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Guardians of the Constitution: Constitutional Court Presidents and the Struggle for the Rule of Law in Post-Soviet Europe
... Elle est aussi l'outil central du juge suprême en vue d'atteindre une certaine unicité du droit fédéral du fait que le précédent fédéral s'impose aux juridictions fédérales inférieures 22 . Mais, plus encore, le respect de la doctrine de stare decisis est vu comme un obstacle pour les interprétations constitutionnelles motivées principalement par les allégeances idéologiques 23 . Cette dimension ressort des dernières procédures de confirmation des juges suprêmes 24 . ...
... Les juges suprêmes seraient ainsi censés protéger le dernier état d'expression du peuple constituant des atteintes potentielles de la part des majorités du moment. Ces 23 Ibidem, p. 1695-1697. 24 G.R. STONE 26 Ibidem. ...
... La seconde partie traite la marge de manoeuvre des cours constitutionnelles opérant sous pression politique forte et constante et interroge en particulier l'existence d'une stratégie spécifique à laquelle les juges pourraient avoir recours dans une telle situation. était un élève exemplaire avançant rapidement sur le chemin d'une véritable démocratie bien établie, et les juges constitutionnels ont contribué à ce progrès dans une large mesure par l'annulation des lois adoptées sous le régime socialiste non conformes à la nouvelle Constitution et par l'établissement d'une jurisprudence fondée sur les principes du constitutionnalisme libéral 23 . C'est pourquoi toute la communauté juridique s'est trouvée en état de choc lorsqu'ont eu lieu les premières attaques politiques menées contre la Cour après les élections en 2010 24 . ...
https://presses-universitaires.univ-amu.fr/node
... While the screening model that this paper presents is simple, it generates illuminating implications that differ from current perceptions. 1 Third, the paper demonstrates these points through the integration of non-formal, comparative literature (Ferreres Comella 2004;Scheppele 2006;Michelman 2011). In particular, the paper explains why decentralization of judicial review can actually limit supreme courts' capacity to avoid deciding undesired cases. ...
... The European model directly narrows the discretion of constitutional courts to 26 The model set dismissals costs to zero. 27 Moreover, the boundaries between the two models are not always sharp (Michelman 2011;Scheppele 2006Scheppele , pp. 1769Stone Sweet 2007, p. 91). Eur J Law Econ (2017) 44:265-285 279 dismiss controversial cases; in the U.S. model, courts are bound to take at least some of these cases due to the decentralized nature of judicial review. ...
... The costs of perverse outcomes, such as loss of legitimacy, are borne by the judiciary as a whole; but it is the highest court that typically incurs the largest costs from a political backlash against the judiciary (Scheppele 2006;Bateup 2009, p. 552;Goldsmith andLevinson 2009, pp. 1833-34). ...
Courts sometimes face cases that may result in adverse post-judgment official or public reactions. Such real-world repercussions—e.g., open defiance by public officials—can be more costly for the court than the benefit of hearing and deciding the case. In these situations the court may be better off not taking the case from the outset. This paper examines how courts deal with such cases when they can avoid adjudication—discretionary dockets. Using a stylized screening model, the paper examines the implications of such discretion. In particular, it shows that some undesired real-world outcomes are inevitable; and that broad control over their dockets should lead judges to take fewer cases in which the government is involved. Further, the paper discusses this logic from a comparative design perspective. The two prevalent models of judicial review, the American and the European, seem to take opposing stances on discretionary review; however, both narrow supreme courts’ control over their dockets, either by directly limiting their discretionary jurisdiction or by decentralizing judicial review.
... Post-communist constitutional courts share common legal traditions and were subject to the same influences after the transition to democracy (Brunner 1992, Dupre 2003. The selection and election of judges follow roughly the same logic: post-communist countries apply some combination of presidential or prime ministerial appointment and parliamentary approval (Scheppele 2006;Brunner 1992). ...
... Importantly, post-communist CCs are considered political actors, and their presidents are depicted as major political figures (Scheppele 2006, Uitz 2007. Under such circumstances, the political leaning of the courts is very likely to play a role in the courts' decisions. ...
The article addresses the budgetary implications of constitutional adjudication by analysing the decisions of the Hungarian Constitutional Court (HCC) between 1990 and 2018. Our results highlight that the HCC does not narrow the parliamentary majority's room to manoeuvre by blocking policies with serious budgetary consequences, and the potential budgetary consequences of a decision do not weigh in with the judicial output. At the same time, right-leaning courts are more likely to declare a law unconstitutional passed by a left-wing parliamentary majority, whereas left-wing courts adjudicate unconstitutionality with about roughly the same likelihood in cases of right- and left-leaning parliaments.
... Throughout the 1990s, the Constitutional Court 'practically ran Hungary' and 'it was the strongest body of State throughout the 1990s' (Scheppele 2003, p. 222). Some of its decisions forced government to alter their political programmes (Pogany 1993, p. 349;Scheppele 2006Scheppele , p. 1776 provisions, but also 'to write it' (Scheppele 2006(Scheppele , p. 1778. However, through its activity, the institution exposed itself 'to charges of interfering in the political process and with formulating policies under the mantle of constitutionalism' (Pogany 1993, p. 355). ...
... Throughout the 1990s, the Constitutional Court 'practically ran Hungary' and 'it was the strongest body of State throughout the 1990s' (Scheppele 2003, p. 222). Some of its decisions forced government to alter their political programmes (Pogany 1993, p. 349;Scheppele 2006Scheppele , p. 1776 provisions, but also 'to write it' (Scheppele 2006(Scheppele , p. 1778. However, through its activity, the institution exposed itself 'to charges of interfering in the political process and with formulating policies under the mantle of constitutionalism' (Pogany 1993, p. 355). ...
