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Journal articles on the topic 'Role of constitutional courts'
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1
Henderson, Jane, and Marina Lomovtseva. "Constitutional Justice in Russia." Review of Central and East European Law 34, no. 1 (2009): 37–69. http://dx.doi.org/10.1163/157303509x406223.
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AbstractThe 1993 Russian Constitution and 1994 Federal Constitutional Law “On the Constitutional Court of the Russian Federation” define the jurisdiction and activity of the Federal Constitutional Court of the Russian Federation. However, these pieces of legislation do not comprehensively address all the issues, and there has been some broadening of the Court's power through interpretation and the effect of some other legislation. This article examines the Court's jurisdiction and some of the issues that arise in the exercise thereof, as well as the relative role of the constitutional or charter courts of the subjects of the Federation, and the relationship between the Constitutional Court and the other courts in the Russian federal system. Issues of the methods of constitutional interpretation are addressed. The importance of the Constitutional Court as the federal agency of constitutional court supervision (review) in ensuring the effective application of the Russian Constitution is highlighted in the context of this growth of a comparatively new branch of law in the Russian legal system.
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Marwiyah, Siti, M. Syahrul Borman, Ruba'ie Ruba'ie, M. Chotib Ramadhani, Retno Saraswati, and Non Naprathansuk. "The Educational Role of The Constitutional Court in Compliance of Indonesian Citizens." LAW REFORM 19, no. 1 (August 11, 2023): 148–68. http://dx.doi.org/10.14710/lr.v19i1.53971.
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The Constitutional Court (MK) has a strategic position, authority, and obligation to determine the future of the Indonesian nation. This study aims to examine the educational role of the Constitutional Court in developing a constitutional understanding of Indonesian citizens constitutionally. This research used doctrinal legal research method, a process to find the rule of law, legal principles, and legal doctrines to answer the legal problems faced. The results showed the educative role of the Constitutional Court in fostering constitutional understanding of Indonesian citizens by creating programs to promote constitutional understanding of Indonesian citizens, i.e.: increasing the understanding of citizens' constitutional rights; disseminating information on the Constitutional Court, and development of constitutional awareness culture.; debate on student constitutions between universities throughout indonesia; telling the values of Pancasila on social media; and increasing understanding of the constitutional rights of civics with outstanding teachers; and educating people's attention. The Constitutional Court's products in the form of decisions contain public education on compliance with the Constitution correctly and rationally. The Constitutional Court's decision will always be linked to the public with the Constitution and the interests of justice seekers because the court examines the interests of justice seekers related to the Constitution.
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Abat Ninet, Antoni. "Kelsen versus Schmitt and the Role of the Sub-National Entities and Minorities in the Appointment of Constitutional Judges in Continental Systems." ICL Journal 14, no. 4 (December 20, 2020): 523–43. http://dx.doi.org/10.1515/icl-2020-0015.
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Abstract In composed and decentralised states, sub-national entities and (ethnic, linguistic, racial) minorities ought to play a determinant role in the process of appointment of constitutional courts justices to obtain a balanced representation in the guardian of the constitution. The necessary appearance of constitutional justice independence can be at stake without a proportionated participation of minorities and sub-national entities in the court. It is not enough to introduce a symbolic presence. The first section of this essay analyses the transcendence and political-legal significance that the system of appointment of constitutional court judges has and its relation to the separation of powers (horizontal and vertical). The second section is a return to the roots, ie the system of appointment the Austrian Constitution of 1920, even that first constitutional court was created in 1919, and Kelsen’s theory on federalism. The third section carries out an analysis from a comparative constitutional law perspective by using as an analytical basis the reports on the composition of the Constitutional Courts of the European Commission for Democracy through Law. The paper ends with a reflection on Schmitt considerations on the Guardians of Constitutions.
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Georgieva, Rayna. "The role of the Constitutional court for the protection of the human rights." Law Journal of New Bulgarian University 18, no. 2 (December 30, 2022): 56–62. http://dx.doi.org/10.33919/ljnbu.22.2.3.
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Today in Europe there is a complex system of protection of individual rights based on different sources of law and respectively with a different procedure for their defence, but with common constitutional legal root. The “catalogue” of basic rights in constitutions served as inspiration for the drafters of the International act in the field of human rights, whilst in the constitutional legislative process usually the legislator turns to the established International Human Rights Standards. Constitutional courts participate in the promotion and development of human rights standards through their case-law. The references in the past 30 years, the amendments of chapter eight of the Constitution and the case-law of the Constitutional court of the Republic of Bulgaria show that it has a roles as human rights court. However, the system of constitutional review could be improved with the facilitation of the ordinary courts in the direct application of the Basic law on cases. One of the possible measures is the legal education in the field of human rights protection and the availability of scientific legal publications in service of the practicing lawyers.
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Marshfield, Jonathan L. "State Constitutional Rights, State Courts, and the Future of Substantive Due Process Protections." SMU Law Review 76, no. 3 (2023): 519. http://dx.doi.org/10.25172/smulr.76.3.8.
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By most accounts, the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization signaled a broader stagnation (and perhaps retrenchment) of federal substantive due process protections. As a result, there is now great interest in the role that state constitutions and courts might play in protecting and expanding reproductive and privacy rights. This Article aims to place this moment in state constitutional development in broader context. It makes two core claims in this regard. First, although state courts are free to interpret state constitutions as providing broader individual rights protections than those contained in the Federal Constitution, state constitutions have not materialized as a robust source of counter-majoritarian rights during earlier periods of federal rights stagnation. To the contrary, state constitutional rights tend to conform with popular sentiment regarding rights because they are heavily mediated by various processes of popular constitutionalism (such as popular election, recall, and retention of state judges, and the initiative and referendum). From this point of view, state constitutional rights have limited potential in protecting political minorities from abusive popular majorities. However, this Article’s second claim is that state constitutional rights are well-situated to address many contemporary rights battles precisely because of their majoritarian nature. Many extant rights conflicts are between statewide popular majorities that support rights expansion and misaligned state governments looking to disregard or evade popular preferences. State constitutional rights are better situated to address this problem than the problem of abusive popular majorities. The challenge for contemporary state courts in this moment is to articulate an independent rights jurisprudence that accounts for the popular nature of state constitutional rights rather than parrot the counter-majoritarian jurisprudence of the United States Supreme Court, which is largely inapposite when adjudicating state constitutional rights. The Article concludes by offering some preliminary thoughts on how state courts might approach today’s rights disputes under state constitutions.
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SAFTA, Marieta. "THE ROLE OF CONSTITUTIONAL COURTS IN UPHOLDING THE RULE OF LAW IN EMERGENCY SITUATIONS." Annals of the Academy of Romanian Scientists Series on Philosophy, Psychology and Theology 10, no. 1-2 (2022): 67–79. http://dx.doi.org/10.56082/annalsarsciphil.2022.1-2.67.
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The way in which the security of the State and its democratic institutions, human rights, and the safety of its officials and population are protected in emergency situations constitutes one of the benchmarks of the rule of law. From this perspective, the role of the constitutional courts is a prominent one since the courts are the guarantor of the Constitution, as a fundamental law enshrining all the values and rules of organizing and functioning of the public authorities. In Romania, both the Constitutional Court and the ordinary tribunals have encountered numerous requests from individuals. The citizens have challenged and questioned the acts of public authorities, raising sensitive issues, balancing competing fundamental rights, and, finally, the rule of law as a general principle enshrined in article 1 of the Constitution. In our study, we will present the case law of the Romanian Constitutional Court which is more relevant for the role of this court and constitutional courts in general in protecting democratic values in the context of emergencies, with special reference to the relationship and powers of the public authorities.
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Woś, Tomasz. "Trybunalskie i sądowe stosowanie zasady „ignorantia iuris nocet” na gruncie praktyki orzeczniczej w Polsce." Filozofia Publiczna i Edukacja Demokratyczna 7, no. 1 (September 10, 2018): 181–205. http://dx.doi.org/10.14746/fped.2018.7.1.8.
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The article discusses the issue of the Constitutional Court’s and other courts’ application of the principle of ignorantia iuris nocet in the practice of issuing rulings. Based on the analysis of the case law, it presents the Constitutional Court’s standpoint concerning the role of the principle of ignorantia iuris nocet in the Polish system of law and its application in the Constitutional Court’s case law. At the same time, it discusses other courts’ application of this principle, i.e. its influence on the decision-making processes of the application of law by the Supreme Court, courts of appeal and administrative courts. The analysis of the case law show that the principle of ignorantia iuris nocet plays a special role in the Polish system of law. In their decisions, both the Constitutional Court and other courts concerned emphasise that the Polish system of law, like other contemporary systems of law, is based on this principle, and its violence would lead to unpredictable results in the practice of issuing rulings. There are no major differences between the application of the principle of ignorantia iuris nocet by the Constitutional Court and other courts concerned. In cases involving the ignorance of the law, both the Constitutional Court and other courts commonly recognise and apply, within the scope of their competence, the principle of ignorantia iuris nocet. Administrative law takes a particular stance on the application of this principle. In the Supreme Administrative Court’s judicature, a jurisdictional approach has been adopted that recognises that the operation of this principle is reduced in administrative procedure. In turn, the study of the case law of provincial administrative courts shows that these courts still have not adopted a uniform jurisdictional pattern in this respect.
