1. Separation and distribution of powers, It is to Montesquieu that the theory of the separation of powers is attributed. It is common knowledge that he never used the term himself, but he did develop a theory on guaranteeing public and individual freedoms predicated upon the evident need to divide legislative, executive and judicial authority among three distinct entities. In his view, political freedom is only to be found under moderate governments. And yet it is only present in moderate states when there is no abuse of power. The lessons of history, however, show that every person granted power ends by abusing it, and will do so until impeded. In order to do away with abuses of power, arrangements must be made whereby the regulator of power is power itself.

In other words, the authority of a state needs to be shared among distinct bodies so that these can exercise mutual control.Nonetheless, according to Montesquieu a certain amount of collaboration between the powers is desirable and even necessary, at any rate between parliament (the legislature) and government (the executive). Indeed, even in cases where a well-developed or rigid separation of powers exists - notably in presidential
systems - there are, unavoidably, de facto relations between the legislature and the executive.

On the other hand, one necessary feature of any system based on the separation of powers is the independence of the judiciary. The other two powers cannot be allowed to interfere in settling cases being dealt with by the courts. This is a basic condition, if not the basic condition, if a state is to be governed by the rule of law.

2. When, as a sine qua non for democracy, the separation of powers is enshrined constitutionally in the form of presidential or parliamentary government, it is in the nature of things that the principle will not always be upheld and that one power will encroach upon the jurisdiction of another.

What can be done to guard against such violations of constitutional provisions for the distribution of powers?

One possible solution would be to appoint the judiciary as guarantor that the separation of powers will be honoured. This, however, would make the judiciary into a "super-power" and would not dispel the risk that it might encroach on the territory of the legislative or executive branch.

The solution which would appear to offer the best chance of ensuring that no entity oversteps its specific constitutional powers is to give overall authority, at least in the final resort, to a constitutional court.

It is in fact the function of a constitutional court to see that the various organs of state (or at the very least the legislative branch) uphold the Constitution, and thus to ensure respect for the distribution of powers as prescribed in the Constitution.

3. The legislature and the executive It is not as simple as it might appear to differentiate between the jurisdiction of these two bodies. This is because, as a general rule, the executive has a certain law-making function which is not always easily distinguishable from that of the legislature.

In a few countries (for example, France), parliament, the usual holder of legislative power, is authorised to make laws only in certain designated areas. In other matters rule-making power is exercised by the government. More frequently, the constitution grants the executive the authority to introduce any rules and regulations necessary for the practical enforcement of laws passed by parliament as the legislative branch. If this were not the case, such laws would be unenforceable because too incomplete for government, individuals or the courts to apply them in practice. The constitutional limitation explicitly or implicitly imposed on the executive is naturally that it may not amend or suspend laws passed by parliament.

In the same way, it may be constitutional for parliament, in specific matters in which it is competent to introduce complete legislation, nonetheless to authorise the executive to introduce regulations implementing the basic principles which it has itself approved. Alternatively, in specific cases the government may be authorised, either under constitutional provisions applicable in an emergency or by parliament if the latter considers it appropriate and is not constitutionally barred from giving authorisation, to repeal or amend statutory provisions. In such cases, however, it would appear judicious to set a time limit for government provisions and to ensure that the provisions thus adopted are subject to legislative confirmation by parliament, without which they will cease to be enforceable after a certain period of time.

4.1. Obviously, in the examples mentioned above there is a case for Constitutional Court intervention.

The Court should be authorised to ascertain upon demand whether the rules adopted by the executive are within its jurisdictional limits as defined either directly by the constitution or by parliament. Similarly, it should be made possible for the Constitutional Court to ascertain that legislation passed by parliament does not encroach on the executive’s scope for rule-making. In this regard, however, save where the Constitution explicitly gives the executive the right to rule on certain specified matters, it would appear that parliament should be left free to make a "complete" law itself, leaving the executive no leeway for adopting any implementing regulations.

4.2. Secondly, the legislature must remain subject to the constitution. Apart from the issue of espect for basic rights (which is outside the remit of this seminar), parliament may only function as permitted to do so under the terms of the constitution. It is the duty of the Constitutional Court to ensure that these terms are respected, in particular as regards the voting rules set forth in the constitution (eg absolute majority, the presence of a quorum or the need for a special majority when certain laws are put to the vote).

