scholarly journals Constitutional Amendment by Stealth

2015 ◽  
Vol 60 (4) ◽  
pp. 673-736 ◽  
Author(s):  
Richard Albert
Keyword(s):  
Rule Of Law ◽  
Constitutional Amendment ◽  
Democratic Legitimacy ◽  
Constitutional Change ◽  
Constitutional Convention ◽  
The Rule Of Law ◽  
Political Actors ◽  
The Government ◽  
Institutional Actors ◽  
Distinguishing Features

Constitutional amendment ordinarily channels public deliberation through formal, transparent, and predictable procedures designed to express the informed aggregated choices of political, popular, and institutional actors. Yet the Government of Canada’s proposed senator selection reforms concealed a democratically problematic strategy to innovate an informal, obscure, and irregular method of constitutional change: constitutional amendment by stealth. There are three distinguishing features of constitutional amendment by stealth—distinctions that make stealth amendment stand apart from other types of informal constitutional change: the circumvention of formal amendment rules, the intentional creation of a convention, and the twinned consequences of both promoting and weakening democracy. Constitutional amendment by stealth occurs where political actors consciously establish a new democratic practice whose repetition is intended to compel their successors into compliance. Over time, this practice matures into an unwritten constitutional convention, and consequently becomes informally entrenched in the constitution, though without the democratic legitimacy we commonly associate with an amendment. In this article, I theorize constitutional amendment by stealth from legal, theoretical, and comparative perspectives, and consider its consequences for the rule of law.

scholarly journals Living Constitution in Indonesia: The Study of Constitutional Changes Without A Formal Amendment

Lentera Hukum ◽  
2020 ◽  
Vol 7 (1) ◽  
pp. 69
Author(s):  
Muhammad Addi Fauzani ◽  
Nur Aqmarina Deladetama ◽  
Muhammad Basrun ◽  
Muhammad Khoirul Anam
Keyword(s):  
House Of Representatives ◽  
The State ◽  
Constitutional Amendment ◽  
Constitutional Court ◽  
Constitutional Change ◽  
Political Will ◽  
Constitutional Convention ◽  
State Institutions ◽  
The Government ◽  
Constitutional Changes

The discussion regarding the living constitution in Indonesia has been increasingly important. The importance of this discussion deals with to the extent it has developed, particularly after Indonesia's constitutional amendment from 1999 to 2002. The current study of constitutional change in Indonesia, as a result of the constitutional amendment during Reformation, adds an emphasis on its change without a formal amendment. Thus, this paper will discuss the urgency of enforcing the amended 1945 Constitution in the lens of the living constitution and how to uphold it through the living constitution. This study uses doctrinal research and, in examining the case, it uses the statutory and conceptual approaches. The result of the study shows that the urgency of upholding the constitution through the living constitution relies on the concept of the living constitution that can dynamize the 1945 Constitution. In response to difficulties to formally amend the 1945 Constitution that depends on political will and rigid juridical condition, there should be a shift in the method of interpretation of the constitution by the Constitutional Court judges, from originalism to the living constitution. The enforcement of the 1945 Constitution through the living constitution can apply the constitutional convention and the interpretation by constitutional judges. This study suggests that the Government and the House of Representatives and other relevant state institutions can use the living constitution, by taking into account the constitutional convention is a source in the organization of the state to patch up the weaknesses of the constitution. Keywords: Living Constitution, Constitutional Changes, Formal Amendment.

Conclusion

2019 ◽  
pp. 261-272
Author(s):  
Richard Albert
Keyword(s):  
United States ◽  
Great Britain ◽  
Costa Rica ◽  
Rule Of Law ◽  
The United States ◽  
Constitutional Amendment ◽  
Constitutional Change ◽  
Democratic Values ◽  
The Rule Of Law ◽  
Careful Thought

There are presently too few resources to guide constitutional designers in building the rules of constitutional amendment. This chapter offers a roadmap for designing constitutional amendment rules. As is true of building an edifice, constructing the rules of constitutional change requires careful thought about design and operation. This chapter explains that amendment rules are organized around four sets of fundamental choices requiring designers to set the foundations of the polity, to choose among pathways to initiate, propose and ratify an amendment, to select specifications that will put the foundations and pathways into operation, and finally to determine how and where amendments will be recorded. This chapter also explains that formal amendment as a practice reflects the democratic values of the rule of law, including predictability, transparency, and publicity. There are of course advantages to informal amendment and methods of change that violate the codified rules of change, but there are even greater democracy-enhancing virtues that are possible only with formal amendment. This chapter considers constitutions from Austria, Costa Rica, Great Britain, India, Ireland, Spain, Switzerland, and the United States.

