Judicial Review of Executive Power: Legality, Rationality and Reasonableness (Part 1)

2017 ◽  
Vol 30 (1) ◽  
pp. 122-152
Author(s):  
Chuks Okpaluba
Keyword(s):  
Rule Of Law ◽  
Executive Branch ◽  
Executive Power ◽  
Constitutional Court ◽  
Theoretical Terms ◽  
Intelligence Agency ◽  
The Rule Of Law ◽  
Administrative Action ◽  
The Law ◽  
The Many

Early in the life of the South African democratic dispensation, the Constitutional Court distinguished the conduct of the President as the head of the executive branch of government from an administrative action. However, it held that executive conduct was, like all exercise of public power, constrained by the constitutional principles of legality and rationality. So, as a necessary incident of the rule of law, the executive may not exercise powers or perform duties not conferred upon it by the Constitution and the law. The cases decided since then demonstrate in practical and theoretical terms the democratic aphorism that no one is above the law and everyone is subject to the Constitution and the law. In the process, the Constitutional Court has entertained appeals for the review of executive powers such as where, inter alia, the President had acted on a wrong advice or terminated the appointment of the head of the National Intelligence Agency; the legality of Ministerial Regulations and of the rationality of the presidential appointment of the Director of the National Prosecuting Authority. The role of reasonableness as a ground of review of executive conduct rather than administrative action has been demonstrated in the many cases where the distinction has been made between the rationality test and the reasonableness test. The conclusion, therefore, is that, through their interpretation of the Constitution and review of executive powers, the courts have developed a code of principles regarding the rule of law, good government, and democracy.

Judicial Review of Executive Power: Legality, Rationality and Reasonableness (2)

2017 ◽  
Vol 30 (2) ◽  
pp. 379-405
Author(s):  
Chuks Okpaluba
Keyword(s):  
Rule Of Law ◽  
Executive Branch ◽  
Executive Power ◽  
Constitutional Court ◽  
Theoretical Terms ◽  
Intelligence Agency ◽  
The Rule Of Law ◽  
Administrative Action ◽  
The Law ◽  
The Many

For the sake of context, the abstract of this contribution is repeated below (see (2015) 30(1) SAPL for Part 1 of this article). Early in the life of the South African democratic dispensation, the Constitutional Court distinguished the conduct of the President as the head of the executive branch of government from an administrative action. However, it held that executive conduct was, like all exercise of public power, constrained by the constitutional principles of legality and rationality. So, as a necessary incident of the rule of law, the executive may not exercise powers or perform duties not conferred upon it by the Constitution and the law. The cases decided since then demonstrate in practical and theoretical terms the democratic aphorism that no one is above the law and everyone is subject to the Constitution and the law. In the process, the Constitutional Court has entertained appeals for the review of executive powers such as where, inter alia, the President had acted on wrong advice or terminated the appointment of the head of the National Intelligence Agency; the legality of Ministerial Regulations and of the rationality of the presidential appointment of the Director of the National Prosecuting Authority. The role of reasonableness as a ground of review of executive conduct rather than administrative action has been demonstrated in the many cases where the distinction has been made between the rationality test and the reasonableness test. The conclusion, therefore, is that, through their interpretation of the Constitution and review of executive powers, the courts have developed a code of principles regarding the rule of law, good government, and democracy.

scholarly journals On the rule of law and the quality of the law: reflections of the constitutional-turned-international judge

2019 ◽  
pp. 131
Author(s):  
Egidijus Küris
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
European Convention ◽  
Constitutional Court ◽  
Legal Tradition ◽  
The Rule Of Law ◽  
Derechos Humanos ◽  
European Court ◽  
The Law

