Freedom of Association in Peru

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

One of the fascinating yet seldom explored phenomena in predominantly religious polities in the Middle East and elsewhere is the growing reliance on constitutional courts and their jurisprudential ingenuity to contain the spread of religiosity or advance a pragmatic version of it. In this article, I explore the scope and nature of this phenomenon. I proceed in several main steps. First, I define what may be termed "constitutional theocracy" with its often conflicting legal commitments, political interests, and social realities. Second, I examine the main epistemological, juridical and political reasons why constitutional law and courts are so appealing to secularist, modernist, cosmopolitan, and other non-religious social forces in polities facing deep divisions along secular/religious lines. Third, I look at various modes of interpretive ingenuity drawn upon by constitutional courts in Egypt, Pakistan, Israel, and Turkey in order to contain, limit, and mitigate the resurgence of religiosity in their respective polities. All of these countries have experienced a growth in the influence of religious political movements, with a commensurate increase in the levels of popular support that they receive. Despite the considerable differences in these countries' formal recognition of, and commitment to, religious values, there are, however, some striking parallels in the way that the constitutional courts in these (and in other similarly situated countries) have positioned themselves as important secularizing forces within their respective societies. I conclude by drawing some general lessons concerning the political construction of judicial review and the secularizing role of constitutional courts in an increasingly religious world.

KONSTITUCIJOS VIRŠENYBĖS UŽTIKRINIMAS: KAI KURIE KONSTITUCINIO TEISMO IMPLICITINIŲ ĮGALIOJIMŲ ASPEKTAI

Within the last two decades German constitutionalism in general and the German Federal Constitutional Court (BVerfG) in particular have noticeably increased their influence as prototypes for legal systems worldwide. Despite the fact that neither constitutions nor a specialized constitutional jurisdiction are German inventions as such, in recent times several nations within and outside of Europe have turned their eyes into Germany. In an enormous range that includes countries in Western Europe, most of the former Eastern Bloc, as well as nations in Latin America, Asia, and Africa; for a time now the German Basic Law and the BVerfG as its “guardian” have clearly substituted their American counterparts as the “world’s leading model of democratic constitutionalism”. Surprisingly enough, however, in spite of the remarkable influence both of German legal institutions and German constitutional jurisprudence worldwide, there are still some important misconceptions—particularly among Hispano-American scholars—regarding the German system of constitutional review. These misunderstandings have not only impacted foreign academic work but also, unfortunately, they have had significant influence on policy making abroad. They relate, as one would have thought, to oversimplification; a deficiency that is not unusual among comparative legal studies. This way, for example, the existence of a specialized constitutional jurisdiction in Germany has led some scholars to assume that the BVerfG monopolizes the whole activity of constitutional judicial review. What is more, the presence of a specialized procedure through which individuals as such can further challenge ordinary courts’ judgments before the constitutional court—the so-called ‘constitutional complaint’ (Verfassungsbeschwerde)—frequently leads scholars to explain the division of duties between constitutional and ordinary courts as if it were given by the application, respectively, of constitutional or ordinary law. Finally, no less important, this specialized constitutional mechanism for individuals is often understood as if it were a ‘right’ in the strictest sense of the term, that is, as if its correct filing by an individual were sufficient to bind the constitutional court to admit the complaint and thus to solve the case on its merits. This somewhat romantic notion of the constitutional complaint has certainly contributed to strengthen the idea that the constitutional jurisdiction in Germany works as a “super jurisdiction of appeals”.

The Korean Constitutional Law Association(KCLA) was founded in 1994. This article is reflecting its development over the past 30 years. In order to find the criteria for describing, I first examined the meaning of the existence of academia and scientific community. This was especially necessary in the case of the KCLA, as an academic association of the same name had already been founded in 1969 and existed for 10 years, and it was necessary to clarify the relationship between this association and KCLA founded in 1994. It pointed out that the methodology of constitutional law research was changing as the public's expectations of the 1987 constitution and its inclusiveness and universality were strengthened, as the constitution and constitutional court enriched constitutional discourse, and as the constitutional court became a decisive medium for mediating norms and reality. I also described the context of the 1987 constitution and how KCLA has embraced constitutional issues and problems through its academic conferences in the face of rapid, wide and deep social changes since the 1990s. It traces the KCLA's achievements in addressing issues of governmental form and substantive democracy in the early years of the 1987 constitution, social problems and inequality that have emerged since then, especially in the wake of the foreign exchange and fiscal crises, and issues of an aging society and a declining birthrate that have been latent for a long time but have recently emerged on the agenda of society. It summarized the challenges for constitutional law and constitutional court to incorporate social change into constitutional norms and order to maintain the continuity and vitality of the constitution. Finally, I wished for the evolution of KCLA in accordance with the criteria summarized as “the holding of the KCLA itself and its substance should not serve any political or other purpose, and in particular, the selection of topics for the conferences should be a learning process as well as a forum for academic discourse among members.

