The Legitimacy of Provisional General Budget Laws in the Jordanian Legal System

2013 ◽  
Vol 17 (1) ◽  
pp. 141-195
Author(s):  
Lena Shabeeb
Keyword(s):  
Legal System ◽  
Separation Of Powers ◽  
Constitutional Reform ◽  
Executive Power ◽  
Constitutional Court ◽  
Checks And Balances ◽  
Legislative Power ◽  
The Future

This study examines the legitimacy of the recurrent conduct, adopted by the Jordanian Executive Power, of issuing Provisional General Budget Laws, in the absence of the Legislative Power. This study proves the unconstitutionality of such conduct, and looks at the prospects of progress in the future. Issuing Provisional General Budget Laws is a culmination of several misconceptions of some important Constitutional Articles; especially the ones that reflect how the principle of separation of powers is adopted in the Jordanian Constitution, and how the different interlocking functions of both the Executive and the Legislative Powers should be interpreted and applied. Article 94, providing for the legislative function of the Executive Power in the absence of the Legislative Power, is interpreted and applied broadly. Issuing Provisional General Budget Laws mean that the Executive Power assumes the legislative Power and not a temporary legislative role, as provided in the Constitution. Hence, contradicting another two important systems provided therein: first, the financial check, as part of the checks and balances system, provided in Chapter Eight, especially Article 112. Second, the apportionment method, provided in Article 113, which should be applied in the absence of the Legislator. Unfortunately, the 2011 Constitutional Reform, although somewhat progressive, does not remove such well-rooted misconceptions; leaving the Constitutional Court as the last resort in rectifying the situation.

THE RUSSIAN CONSTITUTIONAL REFORM 2020 AND JUDICIAL POWER: INDEPENDENCE AND AUTONOMY

2020 ◽  
Vol 6 (3) ◽  
pp. 188-211
Author(s):  
Alexander V. SALENKO
Keyword(s):  
Separation Of Powers ◽  
Constitutional Reform ◽  
Judicial Power ◽  
Legislative Process ◽  
Constitutional Court ◽  
Legal Analysis ◽  
Public Authorities ◽  
Constitutional Amendments ◽  
The Future ◽  
The Status

This article studies the content and results of the Russian constitutional reform in 2020, initiated by the President of the Russian Federation, which aimed to change the aspects of the public authorities’ functioning. The main goal of this research paper is to analyze the content of the constitutional amendments, which directly affected the Russian Judicial Power. The author systematizes and analyzes the constitutional amendments, which have reformed the Russian system of public power, initially established by the Russian Constitution in 1993. The research focuses on the status and real role of the judiciary in the modern system of separation of powers in Russia. The Russian Constitutional Reform 2020 is studied on the basis of traditional methods of scientific research and by the use of special legal research methods (historical and legal, comparative legal and formal legal analysis). The author concludes that the constitutional amendments of 2020 have actually entailed a real reform of the judiciary. Firstly, there was an unreasonable and unmotivated reduction in the number of judges of the Constitutional Court of Russia (from 19 to 11 people); the author believes that the actual number of judges in the future may drop to 6. Secondly, the competence of the Russian Constitutional Court has significantly changed, which entrusted this constitutional body with quasi-political powers to conduct preliminary abstract normative control of acts that have not entered into legal force, which de-facto draws the Court into the legislative process and negatively affects the possibility to challenge the constitutionality of such normative acts in the future by the submission of constitutional complaint. Thirdly, in the course of the constitutional reform of 2020, the procedure for terminating the powers of judges was revised, and now judges can be removed from their posts on the initiative of the Russian President with the formal support of the Federation Council. The author comes to the general conclusion that the Russian Constitutional Reform 2020 has weakened the judicial power, compared with other branches of power.