Western legal tradition gave the birth to the concept of the rule of law. Legal theory and constitutional justice significantly contributed to the crystallisation of its standards and to moving into the direction of the common concept of the rule of law. The European Court of Human Rights uses this concept as an interpretative tool, the extension of which is the quality of the law doctrine, which encompasses concrete requirements for the law under examination in this Court, such as prospectivity of law, its foreseeability, clarity etc. The author of the article, former judge of the Lithuanian Constitutional Court and currently the judge of the European Court of Human Rights, examines how the latter court has gradually intensified (not always consistently) its reliance on the rule of law as a general principle, inherent in all the Articles of the European Convention on Human Rights, to the extent that in some of its judgments it concentrates not anymore on the factual situation of an individual applicant, but, first and foremost, on the examination of the quality of the law. The trend is that, having found the quality of the applicable law to be insufficient, the Court considers that the mere existence of contested legislation amounts to an unjustifiable interference into a respective right and finds a violation of respective provisions of the Convention. This is an indication of the Court’s progressing self-approximation to constitutional courts, which are called to exercise abstract norm-control.La tradición occidental alumbró la noción del Estado de Derecho. La teoría del Derecho y la Justicia Constitucional han contribuido decisivamente a la cristalización de sus estándares, ayudando a conformar un acervo común en torno al mismo. El Tribunal Europeo de Derechos Humanos emplea la noción de Estado de Derecho como una herramienta interpretativa, fundamentalmente centrada en la doctrina de la calidad de la ley, que implica requisitos concretos que exige el Tribunal tales como la claridad, la previsibilidad, y la certeza en la redacción y aplicación de la norma. El autor, en la actualidad Juez del Tribunal Europeo de Derechos Humanos y anterior Magistrado del Tribunal Constitucional de Lituania, examina cómo el primero ha intensificado gradualmente (no siempre de forma igual de consistente) su confianza en el Estado de Derecho como principio general, inherente a todos los preceptos que forman el Convenio Europeo de Derechos Humanos, hasta el punto de que en algunas de sus resoluciones se concentra no tanto en la situación de hecho del demandante individual sino, sobre todo y ante todo, en el examen de esa calidad de la ley. La tendencia del Tribunal es a considerar que, si observa que la ley no goza de calidad suficiente, la mera existencia de la legislación discutida supone una interferencia injustificable dentro del derecho en cuestión y declara la violación del precepto correspondiente del Convenio. Esto implica el acercamiento progresivo del Tribunal Europeo de Derechos Humanos a los Tribunales Constitucionales, quienes tienen encargado el control en abstracto de la norma legal.

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.

scholarly journals ПОКРЕТАЊЕ ПОСТУПКА НОРМАТИВНЕ КОНТРОЛЕ ПРАВА У РЕПУБЛИЦИ СРБИЈИ

TEME ◽  
2019 ◽  
pp. 1419
Author(s):  
Bálint Pásztor
Keyword(s):  
Rule Of Law ◽  
Constitutional Court ◽  
The Rule Of Law ◽  
Democratic Culture ◽  
Advantages And Disadvantages ◽  
Institutional Values ◽  
The Law ◽  
The Republic ◽  
The One

The author of the article analyzes the specificities of the normative control of the law, i.e. the procedure of assessing the constitutionality and legality of the law in the Republic of Serbia, with the aim of detecting historical and legal preconditions of the effective functioning of the rule of law. The historical perspective of the development of the constitutional judiciary in the Socialist Federal Republic of Yugoslavia and the Republic of Serbia, as well as the analysis of the experiences of various systems of control of constitutionality and legality, open the contextual, scientific-historical and pragmatic dimensions of understanding. The specificity of the system of normative control is reflected in its triplicity, meaning that three institutes are known that characterize different procedural possibilities (to initiate the process of assessing the constitutionality and legality of general acts). The paper is written in order to point out the dichotomy of the proposal and initiative of the procedure of the assessment of constitutionality and legality, as well as the advantages and disadvantages of the ex officio procedure. Furthermore, the author wanted to point out the essential and procedural differences between the proposal, the initiative and the constitutional complaint, especially analyzing the purpose of retaining the institute of the initiative in the light of the existence of the constitutional complaint and the fact that the initiative does not imply the automation of the initiation of proceedings. The dilemma that the article opens concerns the possibility that in the case of abolishing the initiative as an institution accessible to all, is it possible to preserve the democratic culture and the participation of citizens, furthermore is it possible to abolish the fundamental institutional values and freedoms of a legal state and the rule of law? The paper opens other issues of importance for the establishment of an effective constitutional architecture that concern: the width of the circle of authorized proposers of normative control before the Constitutional Court; the dual role of the constitutional judiciary: on the one hand protection of the Constitution, constitutionality and legality, on the other hand effective protection of human and minority rights and freedoms.

