(STILL) A SYSTEM OF CHECK AND BALANCES? THE SEPARATION OF POWERS TO THE TEST OF MODERN TIMES V
Panel formed with individual proposals.
The relationship between proportionality in general and its most controversial and in practice most significant step balancing in particular and the separation of powers has attracted significant literature already. This article aims to show that the notion of theorization can elucidate the relationship between judicial balancing and the separation of powers. In its first part the article sets out what the problem with proportionality and balancing and the separation of powers has been in practical terms. The second part sets out the core of the argument namely that we can make sense of the relationship between balancing and the separation of powers by relying on the concept of theorization. The third and fourth parts reflect on the how we can use the notion of theorization to understand the notion of deference and the factors that influence a courts capacity to theorize.
John Hart Ely was of opinion that there is no “risk of destruction“ of the US Supreme Court due to public animosity to its decisions, because this simply “isn‘t the way it works, and the justices know it“. With that thought, this paper will go back to the concept of sociological (descriptive) legitimacy of constitutional courts, which has been scantly discussed in theory in comparison to the normative and moral legitimacy. It will explore how the theories of descriptive judicial legitimacy can be applied to one of the third wave democracies, which adopted Kelsenian model of constitutional review, using Serbia as a case study. Finally, this paper will point out three factors which may negatively affect the legitimacy of the Serbian Constitutional Court and give reasons for public distrust: lack of transparency of judicial decision-making, untimely delivering of judgements and weak doctrinal justification of its decisions.
Throughout the 20th century, several civil law countries developed Judicial Councils to strengthen independence and transparency of the justice system. Brazil is one of the first countries in Latin America to adopt Judicial Council structures. In the current model, after the Constitutional Amendment No. 45/2004, which instituted both the National Council of Justice (CNJ) and the National Public Prosecutor's Council (CNMP), these collegiate bodies began their efforts to obtain social legitimacy and public accountability. The recent creation of the “National Observatory on Environmental, Economic, and Social Issues of High Complexity and Great Impact“, in 2019, reveals that, in Brazil, the Councils still crave public opinion support. How these partnerships take place in Brasil and what are your main results so far? Based on official reports produced by the National Observatory, this paper aims to describe and evaluate the initiative according to its institutional goals.
Functions of the State in a traditional constitutional democracies are divided among three independent organs. This prevents governmental excess and ensures accountability. When one organ of the State attempts to abuse its power, other organs may check such an attempt. This standard model also increases the costs of state capture by interest groups as they will have to bear the costs of swaying all three organs. However, we claim that although principally potent and effective, this system has failed the modern-day context. To prove the same, we use the example of India and conduct a case study of three purposively selected laws passed by the incumbent BJP Government - IT Rules, the Farm Bills and the Internet Suspension Rules. To remedy this, we suggest an ex-ante involvement of the Judiciary and an amendment of the legislative procedures as the way forward. This recommendation will have broader implications for constitutional theory and democratic governance beyond India as well.