Introduction

2021 ◽  
pp. 3-30
Author(s):  
Alejandro Linares-Cantillo
Keyword(s):  
Transitional Justice ◽  
Constitutional Law ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Constitutional Amendments ◽  
Leading Role ◽  
Comparative Constitutional Law ◽  
The Republic

This introductory chapter provides an overview of the twenty essays compiled for the XIII conference of the Constitutional Court of the Republic of Colombia, which was held in Bogota in January of 2019. The collection is divided into three thematic parts which illustrate five subjects at the spotlight of comparative constitutional law, in light of the growing circulation and intensification of the idea of constitutionalism. The first part examines the evolving and leading role of constitutional courts in constitutional democracies. The second part allows constitutional experiences speak for themselves and discusses tensions and debates in three topics: (A) the growing trend to judicially enforce 'constitutional unamendability' under the doctrine of 'unconstitutional constitutional amendments'; (B) the idea of 'transformative constitutionalism' in the area of social rights enforcement; and (C) the models of transitional justice and their implementation in the Colombian case. Finally, the third part analyses vertical and horizontal movements of constitutional law doctrines and decisions.

Kelsen versus Schmitt and the Role of the Sub-National Entities and Minorities in the Appointment of Constitutional Judges in Continental Systems

ICL Journal ◽  
2021 ◽  
Vol 14 (4) ◽  
pp. 523-543
Author(s):  
Antoni Abat Ninet
Keyword(s):  
European Commission ◽  
Constitutional Law ◽  
Separation Of Powers ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
The Third ◽  
Comparative Constitutional Law ◽  
Constitutional Justice ◽  
The Guardian

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.

A Constitutional Tradition in the Making: The Presidents’ Cases and the Role of Kosovo’s Constitutional Court in the Process of Democratic Consolidation

ICL Journal ◽  
2013 ◽  
Vol 7 (1) ◽  
Author(s):  
Qerim Qerimi ◽  
Vigan Qorrolli
Keyword(s):  
Political Stability ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Political Landscape ◽  
First Case ◽  
Head Of State ◽  
Judicial Supremacy ◽  
The Republic ◽  
Constitutional Tradition

AbstractIn a period of less than a year, two decisions of the newly established Constitu­tional Court of the Republic of Kosovo resulted in the resignation of two Presidents of the new State. Ruling on the unconstitutionality of the act of simultaneously holding the position of the head of State and that of his political party, in one case; and ruling on the unconstitutionality of his election due to procedural irregularities in the other, the Court prompted fundamental changes to the political landscape of Kosovo that in the first case led to new and extraordinary elections, whereas in the second to a political arrangement that would ultimately lead to constitutional reforms. Following the Court’s decisions, both Presidents (Sejdiu and Pacolli) resigned from their posts.This article offers a textual analysis of the merits and controversies surrounding both decisions, which will be situated in the broader context of the seemingly powerful role of Constitutional Courts in certain societies in transition. The overall analysis demonstrates the weaknesses inherent to the initial stages of State formation, and to the foundational con­stitutional instrument, indicating the importance of the Constitution’s clarity for political stability. In an environment characterized by a dominant perception of a politicized judiciary, the Court’s decisions testify to the judicial activism of the Constitutional Court and, in terms of the substance and consequences of its key decisions, also to judicial supremacy. The Court’s decisions have also had some significance for testing the country’s political culture, a test that has been met in both cases eventually with compliance by those most affected.

Die Änderung der russischen Verfassung 2020 – Auswirkungen auf die Verfassungsgerichtsbarkeit

2020 ◽  
Vol 66 (3) ◽  
pp. 415-436
Author(s):  
Bernd Wieser
Keyword(s):  
International Organizations ◽  
Constitutional Court ◽  
Power Politics ◽  
Constitutional Amendments ◽  
International Courts ◽  
Constitutional State ◽  
Russian Constitution ◽  
The Republic ◽  
And Control

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.

