scholarly journals The Constitutional and Legal Organization of the Supreme Constitutional Court in the Iraqi State for the Year 2005

2021 ◽  
Vol 8 (4) ◽  
pp. 691-710
Author(s):  
Ahmed Ramadhan Mohammed ◽  
Ranyar Qadir Ahmed
Keyword(s):  
Separation Of Powers ◽  
Constitutional Court ◽  
Federal System ◽  
Constitutional History ◽  
Parliamentary System ◽  
Federal Constitution ◽  
Central Regions ◽  
Constitutional System ◽  
New Phase ◽  
Federal Supreme

       The constitutional system in Iraq after the overthrow of the previous regime in 2003 witnessed major fundamental changes, which marked the end of a historical era, the advent of the beginning of a new phase of political and constitutional history, and the adoption of the federal (federal) system as a form of the new Iraqi state, where Iraq transformed from a simple state to a complex state.  With the adoption of the democratic parliamentary system based on the principle of separation of powers and respect for the constitution by emphasizing the principle of the supremacy of the constitution as a system for the work of state authorities and the management of its various constitutional institutions.  If the constitutional distribution of competencies between the federal authorities is one of the essential characteristics of the federal systems, then one of the important features in the design of any federalism and its effective operation is to ensure the rule of law and the constitution as the source of powers, and in contrast, one of the authorities infringes on the powers of the other, which leads to a constitutional imbalance in the federalism  And the matter that leads to its disintegration and its end, and in order to preserve this constitutional system, it is necessary to establish a supreme judicial body to ensure respect for the application of the constitutional principles of this system and not to be violated.  The federal system is characterized by the presence of a Supreme Constitutional Court that works to monitor the constitutionality of laws and chapters  In disputes between the central regions, it has the authority to interpret the Iraqi federal constitution, especially the interpretation of the constitutional rules related to the distribution of constitutional powers between the regions and the federal government.  Which is one of the thorny issues in the countries of the union, and on this basis in Iraq the foregoing was the establishment of the Federal Supreme Court, which was granted by the constitution judicial and political competencies in order to exercise its role in preserving the union and the balance of powers within it while preserving the constitution and safeguarding its principles.

II Constitutional Jurisprudence, 5 Powers and Conflicts

2016 ◽  
Author(s):  
Barsotti Vittoria ◽  
Carozza Paolo G ◽  
Cartabia Marta ◽  
Simoncini Andrea
Keyword(s):  
Separation Of Powers ◽  
Case Law ◽  
Constitutional Court ◽  
Reciprocal Relations ◽  
The Republic ◽  
Constitutional System ◽  
Constitutional Jurisprudence ◽  
The Relationship ◽  
Principal Lines

By presenting the Court’s principal lines of case law regarding the allocation of powers in the Italian constitutional system, this chapter explores the constitutionally regulated relationships among the President, Executive, Parliament, and Judiciary. It reveals that rather than a “separation of powers” in the conventional sense of contemporary constitutional models, the Italian system is best described as instituting a set of reciprocal “relations of powers” with the Constitutional Court as the “judge of powers” that maintains and guarantees these interrelationships of constitutional actors. The chapter explores this role of the Constitutional Court in its relations with both Parliament and the President of the Republic, as well as the Court’s regulation of the relationship between the President and the Executive.

scholarly journals Reviving the Broad Guidelines of State Policy (GBHN) as the Product of People’s Consultative Assembly (MPR) in the Presidential Government System in Indonesia

FIAT JUSTISIA ◽  
2018 ◽  
Vol 12 (4) ◽  
pp. 307
Author(s):  
Yusdiyanto Yusdiyanto
Keyword(s):  
State Policy ◽  
Separation Of Powers ◽  
National Development ◽  
Vice President ◽  
Development Planning ◽  
Financial Supervision ◽  
Planning System ◽  
Constitutional Court ◽  
The People ◽  
Constitutional System

