Constitutional Court Judges Research Articles

The Right of Legislative Initiative of the Constitutional Court of the Russian Federation (in the context of the principle of "no man is to be judge in his own case")

The article analyzes the legal construction of P. 1 Art. 104 of the RF Constitution that assigns to the Constitutional Court of the Russian Federation the right of legislative initiative on of its Jurisdiction. The paper discusses the narrow and the broad approaches to legal understanding of the term matters of jurisdiction in relation to the Constitutional Court, provides arguments to refute the reasons of the representatives of the narrow approach with regard to the violation of the principle of separation of powers in the realization of the right of legislative initiative of the Constitutional Court of the Russian Federation. The author examines the competence approach to granting the right of legislative initiative and concludes that the Constitutional Court of the Russian Federation is one of the organs of general competence, so it must possess the general (not limited) right of legislative initiative. Thus, a restrictive interpretation of the phrase matters of jurisdiction used in relation to the Constitutional Court of the Russian Federation is incorrect. The article deals with the historical aspect of putting the principle of no man can be judge in his own case into legal practice. The author contests the assertion that implementation of the right of legislative initiative would put the Constitutional Court of the Russian Federation in the position of a judge in its own case. Then the author provides the following arguments: implementation of this right does not guarantee enactment of a draft law with original textual content; a federal organ of constitutionality review in most cases examines the content of the draft law in question taking into account its law enforcement practice rather than its textual flaws; when formulating the conclusions we should rely on a presumption of good faith of judges of Constitutional Court of the Russian Federation, and not vice versa. The study concludes that the fact that the Constitutional Court of the Russian Federation very rarely realizes its subjective right of legislative initiative guaranteed by the Constitution can be explained by political considerations, as well as by the fact that the realization of this right does not amount to main functions of a federal body of constitutionality review. A widespread in the legal science opinion according to which the Constitutional Court of the Russian Federation exercising its right to legislative initiative violates the principle no man can be judge in his own case is based on an extremely broad interpretation of the legal content of the principle, such an interpretation is inconsistent with a provision of the Constitution of Russia which gives the federal organ of constitutionality review the right of legislative initiative.

La nomocracia sustrato de las corrientes judicialistas en el derecho colombiano

This think piece is based on the significant and laudable role carried out by constitutional court judges at a national level; theirs is a rational, reflective, axiological and interpretative role, which allows for the reinforcement of constitutional orders and for a better delimitation of law principles, with justice as a starting point. The foregoing theory has been called nomocracy, which aims to have a system not only governed by laws passed by legislators, but also by a mandatory basis on the Law. As a corollary, the role of the judge is no longer that of applying the law, but rather that of creating and protecting it, as well as that of guaranteeing rights.

Barak’s Purposive Interpretation in Law as a Pattern of Constitutional Interpretative Fidelity

AbstractPolitical jurisprudence points out that constitutional court judges sometimes act like political actors, and that their decisions are a function of strategic and ideological as much as legal considerations. Consequently, the proper role of the courts, notably in exercising their review of constitutionality, has been one of the most debated issues in modern political and legal theory. Part of the controversy is also how to measure the interpretative fidelity of judges to the constitutional texts, or conversely, the level of their political engagement. This paper argues for the reconsideration of Aharon Barak’sPurposive Interpretation in Lawin that light. Barak’s work was intended to provide, in the first place, judges and other lawyers with a sort of judicial philosophy – a holistic system of legal reasoning, applying both to the interpretation of will, contract, statute and constitution. Nevertheless, these conventions of legal reasoning, modified and readapted, could well be used also as heuristic tools by the academics in measuring the interpretative fidelity of judges to various sources of law. Accordingly, this paper clings closely to the presentation of Barak’s precepts for the purposive interpretation of constitutions, by focusing on the notions of subjective and objective purpose in interpreting constitutions, and how the potential conflicts between these purposes are resolved.

