The Relationship Between a Kelsenian Constitutional Court and an Entrenched National Ideology: Lessons from Thailand and Indonesia

ICL Journal ◽  
2021 ◽  
Vol 14 (4) ◽  
pp. 497-521
Author(s):  
Rawin Leelapatana ◽  
Abdurrachman Satrio Pratomo
Keyword(s):  
Western Europe ◽  
The United States ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Constitutional Review ◽  
Liberal Democratic ◽  
Hans Kelsen ◽  
National Ideology ◽  
The Military ◽  
The Relationship

Abstract Hans Kelsen was a pro-democracy Austrian jurist, who, owing to his Jewish ancestry, was forced to flee to the United States of America after Adolf Hitler’s rise to power. His well-known theory of centralised constitutional review has not only influenced the design of many constitutional courts in Western Europe. It has also expanded to other parts of the world, including Thailand and Indonesia. Having determined to break with their authoritarian pasts, these two Southeast Asian countries decided to establish a Constitutional Court (in 1997 in Thailand and in 2003 in Indonesia), to consolidate their democratic transition as well as to safeguard democracy from attack. This decision inevitably brought the liberal-democratic assumptions underlying Kelsen’s model into competition with entrenched national ideologies traditionally exploited by political power holders and the military to preserve their hegemony – Thai-ness in Thailand and Pancasila in Indonesia. In contrast to Kelsen’s original theory, both these ideologies advocate strong leadership, national harmony and social hierarchy. This paper explores the extent to which the ideological hegemony of Thai-ness and Pancasila affects the performance and jurisprudence of the Thai and Indonesian Constitutional Courts respectively. An alternative understanding of the implementation of the Kelsenian-style Constitutional Court in the absence of its facilitative conditions will ultimately be proposed.

Part 3 Institutional Control of Constitutionalism, 3.1 Models of Institutional Control: The Experience of Islamic Countries

2012 ◽  
Author(s):  
Grote Rainer
Keyword(s):  
The United States ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Institutional Control ◽  
Constitutional Review ◽  
Islamic World ◽  
The United Kingdom ◽  
Islamic Countries ◽  
Almost All ◽  
Constitutional Adjudication

This chapter discusses constitutional review in Islamic countries. It covers the basic models of constitutional review; composition of constitutional courts; powers of constitutional courts; and effects of constitutional court decisions. It shows that introduction of constitutional review in the Islamic world has largely been pattered after foreign models, particularly of France (namely in the Maghreb countries and Lebanon), the United States (in Egypt and the Arab peninsula), the United Kingdom (Pakistan, Nigeria, Malaysia), and Germany (Turkey, Indonesia), with modifications to the particular political and cultural contexts of the respective countries. While almost all constitutional review bodies practice some form of constitutional review of legislation or another, most constitutions in the Islamic world still do not provide for access of individuals to constitutional adjudication.

The Kelsenian Model of Constitutional Review in Times of European Integration – Reconsidering the Basic Features

2019 ◽  
Vol 19 (1) ◽  
pp. 7-37
Author(s):  
Aleksandra Kustra-Rogatka
Keyword(s):  
European Integration ◽  
Legal System ◽  
Constitutional Court ◽  
Centralized Control ◽  
Constitutional Treaty ◽  
Constitutional Courts ◽  
Constitutional Review ◽  
Legal Norms ◽  
Basic Features ◽  
The Eu

Summary The paper deals with the changes in the centralized (Kelsenian) model of constitutional review resulting from a state’s membership of the EU, which unequivocally demonstrates the decomposition of the classic paradigm of constitutional judiciary. The main point raised in the paper is that European integration has fundamentally influenced on the four above-mentioned basic elements of the Kelsenian model of constitutional review of legislation, which are the following: the assumption of the hierarchical construction of a legal system; the assumption of the supreme legal force of the constitution as the primary normative act of a given system; a centralised model of reviewing hierarchical conformity of legal norms; coherence of the system guaranteed by a constitutional court’s power to declare defectiveness of a norm and the latter’s derogation. All its fundamental elements have evolved, i.e. the hierarchy of the legal system, the overriding power of the constitution, centralized control of constitutionality, and the erga omnes effect of the ruling on the hierarchical non-conformity of the norms. It should be noted that over the last decade the dynamics of these changes have definitely gained momentum. This has been influenced by several factors, including the “great accession” of 2004, the pursuit of formal constitutionalization of the EU through the Constitutional Treaty, the compromise solutions adopted in the Treaty of Lisbon, the entry into force of the Charter, and the prospect of EU accession to the ECHR. The CJEU has used these factors to deepen the tendencies towards decentralization of constitutional control, by atomising national judicial systems and relativizing the effects of constitutional court rulings within national legal systems. The end result is the observed phenomenon, if not of marginalisation, then at least of a systemic shift in the position of constitutional courts, which have lost their uniqueness and have become “only ones of many” national courts.