The research aims to enlight the overview about the urgent of the Broad Guidelines of State Policy (GBHN) as the product of the People’s Consultative Assembly (MPR) by using the dogmatic approach. The amendment of the 1945 Constitution has changed the Indonesian constitutional system. According to the article 2 paragraph (1) of the 1945 Constitution, highest authority remains in the hands of the people and is carried out according to the Constitution. The constitutional design of the Indonesian government system is presidential. However, the implementation often reaps many obstacles and problems, the consequences of amendments, eliminating the authority of the People’s Consultative Assembly (MPR) in terms of electing the President and Vice President, and determining the Broad Guidelines of State Policy (GBHN). MPR is no longer placed as the highest institution of the country and the perpetrators of popular sovereignity. The Constitution which is the holder of popular sovereignty in the practice adheres to a clear and strict understanding of the separation of powers. Like in the legislative field there are People’s Consultative Assembly (MPR), House of Representatives (DPR) and Regional Representative Board (DPD); in the executive field there are Presidents and Vice Presidents elected by the people; in the judicial sector there are the Supreme Court, the Constitutional Court and the Judicial Commission; in the field of financial supervision there is a Indonesian Supreme Audit Institution (BPK). Changes in the position, function and authority of the MPR have implications for the emergence of the National Development Planning System and the National Long-Term Development Plan which became the authority of the elected President. The President that won the election as a basic guidelines for implementing development as the replacement of the GBHN.  

scholarly journals URGENSI CHECKS AND BALANCES KETATANEGARAAN INDONESIA DAN ISLAM

2019 ◽  
Vol 18 (2) ◽  
pp. 221
Author(s):  
Bustamin Bustamin ◽  
Rony Jaya
Keyword(s):  
Separation Of Powers ◽  
Constitutional Court ◽  
Islamic State ◽  
Analysis Model ◽  
Checks And Balances ◽  
Islamic History ◽  
Interactive Analysis ◽  
Library Research ◽  
Qualitative Descriptive ◽  
Constitutional System

The reform movement opened the door to implementation of the 1945 amendment to the constitution. The urgency of the Indonesian government's control system, which included the legislative, executive and judicial institutions, was quite a concern. This condition is based on the fact that during the Orde Baru the concept of the Trias Politica Montesquieu was castrated by the authorities. Unlike the case of the Islamic constitutional system, the concept of mutual control was much more familiar when Khulafaur Rasyidin Umar bin Khattab called six (six) high-ranking friends to find a replacement. This was later considered the first Syura Institute in Islamic history. The purpose of this paper is to recognize the urgency of checks and balances in the Indonesian government system and in the Islamic state administration. This article uses a library research method with a qualitative descriptive approach, which is then analyzed using the interactive analysis model of Miles, Huberman, and Saldana. The results show that following the amendment of the 1945 Constitution, the legislature, including the DPR and the DPD, has taken control of the executive and the Supreme Court and the Constitutional Court as a judicial body can control each other and establish a balance between these institutions. While the Islamic constitutional system in the Fiqh study of Siyasah was already familiar with the separation of powers and the separation of powers in the institutions of Tasyri'iyah, Tanfidziyah and Qada'iyah.

scholarly journals ADMISSIBILIDADE E LIMITES DAS SENTENÇAS ADITIVAS: JURISDIÇÃO CONSTITUCIONAL PARA ALÉM DO LEGISLADOR NEGATIVO - DOI: http://dx.doi.org/10.5216/rfd.v40i1.37655

2016 ◽  
Vol 40 (1) ◽  
pp. 122
Author(s):  
MÁRIO CESAR DA SILVA ANDRADE ◽  
WALESKA MARCY ROSA
Keyword(s):  
Decision Making ◽  
Legal System ◽  
Judicial Review ◽  
Operative Technique ◽  
Separation Of Powers ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Constitutional Order ◽  
Alternative Decision ◽  
Federal Supreme

 RESUMO:O presente artigo analisa as sentenças aditivas como técnica alternativa de decisão no controle de constitucionalidade de omissões legislativas inconstitucionais. Investigou-se a compatibilidade das sentenças aditivas com a separação de poderes e os limites da utilização dessa controversa técnica decisória, bem como sua aplicação pelo Supremo Tribunal Federal (STF). A constatação da insuficiência das técnicas decisórias tradicionalmente utilizadas evidencia a necessidade de alternativas que superem as omissões inconstitucionais, garantindo a efetividade dos direitos fundamentais. Nesse cenário, as sentenças aditivas podem ser um útil instrumento de superação das eventuais omissões inconstitucionais do legislador. Porém, esse expediente é recorrentemente considerado incompatível com a concepção do tribunal constitucional como legislador negativo. Como referencial teórico adotou-se a conceituação das sentenças aditivas como técnicas decisórias do controle de constitucionalidade, conforme trabalhada pelo constitucionalista italiano Gustavo Zagrebelsky. O presente estudo concluiu pela compatibilidade das sentenças aditivas com a ordem constitucional brasileira, desde que respeitados determinados limites, como os impostos ao próprio legislador e a necessidade de prévia e suficiente orientação pelo ordenamento jurídico para a adição normativa. ABSTRACT:This article analyzes the additive judgments as an alternative decision technique in the judicial review of unconstitutional legislative omissions. It is investigated the compatibility of the additive sentences with the separation of powers and the limits of using such controversial operative technique and its application by the Federal Supreme Court (STF). The insufficiency of traditional decision-making techniques highlights the need for alternatives to overcome the unconstitutional omissions, ensuring the effectiveness of fundamental rights. In this scenario, the additive sentences can be a useful tool to overcome any unconstitutional legislative omissions. However, this expedient is recurrently considered incompatible with the concept of the constitutional court as a negative legislator. As a theoretical framework it is adopted the concept of the additive judgments as decision-making techniques of judicial review, as crafted by the Italian constitutionalist Gustavo Zagrebelsky. This study concluded that there is a compatibility of the additive sentences with the Brazilian constitutional order, since certain limits are respected, as in the case of taxes applied to the legislature itself and the need for prior and sufficient guidance by the legal system for normative addition.

