The US government has employed torture, drone assassination, and suspended due process in its “War on Terror. These methods have been criticized on moral grounds for violating basic principles of justice and constitutional grounds for usurping power not delegated to the executive. My critique focuses on a third overlooked factor. I show that many actions undertaken in the war on terror are simply not law governed. I am not claiming that officials or judges have misinterpreted the law. Rather, I argue that certain actions do not meet the criteria of law like behavior as understood by any conception of law. Using theorists as disparate as Hart, Raz, Fuller and Dworkin, I will show that the policies fail to meet the criteria of any rule or principle governed theory of law. Applying these theories to the use of torture and the military commissions at Guantanamo I will show that that the requirements of law as producing reasons for action are not met in these cases.
This paper tells the story of an iconic decision in India: DC Wadhwa v State of Bihar. The Indian Constitution authorizes the executive to enact temporary legislation provided certain conditions are met. Can the executive repeatedly promulgate the same ordinance? In Wadhwa the court said no: Repromulgation negates the system of separated powers, and renders the legislature irrelevant. But a small window of exception was left open: In some cases, the executive could do so. The decision was an instant classic. How has the executive performed since? The paper looks at two levels of data. I study the frequency with, and the jurisdictional breath for, which Wadhwa has been cited. I also look at repromulgation since 1986. The data yields contradictory results. As a precedent, Wadhwa is a bright star. But repromulgation continued well in the 1990s. The Union executive took to it since the 1990s. As a result, Wadhwa is both a hallowed precedent, and an unenforced decision.
The executive branch wields a considerable amount of power. If this power, however, is abused or captured by third parties it may have dire consequences for a state’s democratic system, people, and economy. Recently the situation in South Africa with regard to the President (national execuitve) has become increasingly strained. The South African President seems to be under siege from all sides. The relationship between the President, the legislature and other political role players has become characterised by conflict and litigation. The paper will firstly strive to analyse recent South African judgments which address these issues. Secondly the paper will strive to indicate how the abuse of executive power leads to unhealthy developments in democratic systems and weakens the democratic fabric of society. Thirdly the paper will include a comparative analysis, where after the paper concludes with remarks on the importance of checks and balances in order to protect a state’s democracy.
Canada prides itself as an exemplar of democracy and the rule of law. It has constitutionally entrenched fundamental rights and freedoms and scores highly on studies assessing the quality of its legal system. Yet its clean bill of health and sterling reputation abroad masks the less positive reality of lawmaking in 21st century Canada. Most laws in Canada are not made in Parliament, but are made directly by the executive through an opaque process carrying none of the traditional safeguards of the parliamentary process. This occurs through Parliament delegating its lawmaking powers to the executive through sweeping grants of authority, a practice upheld by the Supreme Court of Canada as constitutionally sound. This paper examines executive lawmaking in Canada, assessing scrutiny mechanisms and drawing implications for conceptions of democracy. It concludes that Canada must strengthen its accountability mechanisms to maintain its claim as a world leader in democracy and the rule of law.
In 2017, three laws concerning the status of the judiciary in Poland were passed: a new law on the Supreme Court and laws amending acts on the National Council of the Judiciary and on the organisation of common courts. However, a number of their provisions evidently violate the constitution and have been highly criticised by prominent legal scholars. The legislative and executive powers have obtained many instruments with which they might interfere with the autonomy of the judiciary. In this presentation, I will examine new controversial competences of the Minister of Justice. They include, i.a. the power to appoint presidents of courts without any opinions of judicial bodies, the power to discretionally dismiss them in an interim period specified in the statute, and the new significant powers in judicial disciplinary proceedings. These competences, along with those that already existed, constitute a serious danger for the independent system of the dispensation of justice in Poland.
Despite claims about the “hollowing-out” of the state, governments worldwide are still focused on policymaking through various bureaucratic structures. But who controls this apparatus? In the US, the common response is that the president possesses most levers of control over the administrative state. In this paper, I argue that similar reality exists in parliamentary systems in relation to prime ministers and, consequently, that governing around the world has increasingly become the task of chief executives. The paper uses the case studies of the UK, Canada, & Australia to demonstrate this claim. It documents the techniques PMs used to centralize control in their own hands and the legal and constitutional justifications advanced for them. The paper compares the case studies and seeks to draw from this discussion lessons for ongoing debates on the “presidentialization” of politics, the evolution of constitutional conventions, and the suitability of current accountability structures.