DEKADENSI PEMILIHAN HAKIM AGUNG OLEH DPR RI

2020 ◽  
Vol 14 (1) ◽  
pp. 73-104
Author(s):  
Rustam Magun Pikahulan
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
House Of Representatives ◽  
Good Governance ◽  
Constitutional Court ◽  
Due Diligence ◽  
The Rule Of Law ◽  
The Supreme Court ◽  
Institutional Status ◽  
The Government

Abstract: The Plato's conception of the rule of law states that good governance is based on good law. The organization also spreads to the world of Supreme Court justices, the election caused a decadence to the institutional status of the House of Representatives as a people's representative in the government whose implementation was not in line with the decision of the Constitutional Court. Based on the decision of the Constitutional Court No.27/PUU-XI/2013 explains that the House of Representatives no longer has the authority to conduct due diligence and suitability (elect) to prospective Supreme Judges proposed by the Judicial Commission. The House of Representatives can only approve or disapprove candidates for Supreme Court Justices that have been submitted by the Judicial Commission. In addition, the proportion of proposed Supreme Court Justices from the judicial commission to the House of Representatives (DPR) has changed, whereas previously the Judicial Commission had to propose 3 (three) of each vacancy for the Justices, now it is only one of each vacant for Supreme Court Judges. by the Supreme Court. The House of Representatives no longer has the authority to conduct due diligence and suitability (elect) to prospective Supreme Judges proposed by the Judicial Commission. The House of Representatives can only "approve" or "disagree" the Supreme Judge candidates nominated by the Judicial Commission.

Is Xenophobic Violence and Criminality Systemic in Post-Apartheid South Africa? A Critical Analysis of Growing Denialism to 2015 Incidents

Politeia ◽  
2018 ◽  
Vol 37 (1) ◽  
Author(s):  
Mbekezeli Comfort Mkhize ◽  
Kongko Louis Makau
Keyword(s):  
South Africa ◽  
Rule Of Law ◽  
Critical Analysis ◽  
Hate Crime ◽  
International Organisations ◽  
Foreign Nationals ◽  
The Rule Of Law ◽  
South Africans ◽  
Structural Problems ◽  
The Government

This article argues that the 2015 xenophobic violence was allowed to spread due to persistent inaction by state officials. While the utterances of King Goodwill Zwelithini have in part fuelled the attacks, officials tend to perceive acts of xenophobia as ordinary crimes. This perception has resulted in ill-advised responses from the authorities, allowing this kind of hate crime against foreign nationals to engulf the whole country. In comparison with similar attacks in 2008, the violent spree in 2015 is characterised by a stronger surge in criminal activities. The militancy showcased fed a sense of insecurity amongst foreigners, creating a situation inconsistent with the country’s vaunted respect for human rights and the rule of law. Investors lost confidence in the country’s outlook, owing in part to determined denialism in government circles regarding the targeting of foreigners. While drawing from existing debates, the article’s principal objective is to critically examine the structural problems that enable xenophobia to proliferate and the (in)effectiveness of responses to the militancy involved in the 2015 attacks. Of particular interest are the suggested responses that could be effective in curbing future violence. The article concludes that xenophobia is systemic in post-apartheid South Africa. Strong cooperation between the government, national and international organisations could provide the basis for successful anti-xenophobia measures. The article further argues that the country is obliged to find a sustainable solution to the predicament for humanitarian reasons firstly, and in recognition of the support South Africans received from its African counterparts during the liberation struggle.

Harmonisasi terhadap Peraturan Daerah No. 14 Tahun 2006 tentang Pengelolaan Pelestarian Kawasan Konservasi Laut Daerah dalam Perlindungan Pulau Pariwisata Kabupaten Indramayu

2019 ◽  
Vol 1 (2) ◽  
pp. 142
Author(s):  
Saiful Kholik ◽  
Imas Khaeriyah
Keyword(s):  
Rule Of Law ◽  
Local Governments ◽  
Environmental Law ◽  
Policy Formulation ◽  
Marine Conservation ◽  
Environmental Damage ◽  
Conservation Area ◽  
The Rule Of Law ◽  
The Government ◽  
The Impact

