Legisprudence Limitations on Constitutional Amendments? Reflections on The Czech Constitutional Court’s Declaration of Unconstitutional Constitutional Act

ICL Journal ◽  
2014 ◽  
Vol 8 (1) ◽  
Author(s):  
Yaniv Roznai
Keyword(s):  
Rule Of Law ◽  
Theoretical Perspective ◽  
Constitutional Court ◽  
Constitutional Amendments ◽  
Essential Requirement ◽  
The Czech Republic ◽  
The Rule Of Law ◽  
Democratic State ◽  
The Individual ◽  
Normative Status

AbstractCan a constitutional norm be unconstitutional? This idea seems, at first sight as a self-contradiction. Unconstitutionality is commonly referred to those ordinary laws, inferior to the constitution, which violate it. Constitutional norms, in contrast, carry an equal normative status as the constitution itself and other constitutional provisions. The question of unconstitutional constitutional norms recently arose in the Czech Republic. On 10 September 2009, the Czech Constitutional Court declared Constitutional Act no 195/2009 Coll, on Shortening the Fifth Term of Office of the Chamber of Deputies to be unconstitutional. The Czech Constitutional Court held that the constitutional act was an individual, specific decision and retroactive, thus violating the unamendability provision (Art 9(2)) in the Constitution, which prohibits amendments to the essential requirement for a democratic state governed by the rule of law. This article analyses the Czech Constitutional Court’s decision in a broader comparative and theoretical perspective and focuses, mainly, on four issues: first, the Czech Constitutional Court’s authority to substantively review constitutional norms; second, the appropriate standard of review when exercising judicial review of constitutional norms; third, the ‘individual, specific’ character of the constitutional act; and fourth, its alleged retroactive application. The article claims that while the Czech Constitutional Court was generally correct in claiming an authority to substantively review even constitutional norms, this was not the appropriate case in which to annul a constitutional act.

The Rule of Law Paradox in the 2016 Constitutional Amendments in Albania

2020 ◽  
pp. 95-110
Author(s):  
Darinka Piqani
Keyword(s):  
Rule Of Law ◽  
Constitutional Reform ◽  
Judicial System ◽  
Candidate Country ◽  
Constitutional Court ◽  
Contributing Factors ◽  
Constitutional Amendments ◽  
The Rule Of Law

In 2016, the Albanian constitution underwent the most comprehensive constitutional reform since its adoption in 1998. One of the purposes of this reform was to transform the judicial system in Albania in order to detach it from corruption. One of the novelties of the reform was the vetting process of judges and prosecutors at all levels, including judges of the Albanian Constitutional Court. Following termination of mandates of some of the members to the Court, dismissals, and resignations in the context of the vetting process, Albania’s Constitutional Court did not function for more than a year. Although indisputably the constitutional reform and more specifically vetting were designed as a means of guaranteeing the rule of law, it seems that they were contributing factors to the stalemate within the Constitutional Court, thus ultimately undermining the rule of law. This chapter unfolds this paradox in Albania, an EU candidate country.

scholarly journals Constitutional Justice

2017 ◽  
Vol 19 (33) ◽  
pp. 135-142
Author(s):  
Anca-Florina Moroșteș ◽  
Narcisa-Mihaela Stoicu
Keyword(s):  
Rule Of Law ◽  
Constitutional Court ◽  
Contemporary Society ◽  
The Rule Of Law ◽  
Democratic State ◽  
Constitutional Justice ◽  
The Law

Abstract The paper with the title “Constitutional Justice” aims to analyse a topic of urgent actuality and of particular importance in the contemporary society. We have tried to show in this paper the importance of the Constitutional control in the rule of law. Starting from the idea of necessity of existence of a Constitution in a democratic State and, implicitly, of a body to follow-up the compliance with its provision, we have tried to highlight in this paper the role of Romanian Constitutional Court and not only, by presenting one of its most important attributions which is the control of the law constitutionality.

