- Year of publication: 2011
- Source: Show
- Pages: 279-284
- DOI Address: -
Searching for a way to eliminate a „deficit in democracy” in the European Union is at the same time searching for the final political shape of the EU (finalité politique) and also for a way to legitimize the EU itself and its institutions as well. However, all action must be taken after some consideration and its is worth to follow the „Monnet method”, which advocates evolutionary change, rather than a revolutionary one. Democracy in the EU must be multilevel and must mirror the EU itself in that respect; it and needs to incorporate both direct participation of the EU citizens, as well as an active role of the bodies formed in general elections: the European Parliament and the national parliaments of the Member States. There is a vital need for a compromise that shall allocate the appropriate places for all of the participants in the „European game”.
Subject matter of this article draws our attention to cases of using the democratic institutions in a monarchical system, especially – referendum. It is worth a closer look at the role played by referendum in the history of monarchical system of government. The article presents a broad research material. The study material covers the period from the end of World War II because of the enormous importance of this global conflict for the history of constitutionalism. An exception was made for events in Iceland. A referendum was held there in 1944. Although the war lasted, the result had a decisive influence on the form of the state in the postwar period. All other referendums described in the article took place after the war. During this period, 22 referendums related to the monarchy were held. In some countries for two (Maldives, Sikkim), and even three times (Greece). The presented research material has prompted the author to ask several questions: „what were the main factors that determined the success or failure of referendums on the removal or restoration of the monarchy”, „Has a referendum in the monarchy completely different or the same function as in the republics: „If traditional classification of referendums include those held in monarchies or they require a broadending of separate categories”. The author gives answers to these questions.
The author describes two constitutional principles – a principle of republic form of government and a principle of common good according to Basic Law of the Federal Republic of Germany (FRG) and German constitutionalists. In the general and common meaning, republican state is an opposite of a monarchy order, which also excludes any forms of autocracy and all the more totalitarianism. In fact, many German scholars underline the ancient roots of republicanism as described by Aristotle or Cicero and its material and not only formal sense. According to them – a state as res publica is a commonwealth in which all citizens have its part, every authority has an obligation to serve citizens but also every citizen is obliged to act for the common good of others. Unfortunately, the Basic Law of FRG does not contain many provisions on these issues. The republic form of the government in Germany results from article 20 par. 1, article 28 par. 1 in conjunction with article 79 par. 3 of Basic Law (eternity clause). It is very often underlined that the essence of republicanism is fundamental rights – in other words – a true republic is a system of freedom. Also other, similar terms as common welfare, common good and good of the people mentioned only in four provisions of the Basic Law – article 14 par. 2, ar- ticle 56 in conjunction with art. 64 par. 2 and article 87e par. 4 are simply not defined. Some scholars are of an opinion, that that was intentional. Common welfare is an idea, which has meta-legal, and non-state character and which is even beyond the constitution. On the other hand it just cannot be described precisely, because in every concrete case some other definition has to be elaborated by the legislators, executive and the judiciary.
Under unwritten constitution, part of which are constitutional conventions courts are unable to guarantee obedience to constitutional rules and values. In United Kingdom it is therefore the monarch who stands as a custodian of the constitution. Royal prerogatives that are normally exercised only on advice of responsible ministers can be used to protect constitution. The most important are so-called reserve powers to dismiss prime minister and other ministers, to dissolve parliament and to give royal assent. The Monarch is able to successfully perform this function despite the want of democratic legitimacy but he should always be cautious and act only if he is perfectly positive that his intervention is absolutely necessary. He would therefore be entitled to intervene only in a dire emergency if political actors stood against the fundamental rules of parliamentary democracy, responsible government and sovereignty of the people.
In the article there is presented the issue of the individual parliamentary responsibility of members of the government in Polish Constitution from 2 nd April 1997. After a few historical remarks there was established the circle of entities which the title issues concerned. Next there was analyzed the mode of passing a motion of censure against the members of the government, highlighting its differences from the procedure motion of censure against Council of Ministers. As a side issue of discussion there was explained the resignation of member of the government, place at the disposal of the Prime Minister and the appeal on his initiative. In the course of the argument there was explained that the president has the absolute obligation to satisfy the request of Prime Minister concerning the dismissal of a member of government. To sum up the considerations there was established that the institution of the individual parliamentary responsibility of members of the government is well-form blended in the polish model of parliamentary government.
Under the Art. 190 para. 3 of the Constitution of the Republic of Poland of 1997 a judgment of the Constitutional Tribunal come into force from the day of its publication. However, the Constitutional Tribunal is able to specify another date for the loss of validity of a normative act. Such a period cannot exceed 18 months in relation to a statute or 12 months in relation to other normative act. According to the Art. 272 para. 1 of the act Proceeding before the administrative courts in connection with the Art. 190 para. 4 of the Constitution a party can demand reopening proceedings, or quashing the decision when the Constitutional Tribunal judged about the non-conformity of the act to the Constitution, an international agreement or statute, of a normative act on the basis of which a legally effective judgment of a court, a final administrative decision or settlement of other matters was issued. Above mentioned legal regulations put the courts into hard situation, because the judgment of the court, which has been pronounced according to the legal act, which has been declared by the Constitutional Tribunal as unconstitutional, could, after the end of the validity, be resumed by reopen proceeding. There are contrary opinions how to solve the presented problem. Both the judicial decisions and the legal doctrine present two different positions: • the court must apply the legal provisions, which have been declared by the Constitutional Tribunal as unconstitutional, because they remain a part of the legal system, till the moment they are removed from the legal order after the period of postponement, • the court is able to refuse to apply the unconstitutional legal provisions. The text discusses different points of view on that topic as well as legal consequences of deferment of the date by the Constitutional Court on which a normative act loses its validity.
The article presents the constitutional position of the President of the Republic of Azerbaijan. In the article the author describes the issues: election, term, legal status, relations with parliament (Milli Majlis), government (the Cabinet of ministers), courts and prosecution, and the powers in the next cases: international, security, legislation and traditional.
The article is an attempt to a comprehensive characteristic of prohibition of violations concerning a substance of fundamental rights. The prohibition is one of the conditions limiting the admissibility of such rights, as formulated in Article 19 paragraph 2 FRG Basic Law of 1949. The starting point for this analy- sis is to present the genesis of the wording of this prohibition in the constitution and to set out its functions. Another important issue taken into account in the article is to discuss the relation which exists between the prohibition of violations concerning the substance of fundamental rights and the principle of re- spect and protection of human dignity as enshrined in Article 1 paragraph 1 BL and also a relation between the prohibition of violations of fundamental rights and the provision of Article 79 paragraph 3 BL introducing „provisions relatively unchanged”. The concept of the inviolability of fundamental rights being based on the assumption that within each fundamental right it is possible to extract certain basic elements – the essence (core – the essence of the content), with- out which it could not exist and a number of additional elements – „a milieu”. While „the milieu” of a fundamental right may be a subject of interference by the legislature so far never – under any circumstances it cannot be the content of the essence of a fundamental right. The actual normative content of the prohi- bition depends on how is understood the concept of „the essence of content” of a fundamental right, which unfortunately is not uniform among the represent- atives of the German doctrine of constitutional law, nor the case law of the Fed- eral Constitutional Court of the FRG and hence a crucial part of the article is the characteristic of various theories regarding this „substance” of fundamen- tal rights.
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