constitutional interpretation
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2021 ◽  
Vol 25 (2) ◽  
pp. 714-731
Author(s):  
Marew Abebe Salemot

Election postponement in Ethiopia, due to the COVID-19 pandemic, has raised critical constitutional questions that have never been really thought before in the countrys constitutional law jurisprudence. This is because the state of emergency measure in Ethiopia, due to the spread of COVID-19, is in conflict with constitutional deadlines for elections. The constitutional lacuna is complicated by the absence of explicit constitutional provisions that indisputably govern election postponement. Although any legal measures to postpone election schedule and pass constitutional deadlock is far from simple, the Ethiopian government has suggested four possible options to the constitutional dilemma: dissolving the parliament, declaring state of emergency, amendment of the Constitution and constitutional interpretation. Finally, the House of Federation (HoF), the Ethiopian upper House entrusted to interpret the constitution decided and postponed the election indefinitely until the pandemic no longer poses a risk to public health confirmed by the parliament which has direct vested interest in the outcome. This research investigates whether the constitutional interpretation option adheres to the premises of the Ethiopian Constitution or is it extra constitutional. Accordingly, the HoF provided superficial analysis and fallacious reasoning and failed to meaningfully grapple with the serious constitutional issues. The constitutional interpretation is not constitutionally bound and is defective. The manner the HoF managed the constitutional vacuum concerning election postponement, indisputably, was constitutional interpretation by name but a political decision in practice.


2021 ◽  
Vol 26 (4) ◽  
pp. 37-51
Author(s):  
Artur Mudrecki

Abstract The principle of proportionality plays a key role in shaping the principles of the tax law system, as it is an important element in the protection of taxpayer’s rights. The interpretation directive related to the principle of proportionality has a doctrinal, normative, and jurisprudential character. It is an EU and constitutional standard and should become a rule used on a daily basis in the practice of tax authorities. As a general principle of tax law, it is addressed to the legislative, executive, and judicial authorities. The article analyses the case law of the CJEU, the Constitutional Tribunal and the Supreme Administrative Court, which leads to the following conclusions. The CJEU quite often refers to the principle of proportionality in its jurisprudence and has developed a jurisprudence doctrine based on the doctrine of law. The Constitutional Tribunal, although in a limited scope, also employs the principle of proportionality. In disputes between tax authorities and taxpayers, Polish administrative courts apply the principle of proportionality using a pro-EU and pro-constitutional interpretation.


2021 ◽  
pp. 1-25
Author(s):  
Tarek Abo el-Wafa

Abstract While a Constitution embodies the basic principles and laws of a nation, its language and text may introduce ambiguity or confusion, especially during implementation of its laws. In such situations, interpretation of the text becomes more important than the text itself. The Federal UAE Constitution was issued in 1971 and includes a provision to specify the authority competent to interpret its contents. However, if the constitutional text that cited the interpretation jurisdiction of the Court is brief, then this research only gains important reason to explore the ambiguities of these texts and work. Therefore, this study aims to review and analyze Court rulings according to interpretation requests submitted to it from its inception to date. To the best of our knowledge, our study is the first to attempt to undertake the Court’s interpretative experience into a constructive legal analysis and highlight this genuine constitutional competence, which lacks a detailed discussion.


Author(s):  
I Dewa Gede Palguna

This study is a normative legal research which aims at discovering answers of two fundamental questions, namely, first, how is the status of the decisions of the Indonesia’s Constitutional Court according to the country’s constitutional system; secondly, what legal remedies may be pursued by the Indonesian citizens who are followers of indigenous beliefs whose constitutional rights to embrace such beliefs remain infringed despite there has been the decision of the Indonesia’s Constitutional Court Number 97/PUU-XIV/2016 which confirms the constitutional guarantee of such beliefs.  With respect to the first issue, the study found that the status of the Court’s decision was equal to Law because it was the product of a negative legislator. In addition, because the Court was also the interpreter of the Constitution (UUD 1945), then its decision was the Court’s constitutional interpretation concerning the issue at hand. As to the second issue, the study found that the followers of indigenous beliefs could file several legal remedies, namely citizen suit; class action; individual law suit; and submitting a formal complaint to the president, as the highest chief administrative officer, asking the president to reprimand its subordinates and to instruct them to observe the Court decision. Kajian ini adalah sebuah penelitian hukum normatif yang bermaksud menemukan jawaban atas dua pertanyaan mendasar yaitu, pertama, bagaimana kedudukan dari putusan Mahkamah Konstitusi menurut sistem ketatanegaraan Indonesia; kedua, jalan hukum apa yang dapat ditempuh oleh warga negara Indonesia penghayat kepercayaan yang hak konstitusionalnya untuk menganut keyakinan tersebut tetap dirugikan meskipun telah ada Putusan Mahkamah Konstitusi Nomor 97/PUU-XIV/2016 yang menegaskan jaminan konstitusi terhadap hak tersebut. Terhadap isu pertama, kajian ini menemukan jawaban bahwa kedudukan putusan Mahkamah Konstitusi adalah setara dengan undang-undang karena merupakan produk dari negative legislator. Sebagai tambahan, oleh karena Mahkamah Konstitusi juga merupakan penafsir Konstitusi (UUD 1945), maka putusannya adalah penafsiran konstitusional Mahkamah terhadap masalah yang sedang ditanganinya. Terhadap isu kedua, kajian ini menemukan jawaban bahwa penghayat kepercayaan dapat mengajukan beberapa upaya hukum, yaitu gugatan warga negara, gugatan kelompok, gugatan individual, dan membuat pengaduan resmi kepada presiden, selaku kepala pemerintahan tertinggi, dan meminta agar presiden memperingatkan bawahannya serta memerintahkan mereka untuk mematuhi putusan Mahkamah Konstitusi.


