scholarly journals Public lecture of judge Atanaska Disheva – member of the Supreme Judicial Council – before law students on the topic: “The role of the prosecutor in the administrative proceedings

2021 ◽  
Vol 16 (3) ◽  
pp. 49-55
Author(s):  
Raina Nikolova
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Legal Order ◽  
Law Students ◽  
The Public ◽  
Administrative Proceedings ◽  
Public Lecture

The public lecture is dedicated to the issue of the prosecutor’s supervision on the activities of the administrative bodies within the principle of separation of powers and the principle of rule of law. It provides the opportunity to make more specific the scope of the prosecutor’s function on ensuring the legal order.

Part IV Independent Constitutional Institutions, 15 The Public Prosecutor and the Rule of Law in Anglophone Africa

2016 ◽  
Author(s):  
Jowell Jeffrey
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Public Prosecutor ◽  
The Rule Of Law ◽  
The Public ◽  
The Law ◽  
Individual Decisions

This chapter examines the role of the public prosecutor in Anglophone Africa, in the light of two constitutional principles: the separation of powers and the rule of law. It considers the extent to which the prosecutor’s role, and his individual decisions, ought to be separated from ‘policy’ or ‘party-political’, or otherwise ‘partisan’ considerations. How ‘objective’ should (or can) he be? The chapter also considers to what extent the prosecutor’s constitutional role and institutional functions require him to be insulated from judicial review. In the context of government lawyers acting as guardians of the rule of law, the chapter looks at the extent of the prosecutor’s discretion to enforce and not to enforce the law. Finally, it asks whether there may be ways to structure his discretion in the interest of the rule of law.

scholarly journals In Defence of the Common Law Constitution: Unwritten Rights as Fundamental Law

2009 ◽  
Vol 22 (1) ◽  
pp. 187-203 ◽  
Author(s):  
T.R.S. Allan
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
Public Reason ◽  
Separation Of Powers ◽  
Political Judgment ◽  
The Rule Of Law ◽  
The Public ◽  
The Common ◽  
Fundamental Law

Alan Brudner’s closely-argued, richly-textured and wide-ranging work, Constitutional Goods, provides a striking and original account of the rule of law and its implications for legitimate government. Since the rule of law includes the enforcement of substantive principles ofjustice, it requires a clear separation of powers between court and legislature. The role of the court is chiefly confined to pure practical reason, determining what the public reason of the liberal consti-tution requires. It is the role of the legislative assembly to give its assent to governmental measures that apply the principles ofjustice to empirical circumstances, where the scope for reasonable disagreement provokes a transition from natural law to political judgment. Judicial review carries no anti-democratic implications because it defends the conceptual boundaries of popular decision-making: ‘Democracy is not defeated but protected if the court invalidates a law no free person could impose on himself, for the majority has no more authority to pass such a law than an autocrat nor any jurisdiction to decide by fiat a question to which there is a correct legal answer.’

scholarly journals Rule Of Law In Africa: The Role Of The Media In Civil Roceedings In Kenya.

2019 ◽  
Vol 6 (1) ◽  
pp. 43-49
Author(s):  
Naomi Gichuki
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Access To Justice ◽  
Fourth Estate ◽  
The Public ◽  
Public Media ◽  
Civil Proceedings ◽  
The Media ◽  
Right To Information

This article looks into the role of media and the public in civil proceedings in Kenya. The introductory component will address the concept of rule of law and its relevance to judicial independence and separation of powers. The second section of the article involves a critical analysis of the responsibility of the media as a check on government activities in its capacity as a pillar of society more commonly referred to as the ‘fourth estate.’ The role of the judiciary in a democratic society cannot be overlooked or undermined. For this reason, the article examines justice, society and media against the backdrop of a right to information, non-interference with judicial autonomy and access to justice. Pertinent challenges in the interplay of these three factors are discussed, followed by recommendations which propose effective channels through which the interaction between the public, media and judiciary in Kenya can become more meaningful.