Institutional organisation of the European Union in the time of crisis – horizontal division of power and functions

2016 ◽  
pp. 54-66
Author(s):  
Monika Poboży
Keyword(s):  
European Union ◽  
Separation Of Powers ◽  
European Council ◽  
Executive Power ◽  
The European Union ◽  
Checks And Balances ◽  
Court Of Justice ◽  
Strong Position ◽  
Institutional System ◽  
The Eu

The article poses a question about the existence of the rule of separation of powers in the EU institutional system, as it is suggested by the wording of the treaties. The analysis led to the conclusion, that in the EU institutional system there are three separated functions (powers) assigned to different institutions. The Council and the European Parliament are legislative powers, the Commission and the European Council create a “divided executive”. The Court of Justice is a judicial power. The above mentioned institutions gained strong position within their main functions (legislative, executive, judicial), but the proper mechanisms of checks and balances have not been developed, especially in the relations between legislative and executive power. These powers do not limit one another in the EU system. In the EU there are therefore three separated but arbitrary powers – because they do not limit and balance one another, and are not fully controlled by the member states.

Teaching the Presidency: Idealizing a Constitutional Office

2012 ◽  
Vol 45 (01) ◽  
pp. 17-31 ◽  
Author(s):  
Louis Fisher
Keyword(s):  
Eighteenth Century ◽  
World War Ii ◽  
Separation Of Powers ◽  
Executive Power ◽  
Great Care ◽  
World War ◽  
Checks And Balances ◽  
Constitutional System

From World War II to the present, prominent scholars placed their hopes in the presidency to protect the nation from outside threats and deal effectively with domestic crises. Their theories weakened the constitutional system of separation of powers and checks and balances by reviving an outsized trust in executive power (especially over external affairs) that William Blackstone and others promoted in eighteenth-century England. The American framers of the Constitution studied those models with great care and fully rejected those precedents when they declared their independence from England.

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.

scholarly journals El gobierno del poder judicial y la separación de poderes en la nueva constitución británica = Government of the judiciary and separation of powers in the new U.K. Constitution

2014 ◽  
pp. 447
Author(s):  
David Giménez Gluck
Keyword(s):  
Supreme Court ◽  
Separation Of Powers ◽  
The State ◽  
Constitutional Reform ◽  
The Other ◽  
Executive Power ◽  
Judicial Appointments ◽  
House Of Lords ◽  
Lord Chancellor

Este artículo analiza la reforma constitucional promovida en Gran Bretaña en 2005, que cambia la relación del Poder Judicial con el resto de los poderes, a través de la actualización de instituciones históricas como el Lord Chancellor y la Comisión de Apelación de la Cámara de los Lores, que pasa a ser el Tribunal Supremo de Gran Bretaña, y la sustracción al Poder Ejecutivo de algunas funciones de gobierno del Poder Judicial, como los nombramientos judiciales o el régimen disciplinario, que pasa a compartir con agencias independientes.This article analyses the constitutional reform passed in Britain in 2005, which changes the relations between the judiciary and the other powers of the State, updating historic institutions as Lord Chancellor or the Appellate Committee of The House of Lords -that became the U.K. Supreme Court-, and passing functions, as judicial appointments or judicial discipline, from the Executive Power to independent Agencies.

scholarly journals THE “DEFERENCE” OF JUDICIAL AUTHORITY TO THE STATE*

Obiter ◽  
2021 ◽  
Vol 33 (1) ◽  
Author(s):  
Nomthandazo Ntlama
Keyword(s):  
South Africa ◽  
Judicial Review ◽  
Separation Of Powers ◽  
The State ◽  
Constitutional Court ◽  
Main Function ◽  
Checks And Balances ◽  
New Process ◽  
State Authority ◽  
The Republic