2021 ◽  
pp. 109-130
Author(s):  
George Thomas

Unwritten ideas underlie all approaches to constitutional interpretation, as each approach has an implicit political theory that drives its understanding of text. Some jurists and scholars think that constitutional interpretation should include applying general principles and understandings in ways we may never have thought about before. Others insist that such work should come by way of democratic legislation or constitutional amendment, not by way of constitutional interpretation by unelected judges. Yet each approach rests on unwritten understandings—on a political theory that underlies the Constitution, which is the source of our debates about how to faithfully follow the written Constitution. This also requires that we weigh and balance the different parts of the Constitution to see how they fit together as a coherent whole, relying on judgments that are not rooted in text.


2021 ◽  
pp. 1-16
Author(s):  
George Thomas

The Introduction reveals that all constitutional interpretation rests on unwritten ideas, and that debates about these unwritten ideas are the real source of our disputes about how to faithfully interpret the Constitution. Beginning with the most prominent Supreme Court justices who argue for textualism and originalism, the Introduction makes visible the unwritten ideas that frame their understanding of America’s written Constitution. It also reveals an important split between the political and judicial understanding and practice of interpretation based on the text and original meaning of the Constitution and the scholarly disquisition around originalism and textualism. While scholarly advocates of textualism and originalism recognize the importance of constructing constitutional meaning from sparse text, this move is denied by judges and political defenders of originalism.


2021 ◽  
pp. 5-23
Author(s):  
Remigiusz Rosicki

The material scope of the research problem presented in the text encompasses the issues concerned with operational surveillance that the Polish civilian counter-intelligence service, i.e. the Internal Security Agency (in Polish abbreviated as ABW – Agencja Bezpieczeństwa Wewnętrznego), is authorised to. The main purpose of the analysis is to assess the changes introduced as a result of the passing of the so-called Surveillance Act in 2016. The Act was supposed to introduce new regulations with regard to the powers concerning operational surveillance and obtaining of ICT data, granted to particular secret and police services. The said changes were enforced by the judgment of the Constitutional Tribunal, which in 2014 found numerous violations of the provisions of the Constitutions of the Republic of Poland caused by the existing regulations authorising the services to engage in particular operational and investigative actions. In order to elaborate the material scope of the research problem, and to present the conclusions, the following research questions have been presented in the text: Do the legal regulations concerning the powers vested in the Polish civilian counter-intelligence service within operational surveillance infringe individual rights and freedoms (e.g. the right to privacy, protection of personal information, privacy of correspondence), and if so, then to what extent? Functional and pro-constitutional interpretations have been applied to assess the provisions regulating the powers of the Internal Security Agency with regard to operational surveillance and obtaining of ICT data. The functional interpretation focuses on the function of selected legal solutions, whereas the pro-constitutional interpretation focuses on the assessment of legal solutions in the context of the principles of a democratic state ruled by law, as well as human rights and freedoms. As regards the pro-constitutional interpretation, the tool used for assessment is the test of proportionality, i.e. the rule used for interpreting legal norms according to the degree and legitimacy of the interference in individual rights and freedoms.


2021 ◽  
Vol 7 (9) ◽  
pp. 89323-89344
Author(s):  
Bruno Smolarek Dias ◽  
Leonardo Fratini Xavier De Souza ◽  
Sivonei Simas

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