Courts and Separation of Powers

Abstract

The issue of rising power of courts and its consequences for the principle of separation of powers has been long discussed (and criticized) especially in the United States. Many European countries experience intrusion of courts to issues of high politics previously reserved for executive and legislative powers (e.g. elections and voting rights, security issues, social rights and allocation of state finances). Our panel will discuss interactions between courts and parliaments and governments, especially reaction of two other branches to the rise of courts in Europe, analyzing the trends both theoretically and empirically. First, we cover the principle of the separation of powers in the case law of international courts (the ECtHR and the CJEU), the differences in their understanding of the principle as one of the core democratic values and their interference into national “high policies”. We look at the transnational separation of powers, limitations of national governments, and impact of national and international courts’ decisions on budgetary issues during the financial crisis. Then we move on to the national concept of the separation of powers, addressing the question how much and why national courts interfere with the distribution of powers among other constitutional actors, or change the competences and legitimacy of governments, houses of parliament, or presidents through the revision of electoral system. Finally, we cover also the problematic of the independence of judiciary and supranational influence in domestic empowerment of courts. We seek to uncover factor influencing decisions of a constitutional court to make use of a reference to international human rights case law.