This article reflects on Bosnia-Herzegovina, Kosovo and North Macedonia. The biggest challenge in post-conflict settlements, usually concluded with peace agreements mediated by the international community, remains how to bridge the divide that the conflict and its origins has caused between the parties formerly in conflict. Frequently, the design of a new constitution with the international community’s assistance becomes imperative as a peace-building compromise between warring factions over resources and power. Internationally designed constitutions represent a tremendous opportunity, the outcomes of which can have significant impacts on the peace and stability of a state and the sustainability and quality of its democracy. However, the political compromises translated in to constitutional guarantees aiming to reflect and reinforce a fragile peace and empowering the population, can undermine later attempts at democratic reform and jeopardise the long-term stability of the state.
Since Rule of Law not only constraints but also enables and even legitimates power, it is not unheard of that Rule of Law becomes a tool in the hands of government, particularly of populist or illiberal governments, thus becoming a Rule by law than a Rule of law. However, even abuse of Rule of Law proves that the concept is still alive and valid as a standard. The particular case of Romania displays a case where apparent adherence to a rather formal conception on the Rule of Law has managed to awaken a last resort instrument for a more meaningful approach of the concept. Indeed, in Romania civil society has so far succeeded in demonstrating that values can overcome obsolete institutional practices and a substantive Rule of Law can be proactively required by citizens prior to being fully appropriated by the state, thus demonstrating that the ideal of the Rule of Law is resilient even when confronted with is own decay.
In the past years there were various cases in Germany in which politicians, ranging from local to state level, decided that they would not comply with legally binding court decisions, even of the Federal Constitutional Court. The presentation examines the risks of this development to the Rule of Law in Germany as well as possible remedies. The analysis will be based on the paper “Gafus, Tobias: Markus Söder gegen den Rechtsstaat, VerfBlog, 2019/11/17, https://verfassungsblog.de/markus-soeder-gegen-den-rechtsstaat”, DOI: https://doi.org/10.17176/20191117-205650-0
In Colombia’s recent history, is has become evident how presidential re-election – even if it is only for one additional period – has the virtue to put in risk structures of the Rule of Law; this, given the importance of the president in the institutional design of Colombia. And even though the possibility of reelection in Colombia was maintained until 2015 and partially served to conclude the peace agreement between the government and the FARC in 2016, its elimination with respect to future presidential elections in Colombia ensures to maintain the Colombian “hyper-presidentialism” in historically tolerable proportions.
But this is not sufficient. Indeed, normative powers which traditionally have been accumulated in the figure of president and which have been substantially maintained with the social and pluralist Colombian Constitution of 1991, have inhibited the strengthening of a parliamentary and participative democracy and thus the legitimacy of the Colombian State.