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.

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.

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.

Emergency! But What about Legal Protection in the EU?

2018 ◽  
Vol 9 (1) ◽  
pp. 99-119 ◽  
Author(s):  
Tom BINDER ◽  
Argyro KARAGIANNI ◽  
Miroslava SCHOLTEN
Keyword(s):  
Rule Of Law ◽  
Legal Protection ◽  
Case Law ◽  
Public Authorities ◽  
The Rule Of Law ◽  
Emergency Powers ◽  
Executive Discretion ◽  
Legal Position ◽  
Private Actors ◽  
The Eu

AbstractThe EU institutions and agencies have become increasingly involved in enforcing EU law directly vis-à-vis private actors. A number of such EU entities have also acquired the so-called emergency powers, which allow interference with the legal position of a private party. Given the lack of research in this area, the question that this article addresses is whether relevant safeguards have been introduced to ensure the rule of law in such situations to prevent the abuse of executive discretion by public authorities. What are the relevant safeguards in the emergency in the EU in the first place? Having analysed relevant EU legislation and case law, the article offers a complete overview of all the existing EU entities with the emergency powers and shows a great diversity in the extent to which the EU legislator has regulated procedural safeguards in relevant law. The article discusses what safeguards need to be ensured in an emergency and argues for clarity of legislative frameworks in this respect.

Vergaberechtsschutz im Spannungsfeld zwischen Beschleunigungsgebot und Gewährung effektiven Rechtsschutzes

2019 ◽  
Author(s):  
Hsi-Ping Chen
Keyword(s):  
Rule Of Law ◽  
Public Procurement ◽  
German Law ◽  
Legal Protection ◽  
The Other ◽  
The Rule Of Law ◽  
Other Hand ◽  
The One ◽  
Substantive Law ◽  
The Eu

The German Law on public procurement remedies, implementing the EU Remedies Directives into national law, has to engage in a balancing act between effective legal protection of bidders and the necessary acceleration of the award procedure. The book develops solutions for conflicts between the abovementioned opposing interests, which are consistent with the pluralistic paradigm of the European legal area, and the standards of assessment of the EU primary substantive law on public procurement. The Europeanisation of the German Law on public procurement remedies is analysed in detail. The work deals with the establishment and improvement of effective legal protection of bidders on the one hand and, on the other hand, shows that the acceleration of the award procedure within the framework of the procedural system is bounded by the rule of law. The book carves out strengths and deficits of the German Law on public procurement remedies.

scholarly journals Constitutionalizing the act of justice in the European Union

2020 ◽  
pp. 47-63
Author(s):  
MARIETA SAFTA
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Constitutional Court ◽  
The European Union ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
The Public ◽  
Necessary Being ◽  
National Courts ◽  
Constructive Dialogue

This study addresses a component of the constitutionalization process at the Union level, namely the act of justice, considering its importance for the evolution of the constitutionalization process. The significance and importance of the constitutionalization of the act of justice are analyzed, as well as the premises and mechanisms of the constitutionalization of the act of justice in the European Union, with particular reference to the jurisprudence of the Romanian Constitutional Court. In this context, the control of constitutionality appears as a decisive modeling factor of the normative action of the legislator and even of the public policies. The constructive dialogue – if we refer to the two legal orders, national and supranational – is all the more necessary, being noticeable the key role played by national courts – and in particular constitutional courts – in defending the rule of law in the European Union, including through their collaboration with the CJEU in cases and through the instruments provided for in the Constitutions and the Treaties.

scholarly journals Constitutional court procedure and constitutional control in the field of lustration

2021 ◽  
pp. 99-115
Author(s):  
Oksana Shcherbanyuk
Keyword(s):  
Rule Of Law ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
Judicial Control ◽  
European Court ◽  
Long Time ◽  
The Law ◽  
Judicial Procedure ◽  
The Right

