Journal of Constitutional Law (Dec 2023)
Separation of Powers in the Constitutional Court’s Case-Law
Abstract
Separation of powers is an ‘elastic concept’. Many authors recognize an unwavering interest of legal experts towards the principle of separation of powers, acknowledging at the same time, the complexity of the concept. In recent years, the Constitutional Court of Georgia has increasingly been applying the principle of separation of powers when examining the constitutionality of the presented cases. This study approaches the principle of separation of powers from a different perspective. It does not aim to analyze the theory of separation of powers but to consider its application in the context of positive law. Specifically, it examines how the Constitutional Court of Georgia, in its case law employs this principle as a standard, as defined in Article 4, paragraph 3 of the Georgian Constitution, which states: “The state authority is exercised based on the principle of separation of powers.” As a result, the inclusion of this provision in the Constitution transforms the principle of the separation of powers to a positive constitutional norm. Whereas the principle of the separation of powers has been enshrined as a constitutional norm, the Constitutional Court is obligated to pursue the compliance of the normative provisions it judges upon, with this norm. To accomplish this, the court should develop its own concept of the separation of powers, which will be gradually reinforced through its judicial practice. A review of the Constitutional Court’s case-law shows that when confronted with a legislative provision potentially affecting the functional separation of powers, the Court tends toward supporting a ‘separatist doctrine’ (also known as a ‘separation doctrine’ or ‘non-delegation doctrine’). At the same time, it ensures that none of the government branches encroaches on the functions assigned to the others. However, in some cases the Constitutional Court refrains from applying the separatist doctrine given that the Constitution explicitly provides for permeability of the principle of the separation of powers that Court cannot override.
