This book examines the responsibility of judges of domestic courts following unconstitutional usurpation of power of government (coups d’état). It explores judges’ liability for failing to discharge their judicial duty independently and impartially, and the criminality of usurpers and their accomplices and collaborators for their violation of fundamental rights and freedoms or commission of crimes of international concern. Written by a highly regarded non-Western author, the book is coherent and meticulously researched, covering an approach to coups in an insightful and fascinating fashion. It includes a sophisticated and thorough analysis of the relevant comparative jurisprudence of domestic and international courts, with concrete examples of the best practices among decisions of domestic courts in countries that have experienced coups d’état. With an increasing global interest in the phenomenon of coups, democratic backsliding and the place and role of the judiciary as the only hope to rein in acts of unconstitutional usurpation of power, the book will be essential reading for members of the legal profession, those cherishing democracy as well as students and researchers in constitutional law, law and political science, public international law, international human rights law, international criminal law, regime changes, transitional justice and international organizations.
Author(s): Kriangsak Kittichaisaree
Publisher: Routledge
Year: 2023
Language: English
Pages: 279
City: London
Cover
Half Title
Title
Copyright
Table of Contents
Preface
List of Abbreviations
1 Introduction
Overview
Scope of this book
Modus operandi of unconstitutional usurpation of power
Judges’ roles in unconstitutional usurpation of power
Practical challenges
Methodological and related normative questions
2 Legal bases to assess the lawfulness of unconstitutional usurpation of power
Legal bases used to validate coups
Legal bases used to invalidate coups
Concluding remarks
3 Permissible parameters for judges in post-coup suppression of fundamental rights and freedoms
International conventions and rules of customary international law
on the protection of fundamental rights and freedoms
States of emergency and derogation of fundamental rights
and freedoms
Military tribunals
Law enforcement measures
Refusal to render judgments on ‘political questions'
Concluding remarks
4 Availability or non-availability of defences for judges in relation to judicial responsibility post-coups
Individual criminal responsibility arising from judges’ roles in an
oppressive regime
Independence of judiciary and allegiance to the new
‘constitutional’ order
Superior orders
Duress
Judicial immunity
Concluding remarks
5 Amnesties, pardons, immunities and other restrictions on the prosecution of usurpers of power and their accomplices or collaborators
Amnesties, pardons and immunities
Statutes of limitations
Transitional justice
A right balance
Concluding remarks
6 International or extra-territorial criminal prosecution of coups-related crimes of international concern
Prosecution before the International Criminal Court, ad hoc
international tribunals and hybrid courts
Prosecution in foreign courts exercising universal jurisdiction
7 Epilogue
Index