Crisis of the Rule of Law in Europe: The Cases of Hungary, Poland and Spain

2021 ◽  
Vol 7 (3) ◽  
pp. 379-398
Author(s):  
David Parra Gómez
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Social Rights ◽  
Institutional Reforms ◽  
Public Authorities ◽  
The Rule Of Law ◽  
The Public ◽  
Division Of Powers ◽  
European Democracy ◽  
Aggressive Interference

Democracy is an instrument at the service of a noble purpose: to ensure the freedom and equality of all citizens by guaranteeing the civil, political and social rights contained in constitutional texts. Among the great principles on which this instrument rests is the division of powers, which consists, substantially, in the fact that power is not concentrated, but that the various functions of the State are exercised by different bodies, which, moreover, control each other. Well, the increasingly aggressive interference of the Executive and, to a lesser extent, the Legislative in material spheres that should be reserved exclusively for the Judiciary, violates this principle and, for this reason, distorts the idea of democracy, an alarming trend that, for some time now, are observed in European Union countries such as Hungary, Poland and Spain. Preventing the alarming degradation of European democracy, of which these three countries are an example, requires not only more than necessary institutional reforms to ensure respect for these principles and prevent the arbitrariness of the public authorities, but also a media network and an education system that explains and promotes these values and principles, that is, one that makes citizens aware of and defend constitutionalism. Keywords: Rule of law; Democracy; Separation of powers; judicial independence; Europe.

THE POSITION OF THE PUBLIC PROSECUTOR IN ADMINISTRATIVE PROCEEDINGS – LEGAL ANALYSIS

2021 ◽  
Vol 1 (XXI) ◽  
pp. 97-114
Author(s):  
Michał Sędziński
Keyword(s):  
Rule Of Law ◽  
Public Prosecutor ◽  
Special Role ◽  
Legal Analysis ◽  
Criminal Proceedings ◽  
The Rule Of Law ◽  
The Public ◽  
Administrative Procedure ◽  
Court Proceedings ◽  
Administrative Proceedings

The aim of this article is to comprehensively analyse the legal position of the public prosecutor in administrative proceedings and administrative court proceedings. This subject is interesting because the public prosecutor is usually associated with criminal proceedings and his capacity as the public accuser. However, the public prosecutor plays a special role in administrative proceedings, i.e. participates in them as an entity with the rights of a party, even though he has no legal interest in it. It is also worth noting that the powers of the public prosecutor are clearly more extensive than those of other entities with the rights of a party. This article is an attempt to determine the role of the public prosecutor in administrative proceedings and decide whether he is the accuser or rather the representative of the public interest. The position of the public prosecutor in proceedings before administrative courts is special as well. This issue needs to be discussed in detail, which was taken into account in the second part of the article. The position of the public prosecutor as the advocate of the rule of law is regulated by the Act on the Public Prosecutor’s Office. The analysis of these provisions in conjunction with Chapter 4 of the Code of Administrative Procedure leads to a conclusion that the public prosecutor who acts in administrative proceedings as an entity with the rights of a party has powers vested in him alone and watches over such proceedings, thereby fulfilling the duties of an advocate of the rule of law. To fully show the special position of the public prosecutor, it is necessary to enumerate his powers in administrative proceedings and compare them with the competences of “ordinary” entities with the rights of a party.

Part 4 Constitutionalism and Separation of Powers, 4.5 Post-Soviet Central Asia: The Limits of Islam

2012 ◽  
Author(s):  
Akbarzadeh Shahram
Keyword(s):  
Central Asia ◽  
Public Space ◽  
Separation Of Powers ◽  
Authoritarian Rule ◽  
The Public ◽  
Political Role ◽  
Administrative Control ◽  
Soviet Legacy ◽  
Soviet Central Asia

This chapter examines the limited role of Islam in shaping the public space of post-Soviet Central Asia. It documents Soviet instruments of administrative control on Islam in Central Asia and then examines the behavior of the incumbent regimes which inherited this Soviet legacy. It shows that despite strong expectations of Central Asia's transition from authoritarian rule to democracy following the Soviet collapse, the incumbent elite managed to thwart that process and return to the familiar modes of centralized authoritarian rule. The chapter concludes by exploring the prospects of Islam's political role in Central Asia.

scholarly journals The Challenge of the Bad Man

2013 ◽  
Vol 58 (2) ◽  
pp. 451-480 ◽  
Author(s):  
Michael Plaxton
Keyword(s):  
Criminal Justice ◽  
Rule Of Law ◽  
Criminal Law ◽  
Legal Order ◽  
Recent Discussion ◽  
The Rule Of Law ◽  
Criminal Justice Systems ◽  
Moral Problems ◽  
Douglas Husak

