Constitutional court - Guardian of the Constitution and protector of the rule of law

KONSTITUCIJOS VIRŠENYBĖS UŽTIKRINIMAS: KAI KURIE KONSTITUCINIO TEISMO IMPLICITINIŲ ĮGALIOJIMŲ ASPEKTAI

Protection of constitutional identity in light of the jurisprudence of the Constitutional Court of the Republic of Poland – a comparative study

This article examines the interconnection between constitutional courtand Supreme Court, with a special reference to the situation when Supreme Courtdecreed after the constitutional court decree. For the purpose of study, I use thedecree on the child’s descent case proposed by Machica Mohtar to examine theinterconnection of these two courts. By understanding how effective are theconstitutional court decrees and their connection with the position of SupremeCourt, I find that the interconnection between these religious court–high religiouscourts and constitutional court well-managed enough. Constitutional court decreehas been used as the basis for the court decrees. Nevertheless, Supreme Courttends not to place constitutional court decree for a permanent legal force (inkracht).As a result, the connection between constitutional court and Supreme Court hasnot been seen in its proper level. In another aspect, the implementation of law inIndonesia has shown a shifting from civil law system to those mixed between civillaw and common law systems. In this regard, this shifting indicates that not onlydoes a judge decree based on a procedural-justice, but he/she also takes asubstantive-justice into consideration. DOI: 10.15408/sjsbs.v4i1.7866

The Constitutional Court (CC) plays a crucial role in safeguarding the rule of law in Indonesia by ensuring that all laws and governmental policies adhere to the country's constitution. This research explores how the CC functions as an independent guardian of the constitution, balancing power among branches of government, and protecting citizens' rights from potential abuses of power. Through a qualitative approach utilizing literature review, this study analyzes the establishment history, organizational structure, and authority of the CC to conduct judicial reviews on laws deemed unconstitutional.Findings indicate that the CC has played a pivotal role in ensuring legal consistency and constitutional justice in Indonesia. CC decisions, whether through law reviews or constitutional interpretations, have provided the necessary legal certainty for political and economic stability in the country. However, the research also identifies several challenges facing the CC, including political pressures, resource limitations, and the need to enhance compliance with CC decisions among relevant stakeholders. In conclusion, the Indonesian CC holds a vital role in upholding the rule of law by ensuring that the constitution serves as a respected foundation for all within the nation. To maintain relevance amidst evolving social and political dynamics, the CC must continue to enhance its independence as a fair and impartial judicial institution. This study contributes significantly to understanding how the CC contributes to building a democratic and just legal system in Indonesia.

The 1945 Constitution of the State of the Republic of Indonesia Year 1945 confirms that Indonesia is a country of law. The one important principle of state of law is the guarantee of the implementation of independent judicial power, free from the influence of other powers to organize judiciary to enforce the law and justice. This study is based on the curiosity of investigators in uncovering the scope and existence of judicial power in Indonesia. The scope and existence were restricted to two state institutions in the field of the judiciary, the Supreme Court (SC) and the Constitutional Court (CC). Therefore, this study aims to identify and analyze the comparison (similarities and differences) between the authority of the SC and the CC. This study views of its kind is a normative legal research. While the views of nature, descriptive study. SC and the CC have the same authority to be a court decision that is both first and last. SC and the CC provides access to people who can not afford as the recipient of legal aid to be able to act. SC have jurisdiction in the enforcement of the criminal law, while the CC, does not have jurisdiction in the enforcement of the criminal law, but the CC decision related to the decriminalization of significant influence in the enforcement of criminal law. SC and the CC differ in their patterns and the supervision of the Chief Justice of the Constitutional Court. SC and the CC different in terms of a court decision is final and binding. The SC decision, are not the first and last because is final and binding and there is also not final but is already binding. There are differences of transparency in the legislation review in the SC and the CC. Keywords: The Rule of Law, Attribution Power, Judicial Power, Justice.

