Hague Journal on the Rule of Law最新文献

Since the parliamentary elections in 2015 and the subsequent change in the personal composition of the Polish Constitutional Court, this institution is in crisis. The Court, once one of the main guardians of the rule of law and a model for the constitutional judiciary in the region of Central and Eastern Europe, is criticized. Judges are accused of lack of proper appointment and party subordination. Court activities are perceived as part of illiberal democracy and populist constitutionalism, that is, introducing majority rule by “switching off” the checks and balances mechanisms by democratically elected parties and groups. However, what is often overlooked in this type of analysis is the more internal perspective of jurisprudence and legal reasoning. What kind of decisions does the “populist” constitutional court issue? How does it justify its decisions? The paper will discuss three cases of the Polish Constitutional Court. The first case is from 2017 and concerns the right of assembly in connection with the introduction of a special category of “cyclical assemblies”. The second, of 2019, is the so-called “printer case”, which concerned the possibility of refusing to provide a service for reasons of conscience (a refusal to print a poster because of opposition to “LGBT promotion”). The third case is the controversial ruling narrowing access to abortion from 2020. The aim of the analysis is to answer the question of whether the current jurisprudence of the Court is the breaking or continuation of the previously dominant liberal constitutionalism. I will be particularly interested in whether these decisions introduce any changes at the level of possible rights holders (legal subjects), the introduction of a new or changed scope of existing rights, and new ways of resolving conflicts between rights.

Classic and new concepts of the separation of powers doctrine focus on the control of central political power. Institutional checks and balances are classic legal instruments of this control, especially the activity of independent state organs. In those countries where the political system is dominated by a populist government, the institutional checks and balances and independent institutions are under constant pressure. In a consolidated political system that has already departed from liberal constitutionalism and where constitutional institutions do function only in a formal sense (illiberal constitutionalism), institutional checks and balances lose their significance. However, in addition to the exercise of powers by independent branches of government, other legal institutions or actions can also have a significant impact on relations between branches of government, even informally. Therefore, the system of checks and balances can be described as a multi-layered structure with formal (classical) and informal elements. The article analyses in detail, how the use of informal constitutional amendments and national referendums—as additional institutions belonging to the complex system of separation of powers—instead of controlling the central political power, has contributed to the informal concentration of government power in Hungary in recent years.

Abstract

Article 4.2 TEU enshrines the EU’s respect for the exclusive right of each Member State to ensure its territorial integrity. No EU Member State allows referendums for part of the population to decide on the national territory. The Commission and European Council have recognized that the effect of a secession in a Member State is to leave the new state outside the EU. Whether or not European citizenship is retained is a matter not of European but national law, as European citizenship is an automatic complement to the nationality of a Member State. The position of the Commission and the European Council regarding the Catalan authorities’ illegal referendum and declaration of independence was to support the constitutional mechanism for intervention authorized by the Spanish Senate. Nationalisms erode the integration process by weakening the cohesion of states and undermining the equality of their citizens.

How should democratic states approach and respond to secessionist movements using tactics contrary to the constitution to achieve their goals? What is the role of international human rights mechanisms in these processes? This article sheds light on these questions by examining how the UN Human Rights Committee approached and assessed two complaints that came before it in the wake of the Catalan Declaration of Independence in 2017. The aim is to discuss the Committee’s examination of the merits in the two cases and the procedural hurdles faced. Specifically, it will analyse the effects of examining the merits in hindsight and the extent to which this perspective may have influenced its views. It will further reflect on the potential costs of acting with procedural flexibility towards the two complaints which, while driven by a sense of urgency, did not meet the threshold for irreparable harm. It is concluded that, while a protective stance towards petitioners is the bedrock of its mandate related to individual complaints, acting with such degree of flexibility risks undermining its procedural effectiveness and the integrity of its individual complaint procedure. It also made it come too close to act as a fourth instance in relation to facts that had already been examined by domestic courts by the time of its assessment. At the same time, it did not challenge Spain’s rule of law approach as such.

The exercise of public power by substate entities poses a challenge for international law. Although such entities lack international legal personality, their actions can have international significance and, because they are state organs, must always adhere to the international obligations assumed by the state. In Spain, the autonomous communities exercise broad powers, which, in the case of Catalonia (via the Generalitat), include education, healthcare, prisons and police. Research shows that the Generalitat has exercised – and, to some extent, continues to exercise – some of its powers in disregard of certain constitutional and legal obligations. This action by public authorities in disregard of the law can have international consequences, and various international organizations have expressed positions on it through their bodies. This paper examines these positions on the Generalitat’s actions in connection with the secession process and other related policies, including both those that have been critical of this behaviour and those that have expressed direct or indirect support for it. The practice of the European Union, the Council of Europe, and the UN Human Rights Council through its Special Rapporteur on minority issues is analysed.

The dominant way of thinking about the rule of law is that it is a constraint, a limit, on government. On this view the limitation applies with full force to all forms of government, democratic and undemocratic, and to both the executive and the legislative branches. The privileged institution for enforcing those limits is the courts. Democracy and the rule of law are, in effect, portrayed as though they were in opposition to one another. That, I claim, is a mistake (a) historically (for, in the Anglo-American tradition, the rule of law developed first as a restriction on an undemocratic executive, with a less undemocratic Parliament acting in concert with the courts to institute the rule of law); (b) in principle (for there is a strong argument that democracy needs the rule of law for its fullest expression, and the rule of law needs democracy); and (c) strategically (because it hinders us from mobilizing our full resources to protect both principles; this paper began its life as a response to populist movements, many of which, wrongly, are conceded to be democratic). In this paper I make that case, especially focusing upon its most controversial claim, namely that the rule of law needs democracy. This paper forms part of a larger project on democratic constitutionalism in which I reconsider key concepts in constitutionalism in a manner that takes democratic decision-making to be fundamental to contemporary constitutionalism.