О формах взаимодействия между Конституционным Судом Российской Федерации и органами государственной власти Российской Федерации

This article discusses the topical problem of cooperation in the separation of powers between the Constitutional Court of the Russian Federation and the President of the Russian Federation, the Federation Council of the Russian Federation, the Government of the Russian Federation, the Supreme Court. The author suggests improving the regulation of cooperation of the Constitutional Court and the head of the state, the legislative, executive and judicial branches taking into consideration its status. On the basis of the constitutional legislation and law enforcement practice the author concludes that the leading role in cooperation of the President of the Russian Federation and the Constitutional Court of the Russian Federation belongs to the head of the state, who influences the composition of the Constitutional Court and the appointment of its heads, assignment of additional social guarantees of judicial independence, execution of rendered judgments. The Constitutional Court of the Russian Federation has an opposite influence on the activities of the President of the Russian Federation in the execution of expert advisory, constituent, statutory and regulatory functions giving expert opinions over complicated constitutional matters, certification of the act of oath of the newly elected head of the state, participation in the procedure of impeachment of the President of the Russian Federation, judgments of other categories, referring the competence of the Constitutional Court of the Russian Federation. Analyzing relations between the Constitutional Court and the Federation Council of the Russian Federation, it can be noted that it can actively assist in the elaboration of the legislative activities of the Russian parliament by means of realization of the right to legislative initiative, submission of messages and summarized judicial practice, legal background of its judgments and positions which contain suggestions and recommendations necessary for the consideration of new laws. The Federation Council can also influence the Constitutional Court of the Russian Federation in a similar way, when it takes part in the appointment and juration of judges, early termination of their powers and holding joint representative, scientific and international meetings. Considering the features of the relations of the Constitutional Court and the Government of the Russian Federation, it is necessary to note the circumstantial character of these relations. It is worked out in the participation in trials, carrying out legal monitoring and exchange of information over the status of rendered judgments of the Constitutional Court in law enforcement practice, which are legal grounds for improving the law-making of the federal executive authorities. The form of relations between the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation is described separately. It assumes making suggestions on personal staff of judges of the Constitutional Court of the Russian Federation to the President of the Russian Federation. Besides, cooperation of the Constitutional Court and the Supreme Court implies a wide participation of the Supreme Court of the Russian Federation in hearing cases during constitutional justice administration by the Constitutional Court of the Russian Federation. Other aspects of this cooperation are rendering acts on the official explanation of issues of the order of the Constitutional Court judgment execution by the Plenum of the Supreme Court of the Russian Federation, which have a decisive meaning for general jurisdiction and arbitral jurisdiction courts. A prospective direction of the cooperation of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation is the obligation to invite the Chairman of the Constitutional Court and its representatives to the sessions of the Plenum of the Supreme Court over the issues of explanation of the order of application of laws according to the legal positions of the Constitutional Court of the Russian Federation. The author supports the suggestion over the reasonability of creation of a special legal expert or a State Council of Justice as a coordinating and consulting authority from heads of superior judicial institutions to carry out a single judicial policy in the judicial system of the Russian Federation.

Stwierdzane niezgodności norm wyższego i niższego rzędu a pojęcia niezgodności norm

INCONSISTENCIES OF NORMS ASCERTAINED BY CONSTITUTIONAL COURTS, IN THE LIGHT OF THE EXISTING DOCTRINAL NOTIONS OF CONFLICT OF NORMSThe main thesis of the paper claims that judgments of constitutional courts explicitly stating a conflict between lower order norm and norm of higher order are not an instance of formal conflict of norms. The reason for this lies in the nature of constitutional norms and the norm being subject of inquiry. Constitutional norms are mostly norms granting competence, while norms being subject of inquiry are rules of conduct. Therefore, reasoning of constitutional court includes evaluation of an act of legislator, rather than evaluation of an established norm. For instance, if there is a statute enacted stating a rule that vacation legis will consist of seven days and constitutional court, as a consequence of a principle of proper legislation, will state what such seven day rule is in conflict with that constitutional principle, then there is no formal conflict of those norms. It is an act of stating such a rule by the lawmaker that is a subject of inquiry. Unconstitutionality lies in b r e a c h i n g a constitutional norm by the lawmaker act, not in the formal conflict of two norms. In this sense constitutional court is not that far away from what common courts do. This observation helps to provide additional account for potential controversy of constitutional courts judgments.

