(STILL) A SYSTEM OF CHECK AND BALANCES? THE SEPARATION OF POWERS TO THE TEST OF MODERN TIMES II
Panel formed with individual proposals.
The paper aims at offering a modern account of the “political v. legal constitution(alism)“ debate, arguing that the dichotomy between the two is a largely outdated one, given the ‘normative turn‘ of the former. The existent more colourful institutional picture deserves a more nuanced account, since (among other reasons): (a) it is often the Parliament that gives room to the Constitutional Court and vice versa (see the Bundesverfassungsgericht‘s PSPP decision) - (b) the binarism between the Court and the Legislator does not hold anymore, as other players, such as independent authorities, or non-elected executive organs, supranational Courts etc are also significant - (c) taking sides presupposes a pre-hermeneutical theory of constitutional democracy, i.e. the mixture of liberalism and majoritarianism, the institutions serving each dimension and the balances between them.
Wednesbury unreasonableness is a central feature of English administrative law, but its theoretical foundations remain unclear. The three leading explanations – Parliament‘s intent, the rule of law, and a culture of justification – cannot sufficiently explain why courts should scrutinise the executive‘s weighing and balancing of relevant factors but should not themselves weigh and balance those factors. Here, I reconceptualise Wednesbury using Linda Zagzebski‘s definition of an epistemic authority: one whose ability to identify and weigh evidence in her epistemic domain is superior to laypersons‘, making her consciously-formed beliefs more likely to be true and thus deserving of pre-emptive force. Understanding Wednesbury as policing epistemic authority provides a sufficient explanation for it – courts should accord a decisionmaker‘s beliefs pre-emptive force but only if reached conscientiously – and settles boundary disputes between Wednesbury, rationality review and proportionality.
Last two years were very fluctuating on a field of Constitutional law resulting in a vast changes in judiciary. From initial conflict between Parliament and President of the Republic, on whether or not is the president obligated to appoint constitutional judges and general prosecutor, through nation wide protest, after the assassination of a journalist, leading to discovery of a corruption on the highest instances in the judiciary. A logical outcome of this chain of events is the biggest judicial reform in a modern history of Slovak republic. Said reform is ought to bring back the trust in judicial power, which is at the historic low. This analytic article focuses on two partial problems - a place of constitutional review in a system of national law, and evaluation of a new systematics in ordinary judiciary.
The judicialization of politics is a growing phenomenon in Brazil, with each STF Minister giving his particular rhythm to the analysis of cases. This essay intends to analyze to what extent an individual Minister can interfere in the results of relevant judgments, as it is not uncommon to observe episodes in which the Minister asks for more time to examine the case and indefinitely puts a halt in the proceeding's conclusion. What is the impact of not returning the cases? We face the hypothesis that the “request for examination“ is an instrument deliberately used by magistrates with the purpose of preventing the finalization of a court decision. To analyze this hypothesis, based on data made available by the Supreme Court itself, we gathered a quantitative analysis of cases that were awaiting the return of the request for examination at the STF in April 2021 and categorized how long these cases have been awaiting trial and which cases are awaiting trial for the longest time.
Who guards the guardians? The political role of the Judiciary implies the need to rebalance independence and accountability, through the qualification of judicial policy. A combination of the European Networks of Councils for the Judiciary‘s (ENCJ) indicators and Sherry Arnstein's Ladder of Citizen Participation seems to be useful to provide a more in-depth analysis of social accountability on the Brazilian judiciary. To test this hypothesis, we analyzed the judicial policy operated in Brazil by the National Council of Justice (CNJ), according to the indicators of the ENCJ and the Ladder of Participation. Our achieved reveal that the ENCJ's indicators can be met without increasing social accountability, because the level of participation and social control considered in the accountability mechanisms favor mainly passive citizens, putting them away from social responsibility. Thus, improving social accountability depends on the mechanisms that favor active citizenship.