This article examines judicial reforms in the new member states of the EU in a comparative perspective. It explores the interactions between domestic and European actors in the Czech Republic, Poland, Hungary, Romania and Bulgaria and explains why the EU has had a differential impact on the way the principle of judicial independence has been implemented nationally. The differential impact of the EU is explained by considering both the nature of EU conditionality and the relationship between the judiciary and the political actors at the domestic level. The comparison reveals that the power of the EU is greater when tensions at the domestic level between judicial and political actors increase.
... The two parties formed a consensus, within the limitations of the PR system, against the emergence of extreme parties on the right, and more crucially at the time, the Communists (KSČM) on the left. In 2001, the Constitutional Court, which had previously been a less visible political player compared to László Sólyom-led Court in Hungary (Scheppele 2006), played a crucial role in preventing the consolidation of the two-party system by striking down election law aimed at favoring the two major parties (Kosař and Vyhnánek 2020). ...
Students of comparative law have long argued that undermining judicial independence is electorally costly, and that the norms against interference uphold institutional checks and balances essential to constitutionalism. However, evidence from countries with robust judiciaries suggests that exposing voters to deficiencies in the legal process or the courts’ partisan leanings can reduce perceptions of judicial legitimacy, making such interference on part of would-be authoritarians more likely. The rise of populist politicians poses additional risks: by emphasizing judges’ unelected status and counter-majoritarian tendencies, populists may erode legitimacy, framing judges as part of a “corrupt elite” opposing “the people.” This rhetoric challenges liberal-democratic norms that limit state interference with individual rights. To test whether one observes the effects of partisanship and procedural fairness on voters’ perceptions of the courts outside the US context, and whether populist messages produce comparable effects, a pre-registered survey experiment is conducted in the context of Czechia, a country that, until recently, has had both a populist executive and a strong and independent Constitutional Court. The study presented respondents with vignettes describing an important electoral ruling of the Czech Constitutional Court, embedding messages that highlighted judges’ unelected status, the ruling’s procedural irregularities, or its partisan implications. Contrary to expectations, findings show no significant effects of any message type on perceptions of judicial legitimacy. The results of the study suggest that the marginalization of robust judiciaries in backsliding democracies may be a largely elite-driven institutional process, with uncertain electoral payoffs.
... prominent political figure inside the decision-making process, and has come to be seen as the public face of the Court (c.f. Scheppele 2005). Indeed, he/she chairs the Annual Conference on the Constitutional Court's work and has the institutional power of moral suasion, advising parliaments and governments on specific policy areas or enacted laws. ...
Constitutional Court judges are powerful yet understudied elites. Unlike other political elites that have been studied for over a century, their profiles and careers are a neglected field of analysis in European political science. This is surprising given the centrality of the question "who governs?" to an understanding of a political system. However, few studies have attempted to document systemic differences in the profiles and careers of apex court judges, so that this field of analysis is both under-researched and under-appreciated. Drawing on an original dataset, this article contributes to filling this gap by looking systematically at the profiles and careers of Constitutional Court judges in Italy from 1956 to 2021. The article first examines the characteristics of the selection of Constitutional Court judges according to Italian constitutional jurisdiction. Second, it explores the socio-demographic background of Italian constitutional judges. Third, it investigates their political and/or technical experience prior to their period in office. The last section concludes the analysis and opens the way to further research, emphasizing the need for comparative analysis in this issue.
Rullo, L. (2022). The Road to Palazzo della Consulta: Profiles and Careers of Italian Constitutional Judges. Italian Political Science, 17(3), 226-245.
... The HCC was also recorded among the legal scholars as one of the most effective institution checking the political power and as a "legendary" defender of human rights. Although some critical analyses claimed that the initial activism had faded away later (Halmai 2002), the institution was considered to be a neutral and politically neutral veto player which was powerful but never abused its competences in favor of political decision-makers (Scheppele 1999(Scheppele , 2006. ...
The aim of this article is to shed light on the changes in the structure and jurisprudential practice of the Hungarian Constitutional Court after 2010 and to place them in the context of widespread evaluations. The practice of the court’s work as well as changes in the international political context and in public debates on constitutional review are given particular consideration. The justification of the conservative Fidesz government for the reform of the Hungarian Constitutional Court (HCC) is rejected: Empirical data refute the claim that the HCC has abused its power and restricted the room for manoeuvre of the government majority too much. Even an idealized perspective on the HCC before 2010, which portrays it as a model for a brave, activist court, does not stand up to a regional comparison. The article shows that the HCC was already a highly politicized body before 2010. However, the degree of politicization increased significantly after 2010, while the quality of jurisprudence has declined since then.
... Sebagai organ negara yang berfokus terhadap konstitusi, lembaga ini dibentuk untuk menjadi pengawal dan penafsir Undang-Undang Dasar atau the Guarding of Contitutional. MK sebagai the guardian of the constitution sejatinya juga memiliki fungsi untuk mengawal demokrasi, melindungi hak konstitusional rakyat, serta perlindungan terhadap hak asasi manusia (Scheppele, 2006). ...
