madison developed the system of checks and balances. Due to
it each branch of power is relatively equal to others. The given mechanism of
checks and balances is still functioning in the USA till now. According to
Madison, the partial coincidence of all power branches is called checks and
Marxism evaluating the classical doctrine about the division
of power proceeded from the ideological reasons of its origin in the age of the
first bourgeois revolutions, i.e. the compromise of class forces being reached
at the certain stage of the bourgeoisie struggle for the political rule. K.
Marx considered the division of power to be the prosaic business division of
labor applied to the state mechanism for the purpose of simplification and
control. K. Marx was sure in the unscientific nature of the theory of power
division. He thought two sovereign power branches to be unable to function in
the same state.
E. Kaliskarov noted that the theory of power division was
evaluated in the Soviet jural literature in a peculiar way. The Soviet doctrine
absolutized the given aspect and contrasted it with the theory of Soviet’s
sovereignty, people’s sovereignty, etc. In fact, this was the theoretical
covering of the totalitarian regime. At the base of the Soviet system of state
power there were the views of K. Marx, F. Engels, and V. Lenin. They considered
the autocratic mechanism (the functions and authorities of all power branches
were concentrated in it) to be the most optimal model of state power. They did
not admit the necessity of power division into legislative and executive. The
postulate of the Soviet sovereignty uniting the legislative, executive and
controlling functions thought to be invariable in the Soviet period - the
period of the dictatorship of the proletariat. The formal independence was
recognized only per court .
Thereby, the branches of state power function independently.
Any interference of a branch into the jurisdiction of another is not allowed.
At the same time, the branches are the components of the unitary state power.
The division of power is not the invariable state of isolated structures. It is
a functioning mechanism achieving unity on the basis of the complicated process
of agreement and special juridical procedures of the possible conflicts
In the Republic of Kazakhstan the consolidation of the power
division principle first took place in “The KazSSR Supreme Soviet Declaration
on the State Sovereignty” (approved on October 25, 1990) and in the
constitutional law of the Republic of Kazakhstan “On the State Independence of
the Republic of Kazakhstan” (approved on December 16, 1991). They proclaimed
the Republic of Kazakhstan an independent, democratic, and under-the-law state.
The Declaration Article 7 established the realization of the state power
according to the principle of its division into the legislative, executive and
The given principle was further developed in the
Constitution of the Republic of Kazakhstan (approved in 1993 and 1995) using
the system of checks and balances. According to the present Constitution of the
Republic of Kazakhstan the above-mentioned principle is considered to be the
basis of the constitutional system.
It should be mentioned, that the term “the judicial branch
of power” had not been used before the approval of the Constitution of 1993,
since court was seen as a purely administrative body. As a matter of fact, the
concepts “judicial power” and “judicial system” were identified but the
objectives set before courts and the types of their authorities were different.
“Judicial power” and “justice” are related but not identical concepts.
According to K. Mami, justice is one of the most significant displays of the
judicial power but the latter does not come to the same. The concept “judicial
power” must not come to its organizational aspect – the presence of special
bodies possessing an appropriate set of authority.
In the given context it also should be mentioned while
studying the essence and role of the judicial it is necessary to pay attention
to its definition. According to K.Kh. Khalikov, the judicial power is a special
activity of the state aimed at the protection of citizens’ rights, liberties,
and legal interests; the bodies’ rights and legal interests protection; the
guaranteeing of execution of the Constitution, laws, different regulatory acts,
international treaties on the principles of democracy, social justice,
humanism, and legality. The given concept covers almost every protection
elements. It also may include the compulsory protection of the rights and
interests not only of a citizen, but a person - party of social relations, as
in real there might be the rights of other individuals encroached.
K.Kh. Khalikov defines the concept “justice” as a special
type of the state activity aimed at the protection of public relations realized
by means of the law used to concrete public conflicts. If necessary, serious
measures of state compulsion may be used here .
The given definition clearly displays the essence of justice
administration only by court. In the science of law there are lots of state
bodies administering the compulsion measures but only the court has its
peculiar authorities. For example, according to the present legislation, only
the court has the right to administer such punishment as imprisonment,
As a branch of the state power, the judicial possesses the
features common for a unitary state organization:
1) It is based on the Constitution of the Republic of
2) It functions all over the territory of the country;
3) The judgments are taken strictly within the framework of
4) The judgments are obligatory for all state bodies,
officials, citizens, and their associations;
5) The judicial bodies facilitate the strengthening of law
As a special branch, the judicial has its peculiar features.
