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 division.

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 the Enlightenment.

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 other mutually”.

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 branch”.

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 balances.

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 [1].

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 overcoming.

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 judicial branches.

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 [2].

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, confiscation, etc.

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 Kazakhstan;

2) It functions all over the territory of the country;

3) The judgments are taken strictly within the framework of the competence;

4) The judgments are obligatory for all state bodies, officials, citizens, and their associations;

5) The judicial bodies facilitate the strengthening of law and order.

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 other bodies.

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 [3].

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 Judges”.

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 immunity guaranteeing.

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 functioning democratization.

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 innocence, etc.

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 [4].

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 [5].

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 local referendums).

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 [6]. 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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6. Жиренчин К. Сравнительный конституционно-правовой анализ института судебной власти в государствах – участниках СНГ. // Правовая реформа в Казахстане, 2002. - №2. – С. 35-38.

Table of contents: The Kazakh-American Free University Academic Journal №1 - 2010

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