Justice as Checks and Balances

2021 ◽  
pp. 1-62
Author(s):  
Edgar Franco-Vivanco
Keyword(s):  
Rule Of Law ◽  
Indigenous Population ◽  
Colonial Mexico ◽  
Decision Making Process ◽  
Checks And Balances ◽  
Endogenous Factors ◽  
Local Elites ◽  
The Rule Of Law ◽  
Administration Of Justice ◽  
State Agents

ABSTRACT The centralization of conflict resolution and the administration of justice, two crucial elements of state formation, are often ignored by the state-building literature. This article studies the monopolization of justice administration, using the historical example of the General Indian Court (gic) of colonial Mexico. The author argues that this court’s development and decision-making process can show us how the rule of law develops in highly authoritarian contexts. Centralized courts could be used strategically to solve an agency problem, limiting local elites’ power and monitoring state agents. To curb these actors’ power, the Spanish Crown allowed the indigenous population to raise claims and access property rights. But this access remained limited and subject to the Crown’s strategic considerations. The author’s theory predicts that a favorable ruling for the indigenous population was more likely in cases that threatened to increase local elites’ power. This article shows the conditions under which the rule of law can emerge in a context where a powerful ruler is interested in imposing limits on local powers—and on their potential predation of the general population. It also highlights the endogenous factors behind the creation of colonial institutions and the importance of judicial systems in colonial governance.

LEGAL JUSTICE IN PRESIDENTIAL IMPEACHMENT PRACTICE BETWEEN INDONESIA AND THE UNITED STATES OF AMERICA

2021 ◽  
Vol 9 (3) ◽  
pp. 465
Author(s):  
Hanif Fudin
Keyword(s):  
United States ◽  
Rule Of Law ◽  
House Of Representatives ◽  
The United States ◽  
Scientific Article ◽  
Constitutional Court ◽  
Checks And Balances ◽  
The Rule Of Law ◽  
Basic Law ◽  
Republican Government

The constitution is approved as a law capable of guaranteeing human rights and protection of the constitution and past coordination, as well as being the corpus of the administration of the rule of law entity itself. Regarding the state of Indonesia and the United States, if examined by these two countries, they have similarities in the form of republican government or presidential system of government. However, on the contrary, in the impeachment transition, the two countries appear to be dichotomous both formally and materially. Therefore, this scientific article discusses reviewing the impeachment provisions of the Presidents of the two countries who agree to develop agreements and principles in checks and balances in trying to actualize the value of the country's legal justice. Therefore, in approving the discourse of research methods, descriptive-comparative methods are used with normative-philosophical and comparative-critical discussions. On that basis, this study discusses the practice of presidential impeachment in Indonesia to consider more legal justice, because it is through a legal process involving the Constitutional Court which implements practices in the United States that only involve the Senate and the House of Representatives which incidentally is a political institution. It considers the constitution in the basic law of the country.

The Impact of covid-19 Measures on the Rule of Law in the Western Balkans and the Increase of Authoritarianism

2021 ◽  
pp. 1-33
Author(s):  
Andi Hoxhaj ◽  
Fabian Zhilla
Keyword(s):  
Civil Society ◽  
Comparative Analysis ◽  
Bosnia And Herzegovina ◽  
Rule Of Law ◽  
Western Balkans ◽  
Checks And Balances ◽  
The Rule Of Law ◽  
State Capture ◽  
The Impact ◽  
The Eu

Abstract This article offers a comparative analysis of the covid-19 legal measures and model of governance adopted in the Western Balkans countries (Albania, Bosnia and Herzegovina, North Macedonia, Montenegro, Serbia and Kosovo) and its impact on the state of the rule of law, and ability of parliament and civil society to scrutinise government decisions. The article assesses the governments’ approaches to introducing and enforcing covid-19 legal measures, and shows examples of how covid-19 has exposed more openly the weaknesses in the existing system of checks and balances in the Western Balkans. The article offers new insights into how covid-19 presented a new opportunity for leaders in the Western Balkans to implement further their authoritarian model of governance in undermining the rule of law. This article offers suggestions on how the EU could respond, through its accession conditionality instruments and civil society, to redirect this trend towards more state capture.