Indonesia sebagai negara hukum sudah seyogyanya memenuhi dan melindungi hak konstitusional warga negara. Namun, fakta dilapangan menunjukkan bahwa kerap terjadinya pelanggaran hak konstitusional oleh organ negara. Tujuan penelitian ini adalah untuk mengkaji problematika pelanggaran hak konstitusional serta mengusulkan adanya penerapan constitutional complaint untuk menjaga hak konstitusional warga negara di Indonesia. Penelitian ini menggunakan metode hukum normative. Hasil penelitian ini menunjukkan bahwasanya upaya pengadopsian constitutional complaint menjadi urgensi yang harus diterapkan. Perlu adanya perluasan kewenangan MK sebagai the guardian of constitution dalam menerapkan constitutional complaint untuk menjaga hak konstitusional warga negara. Penelitian ini juga menggunakan studi komparatif Jerman dan Korea Selatan yang telah mengadopsi constitutional complaint yang tertuang dalam konstitusi. Sehingga, pengadopsian constitutional complaint melalui MK, diperlukannya upaya untuk amandemen UUD NRI 1945 dan revisi UU MK sebagai dasar hukum yang pasti.
... He continued to think as a Soviet leader and strove to prevail by imposing some kind of democratic regime while using non-democratic methods. This resulted in Yeltsin's attempt to concentrate more power in the President's hands and the resistance of deputies lead by Vice President Rutskoy and the speaker of Parliament Khasbulatov, which culminated in the assault of Parliament by the army and the disbanding of the legislature (Levitsky and Way 2010: 192-3;Scheppele 2006). As a consequence, Yeltsin increased his power and transformed Russia into a so-called superpresidential State more similar to authoritarianism than a democracy. ...
When the Soviet Union collapsed in 1991, liberal democracy remained the only ideal model of a political regime applicable worldwide. Then, various students and politicians saw the end of communism as the final and definitive victory of democratic ideology and imagined a future in which democracy would spread everywhere. Democracy spread widely during the 1990s and the early 2000s. The fall of various South American dictatorships and the European Union enlargement caused a transition to democracy in many countries. However, important areas in Eurasia, in particular Russia, China and Iran, resisted democratization and reformed authoritarian regimes rose and consolidated in the region. These regimes proved their ability to survive and influenced their neighbours proposing political models that attracted neighbouring countries’ leaders. Thus, new kinds of authoritarian regimes challenged the idea of the unavoidability of the spread of democracy.
... Auch in rechtswissenschaftlichen Analysen wurde das UVerfG von Anfang an als eine der effektivsten "Bremsen" gegenüber politischen Machtüberschreitungen und als ein "legendärer" Verteidiger der Menschenrechte verzeichnet -allerdings in positiver Bewertung. Obwohl einige kritische Analysen behaupteten, dass der anfängliche Aktivismus später nachgelassen hat (Halmai 2002), galt die Institution vielen als ein neutraler und politikferner Vetospieler, der mächtig war, seine Kompetenzen aber korrekt und berechenbar verwendete und niemals zugunsten der politischen Entscheidungsträger missbrauchte (Scheppele 1999(Scheppele , 2006. ...
Der Beitrag verfolgt das Ziel, die Änderungen in der Struktur und Spruchpraxis der ungarischen Verfassungsgerichtsbarkeit nach 2010 zu beleuchten und verbreitete Bewertungen einzuordnen. Dabei finden die Praxis des Gerichtswirkens sowie Veränderungen im internationalen politischen Kontext und in den öffentlichen Debatten über Verfassungsgerichtsbarkeit besondere Berücksichtigung. Die Rechtfertigung der rechtskonservativen Fidesz-Regierung für den Umbau des ungarischen Verfassungsgerichtes (UVerfG) wird zurückgewiesen: Empirische Daten widerlegen, dass das UVerfG sein Machtpotenzial ausgenutzt und den Spielraum der Regierungsmehrheit zu stark eingeschränkt habe. Auch eine idealisierte Perspektive auf das UVerfG vor 2010, die es als Vorbild für ein mutiges, aktivistisches Gericht darstellt, hält einem regionalen Vergleich nicht stand. Der Beitrag zeigt, dass das UVerfG bereits vor 2010 ein durchpolitisiertes Gremium war. Das Ausmaß der Durchpolitisierung stieg jedoch nach 2010 deutlich an, während die Qualität der Rechtsprechung seitdem gesunken ist.
... emphasizes structural and institutional characteristics of both the judiciary and the political system (e.g., Ramseyer 1994;Helmke 2001;Ginsburg 2003;Popova 2012). An ideational camp counters that judges' conception of their professional role is more consequential (e.g. , Widner 1999;Scheppele 2006;Hilbink 2006;Kapiszewski 2012;Hilbink 2012). This article enters the debate by exploring whether an ideational shift towards judicial empowerment and independence can germinate from institutional reforms. ...
Can an ideational shift towards judicial empowerment germinate from institutional reforms? Or is significant turnover in the judicial corps necessary to produce new professional norms? These questions are both theoretically important and policy relevant as rule of law reformers struggle to create powerful and independent judiciaries. Ukraine's 2014 Euromaidan revolution and the comprehensive judicial reform adopted in its wake allows us to explore these questions empirically. The centerpiece of the reform was a judicial lustration law, which sacked all court chairs and gave Ukrainian judges the right to elect new chairs in a secret ballot. This paper analyzes the court chair elections using an original dataset with individual‐ and court‐level data. The key finding is that less than a fifth of Ukrainian judges embraced their newly‐granted agency, whereas the overwhelming majority followed professional norms of deference and re‐elected the sacked court chairs. The finding holds for all court levels and for all regions of Ukraine. Beyond Ukraine, these results suggest that empowering judges in a civil law judiciary is unlikely to lead immediately to a judicial behavior shift. Regardless of how auspicious the strategic environment is, professional norms are sticky and civil law judges may inertly follow their superiors.