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Sloth-Nielsen, Julia, and Brigitte Clark. "A superfluous concept? The inherent jurisdiction of the South African superior courts as upper guardians of children." South African Law Journal 141, no. 2 (2024): 391–414. http://dx.doi.org/10.47348/salj/v141/i2a6.
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This article examines the relationship between the role of the superior courts as upper guardians of minors and the constitutionally enshrined right of South African children to have their best interests considered paramount in any matter concerning them. The powerful procedural role of the superior courts in this regard is not subject to review or appeal, enabling the courts to intervene of their own accord on behalf of and to protect all children in their jurisdiction. The article examines whether this upper guardianship role has become superfluous and outdated in light of the constitutional requirement that courts consider the paramountcy of the child’s best interests as an independent right. The High Court’s upper guardianship role provides a more flexible legal basis for judicial intervention, as the case law reviewed in this article indicates. It is also supported by s 173 of the Constitution, which refers to the inherent powers of courts to protect and regulate their own process and to develop the common law, and by s 45(4) of the Children’s Act. Furthermore, the superior courts, as courts of record, enable the development of a system of precedent-based child law, providing judicial reasons for all decisions and justifying the retention of the common-law inherent jurisdiction of the High Court as the upper guardian of children. We conclude that there is a residual role for the continued existence of the powers of the superior courts to act as upper guardians of the children within their jurisdiction, the constitutional best-interests standard notwithstanding.
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Bwire, Buluma, Migai Akech, and Agnes Meroka-Mutua. "Conceptual Framework for Assessing the Performance of Kenyan Courts Undertaking Judicial Review of Legislative Action." Strathmore Law Journal 6, no. 1 (November 17, 2022): 107–33. http://dx.doi.org/10.52907/slj.v6i1.158.
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Article 165 (3) (d) of the Constitution of Kenya 2010 gives the High Court the power of constitutional interpretation and to uphold constitutional supremacy by declaring void any law that is inconsistent with the Constitution or invalid any act or omission contravening it. Within the current Kenyan context, judicial review of legislative action has become the common practice. The courts are constantly drawn into the realm of legislative matters at the national and devolved levels of government established under the Constitution. However, the High Court’s role is limited to interpretation only and it cannot compel Parliament to modify the legislative action contravening the Constitution. Conversely, where the Legislature disagrees with the Court’s assessment of what the constitutional norms require it cannot substitute the Court’s interpretation with its own. The courts are subsequently tasked with the delicate prospect of balancing the legal and political constraints that underlie any case of judicial review of legislative action. This paper develops a conceptual framework for assessing how courts, in general, go about exercising their power of judicial review of legislative action in a way that enables them to adhere to the requirements of the separation of powers doctrine, while considering the legal and political constraints under which they must operate. The resulting framework proposes four possible types of courts that may emerge based on how a court balances the legal and political constraints prevailing upon it.
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Segal (Reshetnikova), S. B., and A. O. Maslov. "Antitrust Legislation in the Context of Constitutional Control: Novelties of Law Enforcement Practice." Russian competition law and economy, no. 2 (June 29, 2024): 10–17. http://dx.doi.org/10.47361/2542-0259-2024-2-38-10-17.
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In December 2023, 30 years have passed since the adoption of the Constitution of the Russian Federation. The positions of the constitutional control bodies have always played and continue to play an important role in the development of antimonopoly legislation and law enforcement practice in cases of protection of competition. In the practice of the Constitutional Court of the Russian Federation (CC of Russia) and a number of other law enforcement officers, competition is considered in the context of the constitutional value that all law enforcement officers, including antimonopoly authorities and courts, are obliged to protect. In the constitutions of a number of foreign countries, there is often no direct indication of the need to protect competition, which increases the role of the highest courts in creating a legal mechanism for its protection. The authors analyze the law enforcement practice of the Constitutional Court of the Russian Federation established after 2018 on the application of antimonopoly legislation and the influence of the positions of the supreme constitutional control body on the development of Russian competition law.
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Pūraitė-Andrikienė, Dovilė, and Andrius Valuta. "The Self-Restrained Positive Legislator: Assessing the Constitutional Review of Legislative Omissions in Lithuania." Baltic Journal of Law & Politics 17, no. 2 (December 1, 2024): 43–60. https://doi.org/10.2478/bjlp-2024-00014.
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Abstract The function of constitutional courts has undergone significant transformation in recent decades. More frequently, constitutional courts, instead of dealing with existing legislation, assume the role of assistants to the legislator. Some of these courts also control the absence of legislation or legislative omissions. This article seeks to explore the approach of the Lithuanian Constitutional Court in handling cases of legislative omission, particularly focusing on its efforts to strike a balance between respecting the autonomy of law-making institutions and upholding the supremacy of the Constitution. The text addresses the extent to which the Constitutional Court has adhered to the principle of self-restraint, ensuring that its interventions do not unduly encroach upon the prerogatives of law-making institutions. To reach this, the following tasks are undertaken and dealt with: 1) to shed light on the concept and typology of legislative omissions in comparative constitutional law, as well as the trends of their investigation (including statistical data) in European countries; 2) to analyse the official constitutional doctrine formulated by the Lithuanian Constitutional Court on the concept of legislative omissions and the scope of the Court’s power to examine legislative omissions; 3) to analyse the approach of the Lithuanian Constitutional Court to legislative omissions from a quantitative point of view, i.e. to examine the statistics of this Court in dealing with legislative omissions and the reasons for its changes.
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GRINEVICH, V. "ROLE OF COURTS OF GENERAL JURISDICTION IN THE IMPLEMENTATION OF CONSTITUTIONAL CONTROL." Vestnik of Polotsk State University Part D Economic and legal sciences, no. 3 (December 18, 2023): 79–83. http://dx.doi.org/10.52928/2070-1632-2023-65-3-79-83.
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Constitutional control and its implementation in the course of interaction between courts of general jurisdiction
and the Constitutional Court are considered. The institution of inquiry from the courts, which existed before the
constitutional changes of 2022 and enshrined in the new edition of the Constitution, is analyzed. Attention is paid to the
mechanism for implementing part two of article 112 of the of the Constitution of the Republic of Belarus and its regulation
in legislation: aspects that may influence the formation of the practice of using the institution of request are identified,
and the author’s proposals for improving the mechanism are formulated.
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Yıldırım, Engin. "Social Rights and the Turkish Constitutional Court." Constitutional Review 7, no. 2 (December 31, 2021): 188. http://dx.doi.org/10.31078/consrev721.
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Through a brief examination of the Turkish experience, this article endeavors to illuminate the debate on the role of constitutional courts in interpreting social rights. The Turkish Constitutional Court has in many cases rejected applications for the annulment of legislation related to social rights, on the grounds that it is within the legislature’s discretion to determine public policy priorities based on economic resources and economic stability. This article suggests the Turkish Constitutional Court has narrowly interpreted constitutionally recognized social rights within the boundaries of the Turkish Constitution, with the notable exception of labor rights in individual applications.
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Farinacci-Fernós, Jorge. "Constitutional Courts as Majoritarian Instruments." ICL Journal 14, no. 4 (December 20, 2020): 379–97. http://dx.doi.org/10.1515/icl-2020-0014.
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Abstract Constitutional courts are portrayed as counter-majoritarian institutions empowered to strike down ordinary legislation that is inconsistent with the constitution. This power is to be used sparingly, since it is seen as being in tension with basic democratic principles. Judicial review in these circumstances should be limited to minority rights protection and the enforcement of structural limitations that prevent majority rule excess. But this is only half the story. Depending on the democratic credentials of the particular constitution, courts that strike down legislation as inconsistent with the constitution can also be said to be engaging in majoritarian action. The characterization of constitutional courts as counter-majoritarian institutions is premised on: (1) the status of ordinary legislation as the quintessential majoritarian instrument, (2) the un-elected nature of judges, (3) a narrow understanding of the concept of the ‘negative legislator’, and (4) the democratic deficit that results when judges impose their views over those enacted by parliament. This Article challenges these assumptions. First, this Article demonstrates that ordinary statutes adopted by elected legislatures are not necessarily the superior articulation of popular will. On the contrary, the democratization of modern constitution-making allows the constitution to acquire ultimate majoritarian status. Because of popular skepticism about the ability of ordinary politics to adequately reflect society’s views on important substantive policy matters, the People have repeatedly decided to bypass the legislative process and directly entrench these policy views in the constitutional text. As a result, it is the constitution that embodies popular will. Second, this Article dissects the so-called counter-majoritarian difficulty, in order to distinguish between illegitimate counter-majoritarian review and legitimate counter-majoritarian review. The former occurs when the constitutional court substitutes the legislature’s policy views with its own, thus generating an impermissible democratic deficit. The latter occurs when the constitutional court invalidates ordinary legislation that violates minority rights or exceeds the structural limits imposed by the constitution. In both instances, counter-majoritarian intervention is warranted, precisely, to make sure that democratic self-government through ordinary politics can be adequately carried out. Third, this Article suggest the existence of a third class of judicial review: legitimate majoritarian review. This is when a constitutional court invalidates ordinary statutes because the legislature attempted to substitute the will of the constitutional drafters with their own. In other words, in instances when the legislative body carries out an anti-majoritarian act by ignoring the policy choices made by the People and entrenched in the constitutional text. When a court strikes down legislation of this sort, it is actually re-establishing majoritarian self-rule by making sure that the constitution’s policy commands are respected. In that sense, the court is not exercising independent judgment. Instead, it becomes the enforcement instrument of the majoritarian constitution to avoid legislative usurpation. This makes the un-elected nature of courts an almost irrelevant factor. Finally, this Article explores how the majoritarian potential of judicial review on constitutional matters interacts with the ‘negative legislator’ role of constitutional courts. In particular, how the ‘negative legislator’ should not be characterized, necessarily, as a limited one.