Constitutional Court Decision(MK) who is final and binding as stated in Article 24 C paragraph (1) of the 1945 Constitution of the Republic of Indonesia, and Saccording to the provisions of article 47,and explanation of article 10 paragraph (1), Law no. 24 year 2003. The final nature of this Constitutional Court decision includes binding legal force (final and binding).. It turns out, in amarConstitutional Court Decision No 57/PHP.BUP-XIX/2021 cause new legal problems or conflicts of norm because it does not yet have final and binding power in the North Halmahera election dispute, because the Constitutional Court's decision still opens the opportunity for new applications to be resubmitted in the Constitutional Court. MKNumber 14/PHP.BUP-XV/2017, and Decision Number 42/PHP.BUP-XV/2017, on amarthe decision is very clear, the decision has binding power after the decision so that the Constitutional Court can no longer re-hear the election results case after the PSU has been carried out, only the determination is carried out after the KPUD reports the PSU results.This study aims to analyze, first,Is the Constitutional Court's decision no longer final and binding in dealing with regional election disputes, especially the North Halmahera regional election dispute, second, how are the legal problems of the Constitutional Court's decision which is no longer final and binding?. This research is qualified into normative legal research, with an approach Legal approach (Statute Approach), Concept Approach and Case approach. The results of the study show, firstly, that the Constitutional Court's decision creates new legal problems in its decisions which are different from the previous decisions, Second, there is a need for Consistency of the Constitutional Court in deciding disputes that are final and binding so that it does not cause new problems in constitutional law

The 1993 Russian Constitution and 1994 Federal Constitutional Law “On the Constitutional Court of the Russian Federation” define the jurisdiction and activity of the Federal Constitutional Court of the Russian Federation. However, these pieces of legislation do not comprehensively address all the issues, and there has been some broadening of the Court's power through interpretation and the effect of some other legislation. This article examines the Court's jurisdiction and some of the issues that arise in the exercise thereof, as well as the relative role of the constitutional or charter courts of the subjects of the Federation, and the relationship between the Constitutional Court and the other courts in the Russian federal system. Issues of the methods of constitutional interpretation are addressed. The importance of the Constitutional Court as the federal agency of constitutional court supervision (review) in ensuring the effective application of the Russian Constitution is highlighted in the context of this growth of a comparatively new branch of law in the Russian legal system.

The new Constitution and the new Act are changing the status of the Hungarian Constitutional Court by developing the Hungarian constitutional tradition, creating better collaboration between the Constitutional Court and the ordinary judiciary, and establishing an effective instrument for the protection of individual human rights. But the pattern of the Parliament reacting to the rulings of the Constitutional Court with constitutional amendments reduces the competences of the Constitutional Court. It is to be hoped that this process is coming to an end, because otherwise the achievement of the “paradoxical revolution of law” is endangered.Due to the former extensive competences in terms of law review and its limited influence on ordinary jurisdiction, the status of the Constitutional Court caused problems. Because of the abstract nature of the procedures, the distance from the ordinary judiciary, and the power dilemma between the Constitutional Court and the Parliament respectively, the Government decided the main stream of its ruling up to 2012.Now there are some important changes, especially the introduction of a widespread constitutional complaint. The abolition of the actio popularis is justified. The relationships between the state organs seem to be better clarified and adjusted. The European clause of the 1949/1989 Constitution, which was largely retained in the Fundamental Law, contains a fundamental concept, which is that the European Union is founded on strong sovereign Member States. On the other hand, the Fundamental Law strengthens Hungary's ties to Europe by making these an integral part of that law. As the Constitutional Court had not yet really applied the European Clause, it now has the opportunity to put these two concepts into practice and make them mutually compatible by enforcing them at a high level.The discussions concerning the newest constitutional developments in Hungary mainly have their origin in the power struggle between the constituent majority of the Parliament and the Constitutional Court. It is not clear, however, how long this conflict will continue to be a matter falling solely within the national sovereignty of Hungary. Due to the parliamentary super-majority of the governing parties, the Constitutional Court is losing its power. Hungary is a unitary state; it is an open question whether there is any substitution needed to balance the power of the governing parties. Nevertheless, in spite of the substantial restrictions on reviewing the constitutionality of financial laws and the several amendments of the new Constitution, the Constitutional Court still plays a role in safeguarding democratic checks and balances. Indeed, it can have a positive impact on the European integration of Hungary. It has been granted new competences to guarantee constitutional unity within the Hungarian legal system and to complete the enforcement of individual rights. The Constitutional Court should make better use of its new granted competence to remedy any possible grievance entirely.