H.L.A. Hart’s insight, that some people may be guided by an offence provision because they take it as authoritative and not merely to avoid sanctions, has had an enormous influence upon criminal law theory. Hart, however, did not claim that any person in any actual legal order in fact thinks like the “puzzled man”, and there is lingering doubt as to the extent to which we should place him at the center of our analysis as we try to make sense of moral problems in the criminal law. Instead, we might find that our understanding of at least some issues in criminal law theory is advanced when we look through the eyes of Holmes’ “bad man”. This becomes clear when we consider the respective works by Hart and Douglas Husak on overcriminalization, James Chalmers and Fiona Leverick’s recent discussion of fair labeling, and Meir Dan-Cohen’s classic analysis of acoustic separation. These works also suggest, in different ways, that an emphasis on the bad man can expose the role of discretion in criminal justice systems, and the rule of law problems it generates.

scholarly journals THE PARTICIPATION OF THE PROSECUTOR IN CIVIL PROCEED-INGS AS A GUARANTEE OF ENSURING THE EFFECTIVENESS OF LEGAL PROTECTION. SOME REMARKS

2017 ◽  
Vol 28 (1) ◽  
pp. 9-22
Author(s):  
Joanna Misztal-Konecka
Keyword(s):  
Rule Of Law ◽  
Public Interest ◽  
Legal Protection ◽  
Great Caution ◽  
The Rule Of Law ◽  
The Public ◽  
Civil Proceedings ◽  
The Moment ◽  
Civil Matter

The role of the prosecutor in the legal system is traditionally perceived in the context of performing tasks relating to the prosecution of offences and upholding the rule of law. It is worth mentioning, however, that pursuant to Article 7 sentence 1 of the Code of Civil Procedure the prosecutor may petition to institute proceedings in any civil matter as well as participate in any pending proceedings if he considers his presence necessary to protect the rule of law, citizens’ rights or social interest. While the broad competence range of the prosecutor in civil proceedings has been assessed with high criticism in the literature on numerous occasions, it is with great caution that one should view possible tendencies towards exclusion of the prosecutor as an attendant of proceedings, without affiliation to either party, when the public interest calls for their participation. Especially in the cases where the court notifies the prosecutor of the need to participate in proceedings, one ought to conclude that it is the moment when the principle of effective legal protection becomes most fully realized through equalizing the litigious position of the parties and prevention of the occurrence of a defect which might invalidate the proceedings. The author postulates transforming notification of the need to participate in proceedings served on the prosecutor into summons for attending it.

scholarly journals Zamknięte stolice imperium prawa. Znaczenie jawności postępowań sądowych dla społecznej legitymizacji władzy sądowniczej

Radca Prawny ◽  
2021 ◽  
pp. 43-71
Author(s):  
Krzysztof J. Kaleta
Keyword(s):  
Legal Order ◽  
The Public ◽  
Social Legitimacy ◽  
The Third ◽  
The Social ◽  
Judicial Proceedings ◽  
Constitutional Right ◽  
Court Proceedings ◽  
Polish Code

Closed capitals of the empire of law. The importance of openness of judicial proceedings for social legitimacy of judicial authority The article focuses on the openness of judicial proceedings, in particular the openness of the trial, considered as an important element of the constitutional right to a trial, the requirement of procedural fairness and the condition for maintaining the social legitimacy of the judiciary. The immediate context for the considerations is determined by the changes introduced by the Act of May 28, 2021 amending the Act – the Polish Code of Civil Procedure and certain other acts, making it possible to limit the openness of court proceedings in relation to the occurrence of an epidemiological emergency. The author draws the attention to transformations in the constitutional position and ways of perceiving the legitimacy of courts in modern constitutional democracies. The increasing role of courts in settling major political disputes, resolving social conflicts, controlling governmental authorities and enabling citizens to hold representatives of the authorities accountable for their decisions renders participation in judicial proceedings one of the fundamental democratic activities nowadays. The author also indicates that the trial (as a fundamental form of communication between judges and citizens and a special phase of proceedings allowing the court to deeply examine the facts of the case and to learn the prevailing understanding among citizens of the values and principles on which the legal order is based) is a key measure to achieve the principles of procedural justice during the course of specific proceedings and to establish trust in the third power before the public. Openness of judicial proceedings, especially the trial, is a condition for the courts to maintain a reflexive attitude in the process of ruling and thus to deepen the social legitimacy of the judiciary based on trust.

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