The adoption of the Constitution of the Republic of South Africa, 1996 (hereinafter “the Constitution”), provided an opportune moment for the courts, especially the Constitutional Court to ensure an appropriate balance in the development of the principles and values of the doctrine of separation of powers vis-à-vis those of judicial review. The Constitution is framed in a manner that entrenches a system of checks and balances (this is deduced from the manner in which the various chapters of the Constitution are structured, dealing with the roles of the legislature, executive and the judiciary). This system gives the general public a legislative and executive authority that is accountable to them subject to judicial review by an independent judiciary. The system of checks and balances affirms the limited power of the legislative and executive authorities which is confined within the constraints of constitutional values and principles. The importance of checks and balances is similarly endorsed by Edwards as a system that has ushered in a new process of the regulation of state authority in the new dawn of democracy. This system envisages a move away from a culture of authority of the apartheid rule to one of justification of the new constitutional dispensation. He substantiates his argument by pointing out that the new process of regulating state authority has enabled the courts to educate other branches of government through principled and robust articulations of the foundational and constitutional values of the Constitution in a democratic society. Against this background, the purpose of this note is to provide a brief overview of the Merafong Demarcation Forum v President of the Republic of South Africa (2008 (10) BCLR 968, hereinafter “Merafong”) judgment. The particular emphasis on this judgment is its potential to defer the judicialauthority (which the author refer to as a “political doctrine”) to the state. The objective is to analyse this doctrine and evaluate it against the development of substantive principles of judicial review. This purpose is motivated by Chaskalson CJ’s argument in Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South Africa (2000 (3) BCLR 241). Chaskalson CJ in this case held that the Constitutional Court cannot allow itself to be diverted from its main function as the final andindependent arbiter in the contest between the state and its citizens. In Merafong, the court created an impression of having misconstrued this purpose and the objectives it has to fulfil. This note is limited to the “political approach” which the court emphasisedwithout much thought, and attempt to address the question of public involvement in legislative processes raised in this case. It alsoacknowledges that the court has affirmed its independence as the guardian of the Constitution in the regulation of state authority and advancement of the principles of judicial review, but its lack of consistency in its adopted approach is a worrying factor and a causefor concern for the regulation of state authority.

scholarly journals URGENSI CHECKS AND BALANCES KETATANEGARAAN INDONESIA DAN ISLAM

2019 ◽  
Vol 18 (2) ◽  
pp. 221
Author(s):  
Bustamin Bustamin ◽  
Rony Jaya
Keyword(s):  
Separation Of Powers ◽  
Constitutional Court ◽  
Islamic State ◽  
Analysis Model ◽  
Checks And Balances ◽  
Islamic History ◽  
Interactive Analysis ◽  
Library Research ◽  
Qualitative Descriptive ◽  
Constitutional System

The reform movement opened the door to implementation of the 1945 amendment to the constitution. The urgency of the Indonesian government's control system, which included the legislative, executive and judicial institutions, was quite a concern. This condition is based on the fact that during the Orde Baru the concept of the Trias Politica Montesquieu was castrated by the authorities. Unlike the case of the Islamic constitutional system, the concept of mutual control was much more familiar when Khulafaur Rasyidin Umar bin Khattab called six (six) high-ranking friends to find a replacement. This was later considered the first Syura Institute in Islamic history. The purpose of this paper is to recognize the urgency of checks and balances in the Indonesian government system and in the Islamic state administration. This article uses a library research method with a qualitative descriptive approach, which is then analyzed using the interactive analysis model of Miles, Huberman, and Saldana. The results show that following the amendment of the 1945 Constitution, the legislature, including the DPR and the DPD, has taken control of the executive and the Supreme Court and the Constitutional Court as a judicial body can control each other and establish a balance between these institutions. While the Islamic constitutional system in the Fiqh study of Siyasah was already familiar with the separation of powers and the separation of powers in the institutions of Tasyri'iyah, Tanfidziyah and Qada'iyah.

scholarly journals Constitutional Reform 2020 in Russia (Selected Issues)

2020 ◽  
Vol 15 (8) ◽  
pp. 22-31 ◽  
Author(s):  
V. V. Komarova
Keyword(s):  
Russian Federation ◽  
Separation Of Powers ◽  
The State ◽  
Constitutional Reform ◽  
Constitutional Court ◽  
Public Power ◽  
Constitutional Level ◽  
The Russian Federation

On the basis of the analysis of Law of the Russian Federation on Amendment to the Constitution of the Russian Federation as of March 14, 2020, No 1-FKZ “On improvement of regulation of certain issues of organization and functioning of public power,” legislation, acts and legal standings of the Constitutional Court of the Russian Federation, as well as the practice of transforming the Constitution of Russia, and Presidential directives, the author investigates some issues concerning the Constitutional Reform 2020 initiated by the Head of the State. The paper examines the issues of the new constitutional approach to the implementation of the principle of separation of powers, some additional powers of the President of Russia in the context of their expansion. The author argues her view concerning consideration of some legal phenomena rooted in the legal reality of Russia at the constitutional level on the example of the terms “public power” and “instructions of the President of the Russian Federation.” The author monitors the dynamics of formation and manifoldness of instructions of the President of the Russian Federation. The paper highlights some terms and definitions that are new for the constitutional level, some of which can be considered as goals in the development of public and state life. The paper formulates author’s assessments and conclusions, author’s opinion concerning the ongoing transformations of the Constitution of Russia and, at the same time, it is proposed to continue scientific discussions devoted to the implementation of the proposed constitutional novellas.