7. International Political Economy: Contemporary Debates

2015 ◽  
Author(s):  
Robert Jackson ◽  
Georg Sørensen
Keyword(s):  
United States ◽  
Political Economy ◽  
Developing Countries ◽  
Western Europe ◽  
International Political Economy ◽  
Current Model ◽  
The United States ◽  
The Other ◽  
The Third ◽  
The Relationship

This chapter examines three important debates in International Political Economy (IPE). The first debate concerns power and the relationship between politics and economics, and more specifically whether politics is in charge of economics or whether it is the other way around. The second debate deals with development and underdevelopment in developing countries. The third debate is about the nature and extent of economic globalization, and currently takes places in a context of increasing inequality between and inside countries. This debate is also informed by the serious financial crisis of 2008 and has raised questions regarding the viability of the current model of capitalism in the United States and Western Europe.

Mobility of Human Beings in Europe: An Unpredictable Phenomenon

2020 ◽  
pp. 1-8
Author(s):  
Rosa María Martínez de Codes
Keyword(s):  
United States ◽  
Western Europe ◽  
The United States ◽  
Refugee Crisis ◽  
Human Beings ◽  
Religious Minorities ◽  
Liberal Democratic ◽  
Norms And Values ◽  
Democratic Societies ◽  
Direct Threat

The global refugee crisis has reignited long-standing debates about how to successfully integrate religious minorities into liberal democratic societies. In the United States, security fears, particularly connected with terrorism, are preponderant. In Western Europe cultural fears seem to dominate, with many misunderstanding Islam as a direct threat to the norms and values that bind their societies together.

Georgia: Warlords, Generals, and Politicians

2020 ◽  
Author(s):  
David Darchiashvili ◽  
Stephen Jones
Keyword(s):  
Armed Forces ◽  
The United States ◽  
Russian Revolution ◽  
Prime Ministers ◽  
Civil Military Relations ◽  
Executive Authority ◽  
Democratic Control ◽  
Military Relations ◽  
The Military ◽  
The Relationship

The balance between civil and military structures is central to understanding the development of Georgian statehood since the beginning of the 20th century. The first modern independent Georgian state was established after the 1917 Russian Revolution. The Democratic Republic of Georgia declared its independence in May 1918. In February 1921, the young republic was incorporated into the Soviet state and had no separate army of its own. Since regaining its independence in 1991, Georgia has experienced multiple administrations, and despite significantly different policies on the military, the overall pattern has been one of civilian (though not always democratic) control. Georgian militias and paramilitaries, between 1918 and 1921 and again between 1991 and 1995, played important roles in determining political power at times of revolutionary or constitutional crises. Since 1991 there have been three presidents - Zviad Gamsakhurdia, Eduard Shevardnadze, and Mikheil Saakashvili - with strong executive authority. In 2013, the position of president was made semi-ceremonial and a prime-ministerial system was instituted. Since 2013, there have been multiple prime ministers. Bidzina Ivanishvili was the first and the most powerful. All of Georgia’s leaders have shifted from a Soviet to pro-Western orientation. Since the second half of the 1990s, the relationship with NATO has grown closer, which has had a major impact on the structure of the Georgian armed forces and on their relationship with Georgia’s civil authorities. The 2008 war with Russia had a major impact on the Georgian military, and, since then, the level of professionalization of the Georgian armed forces has increased dramatically. Samuel Huntington, Eric Nordlinger, and other Western students of civil-military relations have pointed to the important balance required between civil and military authorities for a stable democracy. Georgia still displays continuing features of nepotism, clientelism, corruption, and dominant political personalities, which has significant consequences for the independence of the Georgian military and for civil-military relations more generally. Western states such as the United States and Germany, and international organizations like NATO continue to urge reform and provide training to the Georgian armed forces

The Politics of Intimate Care

2017 ◽  
Author(s):  
Charissa J. Threat
Keyword(s):  
Nineteenth Century ◽  
Social Relationships ◽  
The United States ◽  
Nurse Training ◽  
Army Nurse Corps ◽  
Military Nursing ◽  
History Of ◽  
The Military ◽  
The Impact ◽  
The Relationship

This chapter traces the early evolution of nursing from the mid-nineteenth century through the early twentieth century, with particular emphasis on how nursing care became both gendered and racialized in civilian society. Focusing on the history of the Army Nurse Corps (ANC), it explores the relationship between the military and civilian populace to illuminate trends in nursing practices, debates about work, and concerns about war taking place in the larger civil society. It also examines how war and military nursing needs shaped the evolution of the modern nursing profession and how nursing became embroiled in the politics of intimate care, along with the implications for gender roles and race relations that permeated social relationships and interactions in civilian society. The chapter points to the Civil War as the transformative moment in the history of nursing in the United States, moving nursing from an unpaid obligation to a paid occupation. Finally, it discusses the impact of the introduction of formal nurse training during the last quarter of the nineteenth century on African American nurses.

