scholarly journals Megapolitical Cases before the Constitutional Court of Indonesia since 2004: An Empirical Study

2018 ◽  
Vol 4 (2) ◽  
pp. 157
Author(s):  
Björn Dressel ◽  
Tomoo Inoue
Keyword(s):  
Executive Branch ◽  
Constitutional Court ◽  
Constitutional Democracy ◽  
Judicial Decision ◽  
Data Set ◽  
Judicial Decision Making ◽  
The Public ◽  
Strategic Behaviour ◽  
High Profile ◽  
The Impact

The Constitutional Court of Indonesia is considered one of Asia’s most activist courts. Here we investigate empirically possible determinants of the decisions of its judges over the period 2003–18. The findings are based on a unique data set of 80 high-profile political cases, complemented by data on the socio-biographic profiles of 26 judges who served during that period. Testing for common perceptions of the Constitutional Court since its inception, we first describe patterns in judicial decision-making across time and court composition before testing specifically for the impact of the judges’ professional backgrounds, presidential administrations, the influence of the Chief Justice, and cohort behaviour. The analysis finds declining dissent among justices on the bench over time and also provides evidence of strategic behaviour of justices at the ending of their own terms. But there is little statistical evidence that judicial behaviour has been affected by work background (except for those coming from the executive branch), appointment track or generation – hence suggesting that justices seem to retain more independence than the public seems to perceive. We then discuss the results in the context of Indonesia’s evolving constitutional democracy and look at the implications for comparative studies of judicial behaviour.

Mimoprávní vlivy na rozhodování českého Ústavního soudu

2021 ◽  
Author(s):  
Hubert Smekal ◽  
Jaroslav Benák ◽  
Monika Hanych ◽  
Ladislav Vyhnánek ◽  
Štěpán Janků
Keyword(s):  
Decision Making ◽  
Public Opinion ◽  
Strategic Decision ◽  
Strategic Decision Making ◽  
Constitutional Court ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
The Media ◽  
Book Studies ◽  
The Impact

The book studies other than purely legal factors that influence the Czech Constitutional Court judges in their decision-making. The publication is inspired by foreign models of judicial decision-making and discusses their applicability in the Czech environment. More specifically, it focuses, for example, on the influence of the judge’s personality, collegiality, strategic decision-making or the impact of public opinion and the media. The book is based mainly on interviews with current constitutional judges.

scholarly journals Authoritarian Dimension of Judicial Ideology of the Slovenian Constitutional Court

2020 ◽  
Vol 20 (4) ◽  
pp. 733-760
Author(s):  
Jernej Letnar Černič
Keyword(s):  
Constitutional Court ◽  
Individual Rights ◽  
Constitutional Democracy ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
The Rule Of Law ◽  
The Past ◽  
Judicial Ideology ◽  
Constitutional System ◽  
Independent Functioning

After the democratization and independence of Slovenia, the Constitutional Court has generated the paradigm reform in the Slovenian constitutional system by protecting individual rights against the heritage of the former system. The constitutional judges are not blank slates, but individuals embedded in their private and professional environments. In the past three decades, the Court has delivered several seminal decisions concerning the protection of the rule of law, human rights, and constitutional democracy. What motivates constitutional judges to protect individual rights in some cases and show preference for the preservation of authority and stability of the existing legal system in others? The article is based on the empirical research measuring the presence of judicial ideology at the Constitutional Court of Slovenia in three mandates (1993–1997, 2002–2006, 2011–2016). The methodological and theoretical model aims to measure economic, social, and authoritarian dimensions of judicial ideology (three-fold judicial ideology model). The research group has analysed the decisions and separate opinions of the Constitutional Court from selected periods based on hypotheses provided by the model. This article intends to present and analyse the research results concerning the authoritarian dimension of judicial ideology. More specifically, it examines the level of authoritarianism of the Slovenian Constitutional Court in its judicial decision-making during the three mentioned mandates. Through the obtained empirical results, the paper seeks to strengthen fair, impartial, and independent functioning of the Slovenian Constitutional Court and its respective judges.

‘Guardian of the Solemn Pact’ – The Role of the Constitutional Court in South Africa’s Constitutional Transition

2020 ◽  
Vol 23 (1) ◽  
pp. 355-385
Author(s):  
Brynne Guthrie
Keyword(s):  
South Africa ◽  
Political Context ◽  
Constitutional Court ◽  
Constitutional Democracy ◽  
Unique Role ◽  
The Public ◽  
The Impact

The Constitutional Court of South Africa has played a unique role in the country’s constitutional transition. This paper starts by detailing the historical and political context of the Interim Constitution which created the Constitutional Court and the constitutional principles. The article describes the approach of the Court in the First Certification Judgment (1996), analysing the impact of the Constitutional Court’s decision on the drafting of the final Constitution and the public more generally, before briefly outlining the role that the Court continues to play in protecting constitutional democracy as a ‘Guardian of the Solemn Pact’.