scholarly journals Impact of the Rule of Law as a Fundamental Public Governance Principle on Administrative Law Interpretation in the Czech Republic

2019 ◽  
Vol 17 (2) ◽  
pp. 117-140
Author(s):  
Jana Janderová
Keyword(s):  
Czech Republic ◽  
Rule Of Law ◽  
Comparative Method ◽  
Administrative Law ◽  
Constitutional Court ◽  
General Tendency ◽  
Public Governance ◽  
The Czech Republic ◽  
The Rule Of Law ◽  
Administrative Courts

The rule of law is a fundamental principle and the cornerstone of Western democracies and their public governance. Its underlying value is the idea of constraint of governmental power. The rule of law principle acts as an interpretative concept in most contexts of the exercise of public powers in the EU and its Member States, with the courts exercising supervision over the activities of administrative bodies. However, the teleological argumentation through fundamental principles is not inherent to all Central and Eastern European judicial and administrative bodies, given the long tradition of formalistic approach in most of them. The article analyses whether the approach has changed during the past thirty years and to which level the principle of the rule of law is used for interpretation of administrative law provisions by courts in the Czech Republic. Since the case law of the Czech Constitutional Court and the Czech Supreme Administrative Court is based on the arguments of legality and proportionality as the key elements of the rule of law, their cases were analysed using a comparative method. The article identifies a general tendency in legally difficult cases to move from purely linguistic interpretation to interpretation through values, including the rule of law. Most of the analysed cases reveal that the formalistic interpretation was strongly criticised by both the Constitutional and the Supreme Administrative courts. However, slight differences in their perception of the principles of legality and proportionality were discerned, namely in the debate on the intensity of control exercised by administrative courts over factual and discretionary decisions by administrative authorities. Nevertheless, these differences produce beneficial effects, as both principles continue being developed thanks to the exchange of opinions between the courts. Further research could be conducted for similar countries in the region.

scholarly journals КОНСТИТУЦИОННЫЕ СТАНДАРТЫ ВЫБОРОВ В ДЕМОКРАТИЧЕСКОМ ПРАВОВОМ ГОСУДАРСТВЕ (ИЗ ПРАКТИКИ КОНСТИТУЦИОННОГО СУДА РОССИЙСКОЙ ФЕДЕРАЦИИ)

2019 ◽  
Vol 53 (4) ◽  
pp. 91-107
Author(s):  
Konstantin V. Aranovsky ◽  
Sergey D. Knyazev
Keyword(s):  
Rule Of Law ◽  
Russian Federation ◽  
Judicial Review ◽  
Voting Rights ◽  
Electoral System ◽  
Constitutional Court ◽  
The Rule Of Law ◽  
Democratic State ◽  
The Russian Federation ◽  
Election Results

В статье на основе решений Конституционного Суда Российской Федерации анализируются конституционная природа выборов и их роль в обеспечении народного представительства. Опираясь на сформулированные этим Судом правовые позиции, авторы исследуют конституционные стандарты выборов в демократическом правовом государстве, не оставляя без внимания наиболее «узкие» места современной российской избирательной системы. Так, авторы рассматривают проблемы реализации как активного, так и пассивного избирательного права, такие как «муниципальный фильтр» на выборах высшего должностного лица субъектов Российской Федерации, информатизация избирательного процесса, использование избирательного залога, создание избирательных блоков, судебное обжалование результатов выборов по обращениям избирателей. This article is based on the decisions of the Constitutional Court of the Russian Federation; it analyzes the constitutional nature of elections and their role in en-suring popular representation. Based on the legal positions formulated by this Court, the authors examine the constitutional standards of elections in a democratic state based on the rule of law, without disregarding the most bottlenecks in the modern Russian electoral system. Thus, the authors have reviewed the problems of realizing both active and passive voting rights such as the “municipal filter” in elections of top official of the constituent entities of the Russian Federation, informatization of the electoral process, the use of electoral deposit, complaints creation of electoral blocs and judicial review of election results based on voters' complaints.

