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51. Legal Positivism: AN Obstacle in the Process of Strengthening the Rule of Law in Bosnia and Herzegovina

Author:
Benjamin Nurkic
Publication Date:
03-2021
Content Type:
Journal Article
Journal:
Journal of Liberty and International Affairs
Institution:
Institute for Research and European Studies (IRES)
Abstract:
So far, a legal positivism issue in the process of strengthening the rule of law in Bosnia and Herzegovina was not recognized by the wider academic community. The expert report on rule of law issues in Bosnia and Herzegovina addresses, for the first time, legal positivism as a part of the process of strengthening the rule of law in Bosnia and Herzegovina. This paper is an attempt to gather, and in one place present all the advantages offered by the constitutional system of Bosnia and Herzegovina that were not used by its institutions due to the application and implementation of legal positivism. This paper demonstrates misguided reform policies whose sole purpose was the strengthening of the rule of law in Bosnia and Herzegovina but turned to be just superficial adjustments that were unsuccessful. The paper argues the necessity of legal education reform as the key element in the process of strengthening the rule of law. Legal education reform is possible through the reduction of legal positivism impact on future lawyers, and this will be accomplished by the change in the paradigm of legal understanding among future lawyers who will make important decisions on the rule of law in Bosnia and Herzegovina. Two strategic objectives must be met in terms of legal education reform for the strengthening of the rule of law: the development of a critical stance towards legal provisions in force and training in the use of international instruments during the decision-making process.
Topic:
Law, Reform, Constitution, Rule of Law, and Legal Aid
Political Geography:
Europe and Bosnia and Herzegovina

52. Lgitimisation of Autocracy in Turkey and Russia through the Review of the Constitution

Author:
Etleva Paplekaj
Publication Date:
06-2021
Content Type:
Journal Article
Journal:
Journal of Liberty and International Affairs
Institution:
Institute for Research and European Studies (IRES)
Abstract:
The review of the constitution emanates from the constitution, from the institute of constitutional review of which the latter is closely related to the dynamic processes in society as well as with the demand for sustainable stability, stability which very well it may be economic, political or social, national or international, the stability that affects even the constitutional order itself in a state. In this article, we will address the constitutional changes, the amendments over the years In Turkey and Russia which are 'proof' of the violation of the constitutional order, 'proof' of the impinging of democracy and stability in the country. Through this article, we will see that the constitutional system, rule of law, democracy or its consolidation, the stability in the country to a large extent are influenced by the way it is conducted the constitutional review process. The application or non-application of this instrument has multi-dimensional effects, negative, destabilizing ones.
Topic:
Reform, Democracy, Constitution, Political stability, Rule of Law, and Institutionalism
Political Geography:
Europe and Turkey

53. Refouling Rohingyas: The Supreme Court of India's Uneasy Engagement with International Law

Author:
Malcolm Katrak and Shardool Kulkarni
Publication Date:
06-2021
Content Type:
Journal Article
Journal:
Journal of Liberty and International Affairs
Institution:
Institute for Research and European Studies (IRES)
Abstract:
The complex relationship between international and municipal law has been the bone of significant scholarly contention. In the Indian context, despite a formal commitment to dualism, courts have effected an interpretive shift towards monism by espousing incorporation of international law. The case of Mohammad Salimullah v. Union of India, which involves the issue of deportation of Rohingya refugees from India, represents a challenge in this regard owing to the lack of clarity as to India’s obligations under the principle of non-refoulement. The paper uses the Supreme Court’s recent interim order in the said case as a case study to examine India’s engagement with international law. It argues that the order inadequately examines the role of international law in constitutional interpretation and has the unfortunate effect of ‘refouling’ Rohingyas by sending them back to a state where they face imminent persecution.
Topic:
Human Rights, International Law, Law, Minorities, Constitution, and Discrimination
Political Geography:
India and Asia

54. Enforcement of the European Union Law Before the Albanian Constitutional Court and the High Court

Author:
Gentjan Skara and Bojana Hajdini
Publication Date:
09-2021
Content Type:
Journal Article
Journal:
Journal of Liberty and International Affairs
Institution:
Institute for Research and European Studies (IRES)
Abstract:
With the entry into force of the Interim Agreement in 2005 between the EU and Albania, Albanian judges had the obligation to partly apply several provisions of the agreement (the EU law) even in the pre-accession stage. This position was reinforced in 2009, with the ratification of the Stabilisation and Association Agreement, which laid down the obligation of the Albanian government to approximate its existing and future legislation in line with EU acquis and ensure proper implementation. Consequently, as of 2009, Albanian courts had to apply the EU law. The application of the EU law by Albanian courts entails the duty of judges with a twofold task: firstly, to construe their arguments in line with EU law or as close as possible, and secondly, to set aside the domestic law which is found to be incompatible with the EU law. This paper outlines some Albanian courts' decisions concerning applying the EU Law before accession to the European Union. The paper argues that Albanian judges have adopted a ‘Euro-friendly’ approach by referring to the EU Law and SAA agreement even in the pre-accession period. Nevertheless, looking closely at court decisions, the EU law is applied as a persuasive source of law to support the court’s decision and not to explain the importance of relying on EU law or CJEU case law.
Topic:
International Cooperation, International Law, European Union, and Constitution
Political Geography:
Europe and Albania

