Constitutional judges (guarantee of the Constitution and responsibility)

My aim in this paper is to propose a reflection on the position and the importance that the constitutional judge has in the legal systems of contemporary constitutionalism. The figure of the judge responsible of protecting the Constitution is a key institution, without which we cannot understand the laws of constitutional democracies, their current lines of development, and the guarantee of rights and freedoms that constitute the normative core of these systems. Moreover, the reflection on the exercise of the powers of the judge, its scope and its justification is an important part of contemporary legal discussion, still relevant, albeit not exclusively - in the field of legal philosophy. The object of attention of my reflection is the judge who has the power of judicial review, in a scheme of defense of the Constitution, regardless the specific ways of this defense.

A justiciabilidade do princípio geral da igualdade

O presente trabalho versa sobre a aplicação do princípio da igualdade pelo Poder Judiciário. Busca-se analisar de que maneira o mandamento constitucional de igualdade se concretiza no contexto jurídico-evolutivo enquanto princípio de norma de controle, que é justamente no âmbito em que ele é justificado pelo órgão jurisdicional. Saber até onde o juiz constitucional pode ir, conhecer seus limites de atuação, parcos ou largos, definíveis ou nubilosos, bem como o que vem contido nessa vertente do princípio que o distingue de um enunciado geral da igualdade, faz dessa dissertação um estudo interdisciplinar, mas que não deixa de ser voltado para o entendimento jurídico-normativo dessa função específica do princípio. A conhecida fórmula da proibição do arbítrio recebe uma leitura que não é inovadora, mas que almeja aferir a sua suficiência no exercício daquela função. Ou algo mais vem a ser exigido do princípio? Desde já uma resposta de tal envergadura não pode ser encontrada sem o retrato da jurisprudência respectiva. Por isso que, ao fim, e sem a pretensão de esgotamento, se optou por conhecer alguns dos julgados do Tribunal Constitucional português sobre o tema proposto. A indicação da disfunção ou não do perfil da referida Corte com a posição doutrinária só pode ser resultante da análise conclusiva sobre o tema. Fica o convite à leitura.

Análisis de la función supletoria del juez constitucional de tutela respecto del desarrollo de la Política Pública de Derechos Humanos en Colombia

Este trabajo está estructurado de manera deductiva, partiendo de una descripción general de la Política Pública de Derechos Humanos en Colombia, para lograr establecer la forma en que interviene el juez constitucional de tutela en su desarrollo. Para estos efectos, se procede posteriormente al estudio del caso particular de la política de Derechos Humanos respecto de la población desplazada, en aras de determinar la influencia de la sentencia T-025 de 2004 en la política objeto de estudio. De este modo, el presente trabajo pondrá en evidencia la dinámica de movilización judicial del juez constitucional de tutela en lo concerniente a los procesos de fijación de la agenda y las políticas públicas.

Neocostituzionalismo e positivizzazione dei valori

This doctoral thesis seeks to make a comprehensive analysis of neoconstitutionalism, studying their manifestations in constitutional law and doctrine. Neoconstitutionalism, as a new manifestation of constitutional phenomenon that emerged after World War II, is characterized by the need to take any legal possession of certain premises, materials of an immovable, coinciding with the fundamental human rights, which will fall outside the potential political majorities, and become its cornerstone. These assumptions are intended as safeguards needed to protect human dignity and the democratic system itself against anyone, even taking advantage of a power obtained democratically which intends to demolish the pillars of democracy and to establish tyranny. The Constitution is enshrined as a basic rule of real system, a repository of these fundamental rights, the observance by public authorities becomes inexcusable. This will involve a role for judicial review in its protection. Thus, supremacy of the constitution, deepening respect for and promotion of fundamental rights and role of constitutional judge as the guarantor of its validity are the bases of neoconstitutionalism, a legal phenomenon not only current, but evolving.

Legitimidad del régimen de estampillas departamentales en Colombia

Análisis de la dinámica legitimadora de la Corte Constitucional en el tributo de estampillas, considerado desde la jurisdicción departamental, en el Estado colombiano.

The rights to a hearing and to a lawful judge in the spanish constitutional system

Right to Audience and Right to a Lawful Judge are presumed to be two of the most important guaranties for the rule of law. Both liberties are established in the Spanish Constitution of 1978 as “fundamental rights”, and they are included as a part of a most generic right: the right to due process of law. Along this text, I will try to show its content and significance, according to the sentences of the Spanish “Tribunal Constitucional”, passed through more than 25 years.

