(STILL) A SYSTEM OF CHECK AND BALANCES? THE SEPARATION OF POWERS TO THE TEST OF MODERN TIMES I
Panel formed with individual proposals.
There has been much debate about whether the UK‘s Parliament is in decline in regard to its ability to hold the executive to account. The executive exercises considerable power, both statutory & non-statutory, and effective legislative scrutiny of the executive is often regarded as being hampered by the Westminster system of parliamentary government. In light of the constitutional challenges that the UK is facing and the realisation that the uncodified constitution is liable to be abused and the accepted constitutional norms ignored, this paper asks whether a modified form of impeachment, reimagined for the 21st century, might offer a way for the House of Commons to take on a more proactive role as the guardian of the constitution. This paper will argue that there are strong constitutional justifications for the House of Commons playing such a role & in reformulating what is meant by impeachment and refocusing this to concentrate on protecting accepted constitutional norms.
Immunity has traditionally held, in the legal field, a strictly negative connotation since it alludes to all acts, institutions or individuals not subject to the law. This is why this quality has been traditionally attributed to the (political) power and, therefore, placed under suspicion in the rule of law. It has been, in short, a typical characteristic of the legibus solutus sovereign. However, with the advent of the Constitutional State, there are no longer immune powers, since they are all subject to the law. This being so, immunity neither has to do with the political power nor it can mean exemption from the law in modern legal systems. On the contrary, it should belong to the constitutional system itself: it must be immune in the sense of protected against contemporary attacks from powers seeking to subvert it. If the immunity of the ancients is the immunity of power, the immunity of moderns is the immunity of the Constitution as the Supreme Norm of the legal order.
Based on Rousseff's impeachment trial in Brazil, this paper aims to examine a fundamental variable of impeachment processes: its timing. The essence of the impeachment decision is to check whether the risk of a political breakdown is outweighed by the risk of maintaining a president who usurps her powers (Laurence Tribe and Joshua Matz). The speed with which the process is conducted is the main mechanism that regulates the incentives of the actors throughout the trial. Legislative perceptions of the President‘s performance are affected by key markers, such as mass protests and adverse media campaigns. As negative ratings gain momentum, the fastest the trial goes and the likeliest an ousting becomes. Moreover, an impeachment is more probable to occur, the further away the next presidential election is. The paper claims that the more political the trial is, the more it will be guided by opinion polls and electoral prospects and the less it will rely on legal redundancies (Robert Cover).
This article aims to analyze the question of the judiciary from the perspective of Dworkin, but not in a limited way. The teachings of this author are intended to point out realities that are distant from his own, focused on Brazilian today, a dual and antagonistic society, immersed in a serious constitutional and democratic crisis. It faces social and cultural inequalities that can only be overcome by guaranteeing the abstract and concrete precepts of its constitution. For that, an interpretation perspective is nedeed. A kind of perspective that repects not only the written constitution, but also the unwritten one, which is based on subjective orders of values and morality, on principles that respect the history, focus in order to guarantee equal respect and consideration to individuals. It is consistent to state that such an interpretation does not offend or violate the principle of separation of powers, because it is based on a constitutional democracy.
One of the most difficult challenges for someone exploring the concept of rule of law is to get lost in translation. Countries not sharing the Anglo-American legal tradition may find, in such a concept, nothing other than a highly imperfect equivalent. Yet, such translations are normally very reliant on normative assumptions and not rarely overlook how political forces and organizations achieve an “institutional equilibrium“ through behavioral incentives, thereby constraining and dispersing power among various organized interests. Drawing from the Brazilian experience, this paper seeks to examine how this distinct approach to the “rule of law“ may be more suitable for: a) connecting self-preservation to democratization processes - b) understanding the individuals‘ and institutions‘ noncompliance to the law and their resort to extralegal means - and c) exploring the impacts of social inequality on the quality of democratic institutions.