Political Purposes, Anti-entrenchment and Judicial Protection of the Democratic Process

2021 ◽  
Author(s):  
Jacob Rowbottom
Keyword(s):  
Electoral System ◽  
Administrative Law ◽  
Democratic Accountability ◽  
Public Power ◽  
Constitutional Principle ◽  
Public Resources ◽  
Single Category ◽  
Political Advantage ◽  
Judicial Protection ◽  
Political Decisions

Abstract The legality of decisions made for political purposes is a recurring issue in administrative law. In this article, it will be argued that generalisations should not be made about ‘political’ decisions as a single category. Instead, there are different types of political consideration, which raise different issues when assessing the legality of a decision. This article singles out a particular type of political decision for condemnation: decisions made to gain a political advantage by deliberately changing the systems of democratic accountability. Examples include the engineering of the electoral system to produce favourable results, the use of public power to punish critics and the use of public resources to publish partisan propaganda. The article will argue that the legality of such political decisions should not be assessed solely within the ordinary administrative law framework, but under a constitutional principle of anti-entrenchment and process protection.

scholarly journals GESTÃO PÚBLICA EM ACCONTABILITY: ESTUDO COM PREFEITURAS DO ESTADO DO CEARÁ

2019 ◽  
Vol 8 (1) ◽  
pp. 29
Author(s):  
Nathaly Maria Martins Freire ◽  
Douglas Willyam Rodrigues Gomes ◽  
Oderlene Vieira de Oliveira
Keyword(s):  
Public Administration ◽  
Public Institutions ◽  
External Control ◽  
Public Power ◽  
Fiscal Responsibility ◽  
The Public ◽  
Contemporary World ◽  
Public Resources ◽  
Qualitative Work ◽  
Share Information

No mundo contemporâneo vem se tornando mencionado em maior frequência os controles nas contas públicas. O controle externo, torna-se uma ferramenta que auxilia o controle das despesas e que na Administração pública vem sendo efetivado pelos Tribunais de Contas. Justifica-se esse estudo pela importância do controle externo das contas públicas e o acesso às informações, afim de obter-se accountability fidedigna dos órgãos públicos. Assim, nota-se a utilidade de instituições que repassem as informações para os habitantes, que proporcionem transparência à gestão pública, que correspondam a reais agências de accountability, de transparência, que disponha respostas e realize prestação de contas dos recursos públicos. O presente artigo tem como objetivo geral identificar as contribuições que o Tribunal de Contas dos Municípios (TCM) traz para o processo de prestação de contas nos municípios objeto de pesquisa. No referencial foram abordados conceitos sobre accountability e sobre a Lei de Responsabilidade Fiscal (LRF). Metodologicamente é um trabalho de natureza bibliográfica, descritiva e qualitativa. Os resultados encontrados mostram que os TCM é um órgão que executa o processo de accountability nos municípios em que existe. Conclui-se que os TCM’s proporcionam fiscalização dos recursos patrimoniais, direcionados pelos administradores do poder público e controle do mesmo, a fim de facilitar o processo de prestação de contas entre a sociedade e a classe dos governantes municipais. PUBLIC ADMINISTRATION IN ACCOUNTABILITY: A STUDY WITH CITY HALLS FROM CEARÁ STATE ABSTRACT In contemporary world the control of public accounts is being mentioned more frequently. The external control becomes a tool that assists the control of expenses and it is what the public administration has been done by Courts of Accounts. This study is justified by the importance of external control of the public accounts and the access to information, in order to obtain reliable accountability of public institutions. Therefore, it is noticed the usefulness of institutions that share information to the citizens, providing transparency to the public administration, which correspond to real agencies of accountability, of transparency, giving answers and performing accountability of public resources. This paper aims to identify the contributions that the Municipal Courts of Accounts (TCM) brings to the process of accountability in the cities that are object of this research. In the referential were used concepts about accountability and about the Fiscal Responsibility Law (LRF). Methodologically it is a bibliographical, descriptive and qualitative work. The results indicate that the TCM is an institution that executes the accountability process in the cities where it is present. It is concluded that TCMs provide supervision of patrimonial resources, directed and controlled by the administrators of public power, in order to facilitate the process of accountability among society and the class of municipal governors.

Representation of citizens by the EP

2004 ◽  
Vol 1 (1) ◽  
pp. 73-78 ◽  
Author(s):  
Jörg Gerkrath
Keyword(s):  
National Level ◽  
Parliamentary Democracy ◽  
European Level ◽  
Member States ◽  
Democratic Representation ◽  
Constitutional Principle ◽  
Union Democracy ◽  
The People ◽  
Multi Level ◽  
Political Decisions

As it is obviously impossible for the modern ‘demos’ to assemble in order to take political decisions, democratic representation is an inevitable tool in large democracies. Representatives have to stand for and to act for the people as a whole. Accordingly, the principle of representative or parliamentary democracy is a fundamental constitutional principle shared by all the Member States of the Union. Democracy doubtlessly works on the national level; the Member States' decisional powers, however, are fading with the constant transfer of competences towards the European level. This leads to a system of European ‘multi-level governance’ with wide consequences for the linkage between the represented peoples of the Member States and their representatives on both national and European levels.

