Constitutional Review Complaint as an Evolution of the Kelsenian Model

ICL Journal ◽  
2021 ◽  
Vol 14 (4) ◽  
pp. 423-446
Author(s):  
Jeong-In Yun
Keyword(s):  
World War Ii ◽  
Constitutional Amendment ◽  
Constitutional Court ◽  
Constitutional Review ◽  
Special Procedure ◽  
Hans Kelsen ◽  
Constitutional Tribunal ◽  
The Times ◽  
The Individual ◽  
Constitutional Adjudication

Abstract A centralized constitutional review system, generally known as the Austrian Constitutional Court model established in 1920 by Hans Kelsen, has spread globally after World War II and is now the most active constitutional tribunal in Europe. Interestingly, although the Constitutional Court of Korea was classified as this Kelsenian model, besides a typical kind of constitutional review procedure, the Court runs an additional procedure for the constitutional review of legislation. The latter has some comparatively special and unusual requirements and procedure, but the statistics indicate it has been actively used. It takes the form of a constitutional complaint, but in practice, it is treated as the second type of constitutional review of legislation in Korean constitutional adjudication. Through this special procedure, individuals appear to participate in a tripartite conversation on constitutional interpretation along with the judicial branch and the Constitutional Court. Moreover, to some extent, this sui generis complaint is perceived to make up for the prohibition of constitutional complaint on judgments of ordinary courts (‘Urteilsbeschwerde’) in Korea. In Austria, the individual complaint on constitutional review of statutes was introduced by a constitutional amendment in 2013, whereby the individual parties of the pending cases are entitled to file a constitutional review with the Constitutional Court as of 1 January 2015. In terms of enabling the individual party to request to the Constitutional Court for constitutional review of legislation, the Austrian new complaint is similar to the Korean one, but their requirements and procedures are different. From the perspective of enhanced individual access to the Constitutional Court, however, both complaints may be viewed as an evolution of the Kelsenian model to meet the demands of the times. In this regard, the Korean practice for over three decades may provide useful insights into the implementation of a new practice and further improvement in Austria. This article will examine the Korean ‘Constitutional Review Complaint’ and compare it with the Austrian ‘Gesetzesbeschwerde (Parteiantrag auf Normenkontrolle)’ to explore mutual references that will help improve both institutions. Then, I will assess what this kind of evolutionary invention of the constitutional review implies to the centennial of the Austrian model.

scholarly journals Penambahan Kewenangan Constitutional Question di Mahkamah Konstitusi sebagai Upaya untuk Melindungi Hak-Hak Konstitusional Warga Negara

2019 ◽  
Vol 15 (4) ◽  
pp. 688
Author(s):  
Josua Satria Collins
Keyword(s):  
Qualitative Approach ◽  
Constitutional Amendment ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Constitutional Review ◽  
Legal Standing ◽  
Library Research ◽  
Democratic State ◽  
Constitutional System ◽  
Constitutional Adjudication

