Part III The Relationship Between the Judiciary and the Political Branches, 7 Super-presidentialism in Angola and the Angolan Judiciary

2016 ◽  
Author(s):  
Thomashausen André
Keyword(s):  
Rule Of Law ◽  
The Political ◽  
Constitutional Court ◽  
The Rule Of Law ◽  
Constitutional State ◽  
History Of ◽  
The Relationship ◽  
Parliamentary Oversight ◽  
Supply Information

This chapter recounts the history of constitutional developments in Angola leading up to the 2010 constitution. It introduces the new Angolan Constitutional Court and discusses the first and thus far only substantive decision of this Court—the Parliamentary Oversight Judgment of 9 October 2013—a serious constitutional conflict between parliament and the president. The Court held that the 2010 constitution had reduced the powers of parliament as compared to the previous text and that parliament lacked the power to question the executive or to summon ministers to hearings before it. Since these are presidential powers, the Court held, parliament may not arrogate them, though it may request the president to supply information or order his ministers before it. Although the conservative leaning of the Court in this dispute disappointed the opposition and many commentators, the judgment strengthened the rule of law and of the constitutional state.

The Role of the Constitutional Court in the Development of the Rule of Law in Kosovo

2018 ◽  
Vol 43 (3) ◽  
pp. 274-313
Author(s):  
Enver Hasani
Keyword(s):  
Material Culture ◽  
Rule Of Law ◽  
Constitutional Court ◽  
Constitutional History ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
The Past ◽  
History Of ◽  
Communist Countries

Kosovo’s Constitutional Court has played a role of paramount importance in the country’s recent history. The author uses a comparative analysis to discuss the role of the Court in light of the work and history of other European constitutional courts. This approach sheds light on the Court’s current role by analyzing Kosovo’s constitutional history, which shows that there has been a radical break with the past. This approach reveals the fact that Kosovo’s current Constitution does not reflect the material culture of the society of Kosovo. This radical break with the past is a result of the country’s tragic history, in which case the fight for constitutionalism means a fight for human dignity. In this battle for constitutionalism, the Court has been given very broad jurisdiction and a role to play in paving the way for Kosovo to move toward Euro-Atlantic integration in all spheres of life. Before reaching this conclusion, the author discusses the specificities of Kosovo’s transition, comparing it with other former communist countries. Among the specific features of constitutionalism in Kosovo are the role and position of the international community in the process of constitution-making and the overall design of constitutional justice in Kosovo. Throughout the article, a conclusion emerges that puts Kosovo’s Constitutional Court at the forefront of the fight for the rule of law and constitutionalism of liberal Western provenance.

scholarly journals Connecting Reproductive Rights, Democracy, and the Rule of Law: Lessons from Poland in Times of COVID-19

2021 ◽  
Vol 22 (6) ◽  
pp. 1072-1097
Author(s):  
Atina Krajewska
Keyword(s):  
Rule Of Law ◽  
Reproductive Rights ◽  
The Rule Of Law ◽  
Abortion Law ◽  
Polish Society ◽  
History Of ◽  
Constitutional Tribunal ◽  
Litmus Test ◽  
The Relationship

AbstractThis article examines the relationship between reproductive rights, democracy, and the rule of law in transitional societies. As a case study, it examines the development of abortion law in Poland. The article makes three primary claims. First, it argues that the relationship between reproductive rights and the rule of law in Poland came clearly into view through the abortion judgment K 1/20, handed down by the Constitutional Tribunal in the middle of the COVID-19 pandemic. The judgment and the context in which it was issued and published are interpreted as reflections of deep-lying processes and problems in Polish society. Consequently, second, the article argues that analysis of the history of reproductive rights in recent decades in Poland reveals weak institutionalization of the rule of law. This is manifest in the ways in which different professional groups, especially doctors and lawyers, have addressed questions regarding abortion law. Therefore, third, the article argues that any assessment of the rule of law should take into account how powerful professional actors and organizations interact with the law. The Polish case study shows that reproductive rights should be seen as important parts of a “litmus test,” which we can use to examine the efficacy of democratic transitions and the quality of the democracies in which such transitions result.

State, Sovereignty, and the People: A Comparison of the “Rule of Law” in China and India

2009 ◽  
Vol 68 (1) ◽  
pp. 55-100 ◽  
Author(s):  
Jonathan K. Ocko ◽  
David Gilmartin
Keyword(s):  
Rule Of Law ◽  
Social Order ◽  
The Political ◽  
British India ◽  
Fourth Section ◽  
The Rule Of Law ◽  
China And India ◽  
The People ◽  
History Of