This collection contains contributions to an international conference held in Madrid in October 2010. It is based on the view that the European Union and its constitutional law cannot be isolated from its Member States and their respective constitutions, which are part of European constitutional law, and that the case law of the national courts, in particular the constitutional and supreme courts of the Member States, needs to be considered as much as the jurisprudence of the European Court of Justice. It is important to give particular attention to the relevant national constitutional courts' jurisprudence when analyzing European constitutional law. The book demonstrates the seriousness and theoretical depth of the thoughts developed by these courts to grasp the EU's construction and its relation to the Member States, the concepts of primacy of European law, sovereignty and national identity, democracy, and citizens' rights. The comparison of recent case law of the constitutional and supreme courts shows great divergences in concepts and terms, but it makes visible also an emerging dialogue among the courts.

This collection contains contributions to an international conference held in Madrid in October 2010. It is based on the view that the European Union and its constitutional law cannot be isolated from its Member States and their respective constitutions, which are part of European constitutional law, and that the case law of the national courts, in particular the constitutional and supreme courts of the Member States, needs to be considered as much as the jurisprudence of the European Court of Justice. It is important to give particular attention to the relevant national constitutional courts' jurisprudence when analyzing European constitutional law. The book demonstrates the seriousness and theoretical depth of the thoughts developed by these courts to grasp the EU's construction and its relation to the Member States, the concepts of primacy of European law, sovereignty and national identity, democracy, and citizens' rights. The comparison of recent case law of the constitutional and supreme courts shows great divergences in concepts and terms, but it makes visible also an emerging dialogue among the courts.

The article is devoted to one of the current problems of the general theory of law, constitutional law, administrative process - disputes about verification of compliance with the constitution and laws of regulatory legal acts in constitutional and administrative courts. The paper examines theoretical approaches to this problem, that exist in domestic and foreign scientific legal literature, conducts a critical analysis of the norms of the Constitution of the Republic of Kazakhstan, national legislation on constitutional, administrative and civil proceedings and the practice of its application, and also examines foreign experience of legal regulation in a comparative manner powers of bodies of constitutional and administrative justice, courts of general jurisdiction. On this basis, certain contradictions, gaps, inaccuracies and other shortcomings in the legal support for the activities of the Constitutional Court and administrative courts of Kazakhstan have been identified. Thus, the Civil Procedure Code does not define which normative legal acts can be challenged from the point of view of their legality in court. The question is also raised about the excessive powers of the President, allowing him to submit to the Constitutional Court submissions on the compliance of the Constitution not only with laws in the order of preliminary and subsequent control, but also with existing legal acts of any state bodies, which, in essence, violates the principle of separation of powers. There is an inaccuracy in the definition of the form of government in the Constitution of the Republic, which makes it possible to challenge in the Constitutional Court the constitutionality of the law amending the Constitution, establishing the immutability of the form of government. This made it possible to develop and substantiate a number of recommendations aimed at improving legislation.

