Преписивање догме о тродеоби функција државне власти - уставно судсво као четврта функција државне власти
Questioning the Tripartite Separation of Powers - Constitutional Courts as Fourth Branch of Government

Author(s): Brano Hadži Stević
Subject(s): Law, Constitution, Jurisprudence, Constitutional Law, Governance
Published by: Правни факултет Универзитета у Источном Сарајеву
Keywords: Branches of government; Judicial review; Constitutional court; Legal and political reasoning;
Summary/Abstract: Traditionally, the functions (branches) of stet power are divided into legislative, executive and judicial functions. However, this division is sometimes considered to be too narrow and revision is necessary, but authors disagree on which of the tree traditional functions ought to be challenged. In this paper we will focus on the analysis of the position of the constitutional courts. Since the judicial review as carried out by the constitutional courts, their role has evolved significantly - from Kelsen's claim about constitutional court as a negative legislator to the view that the constitutional court is much more than that. The main hypothesis put forward in this paper is that the constitutional court represents a separate function of the government. In an effort to analyze the position of the constitutional courts, the author makes the introductory remarks regarding the functions of the government an determines them in a formal, material, and organic sense, and the remaining part of the work is devoted to the constitutional court's judicial review. Similarities and the differences between constitutional courts are legislators and regular courts will be analyzed, as well as the legal and political reasoning of constitutional courts, in an effort to point out the necessity of revising the position of tripartite division of powers.

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