Politics and the Federal Court of Malaysia, 1960–2018: An Empirical Investigation

2020 ◽  
pp. 1-32
Author(s):  
Björn DRESSEL ◽  
Tomoo INOUE
Keyword(s):  
Judicial Politics ◽  
Federal Court ◽  
Political Conflict ◽  
Personal Attributes ◽  
Constitutional Democracy ◽  
Data Set ◽  
The Rule Of Law ◽  
High Profile ◽  
Religion And Ethnicity ◽  
The Impact

Abstract Since its inception in 1957, Malaysia’s Federal Court (FC) has often been embroiled in high-profile decisions that have dramatically shaped the rule of law and constitutional practice in Malaysia. Recent political change has renewed hope that the FC can reassert its early role as an independent and impartial arbiter of political conflict. This paper investigates determinants of the FC’s behaviour since 1960. It draws on a unique data set of 102 major political cases and socio-biographic profiles of the 73 judges who voted in these cases. After describing patterns of court decisions across time and judges, we test specifically for the impact on their decisions of the 1988 judicial crisis, length of time on the bench, the terms of successive prime ministers, and judges’ personal attributes, such as religion and ethnicity. Ethnicity, appointment after 1988, and the appointing prime minister proved to be closely associated with the direction of voting. We then position the results in the context of Malaysia’s evolving constitutional democracy and discuss their implications for students of comparative judicial politics.

The Constitutional Court of South Africa: Thoughts on its 25-Year-Long Legacy of Judicial Activism

2021 ◽  
Vol 56 (1) ◽  
pp. 18-33
Author(s):  
Lucky Mathebe
Keyword(s):  
South Africa ◽  
Constitutional Court ◽  
Transformative Change ◽  
Democratic Accountability ◽  
Constitutional Democracy ◽  
The Public ◽  
Crime And Punishment ◽  
Black And White ◽  
Marginalised Groups

After almost 25 years of what could justifiably be called transformative change in South Africa, a truism is that the country’s new legal order, established by the Constitution in 1993 and 1996, provides the critical foundation of peace and security upon which its freedom has been built. The Constitutional Court was one of the most important of the new democratic institutions in the shaping of the country’s position as a constitutional democracy, upholding the values for which millions of people, black and white, had fought. This article is a brief reflection on the role of the Court in establishing the meaning of this democracy and giving it effect. The main goal of the article is to understand how the Court’s new jurisprudence works in particular contexts, how its work is related to crime and punishment, and what it means for the rights of marginalised groups in society. Using the examples of the Court’s decision in Makwanyane on the death penalty, and the Court’s decision on the findings of the Public Protector’s report on Nkandla, the article finds that the Court’s new jurisprudence takes quite a different view of legal developments in South Africa, insofar as the jurisprudence entrusts broad discretion to the Court and emphasises the need for sustained leadership of the Court to advance the battle for fundamental human rights, the rule of law, and democratic accountability.

scholarly journals The Value of Behavioral Economics for EU Judicial Decision-Making

2020 ◽  
Vol 21 (2) ◽  
pp. 240-264
Author(s):  
Christoph K. Winter
Keyword(s):  
Decision Making ◽  
Behavioral Economics ◽  
Hindsight Bias ◽  
Judicial Decision ◽  
Behavioral Economic ◽  
Judicial Decision Making ◽  
Fundamental Freedoms ◽  
Cognitive Illusions ◽  
Proportionality Test ◽  
The Impact

AbstractThis Article analyzes the value of behavioral economics for EU judicial decision-making. The first part introduces the foundations of behavioral economics by focusing on cognitive illusions, prospect theory, and the underlying distinction between different processes of thought. The second part examines the influence of selected biases and heuristics, namely the anchoring effect, availability bias, zero-risk bias, and hindsight bias on diverse legal issues in EU law including, among others, the scope of the fundamental freedoms, the proportionality test as well as the roles of the Advocate General and Reporting Judge. The Article outlines how behavioral economic findings can be taken into account to improve judicial decision-making. Accordingly, the adaptation of judicial training concerning cognitive illusions, the establishment of a de minimis rule regarding the scope of the fundamental freedoms, and the use of economic models when determining the impact of certain measures on fundamental freedoms is suggested. Finally, an “unbiased jury” concentrating exclusively on specific factual issues such as causal connections within the proportionality test is necessary, if the hindsight bias is to be avoided. While it is of great importance to take behavioral economic findings into account, judicial decision-making is unlikely to become flawless based on natural intelligence. Despite bearing fundamental risks, artificial intelligence may provide means to achieve greater fairness, consistency, and legal certainty in the future.

