scholarly journals The Remedial Action of the "State of Capture" Report in Perspective

2017 ◽  
Vol 20 ◽  
pp. 1 ◽  
Author(s):  
Loammi Wolf
Keyword(s):  
Ad Hoc ◽  
The State ◽  
Constitutional Court ◽  
Discretionary Power ◽  
Remedial Action ◽  
State Institutions ◽  
The Public ◽  
Head Of State ◽  
Freedom Fighters ◽  
Commissions Of Inquiry

In the State of Capture report the public protector instructed the president to appoint a commission of inquiry to investigate the capture of state institutions by the Gupta family. The president and his family are personally implicated and due to a conflict of interests, the public protector limited both his choice of a commissioner to conduct the inquiry and the power to specify certain terms of reference. In the Economic Freedom Fighters, the Constitutional Court ruled that the public protector's remedial action is legally binding and must be executed by the state organs concerned. President Zuma challenges the remedial action on the basis that it is the sole prerogative of the head of state under section 84(2)(f) of the Constitution to appoint commissions of inquiry and that it is an unfettered discretionary power, which may not be limited. It is not only doubtful whether the responsibility to appoint commissions of inquiry is invariably a discretionary power; it is also doubtful whether the president has an unfettered discretion. In the case of a conflict of interest the president would in any event be barred from taking a decision in terms of the nemo iudex maxim if the decision could be tainted by bias. The difficulty is that section 90 of the Constitution does not regulate the ad hoc exercise of section-84(2) powers by another state organ when the president should recuse himself from taking a decision. The limitations imposed by the public protector in regard to the commission of inquiry appear to be the best solution under the circumstances.

The implications of the Public Protector's remedial action directing the exercise of discretionary constitutional powers: separation of powers implications

2020 ◽  
Vol 24 ◽  
Author(s):  
Bradley V. Slade
Keyword(s):  
Separation Of Powers ◽  
Constitutional Democracy ◽  
Remedial Action ◽  
High Court ◽  
The Public ◽  
The North ◽  
Head Of State ◽  
Commissions Of Inquiry ◽  
Legal Uncertainty

ABSTRACT This article considers the judgments of the North Gauteng High Court in which the remedial action of the Public Protector was reviewed. In President of the RSA v Public Protector, delivered in 2018, the Court upheld the remedial action directing the President to appoint a commission of inquiry without having regard to the separation of powers doctrine. The decision stands in contrast to an earlier decision (SARB v Public Protector) and a later decision (RSA v Public Protector) where the Court set aside the remedial action of the Public Protector that also purported to direct the exercise of discretionary constitutional powers. In these cases, the remedial action was set aside after proper regard was had to the separation of powers doctrine. This article therefore considers these diverging approaches where the court reviews the remedial action of the Public Protector directing the exercise of discretionary constitutional powers. It considers the effects of not consistently having regard to the separation of powers doctrine in reviewing the remedial action of the Public Protector. It is argued that the inconsistent invocation of this doctrine leads to legal uncertainty specifically in relation to the exercise of the President's discretionary constitutional power as head of state to appoint a commission of inquiry. Furthermore, the article considers the effect the failure to review the Public Protector's remedial action consistently from a separation of powers perspective may have on the Public Protector's ability to adequately fulfil the mandate of strengthening constitutional democracy. Keywords: Public Protector, remedial action, separation of powers, commissions of inquiry.

New Folk Music as Attempted Repatriation in Romania

2018 ◽  
pp. 436-452
Author(s):  
Maurice Mengel
Keyword(s):  
Mass Media ◽  
Folk Music ◽  
Cultural Policy ◽  
New Products ◽  
New Product ◽  
The State ◽  
State Institutions ◽  
The Public ◽  
Socialist State ◽  
New Form

This chapter looks at cultural policy toward folk music (muzică populară) in socialist Romania (1948–1989), covering three areas: first, the state including its intentions and actions; second, ethnomusicologists as researchers of rural peasant music and employees of the state, and, third, the public as reached by state institutions. The article argues that Soviet-induced socialist cultural policy effectively constituted a repatriation of peasant music that was systematically collected; documented and researched; intentionally transformed into new products, such as folk orchestras, to facilitate the construction of communism; and then distributed in its new form through a network of state institutions like the mass media. Sources indicate that the socialist state was partially successful in convincing its citizens about the authenticity of the new product (that new folklore was real folklore) while the original peasant music was to a large extent inaccessible to nonspecialist audiences.

