Structure of the judiciary power
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Published: Mon, 5 Dec 2016
Every society in the human history confronted the question of how disputes should be resolved. Independence of the judiciary is the principle that the judiciary should be politically insulated from the legislative and the executive power. Courts should not be influenced by the other branches of government. Different nations deal with the idea of judicial independence through different means of judicial selection. An independent judicial branch is one of the main guarantees of democratic system of government and it ensures the rule of law so that it is free from outside influences and judges can render cases only due to the law and facts.
The importance of the independent judicial system in England were established in the beginning of 11th century, when William The Conqueror come to throne in 1066 and had started settling new laws in the whole England (today is known as Common Law) and also had fixed by The doctrine of the “separation of powers”. Whereas, In Kazakhstan legal system the Judicial power as the legal category is rather new. On 30th August 1995 on the basis of the Declaration of Independence the Constitution of The Republic of Kazakhstan had been accepted and it covered the initial principles and appointments of independence of judges (The Constitution of The Republic of Kazakhstan, 1995).
Firstly, I would like to return to the past of the UK to observe the formation way of the power structure, which we have today.
The ideas based on a modern principle of division of the authorities, for the first time was expressed by Aristotle, in his fourth book named, “Politician”. He formulated the idea of separating the power in the state on three parts: legislative, official, judicial; each of the authorities should be represented by the separate ‘body’.
The further development of the theory of division of the authorities is bound to John Lock and Charles Louis Montesquieu, who have carried out the most thorough working out of this principle. Later on, by the end of 18th and the beginning 19th century, the principle of division of the authorities was recognised in many states.
Next paragraph separately exposes the origin ways of each power branch in the UK.
The British Parliament is one of the oldest parliaments in the world. It is often named “foremother”, but in my opinion it would be more exactly to call it “forefather” of all parliament systems in the world, and it continues to function throughout the whole political history of the country since the second half of 13th century.
Formation and development of The British Parliament occurred during XII and XV centuries. Considerable value of this long process traditionally was attracted by a crown of the higher nobility to the decision of the state, affairs monarchy going back to its origin. Meetings of the King’s vassals, from the middle of XII century, became an obligatory part of the state life and they were the historical beginning of the class representations.
The ancestor of legislative system of England was the Curia Regis (the council of tenants-in-chief) it was created by William The Conqueror, who brought to England the feudal system from his native Normandy after the Norman conquest in 1066, and was granting land to his most important military supporters, further the supporters were granting that land to their own supporters thereby creating feudal hierarchy of England. Eventually this council has developed into the Parliament of England, and now includes the head of the state (monarch), chamber of lords (historically – chamber of the nobility and the higher clergy) and the House of Commons (historically – chamber of commoners).
The Monarch and Government
Formation of strong English government begun in the beginning of 12th century when English people were victims of intestine wars and feudal anarchy. This severe historical experience had definitively convinced English people that nothing but the strong central power and the wide state organisation can serve for them against those harms.
Reducer of the reeled English state order was Henry II Plantagenet (years of board 1154-1189). During Henry’s reformatory activities people against feudal lords joined him and it can be said that absolute monarchy formation in England begun with him.
The restrictions of the monarchs’ power began being introduced in the beginning of the 13th century, when the English nobility forced King John to recognize the certain document named, Magna Carta. The constitutional monarchy in that way we see it today, has developed and has become stronger in 18th and 19th centuries when function to administer the affairs of the state has passed to the Cabinet which were appointed from elective parliament.
The Cabinet has arisen before the bourgeois revolution of 17th century on the basis of secret council, as the narrow board helping the king to quickly solve the important problems of the government.
At first this body completely depended on the monarchy. Further, by the end of 18th century and the beginning of 19th century, it was ceased to be a subsidiary organ of the Royal management and should lean against Parliament support. As the result by that time it started being recognised that the Cabinet should have the majority of voices in Parliament and the head of it should be the Prime minister.
If the legislative and executive powers are assigned on the exactly higher state body then the judicial power is much more difficult. It is assigned to set of judicial bodies from the local Supreme. Each judicial body is independent and it has own place in the system, resolving concrete affairs absolutely independently.
The today’s judicial power of England has arises from 1178, when Henry II appointed five members of his personal household “to hear all the complaints of the realm and to do right”, however the role of the Lord Chancellor was still formal and judgements were a prerogative of the King. Such situation had been existing till “Glorious Revolution”, the acceptance of the Bill of Rights in 1689 and the Act of Settlement in 1701. After those changes the power of the monarch was essentially limited and courts received independence and leadership of the law.
The doctrine traditionally demands “separate of powers”, that the state system of the power must be divided into three branches and each branch is not only supplemented by two others, but also could be balance.
As I said above, the judicial power became independent from executive, legislative and Royal powers when The Bill of Rights 1689 was introduced. According to the Bill the monarch was deprived to a duty to support and supervise judicial system, and the right of the Queen was only to dismiss judges on ministerial council. However, until recent time the principle of “separate of powers” in the Great Britain was not completely observed. So that the Lord Chancellor being the head of the judicial power in the Great Britain simultaneously was the member of the Cabinet and a member of Lords’ chambers. Moreover, the Lord Chancellor was appointed to the post by the Queen on representation of the Prime Minister.
In July 2003, Tony Blair’s government tried to make radical changes to a judicial branch of the power and declared plans to cancel a post of the Lord Chancellor to abolish the system of Law Lords and to replace it with separate Supreme Court. These plans caused considerable contradictions, and finally, Prime Minister decided to change, instead of cancelling an ancient role of the Lord Chancellor. Reform of the role of the Lord Chancellor has started the process of separating his various duties making clear distinction between the government, Parliament and the judicial power.
