PIGS and Pearls: State of Economic Emergency, Right to Resistance and Constitutional Review in the Context of the Eurozone Crisis

ICL Journal ◽  
2013 ◽  
Vol 7 (4) ◽  
Author(s):  
Andreas Dimopoulos

AbstractTaking the financial crisis in Portugal, Italy, Greece and Spain, (commonly re­ferred to with the derogatory acronym PIGS), as backdrop to this analysis, the article claims that institutional design in Europe (focusing on Greece and Portugal in particular) has not addressed the state of economic emergency. This gap in institutional design, to­gether with the unpopularity of emergency austerity measures, raises serious doubts con­cerning their legitimacy and constitutionality.The article analyses two theoretical responses to this grey area of constitutional legality: the first one construes social unrest in Greece against austerity measures as a legitimate exercise of the right to resistance, entrenched in Art 120 of the Greek Constitution.The second response selected for analysis is the constitutional review of austerity meas­ures by the Portuguese Constitutional Court, which is presented as a robust example of successful constitutional review.The article argues that constitutional review with regards to emergency financial measures oscillates between strict adherence to the rule of law and deference to legislative authority in a time of economic crisis, thus raising serious doubts as to its efficiency and persuasive­ness. States of economic emergency should be addressed as an urgent matter of institu­tional design.

2021 ◽  
pp. 56-65
Author(s):  
Iulian Rusanovschi ◽  

On 17.03.2020, the Parliament declared a state of emergency on the entire territory of the Republic of Moldova for the period March 17 - May 15, 2020. By the same Decision, the Parliament delegated the Commission for Exceptional Situations with the right to implement a series of measures to overcome the epidemiological situation in the country. However, in the conditions of a functioning Parliament and despite the clear and exhaustive texts of the Constitution, the Commission for Exceptional Situations amended during the state of emergency the Contravention Code, which is an organic law. The amendments specifically concerned the procedure and terms for examining infringement cases brought in connection with non-compliance with the measures adopted by the Commission for Exceptional Situations and the Extraordinary Commission for Public Health. In the conditions in which an organic law can be modified only by the Parliament, it is obvious the unconstitutionality, at least partial, of the Disposition no. 4 of 24.03.2020 of the Commission for Exceptional Situations, but unfortunately, the Constitutional Court is not mandated with the right to submit to constitutional review the normative acts adopted by the Commission for Exceptional Situations. Under these conditions, the state is obliged to identify solutions in order not to allow an authority to adopt unconstitutional normative acts that cannot be subject to constitutional review.


2021 ◽  
Vol 8 (5) ◽  
Author(s):  
Nanang Nur Wahyudi ◽  
Nynda Fatmawati Octarina

Hak Politik dilindungi hukum, baik secara internasional maupun nsional. secara internasional, hak politik diatur Universal Declaration of Human Rights (UDHR) dan International Covenant on Civil and Political Rights (ICCPR). hak politik juga dilindungi konsitusi kita dan beberapa peraturan Perundang-Undangan lainnya, serutama Undang-Undang no 39 tahun 1999 tentang Hak Asasi Manusia. Adanya ketentuan yang merupakan syarat untuk mencalonkan diri pada pemilihan yang jelas membatasi bahkan meniadakan hak seseorang untuk ikut serta dalam menggunakan hak azasinya. Hal ini jelas merupakan pelanggaran terhadap hak azasi seseorang, yang dalam hal ini hak politik yang dimiliki oleh seorang mantan narapidana khususnya pada kasus korupsi. Apabila kita mencermati ketentuan UUD 1945, maka seorang mantan narapidana juga sebagai warga negara yang memiliki hak politik yang sama dengan warga negara lainnya. Hak Uji materiel terhadap peraturan yang  bertentangan dengan Undang-Undang Dasar 1945, maka kewenangan hak menguji ada pada Mahkamah Konstitusi (MK). Putusan Mahkamah Konstitusi memberi kepastian hukum bahwa seorang mantan Narapidana kasus korupsi masih diperbolehkan untuk mencalonkan diri pada pemilihan kepala daerah karena mantan narapidana masih memiliki hak politik sebagai warga negara. Untuk dapat mencalonkan diri pada pemilihan kepala daerah, maka mantan narapidana setelah melewati masa 5 (lima) tahun  selesai menjalani masa hukuman dan telah kembali kepada kehidupan masyarakat sebagaimana kehidupan masyarakat lainnya. Menghormati hak politik mantan narapidana kasus korupsi sebagai pengakuan terhadap hak azasi manusia dalam negara Republik Indonesia yang merupakan hak konstitusional yang diatur dalam UUD Tahun 1945. Kata Kunci : Narapidana, Judisial Review, Hak, Putusan Mahkamah Konstitusi ABSTRACTPolitical rights are protected by law, both internationally and nationally. Internationally, political rights are regulated by the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). Political rights are also protected by our constitution and several other laws and regulations, especially Law No. 39 of 1999 concerning Human Rights. There is a provision which is a requirement to run for election which clearly limits and even negates a person's right to participate in exercising their human rights. This is clearly a violation of a person's human rights, which in this case the political rights of an ex-convict, especially in cases of corruption. If we look at the provisions of the 1945 Constitution, an ex-convict is also a citizen who has the same political rights as other citizens. The right to judicial review of regulations that are contrary to the 1945 Constitution, the authority of the right to examine lies with the Constitutional Court (MK). The Constitutional Court's decision provides legal certainty that a former convict in a corruption case is still allowed to run for regional head elections because ex-convicts still have political rights as citizens. To be able to run for regional head elections, ex-convicts after passing through a period of 5 (five) years have finished serving their sentence and have returned to community life as other people's lives. Respect the political rights of ex-convicts of corruption cases as an acknowledgment of human rights in the Republic of Indonesia which are constitutional rights regulated in the 1945 Constitution. Keywords: Prisoners, Judicial Review, Rights, Constitutional Court Decisions