Most of the literature on courts in the post-Communist region assumes that a powerful judiciary is indispensable in the establishment of the rule of law. This assumption stems from the claim that only assertive and independent courts can constrain incumbent politicians and prevent them from acting above the law to further their own interests. Scholars applauded the bravery of the first Russian Constitutional Court, which challenged Boris Yeltsin and bemoaned the reluctance of the second one to challenge Vladimir Putin.1 They criticized the passivity of the Ukrainian Constitutional Court and praised the unparalleled activism of the Hungarian Constitutional Court as well as the unexpected activism of the Bulgarian Constitutional Court.2This article seeks to allay the enthusiasm for post-Communist judicial empowerment by showing that sometimes a powerful judiciary can threaten the rule of law. More specifically, the article uses an analytic narrative approach to demonstrate that the powerful Bulgarian Constitutional Court has fanned the flames of a war of attrition between the executive and the ordinary judiciary. There are no winners in this war of institutions (as the conflict is often dubbed in the Bulgarian press), only the occasional Pyrrhic victory. In large part due to this inter-institutional conflict, Bulgaria has become a poster child for failed judicial reforms among the post-Communist members of the European Union.Bulgaria's experience should serve as a cautionary tale for those post-Soviet states that are most advanced in their democratic transitions and also subject to EU pressure to advance the rule of law via the strengthening of their judiciary. This group, of course, includes the Baltics, Moldova, Georgia, and Ukraine. While a measure of judicial independence is always desirable, judicial empowerment should not be pursued as a panacea. The Bulgarian war of institutions demonstrates that a powerful judiciary can carry potential negative externalities.Executive-Judicial Conflict and the Perils of Judicial Empowerment in BulgariaCourts are powerful when they have the jurisdiction to intervene in salient public issues, the discretion to deliver rulings of significant impact, and the authority to make powerful actors comply with their decisions.3 By all of these measures, Bulgarian courts (both the ordinary judiciary and the Constitutional Court) are powerful.4 However, Bulgaria is far from having consolidated the rule of law. On the contrary, the Bulgarian judiciary has not tackled corruption and organized crime. At best, is inefficient; at worst, corrupt. It is wildly unpopular with the public, which believes that the courts promote special private interests rather than justice. Annual reports, issued by the EU for the past decade, have criticized several Bulgarian cabinets for failing to push through the necessary judicial reforms. After the seeds of the EU enlargement policy failed to produce tangible results, in 2008 the EU resorted curtailed over 500 million euro in funding that Bulgaria was scheduled to receive.Instead of working together to fix the obvious problem, the two branches of the Bulgarian government have been locked in a bitter conflict for most of the post-Communist period. The executive has made numerous attempts to reduce judicial unaccountability and inefficiency through institutional changes. Every time a new draft of the 2001 Judicial Power Act (the law on the institutional organization of the judiciary) enters parliament, however, the judiciary cries foul and denounces the executive for its purported assault on judicial independence. Often, the judiciary also responds with rulings that undermine the government's policy program. Many of the battles end up in the Constitutional Court, which has inspired a trend toward the judicialization of Bulgarian politics, as the Constitutional Court invariably sides with the ordinary judiciary. The EU, in the meantime, keeps complaining-and rightfully so-that judicial reform is not producing any tangible results. …

Constitutional Courts as Mediators: Armed Conflict, Civil-Military Relations, and the Rule of Law in Latin America. By Julio Rios-Figueroa. New York: Cambridge University Press, 2016.Comparative constitutional law is a vibrant field of study, especially in Latin America. The confluence of democratization and major economic reforms following the demise of authoritarian regimes (in the 1980s and early 1990s) generated a nearly consensual belief that the 1990s were an era of great hopes regarding civil liberties, political stability, and wealth distribution in the region.Almost three decades later, it seems that such optimistic prediction was not entirely fulfilled. Even if a wave of constitutional changes inscribed transformative socioeconomic rights in many countries' legal orders (the Latin American constitutionalism of Colombia 1991, Venezuela 1999, Ecuador 2008, and Bolivia 2009), political stability, and economic growth remained somewhat fragile.The recurrent crises of presidential systems and an unprecedented flood of impeachments swept Latin America in the 1990s: in just over a decade, six presidents faced and impeachment process and four of them were removed from office (Perez-Linan 2007). The frequent and widespread mobilization of the impeachment mechanism challenged many of the dominant views among political scientists, reopening important questions in the literature about Latin American democracies, both on structure and functioning.The new institutional balance that is perceived in Latin America involves the understanding of the role of an important political and strategic actor: Constitutional Courts. Performing an increasingly active position in several of the most politically sensitive national issues, the courts emerge as neutral and reliable instances aimed to protect democratic regimes. For this reason, traditional framings and the mere reproduction of the common sense about judiciary competences are becoming outdated.What lessons can be drawn from these experiences? Do these phenomena corroborate the narratives that emphasize the institutional fragility of Latin American democracies? Despite the discussion around its causes, what does political fragmentation and constitutional changes imply for practical functioning of institutions?Rios-Figueroa departs from this context to create a bold and compelling perspective on the structure, democratic position and strategic behavior of Courts. Combining a stimulating narrative and both qualitative and quantitative methods, Constitutional Courts as Mediators articulates a strong thesis about the role played by constitutional courts as democratic mediators, particularly in dealing with often tense civil-military relations. Focusing on how the accessibility to constitutional justice conditions the production of mediator-like jurisprudence, Rios-Figueroa demonstrates an impressive command of a range of complex content: conflict resolution, judicial politics, and comparative constitutional law.Rios-Figueroa argues that to the extent that constitutional courts are (1) highly accessible, (2) have ample powers of judicial review, and (3) are independent, they are more likely to obtain and credibly transmit relevant information, in a way that helps them address the underlying informational causes of their conflict (24). …