The article analyzes the extent to which the Jordanian Constitutional Court supervises the constitutionality of temporary laws as issued by the executive authority. Therefore, through this study, the role of the Constitutional Court will be highlighted in supervising the constitutionality of temporary laws and clarifying constitutional developments with regard to the constitutional amendments of 2011 pertaining the establishment of a constitutional court whose mission is to monitor the constitutionality of laws and regulations in force, including temporary laws, and to highlight the amendments that occurred to the Jordanian Constitution and the Constitutional Court law for 2022. For this reason, the study adopted the analytical and descriptive approach by analyzing the texts of the Jordanian Constitution and the Constitutional Court law, and describing the position of the Jordanian constitutional legislator by listing the various rules related to the oversight of the Jordanian Constitutional Court on the constitutionality of temporary laws. The study concluded with a number of findings and recommendations. The most important of which is that the Constitutional Court's oversight of the constitutionality of temporary laws leads to the protection of the rights and freedoms of citizens, and that the Jordanian Constitution entrusted the Parliament (as a legislative authority) with setting up permanent laws submitted under draft laws from the government, as well as considering temporary and valid laws, whether by approving, amending or rejecting them.

The issue of the Constitutional Court's authority in assessing a decision related to open legal policy has become a very interesting discussion and has received a lot of attention from the public. As explained above, when rejecting a case, the Constitutional Court always argues that the case is an open legal policy, which is the authority of the DPR as the legislator. In several recent decisions, the Constitutional Court has been inconsistent in viewing and adjudicating cases that have an open legal policy nuance. One example of the court being inconsistent in the decisions it makes is regarding the election law regarding age limits, which has recently become a legal debate. The Constitutional Court as the guardian and interpreter of the constitution or “the guardian and the sole and the highest interpreter of the constitution” in several of its decisions regarding age in elections, it provides its interpretation contained in various decisions related to open legal policies made by legislators. Therefore, the formulation of the problem contained in this research is how to regulate the authority of the Constitutional Court in reviewing laws related to open legal policy and what are the legal implications of the authority of the Constitutional Court in deciding cases related to open legal policy. The research used in this writing uses normative legal research. This research uses a statutory approach, a conceptual approach. The research results show that the authority of the constitutional court in deciding open legal policy cases is contrary to the authority possessed by the constitutional court and has implications for the concept of the division of power. The Constitutional Court must have a clear legal basis in looking at cases related to open legal policy so that in the future the constitutional court will have a clear perspective. the same so that there are no more inconsistencies in the Constitutional Court's decisions regarding cases that have an open legal policy nuance. Regulations regarding open legal policy must be regulated in detail so that the norm testing process carried out has clear standards and mechanisms so as to provide legal certainty for the community

