This book provides the most comprehensive account to date of the amendment process of the Indonesian Constitution, which started after the fall of President Soeharto in 1998 and lasted until August... Show moreThis book provides the most comprehensive account to date of the amendment process of the Indonesian Constitution, which started after the fall of President Soeharto in 1998 and lasted until August 2002. It contains novel insights regarding the way in which this process unfolded and how the People’s Consultative Assembly managed to turn Indonesia’s Constitution from an authoritarian centerpiece into a solid foundation for a democratic state under the rule of law. Following the debates closely, the author presents them in such detail that the reader gets a true grasp of how the Assembly operated and how effective leadership combined with the will to reach consensus eventually overcame the enormous obstacles on the way. Show less
There has been much recent debate over whether the European Union is or should be a ‘militant democratic’ actor in order to respond to democratic backsliding in EU member states. This article... Show moreThere has been much recent debate over whether the European Union is or should be a ‘militant democratic’ actor in order to respond to democratic backsliding in EU member states. This article argues that the EU is a militant democracy in a specific and limited sense, but that this may be normatively undesirable from a democratic perspective. I first develop a definition of militant democracy that focuses on the militant democratic paradox. I argue that the strongest justifications for militant democracy require that two conditions are met: an ‘existential threat condition’ and a ‘necessity condition’. Next, I analyse four ways in which the European Union has been said to be empowered to act in a militant democratic fashion to combat democratic backsliding in EU member states. I show how some, though not all, of these warrant the label ‘militant democracy’. Moving from the descriptive to the normative analysis, I then consider whether the necessity condition can ever be met since there is always the possibility of non-militant responses through forms of EU disintegration. If we accept this argument, EU actors should prioritize robust non-militant measures where possible while pro-democratic member states should disassociate from frankly autocratic member states where non-militant measures fail. Show less
Toshkov, D.D.; Mazepus, H.; Yordanova, N.; Piqani, D. 2022
The EU has imposed financial sanctions on Poland for problems with judicial independence. The sanctions amount to more than €300 mill., and the sum continues to grow. How are the sanctions... Show moreThe EU has imposed financial sanctions on Poland for problems with judicial independence. The sanctions amount to more than €300 mill., and the sum continues to grow. How are the sanctions perceived by the Polish population? Are they considered justified and acceptable, and by whom? Show less
The Weimar Republic, founded in November 1918, was the first real democracy on German territory. It didn’t last long. On the 23th of March 1933, Hitler took power and abolished democracy to start... Show moreThe Weimar Republic, founded in November 1918, was the first real democracy on German territory. It didn’t last long. On the 23th of March 1933, Hitler took power and abolished democracy to start building his totalitarian Third Reich. Since then, the Weimar Republic became famous – or rather infamous – for being a ‘failed democracy’. In this research, the downfall of Weimar’s democracy is of central interest. After broadly stating the historical reality of the first Germany democracy, this thesis focusses on the juridical and philosophical concepts underlying the Weimar democracy to answer the question to what extent they offered real possibilities to defend the democratic state. It answers this question for the dominant philosophical school in Germany when the Weimar Constitution was drafted: legal positivism, for the Weimar Constitution itself as well as for Hans Kelsen, Carl Schmitt, Hermann Heller and Rudolf Smend. Show less
This study gives a comprehensive account of the public prosecutor’s role in post-authoritarian Indonesia, both in promoting the rule of law and in maintaining the political status quo. It traces... Show moreThis study gives a comprehensive account of the public prosecutor’s role in post-authoritarian Indonesia, both in promoting the rule of law and in maintaining the political status quo. It traces the development of the Indonesian prosecution service, historically and politically, exploring what and who influences its performance, as well as how public prosecutors work in practice.This research is a socio-legal study of the criminal justice system. It contributes to a number of broader debates about post-authoritarian public prosecutors and their role in promoting the rule of law. By combining criminal law, criminology, political science and anthropological theory, it provides an important framework for the analysis and critique of conditions for, impacts of, and possibilities for prosecution services in post-authoritarian countries.The case of Indonesia constitutes an example of the way in which prosecution services evolve in countries marked by authoritarian tendencies. It shows how various regimes position public prosecutors as ‘justice postmen’, who deliver cases based on the government’s interests, as well as on the interests of other powerful actors, such as political parties, companies, or the police force. Such situations are commonly seen in authoritarian countries, where the executive dominates political power, and public prosecutors have become tools of the government in maintaining political order. Show less
As the violent civil war in South Sudan comes to a formal end, peace is made by power-sharing between political competitors. Crucial positions are not elected but distributed through a ‘warlord... Show moreAs the violent civil war in South Sudan comes to a formal end, peace is made by power-sharing between political competitors. Crucial positions are not elected but distributed through a ‘warlord politics’, providing rewards to those who ‘went to the bush’ to fight the war. Bruno Braak describes this process with the example of a rebel commander-turned-governor in the country’s Western Equatoria State. Show less
This research is about the actions taken by lawyers in Indonesia to win land rights for corporations. In order to perform these actions, they not only deploy the weaknesses in the law, but their... Show moreThis research is about the actions taken by lawyers in Indonesia to win land rights for corporations. In order to perform these actions, they not only deploy the weaknesses in the law, but their strategies are supplemented with an acquired structural advantage: social capital in the form of loyalty of others they have vetted, such as judges, policemen and prosecutors.The dissertation gives a comprehensive account of the field that makes the strategies possible from multiple angles, such as courts, business actors, the condition of the rules, and then continues to expose the strategies. It is concluded by highlighting the specifications to the condition of the Rule of Law in Indonesia which need special attention and offer suggestions for substantive and sustainable legal reform. Show less