Electronic Democracy in Theory and Practice

2013 ◽  
pp. 84-96
Author(s):  
T. Rovinskaya
Keyword(s):  
International Experience ◽  
The State ◽  
Theory And Practice ◽  
Political Decision ◽  
State Institutions ◽  
The Public ◽  
Theory To Practice ◽  
Electronic Democracy ◽  
Technological Base ◽  
Decision Taking

The article considers the phenomena of e-democracy in its development from theory to practice. The following issues are covered: existing concepts of electronic citizens’ participation in political decision-taking, e-government as a form of open interaction of the state institutions with the public, technological base and international experience of using the mechanisms of e-democracy.

A Christian in the Office of Constitutional Judge [1999]

2020 ◽  
pp. 280-287
Author(s):  
Ernst-Wolfgang Böckenförde ◽  
Mirjam Künkler ◽  
Tine Stein
Keyword(s):  
Catholic Church ◽  
Central Committee ◽  
The State ◽  
West Germany ◽  
Constitutional Court ◽  
The Public ◽  
Public Servant ◽  
The World ◽  
Federal Constitutional ◽  
The Church

In this personal reflection, Böckenförde portrays the dilemma he faced during his tenure as a judge on Germany’s Federal Constitutional Court: trying to bridge his Christian Catholic spirituality with his work as a high-ranking public servant in a secular state. He describes his struggle with the Catholic teachings prior to Second Vaticanum, which at that time still defined the state as ideally Catholic and demanded every believer in public office to act as a vanguard for Christian natural law. But by committing himself to the public good, Böckenförde sidestepped the requirement of the Catholic Church and fully embraced the democratic, religiously neutral political order. Böckenförde justified his position (deviant in the eyes of the Church) by insisting on the strict neutrality demanded from a judge. He pointed to the so-called Church Compromise of the Weimar Republic (Weimarer Kirchenkompromiss), which established the neutrality of the state with regard to religion, and which was re-adopted in West Germany after 1949. He also relinquished his consultative role in the Central Committee of Catholics once he was nominated to the Constitutional Court. Even in cases affecting abortion, he only dealt with the issues at hand as a judge, not as a Catholic. In his view, Christian spirituality can manifest itself in faithfulness to one's office and an integrity that is open to the world.

scholarly journals The range of instruments of mechanism for interaction between the Constitutional Court of Ukraine and the Verkhovna Rada of Ukraine

2018 ◽  
Vol 6 (5) ◽  
pp. 5-11
Author(s):  
N. V. Moskalets
Keyword(s):  
Human Rights ◽  
Civil Society ◽  
Performance Indicators ◽  
Monitoring And Evaluation ◽  
The State ◽  
Individual Responsibility ◽  
Constitutional Court ◽  
Public Authorities ◽  
The Public ◽  
Civil Society Development

In the article, basing on investigation of the interaction of the Constitutional Court of Ukraine with the Verkhovna Rada of Ukraine in ensuring the rights and freedoms there was proposed the range of instruments of mechanism for interaction based on proper governance, monitoring and evaluation, including performance indicators and effectiveness, individual responsibility of a person authorized to perform the functions of the state. Due to its implementation, the public authorities will provide priority-oriented constitutional guarantees, namely human rights and freedoms in the context of promoting civil society development in Ukraine. In the article, basing on investigation of the interaction of the Constitutional Court of Ukraine with the Verkhovna Rada of Ukraine in ensuring the rights and freedoms there was proposed the range of instruments of mechanism for interaction based on proper governance, monitoring and evaluation, including performance indicators and effectiveness, individual responsibility of a person authorized to perform the functions of the state. Due to its implementation, the public authorities will provide priority-oriented constitutional guarantees, namely human rights and freedoms in the context of promoting civil society development in Ukraine. In order to enhance the implementation of the range of instruments of mechanism for interaction between the Constitutional Court of Ukraine with other public authorities, there was offered the introduction of electronic document management as a preventive anti-corruption measure with integrated monitoring and transparency mechanisms of activity of public authorities in order to reduce the level of corruption and hierarchical influence, for the purpose of openness and transparency, efficiency of activity within the democratic processes.

scholarly journals KAJIAN KRITIS TERHADAP PUTUSAN MAHKAMAH KONSTITUSI NOMOR 013-022/PUU-IV/2006 TENTANG PEMBATALAN PASAL PENGHINAAN TERHADAP PRESIDEN

2019 ◽  
Vol 4 (1) ◽  
pp. 97-114
Author(s):  
Adhya Satya Bangsawan
Keyword(s):  
Legal Reasoning ◽  
Vice President ◽  
Freedom Of Speech ◽  
Criminal Code ◽  
The State ◽  
Constitutional Court ◽  
Ordinary People ◽  
Head Of State ◽  
The Status ◽  
Legal Consequences

