The Case Study: Forced Internal Displacement and the Intervention of the Colombian Constitutional Court

2015 ◽  
pp. 30-60
Author(s):  
Cesar Rodriguez-Garavito ◽  
Diana Rodriguez-Franco
Keyword(s):  
Internal Displacement ◽  
Constitutional Court

scholarly journals Addressing local government issues in the practice of the Constitutional Court of the Russian Federation during the implementation of municipal reform in Russia

2020 ◽  
Vol 6 (2) ◽  
pp. 133-147
Author(s):  
Aleksey Andreevich Amiantov
Keyword(s):  
Russian Federation ◽  
Descriptive Analysis ◽  
Constitutional Court ◽  
Local Authorities ◽  
Constitutional Principle ◽  
Municipal Reform ◽  
The Russian Federation ◽  
Regional Authorities ◽  
Legal Consequences

The presented study is devoted to the study of the practice of the Constitutional Court of the Russian Federation in relation to issues of local self-government in the context of the municipal reform of 2014-2015. and its legal consequences. The aim of this work is to carry out a comprehensive assessment of the practice of the Constitutional Court of the Russian Federation on the identified problems of the work of local authorities in the period following the start of municipal reform. The research methodology is built by combining descriptive analysis elements and a case study. It is concluded that the Constitutional Court of the Russian Federation has consistently maintained its position on the constitutional nature of the reform of local authorities. The provisions of the relevant regulatory legal acts are limited only partially and only in relation to first-level municipalities - municipal authorities of settlements. Given the deprivation of the latter a significant part of the powers and the observed transition to a singlelevel system of local self-government, the adoption of these restrictions does not significantly affect the implementation of the reform. Of fundamental importance is the position of the Constitutional Court of the Russian Federation regarding the new powers of regional authorities in relation to municipalities. The increase in the arsenal of legal instruments of the influence of the leadership of the constituent entities of the federation on the heads of local self-government was not interpreted as a violation of the constitutional principle of the independence of municipalities. The latter opens up the possibility for further legalization of the process of embedding municipal bodies in the structure of the informal “power vertical”.

Integrating De Jure Independence

2019 ◽  
pp. 125-168
Author(s):  
Brad Epperly
Keyword(s):  
Case Studies ◽  
Regime Type ◽  
Constitutional Court ◽  
Expert Interviews ◽  
Costs And Benefits ◽  
Government Officials ◽  
Out Of Sample

Chapter 4 addresses the disconnect between the results in Chapter 3 and existing case studies of competition and independence. It argues that in democracies, changes in the competitiveness of the electoral arena should primarily be associated changes in the formal, de jure provisions for courts. This is because the costs and benefits of infringing on de jure vs. de facto insurance vary across regime type. In democracies, the stronger effects of constitutionalism mean that flouting the rules has a greater likelihood of producing public backlash. The main test of this argument is an in-depth case study of the de jure attacks on the independence of the judiciary in Hungary after the 2010 election. This case study draws on extensive expert interviews with leading legal scholars, government officials, and Hungarian Constitutional Court justices. Recognizing that theories should be tested “out of sample” whenever possible, it ends by assessing the argument cross-nationally, and demonstrates that in democracies changing levels of competition are associated with changes in de jure rather than de facto independence.

18. Human Rights and Forced Migration

2016 ◽  
Author(s):  
Gil Loescher
Keyword(s):  
Human Rights ◽  
Forced Migration ◽  
International Community ◽  
World Politics ◽  
Internal Displacement ◽  
High Commissioner ◽  
Forced Migrants ◽  
International Refugee Regime

This chapter examines the link between human rights and forced migration. It first considers the human rights problems confronting forced migrants both during their flight and during their time in exile before discussing the differing definitions accorded refugees today as well as the difficulty in coming up with a widely accepted definition. It then explores the roles and functions of the Office of the UN High Commissioner for Refugees and the international refugee regime. It also uses the case study of Myanmar to illustrate many of the human rights features of a protracted refugee and internal displacement crisis. Finally, it describes how the international community might respond to new and emerging challenges in forced migration and world politics, and better adapt to the ongoing tension between the power and interests of states and upholding refugee rights.

Explaining Judicial Authority in Dominant-Party Democracies: The Case of the Constitutional Court of South Africa

2019 ◽  
Author(s):  
David K. Ma
Keyword(s):  
South Africa ◽  
South African ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Business Elites ◽  
Dominant Party ◽  
Judicial Appointments ◽  
Wealth Redistribution ◽  
Determining Factor

Why do authoritative constitutional courts sometimes thrive even in dominant-party regimes? This article identifies as a key determining factor the constitutional entrenchment of wealth redistribution via private corporate equity transfers. Since the policy threatens private capital, the dominant party would want to avoid massive capital flight by credibly committing to a restrained practice of indirect expropriation through an authoritative constitutional court that can apply a brake to the policy when it goes too far. The analysis is based on an in-depth case study of the Constitutional Court of South Africa. The empirical research includes conducting an expert survey on judicial appointments that tests a crucial observable implication of the theory, as well as performing process tracing that involves interviewing South African business elites.