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Muraviov, Victor. "UKRAINIAN COURTS AND THE PROTECTION OF HUMAN RIGHTS." Actual Problems of International Relations, no. 128 (2016): 68–75. http://dx.doi.org/10.17721/apmv.2016.128.0.68-75.
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The article is focused on the interaction between the Ukrainian courts of general jurisdiction and the Constitutional Court of Ukraine in the area of the protection of human rights. There is emphasized that their independent functioning does not provide for the efficient protection of individual rights and freedoms and significantly increases the number of the judicial recourses of the Ukrainian citizens to the European Court of Human Rights. Particular attention is paid to the role of the Constitutional Court of Ukraine in the protection of human rights, which combines the functions of the constitutional control and constitutional supervision. Its activities are focused on the official interpretation on the Constitution of Ukraine. Attention is paid to the list those who may bring the actions before the Constitutional Court, which includes apart from the state bodies the natural and legal persons. The is mentioning of the issues on initiating of proceedings before the Court. Also broadly is analyzed Constitutional Court’ activities concerning the interpretation of the Constitution in the light of the European Convention on Human Rights and other international agreements dealing with the protection of human rights. The article stresses on the contribution of other Ukrainian courts in the affirmation of the constitutional concept of the protection of human rights and freedoms in Ukraine. The majority of resolutions of such highest judicial body in the system of courts of general jurisdiction as the Supreme Court of Ukraine concern the judgments of the European Court of Human Rights. As it is emphasized in the article the independent functioning on the Constitutional Court and the courts of general jurisdiction does not provide for the cooperation between both branches of courts. Courts of general jurisdiction feel free as to the appeal to the Constitutional Court. Even when such appeals are directed to Constitutional Court the decisions of the letter are not binding to the courts of general jurisdiction. Special attention is paid to the introduction of the institute of constitutional complaint and its positive effect on the judicial mechanism of the protection of human rights in Ukraine.
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Traser, Julianna Sára, Nóra Béres, György Marinkás, and Erzsébet Pék. "The Principle of the Primacy of EU Law in Light of the Case Law of the Constitutional Courts of Italy, Germany, France, and Austria." Central European Journal of Comparative Law 1, no. 2 (December 9, 2020): 151–75. http://dx.doi.org/10.47078/2020.2.151-175.
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This article examines the relationship among national constitutions, constitutional courts, and the primacy of Community Law in connection with four Member States (Germany, France, Italy, and Austria). It starts with the question of whether national constitutions contain a European Union (EU) clause and explicitly provide for the primacy of Community Law. It examines whether any constitutional restriction or reservation has been elaborated in the case law of constitutional courts, and the extent to which the constitutional courts examined can exercise control indirectly over cases of conformity of EU legislative acts with constitutions or cases of misuse of powers (ultra vires acts). The constitutions examined can be considered uniform in that they contain references to the individual Member States’ relationships with the EU and create the possibility of restricting their competence or sovereignty. However, they do not declare the principle of the primacy of Community Law. As a consequence, the constitutional courts of Member States play a key role in the interpretation of the principle of the primacy of Community Law, including the formulation of constitutional requirements and counterbalances in connection with the enforcement of the principle. A reference to constitutional identity appears in the case law of recent decades, the elements of which are elaborated on and filled with more or less specific content by the constitutional courts on a case-by-case basis. In the event of a possible violation of constitutional identity or principles with unconditional effectiveness, some constitutional courts exclude the possibility of Community Law being invoked against the constitution of a Member State, but at least on a case-by-case basis, they maintain the possibility of inapplicability or of creating compatibility. In the latter respect, the article also addresses the limited nature of the powers of constitutional courts to examine the compatibility of EU Treaties and their amendments with the constitution of a Member State (see ex-ante or ex-post review, procedural or substantive examination).
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Dwi Prastyo, Muhammad Ariff, Albiruwahidhan Cahayarizputra, and Daniel Osckardo. "Constitutional Review of ASEAN Charter and Maastricht Treaty." International Journal of Business, Law, and Education 5, no. 2 (October 29, 2024): 2520–29. http://dx.doi.org/10.56442/ijble.v5i2.907.
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This journal will discuss how the role of constitutional courts in Indonesia and France in reviewing the constitutionality of the ratification law of an international treaty. While both Indonesia and France possess a Constitutional Court/Council, both of them have different principles regarding the constitutional review of international treaties. This paper uses normative research with a descriptive analysis approach. We found that in practice, both Indonesia and France can constitutionally review the ratification of an international treaty. Although the Constitutional Court in Indonesia has never annulled the ratification of an international treaty, there remains the possibility of a treaty being ratified and later revoked by the process of judicial review. Meanwhile in France, while judicial review can conflict with the Constitution, in the case of the Maastricht Treaty this led to constitutional amendments to accommodate Maastricht Treaty with the Constitution instead of annuling the treaty altogether
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Berisha, Dardan, and Dardan Vuniq. "SOME OF THE MOST IMPORTANT RULINGS OF THE CONSTITUTIONAL COURT OF REPUBLIC OF KOSOVO." International Journal Vallis Aurea 8, no. 2 (December 31, 2022): 41–48. http://dx.doi.org/10.2507/ijva.8.2.4.97.
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Almost all countries with liberal democracies have established specialized courts whose primary function and paramount role fulfi l an extremely important role in the protection of human rights, interpretation and protection of the constitution as well as defi ning and promoting important principles such as the separationof powers, rule of law and the protection of minorities and other constitutional values. Constitutional courts utilizing case law and precedent have played pivotal roles in determining the constitutional identities of theirrespective states. Since its establishment, The Constitutional Court of the Republic of Kosovo(“CCK”or “TheCourt”) has been very active in its decision-making and has greatly infl uenced the defi nition and cultivationof the constitutional identity of Kosovo. Its decisions have defi ned important constitutional frameworks suchas the protection of human rights, protection of the rights of national minorities, separation of powers andunity of the state and many other important principles. It can be said that, in general, the Court has been theguardian of the Constitution and constitutional democracy, fulfi lling the main purpose of its establishment.This paper will address the jurisdiction and organization of the Constitutional Court of Kosovo, and some ofthe important decisions which have undoubtedly played an important role in determining the constitutionalidentity of the country.
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Lailam, Tanto, and M. Lutfi Chakim. "A PROPOSAL TO ADOPT CONCRETE JUDICIAL REVIEW IN INDONESIAN CONSTITUTIONAL COURT: A STUDY ON THE GERMAN FEDERAL CONSTITUTIONAL COURT EXPERIENCES." PADJADJARAN Jurnal Ilmu Hukum (Journal of Law) 10, no. 2 (2023): 148–71. http://dx.doi.org/10.22304/pjih.v10n2.a1.
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The study aims to propose an adoption to concrete judicial review in Indonesian Constitutional Court based on the experiences of the German Federal Constitutional Court. It was motivated by the weak protection of citizen’s constitutional rights in ordinary court; and the absence of concrete judicial review authority at the Indonesian Constitutional Court. This study used doctrinal legal research method with legal documents or regulations, cases, and comparative analyses. This concrete review confirms the role of judges of ordinary courts in proceeding with the constitutional system, especially in protecting fundamental rights from the legislatures’ law violations based on Articles 93, 94, and 100 of the German Basic Law and the GFCC Act. The Indonesian Constitutional Court needs a concrete review authority in the future and the GFCC is the best judicial reference. There are several constitutional and legal arguments. Constitutional arguments and legal facts explain the necessity of the authority for the Indonesian Constitutional Court. Firstly, there are many cases faced by Indonesian Constitutional Court. Secondly, it can provide solutions for the dualism judicial review problem on conflicted decisions between the Constitutional Court and the Supreme Court. Thirdly, it can strengthen the role of judges in the Supreme Court (general, religious, military, and administrative courts) to generate the obligation to uphold the 1945 Constitution. The proposal through the amendment of the 1945 Constitution is an ideal way to create legal certainty and to strengthen institutions for the protection of fundamental rights in Indonesia.
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Éva Földes, Mária. "The Role of Constitutional Courts in Promoting Healthcare Equity: Lessons from Hungary." Constitutional Review 6, no. 2 (December 30, 2020): 282. http://dx.doi.org/10.31078/consrev624.