... Unlike current Constitutional Chamber the Court had power to conclude on constitutionality of election results, which gave a great opportunity for former President Akaev to use this power of the court for his own sake. From the early decisions of this institute one was able to see Court`s constant expansion of the powers of the President.Alexei Trochev, Judging Russia: The Role of the Constitutional Court in Russian Politics 1990-2006 (Cambridge University Press, 2008.Ibid. Constitutional Review, Volume 5, Number 2, December 2019 ...
Application of basic principles revolving around the constitutionalism into third wave democracies, produced such phenomenon as constitutions “without constitutionalism”. This paper will revisit and discuss this issue in the context of the Kyrgyz Republic. Main argument and thesis of the paper is following: Where a viable balance of power exists, a constitutional court acquires importance as a key element of that order, thus promoting the constitutionalism. If no such balance exists, the constitutional court will soon become a tool of the more dominant powers and thus lose its relevance for a genuine constitutional order. The abovementioned thesis will be demonstrated by the example of the work of Constitutional Court of the Kyrgyz Republic. Mainly it first aims at providing a proper foundation and basic understanding of constitutionalism, further revisiting this concept in the context of Former Soviet Union and finally will discuss the development of constitutionalism in Kyrgyzstan along with challenges faced by the court.
... These courts often became both the center of the population's high hopes and a regular irritation for the elected governments that had to comply with their decisions. Despite the hopes that courts will be the guardians of the constitution, the reality was that many of these courts tried hard and were eventually squashed by ambitious political leaders who wanted to govern without judicial constraint (Scheppele, 2006). ...
Purpose
The purpose of this paper is to address the issue of security challenges in the selected states in Eurasia and Central and Eastern Europe from the perspective of peace and politics. Since the security situation differs significantly across the sub-regions under scrutiny, the main objective of the current research is to establish and test a theoretical model of relevant combinations of political factors and their relation to peace. The theoretical framework has been designed by following Fukuyama’s idea of political order and upgraded with the newly constructed index of social exclusion.
Design/methodology/approach
According to the objective and methodological gaps in this field, the paper applies comparative fuzzy set analysis. The method relies on the theoretical framework and empirical data and allows a constant communication between the two. It has allowed the research to focus on what conditions are necessary and/or sufficient for peace in the selected countries.
Findings
It is evident there are several different paths to achieve peace. However, the rule of law clearly constitutes both the necessary and sufficient conditions for peace in the selected regions. Moreover, the results of the research reveal that the concepts of interest are highly interlinked with each other, especially when it comes to the rule of law, state, and democratic accountability. Thus, further research should focus on in-depth analysis of each particular case to explore which conditions or combinations are decisive in particular setting.
Originality/value
Such findings can contribute to improving the areas where Eurasian countries are still lagging behind. Further research should focus on small but significant differences within these four groupings of countries, to improve the understanding of prerequisites for peace and contribute to the development of state and human security in the EU neighborhood.
... Deferent judiciaries are less likely to produce decisions that challenge and override the interests of powerful political actors. Judiciaries with professional orientations that emphasize hierarchical control within the judiciary are also less likely to be politically independent (Widner, 1999;Scheppele, 2006;Hilbink, 2012;Kapiszewski, 2012). Over the past year and a half, the Ukrainian judiciary, long characterized by low internal dependence and deference to politicians, has proven to be impervious to civil society pressure for radical change and has instead sought to preserve the status quo. ...
... RESEARCH ON THE JUDICIARY IN CENTRAL AND EASTERN EUROPE (CEE) has tended to focus on the design and powers of constitutional courts (Sólyom & Brunner 2000;Ginsburg 2002;Scheppele 2006;Sadurski 2008). Contrastingly little effort has been invested in investigating the waves of institutional design or redesign which, sweeping the region after 1989, revised the judiciary as a whole. ...
What made democratic politicians in Central and Eastern Europe exclude themselves from judiciary governance? Judiciary institutional change is investigated through a diachronic study of the Romanian judiciary which revealed a complex causal nexus. The classical model of the ‘external incentives’ of EU accession, while explaining a general drive toward revision, played an otherwise marginal role. An institutional template prevailed, promoted by an elite transnational community of legal professionals whose entrepreneurs were steering the revision of judiciary governance right after 1989. The parliamentarians disempowered by this revision offered no resistance – a ‘veto-player dormancy’ that stands revealed as pre-conditional to such transnational influences.
... 'Both presented themselves as political leaders and as principled populists who stood up for the underdog in big political fights. 80 Both leaders sought to articulate what their Constitutions meant and to get the other branches of power to accept constitutionalism. 81 Since courts or their leaders have clearly stepped up to defend constitutions, it seems logical that it could defend them if they were degraded by amendment. ...
The advent of autocratic legalism prompts the presentation of the role of judges in societies of new democracies. The recommended proposal modifies the vision of judges as guardians of the law with an educational-democratic component, in which judges also become interpreters of the law. This article offers a presentation of this proposal. It will commence in two stages. The first is a reconstructive and interpretative process. Its aim is to present autocratic legalism and then, in its light, the problem of the abusive judicial review. The second one is of a normative nature, i.e. a presentation of the social role of judges. In this proposal, judges can be assigned three moral obligations: a) to protect the democratic system, b) to improve legal standards and public institutions when they are dysfunctional, and c) to educate the citizenry, with a particular emphasis on human rights. A primary argument in favour of such a role for judges is the strengthening of civil society as an important safeguard against autocratic rule. The context for the findings presented in this paper is the current constitutional crisis in the Polish legal order. However, empirical documentation does not determine the research methodology in the presented article. In it, I pursue an approach that can be described as “doing philosophy historically.”