THE PROBLEM OF CORRELATION OF THE CONCEPTS «SOVEREIGNTY» AND «NATIONAL IDENTITY»: THEORETICAL AND PRACTICAL DIMENSION

2020 ◽  
Keyword(s):  
National Identity ◽  
Civil Society ◽  
Rule Of Law ◽  
Natural Community ◽  
Sovereign State ◽  
The Rule Of Law ◽  
Democratic State ◽  
Cultural Component ◽  
The Stability ◽  
The Individual

The position of close connection between the concepts of «national identity» and the concept of «sovereignty» is defended. Emphasis is placed on the fact that in Ukraine the issue of national identity is often related to its ethnic and cultural component. After all, the basis for the formation of national identity after the collapse of the USSR was ethnic identity, mainly due to the fact that in the days of the Soviet state there was no fully developed civil society. But since for a modern nation that integrates into the European community, the civic component of national identity is no less important than ethnic, the next step in its crystallization should be the «cultivation» of a mature civil society. It is articulated that the latter consists of sovereign, educated individuals on whom social (people's) sovereignty depends, which in democratic countries is essentially and procedurally provided by the rule of law and, ultimately, creates the subjectivity and sovereignty of the latter. It is noted that one of the important functions of a sovereign state is the ability to recreate its own national identity. And for a democratic state, it is important to provide everyone with the opportunity to make a conscious and free choice of his identity. After all, when there is a possibility of conscious choice, then a mature civil society is formed, ready to defend its own national identity, as the latter will be formed in its own coordinate system of citizens, rather than under duress, which is more typical of authoritarian and totalitarian states. Which, ultimately, will ensure the stability, subjectivity and sovereignty of the state at both the domestic and foreign policy levels. Emphasis is placed on the fact that the nation is a natural community, and the natural community does not have the ability to articulate the problem of the sovereignty of the individual, which is based on the concept of natural rights. The implementation of the latter can be ensured only by the rule of law under the influence of civil society. The implementation of the latter can be ensured only by the rule of law under the influence of civil society. Therefore, the modern national identity in Ukraine can be formed in the context of European traditions, if the full implementation of both ethnic and civic components.

scholarly journals The novelty of the individual constitutional complaint in Lithuania – theorethical and practical aspects

2020 ◽  
pp. 6-28
Author(s):  
Rokas Urbanavičius ◽  
Vytautas Vaicekauskas
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Legal System ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
The Rule Of Law ◽  
Additional Possibility ◽  
Protection Of Human Rights ◽  
The Individual ◽  
Further Development

In several stages a new legal instrument (the constitutional complaint) was established in the legal system of Lithuania starting by the amendment of the Constitution on March 21, 2019 and continuing in July by introducing the requirements for appealing to the Constitutional Court. The essence of this novelty lies in the model established in the Polish Constitution, i. e. the additional possibility for a person who has exhausted all usual means of defence of constitutional rights and freedoms to appeal directly to the Constitutional Court questioning the constitutionality of such a legislative and executive act, which was the basis for the adoption of a final non-appealable judgment against that person in a court. The introduction of such novelty in the legal system of Lithuania implies the further development of the protection of human rights and freedoms and the realization of the principle of the Rule of Law which is necessary for the latter. Therefore, while investigating the novelty of the constitutional complaint in Lithuania, models of constitutional complaint, specific details of the establishment of this institute in Lithuania are unravelled, and practical aspects are investigated by analysing first constitutional complaints submitted to and accepted by the Constitutional Court.

scholarly journals Tehnoloģiskā neitralitāte – tiesiskas valsts principa neatņemama sastāvdaļa informācijas sabiedrības laikmetā