16 December 1991, the Parliament of the on the Republic declared the independence of the Republic of Kazakhstan and the Republic Kazakhstan was formed.
During the period 1991-1995, the political system and Constitutional legislation of the Republic were formed. The first Constitution of sovereign Kazakhstan was adopted in January 1993. Being to some extent a compromise between the old and new political systems, reflecting attempts to introduce into the post-Soviet context a western democratic model, this Constitution initially contained some contradiction which occasionally took the form of unnatural opposition and resistance of power.
As a result of the Referendum held on 30 August 1995, a new Constitution of the Republic of Kazakhstan was adopted, eliminating the shortcomings of the former constitution. The new Constitution established a Presidential Republic, and solved rationally the problem of divided responsibilities among different branches of power, while also welcoming changes to the market system.
According to Article 3 of the Constitution states that the state power in the Republic of Kazakhstan is unified and executed on the basis of the Constitution and laws in accordance with the principle of its division into the legislative, executive and judicial branches and a system of checks and balances that governs their interaction.
- The legislative branch comprises Parliament of the Republic of Kazakhstan (the Senate and the Majilis).
- The executive branch comprises the Cabinet of Ministers, state committees, others central and local executive bodies of the Republic.
- The judicial branch comprises the Supreme Court and Constitutional Council and local courts (regional, district and others).
The President of the Republic of Kazakhstan is the head of state, its highest official determining the main directions of the domestic and foreign policy of the state and representing Kazakhstan within the country and in international relations. He shall ensure by his arbitration concerted functioning of all branches of state power and responsibility of the institutions of power before the people. (Art. 40 of the Constitution). The President is elected every seven years on the basis of universal suffrage. One and the same person may not be elected the President of the Republic more than two times in a row.
Nursultan Nazarbaev has been the President of the Republic of Kazakhstan since 1 December 1991.
The highest representative body of the Republic of Kazakhstan is the bicameral Parliament. According to the President’s Decree having force of Constitutional Law «On elections in the Republic of Kazakhstan» (1995) the parliament will consist of two chambers the Senate and the Majilis and work on professional base.
Parliament at a joint session of the Chambers: introduces amendments and makes additions to the Constitution; adopts constitutional laws, approves the republican budget, the reports of the Government, and the Accounts Committee about its implementation, and introduces changes into the budget; conducts a second round of discussion and voting on the laws or articles of the law; hears the report of the Prime Minister on the Government’s program and approves or rejects the program and annual messages of the Constitutional Council of the Republic on the state of the constitutional legality in the Republic or reports on the activity of the commissions; decides issues of war and peace; adopts a decision concerning the use of the Armed Forces of the Republic to fulfill international obligations in support of peace and security at the proposal of the President of the Republic; puts forward an initiative calling for an all-nation referendum; exercises other powers assigned to Parliament by the Constitution.
The Government is appointed by the President and accountable to the Parliament. It implements the executive power in Kazakhstan, heads the system of executive bodies and exercise supervision of their activity.
Justice in the Republic of Kazakhstan is exercised only by the court. The judicial system in the Republic consists of the Supreme Court Republic of Kazakhstan, the highest judicial body, and regional, district, town, and city courts. (Art.75)
The Supreme Court of the Republic of Kazakhstan shall be the highest judicial body for civil, criminal and other cases which are under the courts of general jurisdiction; exercises the supervision over their activities in the forms of juridical procedure stipulated by law, and provide interpretation on the issues of judicial practice.
The chairman of the Supreme Court is the judge and is appointed to the post by the President with the consent of the Senate of Parliament of the Republic of Kazakhstan.
Independence of the judicial power in Kazakhstan completely based on the Constitution and the Constitutional Law named, “About courts and the status of judges”, and the guarantor of the constitution is the President. However, the theory of division of the authorities does not assume creation of “the Chinese wall” between various branches of the power. That is also impossible, as their interaction and interdependence are the questions of uniform institutes and the government shall be necessarily differentiated from its branches, generating an interlacing of some elements.
The general meaning of the modern legal doctrine are the connection of ideas of unity and division of the authorities, their interactions and system of controls and counterbalances. Such understandings are reflected in the newest constitutions. The most distinctive expression is the point 4 of article 3 of the Constitution of Republic Kazakhstan of 1995 which says: “the Government in Republic Kazakhstan is uniform, is carried out on the basis of the Constitution and laws according to a principle of its division into legislative, executive and judicial branches and their interactions among themselves with use of system of controls and counterbalances”.
Basically the Kazakhstan’s and English models of the judicial power are very difficult to compare moreover they are based on various legal foundations. English system of the Right is based on judicial precedent and actually courts of England create laws. In Kazakhstan the system is based on the code system of the right, such as the constitution, the constitutional laws, codes etc., and the Kazakhstan courts in contrast to English courts do not have the legislative initiative.
It is believed that the judicial power is the weakest branch and it does not lean against wish of voters as the legislature, has no power for compulsion as the Executive. The force of the judicial power is in respect from the civilised society to the right and court. Here again we can see considerable distinctions. In that number, and in relations of other branches of the power both judicial in England and Kazakhstan.
The execution institute of court decisions in England is so accurate also punishment for default so serious, that the practical excludes concept «default of the decision of court» and communication with what, the authority of the judicial power is indisputable.
Since independence Kazakhstan has undertaken huge efforts for a raising of courts authority, however corruption and a principle of “the telephone right” create for this purpose very big obstacles.
Also I would like to stop in detail on the status English of judges put in English statutes. According to this statutes judge are appointed for life. In Kazakhstan the similar norm of the law does not exist. And although the legal judge is appointed to the post and dismissed by the President of Republic, the nonflexible system of estimations of activity of the judges allow to the chairman of courts easily release the judges who was not undesirable to him.
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