This paper uses the concept of the “rule of law” to compare Qing China and British India. Rather than using the rule of law instrumentally, the paper embeds it in the histories of state power and sovereignty in China and India. Three themes, all framed by the rule of law and the rule of man as oppositional yet paradoxically intertwined notions, organize the paper's comparisons: the role of a discourse of law in simultaneously legitimizing and constraining the political authority of the state; the role of law and legal procedures in shaping and defining society; and the role of law in defining an economic and social order based on contract, property, and rights. A fourth section considers the implications of these findings for the historical trajectories of China and India in the twentieth century. Taking law as an instrument of power and an imagined realm that nonetheless also transcended power and operated outside its ambit, the paper seeks to broaden the history of the “rule of law” beyond Euro-America.

scholarly journals Legitimacy of democracy in the works by Max Weber and Сarl Schmitt

Pravovedenie ◽  
2018 ◽  
Vol 62 (3) ◽  
pp. 501-517
Author(s):  
Viktor P. Kirilenko ◽  
◽  
Georgij V. Alekseev ◽  
Keyword(s):  
Rule Of Law ◽  
Max Weber ◽  
Legal Culture ◽  
Carl Schmitt ◽  
Political Regime ◽  
The Political ◽  
Modern Democracy ◽  
The Rule Of Law ◽  
Political Events ◽  
The Relationship

Identification of political regime’s legality and legitimacy by the German lawyer Carl Schmitt seems to be an attempt to solve the problem of unjust laws which is close to the idea of legitimate domination stated by Max Weber. Popularity of the legitimacy paradigm within the framework of political and legal discourse on its way towards the provision of rational government is often associated with an underestimation of democratic charisma’s role in legitimation when it is compared to the legal bureaucratic justification of government. Noting the fact that rationality is the most important and at the same time the least reasoned part of Max Weber’s social theory, we need to assess the potential of the bureaucracy in securing the ideals of the rule of law with an extreme caution. If Carl Schmitt’s position on the relationship between legality and legitimacy changed along with the development of political events of the 20th century, the ideas of Max Weber were modified during the translations of his works from German and gave to legitimacy deep textbook value. Decrease in chances of unjust law’s application requires certain legal culture that allows not only to question any formal prescription of the law and to test it for legitimacy, but also gives an opportunity to assess the legality of any democratic decision before it is implemented. Understanding the legitimacy of democracy depends largely on the ideology that dominates society, and the legal culture of the person that assesses the political regime. It is obvious in the context of political mistakes made during the first half of the twentieth century that the danger of underestimating the threats to the rule of law, originating both from illegitimate authorities and from unlawful political decisions. Historical experience underscores the need for a broad understanding of the rule of law state (Rechtsstaat) in a modern democracy, which simultaneously protects the formal legality and legitimacy of the political regime.

scholarly journals Critical Study Relevance of Act No. 10 of 2016 with Government Regulation No. 151 of 2000

2018 ◽  
Vol 1 (4) ◽  
pp. 881
Author(s):  
Iva Amiroch
Keyword(s):  
Rule Of Law ◽  
Government Regulation ◽  
Critical Study ◽  
Constitutional Court ◽  
Legal Regulations ◽  
Normative Study ◽  
The Rule Of Law ◽  
Critical Studies ◽  
The Government ◽  
The Relationship

Regional Head Elections regulated in Act No. 10 Of 2016 and Government Regulation No. 151 of 2000. So it will be described how the normative study the relationship between the Act No. 10 of 2016 by Government Regulation No. 151 of 2000 and how the relevance of critical studies law OF No. 10 of 2016 with a norm of life in society. Normatively Act 10 of 2016 is higher position with Government Regulation No. 151 of 2000, which is in line with the principle of Lex Superiori Derogat Lex inferiori, namely the rule of law higher can cancel the legal regulations below or lower, in other words lower regulation becomes invalid if it is contrary to a higher rule thereon, it is necessary synchronization between legislation No. 10 of 2016, with the Government Regulation. The problematics arise when there is a Constitutional Court decision No. 42 / PUU-XIII / 2015 annul Article 7, paragraph 2 (g) of the Act No. 10 of 2016, however, the cancellation should also be seen from the law of life in society (Living Law ).Keywords: Regional Head Election; Norms; Law.

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.

Revisiting Section 81 of the Constitution: The Commencement Date of Legislation (Legislative Power) Distinguished from Promulgation (Legislative Process)

2017 ◽  
Vol 30 (1) ◽  
pp. 193-220
Author(s):  
Loammi Wolf
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Legislative Process ◽  
Constitutional Court ◽  
Legal Certainty ◽  
The Rule Of Law ◽  
Legislative Power ◽  
Parliamentary Sovereignty ◽  
Head Of State ◽  
Constitutional State