scholarly journals O papel da Jurisdição Constitucional nas demandas estruturais: uma análise da ADPF nº 347/DF

2020 ◽  
pp. 267-292
Author(s):  
Matheus Casimiro Gomes Serafim ◽  
Felipe Braga Albuquerque
Keyword(s):  
Public Policy ◽  
Supreme Court ◽  
Driving Force ◽  
Historical Development ◽  
Separation Of Powers ◽  
Constitutional Court ◽  
State Of Affairs ◽  
Reform Litigation ◽  
Federal Supreme

RESUMOO presente trabalho analisa o papel da jurisdição constitucional na superação das omissões políticas, por meio das demandas estruturais. Assim, estuda-se a adoção do Estado de Coisas Inconstitucional (ECI) na ADPF nº 347/DF, investigando se a forma como a sentença estrutural colombiana está sendo recepcionada no Brasil é consentânea com a separação de poderes, bem como capaz de promover a eficiência das demandas estruturais. Para realizar essa análise, utilizasse o estudo bibliográfico e documental, com o intuito de compreender o desenvolvimento histórico do ECI, os casos paradigmáticos para a sua evolução e quais elementos contribuem para a sua eficiência. Com efeito, analisando-se os principais pedidos finais da ação, constatou-se que o seu eventual deferimento conduzirá a uma indevida ampliação das competências do Supremo Tribunal Federal (STF), aproximando a decisão da sentença T-153, proferida pela Corte Constitucional Colombiana e que é um clássico caso de ineficiência do ECI. Ademais, constatou-se que o STF precisa adotar um posição mediadora, e não formuladora de políticas pública, de tal forma que o tribunal funcione como uma força motriz que tira os poderes políticos da inércia, promovendo a formação de um diálogo institucional entre Judiciário e Executivo, incluindo também, na medida do possível, os segmentos populacionais afetados.PALAVRAS-CHAVEProcessos estruturais. Omissões políticas. Estado de coisas inconstitucional. ABSTRACTThe present study analyzes the role of constitutional jurisdiction in overcoming political omissions through structural reform litigation. Therefore, the adoption of the Unconstitutional State of Affairs (USoA) in ADPF No. 347/DF was studied, investigating whether the way the Colombian structural ruling is being received in Brazil is consistent with the separation of powers, as well as capable of promoting the efficiency of structural demands. To perform this analysis, a bibliographic and documental study was carried out in order to understand the historical development of the USoA, the paradigmatic cases for its evolution and which elements contribute to its efficiency. In fact, analyzing the main final claims of the action, it was found that its possible acceptance will lead to an undue extension of the powers of the Federal Supreme Court (Supremo Tribunal Federal), bringing the decision closer to verdict T-153 issued by the Colombian Constitutional Court, which is a classic case of USoA inefficiency. Furthermore, it has been concluded that the Federal Supreme Court must adopt a mediating stance rather than a public policy maker one, so that the Court functions as a driving force that pulls political powers out of inertia, promoting the formation of an institutional dialogue between the Judiciary and the Executive powers, including, as far as possible, the affected populational segments.KEYWORDSStructural reform litigation. Political omissions. Unconstitutional State of Affairs.