Inconsistency Regional Regulation No.14 of 2006 about marine conservation area of the island of Biawak, Gososng, which Cendekian provides protection but in fact failed to provide protection as evidenced by dredging island sandbar and cendekian conducted PT.Pertamina UP VI Balongan INDRAMAYU. The problem in this research How Formulation Policy Act No. 10 Year 2009 on the Indonesian Tourism with the Indramayu Regional Regulation No. 14 of 2006 regarding marine conservation area of the island of Biawak, Gososng, Cendekian And How Harmonization Act No. 10 of 2009 with the Indramayu Regional Regulation No. 14 of 2006 regarding formulation Act No. 10 Year 2009 on the Indonesian Tourism with the Indramayu Regional Regulation No. 14 of 2006 about marine conservation area of the island of Biawak, Gososng, Cendekian, the purpose of this research to understand and analyze the extent to which policy The findings of the community or field of law local governments about the environmental damage done by companies or individuals are not equal accordance with regional regulations in force, nor the Law in force so that the function of law in society indramayu not fit the mandate to establish a change and justice based Formulation public corporate criminal liability.Inskonsitensi happens to local regulation No.14 of 2006 makes no harmonized with the regulations of each other so that the impact of this inskonsistensi makes the sector particularly environmental law enforcement get uncertainties that result in coastal communities Indramayau.Conclusion Harmonization of regulations of the center and regions delivering the policy formulation of the rule of law area to comply with the regulations above in order to avoid inconsistency, the occurrence of this inconsistency resulted in the rule of law and justice for the indramayu, suggestion that the government should was nearly revise regulations related area, especially the government must dare to take action to give effect to the perpetrator deterrent effect rule-based running as well as possible.

Lawyers as Activists

2018 ◽  
Author(s):  
Michael C. Dorf ◽  
Michael S. Chu
Keyword(s):  
United States ◽  
Social Media ◽  
Social Change ◽  
Civil Rights ◽  
Rule Of Law ◽  
The United States ◽  
The Rule Of Law ◽  
Court Action ◽  
The Government ◽  
Trump Administration

Lawyers played a key role in challenging the Trump administration’s Travel Ban on entry into the United States of nationals from various majority-Muslim nations. Responding to calls from nongovernmental organizations (NGOs), which were amplified by social media, lawyers responded to the Travel Ban’s chaotic rollout by providing assistance to foreign travelers at airports. Their efforts led to initial court victories, which in turn led the government to soften the Ban somewhat in two superseding executive actions. The lawyers’ work also contributed to the broader resistance to the Trump administration by dramatizing its bigotry, callousness, cruelty, and lawlessness. The efficacy of the lawyers’ resistance to the Travel Ban shows that, contrary to strong claims about the limits of court action, litigation can promote social change. General lessons about lawyer activism in ordinary times are difficult to draw, however, because of the extraordinary threat Trump poses to civil rights and the rule of law.

scholarly journals Irlanda : reforma constitucional versus convención constitucional : análisis del déjà vu de Irlanda desde la perspectiva de la reforma constituciónal española

2012 ◽  
pp. 411
Author(s):  
Esther Villadangos Seijas
Keyword(s):  
Sovereign Debt ◽  
Political System ◽  
Debt Crisis ◽  
Constitutional Amendment ◽  
Constitutional Change ◽  
Constitutional Convention ◽  
The Public ◽  
Doing Business ◽  
Regulatory Systems ◽  
Full Force

El presente artículo se centra en el estudio de la gestación de la crisis económica en Irlanda y en el análisis de las respuestas constitucionales a la misma. En primer lugar se analiza el papel de la reforma constitucional, estudiando el mecanismo diseñado en los arts. 46 y 47 de la Constitución. El carácter preceptivo del referéndum ha reforzado la implicación social en un total de 23 reformas aprobadas hasta la fecha. De especial trascendencia, como reacciones constitucionales ante el contexto de crisis, podemos destacar la reforma de 2011 relativa a la reducción del salario de los jueces y la afrontada en 2012, como consecuencia de la ratificación del Tratado de Estabilidad. Un segundo contenido de este trabajo expone una «relativa» novedad en el panorama constitucional, la de la Convención Constitucional. Concebida como un órgano deliberativo y participativo, estamos ante un mecanismo que trata de paliar una común demanda de las democracias actuales de fomentar la participación social como complemento a las limitaciones de los cauces parlamentarios tradicionales, subyugados a demasiadas lealtades, partidistas, endogámicas que impiden el ejercicio de sus funcione de canalización de la voluntad popular en el seguimiento de los asuntos públicos.This article focusses on Irish answers to the economic crisis. The full force of the sovereign debt crisis has been affected Ireland from 2008. The failures in the policy-making and regulatory systems have caused a critical eye on traditional ways of doing business in the political system and the public service. The paths that Ireland has followed are two. First, the constitutional amendment mechanism. It pays attention to constitutional precepts that ruler this constitutional reform, mainly articles 46 and 47. The referendum has developed a key element in this system. Ireland has developed 23 constitutional reforms nowadays. The second important element is a Constitutional Convention. This body will allow a group of randomly selected citizens to deliberate and make recommendations upon a number of areas of political reform. Many of the changes envisaged offers an space for reflection about the viability of a macro political and constitutional change strategy that the bailout require.

scholarly journals Powers and Limits of State during COVID-19 Pandemic: a Critical Appraisal

