George Katrougalos

THE PRINCIPLE OF SEPARATION OF POWERS AND THE STRUCTURE OF STATE IN THE BALKAN COUNTRIES

Summary

Constitutional principles of the “ancien regime”

The Western concept of separation of powers

The separation of powers in the contemporary Balkan Constitutions

The relations between the executive and the legislative power

The functionss of the Head of the State

The functions of the parliament

The form or parliamentary regimes

Uni or bi-cameral system

 

The first and the last Constitutions in Eastern Europe, after the radical political and economic changes of the annus mirabilis 1989, have been passed in the Balkans: the Bulgarian one of 1991 and the Albanian of 1998. All the new constitutional charters have reunited the constitutional tradition of their countries with the separation of state powers. This fundamental principle has been embodied in the first Constitutions of almost all Balkan countries, such as the Greek Constitution of Epidaurus of 1822, the Rumanian Regulamente Organice of Wallachia and Moldavia of 1831 and the Bulgaria’ s Turnovo Constitution of 1870. In the framework of this article we shall examine its establishment in the contemporary constitutions, after a brief excursus that will present the opposite founding principles of the former socialist regimes.

Constitutional principles of the “ancien regime”

The fundamental constitutional pillar of the socialist regimes has not been the separation of powers but the quite antithetical principle of “unity of state power”. This premise was considered to enshrine the expression of popular sovereignty, vested in the National Assemblies. According to the article 2 of the Soviet Constitution of 1977, which was used as the general institutional mould for the rest of Central and Eastern European Constitutions, “the people exercises state power through Soviets or People’s Deputies, which constitute the political foundation of the USSR”.

In this framework, the National Assembly had been the supreme organ of the state, combining legislative and executive functions. In most of the cases an executive organ of the Assembly, a “State Council”, was the actually functioning body of legislative power that issued decrees, formally approved by the National Assembly. This organ embodied to the greatest degree the merging between the leading party and the state, which was the ultimate postulate of the state organization.

Another striking difference with the western tradition had been the organisation of the constituent and constitutional representation. The “democratic centralism” imposed a concept of imperative (not free) mandate as basis for the relation between the electorate and the members of the representative organs. Accordingly it has been universally established a political right of recall of the deputies: According to the Soviet Law on the Recall of a Deputy of 1959 this right was the “expression of the sovereignty of the working people and guarantees the responsibility of a deputy to the electorate.” The law was implemented in cases of non-fulfilment of obligations vis-a-vis the electorate or of commitment of an “unworthy” act, etc.. So, theoretically, the prevailing institutional solution was an amalgamation of direct and indirect representation.

Still, the actual application of those principles was dependent on another, more fundamental premise: the institutionally recognized leadership of the communist party over the state apparatus and the society. This was the natural outcome of the proclaimed class character of the socialist constitutions, which did not allow room for protection of dissenting minorities. Democracy was to exist only “for the working people, not the exploiting minority”.

The Western concept of separation of powers

In the Western Democracies the principle of separation of powers has always had a completely different character. It is a bi-dimensional principle, prescribing simultaneously a functional and an organic division of state powers. Still, in the parliamentary regimes it has not the rigidity and the absolute character it enjoys in the presidential regimes. The relativity of its application is present both at its functional and its organic dimension: for instance, the president of the Republic is not only the supreme authority of the executive, but he participates also in the exercise of the legislative functions through the sanction or promulgation of laws; the parliament exercises sometimes judicial functions, i.e. in the case of impeachment against the ministers or the Head of the State.

The relativity does not jeopardize the functionality of the principle, which is maybe the only of the fundamental postulates of contemporary democracy which has a purely instrumental character: it does not enshrine a substantive value to be protected, like, for instance, the democracy or the liberalism. It aims, instead, to guarantee the actual implementation of the other constitutional principles of the State of Law.

Another factor it should not be underestimated is the mutation of the principle due to the emergence of the “party democracy”: Its basic institutional rationale in the era of classical, liberal democracy of Westminster type was to guarantee the control of the royal executive by the elected parliament, i.e. ultimately by the people. The existence of parliamentary majorities and governments of the same color has obliterated this function. In nowadays the institutional equilibrium of modern democracy is not founded on the (impossible) separation of the executive from the legislative, but in the safeguard of the rights of the parliamentary minorities vis-a-vis the omnipotent majority. It seems that the only field where the principle conserves its absolute character is the judiciary, whose independence from all other state powers is a prerequisite for the Democracy and the Rule of Law.

The separation of powers in the contemporary Balkan Constitutions

All contemporary Balkan Constitutions –with the important exception of the Romanian- enshrine explicitly the principle of separation of power, rejecting categorically or implicitly the founding principles of the “ancien regime”. Thus, according to article 8 of Bulgarian Constitution “The power of the state is divided between a legislative, an executive, and a judicial branch” and according to the article 12 of the Yugoslavian one, “Authority in the Federal Republic of Yugoslavia shall be organized on the principle of the separation of powers between the legislature, executive, and judiciary”. Similar are the provisions of the article 8 of Fundamental principles of the Constitution of FYROM, whereas the principle could be deduced also from the article 80 of the Romanian Constitution, that defines the President of the Republic as the “mediator between the powers”.

Still, there is a number of institutional problems related to the principle, which will be briefly outlined in the following paragraphs.