55. Constitutional or Unconstitutional: Is That the Question?

Author:
Eya Jrad
Publication Date:
08-2021
Content Type:
Working Paper
Institution:
Arab Reform Initiative (ARI)
Abstract:
On 25 July 2021, Tunisian President Kais Saied dismissed Prime Minister Hichem Mechichi and froze the Assembly of the Representatives of the People, creating a constitutional crisis in a country already embattled by dire COVID-19 conditions. This paper aims to contribute to the ongoing debate on the constitutionality of the measures taken by Kais Saied, by examining both the text of the Constitution and the context to argue that a contextual interpretation is needed in order to adjust to the dynamic nature of societies.
Topic:
Democracy, Constitution, State Formation, Legislation, Pandemic, COVID-19, and Political Crisis
Political Geography:
Africa and Tunisia

56. Rebuilding Constitutionalism and Rule of Law in Zimbabwe

Author:
Stephen Buchanan-Clarke and Sikhululekile Mashingaidze
Publication Date:
08-2021
Content Type:
Policy Brief
Institution:
Good Governance Africa (GGA)
Abstract:
Recommendations to the Zimbabwean government Commit to a new, inclusive pathway for a mediated, citizen-centred national dialogue to align with and enact the principles set out in the Zimbabwe Constitution of 2013, to resolve the current constitutional crisis and legitimacy question. Comprehensive legal, political, and economic reform is critical. Commit to the drafting and passing of a comprehensive electoral law consistent with the 2013 Constitution that guarantees the independence of the Zimbabwe Electoral Commission (ZEC), allows for the appointment of an independent ZEC chair from outside of Zimbabwe, and prevents government from interfering with the work of the commission. Ensure a comprehensive delimitation exercise, extend the voter registration process, and ensure there is a transparent and comprehensive verification process to develop a credible voters’ roll. This would include allowing independent interested stakeholders from civil society, the media, and opposition parties access to inspect the voters’ roll prior to elections. Promote a free and fair election campaign environment for all players, and actively guard against voter intimidation by establishing a special body to investigate complaints of political violence and allow external independent observers early access to all voting stations prior to election day. Restore independence and citizen trust in the county’s public institutions through, for example, the institution of an independent and impartial judicial committee tasked with restoring judicial independence and making recommendations for complete judicial reform, to eradicate judicial corruption, ensure the independence of judges and improve the functioning of the courts. End partisanship in the police force, starting with undertaking investigations into allegations of human rights violations against the Zimbabwe Republic Police (ZRP) and other security sector agencies, and ensuring those responsible for such abuses are held accountable under the law.
Topic:
Government, Human Rights, Reform, Elections, Constitution, Rule of Law, Police, and Inclusion
Political Geography:
Africa and Zimbabwe

57. Zimbabwe media policy briefing

Author:
Sikhululekile Mashingaidze and Stephen Buchanan-Clarke
Publication Date:
10-2021
Content Type:
Policy Brief
Institution:
Good Governance Africa (GGA)
Abstract:
The 2013 Zimbabwean Constitution’s well-articulated provisions for media freedom are in stark contrast to the fragility of the country’s current media landscape, 41 years after the attainment of independence. The Zimbabwe Media Commission (ZMC) is a constitutional body mandated with functions that include the duty to uphold, promote and develop media freedom, enforce good practices and ethics, as well as fair competition and diversity. However, that the ZMC chairperson and its eight other members are presidential appointees poses a challenge for ZMC’s operational independence. The 2013 Constitution’s Part 5. Section 248. Part 1a) notes that a chairperson is ‘…appointed by the President after consultation with the Committee on Standing rules and orders;’ and Part b cites eight other members appointed by the President from a list of 12 nominees submitted by the same committee. This is a structural problem within the Constitution itself, as it enables disproportionate executive influence and curtails the commission’s independence in its primary mandate to uphold, promote and develop freedom of the media. Sections 61 and 62 of the Constitution, however, outline ordinary citizens’ and journalists’ rights to freedom of expression, freedom of the media and the right of access to information. Although subject to restrictions in contexts of defence, public security, or professional confidentiality, these freedoms include citizens’ right of access to information for public accountability and stipulate journalists’ right to protection of the confidentiality of their sources of information. The Constitution further specifies the freedom of all state-owned media to independently determine the editorial content of its broadcasts, be impartial and afford fair opportunity for the representation of divergent views and dissenting opinions.
Topic:
Governance, Media, Constitution, and Journalism
Political Geography:
Zimbabwe and Africa