2020 ◽  
Vol 1 (16) ◽  
pp. 9-17
Author(s):  
Uldis Ķinis
Keyword(s):  
Rule Of Law ◽  
Constitutional Court ◽  
Socially Responsible ◽  
Legal Policy ◽  
The Rule Of Law ◽  
Legal Principles ◽  
Democratic State ◽  
General Principles Of Law ◽  
Law And Justice ◽  
The Republic

Tiesību principus kā pastāvīgus tiesību avotus ir pētījuši daudzi Latvijas tiesībzinātnieki, piemēram, profesore Daiga Rezevska, Valsts prezidents Egils Levits, profesore Ineta Ziemele u. c. Jau kopš 1994. gada Satversmes tiesa konsekventi savā doktrīnā vispārīgos tiesību principus ir atzinusi par noteikumu, kas ierobežo likumdevēja rīcības brīvību. Praksē, ja runā par vispārīgo tiesību principiem, visbiežāk piemin tiesiskumu, taisnīgumu, vienlīdzību un samērīgumu. Taču, attīstoties tiesību doktrīnai, ir atzīts, ka Satversmes pirmajā pantā noteiktais, ka Latvija ir demokrātiska tiesiska valsts, ir uzskatāms par pamatnormu, no kuras tiek atvasināti vispārīgie tiesību principi. 21. gadsimtā, ko daudzi pamatoti dēvē par digitālo gadsimtu, ir radušies jautājumi par vispārīgo tiesību principu saturu šajā informācijas sabiedrības laikmetā. Informācijas sabiedrību nosacīti raksturo trīs faktori: tehnoloģijas, globalizācija un informācija. Neviens no tiem pēc savas pirmatnējās būtības nav juridisks. Taču šie faktori pirmo reizi ir radījuši situāciju, ka jaunie tehnoloģiskie risinājumi tiecas iziet ārpus juridiskās kontroles robežām, apdraudot sabiedrības tiesiskumu un taisnīgumu. Tāpēc demokrātiskai sabiedrībai ir īpaši svarīgi, lai tiesību politikas veidotāji, apzinoties šos riskus, attīstītu tehnoloģiski neitrālu valsts tiesību politiku. Šādas politikas īstenošanu valsts var īstenot tikai tad, ja tehnoloģiskās neitralitātes princips tiek atzīts par vispārīgo tiesību principu, kas izriet no Satversmes 1. panta. General principles of law have been studied by many Latvian scholars including, professor Daiga Rezevska, Egils Levits, professor Ineta Ziemele, and many others. Since 1994, Constitutional Court of the Republic of Latvia has consistently recognized the general principles of law in its doctrine as a provision that restricts the freedom of action of the legislator. In practice, when talking about the general principles of law, most often the rule of law, justice, equality, proportionality have been mentioned. However, as the doctrine of law develops, four overriding principles are also defined in Latvian constitutional law: (1) democratic state system; (2) rule of law; (3) socially responsible state; (4) nation state, which is not reflected in the text of the Satversme, but as an idea falls within the core of the Satversme. The 21st century, which many call the digital age, has raised questions about the content of general legal principles in this role in the information society. This era is relatively characterized by three factors: technology, globalization and information. None of these is legal in nature. However, these factors have, for the first time, created a situation where new technological solutions threaten to go beyond legal control, jeopardizing the rule of law and justice in society. Therefore, in a democratic society, it is essentially important that legal policy makers are aware of these risks and develop state legal policy in technology-neutral path. In order to reach such a goal, the principle of technological neutrality shall be recognized as a general principle of law, which derives from Article 1 of the Satversme.

scholarly journals Politik Hukum Pemberhentian (Pemakzulan) Presiden dan/atau Wakil Presiden di Indonesia dalam Prespektif Negara Hukum dan Demokrasi

SASI ◽  
2020 ◽  
Vol 26 (3) ◽  
pp. 325
Author(s):  
Muhammad Aksan Akbar
Keyword(s):  
State Government ◽  
Rule Of Law ◽  
Research Method ◽  
Stable State ◽  
Vice President ◽  
Constitutional Court ◽  
Legal Process ◽  
Conceptual Approach ◽  
The Rule Of Law ◽  
Democratic State