The relations between the executive and the legislative power

This is -potentially- the more controversial issue of the new Constitutions, as it reflects and determines the actual balance of powers between the political and institutional actors. Most of the new, post-communist democracies of Central and Eastern Europe have adopted a dualistic structure of the executive, with a strong president present as head of it. In some cases (Russia, Balarus, Ukraine, Croatia, Kazakstan) an Orleanist or semi-presidential system has been introduced, in which the Cabinet must have simultaneously the confidence of the Parliament and the President

In the Balkans, although similar trends are present, the majority of the Constituent Assemblies have opted for the establishment of classical parliamentary regimes. As most of the Balkan countries have suffered under a strong head of the state, the public sentiment was against institutionalizing such strength in the constitution. Still, the immediate election of the Head of the State in Romania, FYROM and Bulgaria strengthens the position of the President to the point that some scholars characterize the regime as “Presidential Monarchy”.

The functions of the Head of the State

The constitutional practice did not fully confirm this assumption. It seems that the majority of the Heads of State have not exploited the legitimacy that stems from their immediate election in order to claim a primordial political role. The “asymmetric” role they have hence assumed is probably the best for the smooth functioning of the new institutions. Anyway, the constitutional provisions do not allow them a considerable margin of discretion under ordinary circumstances.

More specifically, they do not, generally, dispose of a real discretionary legislative power, their discretion limited only to the time of promulgation of the voted drafts. Moreover, they do not have usually the competence to edict normative decrees, except during the state of emergency. Taking into account their overall constitutional function, their competencies are much alike those of the Greek President of the Republic before the constitutional revision of 1986. They could be classified in C. Smitt’s typology into the “Commissariat type” of president, as they deploy the maximum of their institutional potential in the extreme circumstances of the state of emergency.

More specifically, in all Constitutions their basic symbolical function is to “represent the unity of the people and the State”. The Balkan Presidents have, in this framework, competencies such as the international representation of the country, the competency to grant pardon, decorations and titles of honor, to address messages to the people and the Assembly and to promulgate the laws. They have also more substantive competencies, in the field of nomination –and sometimes recall- of high civil servants and ambassadors, as well as part of the Constitutional Judges.

They act also as mediators and “regulators” between the executive and the legislative powers, by determining the dates of elections and referenda, by nominating the Prime Minister and the ministers and by having a reconsideration veto vis-a-vis voted laws . The Romanian and the Bulgarian Constitutions provide them also with a quasi discretional power of dissolution of the Parliament.

Nevertheless, their role is primordial with regard to issues of defense and security, especially in irregular circumstances. They are the Commanders-in-Chief of the armed forces, they preside (where established) of the “Security Council”, i.e. of the organ that should handle international crises. The Romanian President is especially strong, as he is the only competent to declare war in the case of a military aggression, effective orimminent, by simply acknowledging the Parliament of the measures he has taken. He has also the competence to proclaim the state of seige, requesting the approval of the Parliament within 5 days, at the most, from the adoption of these measures.

In Albania and Bulgaria the President declares the state of emergency, but after motion of the government, whereas in Yugoslavia and FYROM the competent organ thereof is the National Assembly. In all cases, however, the Heads of the State acquire especially important prerogatives during the state of emergency, having the right to issue acts that have the force of law.

The functions of the parliament

The form or parliamentary regimes

Although all countries have adopted parliamentary regimes, the institutional role and the institutional weight of the parliament varies, from the classical “Westminster” type to systems approaching the “governing parliament”. The latter is especially the case of FYROM, where, the Constitution provides for the self dissolution of the Parliament and defers to the Assembly the right to decide finally on the dismissal of a member of the Government. According to article 94 of the Constitution, the Prime Minister proposes the dismissal of a member of the Government but it is the Assembly that decides on the proposal for the dismissal at its first meeting following the proposal. Moreover, according to para. 4 of the same article, if the Prime Minister dismisses more than one-third of the initial composition of the Government, the Assembly follows the same procedure as for the election of a new Government.

The Romanian Constitution in its first Chapter proclaims also that the Parliament of Romania is the supreme representative body of the Romanian people, and the only legislative power of the State. Still, its competencies do not exceed the average of the “median” parliamentary Assembly. Analog is the situation in the other Balkan countries.

Uni or bi-cameral system

Regarding the establishment of a second legislative chamber, the recent constitutional experiences of the new Central and Eastern European democracies do not allow us to decipher a general rule about the establishment of the bicameral system.. Of course, federal states, as Russia or Yugoslavia, have a functional necessity to establish two chambers and small countries usually opt for the unicameral system (this is the case of Estonia, Hungary and in the Balkans of Bulgaria, Former Yugoslav Republic of Macedonia). Sometimes the option for a uni- or bicameral system does not seem to be related to the specific constitutional tradition. For instance, the new Constitution of Slovakia has adopted a unicameral parliament, while the Czech Republic has opted for a bicameral one.

Still, it seems to exist a general rule, or rather a general trend: the countries which are not federal states and have opted for a dualist organization of the executive do not, generally, have a second chamber. The reason is simple: Both the president and the 2nd chamber act as mechanisms of checks and balances in the sense of the old definition of Montesquieu: the one power stops the other. It is obvious that if a constitutional mechanism has too many instances of control, too many “breaks”, its efficiency overburdened by the institutional rigidities. The existence of a strong president provides the requisite check on legislative excess not leaving room for the introduction of a second chamber.