scholarly journals Here, Do This For Me: The Impact of Delegated Legislative Power on Separation of Powers and the Rule of Law

2012 ◽  
Vol 4 ◽  
Author(s):  
Gretal Wee
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
The Rule Of Law ◽  
Legislative Power ◽  
The Impact

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

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.

Harmonisasi terhadap Peraturan Daerah No. 14 Tahun 2006 tentang Pengelolaan Pelestarian Kawasan Konservasi Laut Daerah dalam Perlindungan Pulau Pariwisata Kabupaten Indramayu

2019 ◽  
Vol 1 (2) ◽  
pp. 142
Author(s):  
Saiful Kholik ◽  
Imas Khaeriyah
Keyword(s):  
Rule Of Law ◽  
Local Governments ◽  
Environmental Law ◽  
Policy Formulation ◽  
Marine Conservation ◽  
Environmental Damage ◽  
Conservation Area ◽  
The Rule Of Law ◽  
The Government ◽  
The Impact

Inconsistency Regional Regulation No.14 of 2006 about marine conservation area of the island of Biawak, Gososng, which Cendekian provides protection but in fact failed to provide protection as evidenced by dredging island sandbar and cendekian conducted PT.Pertamina UP VI Balongan INDRAMAYU. The problem in this research How Formulation Policy Act No. 10 Year 2009 on the Indonesian Tourism with the Indramayu Regional Regulation No. 14 of 2006 regarding marine conservation area of the island of Biawak, Gososng, Cendekian And How Harmonization Act No. 10 of 2009 with the Indramayu Regional Regulation No. 14 of 2006 regarding formulation Act No. 10 Year 2009 on the Indonesian Tourism with the Indramayu Regional Regulation No. 14 of 2006 about marine conservation area of the island of Biawak, Gososng, Cendekian, the purpose of this research to understand and analyze the extent to which policy The findings of the community or field of law local governments about the environmental damage done by companies or individuals are not equal accordance with regional regulations in force, nor the Law in force so that the function of law in society indramayu not fit the mandate to establish a change and justice based Formulation public corporate criminal liability.Inskonsitensi happens to local regulation No.14 of 2006 makes no harmonized with the regulations of each other so that the impact of this inskonsistensi makes the sector particularly environmental law enforcement get uncertainties that result in coastal communities Indramayau.Conclusion Harmonization of regulations of the center and regions delivering the policy formulation of the rule of law area to comply with the regulations above in order to avoid inconsistency, the occurrence of this inconsistency resulted in the rule of law and justice for the indramayu, suggestion that the government should was nearly revise regulations related area, especially the government must dare to take action to give effect to the perpetrator deterrent effect rule-based running as well as possible.

International Arbitration as a Tool of Global Governance

2019 ◽  
Author(s):  
Sophie Nappert
Keyword(s):  
Global Governance ◽  
Rule Of Law ◽  
International Arbitration ◽  
The Rule Of Law ◽  
Arbitration Process ◽  
Fact Finding ◽  
Exercise Of Discretion ◽  
The Impact

It has been posited that the international arbitration process carries with it not only fact-finding and lawmaking functions but also a governance function insofar as “arbitrators … can and do engage in autonomous normative action while still adhering to the rule of law.” This contribution explores the role and ambit of the exercise of discretion by international arbitration tribunals and its interplay with the tribunals’ governance function, as arbitrators must consider “the impact of their rulings on states, persons or entities not directly represented in the case before them.” It questions whether the use of discretion is suited to the governance role of arbitral tribunals and serves, rather than compromises, the effective exercise of that role. It asks what measures ought to be considered to make arbitrators better prepared for the exercise of their governance function.

Applying Synthetic Control Method to Estimate the Impact of the Lava Jato Operation on the Worldwide Governance Indicators in Brazil

2021 ◽  
pp. 2631309X2110178
Author(s):  
Eduardo Carvalho Nepomuceno Alencar ◽  
Bryant Jackson-Green
Keyword(s):  
Rule Of Law ◽  
Control Method ◽  
Synthetic Control ◽  
Synthetic Control Method ◽  
The Rule Of Law ◽  
Governance Indicators ◽  
Regulatory Quality ◽  
Legal Judgments ◽  
The Impact ◽  
Control Of Corruption

In 2014, the most prominent anti-corruption investigation in Latin America called Lava Jato, exposed a Brazilian corruption scheme with reverberations in 61 countries, resulting in legal judgments for nearly 5 billion USD in reimbursements thus far. This article applies the synthetic control method on data from 135 countries (2002–2018) to test the hypothesis that Lava Jato impacts the Worldwide Governance Indicators in Brazil. The findings reveal that Lava Jato negatively affects control of corruption, the rule of law, and regulatory quality. There are signs of possible improvement in at least the corruption and the rule of law measures. This paper brings value to the criminological body of literature, notably lacking in the Global South.

Crisis of the Rule of Law in Europe: The Cases of Hungary, Poland and Spain

2021 ◽  
Vol 7 (3) ◽  
pp. 379-398
Author(s):  
David Parra Gómez
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Social Rights ◽  
Institutional Reforms ◽  
Public Authorities ◽  
The Rule Of Law ◽  
The Public ◽  
Division Of Powers ◽  
European Democracy ◽  
Aggressive Interference

Democracy is an instrument at the service of a noble purpose: to ensure the freedom and equality of all citizens by guaranteeing the civil, political and social rights contained in constitutional texts. Among the great principles on which this instrument rests is the division of powers, which consists, substantially, in the fact that power is not concentrated, but that the various functions of the State are exercised by different bodies, which, moreover, control each other. Well, the increasingly aggressive interference of the Executive and, to a lesser extent, the Legislative in material spheres that should be reserved exclusively for the Judiciary, violates this principle and, for this reason, distorts the idea of democracy, an alarming trend that, for some time now, are observed in European Union countries such as Hungary, Poland and Spain. Preventing the alarming degradation of European democracy, of which these three countries are an example, requires not only more than necessary institutional reforms to ensure respect for these principles and prevent the arbitrariness of the public authorities, but also a media network and an education system that explains and promotes these values and principles, that is, one that makes citizens aware of and defend constitutionalism. Keywords: Rule of law; Democracy; Separation of powers; judicial independence; Europe.

scholarly journals The constitutionality of default arbitration

2021 ◽  
Author(s):  
◽  
Asher Gabriel Emanuel
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Regulatory Framework ◽  
Public Provision ◽  
The Rule Of Law ◽  
Essential State ◽  
State Functions ◽  
Commercial Disputes

<p>A proposed Bilateral Arbitration Treaty would subject international commercial disputes between enterprises in signatory states’ jurisdictions to arbitration unless the parties agreed to the contrary. This marks a substantial departure from conventional understandings of arbitration as based on the consent of the parties. More importantly, the policy would modify the jurisdiction of the courts, removing a large number of disputes to offshore tribunals subject to minimal judicial oversight. This paper explores the constitutional propriety of such a policy, with particular attention paid to the principles of the separation of powers, the rule of law, public provision of essential State functions, open justice, and democracy. These constitutional principles would be subverted if the policy were to operate within the existing regulatory framework for arbitration. The paper makes recommendations for possible modifications to the policy that would make it a better fit with the constitution.</p>

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.

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