Section 81 of the Constitution regulates promulgation through publication as part of the legislative process (ie, a procedural norm). The provision further creates a presumption that unless the legislature explicitly determines a commencement date in an Act it enters into force upon promulgation. The commencement date of legislation is thus part of the contents of a statute (ie, a substantive norm), which must be determined by the legislature when adopting the legislation. In a number of judgments, however, the Constitutional Court espoused the idea that the commencement date is part of the legislative process instead of being part of the contents of a statute. Thus it allowed the legislature to delegate its power to determine a commencement date for legislation to the president as head of state in transgression of section 44(1)(a)(iii) of the Constitution: this provision only mandates a delegation of core legislative powers to another legislative body. The confusion is partly due to an initial tendency of the Constitutional Court to interpret constitutional provisions in isolation and partly to the unconsidered re-importation of Westminster constitutiona common law. In the Westminster system a delegation of the power to determine a later commencement date for legislation (ie, after promulgation) to the executive and/or head of state was justified in terms of the doctrine of parliamentary sovereignty. Parliamentary sovereignty, however, was abolished in 1994: such a delegation of power is no longer compromises legislative power and the separation of powers, but goes to the substance of the rule of law and legal certainty as foundational values of the constitutional state. Compatible with sections 44(1)(a)(iii), 55(2)(b)(i), 79 and 87 of the Constitution. Lately, the Constitutional Court even ruled that the power to determine a commencement date for legislation is an executive power, which is to be exercised in terms of sections 85 and 101 of the Constitution, although section 81 explicitly confers this power upon the legislature. A reconsideration of the Court’s interpretation of section 81 is therefore overdue: it not only compromises legislative power and the separation of powers, but goes to the substance of the rule of law and legal certainty as foundational values of the constitutional state.

Austrian Constitutional Court: Presidential Election – Analysis in the Light of the previous Jurisdiction of the Constitutional Court

ICL Journal ◽  
2017 ◽  
Vol 11 (1) ◽  
pp. 105-115
Author(s):  
Julia Dorner ◽  
Anna Volgger
Keyword(s):  
Rule Of Law ◽  
Presidential Election ◽  
Important Task ◽  
The Political ◽  
Constitutional Court ◽  
Democratic Process ◽  
The Rule Of Law ◽  
Run Off

Abstract The decision of the Austrian Constitutional Court to annul the run-off election of the Federal President in 2016 has caused a broad (and overdue) discussion in the field of voting regulations. The important task of electoral jurisdiction conferred to the Constitutional Court is highly delicate, linking the political and democratic process to the competence of the Constitutional Court to safeguard the rule of law and the constitutionality of elections.

scholarly journals ARTICLE 7 PROCESS AND DEMOCRATIC BACKSLIDING OF HUNGARY AND POLAND. DEMOCRACY AND THE RULE OF LAW

2020 ◽  
pp. 57-85
Author(s):  
Łukasz ZAMĘCKI ◽  
Viktor GLIED
Keyword(s):  
Rule Of Law ◽  
The Political ◽  
Eastern European ◽  
Council Of Europe ◽  
Checks And Balances ◽  
The Rule Of Law ◽  
History Of ◽  
Eastern European Countries ◽  
First Time ◽  
The Eu

This paper examines developments in Poland following the 2015 elections and in Hungary since 2010, which included the gradual destruction of democratic institutions, challenges to the rule of law, as well as to the system of checks and balances. The authors consider the Ziblatt–Levitsky model (2018) as a meaningful framework for the analysis of the way in which the power structure was reshaped and have based their research on the classification set out in this model. Our objective is to present the political changes that took place in the two Central-Eastern-European countries during the last decade that resulted in the process under Article 7 being used for the first time in the history of the EU. The paper conclusion is that the path of de-democratization of Hungary and Poland is seen from the perspective of the EU and Council of Europe, as similar one. In actions taken toward both countries, the EU concerns mostly the principle of the rule of law.

The Principles of Constitutionalism

2018 ◽  
Author(s):  
N. W. Barber
Keyword(s):  
Civil Society ◽  
Rule Of Law ◽  
Separation Of Powers ◽  
Limit State ◽  
Well Being ◽  
The State ◽  
The Rule Of Law ◽  
Constitutional State ◽  
The Relationship

In this follow-up volume to the critically acclaimed Constitutional State, Nick Barber explores how the principles of constitutionalism structure and influence successful states. Far from acting exclusively as a mechanism to limit state powers, Barber contends that constitutionalism and its associated principles require that the state be structured to advance the well-being of its people. An attractive and satisfying account of constitutionalism, and, by derivation, of the state, can only be reached if the principles of constitutionalism are seen as interlocking parts of a broader doctrine. This holistic study of the relationship between the constitutional state and its central principles—sovereignty; the separation of powers; the rule of law; subsidiarity; democracy; and civil society—casts light on long-standing debates over the meaning and implications of constitutionalism. The book provides a concise introduction to constitutionalism and a detailed account of the nature and implications of each of the six principles in question. It concludes with an examination of the importance of constitutional principles to the work of judges, legislators, and others involved in the operation and creation of the constitution. The book is essential reading for those seeking a definitive account of constitutionalism and its benefits.

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