5. The principle of strict compliance with the law
Generally speaking, the Constitution grants to the legislative body, or parliament, ie. to the law in the formal sense, the exclusive authority to legislate on matters designated as being of particular constitutional importance. The constitution may do this in a positive way by stipulating that legislation in a certain field is the exclusive preserve of parliament. Alternatively, it may take the opposite approach and state that exception to or exemptions from a given constitutional principle - especially when basic human rights are at issue - can only be applied if provided for by law. To take one example, the constitution might stipulate that the structure, jurisdiction and procedure of the courts are to be determined in law, with the exception of such basic principles as it has itself established in the matter. Then again, the constitution might require that the circumstances in which individuals can be deprived of their freedom must be determined exclusively in law.

6. Ensuring respect for the principle of strict compliance with the law, which might also be termed the principle of matters exclusive to the law, is a part of the basic role of the Constitutional Court. The Court must be able to ascertain whether parliament has devolved authority to the executive to introduce regulations in areas which should be exclusive to the law, and to overrule any such decisions. The direct or indirect result of such rulings of unconstitutionality must be that rules adopted by the government in these areas, which fall outside its jurisdiction as defined by the Constitution, are declared invalid.

7. Similarly, it would appear appropriate to make the Constitutional Court directly responsible for determining whether rules adopted by the government conform to the principle of strict compliance with the law whenever such conformity is questioned. If this role is conferred instead on the administrative courts, without the right of appeal or remedy in the Constitutional Court, there is a great danger that two contradictory sets of precedents will develop with regard to respect for the principle of strict compliance. Such a situation is likely to lead to uncertainty of the law and weaken observance of the rule of law. Consequently, it is important that the right of intervention in such cases be given to the Constitutional Court alone.

8.1 However, the principle of strict compliance with the law must not be so severely interpreted as to preclude any delegation of powers to the executive. In theory as in practice, it should ensure that any powers devolved by parliament relate only to the implementation of principles which it has itself endorsed. This means that the executive will be unable to use its devolved power to exploit the vagueness of such principles or make its own interpretations of insufficiently clear-cut options.

For example, if parliament is responsible for the taxation system, it is vital that it should also take responsibility for working out the basis used for assessment and taxation levels. Again, if the constitution stipulates that the organisational structure of education and the procedure for awarding qualifications and grants are to be determined in law, it follows that the key elements of these three areas must be decided directly by parliament. It might therefore be acceptable for the executive to set the level of university registration fees on the express condition that the minimum and, more importantly, the maximum level were fixed by parliament. This is because the ceiling for university registration fees must be considered a key element of education legislation inasmuch as it has a direct impact on the accessibility of higher education.

In matters where the constitution makes the legislature - ie one or more elected assemblies - responsible for law-making, it runs counter to the intentions behind the constitution for legislature to devolve power to a less representative body, even if the latter is politically answerable to parliament. In such cases, the act of devolving power would increase the risk of arbitrary decisions, because the measure in question will not have been adopted with the democratic safeguards afforded by parliamentary debate.

8.2 It is important nonetheless to keep things in perspective and not exaggerate the principle of strict compliance with the law. The crucial factor is that the key elements of each subject-matter should be dealt with by the legislature and that the executive should not be given enough room for manoeuvre to rule on the substance of matters pertaining exclusively to the law. The executive must however be empowered to determine the procedure for applying laws passed in parliament. The Constitutional Court thus has a delicate balance to maintain and needs to show moderation and common sense.

9. Guaranteeing an independent judiciary. The power to settle criminal, civil and administrative cases, and all cases of dispute between two individuals, an individual and an administrative body or even two administrative bodies, may be conferred on a single judicial authority or divided among various types of court. While the "ordinary" courts may be competent to settle disputes between an individual and a public authority over the validity of an administrative decision or regulation, this power may equally be conferred on specialised bodies known as administrative courts. Similarly, the power to settle disputes concerning the liability of the state in respect of its administrative decisions may rest either with the ordinary judiciary (as is the case in Belgium) or with the administrative courts (as in France).