How Judges Use Weapons of Influence: The Social Psychology of Courts

2013 ◽  
Vol 46 (1) ◽  
pp. 7-24
Author(s):  
Guy Davidov ◽  
Maayan Davidov
Keyword(s):  
Social Psychology ◽  
Decision Making ◽  
Case Law ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
The Public ◽  
The Social ◽  
The Face ◽  
Decision Making Processes ◽  
The Government

Research on compliance has shown that people can be induced to comply with various requests by using techniques that capitalise on the human tendencies to act consistently and to reciprocate. Thus far this line of research has been applied to interactions between individuals, not to relations between institutions. We argue, however, that similar techniques are applied by courts vis-à-vis the government, the legislature and the public at large, when courts try to secure legitimacy and acceptance of their decisions. We discuss a number of known influence techniques – including ‘foot in the door’, ‘low-balling’, ‘giving a reputation to uphold’ and ‘door in the face’ – and provide examples from Israeli case law of the use of such techniques by courts. This analysis offers new insights that can further the understanding of judicial decision-making processes.

4 Germany: Balancing Rights and Duties

2007 ◽  
Author(s):  
Kommers Donald P
Keyword(s):  
The United States ◽  
West Germany ◽  
Constitutional Court ◽  
Judicial Decision ◽  
Constituent Power ◽  
Judicial Decision Making ◽  
East And West Germany ◽  
Basic Law ◽  
Positive Rights ◽  
Federal Constitutional

Germany's constitutional charter, adopted in 1949, is entitled the Basic Law. The Basic Law had evolved into one of the world's most admired constitutions, even rivalling that of the United States in influence and prestige around the world. So when the day of unity finally arrived in 1990, East and West Germany merged under the imprint of the Basic Law itself. Today, in both structure and substance, although frequently amended, it remains the constitutional text of reunited Germany. This chapter discusses the constitutive assembly of Germany, constituent power and reunification, general features of the Basic Law, supremacy of the constitution, constitutional structure, amending process, the Federal Constitutional Court, problems of constitutional interpretation, conception of the constitution, negative and positive rights, horizontality of rights, sources of interpretation, approaches to interpretation, the civil law tradition, and style of judicial decision-making.

scholarly journals A Source Like Any Other? Field and Survey Experiment Evidence on How Interest Groups Shape Public Opinion

2021 ◽  
Author(s):  
Andreas Jungherr ◽  
Alexander Wuttke ◽  
Matthias Mader ◽  
Harald Schoen
Keyword(s):  
Interest Groups ◽  
Interest Group ◽  
Large Scale ◽  
Group Communication ◽  
Survey Experiment ◽  
Moderating Effects ◽  
The Public ◽  
High Profile ◽  
Low Profile ◽  
The Impact

Abstract Interest groups increasingly communicate with the public, yet we know little about how effective they are in shaping opinions. Since interest groups differ from other public communicators, we propose a theory of interest group persuasion. Interest groups typically have a low public profile, and so most people are unlikely to have strong attitudes regarding them. Source-related predispositions, such as credibility assessments, are therefore less relevant in moderating effects of persuasive appeals by interest groups than those of high-profile communicators. We test this argument in multiple large-scale studies. A parallel survey and field experiment (N = 4,659) establishes the persuasive potential of low-profile interest groups in both controlled and realistic settings. An observational study (N = 700) shows that substantial portions of the public are unable to assess interest group credibility. A survey experiment (N = 8,245) demonstrates that credibility assessments moderate the impact of party but not interest group communication.

scholarly journals Book Review: Moseneke D All Rise: A Judicial Memoir (Pickado Africa Johannesburg 2020)

2021 ◽  
Vol 24 ◽  
pp. 1-6
Author(s):  
Hoolo 'Nyane
Keyword(s):  
Decision Making ◽  
Decision Making Process ◽  
Constitutional Court ◽  
Judicial Decision ◽  
Same Sex ◽  
Judicial Decision Making ◽  
Chief Justice

The contribution is the review published by former Deputy Chief Justice, Dikhang Moseneke, about his illustrious 15-year term in the Constitutional Court as both the judge and Deputy Chief Justice. The book uniquely provides a rare window into the dynamics of judicial decision-making at the apex court. Often, legal academics only interact with the judiciary through the judgements. Yet, Moseneke gives the reader much more to the judicial decision-making process than just the judgements. The book further traverses one of the most controversial aspects of the Constitutional Court’s jurisprudence, such as same-sex marriages, succession to chieftainship.

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