This study aims to determine the legal politics of dismissing the President and / or Vice President in Indonesia. The research method used normative research with a statute approach and a conceptual approach and analyzed descriptive qualitative. The results show that the dismissal of the President and / or Vice President in Indonesia is based on an understanding of a democratic state and an understanding of the rule of law . The application of the concept of a democratic state is carried out through a prior statement of opinion by the DPR and dismissal by the MPR. Meanwhile, the application of the rule of law is carried out through a legal process (forum previlegiatum), namely through examination of trials and decisions in the Constitutional Court. The choice of law is intended to strengthen the presidential system which adheres to the fixed term principle of the position of President and / or Vice President and to ensure the implementation of a stable state government.

scholarly journals CONSTITUTIONAL COMPLAINT AS A NEW INSTITUTE OF CONSTITUTIONAL LAW OF UKRAINE

2020 ◽  
Vol 1 (3) ◽  
pp. 25-33
Author(s):  
R. V. Chernolutsky
Keyword(s):  
Human Rights ◽  
Public Relations ◽  
Rule Of Law ◽  
Constitutional Law ◽  
The State ◽  
Constitutional Court ◽  
The Rule Of Law ◽  
Protection Of Human Rights ◽  
The Individual ◽  
The Impact

The article is devoted to the analysis of the institute of constitutional complaint as a new mechanism of protection of human rights and freedoms for Ukrainian practice. The significance of the constitutional complaint as a new institution of the constitutional law of Ukraine lies in two aspects. First, it is an important additional mechanism (means) to protect individual rights and freedoms. This increases the impact of law on public relations, and the state strengthens its status as a legal entity. This also strengthens the applicability of the rule of law as one of the fundamental principles of law. Secondly, the importance of the constitutional complaint as a separate institution is related to the functioning of the Constitutional Court of Ukraine, which is legally called to ensure the supremacy of the Constitution of Ukraine. A person's appeal to a body of constitutional jurisdiction with a complaint emphasizes the closeness of the entire judicial system to a person, as well as the desire of the state to properly protect his rights. Thus, at the individual (complainant) level, the constitutional complaint increases the importance of the rule of law (due to the protection of human rights and freedoms), and at the public level (constitutional jurisdiction) - promotes the rule of law as the foundation of the entire legal system. The author reviews the current legislation in this area of relations, focuses on the features of the constitutional complaint and aspects of its significance, as well as clarifies some problematic aspects of its implementation in Ukraine. It was noted that due to this the function of protection of human rights by the Constitutional Court of Ukraine will be more effectively and fully implemented.

scholarly journals Constitutional Retrogression in Indonesia Under President Joko Widodo's Government: What Can the Constitutional Court Do?

2018 ◽  
Vol 4 (2) ◽  
pp. 271 ◽  
Author(s):  
Abdurrachman Satrio
Keyword(s):  
Rule Of Law ◽  
Public Support ◽  
Electoral System ◽  
Constitutional Court ◽  
The Rule Of Law ◽  
Democratic State ◽  
The Impact

This paper examines whether constitutional retrogression, the process through which democratically elected rulers use formal legal measures gradually to undermine democracy, has occurred in Indonesia, especially during the reign of President Joko Widodo. To this end, the paper analyzes the impact of the Widodo government's policies on three fundamental requirements of a democratic state: a democratic electoral system, rights to speech and association, and the rule of law. The paper finds that Widodo's government, in its efforts to contain the threat of Islamist populism, has indeed undermined all three of these elements to varying degrees. While Indonesia's democracy may yet be saved by the Constitutional Court, an institution that Widodo's government has until now failed to control, the Court cannot save democracy by itself. Its chances of doing so will depend on public support.

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