scholarly journals ADMISSIBILIDADE E LIMITES DAS SENTENÇAS ADITIVAS: JURISDIÇÃO CONSTITUCIONAL PARA ALÉM DO LEGISLADOR NEGATIVO - DOI: http://dx.doi.org/10.5216/rfd.v40i1.37655

2016 ◽  
Vol 40 (1) ◽  
pp. 122
Author(s):  
MÁRIO CESAR DA SILVA ANDRADE ◽  
WALESKA MARCY ROSA
Keyword(s):  
Decision Making ◽  
Legal System ◽  
Judicial Review ◽  
Operative Technique ◽  
Separation Of Powers ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Constitutional Order ◽  
Alternative Decision ◽  
Federal Supreme

 RESUMO:O presente artigo analisa as sentenças aditivas como técnica alternativa de decisão no controle de constitucionalidade de omissões legislativas inconstitucionais. Investigou-se a compatibilidade das sentenças aditivas com a separação de poderes e os limites da utilização dessa controversa técnica decisória, bem como sua aplicação pelo Supremo Tribunal Federal (STF). A constatação da insuficiência das técnicas decisórias tradicionalmente utilizadas evidencia a necessidade de alternativas que superem as omissões inconstitucionais, garantindo a efetividade dos direitos fundamentais. Nesse cenário, as sentenças aditivas podem ser um útil instrumento de superação das eventuais omissões inconstitucionais do legislador. Porém, esse expediente é recorrentemente considerado incompatível com a concepção do tribunal constitucional como legislador negativo. Como referencial teórico adotou-se a conceituação das sentenças aditivas como técnicas decisórias do controle de constitucionalidade, conforme trabalhada pelo constitucionalista italiano Gustavo Zagrebelsky. O presente estudo concluiu pela compatibilidade das sentenças aditivas com a ordem constitucional brasileira, desde que respeitados determinados limites, como os impostos ao próprio legislador e a necessidade de prévia e suficiente orientação pelo ordenamento jurídico para a adição normativa. ABSTRACT:This article analyzes the additive judgments as an alternative decision technique in the judicial review of unconstitutional legislative omissions. It is investigated the compatibility of the additive sentences with the separation of powers and the limits of using such controversial operative technique and its application by the Federal Supreme Court (STF). The insufficiency of traditional decision-making techniques highlights the need for alternatives to overcome the unconstitutional omissions, ensuring the effectiveness of fundamental rights. In this scenario, the additive sentences can be a useful tool to overcome any unconstitutional legislative omissions. However, this expedient is recurrently considered incompatible with the concept of the constitutional court as a negative legislator. As a theoretical framework it is adopted the concept of the additive judgments as decision-making techniques of judicial review, as crafted by the Italian constitutionalist Gustavo Zagrebelsky. This study concluded that there is a compatibility of the additive sentences with the Brazilian constitutional order, since certain limits are respected, as in the case of taxes applied to the legislature itself and the need for prior and sufficient guidance by the legal system for normative addition.

Part V Separation of Powers, Ch.26 Separation of Legislative and Executive Power

2018 ◽  
Author(s):  
Saunders Cheryl
Keyword(s):  
Separation Of Powers ◽  
Executive Power ◽  
Legislative Power ◽  
Power Delegation ◽  
Grant Money ◽  
The Relationship ◽  
Power And Authority

This chapter examines questions about the scope of legislative or executive power and the relationship between them primarily through the lens of the separation of powers in Australia. These have been recurrent issues in both the courts and Parliaments for some time. Hence, the chapter begins by examining the framework for the exercise of the legislative power of the Commonwealth. It does so from the standpoint of the separation of powers, by focusing on three significant issues: the concept of legislative power, delegation of legislative power, and authority to appropriate and grant money to the States. Next, the chapter deals with the nature of the executive power of the Commonwealth, including the extent to which it can be exercised without legislative authorization.

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