For Some Aspects of Administrative Law State of State of Emergency and Allowable Restriction of Rights

De Jure ◽  
2020 ◽  
Vol 11 (2) ◽  
Author(s):  
Yoana Ivanova ◽  
◽  
◽  
Keyword(s):  
Administrative Law ◽  
The State ◽  
State Of Emergency ◽  
The Right ◽  
Judicial Protection

The state of emergency implies for a unique legal reality. In order to slow the spread of the disease numerous restrictions are imposed. Only law can introduce allowable restrictions of rights. Moreover, the right of effective judicial protection cannot be restricted.

The corruption of popular sovereignty

2020 ◽  
Author(s):  
Samuel Issacharoff
Keyword(s):  
Political Parties ◽  
Separation Of Powers ◽  
Electoral System ◽  
Political Mobilization ◽  
Popular Sovereignty ◽  
Institutional Constraints ◽  
Discretionary Power ◽  
Public Resources ◽  
Legislative Branch ◽  
Institutional Actors

Abstract Populism marks a departure from the central forms of democratic governance over the past two centuries. As opposed to the primacy of the legislative branch and of institutional actors, most notably political parties, populism tends toward the unilateral authority of a charismatic leader, ruling on the basis of an electoral mandate. This article starts from an understanding of populism as being grounded in political mobilization in disregard of the institutions of governance. Even more centrally, populist leaders try to dismantle institutional constraints to allow for greater individual discretionary power. This article looks to legal vulnerabilities that might allow the institutional framework of democracy to withstand the new populist assault. The central insight is that corruption might prove the means of checking governance by the new breed of caudillos, the strongman rule that stands in opposition to separation of powers limitations on the executive. Two forms of corruption are examined. The first is the attempt to subordinate the electoral system itself. The second is the use of state discretionary authority to push the boundaries of clientelism and ultimately outright corruption. Whereas questions of electoral integrity are more commonly checked by formal constitutional boundaries, the question of ordinary corruption surfaces with regularity under populism. The article offers reasons why this might be the product of a descent from clientelism to cronyism to outright capture of public resources for private gain. In turn, the article offers arguments for how corruption invites review by broader layers of judicial and prosecutorial authorities than constitutional law.

scholarly journals Balancing public health and civil liberties in times of pandemic

2021 ◽  
Author(s):  
Marcin Orzechowski ◽  
Maximilian Schochow ◽  
Florian Steger
Keyword(s):  
Public Health ◽  
Civil Liberties ◽  
Political Advantage ◽  
Political Decisions

AbstractThe ongoing COVID-19 pandemic constitutes not only a danger for public health, but may also threaten civil liberties. Looking at the examples of recent events in Poland and Hungary, the authors argue that governments may misuse pandemic for their political advantage, thus endangering public health. Political decisions taken to stem the spread of pandemics should be limited and strictly proportionate to the situation.

scholarly journals Global administrative law: The Basel Committee revisited

2021 ◽  
Author(s):  
◽  
James Gallagher
Keyword(s):  
International Law ◽  
Global Financial Crisis ◽  
Legal Theory ◽  
Administrative Law ◽  
Democratic Accountability ◽  
Banking Supervision ◽  
Basel Committee ◽  
Policy Agendas ◽  
The Global Financial Crisis ◽  
Law Making

<p>Global Administrative Law is the branch of Global Governance that seeks to provide guidance and structures for decision‐making bodies and international organisations that rely on co‐operation between a range of international actors to achieve various objectives or implement policy agendas. In 2006, Michael S. Barr and Geoffrey P. Miller critically analysed the Basel Committee on Banking Supervision. Their article Global Administrative Law: The View from Basel sought to dispel the critiques that international‐law making processes lacked democratic accountability and oversight by offering the Basel Committee’s own processes as a model for international law‐making with greater accountability and legitimacy.  This article examines the Basel Committee since Barr and Miller’s 2006 article, in light of the global financial crisis and the development of ‘Basel III’. It will seek to determine whether the processes described by Barr and Miller proved to be effective, and if Global Administrative Legal theory is appropriately applied to the Basel Committee. Finally, the article will ask whether the Basel Committee still serves as a model for international law‐making with greater accountability and legitimacy, or if more work is needed to fulfill this model.</p>

scholarly journals The Principle of Sovereignty as the Main Principle of Democracy, between the Political Pluralism and the Electoral System in the Parlamentary Republic of Albania

