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?.

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 PUTUSAN ULTRA PETITA MAHKAMAH KONSTITUSI DALAM PERKARA PENGUJIAN KONSTITUSIONALITAS UNDANG-UNDANG

Yuridika ◽  
2014 ◽  
Vol 29 (2) ◽  
Author(s):  
Zendy Wulan Ayu W.P ◽  
Haidar Adam
Keyword(s):  
The Other ◽  
Judicial Power ◽  
Constitutional Court ◽  
Court Decisions ◽  
Constitutional Review ◽  
Other Hand ◽  
The Law

This research aimed to analyze the Indonesia constitutional court decisions which contain dissenting opinion regarding the constitutionality of the law. As a part of constitutional court law of procedure, some constitutional judges allowed to give their different opinion against the majority of the judges. In one hand, this action has reflected the independency of the judges cum the independency of the judicial power. On the other hand the dissenting opinion has raised a question concerning the legitimacy of the decision since the decision was not decide unanimously. This research is doctrinal research which means that all the material will be analyzed by using the law, court decisions and law principles.Keywords: dissenting opinion, decision, constitutional review.

Verfassungsänderung und Normenkontrolle in der Ukraine

2019 ◽  
Vol 65 (1) ◽  
pp. 67-92
Author(s):  
Bernd Wieser
Keyword(s):  
Constitutional Law ◽  
The Other ◽  
Constitutional Amendment ◽  
Constitutional Court ◽  
Legal Doctrine ◽  
Constitutional Development ◽  
Review Procedure ◽  
Regulatory Complex ◽  
The Subject

The Constitution of Ukraine has been amended several times since its adoption in 1996. The relevant procedure is regulated in Articles 154-159 of the Constitution. In principle, these provisions are characterised by the fact that two different procedures - one is “normal”, while the other is more difficult - are provided for the amendment of constitutional provisions. It can also be deduced from Article 157 of the Constitution that the Ukrainian Constitution also contains so-called unchangeable constitutional law. This system is further superseded by the provision of Article 159 of the Constitution according to which a constitutional amendment project may only be considered by the Verchovna Rada if an opinion of the Constitutional Court on the compatibility of the draft with Articles 157 and 158 of the Constitution is provided; the constitutional amendment is thus connected with an obligatory preventive review of norms. Whether violations of these provisions can also be taken up in a subsequent review procedure is another important aspect of the entire regulatory complex. The Constitutional Court has indeed recognized this competence; of course, the relevant Decision of 30 September 2010 is not without errors and criticisms in legal doctrine. The subject of this article is to examine all these questions and to put them into a system. Also, the article shows the factual constitutional development over the last ten years and on this basis demonstrates the highly complex constitutional situation in which Ukraine finds itself today.

scholarly journals Constitutional control in the post-soviet states: general and distinctive features

2021 ◽  
pp. 30-33
Author(s):  
Kateryna ZAKOMORNA ◽  
Denys ROHOZIN
Keyword(s):  
Russian Federation ◽  
The Body ◽  
Constitutional Court ◽  
Distinctive Features ◽  
Constitutional Review ◽  
Federal Level ◽  
The Status ◽  
The Russian Federation ◽  
Key Features ◽  
The Republic