Balancing and judicial self-empowerment: A case study on the rise of balancing in the jurisprudence of the German Federal Constitutional Court

2015 ◽  
Vol 4 (1) ◽  
pp. 49-80 ◽  
Author(s):  
NIELS PETERSEN
Keyword(s):  
Judicial Power ◽  
Constitutional Court ◽  
Argumentation Framework ◽  
Constitutional Review ◽  
Federal Constitutional ◽  
German Constitutional Court ◽  
The Relationship ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

AbstractMany critics of the proportionality principle argue that balancing is an instrument of judicial self-empowerment. This contribution argues that the relationship between balancing and judicial power is more complex. Balancing does not necessarily create judicial power, but it presupposes it. This argument is confirmed through a case study of the German Federal Constitutional Court. The analysis shows that the German Constitutional Court was very reluctant to base decisions, in which it overturned legislation, on balancing in the first two and a half decades of its jurisprudence. However, in the late 1970s, once the Court had strengthened its own institutional position, it increasingly relied on balancing when declaring laws as incompatible with the constitution. Then, balancing developed into the predominant argumentation framework of constitutional review that it is today in the Court’s jurisprudence.

scholarly journals Content and forms of participation of the Constitutional Court of the Russian Federation in lawmaking

2021 ◽  
Vol 21 (2) ◽  
pp. 223-231
Author(s):  
Vitalii B. Sychev ◽  
Keyword(s):  
Public Life ◽  
Special Kind ◽  
Constitutional Court ◽  
Legal Research ◽  
Constitutional Courts ◽  
Constitutional Review ◽  
Legal Norms ◽  
General Scientific ◽  
The Russian Federation ◽  
Legislative Initiative

Introduction. The judicial constitutional review authorities ensure the supremacy and direct application of the constitutions. They also participates in lawmaking activities. Constitutional review authorities can participate in lawmaking activities directly or circumstantially. There are two kinds of the direct participation of such authorities in lawmaking activities: legislative initiative and participation in lawmaking activities in connection with the implementation of the constitutional review. The methodology of research is based on general scientific and special legal research methods. Theoretical analysis. Some authors note that the decisions of the constitutional review authorities can modify conditions of public life. Authors often emphasize that court decisions that rules certain norms as unconstitutional have the same goals as statutory acts. Empirical analysis. Constitutional courts administer a special kind of lawmaking, such as “positive”, “negative”, “adjusting” and “interpretative” lawmaking. “Positive” lawmaking is connected with the adoption of statutory acts, which regulate the activities of the constitutional courts. “Negative” lawmaking consists in ruling certain legal norms and sources of law unconstitutional and making them void. By means of “adjusting” lawmaking constitutional courts do not rule the norms as completely unconstitutional, but constitutionally interpret them. “Interpretative” lawmaking consists in clarifying legal norms of constitutions. The constitutional review authorities may also provide recommendations to the legislative authorities. Results. The constitutional review authorities can directly participate in lawmaking activities as a legislative initiative or in connection with the implementation of the constitutional control as “positive”, “negative”, “adjusting” and “interpretative” lawmaking. Circumstantial participation of such authorities in lawmaking activities is administered by adopting special messages.

scholarly journals Democracy, external threat, and military spending

2021 ◽  
Vol 8 (4) ◽  
pp. 205316802110496
Author(s):  
Matthew Hauenstein ◽  
Matthew Smith ◽  
Mark Souva
Keyword(s):  
United States ◽  
Empirical Analysis ◽  
Military Spending ◽  
The United States ◽  
Regime Type ◽  
External Threat ◽  
The Military ◽  
The Relationship

A number of studies find that democracies spend less on their military than non-democracies. Yet there are well known counter-examples, including but not limited to the United States and Israel. We contend that these counter-examples are part of a larger pattern. The relationship between regime type and military spending is conditional on external threat. Among countries that do not perceive a significant external threat to their interests, democracies allocate considerably less to the military than non-democracies. However, democracies with a significant external threat do not allocate less to the military than non-democracies. The reason prior research consistently finds that democracies, on average, spend less on the military, even while controlling for external threat, is that democracies are much less likely to have a high external threat. For example, autocracies are nearly twice as likely as democracies to have a significant external threat in our sample. An empirical analysis of military spending from 1952–2000 is consistent with these expectations.

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