Democratizing the Doctrine of Unconstitutional Constitutional Amendments: The Puzzle of Amending the Judiciary Branch

ICL Journal ◽  
2020 ◽  
Vol 0 (0) ◽  
Author(s):  
Catalina Torres-Artunduaga ◽  
Santiago García-Jaramillo
Keyword(s):  
Rule Of Law ◽  
Legal Theory ◽  
Constitutional Courts ◽  
Constituent Power ◽  
Constitutional Amendments ◽  
The Rule Of Law ◽  
Dialogic Approach ◽  
The Subject ◽  
Conceptual Foundations

AbstractThe increasing interest of legal academia on the doctrine of Unconstitutional Constitutional Amendments and its growing enforcement by the judiciary in different jurisdictions has started to normalize a doctrine that was considered controversial and extraordinary. This paper seeks to cast some doubts on the use of this doctrine, especially when the Court that enforces it is the subject of the amendment itself. In the first section it will question the conceptual foundations of the doctrine by recourse to legal theory, focusing not only on the idea of constituent power, but also on those of the rule of law and accountability. In the second section, some comparative cases of unconstitutional constitutional amendments will be analyzed, focusing on those where the judiciary itself was the subject of the amendment. Finally, from a normative and conceptual standpoint, a dialogic approach to the application of the doctrine will be proposed, to mitigate the fact that Constitutional Courts can become an unaccountable accountability-holder.

Democratizing the Doctrine of Unconstitutional Constitutional Amendments: The Puzzle of Amending the Judiciary Branch

ICL Journal ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 1-42
Author(s):  
Catalina Torres-Artunduaga ◽  
Santiago García-Jaramillo
Keyword(s):  
Rule Of Law ◽  
Legal Theory ◽  
Constitutional Courts ◽  
Constituent Power ◽  
Constitutional Amendments ◽  
The Rule Of Law ◽  
Dialogic Approach ◽  
The Subject ◽  
Conceptual Foundations

AbstractThe increasing interest of legal academia on the doctrine of Unconstitutional Constitutional Amendments and its growing enforcement by the judiciary in different jurisdictions has started to normalize a doctrine that was considered controversial and extraordinary. This paper seeks to cast some doubts on the use of this doctrine, especially when the Court that enforces it is the subject of the amendment itself. In the first section it will question the conceptual foundations of the doctrine by recourse to legal theory, focusing not only on the idea of constituent power, but also on those of the rule of law and accountability. In the second section, some comparative cases of unconstitutional constitutional amendments will be analyzed, focusing on those where the judiciary itself was the subject of the amendment. Finally, from a normative and conceptual standpoint, a dialogic approach to the application of the doctrine will be proposed, to mitigate the fact that Constitutional Courts can become an unaccountable accountability-holder.

The settlement of disputes of a constitutional nature: inside the Romanian Constitutional Court s rulings on the role and competences of the public authorities

2018 ◽  
pp. 51-70
Author(s):  
TUDOREL TOADER
Keyword(s):  
Rule Of Law ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Public Authorities ◽  
The Rule Of Law ◽  
The Public ◽  
The Subject ◽  
Constitutional Justice ◽  
Settlement Of Disputes

The separation and balance of State powers constitute the basis of the rule of law. Observance of this principle requires framing of public authorities within the limits of competence established by the Constitution and the law, as well as loyal cooperation between them. From this perspective, the attribution of the constitutional courts for settling legal disputes of a constitutional nature is an important tool for correcting the tendencies of violation of these limits, as well as for identifying solutions for situations that do not find an explicit regulation in the constitutional texts. The present study analyses the jurisprudence of the Constitutional Court of Romania in the field of legal disputes of a constitutional nature, revealing, together with the presentation of dispute situations, the vulnerabilities of the constitutional reference texts. It is also highlighted the role of the constitutional courts in the evolution of constitutional law institutions. The conclusion of the study, beyond the subject of legal disputes of a constitutional nature, bears on the necessity, even more so in this matter, of the certainty of jurisdictional interpretation. This certainty cannot be achieved as long as the interpretation is not authoritative; consequently, the assurance of the effectiveness of constitutional justice constitute a key issue of the rule of law.