Der Einfluss und die Stellung des Völkerrechts in den Verfassungssystemen einiger ost- und Mitteleuropäerfassungssystemen Einiger Ost- und Mitteleuropäischer Transformationsstaaten

The birth of the decision of the Constitutional Court (MK) in adjudicating case Number: 90/PUU-XXI/2023 resulted in suspicion from many parties towards the President as the decider of the Constitutional Court's decision considering that the Chief Justice of the Constitutional Court is the President's brother-in-law or there were indications and/or suspicions that the Constitutional Court was intervened by the Presidential institution, and culminated in the formation of the Constitutional Court Honorary Council (MKMK). The Constitutional Court Judge's decision can be categorised as a decision that has the character of a Rechtsstate (rule of law) or actually confirms the Constitutional Court's decision that has the characteristics of a Machtstate (state of power) and the impact (Social, Political and Institutional Credibility) of the Constitutional Court's Decision on the Independence and Professionalism of the Constitutional Court Judges institutionally. This research uses normative juridical methods using secondary data in the form of literature studies. The aim of this research is to analyse the decisions of Judges and drug consumers as well as the Impact (Social, Political and Institutional Credibility) of Constitutional Court Decisions on the institutional Independence and Professionalism of Constitutional Court Judges. The research results show that the Constitutional Court Decision NO. 90/PUU-XXI/2023 is not in line with the third principle of the rule of law/Rechtsstaat, but the Constitutional Court's decision can be seen as a decision that has the dimension of state power (Machtstate).

The Constitutional Court of Bosnia and Herzegovina was established on the basis of Article VI of the Constitution of Bosnia and Herzegovina as an independent guardian of the Constitution of Bosnia and Herzegovina and an institutional guarantor of the protection of human rights and fundamental freedoms established by this Constitution and instruments of Annex I to the Constitution. Assuming that it is not part of the legislative, executive and regular judicial power (as positioned by the Constitution of Bosnia and Herzegovina), the Constitutional Court acts as a separate, autonomous and independent authority and a corrective factor for the other three segments of government in Bosnia and Herzegovina. In this way, the Constitutional Court, as one of the key state institutions of Bosnia and Herzegovina, contributes to the promotion of democracy, rule of law and the affirmation of the rule of law, especially in the first years after its constitution when it was necessary to protect the foundations of a democratic state and resolve a number of questions that have in some ways remained vague in the Constitution of Bosnia and Herzegovina. The decisions of the Constitution are final and binding. In the end, the Constitutional Court has to seek and find out the ways for implementation of its decisions. If the legislator is not able to do that, the role of the guardian of the Constitution imposes on the Constitutional Court, even in the unpopular (realistically, rarely used) role of a positive legislator, to bring the procedure before the court to an end - by proclaiming a law on a temporary basis. The paper explains the concept of judicial activism, its limitations and self-limitations. Then, it points out some of the most impressive forms of its realization in the case-law of the Constitutional Court, taking into account mutual influences and differences. Special emphasis is placed on the constitutional framework of constitutional court activism of the Constitutional Court, which is also the basis for the interpretation of the Constitution of Bosnia and Herzegovina.