2020 ◽  
Vol 9 (6) ◽  
pp. 184
Author(s):  
Ismail Tafani ◽  
Darjel Sina
Keyword(s):  
Rule Of Law ◽  
Party System ◽  
Essential Element ◽  
Electoral System ◽  
Fundamental Principle ◽  
Popular Sovereignty ◽  
Political Pluralism ◽  
The Rule Of Law ◽  
Constitutional Principle ◽  
Democratic Principle

Popular sovereignty is the foundation of the principle of democracy for the existence and functioning of the rule of law. In the Parliamentary Republic of Albania based on political pluralism for nearly three decades, this essential element of the democratic principle seems to be as fragile as the principle itself. The basic concept of the functionality of the rule of law in Albania under the Constitution is the separation and balancing of powers. Although the constitutional provision for the separation and balancing of powers is clear and based on Montesquieu’s conception of the development of the principle of democracy and the prohibition of abuse that each of the powers could inflict on each other, the separation and balancing of powers in Albania seems to be impossible. Albania as a country with a culture of not very long political pluralism, instead it comes from a rather long-term mono-party system where the development of the electoral process was more of a holiday than a race. However, the sovereignty of the people enshrined in today's constitution and yesterday's constitution seems more like a slogan than a fundamental principle of constitutional order. In these years of political pluralism between the test of many electoral systems coupled with constitutional and legal changes, the implementation of the principle of popular sovereignty to consolidate the democratic principle remains clearly a utopia for Albanian society. After each election process debates reopen the need for reforming the electoral system in general and managing the process in particular. The purpose of this paper through a comparative analysis is to identify the elements that impede the observance of the fundamental constitutional principle of popular sovereignty either directly or indirectly through elected representatives to consolidate the rule oflaw in Albania.

scholarly journals Pieteikuma tiesības administratīvajā tiesā: nacionālo tradīciju un Eiropas Savienības tiesību savstarpējā mijiedarbība

2021 ◽  
pp. 474-480
Author(s):  
Inga Bērtaite-Pudāne ◽  
Keyword(s):  
European Union ◽  
Administrative Law ◽  
The European Union ◽  
European Union Law ◽  
Procedural Law ◽  
National Courts ◽  
The Law ◽  
Judicial Protection

Standing before court is one of the preconditions for admissibility of application, which is to be evaluated by a judge in every administrative case. The article proposes to look at this aspect of the national procedural law on a broader scale. Firstly, the article provides an insight as to how two fundamental models of standing vested by the administrative law have developed in the law of continental Europe – interest-based, which is embodied by France, and rights-based, which is embodied by Germany, and how they have influenced development of the standing in other countries. Secondly, the article explores an interaction between the national law of standing and the European Union law, focusing on the effect of the principle of effective judicial protection in respect of standing of individuals before the national courts.

scholarly journals Zawieszenie rekrutacji w szkolnictwie wyższym

2020 ◽  
Vol 6(161) ◽  
pp. 99-116
Author(s):  
Łukasz Kierznowski
Keyword(s):  
Higher Education ◽  
Scientific Literature ◽  
Case Law ◽  
Administrative Law ◽  
Constitutional Principle ◽  
University Recruitment ◽  
Constitutional Tribunal ◽  
Legal Position ◽  
Administrative Courts ◽  
The Individual

The aim of the study is to compare the admissibility of suspending (and in fact — annulling, abandoning) already announced and commenced recruitment in higher education, as recently approved in the case law of administrative courts, with the requirements of the constitutional principle of protecting trust in the state and law and the second degree principles derived from it, as well as to demonstrate the effects on the legal position of the individual of the consolidation of such a position and its dissemination in university recruitment resolutions in connection with new statutory regulations in the area of law on higher education and science. The study makes use of the scientific literature on constitutional and administrative law, the jurisprudence of the Constitutional Tribunal and administrative courts, and, auxiliary, other sources.

The Judicial Elaboration of Standards for Public Administrations in France

2021 ◽  
pp. 113-131
Author(s):  
Jérémy Mercier
Keyword(s):  
Public Administration ◽  
Public Services ◽  
Institutional Context ◽  
Case Law ◽  
Administrative Law ◽  
Public Authorities ◽  
Public Power ◽  
The Public ◽  
Creative Role

This chapter underlines how administrative law has taken a much greater significance in France since the period 1890–1910. This period is not only symbolic of a full development of administrative law around the notion of public power (puissance publique) or public service (service public) but also of the ramifications given to the very notion of State and public administration. The chapter deals with different theories (Hauriou, Duguit, etc.) related to a redefinition of the State and public services. It discusses four specific aspects: the institutional context, the case law of the Conseil d’État, the innovative orientations concerning the action of the public authorities, and the creative role of this case law.

Sign in / Sign up

Export Citation Format

Share Document