Patriotism or Integrity?:Constitutional Community in Divided Societies

Some commentators worry that a plurinational constitutional order can only ever be an inherently unstable modus vivendi. They fear that the accommodation of sub-state nationalism will tend to undermine the viability of constitutional democracies. This article enlists Ronald Dworkin’s theory of ‘law as integrity’ to show how these concerns might be assuaged. My central claim is that the expressive value of integrity can drive a divided society in the direction of an eventual community of principle, even in the absence of a common political identity. I argue that this model of political community is a more plausible prescription for divided societies than the theory that competing nationalisms might be superseded by constitutional patriotism. I go on to explain, however, that integrity has a better chance of realizing this potential if the generally judge-centric focus of Dworkin’s theory is expanded to make greater room for non-judicial interpretative responsibility. Occasional references are made to the example of Northern Ireland to illustrate my points.

Judicial Impartiality and Independence in Divided Societies: An Empirical Analysis of the Constitutional Court of Bosnia-Herzegovina

The role of Constitutional Courts in deeply divided societies is complicated by the danger that the salient societal cleavages may influence judicial decision-making and, consequently, undermine judicial independence and impartiality. With reference to the decisions of the Constitutional Court of Bosnia-Herzegovina, this article investigates the influence of ethno-nationalism on judicial behaviour and the extent to which variation in judicial tenure amplifies or dampens that influence. Based on a statistical analysis of an original dataset of the Court’s decisions, we find that the judges do in fact divide predictably along ethno-national lines, at least in certain types of cases, and that these divisions cannot be reduced to a residual loyalty to their appointing political parties. Contrary to some theoretical expectations, however, we find that long-term tenure does little to dampen the influence of ethno-nationalism on judicial behaviour. Moreover, our findings suggest that the longer a judge serves on the Court the more ethno-national affiliation seems to influence her decision-making. We conclude by considering how alternative arrangements for the selection and tenure of judges might help to ameliorate this problem.

How do customers of a financial services institution judge its communications

Communications are important for relationships within a marketing channel from both a theoretical and managerial perspective. Yet it is a problematic area for scholars. Thus, this research addresses the problem of how do customers of a financial services institution perceive communications with an ideal institution? This study's case research methodology used in-depth interviews with 34 carefully selected customers of a building society. The factors that make up customers' attitudes about corporate communications for an ideal financial services institution were identified and actual perceptions were compared against that ideal. The findings confirmed the importance of communications for customers in a relationship with a financial services provider and suggested communication priorities for customers in this context. In addition, the findings suggested sources of communication dissatisfaction for customers. These findings build upon the literature that speculates about customer perceptions of communications with organizations but provides little evidence to support hypotheses. The contributions arose from the emphasis on the customers' own attitudes and the patterns found within them.

Voter behaviour and constitutional change in Australia since 1967

Australian Constitutional referendums have been part of the Australian political system since federation. Up to the year 1999 (the time of the last referendum in Australia), constitutional change in Australia does not have a good history of acceptance. Since 1901, there have been 44 proposed constitutional changes with eight gaining the required acceptance according to section 128 of the Australian Constitution. In the modern era since 1967, there have been 20 proposals over seven referendum votes for a total of four changes. Over this same period, there have been 13 federal general elections which have realised change in government just five times. This research examines the electoral behaviour of Australian voters from 1967 to 1999 for each referendum. Party identification has long been a key indicator in general election voting. This research considers whether the dominant theory of voter behaviour in general elections (the Michigan Model) provides a plausible explanation for voting in Australian referendums. In order to explain electoral behaviour in each referendum, this research has utilised available data from the Australian Electoral Commission, the 1996 Australian Bureau of Statistics Census data, and the 1999 Australian Constitutional Referendum Study. This data has provided the necessary variables required to measure the impact of the Michigan Model of voter behaviour. Measurements have been conducted using bivariate and multivariate analyses. Each referendum provides an overview of the events at the time of the referendum as well as the =yes‘ and =no‘ cases at the time each referendum was initiated. Results from this research provide support for the Michigan Model of voter behaviour in Australian referendum voting. This research concludes that party identification, as a key variable of the Michigan Model, shows that voters continue to take their cues for voting from the political party they identify with in Australian referendums. However, the outcome of Australian referendums clearly shows that partisanship is only one of a number of contributory factors in constitutional referendums.

Don’t judge a superannuation default investment option by its name

With the massive decline in savings arising from the Global Financial Crisis (GFC), it is timely to review superannuation fund investment and disclosure strategies in the lead-up to the crisis. Accordingly, this study examines differences among superannuation funds’ default investment options in terms of naming and framing over three years from 2005 to 2007, as presented in product disclosure statements (PDSs). The findings indicate that default options are becoming more alike regardless of their name, and consequently, members may face increasing difficulties in distinguishing between balanced and growth-named default options when comparing them across superannuation funds. Comparability is also likely to be constrained by variations in the framing of default options presented in investment option menus in PDSs. These findings highlight the need for standardisation of default option definitions and disclosures to ensure descriptive accuracy, transparency and comparability.