Penyempurnaan sistem hukum dan konstitusi merupakan prasyarat untuk membangun negara demokrasi konstitusional di Indonesia. Dalam cabang kekuasan kehakiman, salah satu upaya untuk mencapai hal tersebut terkait dengan adanya gagasan pembentukan mekanisme pertanyaan konstitusional (constitusional question). Istilah constitutional question merujuk pada suatu mekanisme pengujian konstitusionalitas di Mahkamah Konstitusi yang diajukan oleh seorang hakim di pengadilan umum yang merasa ragu-ragu terhadap konstitusionalitas suatu undang-undang yang digunakan dalam perkara yang sedang ditanganinya. Artikel ini membahas mengenai kemungkinan dibangunnya mekanisme constitutional question di Indonesia dengan alternatif implementasinya. Metodologi yang digunakan dalam penelitian ini berupa yuridis normatif dengan pendekatan kualitatif dan menggunakan bahan kepustakaan. Dari hasil penelitian ini disimpulkan bahwa terdapat urgensi untuk menambahkan kewenangan constitutional question kepada Mahkamah Konstitusi. Dengan adanya mekanisme tersebut, putusan hakim di pengadilan umum yang dinilai bertentangan dengan konstitusi dan dianggap melanggar hak konstitusional warga negara dapat dihindari. Kemudian, objek dan ruang pengujian terhadap peraturan perundangundangan menjadi semakin luas dan pelanggaran hak konstitusional terhadap warga negara dapat dipulihkan. Apabila constitutional question akan diterapkan di Indonesia, maka dasar kewenangan constitutional question sebaiknya diatur melalui perubahan konstitusi. Namun, hal tersebut dapat juga dilakukan dengan merevisi Undang-Undang Mahkamah Konstitusi, penafsiran konstitusi yang dituangkan di dalam putusan Mahkamah Konstitusi, ataupun perluasan legal standing untuk lembaga pengadilan sebagai salah satu pemohon constitutional review. Selain itu, perlu juga diatur mengenai kualifikasi pemohon constitutional question dan pembatasan waktu penanganan perkaranya oleh Mahkamah Konstitusi.Improving the legal and constitutional system is a prerequisite for building a constitutional democratic state in Indonesia. In a constitutional adjudication system, one of the efforts to achieve that goal is related to an idea to establish a constitutional question mechanism. The term of constitutional question refers to a mechanism for examining the constitutionality of a law in the Constitutional Court lodged by an ordinary judge who has a doubt regarding the constitutionality of the law applied in the case that is being handled by him/her. This article discusses the possibility of establishing a constitutional question mechanism in Indonesia with its alternative implementations. The methodology used in this research was normative juridical writing with qualitative approach and library research. The research results found the urgency for expanding the authority of constitutional question to the Constitutional Court. With the existence of such mechanism, ordinary court decisions that are contrary to the constitution and violate the constitutional rights of the citizens can be avoided. Moreover, the scope of constitutional review of the legislation becomes expansive and constitutional rights violations can be recovered. If the constitutional question will be applied in Indonesia, the basis of the authority of constitutional question should be regulated through a constitutional amendment. However, it can be applied also by revising the Constitutional Court Law, the constitutional interpretation set forth in the Constitutional Court decision or the extension of legal standing for ordinary courts as one of the applicants for constitutional review. In addition, it is necessary to regulate the applicant’s qualification of constitutional question and time limitation for handling constitutional question cases by the Constitutional Court.

scholarly journals Independence of Russian Judges in Conditions of Irremovability of Judges

Lex Russica ◽  
2020 ◽  
pp. 67-78
Author(s):  
V. К. Mikhailov
Keyword(s):  
Constitutional Amendment ◽  
Constitutional Court ◽  
Special Role ◽  
Vice Presidents ◽  
Supreme Courts ◽  
Special Procedure ◽  
Legal Principle ◽  
The Status ◽  
Appeal Courts ◽  
Federal Judges

The paper has become the fourth work in a cycle of studies carried out by the author to investigate the independence of the judiciary. It is devoted to the implementation of the principle of irremovability of judges as one of the declared guarantees of their independence. The paper analyzes the institutional and individual independence of courts and judges, concludes that it is individual independence of judges that plays the special role in ensuring the independence of the judiciary in general. Within the framework of the study, the reader’s attention is drawn to the components of the irremovability of judges: the period of granting the status of federal judges and the special procedure for suspending and terminating their powers. The author criticizes various age limits established by the legislator, upon which judges’ powers are terminated. Such a differentiated approach, in his opinion, conflicts with the general legal principle of equality and a sectoral principle of the unity of the status of judges. As a consequence, the leadership of the highest courts, given the possibility of reassigning them repeatedly, falls into a harmful dependence on the person entitled to nominate them for the positions of the President and Vice-Presidents of the relevant court. The author provides discouraging forecasts concerning the implementation of the constitutional amendment extending the powers of the President to deprive the status of judges of the Constitutional, Supreme Courts, Cassation and Appeal Courts of the Russian Federation. The work elaborates on the procedure for bringing judges to disciplinary responsibility, which is designed to protect their independence, but in view of the existing shortcomings allowing the use of this mechanism in order to monitor and pressure judges. In this regard, the author substantiates and proposes an impressive list of measures aimed at changing the situation. These measures include changing the composition of the qualification panels of judges, restricting the participation of judicial leadership and higher courts, their expansion by the judges of the Constitutional Court and the strengthening of their public participation, the establishment of the possibility of challenging the decisions of the qualification panels of judges by applicants.