scholarly journals A Populist Monster and the future of Constitutional Democracy

2021 ◽  
Vol 4 (1) ◽  
pp. 83-100
Author(s):  
Andraž Teršek
Keyword(s):  
Rule Of Law ◽  
Legal Protection ◽  
Constitutional Court ◽  
Court Decisions ◽  
Constitutional Democracy ◽  
Council Of Europe ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
The Social ◽  
The Eu

Abstract The central objective of the post-socialist European countries which are also Member States of the EU and Council of Europe, as proclaimed and enshrined in their constitutions before their official independence, is the establishment of a democracy based on the rule of law and effective legal protection of fundamental human rights and freedoms. In this article the author explains what, in his opinion, is the main problem and why these goals are still not sufficiently achieved: the ruthless simplification of the understanding of the social function and functioning of constitutional courts, which is narrow, rigid and holistically focused primarily or exclusively on the question of whether the judges of these courts are “left or right” in purely daily-political sense, and consequently, whether constitutional court decisions are taken (described, understood) as either “left or right” in purely and shallow daily-party-political sense/manner. With nothing else between and no other foundation. The author describes such rhetoric, this kind of superficial labeling/marking, such an approach towards constitutional law-making as a matter of unbearable and unthinking simplicity, and introduces the term A Populist Monster. The reasons that have led to the problem of this kind of populism and its devastating effects on the quality and development of constitutional democracy and the rule of law are analyzed clearly and critically.

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.

THE WIDENING GYRE: COUNTER-TERRORISM, HUMAN RIGHTS AND THE RULE OF LAW

2008 ◽  
Vol 67 (1) ◽  
pp. 69-91 ◽  
Author(s):  
Arthur Chaskalson
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
The Internet ◽  
The Rule Of Law ◽  
Counter Terrorism ◽  
Daunting Task ◽  
The Subject ◽  
Google Search ◽  
Is Value ◽  
Do So

There are two themes that recur in previous Sir David Williams lectures. First, that it is a considerable honour to be invited to give the lecture. Secondly, that it is a daunting task to do so in the presence of Sir David, particularly in a field in which he has expertise. Since that covers most of the law there is no escape from this dilemma. Let me then acknowledge the privilege of having been asked to give this year's lecture, and confess that it is with some trepidation that I do so. The subject, terrorism and human rights, is not exactly uncharted territory. When I looked into the internet for some guidance on what might be relevant to terrorism and human rights, the response to my Google search informed me that in .03 seconds 32,900,000 references had been found. This seemed to indicate that it was unlikely that I would be able to say anything that has not already been said. But there are some subjects that are of such importance that there is value in reminding ourselves of the issues that are at stake, and if necessary for that purpose, repeating what others have said. And it is with that in mind that I approach my chosen topic.

scholarly journals The absolute power of the sovereign, bureaucracy, democracy and constitutional government in the works of Slobodan Jovanovic

Balcanica ◽  
2014 ◽  
pp. 399-434
Author(s):  
Vojislav Stanovcic
Keyword(s):  
Rule Of Law ◽  
Legal Theory ◽  
Institutional Development ◽  
Theoretical Framework ◽  
Modern State ◽  
Political Systems ◽  
Major Work ◽  
Absolute Power ◽  
The Rule Of Law ◽  
Constitutional Government

The papers discusses the views of Slobodan Jovanovic (1869-1958) on several phenomena of Serbia?s political and institutional development in the hundred years between the First Serbian Uprising in 1804 and the fall of the Obrenovic dynasty in 1903, and on different political systems, looking at the sources on which his thought drew upon, the ideas he was guided by and the theoretical framework of his legal and socio-political thinking. His major work, a legal theory of the state, as most of his other writings, was his own contribution to what he held to be a national mission, the building of a modern state based on the rule of law.

scholarly journals An Approach of Legisprudence Theory to Assess the Quality of Local Regulation

2016 ◽  
Vol 2 (3) ◽  
pp. 371
Author(s):  
Marthen Arie
Keyword(s):  
Rule Of Law ◽  
Legal Theory ◽  
Political Process ◽  
Legislative Process ◽  
Local Regulation ◽  
The Rule Of Law ◽  
Applicable Law ◽  
Political Approach ◽  
Important Object

