Independence and impartiality of the court separation of powers constitutes the second principle of the rule of law in a free and modern constitution. This principle has an organizational character and aims to ensure that all abilities are limited and subject to control. The focus of separation and balance of powers is, in fact, the core of the rule of law.
Aristotle is thought to be the first to, in his work “Politics,” mention the notion of separation of powers briefly, emphasizing among other things that in all Government, there are three elemental powers. The first is the one who deals with the affairs of the state (legislature), the second is the power with which the Government (executive) needs to act. Simultaneously, the third includes the judiciary in the following period, sporadic attempts to pay attention to this principle, but without elaborating theoretically enough and correctly, much less to apply it in practice.
In every state, there are three types of power: legislative power, executive power, and judicial power. When in the same person or the same body, the legislative power is merged with the executive, then there is no more freedom because it can be assumed that the same monarch or the same senate passes unjust laws, to be implemented later, but tyrannically. There is no freedom unless the judiciary is separate from the legislature and the executive.
If he joins the legislature, citizens’ right to life and liberty would be treated arbitrarily because the judge will also be the legislator. This makes it possible to avoid abuse of power and its arbitrary exercise. Among other things, he wrote that “In every state, there are three types of power: the legislature, the executive and the judiciary. However, of the three powers, Montesquieu wanted more attention and cared to be given to the judiciary, because according to him, in addition to the special importance that this presents itself power, it is the power “paler, more miserable and more exposed to the pressures and interventions of the other two powers.”
Montesquieu’s theory of separation of powers would be central to the constitutional theory and practice of democratic states. Essential elements of this system would be “borrowed” in the following period from many democratic constitutions. Today, there is no democratic country or one that is on the path to democracy that has not built state power construction based on the separation of powers.
The concrete realization of this principle in the Constitution and daily practice certainly depends on several factors, such as the nature of the state and its size, Government, state-building, economic and cultural heritage, and others. However, in any case, in a free and democratic system, there are at least three independent powers. Still, they interfere, balance, and mutually control each other, always based on constitutional and legal norms.
The central idea is that by holding free elections and applying the principle of democratic legitimacy, all state power should be organized to be determined and exercised by several independent mechanisms. The Parliament usually exercised a legislative power, whose main task is the adoption of laws based and implementation of the Constitution, the approval of the Government and its political program, and the control of state activity. In some instances and conditions, the Government may adopt normative acts with the force of law and may become a cause for Parliament’s dissolution and others. Finally, there is a judiciary, whose main task is to administer justice by the Constitution, without being directly influenced in this activity by the legislature and the executive.
In addition to the above, as the case may be, many other constitutional institutions are charged with various tasks and functions in a democratic state without necessarily being closely linked to one of the three leading powers. The organization, functioning, and duties they perform are defined as a rule in the Constitution and the organic laws issued based on and for its implementation.
The crucial constitutional principle of separation and balance of powers extends its effects to these mechanisms as well. In a more general sense, the focus of separation and balance of forces also includes constitutional and legal powers between central Government and local Government. Balance of power, as stated in its preamble, one of the main goals of the “People of Albania,” remains the determination. “to build a state of law, democratic and social, to guarantee fundamental rights and freedoms of man,….”, and others. However, this principle is directly addressed in Article 7 of the Constitution, which explicitly states that:
The system of Government in the Republic of Albania is based on the division and balance between the legislative, executive, and judicial powers.
The principle of the Rule of Law is closely linked to the judiciary’s independent functioning, which is one of the state’s functions, guarantees the supervision and protection of acts normative established thanks to the legislative process. We started considering the issue of independence and impartiality of the judiciary by mentioning the beginning of the separation of powers. If we have a break from violence, we first have an independent judiciary. If we have an independent judiciary, we will have a trial fair and impartial, and as a result, we will have credibility in the courts.
One of the fundamental human rights is the right to a fair legal process. If this right is violated, the individual is denied the right to exercise his legal rights as a citizen of a particular country. Due process is not just a right. It is today treated more as a constitutional principle that extends to certain fundamental human rights and freedoms. Its function and purpose are to protect the individual from illegal interference by public authorities.
To make this protection as useful as possible, the constitutional legislator
has also provided a legal means of control over these acts. The model chosen for this purpose is different, but the purpose of their creation unites them. In some countries, it is exercised by the ordinary courts by the so-called superior courts, even human rights courts. Such can also be considered the constitutional courts, which we find widespread in Europe and less so on other continents.