For the European Union, the rule of law is a multifaceted notion of ‘primordial importance’. It is both a foundational value (Article 2 TEU) and a guiding principle for the Union’s external action... Show moreFor the European Union, the rule of law is a multifaceted notion of ‘primordial importance’. It is both a foundational value (Article 2 TEU) and a guiding principle for the Union’s external action in general (Article 21(1) TEU). The concept plays a central role within the EU and in its external policy. However, what is meant by the term ‘rule of law’ in the EU’s external policy? The thesis tackles the largely unexplored question of the EU’s conceptualisation of the rule of law in its external relations, with a particular focus on development cooperation and enlargement. Although the EU’s commitment to the rule of law is strong and often repeated, the relevant concept remains nebulous. On the basis of a detailed analysis of two key EU external policy areas, the main argument advanced is that the Union has adopted a mostly ‘institutional’ approach to the concept by focussing largely on judicial reform. By testing the relevant practice against the background of the constitutional traditions of the Member States and legal theory, the thesis attests to the significance of developing a more comprehensive approach to the rule of law in EU external relations. Show less
This article discusses two perspectives on interpretative argumentation and the connection with the two conceptions of the Rule of Law. First, we will sketch the formal position and we will... Show moreThis article discusses two perspectives on interpretative argumentation and the connection with the two conceptions of the Rule of Law. First, we will sketch the formal position and we will demonstrate how interpretative argumentation is to be analyzed from this perspective. We will then show the consequences of the second perspective, and demonstrate how the richer conception of the Rule of Law is related to a more context sensitive analysis of interpretative argumentation. Show less
This article examines an underexplored avenue for the protection of the rule of law in Europe: Article 18 of the European Convention on Human Rights. This provision prohibits States from... Show moreThis article examines an underexplored avenue for the protection of the rule of law in Europe: Article 18 of the European Convention on Human Rights. This provision prohibits States from restricting the rights enshrined in the European Convention for any other purpose than provided for in the Convention. In this contribution, the author argues, based on a combination of textual, systematic and purposive interpretations of Article 18, that the provision is meant to safeguard against rule of law backsliding, in particular because governmental restrictions of human rights under false pretenses present a clear danger to the principles of legality and the supremacy of law. Such limitations of rights under the guise of legitimate purposes go against the assumption of good faith underlying the Convention, which presupposes that all States share a common goal of reinforcing human rights and the rule of law. Article 18 could therefore function as an early warning that European States are at risk of becoming an illiberal democracy or even of reverting to totalitarianism and the destruction of the rule of law. The article then goes on to assess the extent to which the European Court’s case-law reflects and realizes this aim of rule of law protection, and finds that whereas the Court’s earlier case-law left very little room for an effective application of Article 18, the November 2017 Grand Chamber judgment in Merabishvili v. Georgia has made large strides in effectuating the provision’s raison d’être. As the article shows, however, even under this new interpretation, challenges remain. Show less
Veraart, W.; Moerel, L.; Rodrigues, P.R.; Wilde, M. de; Schutte, C. 2017
Without press freedom a constitutional democracy cannot function properly, to the extent that the degree of press freedom becomes an indicator of the level of democracy in a particular country.... Show moreWithout press freedom a constitutional democracy cannot function properly, to the extent that the degree of press freedom becomes an indicator of the level of democracy in a particular country. This socio-legal study aims to clarify how the concepts of freedom of expression and press freedom have evolved in Indonesian law; how press freedom as one of the main pillars of constitutional democracy has been guaranteed or curbed by the Indonesian legal system; how press freedom has been shaped in practice; and how this can be evaluated from a rule of law perspective. The research found press freedom in Indonesia is still under pressure, despite the demise of Soeharto’s authoritarian New Order regime in 1998. Decentralised model of governance during ‘Reformasi’ has led to new types of attacks on the press. Extra-judicial killings, physical violence, bringing criminal or civil claims against journalists and impunity of those perpetrating such acts have made it difficult for many journalists to conduct their work in a proper manner and without fear. Hence, there is still a pattern of legal and non-legal attacks against the press. The research has found that from colonial times until the present Indonesia has struggled with press freedom. Show less
Does ICT pervasion of society threaten our legal system? To address the question, four requirements for a sustainable rule of law are discerned: (1) a clear jurisdiction, (2) legitimate rule making... Show moreDoes ICT pervasion of society threaten our legal system? To address the question, four requirements for a sustainable rule of law are discerned: (1) a clear jurisdiction, (2) legitimate rule making, (3) integrity in government and judiciary and (4) stability in society. It is argued that four new and insufficiently understood ICT constructs manifest themselves in society: (a) regulation by ICT architecture, (b) the perception of vanishing resposibilities through ICT complexity, (c) the economic status of reciprocal business models as in open source communities and (d) the emergence of information mountains-monopolies as fostered by Google. All four arguably pose threats to the sustainability of our legal system. Remedies are hard to find - a serious effort in multidisciplinary research and education is advocated. Show less
