Unbundling the Rule of Law in China: Local Legislative Power and Private Investment

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.

Download Full-text

KRIMINALISASI DITINJAU DARI PERSPEKTIF TEORI HUKUM PIDANA (CRIMINAL LAW THEORY)

Refleksi Hukum Jurnal Ilmu Hukum ◽

10.24246/jrh.2014.v8.i2.p115-132 ◽

2014 ◽

Vol 8 (2) ◽

pp. 115-132

Author(s):

Marthen H. Toelle

Keyword(s):

Rule Of Law ◽

Criminal Law ◽

Civil Liberties ◽

The Rule Of Law ◽

Legislative Power

AbstrakTulisan ini mengkritisi kriminalisasi oleh legislator ditinjau dari perspektif Teori Hukum Pidana. Keputusan legislator untuk mengkriminalkan suatu tindakan melalui undangundang perlu dibatasi karena sangat mempengaruhi kebebasan individu. Di negara berdasarkan pada asas the Rule of Law (negara hukum), pembatasan kekuasaan legislator bersifat niscaya. Khusus terkait dengan keputusan legislator dalam melakukankriminalisasi, bentuk pembatasan tersebut dapat dilakukan salah satunya dengan jalan membedakan antara kriminalisasi yang legitimate dengan kriminalisasi yang tidak legitimate. Melakukan pembedaan tersebut merupakan salah satu bidang kajian dari Teori Hukum Pidana dengan tujuan supaya undang-undang pidana yang dihasilkan dalam proses kriminalisasi mengandung kebenaran. AbstractThis article tries to criticize the legistatures decision to criminalize from the Criminal Law Theory perspective. The legislatures decision to criminalize needs to be limited because it has great impacts over civil liberties. According to the Rule of Law principle, the limitation over legislative power is inescapable. Specifically related to the legislatures decision to criminalize, the forms of limitation can be undertaken by differentiate between the legitimate criminalization and the illegitimate criminalization. Doing this differentiation is analytically one of the main concerns of the Criminal Law Theory in order to satisfy that the criminal law resulted from the criminalization process is really needed.

Download Full-text

Revisiting Section 81 of the Constitution: The Commencement Date of Legislation (Legislative Power) Distinguished from Promulgation (Legislative Process)

Southern African Public Law ◽

10.25159/2522-6800/3534 ◽

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.

Download Full-text

Administrative action, the rule of law and unconstitutional vagueness

Judges, politics and the Irish Constitution ◽

10.7228/manchester/9781526114556.003.0016 ◽

2017 ◽

Author(s):

Oran Doyle

Keyword(s):

Rule Of Law ◽

Case Law ◽

Judicial Power ◽

The Rule Of Law ◽

Legislative Power ◽

Administrative Action ◽

Administrative Power ◽

Textual Basis

Oran Doyle’s chapter argues that more needs to be done to instantiate the rule of law ideal: administrative action potentially undermines the rule of law, since individuals may have no opportunity to tailor their activities to legally binding directives before they are issued. The chapter notes that there are tentative indications in the case law that the courts may recognise a new constitutional doctrine constraining legislative grants of administrative power. Doyle critically assesses the emergence of this doctrine and seek to influence its development, disentangling it from a confusing association with the rule against the delegation of legislative power. Notwithstanding the absence of any clear textual basis, the chapter argues that recognition of this doctrine would be a legitimate exercise of judicial power.

Download Full-text