Yuridika ◽  
2021 ◽  
Vol 36 (3) ◽  
pp. 663
Author(s):  
Iwan Satriawan ◽  
Devi Seviyana
Keyword(s):  
Rule Of Law ◽  
House Of Representatives ◽  
Critical Appraisal ◽  
Balance Of Power ◽  
The State ◽  
Fundamental Rights ◽  
State Of Emergency ◽  
The Rule Of Law ◽  
Power Limits ◽  
The Government

The research aims to analyze the power and limit of the state and whether Indonesia has properly adopted the concept of powers and limits during state emergency of COVID-19 pandemic. The method of the research was normative legal research which used statute and case approach were employed for data analysis. The result shows that a state may apply some types of power in an emergency condition. However, in using its powers, the government must consider principle of limits in a state of emergency. In fact, Indonesia does not properly adopt the balance of power and limit in the state of emergency during COVID-19 pandemic. It is true that the government may take actions to respond to the COVID-19 pandemic. However, the State cannot exceed the limitations of using powers in accordance with state emergency principle. There was a tendency to exceed the limits by the State during the pandemic. The State has violated some state of emergency principles during COVID-19 pandemic such as temporary, the rule of law, necessity, proportionally, intangibility, constitutionalism, harmony, and supervision. The research recommends that the Government and the House of Representatives (the DPR) in the future should obey the state of emergency principles, particularly in terms of state power limits to respect constitutional principles and rule of law. In addition, individuals, groups of people, or organizations may submit judicial review of laws or regulations that violate the state of emergency principles in handling pandemic in the light of protecting the fundamental rights of citizens.

scholarly journals Functions of the state: concepts, classifications, scientific interpretations

1970 ◽  
pp. 406-410
Author(s):  
Marharyta Butsan
Keyword(s):  
Rule Of Law ◽  
Public Life ◽  
The State ◽  
Political Life ◽  
Historical Period ◽  
Legal Form ◽  
The Rule Of Law ◽  
The Government ◽  
Cultural Functions ◽  
State Functions

In the article the concept of state functions, realizing which the state carries out a targeted management impact on various spheres of a public life. They show that the government should do to achieve and implement the goals and tasks that lie before him in a certain historical period. Purposes of the functions of the state are the results that must be obtained in implementing the functions, goals can be immediate, intermediate, ultimate. On one stage of historical development, priority may be given to economic, the other political or socio-cultural functions, the third function of defense, etc. At the beginning of its inception, the state played a very small list of functions. The contents of most of them was of a pronounced class character. The functions manifest national characteristics of the country, because the state is obliged to provide the geopolitical interests of the ethnic group, to support the development of national culture, language, and the like. The contents and the list of functions to a large extent depend on the nature of the state, its social purpose in public life. The main duty of the state to maintain a level of social organization that would ensure not only the preservation of the integrity and prosperity of society as a whole, but also the needs of individuals. The article studies scientific approaches with respect to interpretation of the concept of functions, given the existing classification of state functions: the areas of activities of the state, duration and the like. The analysis of existing functions in Ukraine. The human rights function is currently the most relevant. Advocacy function has the expression in activities that are aimed at protecting the rights and freedoms of man and citizen, the rule of law and the rule of law in all spheres of public and political life. The peculiarities of exercise of the functions of the state are divided into legal and organizational. The legal form is a homogenous activity of state bodies related to the adoption of legal acts. Organizational form is a homogenous activity of the state aimed at creating organizational conditions to ensure functions of the state. In Ukraine there are three main forms of implementation of the activities of the state depending on types of activities: legislative, Executive, judicial. The basis for this separation is the provision of the Constitution of Ukraine, which is highlighted in these branches of government. In the implementation of all main functions of the state are actively involved all types of public power in Ukraine.

scholarly journals KEDUDUKAN DAN TANGGUNGJAWAB PRESIDEN DALAM SISTEM PRESIDENSIAL DI INDONESIA

2018 ◽  
Vol 2 (2) ◽  
pp. 173-190
Author(s):  
Moh Hudi
Keyword(s):  
Rule Of Law ◽  
Chief Executive ◽  
The Rule Of Law ◽  
The People ◽  
Head Of State ◽  
Presidential System ◽  
Before And After ◽  
The Government ◽  
Head Of Government

The Government system greatly determines the position and responsibility of the president. Even in the same system of government, the president’s position and responsibility may change, depending  on   The  Rule  of   Law  in a particular country. The position and responsibility of the president in the presidential system in Indonesia has change several times. This can be seen before and after the amandement. President in presidential   System   as  Head  of  Government  and   Head  of   State. So that the president has broad authority. The president is not responsible to the parliament, because institutionally the parliament is not higher than the president as the chief executive, but is responsible to the people as voters.

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