This book is a response to the dangers posed to constitutional democracy by the continuous growth of executive power and the simultaneous decline of parliaments’ role in policy formation. These phenomena are often manifested in the manipulation and even the violation of the rules of parliamentary law-making, called irregularities. If left without consequences, these irregularities can ultimately lead to the elimination of the procedural constraints imposed on the ruling political forces to prevent their arbitrary exercise of power. This work investigates the constitutional significance of the irregularities of parliamentary law-making and explores the role that courts play in the remedy of these flaws. The analysis is premised on the concept of equilibrium. This explanatory concept denotes an ideal state in which parliamentary law-making complies with the requirements of constitutionalism, and judicial review is conceptualized as a mechanism suitable to achieve this aim. The volume places the judicial review of the regulation and the practice of parliamentary law-making at its center and discusses all the relevant legal concepts, institutions, and doctrines. It combines theoretical analysis with case law-centered comparative research covering a large number of decisions delivered by apex courts operating in various jurisdictions. Due to this methodological choice, the book aims to simultaneously contribute to the scholarly discourse and provide useful information to practicing lawyers and policymakers working in the areas of constitutional law and politics and comparative law.
Berbagai penelitian telah menyampaikan kebutuhan pengadopsian kewenangan constitutional complaint di Mahkamah Konstitusi agar dapat mengakomodir pengaduan konstitusional warga negara yang hak konstitusionalnya dilanggar oleh perangkat negara. Kebutuhan tersebut berangkat dari belum maksimalnya jaminan perlindungan terhadap hak-hak warga negara yang diamanatkan oleh Undang-Undang Dasar Negara Republik Indonesia Tahun 1945 dalam konteks penegakan dan kepastian hukum. Tujuan penelitian ini adalah untuk menelusuri kepastian hukum constitutional complaint dalam pandangan siyasah qadhaiyyah (peradilan Islam). Analisis kepastian hukum kewenangan constitutional complaint perspektif siyasah qadhaiyyah menghasilkan kesinambungan tujuan peradilan. Keduanya dipertemukan dalam satu tarikan nafas pentingnya kepastian hukum perlindungan hak konstitusional warga negara di hadapan peradilan.
This article discusses the behavior of the Constitutional Court in Turkey. As the highest court in the country, it is responsible for many decisions that have shaped the course of Turkish politics over the past six decades. It begins with a brief overview of the institutional features of the Turkish Constitutional Court. It then looks at major arguments on constitutional review, including judicial independence and court-curbing. Finally, it examines change and continuity in the attitudes of the Court based on the speeches of its presidents. One conclusion is that the Constitutional Court has transformed itself from that of the defender of the state principles to that of the defender of human rights while retaining its role with regard to the separation of powers. This transformation has been driven by both internal and external pressures: the domestic transition of tutelary democracy to competitive authoritarianism and the equivocation of domestic laws with international treaties.
What are the roles of courts in the context of populist government? To what degree – and why – do they collaborate with the initiatives of a populist leader or, instead, use their powers to hold these leaders accountable? Building upon a growing body of work focused on the judiciary and the prospects of the rule of law and populism, this chapter discusses how and to what effect high courts are politicised by populist administrations. It focuses on the role of the Venezuelan Supreme Tribunal (Tribunal Supremo de Justicia, TSJ) under Hugo Chávez (1999–2013) – when this role was transformed – with brief comments about the ‘post-populist’ phase of Nicolás Maduro (2013–present). In particular, this chapter discusses three phenomena that are likely to occur in a variety of populist contexts:
• (a) crafting a politicised, submissive judiciary, especially via judicial appointments and/or ‘court packing’ incidents;
• (b) the reactive role of the judiciary vis-à-vis constitutional and legal challenges attempted by political opponents; and
• (c) the courts’ proactive role in response to requests filed by pro-government actors.
These three dimensions are critical to identify, analyse and build theory around the role of high courts – especially courts of last resort – in the context of weakly institutionalised democracies or hybrid regimes, and can be used to discuss key aspects of the tensions between populist governments and judicial adjudicators.
The aim of this article is to conceptualize the role of Central European (CE) chief justices and explore whether they have managed to become autonomous actors after the fall of communism. We do so by focusing on Slovakia, which was the first country in Central Europe that experienced a semi-authoritarian regime in the mid-1990s, adopted a Euro-model of the judicial council during the EU accession, and features a formally powerful Chief Justice. Based on the analysis of the turnover in Slovak Chief Justices since the 1990s, we argue that Slovak Chief Justices have not become fully autonomous actors, despite the Euro-model of the judicial council and EU membership, as Slovak politicians still consider the position of the Chief Justice strategically important and are willing and able to interfere with them. More specifically, selection of the Chief Justice has become an arena for political battle between external pressures from the politicians and oligarchs and internal sectoral interests from within the judiciary. So far, Slovak political leaders always managed to install their own Chief Justice informally, although they have been challenged by coalitions formed among representatives of the judiciary. This has had severe repercussions for the rule of law in Slovakia, especially during the era of Chief Justice Štefan Harabin. Beyond Slovakia, recent examples of ousting and dismissing chief justices in Hungary and Poland, even if sometimes blocked, show that also in other CE countries some political leaders consider chief justices an important element of their strategy to contain the judiciary and to rule by law. In order to understand this wide-scale problem, we identify seven factors that affect the role of the Chief Justice in the post-communist Europe. This set of factors should encourage others to study Chief Justices from comparative perspective.