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This paper explores whether constitutional litigation contributes to sustaining the equity element of the right to health. Equity entails a fair distribution of the burden of healthcare financing across the different socio-economic groups of the population. A shift towards uncontrolled private healthcare provision and financing raises equity challenges by disproportionately benefitting those who are able to afford such services. The extent to which equity is enforced is an indicator of the strength of the right to health. However, do domestic constitutional courts second-guess, based on equity, policy decisions that impact on healthcare financing? Is it the task of constitutional courts to scrutinize such policy decisions? Under what conditions are courts more likely to do so? The paper addresses these questions by focusing on the case of Hungary, where the right to health has been present in the Fundamental Law adopted in 2010 and the Constitutions preceding it. While the Hungarian Constitutional Court has been traditionally cautious to review policy decisions pertaining to healthcare financing, the system has been struggling with equity issues and successive government coalitions have had limited success in tackling these. The paper discusses the role of constitutional litigation in addressing such equity concerns. In doing so, it contributes to the discussion on the role of domestic constitutional courts in the protection of social and economic rights.
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Hunter-Henin, Myriam. "CONSTITUTIONAL DEVELOPMENTS AND HUMAN RIGHTS IN FRANCE: ONE STEP FORWARD, TWO STEPS BACK." International and Comparative Law Quarterly 60, no. 1 (January 2011): 167–88. http://dx.doi.org/10.1017/s0020589310000709.
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A major constitutional reform has occurred in France. On 1 March 2010, by virtue of the Constitutional Act of 10 December 20091 (itself pursuant to the constitutional reform of 23 July 2008)2 a new form of constitutional review came into force,3 with the blessing of the Conseil constitutionnel (the Constitutional council).4 The changes are considerable: the role of the Conseil constitutionnel has undergone a revolution which will have implications for ordinary courts as well as for citizens' rights. Arguably, the reform transforms the Conseil constitutionnel—so far a council with limited powers of review—into a true Constitutional court, and as discussed below, opens up constitutional issues in ordinary litigation, enhancing the protection of citizens' human rights. Owing to the reform, ‘Constitutional rights and liberties guaranteed by the Constitution’ can now be invoked against legislation in the course of litigation. This is a true revolution in France because, up until now, no individual was allowed to invoke the jurisdiction of the Conseil constitutionnel,5 nor were they authorized to invoke a constitutional principle in litigation, as this would have been asking ordinary judges to assess a piece of legislation against the Constitution, a task which exclusively belongs to the Conseil constitutionnel.6 Constitutional rights and liberties will now (as is further discussed below) play a key part in ordinary litigation.
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Hasani, Enver. "The Role of the Constitutional Court in the Development of the Rule of Law in Kosovo." Review of Central and East European Law 43, no. 3 (August 13, 2018): 274–313. http://dx.doi.org/10.1163/15730352-04303003.
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Kosovo’s Constitutional Court has played a role of paramount importance in the country’s recent history. The author uses a comparative analysis to discuss the role of the Court in light of the work and history of other European constitutional courts. This approach sheds light on the Court’s current role by analyzing Kosovo’s constitutional history, which shows that there has been a radical break with the past. This approach reveals the fact that Kosovo’s current Constitution does not reflect the material culture of the society of Kosovo. This radical break with the past is a result of the country’s tragic history, in which case the fight for constitutionalism means a fight for human dignity. In this battle for constitutionalism, the Court has been given very broad jurisdiction and a role to play in paving the way for Kosovo to move toward Euro-Atlantic integration in all spheres of life. Before reaching this conclusion, the author discusses the specificities of Kosovo’s transition, comparing it with other former communist countries. Among the specific features of constitutionalism in Kosovo are the role and position of the international community in the process of constitution-making and the overall design of constitutional justice in Kosovo. Throughout the article, a conclusion emerges that puts Kosovo’s Constitutional Court at the forefront of the fight for the rule of law and constitutionalism of liberal Western provenance.
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Suharno, Suharno, Amir Junaidi, and Muhammad Aziz Zaelani. "Embodying The Meaning Of The Guardian Of The Constitution In The Role Of The Constitutional Court Of Reducing Constitutions Indicated By Policy Corruption." International Journal of Educational Research & Social Sciences 2, no. 3 (June 29, 2021): 592–99. http://dx.doi.org/10.51601/ijersc.v2i3.88.
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Purpose of this study was to answer two problems: (i) how is the guardian of the constitution embodied through the function of the Constitutional Court; and (ii) how the Constitutional Court as the guardian of the constitution reduces constitutions that are indicated by the policy corruption. Policy corruption is an invisible and covert element that able to threaten the synergy of the legal system and the public interest. The form of policy corruption is realized in the form of a law. Efforts that can be made to reduce the policy corruption are to implement the tight control over the media, which in this case is relevant to the function of the Constitutional Court. This studywas classified as doctrinal research with primary and secondary legal materials. Comparative approach and case approach were used to answer the legal issues. The results showed that: First, the guardian of the constitution through the function of the Constitutional Court through the optimization of the Constitutional Court Judges as the agent of constitution, strengthening the execution of the Constitutional Court decisions and collaborative steps with other state institutions in enforcing the constitutional guardianship. Second, the Constitutional Court as the guardian of the constitution in reducing laws indicated by the policy corruption is manifested in the form of a Constitutional Court decision that can be retroactive to recover the impact of legal losses that are indicated by the policy corruption, the decision of Constitutional Courtis justified by ultra vires to anticipate the chain of constitutions that indications of policy corruption, the decision of Constitutional Courtis strengthened in terms of its execution and the Court can examine or test the Constitution Drafting (bill/ RUU) (a priori review) as a preventive measure to prevent the enactment of laws that indicate policy corruption.
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Mujuzi, Jamil D. "Construing pre-1995 laws to bring them in conformity with the Constitution of Uganda: Courts' reliance on article 274 of the Constitution to protect human rights." African Human Rights Law Journal 22, no. 2 (January 25, 2023): 1–28. http://dx.doi.org/10.17159/1996-2096/2022/v22n2a9.
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Article274 of the Ugandan Constitution (1995) provides that laws that existed at the time of the entry into force of the Constitution 'shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it in conformity with this Constitution'. The jurisprudence from Ugandan courts shows that they have adopted three approaches to give effect to article 274 and, as a result, protected human rights such as the right to equality (freedom from discrimination), property, human dignity, liberty and the right to bail. The first approach is for the court to read word(s) into the impugned legislative provision without any deletions. This is done in one of the two ways: by either reading these words expressly into the impugned legislation, or by doing so impliedly. The second approach is for the court to strike out words from the impugned provision and replace these with new words. According to this approach, the court either adds a few words or overhauls the entire provision. It is argued that overhauling a legislative provision is beyond the mandate of the court's power under article 274 and it ignores the principle of separation of powers in terms of which Parliament has the role to make laws. The third approach is for the court to 'strike out' or 'read out' words from the impugned legislation without replacing them. Although the Constitutional Court is the only court with the mandate to declare legislation inconsistent with the Constitution (under article 137), other courts have invoked article 274 to declare legislation unconstitutional, thus usurping the powers of the Constitutional Court. Is it argued that the Constitution may have to be amended so that other courts, other than the Constitutional Court, are also empowered to declare legislation unconstitutional on condition that such declaration takes effect after it has been confirmed by the Constitutional Court. A similar approach has been followed in other African countries such as South Africa.
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Wieser, Bernd. "Die Änderung der russischen Verfassung 2020 – Auswirkungen auf die Verfassungsgerichtsbarkeit." osteuropa recht 66, no. 3 (2020): 415–36. http://dx.doi.org/10.5771/0030-6444-2020-3-415.
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The Russian Constitution of 1993 was subjected to its most extensive revision in 2020. The primary purpose of the changes was to strengthen the role of the President of the Republic. In addition, the position of the Constitutional Court was also significantly modified. The various extensions of the Constitutional Court‘s powers can only superficially be classified as “strengthening” the court itself. In terms of “power politics” they primarily benefit the President. He can now dismiss constitutional judges without major procedural obstacles. In all the newly added competencies for preventive abstract normative control, the President is the only body entitled to file an application. In this respect, it is him who can influence and control legislation even more efficiently than before, and the Constitutional Court is realistically no more than its “auxiliary organ.” The fact that the Constitutional Court‘s position as a “defensive instance” against decisions of international courts has been strengthened leads to Russia‘s legal self-isolation and is likely to burden cooperation in international organizations. Other constitutional amendments may well be understood as “upgrading” the Constitutional Court or strengthening the constitutional state. This applies in particular to the considerable expansion of the objects of review in the procedure of individual constitutional complaints and in the procedure of concrete review of norms.
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SAPIANO, JENNA. "Courting peace: Judicial review and peace jurisprudence." Global Constitutionalism 6, no. 1 (March 2017): 131–65. http://dx.doi.org/10.1017/s2045381716000253.