scholarly journals Magna Carta And Its Significant Role For Rule Of Law In The Republic Of Macedonia

SEEU Review ◽  
2015 ◽  
Vol 11 (1) ◽  
pp. 86-98
Author(s):  
Ivana Shumanovska-Spasovska ◽  
Konstantin Bitrakov
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Great Influence ◽  
Executive Branch ◽  
The Rule Of Law ◽  
Legal Rules ◽  
Republic Of Macedonia ◽  
Magna Carta ◽  
The Law ◽  
The Republic

Abstract One of the most important and famous historical documents from the English legal and constitutional legacy is the Magna Carta Libertatum. Signed and sealed in the year 1215 the Magna Carta is further on viewed as the sole inception of the idea of limiting the power of the ruler trough legal rules. That limitation is to be made with legal rules that are binding for everyone, even the monarch. Therefore, the Great Charter is viewed as the first document signed by a monarch with which, the principle of supremacy of the law is set out. That supremacy of the law has been further on developed by eminent scholars and practitioners, eventually leading to the development of the concept of rule of law. Rule of law, as a concept, means that the royal authority (or the executive branch of power) is going to be inferior to the law. However, this concept means a lot more than simply that. Unlike the principle of legal state, the rule of law is closely linked to justice, separation of powers and legal certainty. All of these concepts are actually prerequisites for its existence. That is why each of them is separately examined and elaborated. Furthermore, as one of the most important principles the rule of law had a great influence on the constitutional (and legal) systems around the world. Since the Republic of Macedonia strives to become a democratic state where the rule of law is established and developed it is important to elaborate the influence of this principle in it. Therefore, the research gravitates over the principle of rule of law in the Republic of Macedonia.

scholarly journals Constitutional Justice

2017 ◽  
Vol 19 (33) ◽  
pp. 135-142
Author(s):  
Anca-Florina Moroșteș ◽  
Narcisa-Mihaela Stoicu
Keyword(s):  
Rule Of Law ◽  
Constitutional Court ◽  
Contemporary Society ◽  
The Rule Of Law ◽  
Democratic State ◽  
Constitutional Justice ◽  
The Law

Abstract The paper with the title “Constitutional Justice” aims to analyse a topic of urgent actuality and of particular importance in the contemporary society. We have tried to show in this paper the importance of the Constitutional control in the rule of law. Starting from the idea of necessity of existence of a Constitution in a democratic State and, implicitly, of a body to follow-up the compliance with its provision, we have tried to highlight in this paper the role of Romanian Constitutional Court and not only, by presenting one of its most important attributions which is the control of the law constitutionality.