Purpose: The paper deals with constitutional approaches to the formalization of restrictions and deprivation of property rights in 12 post-Soviet countries: Methodology: As an analysis of specific constitutional approaches to the restriction of property rights, the paper pays attention to the conditions for the admissibility of its deprivation, compensated withdrawal and alienation of property as an object of property rights. Applications: This research can be used for universities, teachers, and students. Results: Based on the analysis, it was concluded that legal forms of restriction of the right to property are set forth in direct and indirect versions. The first reflects the direct wording of the permissibility of restricting the right to property; the second is due to the general rules of constitutional restriction of the rights of a person and citizen. Acknowledgement: This article was prepared with financial
Cambridge Core - Jurisprudence - The Legal Process and the Promise of Justice - edited by Rosann Greenspan
The Legal Process and the Promise of Justice - edited by Rosann Greenspan May 2019
Text se zabývá historickým vývojem ústavního soudnictví na území ČR. V první části autor shrnuje vývoj myšlenky soudní kontroly ústavnosti právních předpisů a formuluje materiální předpoklady pro vytvoření ústavního soudu. Nad rámec požadavků formulovaných v dosavadní literatuře (psaná ústava, dělba moci, hierarchizace právního řádu) přidává autor ještě koncept suverenity lidu. Bez něj totiž nemůže fungovat filosofická obhajoba soudní kontroly ústavnosti jako ochrana zmocnitele (lidu) před excesy zmocněnce (parlamentu).
Ve druhé části pak autor sleduje vývoj ústavního soudnictví v českém kontextu. Začíná u Říšského soudu zřízeného Prosincovou ústavou, který je některými autory pokládán za přímého předchůdce koncentrovaného a specializovaného ústavního soudu. Následně se zabývá obdobím první republiky označovaným Tomášem Langáškem jako promarněné světové prvenství. Analyzuje mimo jiné, proč činnost tohoto soudu výrazněji neovlivnila dobové dění a pravděpodobně byla i jedním z motivů, proč ústavní soudnictví nebylo po druhé světové válce obnoveno. Po intermezzu, kdy ústavní soudnictví buď neexistovalo, nebo sice bylo formálně zakotveno v právních předpisech, ale soud fakticky ustaven nebyl, sleduje autor vznik Ústavního soudu ČSFR a později též současného zákona č. 182/1993 Sb., o Ústavním soudu.
The Politico-Legal Dynamics of Judicial Review - by Theunis Roux September 2018
Cambridge Core - Comparative Law - The Politico-Legal Dynamics of Judicial Review - by Theunis Roux
The Politico-Legal Dynamics of Judicial Review - by Theunis Roux September 2018
Collective decision-making is often taken as an ‘institutional fact’ when it comes to supreme and constitutional courts. In this article, we focus on the example of the Brazilian Supreme Court (Supremo Tribunal Federal, or STF) to argue that this feature should not be assumed from the outset, as it does not necessarily hold, across countries, for all relevant powers that courts may have. As this example illustrates, the assignment to individual Justices of three distinct powers, namely agenda setting, position taking, and decision making, can have profound effects on the legislative status quo outside the court, amounting in some circumstances to a form of individual judicial review. This expanded typology of court powers both points to an underexplored spectrum for comparing different courts and makes it necessary to discuss if and how particular distributions of such powers within multi-member courts are normatively justified. In the specific case of the STF, we argue that the specific combination of individual allocations of agenda setting and decision-making powers, which gives rise in practice to the possibility of individual judicial review, cannot be reconciled with basic tenets of constitutional theory.
Historically, African political institutions such as constitutions, legislatures and judiciaries have been seen as weak and vulnerable to manipulation, leading some to claim that the continent is ‘institutionless’. However, recent developments including the consolidation of presidential term limits in a number of countries demonstrate that this depiction is no longer tenable. By drawing attention to how institutions can shape the practice of politics, this book demonstrates that electoral commissions, economic regulations and systems of land tenure are vital to our understanding of contemporary Africa. A series of cutting-edge contributions from leading scholars explain how the rules of the game shape political developments across the continent, from Kenya to Nigeria and from Benin to South Africa. In chapters that cover bureaucracies, constitutions, elections, political parties, the police and more, the authors argue that a new research agenda is required if we are to better understand the process of democratisation.
The history of the Polish Constitutional Court ( Trybunal Konstytucyjny , hereinafter: the CC) shows that it has been one of the most respected constitutional organs. Although the CC has ruled on many controversial cases, and its case-law sometimes has been heavily criticized, until 2015, it had never become the object of a direct political attack. The ongoing constitutional crisis in Poland started a few months after the new Constitutional Court Act of 25 th June 2015 (hereinafter: the CCA of 2015) had come into force. The CCA of 2015 replaced the previous Constitutional Court Act of 1997 (the CCA of 1997). The draft of the new Act (CCA of 2015) was presented by the former President, Bronislaw Komorowski, already in 2013. Yet, the parliamentary proceeding on the draft came to a standstill until May 2015 [2] . On 25th of June Sejm adopted the CAA of 2015. It was signed by the outgoing President Komorowski [3] on one of his last days in office and soon thereafter became binding law. Promulgated on 30th of July 2015 it entered in force 30 days later, on 30 th of August 2015). * Alexander Hamilton made this claim in Federalist #78. Amongst the others, he stated: “It may truly be said to have neither FORCE nor WILL, but merely judgment”. [1] A. Śledzinska-Simon, available at: Midnight Judges: Poland’s Constitutional Tribunal Caught Between Political Fronts, VerfBlog, 2015/11/23, http://verfassungsblog.de/midnight-judges-polands-constitutional-tribunal-caught-between-political-fronts/. On 29 th of August 2013 the President submitted a draft Act on the CC to Sejm. The rationale for the draft act was developed by a team (composed, among the others, of former CC judges) headed by the President of the CC. On 3 rd of October 2014 Sejm initiated works on the draft Act on the CC. On 1 st of April 2015 the Extraordinary Subcommittee on the draft Act on the Constitutional Court started to work on the draft. On 9 th of April 2015 the report of the Extraordinary Subcommittee was submitted by the President to Sejm. On 10 th of May 2015 the first round of presidential elections was held. Andrzej Duda obtained 34.76% of votes, while Bronislaw Komorowski 33.77%. Two weeks later, in the second round of elections Andrzej Duda obtained 51.55% of votes and won the elections.