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Abstract:The current debate measuring the trade-offs between democracy and judicial review is unable to analyse the influence of courts in post-conflict states. However, a court with authority over constitutional review is commonplace in new constitutions, including those that have been drafted (or revised) as part of a political settlement. This article suggests that judicial institutions are as important as political institutions in sustaining a political settlement. As this article sets out, the parties to a peace process are required to make numerous compromises to negotiate new (or revised) institutional arrangements. Several cases are considered which illustrate how domestic constitutional courts were asked to mediate between tensions inside the political settlement. In all of the examples, the courts interpreted peace to be the most important constitutional value, or the primary purpose of the constitution. The judiciary played a role in maintaining the constitutional link to the elite pacts of the peace agreement, while acknowledging that the link should not preserve elite pacts permanently or without limit. The article argues, first, that these cases constitute evidence of an emergent global ‘peace jurisprudence’ based on purposive interpretation and a principle of proportionality that protects the foundations of the political settlement, and, second, questions the extent to which international courts are willing or able to adopt this jurisprudence.
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Cruz, Julio Baquero. "The Changing Constitutional Role of the European Court of Justice." International Journal of Legal Information 34, no. 2 (2006): 223–45. http://dx.doi.org/10.1017/s0731126500001463.
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The process through which the founding Treaties of the European Communities came to function and be regarded as a constitution and the role of the Court of Justice in that process are well known. According to a widespread view, the Court would have been the main or even the only actor in the constitutionalization of the Treaties, transforming them into constitutional entities by virtue of some judgments of the 60s and 70s. For many, in those judgments the Court would have been excessively prointegrationist, too audacious, almost “running wild”. At some point, a number of constitutional courts, in particular the German Constitutional Court with its Maastricht decision of 1993, would have voiced their concerns, tracing potential limits to judicially driven integration. As a result, the Court of the 90s would have become wiser, more self-restrained, at times even minimalistic – more like a court and less like an omnipotent legislator or “pouvoir constituent.” With the calling of the European Convention and the drafting of the Treaty establishing a Constitution for Europe, the Court would have been more than ever on a second plane, as if constitutional matters had finally returned to the political actors to which they belong.
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Bysaga, Yu M., and V. V. Berch. "On the Specifics of the Constitutional and Legal Status of Judges of the Constitutional Court of Ukraine." Analytical and Comparative Jurisprudence, no. 6 (December 27, 2023): 102–6. http://dx.doi.org/10.24144/2788-6018.2023.06.16.
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Judges of the Constitutional Court of Ukraine possess a distinct status that combines elements of functional purpose within an independent body of constitutional jurisdiction and an individual entity of judicial authority.
Emphasized is the constitutional and legal status of judges of the Constitutional Court of Ukraine, which can be viewed from two different perspectives. Broadly speaking, it is a significant constitutional and legal institution encompassing various aspects: societal, professional (in terms of material and legal status), procedural, and administrative (linked to the governance of courts). On the other hand, a narrow approach to the constitutional and legal status of judges of the Constitutional Court defines it as a system of judges' powers and duties prescribed by the Constitution and laws of Ukraine.
It is noted that the procedure for the oath-taking by judges of the Constitutional Court of Ukraine differs from that of judges in general courts, highlighting their specificity: the oath signifies their solemn commitment to Ukraine, indicating the fulfillment of their constitutional functions within the state, rather than merely judicial activities in a general sense.
In summary, the constitutional and legal status of judges of the Constitutional Court of Ukraine constitutes a system of legislatively defined norms and rules that regulate their role in society and the process of exercising constitutional justice. On the other hand, this legal position officially acknowledges and legitimizes their role as judges of the Constitutional Court, encompassing all aspects related to the execution of constitutional control functions. The legislatively defined legal status of judges of the Constitutional Court determines their powers, duties, and rights concerning the exercise of constitutional jurisdiction, regulating the procedures by which judges of the Constitutional Court make decisions, provide official interpretations of the Constitution of Ukraine, and perform other functions prescribed by the Constitution and legislation. The established norms set standards of activity ensuring their objectivity, independence, and high professional responsibility in exercising constitutional jurisdiction. Within this normative system, the constitutional and legal status of judges of the Constitutional Court is fundamental to ensuring legal stability, protecting constitutional values, and upholding the fundamental principles of the rule of law in Ukraine.
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BARBU, S.-G., and C. M. FLORESCU. "THE APPEAL IN THE PROCEDURE OF NOTIFYING THE CONSTITUTIONAL COURT." Bulletin of the Transilvania University of Braşov Series VII Social Sciences • Law 14(63), no. 2 (January 20, 2021): 399–404. http://dx.doi.org/10.31926/but.ssl.2021.14.63.2.23.
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The Constitutional Court may be notified by the judiciary courts for the settlement of exceptions of unconstitutionality of a law or ordinance or of a provision of a law or ordinance in force, which is related to the settlement of the case. The courts have a filtering role regarding the admissibility of the referral to the Constitutional Court. If the court decides that the referral to the Constitutional Court is inadmissible, the act is subject to a specific appeal, with its own configuration, drawn up in the jurisprudence of the Constitutional Court and of the judiciary courts.
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Thorarensen, Björg. "Dómstólaeftirlit með Alþingi: Breytt valdahlutföll í stjórnskipuninni." Veftímaritið Stjórnmál og stjórnsýsla 12, no. 1 (June 15, 2016): 23. http://dx.doi.org/10.13177/irpa.a.2016.12.1.2.
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The article focuses on how the control of the judiciary over the legislature has increased in the last decades and the reasons for altered balance of powers in the Icelandic constitutional system are explored. Earlier theories of parliamentary precedence over other branches of state power are in transition. There is a growing trend towards the balancing of powers, in which the courts monitor that legislation complies with the constitution. A comparison is made with the developments in the constitutional systems of Denmark and Norway which points at the same direction. The European Convention on Human Rights and constitutional amendments in 1995 have affected the interpretation methods of the Icelandic courts and strengthened their supervisory role. Ideas underlying constitutional democracy, rule of law and effective remedies for individuals are prevailing over the idea of preferred position of the legislative power vis-à-vis the judiciary. The courts see it as a constitutional duty to adjudicate whether a legislative act conforms with constitutional human rights. The Supreme Court of Iceland has referred to the wide discretion of the legislature in the field of fiscal powers, such as regarding taxation and the social security system. However, even where legislation aims at the implementation of important political policies, the discretion of Althingi is subject to certain limits. The effective judicial control requires that Althingi must assess carefully whether legislation which limits constitutionally protected human rights conforms with the principles of equality and proportionality.
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Korenica, Fisnik. "“Advise and Rule” or “Rule by Advising”: The Changing Nature of the Advisory Jurisdiction of the Constitutional Court of Kosovo." German Law Journal 21, no. 8 (December 2020): 1570–85. http://dx.doi.org/10.1017/glj.2020.89.
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AbstractConstitutional courts play an essential role in authoritatively interpreting constitutions. Oftentimes they go beyond the constitutional text by inventing so-called judge-made law. Their authority to interpret the text covers not only substantive parts but also the clause authorizing their jurisdiction. Such power, namely the power to interpret the limits of their jurisdiction, is often used to intervene in the interpretation of the constitution more vigorously than explicitly authorized. One example is the invention, designation, and development of the advisory jurisdiction by the Constitutional Court of the Republic of Kosovo. On that basis, the Court has, for almost ten years of its existence, pronounced on numerous fundamental issues relating to the governing system, power maps, and entitlements on political authority. The Court developed its advisory jurisdiction in a rather unpredictable and impulsive fashion; however, it steadily revealed its willingness to engage with interpretations that sought to resolve high-stakes issues. Such braveness also had a credibility cost for the Court. The year 2018 marked a major shift in the Court’s interpretation of its own jurisdiction to “advise.” In the Central Election Commission case, it abandoned its previous precedent and commenced a passive, restrained attitude in engaging with the constitutional interpretation on the basis of case or controversy. This Article analyzes the Court’s path and change of course in this cycle.
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Scarcello, Orlando. "The Randstad Case: Melki Reloaded? The Fundamental Right to Effective Judicial Protection as Battleground for Judicial Supremacy in European Law." Nordic Journal of European Law 4, no. 1 (August 26, 2021): 53–68. http://dx.doi.org/10.36969/njel.v4i1.23445.
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This paper will examine the recent preliminary reference to the European Court of Justice issued by the Italian Court of Cassation in the Randstad case, aimed at rearranging the internal constitutional separation between ordinary and administrative courts (article 111(8) of the Constitution). I will first provide some context on both the relations between Italian and EU courts (2.1) and on the confrontation between the Court of Cassation and the Constitutional Court in interpreting article 111 (2.2). I will then specifically examine the referring order to the Court of Justice of the EU (3), focusing on the role of general clauses of EU law as articles 4(3) and 19 TEU and 47 of the Charter in it. Finally, I will consider the instrumental use of EU law made by the Cassation to overcome an unpleasant constitutional arrangement. This aligns Randstad with previous cases such as Melki or A v. B and may foster constitutional conflict in the future.
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Piqani, Darinka. "Arguments for a Holistic Approach in European Constitutionalism: What Role for National Institutions in Avoiding Constitutional Conflicts between National Constitutions and EU law." European Constitutional Law Review 8, no. 3 (October 2012): 493–522. http://dx.doi.org/10.1017/s1574019612000302.