Presidential Autocracy and the Rule of Law

Worldview ◽  
1973 ◽  
Vol 16 (3) ◽  
pp. 5-12
Author(s):  
D. L. Robinson
Keyword(s):  
Rule Of Law ◽  
Full Scale ◽  
American Democracy ◽  
Checks And Balances ◽  
Henry Kissinger ◽  
The Rule Of Law ◽  
The People ◽  
The City

The year 1972 seemed fateful to those who cherish the commitment of American democracy to the tradition of checks and balances. Indeed, as the year ended, the realization was beginning to dawn that the nation was on the edge of a full-scale constitutional crisis.Nineteen seventy-two was the year when President Nixon reopened the door to China, then mined Haiphong harbor and bombed the city of Hanoi; when he visited Moscow, concluded a treaty limiting strategic arms and directed Henry Kissinger to announce that peace was "at hand," then suddenly renewed and intensified the bombing, suspended it for thirtysix hours at Christmas, renewed it, then stopped it again—all without explanation to the people on whose behalf he was acting.

Part 4 Constitutionalism and Separation of Powers, 4.4 Yemen: A Burgeoning Democracy on the Arab Peninsula?

2012 ◽  
Author(s):  
Glosemeyer Iris ◽  
Shamiri Najib Abdul-Rehman ◽  
Würth Anna
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Constitutional Rights ◽  
Constitutional History ◽  
Checks And Balances ◽  
The Rule Of Law ◽  
Islamic Jurisprudence ◽  
Central Elements

This chapter examines constitutional developments in Yemen. It covers Yemeni constitutional history before unification, the fate of the 1991 Constitution, and the Constitution of 2001. It argues that despite the relative political continuity (in the sense that there have not been successful military coups or significant elite changes in decades), constitutionalism in the country may be characterized as being two-fold. First, numerous constitutional articles are ambiguous and amenable to adverse interpretations because they leave too much of the constitutional rights to be defined by laws, thereby undermining the effectiveness of the said articles. The same applies to ordinary parliamentary laws, for they refer many important details to executive regulations, by-laws, ministerial resolutions, or Islamic jurisprudence. Second, while there has been a tradition of constitutionalist thinking at least since the 1940s, central elements of constitutionalism are missing. Checks and balances are weak, and the rule of law is far from being reality. Separation of powers is not even constitutionally fully guaranteed, much less applied in practice.

The Separation of Powers in African Constitutionalism

2019 ◽  
Author(s):  
Charles Manga Fombad
Keyword(s):  
Rule Of Law ◽  
Good Governance ◽  
Separation Of Powers ◽  
Common Denominator ◽  
Checks And Balances ◽  
The Rule Of Law ◽  
Pure System ◽  
Key Innovation ◽  
Anglo American ◽  
The Government

One reason why dictatorships flourished in Africa until the 1990s was that constitutions concentrated excessive powers in presidents. The democratic revival of the 1990s led to the introduction of new or substantially revised constitutions in a number of countries that for the first time sought to promote constitutionalism, good governance, and respect for the rule of law. A key innovation was the introduction of provisions providing for separation of powers. However, in many cases the reintroduction of multipartyism did not lead to thorough constitutional reform, setting the scene for a subsequent struggle between opposition parties, civil society, and the government, over the rule of law. This reflects the complex politics of constitutionalism in Africa over the last 60 years. In this context, it is important to note that most of the constitutions introduced at independence had provided for some degree of separation of powers, but the provisions relating to this were often vaguely worded and quickly undermined. Despite this, the doctrine of separation of powers has a long history, and the abundant literature on it shows that there is no general agreement on what it means or what its contemporary relevance is. Of the three main models of separation of powers, the American one, which comes closest to a “pure” system of separation of powers, and the British, which involves an extensive fusion of powers, have influenced developments in anglophone Africa. The French model, which combines elements of the British and American models but in which the executive predominates over the other two branches, has influenced developments in all civilian jurisdictions in Africa, particularly those in francophone Africa. The common denominator among the models is the desire to prevent tyrannical and arbitrary government by separating powers but doing so in a manner that allows for limited interference through checks and balances on the principle that le pouvoir arrête le pouvoir. The combined Anglo-American (common law) and French (civil law) models received during the colonial period remain applicable today, but despite its adoption in the 1990s, the effectiveness of the doctrine of separation of powers in limiting governmental abuse has been curtailed by the excessive powers African presidents still enjoy and the control they exercise over dominant parties in legislatures. South Africa in its 1996 Constitution, followed by Kenya in 2010 and Zimbabwe in 2013, entrenched a number of hybrid institutions of accountability that have the potential not only to complement the checks and balances provided by the traditional triad but also to act where it is unable or unwilling to do so. The advent of these institutions has given the doctrine of separation of powers renewed potency and relevance in advancing Africa’s faltering constitutionalism project.