It is possible, therefore, for the distribution of judicial power to vary greatly from one state to another.

10. However, the important thing is that the judiciary should operate independently of the other powers and without interference from them in the settlement of disputes.

In order to guarantee this, the first step is to ensure the independence of the judiciary vis-à-vis all parties, even the state prosecution service. Appointing judges for life is a powerful means of securing their independence, even if it is unavoidable that the other powers will play a more or less direct role in their appointment and promotion.

In this context, it is advisable to empower the Constitutional Court to check that legislation governing the status of judges conforms adequately to the requirement that the judiciary, once in office, is genuinely free from intervention by the other powers. Similarly, the Court could be given the task of confirming that judges are appointed in accordance with the institutional laws, whose constitutional validity it will already have ascertained.

11. But even if the judiciary is guaranteed institutional and operational independence, it is still important that the other powers, and parliament in particular, do not interfere in the actual practicalities of passing judgment.

Although it is the role of the courts to apply the law, they are not called on as a rule to assess its constitutionality. Thus it may occur that parliament, having learned of certain cases whose probable outcome would appear to run counter to the interests (chiefly financial) of the state, will make amendments having retrospective effect to the legislation governing those cases. Equally, it may occur that a decision made by the executive, whether of general or even of specific application, is strongly criticised in a case whose outcome depends on that decision. Rather than risk losing a trial which could harm "state" (ie "government") interests, the legislature may be "requested", and may "agree", to give approval and retrospective legislative effect to the decision in question. From that point forward, the courts no longer have authority to censure the decision (even if previously on the point of doing so) and must apply the law uncritically (however recent its enforcement). The outcome to the case will thus be totally different from that which it would have been had retrospective legislative action not been taken.

In another scenario, parliament may "agree upon request" to withdraw (ie retrospectively to overrule) a legislative measure whose application in a case pending before a court implied an outcome which would damage state interests.

The situation may even arise where parliament is requested to make retrospective amendments to the exact terms of the law applicable in a case, and thereby to influence the outcome. This amounts to interference in the form of indirect but conclusive action on the part of parliament in deciding the outcome of a case before the judiciary.

12. It is essential that the Constitutional Court should be able to penalise this sort of interference by the legislature in the exercise of judicial power. If the Court is not authorised to do so, or if it does not react sternly, there is a substantial risk, where the state in question is bound by the European Convention on Human Rights, that the European Court of Human Rights will rule (as it has already done on various occasions) that such interference contravenes Article 6, para. 1 of the Convention.

In our view, an essential part of the Constitutional Court’s role is that it can and must punish and overturn this kind of parliamentary influence on the settlement of disputes, in particular where these are pending in the courts at the time of such intervention.

13. Three ways in which the legislature can intervene in proceedings before a court have been outlined above. Let us now look at some examples where the Belgian Constitutional Court - the Court of Arbitration - has overruled such unjustifiable interference by the legislature in the work of the judiciary.

The first case concerns a royal decree being challenged in the Conseil d'Etat (the Supreme Administrative Court) by private individuals. In view of the grounds for complaint, it seemed probable that the Conseil d'Etat, which had already provisionally suspended enforcement of the decree, would declare it void. With the aim of coming to the aid of the executive, parliament passed a law ratifying the decree, which thus became law with retrospective effect from the date on which it first entered into force. The Court declared the law in question void (Judgment 16/91).In another similar case, parliament ratified a number of administrative decisions (relating to appointments) being disputed in the Conseil d'Etat (Judgment 20/92).In another example, a royal decree determining the level of funding for the Veterinary Inspectorate was ratified while being challenged in the Conseil d'Etat The Court found that ratification was not justified and declared the law in question void (Judgment 34/93).

The second type of interference relates to the retrospective repeal of legislation. Such a repeal occurred in a case where legislation determining the status of certain government officials had subsequently been violated by the making of various appointments. Had this legislation not existed, the appointments in question, which were challenged in the Conseil d'Etat, would have been valid. In order to "help" the executive in carrying out appointments, parliament repealed the law with retrospective effect. On this occasion the Court found that parliamentary intervention was unconstitutional (Judgment 64/97).