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Relation between national constitutions and EU law – Constitutional conflict – Role of national institutions in avoiding constitutional conflict – A need for a holistic approach in European constitutionalism – Constitutional courts put forward constitutional requirements next to constitutional reservations – The need to bring constitutions in line with EU law before accession – The role of parliaments and governments in avoiding conflict when implementing EU law – Role of national institutions in decision-making at EU level
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Matteucci, Stefano Civitarese. "Breaking the Isolation? Italian Perspectives on the Dialogue Between the European Court of Justice and Constitutional Courts." European Public Law 22, Issue 4 (November 1, 2016): 689–715. http://dx.doi.org/10.54648/euro2016041.
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This article focuses on the relationships between the Italian Constitutional Court (ICC) and the Court of Justice of the European Union (ECJ) when the necessity of managing policies affecting delicate constitutional issues is at stake. The mechanisms which govern the use by national courts and particularly constitutional courts of the preliminary reference are put under scrutiny. The author claims that for the dialogue between the two courts to work is important to review the legal premises on which the involvement of a constitutional court in matters of European Union (EU) law is based. In Italy in principle only when EU law lacks direct effect would there be room for the ICC to intervene in the process of adaptation of the domestic legal system to the European, irrespective of the matter at stake. In this way the role of a constitutional court is barely distinguishable from regular courts. The article purports that this situation is unsatisfactory from a normative point of view according to which constitutional courts should take part – using preliminary reference to the ECJ – in a broader European constitutional discourse and that a concept of ‘sensitive constitutional issues’ should instead inspire the mechanism by which constitutional courts deal with the area covered by Article 267 TFEU.
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Lino, Dylan. "The Australian Constitution as Symbol." Federal Law Review 48, no. 4 (September 10, 2020): 543–55. http://dx.doi.org/10.1177/0067205x20955076.
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According to a conventional story told by scholars, the Australian Constitution is virtually invisible as a symbol within Australian political debate and culture. This article challenges that conventional story, arguing that the Constitution plays a more significant public role than is commonly assumed. Analysing the ongoing debate over the constitutional recognition of Aboriginal and Torres Strait Islander peoples, the article highlights four prominent symbolic Constitutions: the practical, the liberal, the outdated and the exclusionary. These constitutional symbols are mobilised by different political actors for a range of political purposes. Understanding constitutional symbolism helps in seeing the ideological work performed by the Constitution outside the courts and prompts constitutional scholars to be more conscious of how they contribute to that ideological work through their representations of the Constitution.
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Hofmann, Mahulena, and Martin Faix. "Der Einfluss und die Stellung des Völkerrechts in den Verfassungssystemen einiger ost- und Mitteleuropäerfassungssystemen Einiger Ost- und Mitteleuropäischer Transformationsstaaten." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 11, no. 3 (June 26, 2017): 40. http://dx.doi.org/10.17159/1727-3781/2008/v11i3a2767.
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Some twenty years ago, the importance of international law, particularly for practical purposes, could be described as marginal in national legal orders in the socialist Central and Eastern European (CEE) Countries. The main reason for this was the dualist approach in regard to international law. Fundamental political and economic changes, such as the Velvet Revolution in Czechoslovakia, marked the end of the cold war and the beginning of a transition process. The changes in national legal orders have been accompanied by substantial modifications in the area of constitutional law, mostly resulting in the adoption of entirely new or radically modified constitutions. This is true also for the Czech Republic, Slovakia, Poland and the Russian Federation. One of the most remarkable common characteristics of the new constitutions of the CEE countries is the shift from a dualistic approach to a broad openness to international law. Despite this common feature the manifestation of this openness cannot be regarded as uniform – the methods used by states to deal with international law and to ensure the conformity of the domestic legal order with their international obligations vary. The common denominator of the constitutional orders under review is the fact that the rules of international law are considered to be a part of their national legal orders. General provisions concerning the relationship between national law and international law can be found in the Czech, Russian and Polish constitutions, but not in the Slovak constitution. The common feature of all four constitutional texts is that they take a clear position on the status of treaties, stipulating conditions (approval by parliament, promulgation, etc) under which a treaty or certain categories of treaties (eg as listed by Article 49 of the Czech Constitution) will be considered to be part of the national legal order, as well as the hierarchical status of treaties in the case of a conflict with national law. In all four countries under consideration, the rank of treaties lies between the level of the Constitution and that of ordinary parliamentary statutes. The situation is considerably different in regard to the role of customary international law: only the Russian Constitution includes not only treaties but also customary international law in the legal order. Nevertheless, Slovak, Czech and Polish constitutional provisions stipulate the commitment of the states to fulfil their obligations under international law, including customary international law. Even though legally binding, these provisions are not identical with general provisions incorporating certain categories of international law as stated above. The openness to international law is demonstrated also by the inclusion of provisions pursuant to which states can transfer certain powers to international organizations. (Such provisions were included in the constitutions of e.g. Slovakia, Poland and the Czech Republic in the context of their integration into the EU for the purpose of ensuring the direct application of Community law.) Thus, if considering the formal openness to international law, a high degree of willingness to open the domestic legal orders to international law can be discerned in the constitutional systems of the states under review. However, the extent of constitutional provisions on the relation of a particular state to international law does not necessarily strengthen its application in practice, as can be observed in the legal order of the Russian Federation. When determining the factual status of international law and its incorporation in the domestic legal orders of the CEE countries, the judicial practice of national courts is of great importance, in particular the judicial practice of constitutional courts. The question of the role of international law in the decisions of constitutional courts appears to be even more interesting because of the fact that implementation of constitutional jurisdiction belongs to one of the most important innovations of CEE transition countries after the end of the cold war. Their broad competencies in respect to international law can be seen as an additional indicator of the openness of their legal orders towards supranational legal rules. International law plays an important role not only as a subject of judicial review but also as a criterion of constitutionality applied in national procedures before the constitutional courts. The extensive jurisprudence of national constitutional courts based on international law is to a large extent characteristic of the CEE Countries. Their constitutional courts often rely on international law, especially human rights, when reviewing the constitutionality of domestic acts. This underlines the fact that general constitutional provisions on international law do not remain only a ‘dead letter.’ However, when demonstrating their openness towards international law, constitutional courts sometimes exceed the limits of their competences, as can be observed e.g. in the case of the Czech Constitutional Court. (Despite the fact that the changes introduced by the Constitution in 2001 caused it to lose the competence to use international law as a criterion for its decisions, the Court continued to base its decisions partly on international law.) Generally it can be argued that the acceptance of international law is remarkably high in the legal orders of the countries under review – in particular when taking into consideration the relatively short time which was needed not only to formally ensure the role of international law, but also to ensure its implementation in practice, most notably in the judicial practice of constitutional courts. This does not mean, however, that there are no difficulties which have to be solved in the future. The application of customary international law by national courts is an example of this. However, the opening of national legal systems of the formerly totalitarian states towards international law has undoubtedly had a positive influence on the process of their transformation towards the rule of law.
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Szabó, Zsolt. "Missed Constitutional Moments and Real Constitutional Conflicts in Hungary 1989 v. 2011." Przegląd Prawa Konstytucyjnego 70, no. 6 (2022): 477–86. http://dx.doi.org/10.15804/ppk.2022.06.35.
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This paper, examining the Hungarian example argues that that the price is high if a constitutional moment to adopt a constitution based on wide societal compromise has been missed. The constitution-making process might then be completed either by activist courts or by activist political forces. Hungary experienced two major constitutional reforms, both missing a consensual constitutional momentum. The first transformation in 1989–90, which replaced the socialist authoritarian system by democracy, was brought about by political elites, lacking democratic legitimacy, keeping the formal legal framework of the socialist constitution. The second reform in 2011 brought a formally new constitution (Fundamental Law of Hungary), initiated and adopted solely by the governing party (FIDESZ) with a constitutional majority, without consensus. The Constitutional Court both times attempted to play an active, corrective role in the aftermath of the constitution-making.
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Huber, Peter M., Christoph Grabenwarter, Rajko Knez, and Ineta Ziemele. "The Role of the Constitutional Courts in the European Judicial Network." European Public Law 27, Issue 1 (March 1, 2021): 43–62. http://dx.doi.org/10.54648/euro2021003.
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The constitutional courts play a paramount role within the European judicial area and form a specific branch of the judicial network, including the Court of Justice of the European Union (CJEU) and the European Court of Human Rights. Within the European Union (EU) with its specific compound structure, in which national legal orders and Union law reciprocally influence, complement, determine and affect each other, national constitutional courts and the CJEU are not only assigned with the common task to enforce EU law, but also to preserve its limits, first and foremost the principle of conferral and the constitutional identities of the Member States. The respect for these limits is an essential prerequisite for the Member State’s participation in the EU and repeatedly enshrined in the Treaties. In order to be able to fulfil this common tasks all sides need to engage in sincere cooperation and a dialectic process, the potential of which must not be curtailed by hierarchical perceptions.Whereas the national (constitutional) courts are obliged to respect the CJEU’s authority to ultimately decide on the interpretation of EU law in principle, it is the CJEU’s obligation to take their referrals seriously and thoroughly adress concerns brought forward. The constitutional courts of the Member States are assigned with the constitutional responsibility to accompany the process of European integration in order to ensure that sovereign rights are only transferred in line with the respective provisions as well as that the excercise of competences respects the limits laid down in the Treaties and does not interfere with the constitutional identities of theMember States. It is of course again for the CJEU to review whether EU institutions, bodies, offices, and agencies act within their mandate in the first place including a quite large tolerance for different interpretations. To the extend the CJEU, however, fails to assume this responsibility, it is for the constitutional courts of the Member States to step in. The desirable success of the European integration largely depends on an orderly, sustainable and generally accepted process in the long run to which the network of constitutional courts can make a decisive contribution, provided it is designed and lived as a true cooperation among equals. In this regard it is not only necessary to intensify the joint efforts, but also to evaluate possibilities to enhance the involvement of the national courts, in particular the establishment of a reverse preliminary ruling procedure. duty to give reasons, administrative measure, participation, administrative procedure
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Tribl, Norbert. "Integration Responsibility: The Relationship of National Constitutional Courts to the Court of Justice of the European Union." Law, Identity and Values 4, no. 1 (June 13, 2024): 251–69. https://doi.org/10.55073/2024.1.251-269.