scholarly journals THE NOVELTIES OF CONSTITUTIONAL CONTROL IN THE ALGERIAN CONSTITUTIONAL AMENDMENT 2020

2021 ◽  
Vol 03 (06) ◽  
pp. 253-261
Author(s):  
Hanane MISSAOUI
Keyword(s):  
The Body ◽  
The Other ◽  
Constitutional Amendment ◽  
Constitutional Court ◽  
Individual Rights ◽  
Political Structure ◽  
Legislative Organization ◽  
Constitutional Review ◽  
Legal Security ◽  
Full Protection

We consider constitutional review one of the main pillars of a state of law; it is a guarantee of the supremacy of the constitution, and a total respect of its provisions on one hand and a full protection of individual rights and liberties which are cited on the other hand. Algeria always relied on constitutional review in the development of its constitutions since its independence (except the constitution of 1976) through a political structure called the constitutional council, but the latter was renowned for its inactivity and ineffectiveness, that is why the constitutional founder was oblige to intervene within the framework of global constitutional reforms that the country has known in recent years, in order to concretize its role and achieve its objectives and the principles of legal security However these reforms have proved their failure including in the positive changes made to the amendment of the constitution of the year 2016 , that was the reason that lead the constitutional founder of 2020 think of make a full change of the nature of the body in charge of constitutional review, by creating the constitutional court with a completely different members, is this constitutional court will succeed to purify the national legislative organization, and to clean it from the unconstitutional provisions and to guarantee a full protection of individual rights and liberties?.

Part 3 Institutional Control of Constitutionalism, 3.1 Models of Institutional Control: The Experience of Islamic Countries

2012 ◽  
Author(s):  
Grote Rainer
Keyword(s):  
The United States ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Institutional Control ◽  
Constitutional Review ◽  
Islamic World ◽  
The United Kingdom ◽  
Islamic Countries ◽  
Almost All ◽  
Constitutional Adjudication

This chapter discusses constitutional review in Islamic countries. It covers the basic models of constitutional review; composition of constitutional courts; powers of constitutional courts; and effects of constitutional court decisions. It shows that introduction of constitutional review in the Islamic world has largely been pattered after foreign models, particularly of France (namely in the Maghreb countries and Lebanon), the United States (in Egypt and the Arab peninsula), the United Kingdom (Pakistan, Nigeria, Malaysia), and Germany (Turkey, Indonesia), with modifications to the particular political and cultural contexts of the respective countries. While almost all constitutional review bodies practice some form of constitutional review of legislation or another, most constitutions in the Islamic world still do not provide for access of individuals to constitutional adjudication.