Author(s):  
O. V. Brezhnev

The paper shows the specificity of compulsory judicial constitutional review, reveals its role in the mechanism of legal protection of the Constitution of the Russian Federation. This institution is intended to guarantee constitutionality in the exercise of certain powers of the supreme state authorities, being an integral part of the legal composition of a decision made by public authorities that has constitutional significance (the application of measures of responsibility of public authorities, acceptance of a new constituent entity of the Russian Federation, convening of a referendum of the Russian Federation). In some cases, mandatory constitutional review is used as a means of ensuring constitutional legality of judicial law enforcement. The paper analyzes the features of compulsory judicial constitutional review: the emergence of a constitutional law dispute in this case is not always a prerequisite for appeal to the Constitutional Court of the Russian Federation; the need for such appeal is provided for by mandatory legislation or follows from the legal stance of the Constitutional Court of the Russian Federation; some principles of constitutional proceedings in relation to the order of consideration of such cases demonstarte their regulatory impact in a special way.


2016 ◽  
pp. 11-21
Author(s):  
ALEXANDRU TĂNASE

This study analyses the Judgment of the Constitutional Court of Moldova no. 2 of 9 February 2016 for the interpretation of Article 135 para. (1) letters a) and g) of the Constitution of the Republic of Moldova (exception of unconstitutionality), by which it has been decided that the right to raise the exception belongs to all courts of law, respectively to judges who belong to such courts, and the challenge regarding the constitutional review of certain rules which are to be applied in the settlement of a case shall be submitted directly to the Constitutional Court by the judges/panels of judges in the Supreme Court of Justice, courts of appeal and courts, where the case is at issue. Opening to every individual the opportunity to raise the exception of unconstitutionality, the existing mechanism for the protection of human rights has been redefined, representing the first significant step towards the introduction of an individual complaint to the Constitutional Court.


2021 ◽  
Vol 8 (1) ◽  
pp. 65-74
Author(s):  
Marina V. Dudaeva

The author of the article examines the peculiarities of the Italian political space through a retrospective analysis of that countrys longstanding decentralization process. As a starting point, the author takes the end of the Risorgimento era, during which the national liberation movement of the Italian people united against foreign domination of their fragmented nation. A periodization of the decentralization process is given, indicating its main milestones: 1) the establishment of the Kingdom of Italy (1815 to 1871); 2) the Fascist regime (1922 to 1943); 3) adoption of the Italian Constitution and the Statutes of the Special Regions (1947); 4) regional reform (1970) and; 5) constitutional reform (2001). The key criteria for assessing the degree of decentralization in Italy are considered, including whether the regions have the right to adopt their own laws, initiate legislation at the central level, and participate in international activities. The author concludes that the Italian political elite has succeeded in decentralizing the republic and building a new regional policy based on the principles of subsidiarity. The reforms of the political and legal institutional design were mainly related to the delineation of the spheres of competence between the state and the regions, the consolidation of autonomous status for all regions, the abolition of the government commissioner, and the challenge of regional legislation exclusively by the Constitutional Court, creating the basis for the quasi-federal features of the Italian political and legal system. Thus, it is natural to say that Italy belongs to a special transit form of state structure of the regionalist type, located at the juncture between unitarianism and federalism.