The third form of interference relates to retrospective amendments to the law or the validation of measures taken under previous legislation. In 1995, a law was passed which introduced a tax on pensions and related benefits, such as capital sums paid to pensioners, which have been built up from their contributions. Although the law did not explicitly cover lump sums received before 1995, the implementing decree extended the new tax to sums paid out before that date. The individuals affected by the corresponding deduction brought court action for the restitution of the tax paid on their capital, on the grounds that there was no legal basis for the tax. (In Belgium, the ordinary courts do not need Conseil d'Etat approval in order to rule as to the lawfulness or constitutionality of measures taken by the executive.) Action was also taken to have the decree set aside by the Conseil d'Etat. Several courts had ruled in favour of the applicants, and a large number of appeals were still pending, when parliament, acting on a government "request", amended the basic rules so as to extend the tax to capital sums received before 1995. It also declared valid all instances of deductions made between 1995 and the date on which the new rules came into force. The Court of Arbitration disallowed the new rules on the basis of this decision to grant retrospective validation (Judgment 86/98).

14. All of the aforegoing relates to the legislature's use of its right to make retrospective rulings. It could perhaps be concluded that the very act of giving retrospective effect to legislation - which will inevitably have an impact on the outcome of cases pending - should for this very reason be banned. However, such an extreme approach is not really justified.

Indeed, there may well be objective and reasonable grounds for parliamentary validation of regulations passed by the executive (whether of general or specific application), even if this results in the sudden loss of jurisdiction for those courts faced by such declarations of validity. It is possible to conceive of situations where the decision to give parliamentary approval by passing a law (with retrospective effect) is made not in order to do away with the authority of the court, but on other, reasonable grounds. The end result may be the same, but not the underlying rationale.

For example, especially in situations of emergency, parliament may give the government authority to introduce rules, but with the safeguard, provided for in the enabling Act, that parliament must pass a law within a certain time frame, approving the measures taken by the executive. It is unreasonable to infer that such approval is intended to prevent the ordinary or administrative courts from ruling on the validity of rules introduced by government bodies. Its main purpose is instead to strengthen parliamentary supervision of the exercise of the powers which it delegates to the executive.

 Alternatively, there may be reasons of public interest justifying parliament’s decision to legislate to ratify a government decision, even if the effect is to paralyse or nullify court jurisdiction over the decision in question. For example, just because an appeal has been brought against an administrative ruling, there is no reason why defects alleged of that ruling should not be remedied before judgment is passed on the appeal, as long as this is considered necessary to the proper and uninterrupted operation of government departments. Similarly, parliamentary intervention in a matter first resolved by the executive can be justified by a real concern to remove uncertainty of the law. This uncertainty may result, for example, from the fact that the decision in question, although upheld by the Conseil d'Etat, is considered unlawful by courts not constrained by the latter's ruling.

15. Clearly, then, the Constitutional Court is bound to tread carefully when it comes to safeguarding the powers of the judiciary. Its best course of action would appear to be to overrule parliamentary decisions influencing cases still in the courts, except where such decisions can be objectively and reasonably justified as serving the public interest.

16. Federalism and autonomy for certain regions. Even unitary states have room for a certain degree of local or regional autonomy. In such systems, however, local and regional authority decisions, whether of general or specific application, are subject to supervision from above, especially from national government, and to ordinary and administrative court reviews of their lawfulness. In unitary states, it does not appear necessary or even advisable to empower the Constitutional Court to see that local and regional authorities do not exceed their jurisdiction.

The situation is quite different in federal states and those where some elements of legislative and executive power are constitutionally devolved to certain regions.

The distribution of legislative power between central government and federated states or designated self-governing regions is laid down in the Constitution or in laws having constitutional force. It is only natural that each level of power will try to legislate as much as possible in the areas within its jurisdiction and that, in doing so, it will exceed its authority.

It is vital that a body should exist to settle the ensuing conflicts of jurisdiction. Clearly, this body cannot legitimately be a part of the federal legislature or executive, because it would thus be both plaintiff and judge, which is contrary to the rule of law.

 Nothing is more natural than that the Constitutional Court should be given this role. It must be authorised to ensure that no body with a share in legislative power exceeds its jurisdiction as defined by the Constitution. At the same time, of course, the Court will check that central and regional executives do not overstep their substantive authority.