Transnational constitutional engagement: A contextualization of global constitutionalism by the Constitutional Court of South Korea

2021 ◽  
Vol 10 (2) ◽  
pp. 256-274
Author(s):  
Yoon Jin Shin
Keyword(s):  
Analytical Framework ◽  
Constitutional Court ◽  
International Human Rights Law ◽  
Constitutional Courts ◽  
Constitutional Review ◽  
Complex Interactions ◽  
Network Building ◽  
Global Constitutionalism ◽  
Constitutional Adjudication ◽  
Transnational Engagement

AbstractThrough the analytical framework of ‘transnational constitutional engagement’, this article examines the dynamically developing practices of the South Korean Constitutional Court as it engages with international and foreign elements, both within and beyond constitutional adjudication processes. Diverse underlying factors and orientations in varied contexts, and the complex interactions between them, are responsible for shaping the modes of a local constitutional actor’s engagement with the transnational. In the vertical aspect, the court adopts international human rights law as a substantive standard of constitutional review through a version of cosmopolitan constitutional interpretation, while it has nevertheless exhibited ambiguity and incoherency in concrete applications. The horizontal aspects of transnational engagement include the court’s practice of referencing foreign law and cases in constitutional adjudication. The vibrancy and the evolving patterns of its citation practice reflect the court’s growing self-perception vis-à-vis the world – although limitations remain, such as geographical asymmetries among referenced jurisdictions. The court has also been enthusiastic in interacting with various transnational counterparts beyond adjudication processes, demonstrating eminent leadership in regional network-building among constitutional courts in Asia. With both cosmopolitan aspirations and nationalist ambitions playing a role in their shaping, the modes of transnational constitutional engagement are not to be generalized, but require contextualization, and the relevant practices should be subject to constant evaluations for their contribution in producing sound and effective concretizations of the values of global constitutionalism.

scholarly journals The principle of rule of law and independence of the judiciary in Myanmar

2021 ◽  
Vol 12 (1) ◽  
pp. 530-539
Author(s):  
Nge Nge Aung
Keyword(s):  
Rule Of Law ◽  
Comparative Method ◽  
Constitutional Court ◽  
Study Approach ◽  
Division Of Powers ◽  
Constitutional Tribunal ◽  
International Issues ◽  
Independence Results ◽  
Constitutional Adjudication

Aim. This research aims to discuss the importance of the principle of rule of law in protecting the judiciary’s role, especially the independence of constitutional adjudication and its functions. Methods. The study applies the case study approach and comparative method to investigate the constitutional court systems of some countries of the Association of Southeast Asian Nations  (ASEAN) and their independence. Results and conclusion. The resultsreveal a lack of the judiciary’s independence, even among the top branches that are trying to implement democracy in Myanmar. The judiciary is under the control of the executive and legislature branches as their members belong to political parties. Moreover, a constitutional court is established with the members who are elected and nominated by the legislature and executive. Sometimes there can be conflicts when constitutional law does not mention the division of powers among governmental organisations like Myanmar, which results from the impractical functions of the Constitutional Tribunal of Myanmar. Cognitive value. This research highlights possible ways to solve the constitutional issues among the three great branches. This initiative is in the interest of Myanmar citizens and citizens of all nations as these are international issues.

The High Court of Malawi as a constitutional court: constitutional adjudication the Malawian way

2020 ◽  
Vol 24 ◽  
Author(s):  
Mwiza Jo Nkhata
Keyword(s):  
Constitutional Law ◽  
Constitutional Court ◽  
Constitutional Review ◽  
High Court ◽  
Criminal Matters ◽  
Constitutional Adjudication

ABSTRACT Constitutional adjudication in Malawi only became commonplace after the adoption of a new Constitution in 1994. Like many Anglophone countries, Malawi follows the decentralised model of constitutional adjudication. Under this arrangement, the High Court has unlimited original jurisdiction to hear any civil or criminal matters, including constitutional matters. The Courts Act, however, requires the High Court to sit with an enhanced quorum when it is seized of cases that substantively relate to, or concern the interpretation and application of the Constitution. It is when the High Court sits with a reconfigured quorum that it is popularly referred to as the "constitutional court" (the Court). This article analyses constitutional adjudication in Malawi by focusing on the operation of the Court. Specifically, it analyses the scope of the Court's jurisdiction, the type of constitutional review that it conducts, the regulation of access to the Court, the forms of decisions and remedies that it grants, and the Court's independence. Keywords: constitutional law, constitutional adjudication, High Court of Malawi.