Constitutionalism

2021 ◽  
Keyword(s):  
Transitional Justice ◽  
Judicial Review ◽  
Legal Theory ◽  
Constitutional Court ◽  
Economic Rights ◽  
National Courts ◽  
Academic Conference ◽  
Global North ◽  
The Republic

This book is a compilation of twenty essays prepared for the occasion of the XIII Academic Conference of the Constitutional Court of the Republic of Colombia, held in Bogota in January of 2019. Gathering some of the most prominent authors in constitutionalism and legal theory, the chapters critically examine classical debates. These debates concern the role of judicial review in a democracy, the enforcement of socio-economic rights, the doctrine of unconstitutional amendments, the use of international and foreign precedents by national Courts, and the theory of transitional justice. The book opens a dialogue between philosophers and empirical researchers, building bridges between 'Global North' and 'Global South' approaches to constitutionalism. As such, it is an invitation to reengage with the classical debates on constitutionalism whilst also providing fresh insights into the future of this discipline.

scholarly journals Encuesta: el método comparado en Derecho constitucional

2018 ◽  
pp. 15
Author(s):  
Benito Aláez Corral ◽  
Francisco Balaguer Callejón ◽  
Raul Canosa Usera ◽  
María Jesús García Morales ◽  
Javier García Roca ◽  
...  
Keyword(s):  
Constitutional Law ◽  
Comparative Method ◽  
Present Situation ◽  
Constitutional Court ◽  
Comparative Constitutional Law ◽  
Law Professors

En esta encuesta un grupo de Catedráticos de Derecho Constitucional contestan un conjunto de preguntas sobre el uso del método comparado en el derecho constitucional español, y sobre la influencia de modelos o referentes extranjeros durante el proceso constituyente, en la actividad legislativa y en la del Tribunal Constitucional, así como también algunas preguntas sobre los estudios de derecho constitucional comparado.In this academic survey a group of Constitutional Law Professors answer some questions about the role of the comparative method in the Spanish constitutional law, and the influence of foreign models in the constitutional process, the legislator and the Constitutional Court, as well as about the present situation of comparative constitutional law studies.

The role of Constitutional Courts in Transitional Justice: Colombia and South Africa

2016 ◽  
Vol 9 (15) ◽  
Author(s):  
Nadiehezka Paola Palencia Tejedor
Keyword(s):  
South Africa ◽  
Structural Analysis ◽  
Transitional Justice ◽  
Critical Analysis ◽  
Historical Context ◽  
Constitutional Courts ◽  
Political Background ◽  
Similarities And Differences ◽  
Peace And Reconciliation

This work focuses on a compared analysis of the South Afri- can decision related to the “peace and reconciliation act” of this country’s Parliament, and the Colombian decision regarding the amendment of the constitution called “The juridical framework for the peace.” Turning to the structure, it is developed in three major topics: 1. It provides a brief of the historical context, political background and an overview of the two decisions.2. It gives a structural analysis of the powers that each Court has and the nature of the constitutional mechanism through which both Courts decided the constitutionality of the said norms 3. It presents a critical analysis on the similarities and differences between the two systems and judgments. It presents some con- clusions. 

The Role of the Constitutional Court in the Development of the Rule of Law in Kosovo

2018 ◽  
Vol 43 (3) ◽  
pp. 274-313
Author(s):  
Enver Hasani
Keyword(s):  
Material Culture ◽  
Rule Of Law ◽  
Constitutional Court ◽  
Constitutional History ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
The Past ◽  
History Of ◽  
Communist Countries

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.

scholarly journals Imunitas Hukum Bagi Notaris Yang Membuka Rahasia Jabatan

Jurnal Akta ◽  
2018 ◽  
Vol 5 (1) ◽  
pp. 25
Author(s):  
Rita Permanasari ◽  
Akhmad Khisni
Keyword(s):  
Law Enforcement ◽  
Supervisory Board ◽  
Legal Protection ◽  
The Political ◽  
Constitutional Court ◽  
The Law ◽  
Notary Public ◽  
The Republic ◽  
Law Regulation