Its exclusiveness is its significant feature. Neither other branches (the
legislative, the executive) nor the President of the Republic of Kazakhstan
have the judicial authority. Only the court administers justice. It is
mentioned in the Constitution of the Republic of Kazakhstan. The Constitution
Article 75 says, “The justice in the Republic of Kazakhstan is administered
only by court”. According to the Constitutional Law “On the Judicial System and
the Judge Status in the Republic of Kazakhstan” (approved on December 25, 2000)
it is forbidden to enact laws providing for the court powers delegation to
The judicial system law has imposed a new norm: appeals,
applications, and complaints subjected to consideration under court proceedings
cannot be examined or taken under control by any other bodies or officials.
Disputable cases are examined only by court. Unauthorized
realization of actual or supposed rights disputed by another individual or
organization having caused a serious damage to the rights and interests of
other people or organizations, or to the interests of the state secured by law
is considered to be crime.
Another specific feature of the judicial power is a special
procedure of the authority exercise. In a federative state consisting of
relatively sovereign parts there may be different civil, criminal,
administrative, and procedural legislation. They function within the framework
of corresponding state bodies and have their specific features. In the unitary
state of Kazakhstan there approved and function common civil procedure,
criminal procedure, and administrative legislation. They regulate procedural
court activity in details .
One of the features of the judicial is a special status and
the regime of judges’ functioning. Judges are a special category of statesmen.
According to the Constitution of the Republic of Kazakhstan, the citizens of
the republic attained the age of 25, obtained legal education, having at least
two years of practical experience, and having passed the qualification exams
can hold the given position (article 79). The Constitution also says that
additional skill requirements may be established by law. Such additional
requirements are established by the Law “On Judicial System and Status of
The peculiarities of the judge functioning regime are shown
in the constitutional provisions, such as their independence and subordination
only to the Constitution and law. The law establishes the irremovability and
immunity of judges. Undoubtedly, it is necessary to protect judges by means of their
The jury also should be mentioned. A new provision “in cases
stipulated by law the criminal courts proceedings are carried out with the
participation of the jury” (article 75) is brought in the Constitution of the
Republic of Kazakhstan in October, 1998. The given innovation is the result of
taking into account of the public opinion about the necessity of the judicial
A specific feature of the judicial is a peculiar system of
its functioning internal control. As the courts are reported to the
Constitution and laws only, the bodies of either the legislative or the
executive have no right to exercise control over the legality of their
decisions. The control over the functioning of courts is exercised by means of
the judicial and prosecutor's supervision. The Supreme Court examines the cases
considered by the inferior courts in the exercise of supervisory powers.
It is suggested that the prosecutor's supervision is the
vestige of an administrative-command system. The given opinion is not without
reason, as the court independence is established by the Constitution. But it
should be taken into account that judicial supervision is the inner concern, so
the danger of departmental approach to the inferior courts functioning
evaluation is still preserved. The public prosecutor's office supervises the
executing of laws, the decrees of the President, and other regulatory acts on
the territory of the republic. In other words, the public prosecutor's office
supervises courts for avoiding the opposition of reasonability to legality.
A peculiar judicial system is established in the
Constitution of the Republic of Kazakhstan. It takes into account a unitary
system of the state. The judicial system of the Republic of Kazakhstan is the
whole set of the country’s courts. It consists of the unitary system of
judicial bodies: courts of general jurisdiction (examining civil, commercial,
administrative, and criminal cases), the Supreme Court of the Republic of
Kazakhstan, oblast and regional courts. Military tribunal is the part of the
common courts system.
In the Constitution of the Republic of Kazakhstan there
established the principles of justice for a judge to be guided with at the law
execution (article 77). For example, a person is considered innocent until
he/she is found guilty according to the imposed sentence; a person having
committed a single crime cannot be subjected to a penalty twice; a person’s
suability having stipulated by law cannot be changed without his/her agreement;
everyone has the right to be heard out; the accused has not to prove his/her
The functions of the judicial determine its role and place
in the state power mechanism. Thereupon, it is necessary to consider the
functions of the judicial in details.
The judicial branch in the Republic of Kazakhstan carries
out a number of important functions. Their legal bases are established in the
Constitution. The functions characterize the judicial firstly as an independent
branch of the state power; secondly, as a system of state bodies possessing the
mechanism of checks and balances as regards to other branches of the state
power; thirdly, as a branch functioning on the basis of specific principles,
forms and techniques; in addition, as the bodies administering justice .
Ideally, the judicial branch has to fulfill the function of
control and restriction of the legislative and the executive. The given
function is determined by the essence of the judicial itself. Justice in a
broad sense is an activity aiming at the finding the correspondence of
citizens’ behavior, state bodies’ activity, and private organizations to law
and legal regulations. Therefore, there is justice only when the judicial has a
legal opportunity to evaluate the state bodies functioning from the point of
view of the present law. The function in question consists in the fact that
courts must work in accordance with the Constitution. If laws or other
normative acts contradict the Constitution, courts should not apply them no matter
which body they are executed. The constitution of the Republic of Kazakhstan
says if court sees that a law or a normative act infringes upon citizen’s
rights, it must stay proceedings and apply to the Constitutional Council with
the proposal to recognize the act as invalid. The given right is granted to all
courts, either to local ones or to the Supreme Court, and is used by them as
the checks and balances mechanism of the unconstitutional rule-making either of
the Parliament or of other state bodies authorized to approve normative acts.