The Relationship Between a Kelsenian Constitutional Court and an Entrenched National Ideology: Lessons from Thailand and Indonesia

ICL Journal ◽  
2021 ◽  
Vol 14 (4) ◽  
pp. 497-521
Author(s):  
Rawin Leelapatana ◽  
Abdurrachman Satrio Pratomo
Keyword(s):  
Western Europe ◽  
The United States ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Constitutional Review ◽  
Liberal Democratic ◽  
Hans Kelsen ◽  
National Ideology ◽  
The Military ◽  
The Relationship

Abstract Hans Kelsen was a pro-democracy Austrian jurist, who, owing to his Jewish ancestry, was forced to flee to the United States of America after Adolf Hitler’s rise to power. His well-known theory of centralised constitutional review has not only influenced the design of many constitutional courts in Western Europe. It has also expanded to other parts of the world, including Thailand and Indonesia. Having determined to break with their authoritarian pasts, these two Southeast Asian countries decided to establish a Constitutional Court (in 1997 in Thailand and in 2003 in Indonesia), to consolidate their democratic transition as well as to safeguard democracy from attack. This decision inevitably brought the liberal-democratic assumptions underlying Kelsen’s model into competition with entrenched national ideologies traditionally exploited by political power holders and the military to preserve their hegemony – Thai-ness in Thailand and Pancasila in Indonesia. In contrast to Kelsen’s original theory, both these ideologies advocate strong leadership, national harmony and social hierarchy. This paper explores the extent to which the ideological hegemony of Thai-ness and Pancasila affects the performance and jurisprudence of the Thai and Indonesian Constitutional Courts respectively. An alternative understanding of the implementation of the Kelsenian-style Constitutional Court in the absence of its facilitative conditions will ultimately be proposed.

I The Constitutional Court, 2 The Constitutional Court: Rules and Model

2016 ◽  
Author(s):  
Barsotti Vittoria ◽  
Carozza Paolo G ◽  
Cartabia Marta ◽  
Simoncini Andrea
Keyword(s):  
United States ◽  
Judicial Review ◽  
The United States ◽  
Constitutional Court ◽  
The World ◽  
Hans Kelsen ◽  
Constitutional Adjudication

This chapter succinctly introduces the reader to the composition, jurisdictional scope, and methods of judicial review in Italy. Using both direct and incidental methods of judicial review, the Italian system combines certain elements of centralized systems (like the Austrian paradigm of Hans Kelsen) with elements of diffuse systems of review like that of the United States. The chapter highlights the highly collegial structure and process of the Court. Overall, the cooperative and multilevel character of Italian constitutional adjudication emerges as its most distinctive contribution to our understanding of the range of the varieties of constitutional models and experiences in the world.

The Portuguese Constitutional Court

2020 ◽  
pp. 673-718
Author(s):  
Maria Lúcia Amaral ◽  
Ravi Afonso Pereira
Keyword(s):  
Public Perception ◽  
Constitutional Court ◽  
Constitutional Review ◽  
The Public ◽  
European Experience ◽  
General Power ◽  
Legal Space ◽  
Constitutional Adjudication

This chapter covers the Portuguese Constitutional Court. The Portuguese system of constitutional review developed to a great extent independently from the European experience and its issues. The origin of the Portuguese model of constitutional review is rather to be found in the deeply rooted tradition of a general power of review and disapplication. To grasp the current Portuguese system with all its peculiarities, the chapter scrutinizes the beginnings of the courts’ general power of review and disapplication. It shows that the development itself was an isolated one, and to this day its doctrinal classification remains problematic. After an overview of the role and functions of constitutional adjudication in Portugal, the chapter considers several aspects for evaluation. These are: the public perception of the Constitutional Court, constitutional adjudication in national constitutional scholarship, and the understanding of the role within the European legal space.

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