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As long as the peoples of Europe are unable to create a homogeneous, united society, the principle of ‘unity in diversity’ will be a natural limit to the development of the ‘ever closer union’ clause, and this is not a mere philosophical or theoretical argument; it is rather a fact-based inadequacy that must be reflected in the European legal order and the concrete competences and their limits, especially in the relationship between the Court of Justice of the European Union and the European national constitutional and higher courts. The undefined nature of the relationship between European Union (EU) law and national constitutions (resulting from the supranational nature of integration) forced European national constitutional courts to assume a role that could also be seen as a functional change in terms of the entirety of the European constitutional judiciary. The role of these bodies seems to be complemented by a kind of ‘integrational’ function; the European national constitutional courts must no longer only defend their national constitutions but must do so while considering the proper advancement of the integration process. They must act in a manner that upholds the Court of Justice of the European Union’s (CJEU) right to an authentic interpretation of the Treaties; however, taking into account that the CJEU, as an institution of the EU, is not entitled to make decisions ultra vires against the framework set by the Treaties.
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Čačík, Marián. "Dudová and Duda before the Czech Constitutional Court: The question of autonomy of religious organizations." Studia z Prawa Wyznaniowego 25 (December 22, 2022): 67–90. http://dx.doi.org/10.31743/spw.13768.
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In the Czech Republic, the autonomy of churches is constitutionally guaranteed in a rather broad manner. The constitutional and legal basis for Church autonomy lies in the Charter of Fundamental Rights and Freedoms, which is part of the Czech constitutional order. It represents both an objective institutional guarantee (religious neutrality of the state) and the subjective right of religious communities to independence from the state and self-governance of their own affairs (the right to self-determination). Compared to other domains of the said autonomy, the staffing of churches is a relatively frequent subject of theoretical reflection and decision-making on the part of Czech courts. The Constitutional Court of the Czech Republic had to express its opinion on some problematic cases, in particular, the limits of Church autonomy. The case of Duda and Dudová is an example of a conflict between civil rights and the autonomy of churches in the modern Czech history. It started with Duda and Dudová’s dismissal from the pastoral ministry in the Czechoslovak Hussite Church in 1993, and the last (so far) decision related to this case was issued by the Constitutional Court in 2021. This article discusses the long and tortuous journey through the Czech judiciary system, which Duda, Dudová, and the Czechoslovak Hussite Church had to go through in order to clarify consequences of church autonomy. A particular deviation in the Supreme Court’s decision-making played an interesting role in this process. However, it was the Constitutional Court, which acted as the guardian of constitutional values (including the internal autonomy of churches), that placed this anomaly in the decision-making of the Supreme Court and, subsequently, general courts back within constitutional limits.
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KOLESNIKOV, D. A. "THE ROLE OF PRACTICE OF CONSTITUTIONAL (CHARTER) COURTS OF CONSTITUENT ENTITIES OF THE RUSSIAN FEDERATION IN PROTECTION AND DEVELOPMENT OF SOCIAL RIGHTS OF A MAN AND CITIZEN." Actual Problems of Russian Law, no. 5 (June 18, 2019): 60–68. http://dx.doi.org/10.17803/1994-1471.2019.102.5.060-068.
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The article highlights the activities of the constitutional (charter) courts of the constituent entities of the Russian Federation concerning the protection of social rights of citizens and their role in the mechanism of protection of these rights. The author provides examples from judicial practice on the issues of their respect, implementation and interpretation. Attention is paid to extra-procedural activities of constitutional (charter) courts and their contribution to the development and improvement of the theory of social rights, social norms of law, including through published and declared messages. The author focuses on their positive role in strengthening the constitutional legality and the principles of the Social State. The paper contains the statistical data concerning the consideration of cases, namely the ratio between court decisions on issues of social rights and the total number of final court acts (on the example of the constitutional courts the Volga Federal District). A number of key problems of regional constitutional proceedings are highlighted, including implementation (enforceability) of decisions of constitutional (charter) courts affecting social rights of citizens.
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Brown, Adam R. "The Role of Constitutional Features in Judicial Review." State Politics & Policy Quarterly 18, no. 4 (July 18, 2018): 351–70. http://dx.doi.org/10.1177/1532440018786732.
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American state constitutions vary tremendously in their length, amendment rate, and age. These three variables—especially the first two—strongly influence the rate at which state supreme courts strike down state actions for violating the state constitution. Longer, more detailed constitutions reduce policy flexibility, increasing judicial invalidations; rarely updated constitutions may fail to address modern concerns, increasing invalidations; and recently adopted constitutions may contain fragile logrolls and similar shortcomings, also increasing invalidations. These findings add new considerations to a rich literature on judicial review in state supreme courts.
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Onyshchuk, I. I. "The Impact of Judicial Practice on Legislative Transformation: the Law-Making Role of Constitutional Control of the US Supreme Court." TRANSFORMATION LEGISLATION OF UKRAINE IN MODERN CONDITIONS DOCTRINAL APPROACHES AND MEASUREMENTS, no. 14 (September 1, 2023): 75–80. http://dx.doi.org/10.33663/2524-017x-2023-14-75-80.
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The purpose of the article consists in the characteristics of the constitutional control of the US Supreme Court as a form of judicial law-making from the point of view of general scientific, philosophical, theoretical-legal and practical positions. The novelty of the article consists in characterizing the law-making role of judicial practice of the Anglo-Saxon legal system and its comparison with the development of judicial practice in the Romano-Germanic legal system. It was found out that the mechanism of judicial law-making was formed in the USA under the influence of the rule of precedent inherited from English practice – stare decisis. And this led to court decisions becoming the most important source of law. It is argued that the American model of judicial constitutional control, the elements of which are borrowed and used in some European countries, is effective in conditions where proper interaction between specialized bodies (for example, the constitutional court) and courts of general jurisdiction is not established. It is shown that, according to the American model, the review of constitutional issues is carried out decentralized (by all courts), and according to the European model, it is centralized (by the body of constitutional control). Constitutional control in the USA is not limited to negative law-making. The task of the Court is to ensure the supremacy and direct effect of the Constitution on the entire territory of the state and in relation to all subjects of law. That is why constitutional control also includes positive law-making, which results from the interpretation of legislative norms or the encouragement of legislatures to create new norms. However, this does not mean at all that the judicial power encroaches on the functions of the legislator or somehow puts him in a dependent position. In the USA, the Constitution’s precept, according to which the branches of government must be separated from each other, remains inviolable. But at the same time, their interconnection and interaction is not denied. The author came to the conclusion that one of the directions of judicial control, which shows the formal side of law-making, is its implementation in “negative” and “positive” form. At the same time, the Supreme Court of the United States, canceling any law in full or in a certain part, i.e. actually carrying out “negative law-making”, creates the prerequisites for the creation of a new rule of law, which should fill the gap. Constitutional control in the USA is a form of law-making activity of the Supreme Court of the USA with the aim of protecting the foundations of the constitutional system, the basic rights and freedoms of a person and a citizen, ensuring the supremacy and direct effect of the Constitution, as well as preventing the emergence of unconstitutional acts in the legal system. Key words: legal system, law-making process, judicial practice, constitutionalism, supremacy of the Constitution, stare decisis.
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Dendane, Bakhta. "CONSTITUTIONAL PROTECTION OF THE RIGHT TO HEALTH." Journal of Law and Sustainable Development 12, no. 11 (November 21, 2024): e4147. http://dx.doi.org/10.55908/sdgs.v12i11.4147.
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Purpose: This study aims to explore the constitutional protection of the right to health in Algeria, emphasizing its enshrinement within national constitutions and oversight by the constitutional court. Methodology: Utilizing an analytical and descriptive approach, this research examines the constitutional texts and legislative measures relevant to the right to health, focusing on their evolution and current implementations. Results: The analysis reveals that while the Algerian constitution integrates the right to health with other fundamental rights, such as access to drinking water and a clean environment, the practical availability of these rights is hindered without the state's active provision of necessary resources. Practical Implications: This study underscores the necessity for proactive state intervention in actualizing the right to health, advocating for a comprehensive legal framework that ensures access to healthcare irrespective of individuals' financial capabilities. Originality/Value: This research contributes to the academic discourse on constitutional law by highlighting the dynamic interplay between constitutional mandates and the practical enforcement of the right to health, offering insights into the essential role of constitutional courts in safeguarding human rights within a legal framework.