This article discusses the legal reasoning used by the Indonesian Constitutional Court in its Decision No. 013-022/PUU-IV/2006. The object of the constitutionality review is Article 134, 136 bis, and 137 of the Indonesian Criminal Code which contained the ban of insult action toward the president/vice president. Those norms have been declared null and void based on the argument that those norms were not criminal acts. Hence, this article stresses that the annulment of those norms may give negative legal consequences toward the protection of president/vice president’s dignity. Freedom of speech is categorized as a right of expression in which its performance is undertaken restrictively. This article argues that the ban of insult action toward the president/vice president is a constitutional limitation to the freedom of speech. The status of president/vice president shall not be considered as equal with ordinary people since the president/vice president is the head of state and also the symbol of the state.

scholarly journals Inkonstitusionalitas Sistem Unbundling dalam Usaha Penyediaan Listrik

2018 ◽  
Vol 15 (1) ◽  
pp. 185
Author(s):  
Jefri Porkonanta Tarigan
Keyword(s):  
Public Interest ◽  
Judicial Review ◽  
The State ◽  
Constitutional Court ◽  
The Public ◽  
The People

Fungsi negara tidak hanya sebagai regulator (pengatur) dan umpire (wasit), namun juga berfungsi sebagai provider (penyedia) dan entrepreneur (pengusaha). Oleh karena itu, sudah seharusnya negara terlibat langsung dalam usaha penyediaan listrik untuk kepentingan umum bagi sebesar-besarnya kemakmuran rakyat sebagaimana amanat Pasal 33 UUD 1945. Usaha penyediaan listrik untuk kepentingan umum dengan unbundling system yaitu terpisahnya antara usaha pembangkitan, transmisi, distribusi, dan penjualan listrik, telah dinyatakan inkonstitusional oleh Mahkamah Konstitusi dalam Putusan Nomor 001-021-022/PUU-I/2003, bertanggal 15 Desember 2004. Namun kemudian adanya putusan Mahkamah Konstitusi Nomor 149/PUU-VII/2009, bertanggal 30 Desember 2010, justru dipandang sebagai peluang dibolehkannya kembali sistem unbundling dalam usaha penyediaan listrik sebagaimana ketentuan Pasal 10 ayat (2) Undang-Undang Nomor 30 Tahun 2009 tentang Ketenagalistirkan. Hal tersebut kemudian mendorong diajukannya kembali permohonan pengujian terhadap ketentuan Pasal 10 ayat (2) Undang-Undang Nomor 30 Tahun 2009. Melalui Putusan Nomor 111/PUU-XIII/2015, bertanggal 14 Desember 2016, Mahkamah Konstitusi pun menegaskan bahwa unbundling dalam usaha penyediaan tenaga listrik adalah tidak sesuai dengan konstitusi.The function of the state is not only as a regulator and referee, but also serves as provider and entrepreneur. Therefore, the state should be directly involved in the business of electric providing for the public interest to the greatest prosperity of the people as mandated by Article 33 of the 1945 Constitution. The unbundling system in electric providing for the public interest is the separation between the business of generation, transmission, distribution, and sales. The unbundling system has been declared unconstitutional by the Constitutional Court in Decision Number 001-021-022/PUU-I/2003 dated December 15, 2004. However, the decision of the Constitutional Court Number 149/PUU-VII/2009 dated 30 December 2010, is judged as an opportunity to re-enable the unbundling system in the business of electric providing as stipulated in Article 10 paragraph (2) of Law Number 30 Year 2009 about Electricity. It then encourages the re-submission of the petition for judicial review of the provisions of Article 10 paragraph (2) of Law Number 30 Year 2009. Then, through Decision Number 111/PUU-XIII/2015, dated December 14, 2016, the Constitutional Court confirm that unbundling in the business of providing power electricity for public interest is inconstitutional.

scholarly journals Exposure to Discretionary Arrests Increases Support for Anti-Police Protests

2021 ◽  
Author(s):  
Ted Hsuan Yun Chen ◽  
Paul McLachlan ◽  
Christopher Fariss
Keyword(s):  
The State ◽  
Individual Level ◽  
State Institutions ◽  
The Public ◽  
Perceptions Of Fairness ◽  
Police Records ◽  
Study Support ◽  
State Agents ◽  
Using Data

The legitimacy of the state rests on individuals' perceptions of fairness when interacting with state institutions and state agents. The police as an institution and as individual agents have wide latitude to detain and use force against individuals. We argue that encounters with state bureaucracy and civil servants, specifically the police, can generate individual-level grievances against the state, and that these grievances make it more likely an individual participates in protest against the state. We study support for and the legitimacy of policing in the context of the anti-police protests in Baltimore, MD following the death of Freddie Gray in April, 2015. Using data from police records and social media, we show that individuals with higher exposure to discretionary arrests --- arrests that are potentially viewed as illegitimate or arbitrary --- are more likely to support protests against the police. In contrast, we demonstrate that exposure to arrests for major crimes such as murder does not follow the same pattern. Thus, support for the police as an institution varies systematically with exposure to arbitrary and capricious encounters with police agents. As these grievance generating encounters become more widespread, we expect to see increased protests against the police and further erosion in support of the police as an institution. Alternatively, shifting institutional resources to focus on major crimes and limiting the discretionary authority of police agents when interacting with the public may help to repair the legitimacy of policing institutions over the long term.