scholarly journals Federalism in Russia: Current State and Emerging Trends

2020 ◽  
Vol 7 (4) ◽  
pp. 127-152
Author(s):  
M. Salikov
Keyword(s):  
Public Relations ◽  
Russian Federation ◽  
Structural Changes ◽  
Separation Of Powers ◽  
Point Of View ◽  
Constitutional Court ◽  
Federal System ◽  
Constituent Entity ◽  
Emerging Trends ◽  
The Russian Federation

The article considers the phenomenon of federal relations in modern Russia from a theoretical and normative point of view. Studying related categories, such as federalism, federation and federal system, the author comes to the conclusion that it is federal relations, which by their nature are purely legal relations, are the core of any federal system. It is the analysis of the dynamics of development of these relations that shows the viability of a particular federal system. Using the concept of systems theory, the author reveals the structure of federal relations, which includes their subjects, objects and content. In turn, the content of federal relations can be revealed using the principles of both the horizontal and the vertical separation of powers. In this regard, not only normative regulation (the Constitution, federal and regional laws), but also judicial practice are of great importance: namely, decisions of the Constitutional Court of the Russian Federation, which handed down a significant number of decisions revealing the essence of federal relations in specific cases and resolving existing problems. The development of the federal system, and, consequently, the actual federal relations can be traced in examples of an institutional and regulatory nature. Vivid examples of this development are structural changes in the federal system associated with the formation of a new constituent entity of the federation and the adoption of a new constituent entity in the federation. Such examples have occurred in modern Russia, although in the case of the adoption of new entities in the current regulatory framework, certain problems are found that should be eliminated by making appropriate amendments to the law governing the procedure for such adoption. The COVID-19 pandemic, unfortunately, has affected virtually every nation in the world. The relationship between the federal center and the constituent entities of the federation in such an extraordinary situation has been affected too and has undergone certain changes. Their analysis cannot but lead to a correction of the normative regulation of federal relations in the event of similar situations in the future. Amendments to the Constitution of the Russian Federation have affected a large layer of public relations. Federal relations are no exception, since the “Federated Structure” section of the Constitution includes a number of rather interesting changes.

The Enforcement of Federal Law in the Belgian Federal State

2017 ◽  
Author(s):  
Céline Romainville ◽  
Marc Verdussen
Keyword(s):  
Federal State ◽  
Constitutional Court ◽  
Federal System ◽  
Federal Law ◽  
Constitutional Courts ◽  
Federal Constitution

This chapter looks at enforcement in the Belgian federal system. It first introduces the dynamics of Belgian federalism, how it channels processes of defiance to some extent through a dismantling of the federal state, and how it avoids the issue of enforcement of federal law by federate entities by reference to the exclusivity and equality principles. The chapter then analyses the exceptional situations where the enforcement of federal law is clearly provided for—concurrently through framework competences and parallel competences. It likewise analyses expressions of defiance in the framework of cooperative Belgian federalism, before turning to the power of the Constitutional Court to sanction violations of the enforcement of federal law. Finally, the chapter examines the scenario where defiance is brought to a higher level, with the flagrant and explicit disrespect by the federate entities of the Federal Constitution and of the judgments of the Constitutional Courts.

scholarly journals SISTEM BIKAMERAL DI INDONESIA SEBAGAI FUNGSI LEGISLASI DEWAN PERWAKILAN DAERAH DITINJAU DARI PERSPEKTIF MASLAHAH

2021 ◽  
Vol 7 (1) ◽  
pp. 36-49
Author(s):  
Zainal Amaluddin
Keyword(s):  
Special Form ◽  
Descriptive Analysis ◽  
Constitutional Court ◽  
Analysis Method ◽  
Legal Research ◽  
Historical Approach ◽  
Parliamentary System ◽  
Legislative Authority ◽  
Comprehensive Picture ◽  
Constitutional System

The Legislative Function of the Regional Representative Council The bicameral structure, especially in Indonesia, is viewed from a maslahah perspective. This study aims to analyze: (1) What is the legislative function of the Regional Representative Council in the bicameral system in Indonesia after the enactment of Law No.17 of 2014 concerning MD3, (2) What is the legislative function of the Regional Representative Council when viewed from the Maslahah perspective. This research is a type of normative legal research using two approaches, namely legislation and history. The statutory approach aims to examine in depth the various regulations governing the legislative duties and functions of the DPD, while the historical approach is used to understand the parliamentary system in Indonesia. After the data has been collected, the data is analyzed using descriptive analysis method which aims to describe the object under study in order to get a comprehensive picture. Furthermore, the data is analyzed based on maslahah theory using deductive methods because it analyzes through reasoning from a general form to achieve a special form. The results showed that: the legislative authority of the DPD which was originally expanded by the Constitutional Court in its decision No. 92 / PUU-X / 2012 apparently were not accommodated in the formulation of Law No.17 of 2014, this is evident in the MD3 Law that still contains several articles that again narrow down the constitutional authority of the DPD. If viewed from the maslahah perspective, the legislative functions of the DPD and Ahlul halli wal 'aqd in the Islamic constitutional system are very different. Although both have the same authority, namely in the field of legislation, the authority of Ahlul halliwal 'aqd is clearer and not as clear as the DPD legislation, besides that the DPD has not been placed equal to the DPR and the President in exercising its authority as a legislative institution especially after the enactment of Law No. .17 of 2014.