Balancing and judicial self-empowerment: A case study on the rise of balancing in the jurisprudence of the German Federal Constitutional Court

2015 ◽  
Vol 4 (1) ◽  
pp. 49-80 ◽  
Author(s):  
NIELS PETERSEN
Keyword(s):  
Judicial Power ◽  
Constitutional Court ◽  
Argumentation Framework ◽  
Constitutional Review ◽  
Federal Constitutional ◽  
German Constitutional Court ◽  
The Relationship ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

AbstractMany critics of the proportionality principle argue that balancing is an instrument of judicial self-empowerment. This contribution argues that the relationship between balancing and judicial power is more complex. Balancing does not necessarily create judicial power, but it presupposes it. This argument is confirmed through a case study of the German Federal Constitutional Court. The analysis shows that the German Constitutional Court was very reluctant to base decisions, in which it overturned legislation, on balancing in the first two and a half decades of its jurisprudence. However, in the late 1970s, once the Court had strengthened its own institutional position, it increasingly relied on balancing when declaring laws as incompatible with the constitution. Then, balancing developed into the predominant argumentation framework of constitutional review that it is today in the Court’s jurisprudence.

scholarly journals Menakar Konstitusionalitas Syari’at Islam dan Mahkamah Syar’iyah di Provinsi Aceh

2019 ◽  
Vol 16 (3) ◽  
pp. 606
Author(s):  
Hani Adhani
Keyword(s):  
House Of Representatives ◽  
Historical Study ◽  
Constitutional Court ◽  
High Court ◽  
Technical Management ◽  
Aceh Province ◽  
The Law ◽  
The Republic ◽  
The Government

Salah satu point penting yang diatur dalam perjanjian Helsinki terkait dengan penegakan hukum di Aceh adalah diberlakukannya Qanun dengan tujuan untuk menghormati tradisi sejarah Islam dan adat istiadat rakyat Aceh yang mayoritas muslim. Selain itu, untuk mensinergikan antara Qanun dengan pengadilan, maka di Provinsi Aceh dibentuk suatu sistem peradilan Syar’iyah yang tidak memihak dan independen, termasuk pengadilan tinggi yang tetap merupakan bagian dari sistem peradilan Republik Indonesia. Pembentukan Pengadilan Syar’iyah di Provinsi Aceh merupakan salah satu upaya untuk membuat kekhususan sebagaimana diatur dalam perjanjian Helsinki pada tahun 2005.  Namun, dalam dataran teknis pengaturan manajemen pengadilan Syar’iyah juga masih terkendala khususnya oleh karena adanya dua aturan hukum yang berlaku yaitu Qanun yang dibuat oleh Dewan Perwakilam Rakyat Daerah Provinsi Aceh dan undang-undang yang dibuat oleh Dewan Perwakilan Rakyat beserta Presiden. Hal tersebut berakibat Undang-Undang Pemerintahan Aceh yang mengatur tentang teknis pengaturan pengadilan Syar’iyah dan pembuatan Qanun juga banyak di lakukan judicial review ke Mahkamah Konstitusi. Tulisan ini bertujuan untuk melakukan analisa tentang efektifitas pemberlakukan Qanun dan pengadilan Syar’iyah di Provinsi Aceh pasca di undangkannya Undang-Undang Pemerintahan Aceh. Adapun tulisan ini dibuat dengan menggunakan metode penulisan normatif dengan pendekatan studi historis dan pendekatan studi kasus. Hasil penelitian menunjukkan bahwa pengadilan Syar’iyah yang telah dibentuk di Provinsi Aceh meski pada awalnya mengalami kendala namun dapat berjalan baik. Adanya kekhususan yang diberikan kepada Provinsi Aceh merupakan bagian dari upaya untuk menjalankan amanat konstitusi khususnya Pasal 18B UUD 1945.Kata kunci: Qanun, Pemerintahan Aceh, Mahkamah Syar’iyah, Mahkamah Konstitusi. Abstract One crucial point stipulated in the Helsinki agreement related to law enforcement in Aceh is the enactment of the Qanun with the aim of respecting Islamic historical traditions and the customs of the Acehnese people who are predominantly Muslim. Besides, to synergise between the Qanun and the court, in the Province of Aceh a Syar'iyah justice system was formed which was impartial and independent, including a high court which remained part of the judicial system of the Republic of Indonesia. The establishment of the Shariah Law in Aceh Province was one of the efforts to make it specific as stipulated in the Helsinki agreement in 2005. However, in the field of technical management of the Syariah court management is also still constrained especially due to the existence of two applicable laws namely the Qanun made by the Aceh Province Regional People's Representative Council and laws made by the House of Representatives and the President. This resulted in the Law on the Government of Aceh governing the Syar'iyah court and the Qanun being judged by the Constitutional Court. This paper aims to analyse the effectiveness of the implementation of Qanun and the Syar'iyah court in Aceh Province after the enactment of the Law on the Governing of Aceh. The writing is made using normative writing methods with historical study approaches, and case study approaches. The results of the study showed that the Syar'iyah court which had been formed in the Aceh Province even though initially had problems but could work well. The specificity given to the Aceh Province is part of an effort to carry out the mandate of the constitution, especially Article 18B of the 1945 Constitution. 