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Winkler, Matteo M. "Same-Sex Marriage and Italian Exceptionalism." ICL Journal 12, no. 4 (March 26, 2019): 431–56. http://dx.doi.org/10.1515/icl-2018-0037.
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Abstract This article unveils Italy’s exceptionalism in recognising and protecting same-sex couples by adopting a three-dimension analysis: constitutional, comparative and supranational. It maintains that, compared to other countries whose courts were sympathetic with the legal claims raised by lesbian and gay people, Italy’s Constitutional Court adopted a totally different approach, reinforcing the heteronormativity of marriage in a way that delayed all efforts to pass a law on same-sex registered partnerships. The Constitutional Court, in particular, interpreted the Constitution, the experience of other nations and supranational law according to heteronormativity, an example that is unique in the comparative context. As an illustration, this article addresses the case Bernaroli vs Ministry of the Interior. In Bernaroli, a male-to-female transgender person wanted to remain married to her wife notwithstanding the transition. The case ignited a heated debate among scholars and questioned the courts’ opinions as to the human rights dynamics surrounding same-sex marriage and, more importantly, about the current role of heteronormativity in marriage law. This article concludes that the legal existence of Bernaroli’s marriage represents a constant challenge to the status quo and highlights the permanent crisis of heteronormativity. After the Austrian Constitutional Court’s recent ruling that declared the law on same-sex domestic partnership to be discriminatory, heteronormativity’s defence became even more untenable, making Italy’s a true exception in the continent’s legal landscape.
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Komárek, Jan. "The Place of Constitutional Courts in the EU." European Constitutional Law Review 9, no. 3 (November 5, 2013): 420–50. http://dx.doi.org/10.1017/s157401961200123x.
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Going beyond ‘judicial dialogues’ and ‘conflict-and-power’ approaches to the analysis of national constitutional courts' role in the EU – The idea of European constitutional democracy – National constitutional courts constrain individual autonomy expanded by European integration – National constitutional courts defend the scope for political autonomy – Against national constitutional courts' displacement – Simmenthal II – After the ‘Rights Revolution’ in Europe – National constitutional courts' references to the ECJ – Ordinary courts challenging national constitutional courts through the preliminar y reference procedure – Parallel references – National constitutional courts enforcing EU law – National constitutional courts challenging EU law
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Sehnálek, David, and Václav Stehlík. "European “Judicial Monologue” of the Czech Constitutional Court – a Critical Review of its approach to the Preliminary Ruling Procedure." International and Comparative Law Review 19, no. 2 (December 1, 2019): 181–99. http://dx.doi.org/10.2478/iclr-2019-0020.
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Summary The paper analyses the use of the preliminary ruling procedure by the Czech Constitutional Court and the attitude of this court towards the EU law. The approach of the Constitutional Court to the judicial dialog is also compared with some other European constitutional courts mainly with those who have a similar role in national judiciary or with those who were able to effectively take an advantage of the preliminary ruling procedure. The paper demonstrates that the Czech Constitutional Court took the position that seems to be unsustainable from a long time perspective as the reality of the current development favours the spirit of cooperation among European highest courts.
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Allan, T. R. S. "Law, Convention, Prerogative: Reflections Prompted by the Canadian Constitutional Case." Cambridge Law Journal 45, no. 2 (July 1986): 305–20. http://dx.doi.org/10.1017/s0008197300120987.
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The recent patriation of the Canadian Constitution has been a fascinating process for constitutional lawyers. The role of the Canadian Supreme Court, in adjudicating on the legality and the constitutional propriety of the proceedings, has raised issues of great interest and importance. In accepting jurisdiction to pronounce on the existence of convention, the court removed a traditional barrier between law and convention: the former being applied and articulated in the courts, the latter being a matter of political practice, without authoritative definition. The majority judgments nevertheless place great weight on the orthodox distinction between law and convention, and the separation of legal and political principle which that distinction assumes. My purpose here is to question the court's reasoning as regards both law and convention. I shall argue that recent developments in public law cast doubt, even if only indirectly, on the utility of the orthodox distinction. The view that courts do not “enforce” conventions, though adequate for some purposes, may frustrate constructive thought. In any particular case in which convention is pleaded in aid of law, there are more useful and important questions to ask.
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Garlicki, Leszek. "Stosowanie konstytucji przez sądy i trybunały (ile monopolu, a ile dekoncentracji?)." Studia Prawnicze / The Legal Studies, no. 2 (226) (December 31, 2022): 31–57. http://dx.doi.org/10.37232/sp.2022g.
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W artykule podjęto problem sądowego stosowania konstytucji we współczesnych realiach kryzysu polskiego porządku konstytucyjnego, rysującego się od jesieni 2015 r. Punktem wyjścia w części 1 jest przypomnienie zasady konstytucjonalizmu, wymagającej traktowania konstytucji jako instrumentu prawnego, więc nadającego się do stosowania w procedurach sądowych. Wyróżnia się trzy podstawowe formy tego stosowania: stosowanie samoistne norm konstytucyjnych, współstosowanie norm konstytucyjnych i ustawowych, a także stosowanie kolizyjne (zwłaszcza kontrolę konstytucyjności ustaw). Dalsze rozważania koncentrują się na stosowaniu kolizyjnym.W części 2 analizowany jest kontekst wprowadzenia sądowej kontroli w Polsce w końcu minionego stulecia. Wzorem Europy kontynentalnej zdecydowano się na wprowadzenie odrębnego sądu konstytucyjnego (model kelsenowski). Przemawiały za tym argumenty tradycyjne dotyczące roli ustawy, sądów „sądowych” oraz sądu konstytucyjnego. Konstytucja RP z 1997 r. skłaniała się ku monopolowi TK w kontroli konstytucyjności ustaw, ale sądy nie w pełni ten monopol uznawały. Dzisiejsza perspektywa, poruszona w części 3, jest jednak inna, bo z jednej strony kryzys konstytucyjny doprowadził do politycznej absorpcji TK, a z drugiej – sądy „sądowe” nauczyły się stosowania konstytucji i są dziś zdolne do incydentalnej kontroli konstytucyjności ustaw. Prowadzi to do konkluzji, że de lege lata, istnieją argumenty wspierające samodzielność sądów w sprawowaniu tej kontroli, a de lege ferenda, konieczne będzie rozważenie, czy istnienie odrębnego sądu konstytucyjnego zasługuje w Polsce na kontynuację. The article deals with the problem of the judicial application of the Constitution in the ongoing constitutional crisis in Poland. The starting point (part I) is to recall the principle of constitutionalism. This entails treating the Constitution as a legal instrument, which could (and should) serve as a norm of reference in specific cases or controversies decided by the courts. There are three basic forms of the judicial application: the autonomous application of constitutional norms, the co-application of constitutional and statutory norms and and – discused in this article - the judicial review of constitutionality of statutory norms.Part II of the article contains an analysis of the context in which constitutional review in Poland was introduced at the end of the last century. Following the example of continental Europe, it was decided to establish a separate constitutional court (the Kelsenian model). This was supported by traditional arguments concerning the role of statutes, the capacities of regular courts and the advantages of a ‘new’ constitutional court. The 1997 Constitution tended towards a monopoly of the Constitutional Tribunal in the review of the constitutionality of statutes. However, the regular courts (including the Supreme Court and the High Administrative Court) have never recognised this monopoly unconditionally.Today’s perspective (part III) is different. On the one hand, the constitutional crisis has led to the political absorption of the Constitutional Tribunal. It raises the more general question of what the necessary traits of a ‘constitutional court’ are. On the other hand, the regular courts have learnt to apply the Constitution (as well as other supra-statutory instruments, such as EU law and ECHR law) and are now capable of exercising an incidental review of statutes. This leads to the conclusion that, de lege lata, there are arguments supporting the autonomy of courts in exercising incidental review and that, de lege ferenda, it might be necessary to consider whether a separate constitutional court in Poland should continue to exist.
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Chuma-Okoro, Helen. "The Nigerian Constitution, the ecowas Treaty and the Judiciary: Interplay of Roles in the Constitutionalisation of Free Trade." Global Journal of Comparative Law 4, no. 1 (April 17, 2015): 43–78. http://dx.doi.org/10.1163/2211906x-00401002.
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This paper discusses the Nigerian Constitution and the ecowas Treaty to determine whether and how they support free trade as envisioned in the Treaty, and the role of the judiciary in the realisation of this objective. Focusing on the ecowas Community Court and Nigerian superior courts vested with jurisdiction over constitutional matters, it argues that specific constitutional norms and policies of Nigeria inhibit the realisation of the objectives of free trade as constitutionalised in the ecowas Treaty. Relying on the principles of direct applicability and direct effect, and the arguments developed around these principles in relation to the obligations of State parties to treaties, it argues further that Community law should be applicable in national jurisdictions and enforced by national courts. Thus, Nigerian courts and the ecowas Community Court both have jurisdiction to arbitrate matters arising from national laws and policies having the effect of inhibiting the ecowas objectives of free trade. It concludes that while the ecowas and Nigerian frameworks support the interplay of roles in the adjudication and enforcement of ecowas norms, this would depend on the extent to which some of the constitutional and policy constraints in question are addressed.