LEGAL INSTITUTIONS AND PROCEDURES AFFECTING THE SEPARATION OF POWERS

The classic principle of the separation of powers is – from time to time – the subject of reconsideration. It has been demonstrated that there are no clear definitions of the doctrine in legal literature and it ‘has not been wholly reproduced in the institutional architecture of any modern state’. Moreover, new social and political phenomena generate new challenges to constitutional law and call for new interpretations of the separation of powers. New approaches to the doctrine in most of the cases focus on selected aspects of the relations and activities of state organs (e.g. the doctrine as a set of principles; the interdependency and cooperation of the branches of government; taking new powers into consideration alongside the traditional ones; focusing on the vertical separation of powers between the constituent power and the constituted powers; etc.). However, none of these various aspects are exclusive, and their significance depends on the particularities of the legal dispute in question. On the other hand, both the classic and new approaches to the doctrine seem to focus on the same function: setting limits for the exercise of the central (majoritarian) political power. Focusing on this function, the doctrine can be taken as a broad, complex frame of interpretation.

The diversity of concepts and interpretations of the separation of powers leads to the argument that when examining the proper functioning of this principle, not only the institutional design of state institutions and their formal powers shall be taken into consideration. The first hypothesis of this chapter is that a number of legal institutions, procedures and doctrines have primary functions which are not explicitly related to the system of the separation of powers, but which have a significant (secondary) impact on the relations of state organs, especially on the room for manoeuvring of the majoritarian political power. Certain factors can limit the sphere of action of state organs, especially the majoritarian political power.