scholarly journals Interview with Judge Kate O'Regan

2015 ◽  
Author(s):  
Elrena Van der Spuy
Keyword(s):  
South African ◽  
Final Report ◽  
Constitutional Court ◽  
Western Cape ◽  
Police Leadership ◽  
The Public ◽  
Safe Spaces ◽  
Public Inquiry ◽  
Commissions Of Inquiry ◽  
Inside Out

In August 2012 Kate O'Regan, a former judge of the South African Constitutional Court, was appointed by the premier of the Western Cape to head the Commission of Inquiry into Allegations of Police Inefficiency and a Breakdown in Relations between SAPS and the Community in Khayelitsha. Two years later, on 25 August 2014, the commission submitted its final report and recommendations. In this exchange O'Regan reflects from the inside out on some aspects of the public inquiry into policing in Khayelitsha. Here one finds reference to judicial independence and organisational autonomy of commissions of inquiry; the value of comparative lesson drawing for process design; the importance of creating safe spaces for all participants; and honouring the contributions of participants. Policing, O'Regan concludes, is a truly challenging enterprise. Both political and police leadership carry a moral responsibility to engage systemic and other challenges as identified in both of the Marikana and Khayelitsha reports. Not to do so would imply the abdication of responsibility to address the safety and security concerns of South African citizens.

scholarly journals BUMN dan Penguasaan Negara di Bidang Ketenagalistrikan

2017 ◽  
Vol 14 (1) ◽  
pp. 104
Author(s):  
Muhammad Insa Ansari
Keyword(s):  
Electrical Energy ◽  
The State ◽  
Electricity Sector ◽  
Electricity Supply ◽  
Constitutional Court ◽  
The Public ◽  
Government Organizations ◽  
Need For Power ◽  
Science Technology ◽  
Case Number

Tenaga listrik merupakan salah satu kebutuhan penting bagi masyarakat dewasa ini. Kebutuhan terhadap tenaga listrik terus meningkat dari waktu ke waktu sesuai dengan perkembangan ilmu pengetahuan, teknologi, dan sumber daya manusia. Dalam Undang-Undang Dasar 1945 (UUD 1945) penguasaan ketenagalistrikan berada dalam penguasaan negara. Dimana dalam pasal 33 ayat (2) UUD 1945 dinyatakan: "Cabang-cabang produksi yang penting bagi negara dan yang menguasai hidup orang banyak dikuasai oleh negara." Namun sebagian penguasaan negara terhadap energi kelistrikan dianulir oleh Undang-Undang Nomor 30 Tahun 2009 tentang Ketenagalistrikan, misalnya dalam Pasal 11 ayat (1) Undang-Undang Nomor 30 Tahun 2009 tentang Ketenagalistrikan menyatakan: "Usaha penyediaan tenaga listrik untuk kepentingan umum sebagaimana dimaksud dalam Pasal 10 ayat (1) dilaksanakan oleh badan usaha milik negara, badan usaha milik daerah, badan usaha swasta, koperasi, dan swadaya masyarakat yang berusaha di bidang penyediaan tenaga listrik." Namun dengan ditetapkan putusan Mahkamah Konstitusi perkara nomor: 111/PUU-XIII/2015, penguasaan negara dan BUMN di bidang ketenagalistrikan kembali dikukuhkan dan dikuatkan dengan putusan tersebut.Electric power is one important requirement for today's society. The need for power is growing from time to time in accordance with developments in science, technology, and human resources. In the Constitution of 1945 (UUD 1945) mastery of electricity in the possession of the state. Where in the Article 33 paragraph (2) of the 1945 Constitution states: "The branches of production that are important to the state and which are controlled by the state." But most of the state's control of the electrical energy annulled by Act Number 30 of 2009 on Electricity, for example in Article 11 paragraph (1) of Law Number 30 Year 2009 on electricity states: "enterprises electricity supply to the public interest as referred to in Article 10 paragraph (1) conducted by state-owned enterprises, local owned enterprises, entities private enterprises, cooperatives, and non-government organizations are endeavoring in the field of electricity supply." But with the Constitutional Court decision determined case number: 111/PUU-XIII/2015, control of the state and state-owned electricity sector re-confirmed and strengthened by the decision.

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