ABSTRAKKetentuan Pasal 4 dan Pasal 16 ayat (1) huruf f Undang-Undang Jabatan Notaris mewajibkan notaris untuk menjaga kerahasiaan segala sesuatu mengenai akta yang dibuatnya dan segala keterangan yang diperoleh guna pembuatan akta sesuai dengan sumpah janji jabatan kecuali undang-undang menentukan lain. Kemungkinan terhadap pelanggaran kewajiban tersebut berdasarkan Pasal 16 ayat (11) Undang-Undang Jabatan Notaris, seorang notaris dapat dikenai sanksi berupa teguran lisan sampai dengan pemberhentian dengan tidak hormat. Terlebih lagi dengan adanya putusan Mahkamah Konstitusi Republik Indonesia dengan Nomor: 49/PUU–X/2012 memutuskan telah meniadakan atau mengakhiri kewenangan Majelis Pengawas Daerah (MPD) yang tercantum dalam Pasal 66 ayat (1) UUJN membuat notaris seakan-akan tidak ada perlindungan hukum bagi notaris dalam menjalankan tugas jabatannya. Ikatan Notaris Indonesia (INI) harus berusaha menjalankan peranan pembinaan dan perlindungan meningkatkan pengetahuan, kemampuan dan keterampilan para notaris. Demikian juga menjalin hubungan dengan para penegak hukum lainnya, agar penegak hukum lainnya yang ada hubungan dengan notaris dapat memahami kedudukan notaris sesuai UUJN.Berangkat dari pemikiran inilah kewajiban ingkar notaris masih tetap dipertahankan oleh pembuat undang-undang dalam revisi Undang-Undang Jabatan Notaris Tahun 2014 yang merupakan konfigurasi kekuatan perlindungan terhadap profesi dan jabatan notaris dari sisi politik.Kata Kunci : Jabatan Notaris, Hak Ingkar, Perlindungan Hukum.ABSTRACTThe provisions of Article 4 and Article 16 paragraph (1) sub-paragraph f of the Notary's Office Law require a notary to maintain the confidentiality of all matters concerning the deeds it has made and all the information obtained for the deed in accordance with the oath of pledge of office except the law otherwise. The possibility of breach of such obligation under Article 16 paragraph (11) of Notary Law Regulation, a notary public may be subject to sanctions in the form of oral reprimands until dismissal with disrespect. Moreover, with the decision of the Constitutional Court of the Republic of Indonesia with the number : 49 /PUU-X/2012 deciding to have canceled or terminated the authority of the Regional Supervisory Board (MPD) listed in Article 66 paragraph (1) UUJN made a notary as if there was no legal protection for a notary in performing duties. The Indonesian Notary Bond (INI) should endeavor to undertake the role of guidance and protection to increase the knowledge, abilities and skills of the notaries. Likewise establish relationships with other law enforcers, so that other law enforcement who has relationship with the notary can understand the position of notary under the UUJN.Departing from this thought the obligation of notarization is still maintained by the lawmakers in the revision of the Law Regulation of Position Notary on Year 2014 which is the configuration of the strength of the protection of the profession and the notary's position from the political side.Keyword : Position of Notary, Right of Remedy, Legal Protection.

Constitutional Democracy and Electoral Commissions: A Reflection from Asia

2021 ◽  
pp. 1-9
Author(s):  
Rosalind Dixon ◽  
Mark Tushnet
Keyword(s):  
Sri Lanka ◽  
Constitutional Law ◽  
Global South ◽  
Constitutional Democracy ◽  
Comparative Constitutional Law

This symposium explores the role of “fourth branch” institutions, and specifically the role of independent electoral commissions (IECs) in protecting and promoting constitutional democracy. It does so by focusing on the global South, and Asia in particular. It aims to go beyond the “usual suspects” in comparative constitutional law, and put the constitutional experiences of countries such as Indonesia, Kenya, Myanmar, Malaysia, and Sri Lanka at the centre of a decolonized constitutional project and understanding, supplementing them with an examination of more-often-studied systems such as Australia and India.

The Resilient Constitution

2021 ◽  
pp. 277-309
Author(s):  
David Dyzenhaus ◽  
Alma Diamond
Keyword(s):  
South Africa ◽  
South African ◽  
Transitional Justice ◽  
Comparative Approach ◽  
Constitutional Court ◽  
Extreme Pressure ◽  
The Face ◽  
Justice Process ◽  
The One

This chapter evaluates the so called 'transitional constitution' of South Africa and the 'permanent constitution' of Colombia. Through a comparative approach, it contends that constitutions are better understood in terms of their resilience rather than either being transitional or permanent, and that a 'resilient constitution' is the one capable of springing back even after being subjected to extreme pressure, as long as leaders maintain their commitment to governing within the limits of the law. In this sense, the differences between the Colombian transitional justice and the South African case do not stem primarily from the 'permanence' of its Constitution, but rather from the difficulties and tensions inherent to any transitional justice process, because it derives from some of the very rights it is designed to promote. The chapter then details how the jurisprudence of the Colombian Constitutional Court on transitional matters can be understood as having moved from an understanding of the Constitution as permanent, to one of resilience that does not represent a new power grabbed by the Court. Rather than that, it signals an understanding of the role of the Court in maintaining a constitutional order even in the face of existential threats to it.

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