Indonesia is a country of law. Jimly Asshiddiqie formulated twelve main principles of modern rule of law, one of which was the existence of a free and impartial judiciary, and the existence of a constitutional justice mechanism. After amendments of the constitution of the 1945 Constitution of the Republic of Indonesia, it has implications for the structure of more democratic state institutions. These changes give birth to the building of state relief from one another in an equal position with mutual control (checks and balances). Judicial Power is an independent power to administer justice to uphold law and justice. An independent judicial power or what is referred to as the principle of independence cannot be separated from the principle of checks and balances adopted by Indonesia to ensure that the institutions of authority and duties are balanced and the principles of the state are based on law and constitution. In Indonesia, the Constitutional Court judiciary was born on August 13, 2003, which was formed based on Law Number 24 of 2003 concerning the Constitutional Court. The history of the establishment of the Constitutional Court (MK) began with the adoption of the idea of a Constitutional Court in constitutional amendments. In the course of normative juridical arrangements regarding the Constitutional Court, there have been four amendments, namely (1) Law Number 24 of 2003 concerning the Constitutional Court; (2) Law Number 8 of 2011 concerning Amendment of Law Number 24 of 2003 concerning the Constitutional Court; and (3) Government Regulation in Lieu of Law Number 1 of 2013 concerning Second Amendment to Law Number 24 of 2003 concerning the Constitutional Court which has been ratified into law with Law Number 4 of 2014 and has been cancelled by MK Decision Number 1-2 / PUU-XII / 2014. This is due to several problems faced by the Constitutional Court, namely Constitutional Court Judges who violated the code of ethics to commit corruption and bribery. Of course, there is a need for a comprehensive study relating to (1) Appointment of Constitutional Justices and Panel of Experts and (2) External Oversight of Constitutional Justices and the Ethics Board of Constitutional Justices. use the Progressive Legal Theory approach to get solutions to the problematics that occur, which explore the values contained in society. In its arrangement, the Expert Panel and External Oversight have been regulated in Perppu No. 1 of 2013 which has been stipulated as Law Number 4 of 2014, but in that Act, the Court considers that the Expert Panel and External Oversight Committee formed by the Judicial Commission is considered unconstitutional because there is no principle of checks and balances within the judicial authority. With the susceptibility of constitutional judges to take actions outside of authority and other factors that have implications for the declining level of the Constitutional Court's confidence in society. Therefore, the researcher here wants to reconstruct a Panel of Experts and External Supervisors who answer the previous problems. The purpose of the Reconstruction of Panel of Experts and External Oversight is to realize a law enforcement system that is free of corruption, collusion, nepotism.

Issues relating to granting permanent legal force to decisions of the constitutional court immediately after they are pronounced in a plenary session open to the public are important to research for several reasons Firstly, it is very important for us to know the rationale for granting permanent legal force to decisions of the constitutional court given immediately after completion. pronounced in a public meeting open to the public. Second, understanding the permanent legal force of constitutional court decisions is also related to the question of why it is not possible to have legal efforts to correct constitutional court decisions if errors occur in terms of achieving legal certainty. Based on this, the question also arises as to whether the constitutional court's decision regarding this error will continue or not. Third, it is related to whether the legislator (positive legislator) can override the decision of the constitutional court. What is the rationale underlying the granting of permanent legal force to a Constitutional Court decision from the moment it is pronounced in a session open to the public? This research is normative legal research because there is a legal vacuum if the constitutional court's decision is contrary to the spirit of the 1945 Constitution. The importance of immediacy in granting permanent character to the constitutional court's decision, if viewed from the law in book aspect, is indeed the best choice. This is based on the following reasons. First, the Constitutional Court was formed to protect the purity of the Constitution with a more detailed interpretation. This interpretation will be used as a basis for resolving problems by certain authorities who are given direct authority by the Constitution. Therefore, it is appropriate that the interpretation is only carried out once, which is binding so that the decision must be placed at the first and final level where no effort can be made to cancel it. Second, apart from that, it must also be understood that the constitutional court as a constitutional court can resolve problems and provide legal certainty quickly by the principles of fast and simple justice.