The applicable law (as a result of legislation) is not always a reflection of the society concerned. Local regulations in the area were impressed into law to be “forced” because it does not conform to the spirit and characteristics of the society. The formation of local regulation is increasingly complex and complicated when the process and its substance beside cannot be separated from the political process, it is also cannot be separated from social processes. The problematic of local regulation formation is indicated by the fact that the authorized institution to arrange the local regulation is still not sufficient to produce products of high quality local laws. Legisprudence theory may open new perspectives on the validity of norm or legitimacy of norm and by course using this approach the quality of local regulations will be more qualified. Although a political approach is more into the heart in the legislative process but legislation and regulation can be an important object. Legal theory is not only a basis on enforcement or implementation of the rule of law, but it is very useful theory in law-making.

scholarly journals The Responsibility of Courts in Maintaining the Rule of Law: Two Tales of Consequential Judicial Self-Restraint

2021 ◽  
pp. 155-181
Author(s):  
Pál Sonnevend
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Constitutional Court ◽  
Court Decisions ◽  
The European Union ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
Legislative Power ◽  
The Face ◽  
The Law

AbstractModern constitutionalism is based on the paradigm that courts are inherently entitled and obliged to enforce the constitution of the respective polity. This responsibility of courts also applies in the context of the European Union to both the CJEU and national constitutional courts. The present chapter argues that in the face of constitutional crises the CJEU and the Hungarian Constitutional Court shy away from applying the law as it is to the full. The reasons behind this unwarranted judicial self-restraint are most different: the CJEU aims to avoid conflicts with national constitutional courts whereas the Hungarian Constitutional Court has been facing a legislative power also acting as constitution making power willing to amend the constitution to achieve specific legislative purposes or to undo previous constitutional court decisions. Yet both courts respond to expediencies that do not follow from the law they are called upon to apply. It is argued that rule of law backsliding requires these courts to abandon the unnecessary self-restraint and exploit the means already available.

Judicial Review of Knesset Decisions by the High Court of Justice

1994 ◽  
Vol 28 (1) ◽  
pp. 43-56 ◽  
Author(s):  
Meir Shamgar
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
Limited Range ◽  
Democratic Regime ◽  
High Court ◽  
The Rule Of Law ◽  
Court Of Justice ◽  
The Subject

Some fifteen years ago, an address on the subject of judicial review of the actions of the Knesset would have been extremely short and quite familiar to English jurists. Our practice was basically the same as in England: the Parliament is sovereign, its laws inviolate, and its inner proceedings immune from review.Beginning with two decisions in the early 1980s, Flato-Sharon and Sarid, the Court has gradually recognized the justiciability of a limited range of Knesset decisions. While the precise level of review varies according to the type of decision at issue, the Court's review has been motivated in all cases by the need to preserve the rule of law and the integrity of our democratic regime.

The Rule of Law Paradox in the 2016 Constitutional Amendments in Albania

2020 ◽  
pp. 95-110
Author(s):  
Darinka Piqani
Keyword(s):  
Rule Of Law ◽  
Constitutional Reform ◽  
Judicial System ◽  
Candidate Country ◽  
Constitutional Court ◽  
Contributing Factors ◽  
Constitutional Amendments ◽  
The Rule Of Law

In 2016, the Albanian constitution underwent the most comprehensive constitutional reform since its adoption in 1998. One of the purposes of this reform was to transform the judicial system in Albania in order to detach it from corruption. One of the novelties of the reform was the vetting process of judges and prosecutors at all levels, including judges of the Albanian Constitutional Court. Following termination of mandates of some of the members to the Court, dismissals, and resignations in the context of the vetting process, Albania’s Constitutional Court did not function for more than a year. Although indisputably the constitutional reform and more specifically vetting were designed as a means of guaranteeing the rule of law, it seems that they were contributing factors to the stalemate within the Constitutional Court, thus ultimately undermining the rule of law. This chapter unfolds this paradox in Albania, an EU candidate country.

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