위헌법률심판에서 헌법재판소는 다투어지는 법률 내용이 헌법에 위반되는지 여부를 심사한다. 헌법재판소는 합리성 내지 비례성 심사를 통해 법률 내용의 헌법합치성을 판단한다. 위헌법률심판에서 헌법재판소는 과잉금지원칙 같은 실체적 사법심사기준을 매개로 문제되는 법률의 내용적 정당성을 판단하고 입법자가 그법률에 이르게 된 입법과정에는 별반 관심이 없다. 그럼에도 불구하고, 헌법재판 소가 실체적 심사기준을 적용하더라도 법률의 내용적 정당성을 판단하기 곤란한 경우가 있다. 다원성과 불확실성을 특징으로 하는 현대사회에서 입법자는 사회적 으로 논란 있는 사안에 대하여 가치판단을 수행하거나 예측이 쉽지 않은 장래 상황을 규율해야 하는 처지에 놓인다. 이러한 경우, 헌법재판소는 일정 정도는 입법의 내용 그 자체의 정당성이 아닌 입법과정의 합리성에 주목하지 않을 수없다. 헌법재판소는 입법과정에서 입법자가 문제되는 쟁점을 빠짐없이 고려하였 는지, 이를 공적 토론에 충분히 개방하였는지, 그리고 입법자가 신뢰할 수 있는 정보에 근거하여 결정하였는지를 고려하여 법률의 헌법합치성을 판단하게 된다. 입법에 대한 실체적 정당성 판단이 헌법재판소 결정의 대부분을 차지하고 실체적 사법심사기준의 정교화가 헌법학의 주된 관심을 끌어온 반면, 입법과정의 합리성에 대한 헌법재판소의 통제가 갖는 의미는 우리 학계에서 비중 있게 다루어 지지 않았던 쟁점이다. 이에, 본고에서는 위헌법률심판에서 입법과정의 합리성에 대한 심사의 허용가능성과 그 내용, 그리고 그것이 실체적 사법심사와 맺는 관계를 중심으로 입법과정의 합리성 심사를 검토한다. 본고는 우선 헌법재판에서 문제될 수 있는 절차적 심사의 유형을 구분하고, 이른바 입법의 내적 과정으로서 광의의 입법과정에 대한 헌법재판소의 통제를 둘러싼 정당성 논란을 고찰한 후 ( ), 입법과정심사는 무엇을 지칭하는지, 그것이 특히 활용될 수 있는 영역은 어디인지를 비교헌법적 사례를 소재로 하여 검토한다( ). 다음으로, 입법과정 심사와 실체적 내용 심사 간 관계를 고찰하고, 입법과정에 대한 심사강도 문제를 검토한다. ( ) 마지막으로, 입법과정심사의 우리 헌법실무에 대한 시사점을 언급하는 것으로 글을 마무리한다. ( )In an adjudication on constitutionality of statutes, the Constitutional Court examines whether the content of questioned law violates the Constitution. The Constitutional Court determines the constitutionality by examining reasonableness or proportionality of the law. In the adjudication on constitutionality of law, the Constitutional Court judges the legitimacy of the law through substantive judicial review standard, such as the principle of proportionality, and has little interest in the legislative process through which the legislator enacted the law. Nevertheless, even when the Constitutional Court applies substantive review criteria, it may be difficult to determine the legitimacy of the law. In modern societies characterized by pluralism and uncertainty, legislator is often forced to make value judgments on socially controversial issues or to determine future situations that are difficult to predict. In this case, the Constitutional Court focuses on not only the content of the law itself but also the rationality of legislative process. The Constitutional Court has no choice but to judge the constitutionality of the law, taking into account whether the legislator has considered all aspects at issue, whether the legislator has opened the issue to public debate, and whether the legislator enacted the law with reliable evidence. While substantive legitimacy review of the law accounts for most of the decisions of the Constitutional Court and the elaboration of substantive judicial review standards has attracted the attention of the constitutional jurisprudence, the significance of the Constitutional Court’s control over the rationality of the legislative process has not been addressed sufficiently. Therefore, this article examines the rationality of the legislative process, focusing on the justification of the legislative process review, its contents, and its relationship with the substantive judicial review. This article first identifies the types of procedural reviews that may be a problem in the constitutional adjudication and considers the controversy surrounding the constitutional court’s control of the internal process of legislation (II). The article examines what the review of legislative process refers to and in which areas it can be particularly used, using comparative constitutional precedents (III). Next, the relationship between the review of the legislative process and the review of substantive content is examined, and the intensity of review on the legislative process is examined. (IV) Finally, the article concludes with an implication of legislative process review to the practice of Constitutional Court. ( )

The Constitutional Court (MK) has important implications for the legal system in Indonesia. The Judicial Review carried out by the Constitutional Court acts as a key mechanism in maintaining the constitutionality of laws, including Government Regulations in Lieu of Laws (PERPPU) and regional regulations. The Constitutional Court has the authority to examine laws against the 1945 Constitution, functioning as a controller and balancer in the exercise of state power. In this research, data will be collected through a literature study which includes legal literature, journal articles and official documents from the Constitutional Court. This research will also involve qualitative analysis of Constitutional Court decisions related to Judicial Review, including their impact on public policy and the protection of constitutional rights. In addition, interviews with legal practitioners, academics and members of the Constitutional Court can be conducted to gain a broader perspective regarding the challenges and successes in implementing the Judicial Review authority. The analytical method used in this research is descriptive and comparative analysis. Descriptive analysis will be used to describe the Constitutional Court's authority in the context of Judicial Review, while comparative analysis will compare the practice of Judicial Review in Indonesia with other countries that have similar legal systems. Research shows that the Constitutional Court's decision, as in several decisions, has a significant impact on the investigation process and the protection of citizens' constitutional rights. The Constitutional Court's authority in resolving election disputes has also received attention, where the Constitutional Court plays a vital role in ensuring justice and transparency in the democratic process. Apart from that, the Constitutional Court is faced with challenges in exercising its authority, including conflicts with other institutions and the need to reorient the Judicial Review authority. The implications of this Judicial Review authority are very broad, including legal and governmental stability. The Constitutional Court's decision not only affects existing regulations, but can also form new legal norms that have the potential to strengthen or weaken the existing legal system. Therefore, it is important to have a deep understanding of the Constitutional Court's authority and its impact on the legal system, as well as the need to strengthen regulations that support the implementation of Judicial Review effectively and efficiently.