The establishment of the Constitutional Court is driven by a serious effort to protect the constitutional rights of citizens and uphold the constitution as the highest norm. Constitutional Court Decision No. 96/PUU-XVIII/2022 on the material review of Article 87 letters A and B of Law No. 7/2020 on the Constitutional Court, from the perspective of legal positivism, indicates that the Constitutional Court has exercised its authority in accordance with the governing law. Critical Legal Studies theory, as a branch of legal philosophy, offers a different perspective in evaluating legal products. This research aims to: first, understand the reasoning of the Constitutional Court judges in deciding the case; and second, assess the Constitutional Court's decision from the perspective of Critical Legal Studies theory. The research method employed is doctrinal research with a philosophical approach. The findings of this study reveal that the Constitutional Court ruled that the petitioner's argument concerning Article 87 letter A of Law 7/2020 is legally justified and no longer has binding legal force since the pronouncement of this Decision. However, the petitioner's request regarding Article 87 letter B of Law 7/2020 is deemed legally unjustified. According to the analysis of Critical Legal Studies theory on Constitutional Court Decision No. 96/PUU-XVII/2020, it is evident that there is a dominant ideology influencing the judges' considerations in the decision. The Constitutional Court merely relies on subjective values in deciding the case, disregarding procedural legal principles and pretending to maintain neutrality. The judges' reliance on political institution testimony demonstrates the inseparability of politics and law. The statement in the verdict regarding the selection of the Chairperson and Deputy Chairperson, who can only be reelected nine months after this decision, serves as evidence that the Constitutional Court aims to avoid any disadvantages and indirectly ensures the current Chairperson and Deputy Chairperson will continue to hold their positions.

It is recognized that constitutionalism in divided societies is often strained and may require appropriate tailoring, but how far should that go? Constitutional courts – traditionally conceived as independent and impartial guardians of the constitutional order and the rule of law – seem to defeat the point of consensual decision-making settlement promised by consociational power-sharing solutions frequently recommended for deeply divided societies. One way of cutting this Gordian knot is by offering a hybrid solution, a sort of consociationalised constitutional court. The legitimacy of such an institution, in the context of a consociational political regime, is to be secured by it itself becoming a ‘power-sharing court’, strongly reflecting the salient cleavages dividing the society, and incorporating power-sharing elements in its structure and decision-making rules. In deeply divided societies where such cleavages are ethnic ones, and they often are, the constitutional court would be an ethnic court. This chapter critically examines such a model, by focusing on three such courts in Bosnia and Herzegovina, in particular the Bosnian Constitutional Court, often seen as an example of a ‘strong power-sharing court’. In particular, it considers the extent to which the standard model of the constitutional court can be bent out of shape, while retaining its original functions.

The article is a hypotetical analysis of possibilities for legal control of an act of the National Assembly of the Republic of Serbia, more concretely, the act on election of a bearer of a public function. In order to answer the question of available legal remedies for the control of the concrete act, the author first analysed the character of the act and came to the conclusion that this is an individual legal act, and more precisely an individual administrative act, which could be controlled within the administrative dispute procedure. Since, in the circumstances of the concrete case, the circle of persons with possible standing in the administrative dispute is very narrow, the author also inquired into the possibilities of control before the Constitutional Court, i.e. could citizens turn to the Constitutional Court when they believe that the highest state authorities have breached the very principle of the rule of law. It is important for the rule of law that a legal remedy exists and that it is feasible in practice. In the case at issue, possible legal remedies have been analysed, as well as the circle of subjects who could make use of these remedies. For the identification of legal remedies, it was first necessary to determine which kind of an act was passed. Analysis of domestic legislation and available case law of ordinary courts and the Constitutional Court basically pointed towards a single legal remedy which could have brought to the review of the concrete act of the National Assembly - a claim in the administrative dispute, which in this case, could have been brought only by the competent public prosecutor. The text does not delve into a serious analysis of the effectiveness of this legal remedy and remains on the finding that the circle of persons with standing to institute an administrative dispute is extremely limited. On the other hand, constitutional provisions, as well as available Constitutional Court case law did not present enough foundation for the possibility for every citizen to address the Constitutional Court for protection of the so-called right to the rule of law. To be honest, applicable examples were not identified in comparative case law, either. In all jurisdictions there are issues which escape judicial control (such as the so-called political issues or political questions), but there are some criteria for that, mostly developed in case law of highest or constitutional courts. However, in these cases, there is no place for violation of provisions of ordinary legislation, since it could be said that that would undermine the faith in basic legal security as well as the foundations of the very idea of the rule of law.