This paper discusses a number of issues related to the structure, status and powers of constitutional control bodies in the post-Soviet countries. The differences between these institutions and the body of constitutional control of Ukraine are analyzed. Particular attention is focused on the key features of the constitutional review body in each of the countries. Thus, a key feature of the Constitutional Court of the Russian Federation is its right to abolish normative legal acts not only at the federal level, but also by the subjects of the federation. Studying the provisions of the Constitution of the Republic of Belarus, it should be noted that the Constitutional Court of Belarus is empowered to decide issues on the compliance of acts of the Supreme Economic Court with the provisions of the Constitution. A key feature of the Kazakhstan constitutional review body is the powers it has been given to review only those laws passed by parliament that have not yet been signed by the President. A specific feature of the status of judges of the Constitutional Court of the Republic of Lithuania is the consolidation of sufficiently high qualifications for candidates in the provisions of the Constitution. No judge can hold office for no more than one term, which is 9 years. The system of constitutional control in Georgia cannot boast of a large number of features. So, they include the absence of a separate section in the Constitution that would regulate the procedure for carrying out constitutional proceedings, as in most countries – only a separate article is devoted to this provision. On the basis of the conducted advancement of the proponation of the idea and the provision of the Constitutional Court of Ukraine, more importantly, from the dispute, the competence of the state bodies is based. It is proponated to propose the lineage of the seat of the court.

scholarly journals Selective rationality? Argumentation of the Constitutional Court of the Russian Federation on the terms of office of the President in the mirror of cognitive science

2021 ◽  
Vol 30 (1) ◽  
pp. 84-99
Author(s):  
Alexandra Troitskaya
Keyword(s):  
Russian Federation ◽  
Cognitive Distortions ◽  
Point Of View ◽  
The Body ◽  
Constitutional Court ◽  
Cognitive Approach ◽  
Constitutional Amendments ◽  
Constitutional Review ◽  
Russian Constitution ◽  
The Russian Federation

The Decision (Zaklyuchenie) of the Constitutional Court of the Russian Federation on the constitutionality of the constitutional amendments played a significant role for the entry into force of the amendments to the Constitution of the Russian Federation adopted in 2020. For this reason, and in connection with the fact that many of the novels raise questions precisely from the point of view of their compliance with Chapters 1, 2 and 9 of the Russian Constitution, the positions formulated in the Decision attract serious attention. The article analyzes the arguments of the Court on one of the significant innovations – the possibility of being elected to the post of President of Russia by a person who held or holds this position at the time the amendment entered into force, without taking into account the previous terms. This reasoning is placed in the context of the demands of rationality in constitutional law. The article is aimed at implementing bona fide intentions related to confirming the subjectivity of the body of constitutional review and identifying ways to improve its argumentation. The activities of the constitutional court are presented in the article as part of reasonable foresight, which implies the creation of guarantees for the case of deviation from constitutional values. The rationality of its argumentation is understood as the sum of requirements connecting in a certain way 1) formal logic and 2) substantive reasonableness, determined by the value choice made in the constitution. It is demonstrated that the rationality of the argumentation formulated in the Decision of the Constitutional Court on the problem of the term of office of the head of state can be questioned from these points of view and, for this reason, cause associations with cognitive distortions (such as bias in the selection of initial premises for argumentation; incomplete study of scenarios reflecting the consequences of a reviewed amendment; framing; logical circle, etc.). At the same time, the article reveals the limitations of the “naive” cognitive approach, which is insufficient for working with the argumentation of the body of constitutional review and which actualizes additional consideration of the political and legal context of decision-making by this body.

scholarly journals THE CONSTITUTIONAL COURT IN THE MECHANISM OF DOMESTIC REMEDIES IN STATES WITH DIRECT ACCESS TO CONSTITUTIONAL JUSTICE: OPERATIONAL AND ECONOMIC ASPECTS

2020 ◽  
Vol 6 (1) ◽  
pp. 18
Author(s):  
Iryna Berestova ◽  
Galyna Yurovska
Keyword(s):  
Human Rights ◽  
National Level ◽  
Legal Regulation ◽  
The State ◽  
The Body ◽  
International Standards ◽  
Direct Access ◽  
Constitutional Court ◽  
Constitutional Review ◽  
Constitutional Justice

