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Belgrade Law Faculty Master Course on Comparative Constitutional Law Prof. Thomas Fleiner October 31 to November 16 2011 Thomas Fleiner: Class No. 8 Criteria to evaluate Governmental Systems
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Issues: 1 Democracy 2 Rule of Law 3 Human Rights 4 Problems of Constitutions 5 Conclusion Criteria
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Of the people – by the people – for the people
Democracy Of the people – by the people – for the people
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Liberty- Self-Determination
Finding the Truth Rational Conflict Management Why Democracy? Efficiency Majority Participation - Legitimacy Accountability Limit Governmental Power
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Democracy, Legitimacy and: …... Efficiency Equality Liberty Fragmented Nations Rule of Law Transition Tyranny of the Majority Globalization Transparency
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Consociacional Democracy
Procedural Substantial Represen- tative Semi-direct Direct Types of Democracy Winner takes all Consociacional Democracy
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Democracy: Of the people By the people For the people Party System Electoral System Separation of Powers Information and Media Accountability Participation Capacity to deliver Effective administration Decentralization Local Governance Minorities Fiscal Governance Collective Rights Minimize Corruption Cooperation
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Foreigners Minorities
Problems of Democracy Principle Of Oligarchie Lobbies Volonté Générale v. Volonté de Tous Media Public Interest Economy Corruption Exclusion Foreigners Minorities
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Representative Democracy Representation Constituency Volonté de Tous Interests Electoral System Volonté Générale Higher being The whole people Pluralism of Parties
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Parties in Government Parliament Executive 45% 55% Elections People
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Semi-direct Democracy Parties People: Elects and decides Executive Parliament Admini- stration Economy Volonté Générale?
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Separation of Powers Division of Labour Separation of Powers Checks and Balances New Challenges Media Terrorism Globalization Migration
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That men are ruled by law an not by men
Rule of Law That men are ruled by law an not by men Justice must be seen to be done Limits of Sovereignty Bonhams Case Independence of Judiciary Impartiality of Judges Professionalism of Judicial System Access to Justice Fairness of procedure Adversary – inquisitory procedure Jury - Trial Right to defense Time Mediator - Ombudsperson
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Golden Rule: Just as you want
Human Rights Golden Rule: Just as you want others to do for you, do the same for them; no discrimination Constitutional Catalogue Restriction Emergency Reference to international law Fairness in Procedure Substantive due Process Constitutional – Administrative review (access to justice) Human Dignity Expression Information Religion Property Assembly Four freedoms Economic and Social Rights: Educa- tion, health, labor, housing
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Main Problems of Constitutions Vagueness - implementation Human Rights – restrictions - emergency Consistency Accountability Judicial Independence and access to justice Decentralization Transparency Corruption Constitutional Amendments and Revision Constitutional review Referendum
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Conclusions
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Transparency Minorities Minimalise Human Failures Input - output Criteria Capacity to Learn Participation Rule of Law Efficiency Legitimacy Accounta- bility
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