The article considers the constitutional court procedure and constitutional control in the field of lustration.  These issues are considered through the prism of the rule of law, its understanding by the Constitutional Court of Ukraine in its practice.  It is emphasized that the application of the principle of publicity and the requirements of increased publicity is due to the importance of cases heard by constitutional courts, as well as the results of judicial activity. Along with this, the issue of long-term consideration by the Constitutional Court of Ukraine of the law determining lustration is analyzed in detail. The study is updated by the fact that the European Court of Human Rights on the complaints of citizens of Ukraine found a violation of the right of the lustrated to a fair trial due to excessive time of national trials for their release.  It is concluded that the Law on Lustration should serve its most important function in establishing the rule of law in the country. In legal science there is a situation when the views of scholars on the essence of judicial procedure are contradictory, which gives rise to different understandings of this legal phenomenon by representatives of different scientific schools.  For a long time, the problem of judicial procedure was inextricably linked with the consideration of the category of the process, the essential idea of which significantly influenced the understanding of the limits of the procedure in law. The constitutional Court as the only organ of the constitutional-judicial control may be seen as a special (organized on a state basis), the carrier of the intellectual potential of theories of constitutional law.

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 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 EU Equality Law

2018 ◽  
Author(s):  
Elise Muir
Keyword(s):  
Rule Of Law ◽  
Fundamental Rights ◽  
Domestic Sphere ◽  
Council Of Europe ◽  
The Rule Of Law ◽  
Central Case ◽  
New Generation ◽  
The Impact ◽  
The Eu

In the early days, a choice was made not to entrust the EU with competences allowing it to protect against violations of fundamental rights per se. This task was placed in the hands of the Council of Europe. Although this choice has not been called into question, the EU has developed a broad range of instruments to respond to the impact of its activities on fundamental rights and a mechanism for surveillance of compliance with the rule of law. One trend that has been subject to little attention, and to which this book is devoted, is the exercise by the EU of a new generation of competences that allow for the development of tools explicitly designed to flesh out as well as to promote selected fundamental rights. The exercise of such competences, of which EU equality law as it has blossomed since the late 1990s is the most ancient example and therefore the central case study, triggers a number of constitutional questions. The sophisticated and powerful infrastructure of the EU legal order is thereby used to promote a given conception of a fundamental right, to define how it relates to others, and also to elaborate mechanisms for these approaches to permeate domestic legal cultures. This monograph explores the implications of this very symbolic and equally sensitive form of law-making. Particular attention is devoted to the complex relationship between primary and secondary law as well as to the importance of stimulating reflection on fundamental rights within the domestic sphere.

scholarly journals An Emerging Key Concept in European Constitutional Law: Sustainability

2021 ◽  
Vol 60 (4) ◽  
pp. 332-365
Author(s):  
András Jakab
Keyword(s):  
Rule Of Law ◽  
Constitutional Law ◽  
Special Focus ◽  
Constitutional Court ◽  
The Rule Of Law ◽  
Social Challenges ◽  
Set Up ◽  
Sustainability Challenges ◽  
The Eu

Sustainability, as comp ared to the rule of law, human rights, sovereignty or democracy, is a relatively new constitutional key concept. It is mentioned explicitly more and more in constitutional discourses, and – even more importantly – it helps to reconstruct a number of current constitutional debates under one conceptual umbrella. Sustainability comprises different responses to long term social challenges which cannot efficiently be responded to via democratic mechanisms. Democratic mechanisms are based on election terms and which are, consequently, structurally short-sighted. By ‘European constitutional law’, I mean in this paper both the primary law of the EU and domestic constitutional documents. In the present paper is am first going to sketch the nature and the types of the sustainability challenges that contemporary societies face, with a special focus on Europe (environmental, demographic and financial). In the main part of the paper, I am going to show possible constitutional responses to these challenges. Finally, I will summarise the main argument of the paper which is a suggestion to set up an economic constitutional court consisting of economists with the power to annul laws if these contradict the principles of sustainability.

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