Challenges to the Authority of the Judiciary. Separation of Powers

Contribution by the Honourable Mr Justice M.M. Nicolatos, President of the Supreme Court of Cyprus

"The doctrine of separation of Powers was first recognised by Aristotle in his work «Πολιτικά» «On Politics» 25 centuries ago.  Much later, it was further developed by Montesquieu in his work «De l’ esprit des Lois». 

Today, the separation of Powers is considered as a necessary ingredient of Democracy and of the Rule of Law. 

Separation of Powers means that each Power of the State (Executive, Legislative and Judicial) function independently, within their own field of activity and do not interfere in each other’s domain.

In Cyprus, the doctrine of separation of Powers is fully applicable and respected.  The Constitution protects and safeguards the independence of each Power of the State.  If there is interference of one Power in another Power’s field, it will be declared unconstitutional, and therefore null and void, by the Supreme Court acting in its capacity as Supreme Constitutional Court.

Applicability of the doctrine of separation of Powers presupposes the existence of an honest, independent, impartial and courageous Judiciary.  This is achieved only if the Judges enjoy security of tenure and emoluments, and if they are and feel absolutely independent in the exercise of their judicial duties.

It is not only a question of Constitutional and Legal provisions, it is also a question of culture and mentality both of Judges and of other officials of the State, as well as the people in general.  Such culture and mentality, that allows Judges to be truly independent, is much more difficult to be built than changes in Constitutions or in Laws.

New Democracies, in Europe and beyond, should not only provide safeguards for the independence of the Judiciary, but they should educate their officials and their citizens to respect Judicial Independence, in fact.  In parallel, Judges should be educated to act courageously in protecting their independence from any undue interference.

The mentality of the civil servant does not have any place in the Judiciary.  Judges are, in no way, civil servants but independent officials of the State, that exercise State Power, in the performance of their daily duties.

Only with independent and courageous Judges we can have Separation of Powers and only with Separation of Powers we can have Rule of Law, Democracy and effective Respect for Human Rights". (supremecourt.gov.cy)