scholarly journals LEGAL PROTECTION OF THE PARTIES IN CREDIT AGREEMENT WITH FIDUCIARY GUARANTEE AFTER THE ISSUENCE OF CONSTITUTIONAL COURT DECISION No. 18/PUU-XVII/2019

2021 ◽  
Vol 6 (2) ◽  
pp. 65-77
Author(s):  
Celina Tri Siwi Kristiyanti
Keyword(s):  
Economic Value ◽  
Legal Protection ◽  
Court Decision ◽  
Constitutional Court ◽  
Legal Certainty ◽  
Study Approach ◽  
Credit Agreement ◽  
Wheeled Vehicles ◽  
Legal Consequences

Fiduciary Guarantee Law is one of the material guarantees specifically regulated in Law No. 42 of 1999 on Fiduciary Guarantees that realizes the public's need for legal certainty but guaranteed objects still have economic value.  Article 15 of Law No. 42 of 1999 concerning Fiduciary Guarantees is felt burdensome to debtors, because creditors make forced efforts to take fiduciary guarantee objects in the form of 2-wheeled and 4-wheeled vehicles. The purpose of this study is (1) Finding and analyzing the basis of the Constitutional Court's Decision No. 18/PUU-XVII/2019 (2) Finding and explaining the legal consequences of the Constitutional Court Decision No. 18/PUU-XVII/2019 on legal protection for parties to credit agreements with fiduciary guarantees (3) Finding and explaining constraints on Financial Service Institutions (LJK) in the implementation of constitutional court decision No. 18/PUU-XVII/2019.  The research method used is juridical normative and empirical with a case study approach so that achievements are more comprehensive related to the principle of legal protection for parties in fiduciary guarantees. The result obtained that since the Decision of the Constitutional Court No. 18/PUU-XVII/2019, the executive confiscation cannot be done directly by creditors must go through a court decision. The executorial confiscation in Article 15 of Law Number 42 concerning Fiduciary Guarantee has been contrary to Article 1 (3), Article 27 (1), Article 28D (1), Article 28G (1) and Article 28H (4) of the Constitution of 1945. It takes good faith from the parties so that the implementation of the Constitutional Court Decision No. 18/PUU-XVII/2019 guarantees justice, legal certainty and provides legal protection. An agreement is required in accordance with the principle of freedom of proportionate contract, there is a balance of position between the debtor and the creditor.

The Political Foundations of Judicial Independence in Dictatorship and Democracy

2019 ◽  
Author(s):  
Brad Epperly
Keyword(s):  
Political Competition ◽  
Case Study Research ◽  
Formal Theory ◽  
Judicial Independence ◽  
The Political ◽  
Constitutional Court ◽  
Autocratic Regimes ◽  
Elite Interviews ◽  
Political Foundations

This book argues that explaining judicial independence—considered the fundamental question of comparative law and politics—requires a perspective that spans the democracy/autocracy divide. Rather than seeking separate explanations in each regime context, in The Political Foundations of Judicial Independence in Dictatorship and Democracy, Brad Epperly argues that political competition is a salient factor in determining levels of de facto judicial independence across regime type, and indeed of greater import in autocracies. This is because a full “insurance” account of independence requires looking not only at the likelihood those in power might lose elections but also the variable risks associated with such an outcome, risks that are far higher for autocrats. First demonstrating that courts can and do provide insurance to former leaders, he then shows via exhaustive cross-national analyses that competition’s effects are far higher in autocratic regimes, providing the first evidence for the causal nature of the relationship. Epperly argues that these findings differ from existing case study research because in democratic regimes, a lack of political competition means incumbents target the de jure independence of courts. This argument is developed via in-depth case study of the Hungarian Constitutional Court after the country’s 2010 “constitutional revolution,” and then tested globally. Blending formal theory, observational and instrumental variables models, and elite interviews of leading Hungarian legal scholars and judges, Epperly offers a new framework for understanding judicial independence that integrates explanations of both de jure and de facto independence in both democratic and autocratic regimes.

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