Executive Discretion in Administering the Government's Rights and the Delegation Problem

2020 ◽  
Author(s):  
John C. Harrison
Keyword(s):  
Executive Discretion

scholarly journals Yudisialisasi Politik dan Sikap Menahan Diri: Peran Mahkamah Konstitusi dalam Menguji Undang-Undang

2016 ◽  
Vol 12 (3) ◽  
pp. 473
Author(s):  
Bisariyadi Bisariyadi
Keyword(s):  
Policy Making ◽  
Constitutional Court ◽  
Theoretical Justification ◽  
Policy Makers ◽  
Aggressive Approach ◽  
Legal Policy ◽  
State Institutions ◽  
Law And Policy ◽  
Executive Discretion ◽  
Judicialization Of Politics

In a review of the constitutionality of law or policy, the Constitutional Court can take an aggressive approach or choose to take self-restraint. Theoretical justification on the Court to change or made policy derived from the judicialization of politics. Global phenomenon indicates the shift of policy-making authority towards the judiciary. Consequently, policy makers shows resistence. Such conditions forced the Court to use a number of strategies to reduce political tensions between state institutions while at the same time the Court still protect the rights of citizens. The Court uses self-restraint approach to examine policies which in realm of legislative or executive discretion. This approach is referred to by the Court as an “open(ed) legal policy”. This study elaborates on the actions carried out by the Indonesian Constitutional Court to test the constitutionality of law or policy, both in the application of the judicialization of politics nor in the judicial restraint approach. In reality, the Court uses both of these approaches on review the constitutionality of law and  policy.

scholarly journals Woking of Advisory Boards in Maharashtra State: Serving Human Rights of Felons

2019 ◽  
Vol 8 (6S3) ◽  
pp. 1293-1298 ◽  
Keyword(s):  
Correctional Institution ◽  
Critical Approach ◽  
Judicial Process ◽  
Human Right ◽  
Advisory Boards ◽  
Executive Process ◽  
Statutory Power ◽  
Executive Discretion ◽  
The Government ◽  
Premature Release

Rationale behind construction of a “Sentence Review Board” in any State correctional institution in lies behind the progression of law originating from custodial and penal causes, to reformative and rehabilitative handling of lawbreakers wherein well-behaved and upright conduct, and rectified attitude are considered for as a key criterion for reduction of judicial sentence of imprisonment on personalized footing.In consonance of the statutory power granted, and focusing upon the guidelines issued by “Model Prison Manual 2003” through a notificationon December 1, 2015 the Home Department of the Government of Maharashtra formulated the amending rules to “Maharashtra Prisons (Review of Sentences) Rules, 1972” and restructured the “Advisory Boards,Special Advisory Boards and Medical Committees” constituted for the purpose of “pre-mature release” of the certain categorisedconvicts.As the provision for a premature release is “an executive exercise and not a judicial process”, “executive discretion in granting or denying” it raises certain grey areas in the criminal dispensation system in India. The present paper with an analytical and critical approach attempts to study the existing makeup of executive process of “pre-mature release of a felonwhich though is not a legal right, but is a human right to have his case considered for the grant of remission” in State of Maharashtra

Conceptualizing IO Emergency Powers

2019 ◽  
pp. 23-48
Author(s):  
Christian Kreuder-Sonnen
Keyword(s):  
International Law ◽  
International Organizations ◽  
The Political ◽  
Principal Agent ◽  
Member States ◽  
Political Autonomy ◽  
Emergency Powers ◽  
Power Differentials ◽  
Executive Discretion ◽  
The Common

This chapter introduces a constitutional perspective on international organizations (IOs) that foregrounds the legally constituted relationship between authority-holders and authority-addressees. Distinct from the common principal–agent perspective, it paves the way for understanding IOs’ crisis-induced authority-leaps as an assumption of emergency powers—an act defined as the constitutionally deviant widening of executive discretion at the expense of the political autonomy of the rule-addressees that is justified by exceptional necessity. The chapter taxonomizes the possible institutional embodiments of IO exceptionalism according to its constitution, reach, and intrusiveness and highlights its phenomenological differences with respect to domestic exceptionalism. Given the structural conditions of the international spheres of authority in which IO exceptionalism operates, it is expected to rely on the acquiescence of the most powerful member states, to be stratified in scope and application according to states’ power differentials, and to instrumentalize rather than openly suspend norms of international law.

Emergency! But What about Legal Protection in the EU?

2018 ◽  
Vol 9 (1) ◽  
pp. 99-119 ◽  
Author(s):  
Tom BINDER ◽  
Argyro KARAGIANNI ◽  
Miroslava SCHOLTEN
Keyword(s):  
Rule Of Law ◽  
Legal Protection ◽  
Case Law ◽  
Public Authorities ◽  
The Rule Of Law ◽  
Emergency Powers ◽  
Executive Discretion ◽  
Legal Position ◽  
Private Actors ◽  
The Eu

AbstractThe EU institutions and agencies have become increasingly involved in enforcing EU law directly vis-à-vis private actors. A number of such EU entities have also acquired the so-called emergency powers, which allow interference with the legal position of a private party. Given the lack of research in this area, the question that this article addresses is whether relevant safeguards have been introduced to ensure the rule of law in such situations to prevent the abuse of executive discretion by public authorities. What are the relevant safeguards in the emergency in the EU in the first place? Having analysed relevant EU legislation and case law, the article offers a complete overview of all the existing EU entities with the emergency powers and shows a great diversity in the extent to which the EU legislator has regulated procedural safeguards in relevant law. The article discusses what safeguards need to be ensured in an emergency and argues for clarity of legislative frameworks in this respect.

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