Speaking about the importance of the checks and balances
mechanism of the legislative and the executive branches it should also be
mentioned the imperfection of the function. The Constitution of the Republic of
Kazakhstan recognizes the individual, his/her life, rights and liberty as the
most important valuables of the state. Therefore, controlling and limiting of
the legislative and the executive actions infringing upon the citizens’ rights
result from the constitutional regulation. Courts are to protect the state in
general. The analysis of the constitutional regulations helps to determine the
fact that the state’s interests are also to be defended in legal form. Besides,
the interests of the state may be defended either by means of appealing to the
Constitutional Court or by means of recognizing the organizational and
practical measures infringing upon them as unconstitutional.
So, courts have to protect the fundamental principles of the
state functioning, such as: public harmony and political stability; economic
development for the welfare of the people; Kazakhstan patriotism; and
democratic methods of the state life. In criminal, administrative, and civil
legislation there are measures to be applied regarding to the individual
encroaching on the given principles. According to Article 39 of the
Constitution any actions capable of breaking the international harmony are
recognized as unconstitutional. Courts are also to protect the sovereignty of
the republic. There are inner and outer sovereignties. Therefore, there may be
inner and outer actions aiming at the limiting of the state sovereignty. In
certain cases the actions may be the subject of the judicial review .
According to the Constitution the state secures the integrity,
inviolability, and inalienability of its territory. The actions and decisions
from the part of public organizations and local bodies aiming at the
infringement of the territorial integrity and inalienability also may be the
subject of the judicial review. The unitarity and the presidential form of
government established by the Constitution cannot be changed. There were
repeated attempts to change the unitary form of the government system. Such
attempts can be presented as normative acts (the decisions of local bodies and
Thus, the Constitution of the Republic of Kazakhstan
provides for the necessity to protect the rights and interests of the state,
which can be infringed by separate state bodies and public organizations.
The most important function of the judicial is the execution
of justice. It is the authority of courts, established by the Constitution and
laws that characterize them as an independent branch of the state power capable
to form and develop a legal and democratic state. Courts are to function as an
arbitrator when conflicts between the members of the society, between them and
the state, and between the state bodies in any sphere of public life regulated
by law. The legal basis of such arbitration is the Constitution and law. In
accordance with them courts decide the case about legality or illegality of
actions, the claims for citizens’ rights and interests’ infringement. On behalf
of the state courts examine and decide criminal, civil, administrative, and
commercial cases and disputes. The judicial spreads to all cases and disputes
arising at the basis of the Constitution, laws, normative acts, and
international treaties of the republic. It should be mentioned here that
justice in the Republic of Kazakhstan is executed on the basis of the
Constitution in the first place. While examining a case courts are to examine
the applied normative act in accordance with the Constitution.
It is necessary to remember that according to the
Constitution the purpose of the judicial is to protect the rights, liberties
and legal interests of people and organizations; to provide for the execution
of the Constitution, laws, other normative acts, and international treaties of
the republic . The protection of citizens’ and organizations’ (state and
private) rights and liberties is of major importance.
The Constitution does not allow restricting of citizens’
rights and liberties caused by political reasons, some personal rights and
liberties (Article 39). Therefore, while applying the law limiting citizens’
rights and liberties courts have to rely on the constitutional norms of the
state. If the court did not examine the constitutionality of the applied
normative acts, it might give unconstitutional judgment.
The increase of court’s role in the society and the
recognition of the judicial independence on the constitutional level have
required the theoretical justification and the development of the state policy
in the sphere of justice.
Thereby, from the theoretical point of view
the sphere of the judicial is not narrower than the sphere of justice. Any
deviation from it is to be considered as a direct breach of the principle of
justice executing by court.
The democratic society development, the
legality consolidation, the citizens’ rights, liberties and interests expansion
make it necessary to extend the sphere of the judicial.
Power division implies that any branch of
power has its own major and cannot carry out the functions of others. Article
75 of the Constitution stipulates the justice administering as a peculiar type
of state activity and an independent function. Only courts are dedicated to
execute laws. The transfer of the justice functions to other bodies is
unconstitutional and inadmissible. In other words, in Kazakhstan there are no
and might not be any other state and social bodies except courts to have the
right to examine civil, criminal and other cases.
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Table of contents: The Kazakh-American Free University Academic Journal №1 - 2010