Agoudimos and Cefallonian Sky Shipping Co. v. Greece

2001 ◽  
Vol 12 (5-6) ◽  
pp. 397-399
Keyword(s):  
Rule Of Law ◽  
Fair Trial ◽  
General Interest ◽  
The Rule Of Law ◽  
Administration Of Justice

The principle of the rule of law and the notion of a fair trial enshrined in Article 6 precluded any interference by the legislature — other than on compelling grounds in the general interest — with the administration of justice designed to influence the judicial determination of a dispute.

scholarly journals PROSPECTS FOR THE IMPLEMENTATION OF THE EUROPEAN ADMINISTRATIVE SPACE IN UKRAINE

2019 ◽  
pp. 116-120
Author(s):  
M. A. Boiaryntseva
Keyword(s):  
Rule Of Law ◽  
Public Authorities ◽  
The Rule Of Law ◽  
Legal Proceedings ◽  
National Courts ◽  
Administration Of Justice ◽  
Administrative Courts ◽  
Definition Of ◽  
The Right ◽  
Discretionary Powers

In the article the author determines the peculiarities of consideration and resolution of administrative disputes in foreign countries. The author emphasizes that the priority international and European principle of the implementation of justice is the observance of the rule of law. It has been determined that the contents of the precedents of the European Court of Human Rights testify that they not only contain substantive decisions, but also the norms whose application solves the problem of the interpretation of legal institutions, in particular, such as the principles of the administration of justice. The author stresses that the achievement of the requirements of ensuring the rule of law and the rule of law in accordance with European standards requires the definition of the limits of exercising discretionary powers by public administration bodies. The discretionary powers of public authorities and local self-government bodies cannot be unrestricted, and national courts should determine the limits of interference in their implementation. It is substantiated that the performed characteristic of the aforementioned normative legal acts allows us to conclude that it is necessary to study the principles of the implementation of legal proceedings in the European administrative space as a conditional "benchmark" of the development of the system of administrative courts established by the current legislation. It is stressed that the recommendations that require their implementation in the current administrative-procedural legislation include the implementation of such standards for the implementation of legal proceedings as foreseen requirements for the abolition of the right to appeal in the event that a person failed to comply with part of the court decision that provided for immediate enforcement; definition of procedure for pre-trial and extrajudicial settlement of administrative disputes. It is substantiated that borrowing from the experience of administrative tribunals established in the Anglo-Saxon judicial system, where administrative complaints are dealt with by specially authorized lawyers, is one of the possible ways of solving the problems of a significant load on the system of administrative courts of Ukraine. The author concludes that the effectiveness of the national justice system as a whole, and in particular, administrative justice, depends on the implementation and further implementation of international and foreign standards for the administration of justice.

scholarly journals Argentina’s Politicized Bureaucracy: A Historical Analysis of Two Political Regimes

2018 ◽  
Vol 14 (2) ◽  
pp. 1-22 ◽  
Author(s):  
María Verónica Elías
Keyword(s):  
Rule Of Law ◽  
Historical Analysis ◽  
The Political ◽  
Political Regimes ◽  
Checks And Balances ◽  
The Rule Of Law ◽  
Fair Treatment ◽  
History Of ◽  
Democratic Rule

This article employs the concept of “bureaucratic authoritarianism” (O’Donnell, 1978, 1988) to evaluate whether the character of Argentine bureaucracy has changed in the shift from dictatorial to democratic rule. A brief discussion about the political and administrative history of that country follows the characterization of bureaucratic authoritarianism in light of accountability and clientelism (Fox, 2000; Smulovitz & Peruzzotti, 2000, 2003). This article explores the possibility of bureaucratic legitimacy in Argentina through the enforcement of the rule of law, the system of checks and balances, and the fair treatment of citizens.

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