How nonprofit boards monitor, judge and influence organisational performance

The law and popular opinion expect boards of directors will actively monitor their organisations. Further, public opinion is that boards should have a positive impact on organisational performance. However, the processes of board monitoring and judgment are poorly understood, and board influence on organisational performance needs to be better understood. This thesis responds to the repeated calls to open the ‘black box’ linking board practices and organisational performance by investigating the processual behaviours of boards. The work of four boards1 of micro and small-sized nonprofit organisations were studied for periods of at least one year, using a processual research approach, drawing on observations of board meetings, interviews with directors, and the documents of the boards. The research shows that director turnover, the difficulty recruiting and engaging directors, and the administration of reporting, had strong impacts upon board monitoring, judging and/or influence. In addition, board monitoring of organisational performance was adversely affected by directors’ limited awareness of their legal responsibilities and directors’ limited financial literacy. Directors on average found all sources of information about their organisation’s work useful. Board judgments about the financial aspects of organisational performance were regulated by the routines of financial reporting. However, there were no comparable routines facilitating judgments about non-financial performance, and such judgments tended to be limited to specific aspects of performance and were ad hoc, largely in response to new information or the repackaging of existing information in a new form. The thesis argues that Weick’s theory of sensemaking offers insight into the way boards went about the task of understanding organisational performance. Board influence on organisational performance was demonstrated in the areas of: compliance; instrumental influence through service and through discussion and decision-making; and by symbolic, legitimating and protective means. The degree of instrumental influence achieved by boards depended on director competency, access to networks of influence, and understandings of board roles, and by the agency demonstrated by directors. The thesis concludes that there is a crowding out effect whereby CEO competence and capability limits board influence. The thesis also suggests that there is a second ‘agency problem’, a problem of director volition. The research potentially has profound implications for the work of nonprofit boards. Rather than purporting to establish a general theory of board governance, the thesis embraces calls to build situation-specific mini-theories about board behaviour.

The constitutional power to make war: domestic legal issues raised by Australia's action in Iraq

The legal power to declare war has traditionally been a part of a prerogative to be exercised solely on advice that passed from the King to the Governor-General no later than 1942. In 2003, the Governor- General was not involved in the decision by the Prime Minister and Cabinet to commit Australian troops to the invasion of Iraq. The authors explore the alternative legal means by which Australia can go to war - means the government in fact used in 2003 - and the constitutional basis of those means. While the prerogative power can be regulated and/or devolved by legislation, and just possibly by practice, there does not seem to be a sound legal basis to assert that the power has been devolved to any other person. It appears that in 2003 the Defence Minister used his legal powers under the Defence Act 1903 (Cth) (as amended in 1975) to give instructions to the service head(s). A powerful argument could be made that the relevant sections of the Defence Act were not intended to be used for the decision to go to war, and that such instructions are for peacetime or in bello decisions. If so, the power to make war remains within the prerogative to be exercised on advice. Interviews with the then Governor-General indicate that Prime Minister Howard had planned to take the matter to the Federal Executive Council 'for noting', but did not do so after the Governor-General sought the views of the then Attorney-General about relevant issues of international law. The exchange raises many issues, but those of interest concern the kinds of questions the Governor-General could and should ask about proposed international action and whether they in any way mirror the assurances that are uncontroversially required for domestic action. In 2003, the Governor-General's scrutiny was the only independent scrutiny available because the legality of the decision to go to war was not a matter that could be determined in the High Court, and the federal government had taken action in March 2002 that effectively prevented the matter coming before the International Court of Justice

Constitutional legitimacy : an international ill and gap in the literature?

The central argument of this work is that “democratic constitutional legitimacy”[2] probably does not currently exist in the politics of any country internationally. This inherent problem in constitutionalism is an endemic governance problem most citizenries should be dealing with, only that we are not in a large extent doing so and haven’t been historically. This position was ascertained using a form of Beck and Grande’s (2010) cosmopolitan methodology in my doctoral thesis (which we shall return to). It is argued that every constitution is in need of considerable rethinking so as to bring its statutes in line with the interests of the plurality of individuals it oversees. Finally, this work attempts to show that research in this area of democratic constitutional legitimacy is lacking in the literature as only a few scholars presently engage the issue (namely Simone Chambers).

Judge George W Paul's Japanese house : a case study

In the late 1880s a pre-fabricated Japanese house was shipped from Kobe, Japan, to Brisbane, Australia, and erected in the up-market suburb of New Farm by Japanese tradesmen. This paper is developed from a broader project researching the life of G W Paul, the man who had the house built and subsequently lived in it for the remainder of his life. Paul’s motivation in importing the house represented a unique, but unfulfilled effort to develop a future, hybrid culture for Queensland. This effort took the form of a commercial venture to construct Japanese houses as desirable and climatically suitable dwellings. Against the backdrop of this ambition, this paper presents new research to elucidate and extend previous knowledge, assesses the reception of the house by its nineteenth century Brisbane audience, and considers possible reasons for the limited response which signalled the cancellation of the commercial venture.