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 Mahkamah Konstitusi di Beberapa Negara Perspektif Perbandingan Hukum

2019 ◽  
Vol 6 (1) ◽  
pp. 83
Author(s):  
Andi Safriani
Keyword(s):  
Rule Of Law ◽  
Constitutional Court ◽  
The Rule Of Law ◽  
Constitutional State ◽  
Similarities And Differences ◽  
The Law

Konsep negara hukum juga disebut sebagai negara konstitusional atau constitusional state, yaitu negara yang dibatasi oleh konstitusi. Semua konstitusi selalu menjadikan kekuasaan sebagai pusat perhatian, karena kekuasaan itu sendiri pada intinya memang perlu diatur dan dibatasi sebagaimana mestinya. Untuk menjamin konstitusionalitas pelaksanaannya baik dalam bentuk aturan hukum maupun tindakan penyelenggara negara berdasarkan ketentuan undang-undang, dibentuklah Mahkamah Konstitusi. Kewenangan Mahkamah Konstitusi antara suatu negara dengan negara lain tentunya memiliki persamaan dan perbedaan. The Concept of the rule of law too as a constitutional state. All constitutions always make power the center of attention. Because power itself in essence really needs to regulated and limited to ensure the quality of its implementation in the form of rules and the actions of states administrators based on the provisions of the law a constitutional court was formed. The Authority of the constitutional court between a country and another country certainly has similarities and differences.          

scholarly journals The Constitutional Power Of The Executive in The Age of Rule of Law: A Comparative Study on Malaysia and Indonesia

2020 ◽  
Vol 3 (2) ◽  
pp. 75-83
Author(s):  
Norazlina binti Abdul Aziz ◽  
Rosa Ristawati
Keyword(s):  
Rule Of Law ◽  
Executive Branch ◽  
Executive Power ◽  
Structured Interviews ◽  
Legal Cases ◽  
The Rule Of Law ◽  
Important Principle ◽  
Legal Provisions ◽  
The Government ◽  
Reliable Mechanism

The rule of law sets as an important principle entrenched in the Constitution of Malaysia and Indonesia. This principle stand as a guardian against abuse of power by the government as nobody shall be above the law. This paper examines the practices of the executive power relating to decision-making policy, execution of power and enforcement activities in Malaysia and Indonesia. It also analyses how the executive branch perfoms the powers in accordance to the rule of law. It mainly focuses on the institutional framework of the head of the government and head of state. The analysis allows for identifications of issues and proposals on the enhancement of the executive branch in both countries that would increase the quality of state administration as well as promoting the rule of law. The study adopts a normative method where the fundamental discussions are based on normative approach with content analysis approach on the constitutional and legal provisions, legal cases, circular and directive. The data acquired through doctrinal study is supported by semi-structured interviews with respondents that have been selected through purposive approach. This article concludes that the executive branch plays important roles in promoting the rule of law in both countries. The Constitution, in this case, provides constitutional limitation for the institutional branch of the executive to perform its powers. In the age of rule of law, the executive powers has to be limited. There is no power without limits. The laws has to provide a clear legal direction and reliable mechanism of checks and balances to govern the exercise of the  executive powers.  

scholarly journals The Obama War Powers Legacy and the Internal Forces That Entrench Executive Power

2016 ◽  
Vol 110 (4) ◽  
pp. 680-700 ◽  
Author(s):  
Rebecca Ingber
Keyword(s):  
Decision Making ◽  
Rule Of Law ◽  
Executive Branch ◽  
Barack Obama ◽  
Executive Power ◽  
War Powers ◽  
The Rule Of Law ◽  
President Elect ◽  
Internal Forces ◽  
To Come

As we contemplate the incoming presidential administration, we stare ahead into uncharted space. It may seem as though recent history leaves us unprepared for what lies ahead. What can a discussion of the Obama war powers legacy, and the transition from the Bush to Obama administration, tell us about a transition from Barack Obama to the next president, and beyond?Yet there are lessons here. Noone can predict precisely how the president-elect and the team that is installed will confront the rule of law or grapple with the bureaucratic norms that I discuss in this paper. But systemic forces exist inside the executive branch that influence presidential decision-making in each modern administration and, barring a total reimagining of the executive branch, will operate on administrations to come. These internal forces include mechanisms and norms that fall within two broad categories: (1) those that favor continuity and hinder presidents from effecting change, and (2) those that incrementally help ratchet up claims to executive power.

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