2010 ◽  
Vol 35 (2) ◽  
pp. 129-158 ◽  
Author(s):  
Visar Morina

AbstractIn this article, the author first looks at recent constitutional developments in post-status Kosovo by providing an overview of Kosovo's constitutional system from the perspective of both the Constitution and the Comprehensive Proposal for the Kosovo Status Settlement prepared by UN Special Envoy Martti Ahtisaari. The author then explores the foundations of the constitutional review in Kosovo and provides an overview of the process pertaining to the establishment of the 2008 Constitutional Court in Kosovo. After analyzing organizational and jurisdiction-related matters of the Court, the article addresses selected procedural concerns that triggered a lively debate among the framers of the Constitutional Court Act. In particular, the author addresses the right of judges to attach dissenting opinions and whether the publication of such opinions is appropriate in the context of this newly born constitutional democracy. Finally, the author concludes that the lack of a tradition of judicial review and the complex nature of certain morally or politically controversial issues related to finding a constitutional compromise—satisfying both the Settlement and the Constitution—will inevitably make the mission of the Court a very challenging one.


2019 ◽  
Vol 19 (1) ◽  
pp. 7-37
Author(s):  
Aleksandra Kustra-Rogatka

Summary The paper deals with the changes in the centralized (Kelsenian) model of constitutional review resulting from a state’s membership of the EU, which unequivocally demonstrates the decomposition of the classic paradigm of constitutional judiciary. The main point raised in the paper is that European integration has fundamentally influenced on the four above-mentioned basic elements of the Kelsenian model of constitutional review of legislation, which are the following: the assumption of the hierarchical construction of a legal system; the assumption of the supreme legal force of the constitution as the primary normative act of a given system; a centralised model of reviewing hierarchical conformity of legal norms; coherence of the system guaranteed by a constitutional court’s power to declare defectiveness of a norm and the latter’s derogation. All its fundamental elements have evolved, i.e. the hierarchy of the legal system, the overriding power of the constitution, centralized control of constitutionality, and the erga omnes effect of the ruling on the hierarchical non-conformity of the norms. It should be noted that over the last decade the dynamics of these changes have definitely gained momentum. This has been influenced by several factors, including the “great accession” of 2004, the pursuit of formal constitutionalization of the EU through the Constitutional Treaty, the compromise solutions adopted in the Treaty of Lisbon, the entry into force of the Charter, and the prospect of EU accession to the ECHR. The CJEU has used these factors to deepen the tendencies towards decentralization of constitutional control, by atomising national judicial systems and relativizing the effects of constitutional court rulings within national legal systems. The end result is the observed phenomenon, if not of marginalisation, then at least of a systemic shift in the position of constitutional courts, which have lost their uniqueness and have become “only ones of many” national courts.


Author(s):  
Yaroslav Skoromnyy ◽  

The article presents the conceptual foundations of bringing judges to civil and legal liability. It was found that the civil and legal liability of judges is one of the types of legal liability of judges. It is determined that the legislation of Ukraine provides for a clearly delineated list of the main cases (grounds) for which the state is liable for damages for damage caused to a legal entity and an individual by illegal actions of a judge as a result of the administration of justice. It has been proved that bringing judges to civil and legal liability, in particular on the basis of the right of recourse, provides for the payment of just compensation in accordance with the decision of the European Court of Human Rights. It was established that the bringing of judges to civil and legal liability in Ukraine is regulated by such legislative documents as the Constitution of Ukraine, the Civil Code of Ukraine, the Explanatory Note to the European Charter on the Status of Judges (Model Code), the Law of Ukraine «On the Judicial System and the Status of Judges», the Law of Ukraine «On the procedure for compensation for harm caused to a citizen by illegal actions of bodies carrying out operational-search activities, pre-trial investigation bodies, prosecutors and courts», Decision of the Constitutional Court of Ukraine in the case on the constitutional submission of the Supreme Court of Ukraine regarding the compliance of the Constitution of Ukraine (constitutionality) of certain provisions of Article 2, paragraph two of clause II «Final and transitional provisions» of the Law of Ukraine «On measures to legislatively ensure the reform of the pension system», Article 138 of the Law of Ukraine «On the judicial system and the status of judges» (the case on changes in the conditions for the payment of pensions and monthly living known salaries of judges lagging behind in these), the Law of Ukraine «On the implementation of decisions and the application of the practice of the European Court of Human Rights».


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