This article studies the legal status and the performance of the Constitutional Court (hereinafter referred to as the CC). The experience of States with direct access to a body of constitutional jurisdiction enables to distinguish the CC's position in the system of State jurisdictions (with particular economic justification of its activity) and to substantiate its role in the mechanism of domestic remedies. The aim of the article is to reveal the CC's place in the mechanism of domestic remedies of States with centralized constitutional review and direct access to constitutional justice on the part of effective protection of the applicants’ rights and the state budget in the formation of judicial remedies. Methodology. The leading methods of the article are correlation, comparativelegal, dialectical and technical logic methods of research, etc. They enable to compare and contrast international standards in the field of legislation of different European States, to reveal the nature of constitutional and legal conflicts and specifics of the constitutional procedure for the CC’s cases. These problems are also investigated using the method of synthesis of financial justification of the activities of the bodies of constitutional jurisdiction and the effectiveness of the results of their activities in the protection of rights and freedoms of an individual and a citizen. This enables to formulate further development and suggestions for improving the legal regulation of the CC’s activities in the States that have recently begun to implement this instrument of protecting constitutional human rights and freedoms. The key results of the study. It is proven that the CC is a specific body that is the last at the national level to exercise exceptional special powers aimed at protecting human rights and fundamental freedoms. The role of the CC in the system of domestic remedies is revealed. The CC is an autonomous body of constitutional jurisdiction with a constitutional status, independent of the executive and legislative branches. It is substantiated that the CC is factually affiliated to the judicial authorities engaged in jurisdiction. It is proven that the CC's activities are characterized by judicial independence, combined with the powers of the CC judges to decide legal matters within its constitutional jurisdiction. Cases are judicial in nature, and the CC considers them on the rule of law. The decisions adopted shall be mandatory (binding) and shall not be altered by other branches of government. The main functions of the body of constitutional jurisdiction are distinguished into quasi-judicial, cognitive and evaluative, harmonizing. The consistent universal approach of the European Court of Human Rights (hereinafter referred to as ECHR) states that the notion of "court" does not necessarily mean classical jurisdiction, integrated into the judicial system of the state. Finally, the article proves the requirement of recognizing the CC as a “court established by law” essentially and functionally. Consistent approaches and criteria for defining the notion of "court established by law" formulated by the UN Committee on Human Rights and the ECHR's case-law prove that the CC can be identified as the last mandatory domestic remedy before applying to international judicial institutions, subject to the criterion of an effective remedy, formulated by the ECHR's caselaw during proceedings in the CC.

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.

High Heels sebagai Agensi bagi Tubuh Wanita

2020 ◽  
Vol 5 (2) ◽  
pp. 196
Author(s):  
Sunandar Macpal ◽  
Fathianabilla Azhar
Keyword(s):  
Body Image ◽  
Literature Review ◽  
The Body ◽  
The Other ◽  
Body Image Disturbance ◽  
Other Hand ◽  
High Heels ◽  
Experience Pain ◽  
Woman's Body

The aims of this paper is to explain the use of high heels as an agency for a woman's body. Agency context refers to pain in the body but pain is perceived as something positive. In this paper, the method used is a literature review by reviewing writings related to the use of high heels. The findings in this paper that women experience body image disturbance or anxiety because they feel themselves are not beautiful or not attractive. The use of high heels, makes women more attractive and more confident, on the other hand the use of high heels actually makes women feel pain and discomfort. However, for the achievement of beauty standards, women voluntarily allow their bodies to experience pain. However, the agency's willingness to beauty standards here is meaningless without filtering and directly accepted. Instead women keep negotiating with themselves so as to make a decision why use high heels.

The Kelsenian Model of Constitutional Review in Times of European Integration – Reconsidering the Basic Features

2019 ◽  
Vol 19 (1) ◽  
pp. 7-37
Author(s):  
Aleksandra Kustra-Rogatka
Keyword(s):  
European Integration ◽  
Legal System ◽  
Constitutional Court ◽  
Centralized Control ◽  
Constitutional Treaty ◽  
Constitutional Courts ◽  
Constitutional Review ◽  
Legal Norms ◽  
Basic Features ◽  
The Eu

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.

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