Are international courts and advocacy group legal mobilization shaping human rights politics? This question poses a theoretical and empirical challenge to state dominated understandings of international litigation. This article theorizes the interaction between advocacy groups and the European Court of Human Rights and the role this participation plays in the enforcement and development of human rights. The analyses examine institutional factors shaping broad trends in mobilization complemented by two in depth studies examining a single mode of participation, amicus curiae and a single area of law, violence against women. The data identify the critical role standing rules, court review powers and group expertise play in transnational rights mobilization and development. The findings bring into question dominant understandings of international law and contribute to a more complex understanding of law in a global age where international courts and societal actors are shaping the direction of rights protection.
Este artículo explora los factores institucionales y políticos que permiten o impiden la consolidación de un Tribunal Constitucional en democracias en transición como la colombiana y la venezolana. Estas democracias, a su turno, son susceptibles de ser víctimas de intentos de constitucionalismo abusivo por parte de ejecutivos poderosos, fenómeno típico de democracias jóvenes. Este escrito analiza casos constitucionales exitosos y fracasados de Europa Central, Asia y Latinoamérica para efectos de identificar cuáles factores propician o frenan la posibilidad de un control de constitucionalidad efectivo en nuevas democracias. El artículo concluye que aspectos tales como la independencia judicial, la separación de los poderes, el prestigio de las Cortes y la deferencia judicial hacia otras ramas son cruciales para identificar si un Tribunal será exitoso.
Recent developments in Hungarian constitutional and judicial politics have given impetus to question not only the outcomes of democratisation and Europeanisation, but also the efficacy of the European Union’s compliance mechanisms. In 2010, Hungary, one of the forerunners in building democracy made the headlines with Fidesz’s attempts at adopting a new Constitution and implementing cardinal laws along with controversial institutional, cultural, religious, moral and socio-economic policies. This article attempts to depict the transformative power of the European Union within a sensitive policy area which touches upon States’
What made democratic politicians in Central and Eastern Europe exclude themselves from governance of the judiciary? Institutional change in the judiciary is investigated through a diachronic study of the Romanian judiciary which reveals a complex causal nexus. The classical model of the ‘external incentives’ of EU accession, while explaining a general drive toward revision, played an otherwise marginal role. An institutional template prevailed, promoted by an elite transnational community of legal professionals whose entrepreneurs steering the revision of governance of the judiciary after 1989. The parliamentarians, disempowered by this revision, offered no resistance—a ‘veto-player dormancy’ that stands revealed as pre-conditional to such transnational influences.
Many new democracies exhibit a disturbing lack of electoral competition. All too often, the first party to hold office creates a network of power and patronage that chokes off meaningful political challenge. These strong party democracies, with power often being held by the inheritors of the political mantle of those that led the opposition to prior authoritarian rule, exhibit a tendency toward the three "C's" of associated with the lack of accountability: clientelism, cronyism, and corruption. Such strong-party regimes and their associated pathologies present relatively new constitutional courts with a distinct set of controversies that necessarily bring the judiciary into conflict with consolidating political power. This article explores the form that judicial responses to the excesses of political dominance might take. Three courts are selected as exemplars of such responses. In the first instance, the Colombian Constitutional Court repudiated the attempt of President Uribe to amend the constitution to permit a third term in office, despite the lack of reasoning to support the rejection of a largely procedurally proper constitutional amendment. In the second, the South African Constitutional Court has scrupulously avoided any frontal confrontation with the current African National Congress government, instead casting its repeated rejection of government efforts to insulate itself from accountability in narrow procedural rulings or in rulings based on other, non-politically charged sources of law. Finally, there is the Thai Constitutional Court which, while providing the strongest jurisprudential defense of its intervention, appears an active ally of one partisan camp as the country hovers on the brink of civil war. Rather than offer any off-the-rack solution for the difficult realm of constitutional courts as democracy falters, this Article examines the relation between the issues presented to such courts and the fundamental absence of electoral challenge and accountability. To the extent these courts navigate this difficult terrain, the Article concludes, the decisive feature will likely be the ability to contribute to the establishment of a competitive electoral system able to constrain single-party dominance.