scholarly journals Application of the Constitution of Ukraine in the implementation of justice: basic principles

2020 ◽  
pp. 19-36
Author(s):  
Albert Ezerov
Keyword(s):  
Human Rights ◽  
Separation Of Powers ◽  
Direct Action ◽  
The State ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Constitutional Politics ◽  
Constitutional Review ◽  
Direct Operation ◽  
Constitutional System

The article focuses attention on the fact that the phenomenon of the Constitution is not limited to the constitutional text, since the Constitution, first of all, is a system of basic values designed to limit any manifestations of arbitrariness of public authority to ensure human rights. At the same time, it is noted that the «tangible» for the constitutional system exactly is the embodiment of the material Constitution as a text and a system of legal requirements in lawmaking and law enforcement, which directly depends on the subjects of law «users» of the Constitution. It is noted that the application by the courts of the Constitution as an act of direct action allows filling in the gaps and eliminating other defects in the legislation, is one of the dimensions the embodiment of the supremacy of the Constitution of Ukraine in the law application. It has also been established that the provisions of Article 8 of the Constitution, according to which its norms are direct action norms, and an appeal to the court to protect the constitutional rights and freedoms of a person and a citizen directly on the basis of the Constitution of Ukraine are guaranteed in a systematic connection with Article 150 of the Constitution according to that powers the Constitutional Court of Ukraine refers to the resolution of issues of compliance with the Constitution of Ukraine (constitutionality) of laws and other legal acts, cannot restrict courts in competence of direct application of the Constitution and solution to the issue of compliance with any other regulatory acts, that should be applied in a specific case. It has been proved that one of the mechanisms for ensuring the direct operation of the norms of the Constitution is the review of court decisions in view of exceptional circumstances, which is one of the manifestations of the «responsibility» of the state and responsible public administration, since in this way the state fulfills its the duty to restore of human rights as a consequence violation due adopting an act that has the subject of judicial constitutional review and recognized as unconstitutional. It is summarized that the Constitution will be real only with the active position of the courts on the application of its provisions in resolving disputes, and the courts will occupy a prominent place in the system of separation of powers, only if the Constitution will be basis of judicial decisions. Key words: courts of the judicial system, Constitution of Ukraine, implementation of justice, constitutional politics, constitutional conflicts, generic principles, application of constitutional norms, human dignity, constitutional values.

Challenges of the parliamentary system in Iraq after 2003

2019 ◽  
Vol 3 (10) ◽  
pp. 101
Author(s):  
Emad Wakaa Ajil
Keyword(s):  
Political System ◽  
Separation Of Powers ◽  
Political Process ◽  
The United States ◽  
Arab Countries ◽  
The Political ◽  
Parliamentary System ◽  
Political Transformations ◽  
The Us ◽  
Long Time

Iraq is one of the most Arab countries where the system of government has undergone major political transformations and violent events since the emergence of the modern Iraqi state in 1921 and up to the present. It began with the monarchy and the transformation of the regime into the republican system in 1958. In the republican system, Continued until 2003, and after the US occupation of Iraq in 2003, the regime changed from presidential to parliamentary system, and the parliamentary experience is a modern experience for Iraq, as he lived for a long time without parliamentary experience, what existed before 2003, can not be a parliamentary experience , The experience righteousness The study of the parliamentary system in particular and the political process in general has not been easy, because it is a complex and complex process that concerns the political system and its internal and external environment, both of which are influential in the political system and thus on the political process as a whole, After the US occupation of Iraq, the United States intervened to establish a permanent constitution for the country. Despite all the circumstances accompanying the drafting of the constitution, it is the first constitution to be drafted by an elected Constituent Assembly. The Iraqi Constitution adopted the parliamentary system of government and approved the principle of flexible separation of powers in order to achieve cooperation and balance between the authorities.

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