(STILL) A SYSTEM OF CHECK AND BALANCES? THE SEPARATION OF POWERS TO THE TEST OF MODERN TIMES IV
Panel formed with individual proposals.
The paper examines judicial independence in the context of Georgia's obligations under the association agreement with the European Union towards promotion of the rule of law and independence of the judiciary. The article deals with the main Challenges of judicial independence in Georgia. According to the last legislative changes, the right to appoint judges was given to the High Council of Justice and for the first time judges were appointed for a lifetime. The parliament of elected a majority of the judges of the Supreme Court by a single-party majority and gained influence over the court, though most of appointed judges failed to meet the minimum requirements. The article discusses the selection of judges, the composition of the Council of Justice, the decision procedure and the disputes before the Constitutional Court. The article discusses the changes to the Constitutional Court, abolishment of a formal constitutional control and restriction of other powers, etc.
This paper is about the sharp increase of judicial harassment of activists in Europe and the absence of credible human rights mechanisms to improve their situation. Drawing from various case studies, it explores how a growing number of governments is vested with far-reaching competences and uses its powers to undermine the judicial process. Azerbaijan, for instance, has a long history of political motivated convictions against regime critics and being reminded by the international community to comply with human rights standards. Yet local courts found the activist Rasul Jafarov guilty of forgery after he had criticized the government at a public event and opted for disbarring the lawyer Khalid Bagirov after he had questioned the impartiality of Azerbaijan‘s judiciary. Hence, this paper looks at how judges abuse their powers to punish activists for their human rights work. It concludes with a critical assessment of the current human rights systems to fight judicial misconduct.
The goal of the paper is to draw attention to the changes in the constitutional judiciary in Poland which took place last year (2020- 2021) and the impact of the degradation of the Tribunal on the doctrine of liberal constitutionalism. The Tribunal in the current composition, as well as the ruling majority, have abandoned a certain game of appearances resulting from the existence of the constitutional court. The connection between the Tribunal and the government is evident, for example in the dispute over authority cases and the abortion case. The paradox of the position of the Constitutional Tribunal in an illiberal democracy in Poland is that despite the degradation of the position of this court, it is still a necessary institution. In some situations, it is an institution that is necessary for the government to achieve its goals. To some degree, ordinary courts are taking over the function of constitutional review and adjudicate on issues of great importance for human rights.
In this paper, I will argue that in the dialogue between the Legislature and the Judiciary as to the status of the latter, bills constitute an attractive strategic tool for the Legislature. In fact, it is argued that the bills' initiators do not necessarily intend their bills to mature into laws, as this is not always worthwhile to them, and they may use bills as a strategic “threat“ to the judiciary in order for it to align as closely as possible with their position. This argument - that a bill, in and by itself, has the power to motivate the judiciary to approach the bidders' position - is based, among others, on the adoption, with the required changes, of a model developed by Fred S. McChesney called “Rent Extraction“. In accordance with this model, legislators initiate bills aimed at extorting benefits from the body or the group that may be harmed by this legislation, in exchange for removing the proposal from the agenda.
The institutional life of Mexico has suffered an alteration that modifies its constitutional status by the draft Law that reforms the judicial branch to extend the tenure of the Chief Justice of the Supreme Court from 4 to 6 years. In this sense, an unprecedented event arises with the sum of legislative wills that agree with a qualified majority, assuming an unconstitutional position, since a transitory article is the basis for this amendment. Consequently, the constitutional hierarchy is violated, which causes the rupture of the constitutional order. This decision was adopted in the logic of the perverse game of power because the President pretends to subordinate, for political purposes, the administration of justice, under the logic of making the political and legal “coincide“ with its self-proclaimed project 4th Transformation. This will be analyzed from the concept of “people“, an abstract category which is the justification that encourages the rupture of the constitutional order.