This paper examines the criminalisation of symbols of the past. It considers the 2011 judgment of the Polish Constitutional Tribunal. In this compact and well-ordered decision, the Tribunal, with reference to key European examples, assessed critically the constitutionality of criminal law provisions that prohibit the dissemination and public use of symbols of the past pertaining to fascist, Communist or other totalitarian content. Its ruling, which found amendments to the law in Poland that tightened up restrictions on the use of totalitarian symbols to be unconstitutional, is considered within three important contexts: first, the broad European context, where the concept of totalitarian crimes has become subject to EU human rights legislation relating to the freedom of expression; second, the context of post-dictatorial Europe, where specific states have addressed the use of totalitarian symbols in their respective criminal laws; and finally, the context of transitional justice, where criminalising symbols of the past has become a central and permanent feature in European narratives about justice. Significantly, these cases reveal the temporal element of transitional justice. The paper discusses the two case-studies most relevant to Poland, namely those in Germany and Hungary. Reference is also made to the Baltic States, which, together with Poland, have made a concerted effort to bring the notion of totalitarian crimes and histories to the attention of Europe. The paper concurs with the contention that cases concerning the use of symbols provide an excellent illustration of where memory and law intersect. Using historical, comparative and contextual methodologies the paper demonstrates the legal and philosophical complexities of criminal uses of symbolism, the political realities, and the key dimension of transitional justice and its relationship to expression, law and memory.
Mr. Hollander argues that the Princeton University Library's long-standing tradition of providing support for the nontraditional, nondoctrinal legal scholarship of its faculty and students can offer insights into what an increasingly interdisciplinary future may look like for law school libraries and librarians. After briefly documenting the rapid growth of the interdisciplinary nature of the study and practice of law and describing the history of legal studies at Princeton University, he identifies four types of interdisciplinary research questions and shows how the Princeton response to them can inform the discussion among law librarians about the changing nature of legal scholarship and reference.
This article provides an introduction to the basic institutional features of constitutional courts (CCs), as well as an overview of the small but growing comparative literature on their design, function, impact, and legitimacy. It presents the CC as an ideal type, with its own functional logics, and surveys the comparative scholarship seeking to explain commonalities and differences across systems. It emphasizes inter-disciplinarity, in part, because political scientists have been at the forefront of empirical research and, in part, because powerful CCs have shaped and reshaped their own political environments. Successful CCs routinely subvert separation of powers schemes, including elements on which their legitimacy was originally founded. In consequence, new legitimacy questions and discourses have emerged.
The Austrian Constitution discussed here is that of October 1, 1920, as valid on January 1, 1930; on that day the text of the Constitution was officially published by an act of the Austrian Chancellor in the Bundesgesetzblatt fur die Republik österreich (the official Gazette for the obligatory publications of statutes). All later amendments will not be considered because they were enacted under a semi-fascist régime and had the tendency to restrict the democratic control of the constitutionality of legislation.
"Eley brilliantly probes transformations in the historians' craft over the past four decades. I found A Crooked Line engrossing, insightful, and inspiring." --Lizabeth Cohen, author of A Consumers' Republic "A Crooked Line brilliantly captures the most significant shifts in the landscape of historical scholarship that have occurred in the last four decades. Part personal history, part insightful analysis of key methodological and theoretical historiographical tendencies since the late 1960s, always thoughtful and provocative, Eley's book shows us why history matters to him and why it should also matter to us." --Robert Moeller, University of California, Irvine "Part genealogy, part diagnosis, part memoir, Eley's account of the histories of social and cultural history is a tour de force." --Antoinette Burton, Professor of History and Catherine C. and Bruce A. Bastian Professor of Global and Transnational Studies, University of Illinois "Eley's reflections on the changing landscape of academic history in the last forty years will interest and benefit all students of the discipline. Both a native informant and an analyst in this account, Eley combines the two roles superbly to produce one of most engaging and compelling narratives of the recent history of History." --Dipesh Chakrabarty, author of Provincializing Europe Using his own intellectual biography as a narrative device, Geoff Eley tracks the evolution of historical understanding in our time from social history through the so-called "cultural turn," and back again to a broad history of society. A gifted writer, Eley carefully winnows unique experiences from the universal, and uses the interplay of the two to draw the reader toward an organic understanding of how historical thinking (particularly the work of European historians) has evolved under the influence of new ideas. His work situates history within History, and offers students, scholars, and general readers alike a richly detailed, readable guide to the enduring value of historical ideas. Geoff Eley is Professor of History at the University of Michigan.
In the former Eastern Bloc countries, one of the most difficult and important aspects of the transition to democracy has been the establishment of constitutional justice and the rule of law. Herman Schwartz's wide-ranging book, backed with rich historical detail and a massive array of research, is the first to chronicle and analyze the rise and troubles of constitutional courts in this changing region. "Those who are interested in understanding the behavior of constitutional courts in transitional regimes cannot afford to ignore this important book. . . . [It] is fecund with hypotheses of interest to political scientists, and we are indebted to Professor Schwartz for his comprehensive analysis."âJames L. Gibson, Law and Politics Book Review
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Hungarians Cheer New Republic's Proclamation, UPI
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Russian Court To Put Communist Party on Trial, UPI
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Third Power SuggestsRound Table Pravda (Moscow)
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Russian Judge Opposes Yeltsin on Direct Rule
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Judge Urges Yeltsin To Accept Compromise
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Russian Judge Says Court Tilts to Right
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Russian Federation Constitutional Court, Speech at International Press Center
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Russian Chief Justice, Parliament Speaker Attacked by Colleagues
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Russia Defers Constitutional Debate, Christian Sci. Monitor
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Constitutional Court: Will We Trade Gorbachev for Honecker?, Nezavisimaya Gaz, at 1, translated in Current Dig
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Yeltsin Calls for Nationwide Referendum, ITAR- TASS
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Chairman of the Russian Federation Constitutional Court, Speech to the 7th Congress of People's Deputies
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Russia's Fumbling Fathers
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