58. An ethics perspective to South Africa’s civilian intelligence governance regime

Author:
Lincoln Cave and Richard Jurgens
Publication Date:
12-2021
Content Type:
Journal Article
Journal:
The Africa Governance Papers (TAGP)
Institution:
Good Governance Africa (GGA)
Abstract:
The role of national security entities in public administration, with specific reference to civilian intelligence structures, is a public policy issue of concern and interest across the globe, particularly with regard to questions of governance and public accountability. Governments need intelligence services to serve national and/or political interests, but these must, by nature, operate in conditions of secrecy. The gap between these two elements can be a source of misgovernance and/or abuse of power. We argue that the credibility of South African intelligence structures has been negatively impacted by failures and omissions of accountable governance since the emergence of a democratic dispensation in 1994. In particular, the article focuses on the effects of politicisation on effective governance of the country’s intelligence function. We propose an ethical governance model, framed by a transformative approach and grounded in ethical stewardship, as a way to give effect to constitutionally defined expectations regarding the purpose and management of the country’s intelligence function.
Topic:
Intelligence, National Security, Governance, Reform, Ethics, Constitution, Legitimacy, Values, Independence, Oversight, Decision-Making, Illegal Behavior, Politicization, and Utilitarianism
Political Geography:
Africa and South Africa

59. The rule of law in Poland or the false argument about the primacy of European law

Author:
Eric Maurice, Emilie Malivert, and Ana Pasturel
Publication Date:
11-2021
Content Type:
Policy Brief
Institution:
Robert Schuman Foundation (RSF)
Abstract:
On 24 November, the Polish Constitutional Tribunal ruled that the European Convention on Human Rights was partially incompatible with the country's constitution. In July and October, it had issued similar rulings on the Treaty on European Union (TEU). This double decision comes as the European Commission suspended the approval of Poland's €36 billion recovery plan, including €23.9 billion in EU grants, due to concerns about the rule of law. On 19 November, the Commission also sent a letter to the Polish government as a prelude to the launch of a procedure that could lead to the suspension of EU funds under the budgetary conditionality regulation. The confrontation between the Polish government and the European institutions, primarily the Commission and the European Court of Justice, has been presented by the Polish government as a struggle of principle between the primacy of European law, which was allegedly being imposed excessively on Member States, with "the national legal order and the supreme force of the Constitution” being under threat. The Polish Prime Minister, Mateusz Morawiecki, explained that the implementation of EU law, as requested by the CJEU, would lead to "a fundamental lowering of the constitutional standards of judicial protection of Polish citizens, and unimaginable legal chaos". Beyond the grandstanding and responses in support of an effort to defend the sovereignty of peoples, it appears that the weakening of these constitutional norms in recent years in Poland is precisely what has led the Constitutional Tribunal to partly denounce the TEU (European Union) and the European Convention on Human Rights (Council of Europe), and that the quarrel over the primacy of European law is essentially a smokescreen to hide this situation.
Topic:
Human Rights, Sovereignty, Constitution, Rule of Law, Institutions, and Norms
Political Geography:
Europe and Poland

60. Democratic Backsliding in Poland on Example Drafts Amendments in Electoral Code During the COVID-19 Pandemic

Author:
Maciej Skrzypek
Publication Date:
01-2021
Content Type:
Journal Article
Journal:
Polish Political Science Yearbook
Institution:
Polish Political Science Association (PPSA)
Abstract:
The COVID-19 pandemic occurred in Poland during the campaign before the presidential election scheduled for May 10. This non-military threat changed the election campaign’s dynamics, leading to an unprecedented failure to hold elections and postponing them. Around the changes in the election procedure, many constitutionalists and political scientists voiced their inconsistency with the law and the provisions of the Constitutional Tribunal. Both the proposed provisions and the manner of their organization raised objections. The article classifies these changes as manifestations of democratic backsliding, weakening democratic institutions and leading to a decline in the quality of democracy. The research goal is to analyze the records in the selected source material and relate them to the selected theoretical category (democratic backsliding). In the course of the research, the following hypothesis is verified: in the face of the COVID-19 epidemic in Poland, attempts by the ruling elite to change the provisions related to organizing the presidential elections scheduled for May 10 are an example of democratic backsliding, which, by weakening democratic institutions, has threatened the constitutional provisions and the essence of the democratic system.
Topic:
Elections, Democracy, Constitution, Public Health, Pandemic, and COVID-19
Political Geography:
Europe and Poland