Autonomy, Fairness, Pragmatism, and False Electoral Speech: A Case Comment on Democratic Alliance vs African National Congress, [2015] ZACC 1

Democratic Alliance vs African National Congress was a landmark 2015 judgment of the South African Constitutional Court, which raised a host of novel and interesting issues. In particular, the Court had to address the scope and limits of electioneering speech (by interpreting the prohibition on “false information” contained in Section 89(2)(c) of the South African Electoral Act), the extent and manner in which principles from one area of free speech jurisprudence (defamation) could be imported into another, and how to interpret words and phrases that were (perhaps deliberately) left ambiguous – all in the backdrop of the constitutional principles of freedom of expression and fair elections. In my essay, I will make two broad arguments. I will support the Majority Opinion’s finding that in order to qualify as a “comment” for the purposes of election speech, a statement need only reference facts that are in the public domain, so that the audience can make up their own minds about the validity of the statement (if they so desire). This, I will argue, is a plausible reading of the fact/comment distinction in defamation law, and is even more strongly applicable in the context of elections, because of the heightened importance of “listener autonomy”, a concept well-known to South African free speech jurisprudence. Moving to the construction of the Democratic Alliance’s “SMS”, which was at the heart of this case, I will argue that the Dissenting Opinion’s interpretation of the SMS from the point of view of the “ordinary, reasonable reader”, and the precedent that it relied upon, incorrectly privileged a semantic reading over a pragmatic one. By contrast, Van der Westhuizen J.’s concurring opinion, which acknowledged that the word “stole” could carry multiple meanings, and his argument that the choice of meaning should depend upon the complete context in which the statement was made, was the correct approach to take, an approach that could have been further strengthened by a fuller exposition of the distinction between semantic and pragmatic meanings. I will conclude by highlighting the consequences that this approach might have for South African free speech jurisprudence, going forward.

La ponderación como método para resolver conflictos de principios y derechos laborales y de seguridad social. El caso colombiano

The paper begins with a brief conceptual description of the weighting, its genealogy and axiological and argumentative limits inherent to this metohodology of conflict resolution of fundamental rights. It continues with the recognition that the weighting has in the legal orders and the jurisprudence in the Latin American context, with special emphasis on the Colombian Constitutional Court's judgments and criticisms that have been leveled at this legal tool. It ends indicating how the method of weighting has been applied in the Labor and social security in Colombia

And Indeed It Was a (Failed) Nullification Crisis: The OMT Judgment of the German Federal Constitutional Court and the Winners and Losers of the Final Showdown in the OMT Case

The aim of the present article is twofold. Firstly, to put the German Federal Constitutional Court (i.e., the BverfG) judgment into the context of a drawn-out conflict between the German Republic and the European Union regarding the setting up of a crisis management tool in the area of monetary policy (the SMP program in 2010 and the OMT program in 2012); secondly, to contest what the BVerfG claims in its judgment, namely that the European Court of Justice's judgment accepted the “requests” of the German Court issued in its preliminary reference. The opposite is true: the BVerfG had to bring its judgment into line with the Gauweiler judgment.

The Italian Constitutional Court Judgment No. 238 and the Myth of the ‘Constitutionalization’ of International Law

The Italian Constitutional Court Judgment No. 238 and the Myth of the ‘Constitutionalization’ of International Law

Hak Kemerdekaan Menulis Buku dan Pencerahan Edukasi Masyarakat

The verdict of the judge of the Constitutional Court is a kind of special verdict. One of the verdicts pronounced by the constitutional court judge is to approve petition. In the case of petitioner’s clain through laws number 4/PNPS/1963, the constitutional court approves the petitioner’s petition. By the constitutional court judges, this juridical product is assessed against the constitution. This verdict can be categorized into an encouragement or support educatively, which must be welcome positively by the country pillars. Subjects being motivated to be mujtahid as a constitutional court judge are educational communities such as teachers, college students, lecturers, researchers, humanists, and knowledge admirers to become the creators in the aspect of book. In this kind of condition, it is expected that education enlightenment can be gained through the society.

Independensi Mahkamah Konstitusi dalam Proses Pemakzulan Presiden dan/atau Wakil Presiden

It has been highlighted in the constitution that the Constitutional Court has one obligation to give verdict on the House of Representatives’ (DPR) opinion regarding the impeachment of the president and/or the vice president. Obligation given by this constitution is about to prove that Indonesia is a law state. Even though the Constitutional Court has become part of the dismissal process of president and vice president, the independence of its obligation is doubted by public because of the recruitment factors of the Constitutional Court judges. Even though these judges successfully give verdict because the president or the vice president is proven to break the law, it does not mean that its verdict absolutey ties the authority of the House of Assembly (MPR).

Konstitusionalitas dan Legalitas Norma dalam Pengujian Undang-Undang Terhadap Undang-Undang Dasar 1945

The Constitutionality of norms are inseparable with the model of judicial review of laws against the 1945 Constitution of the Republic of Indonesia. It can be see from the reviews of abstract and concrete norms by the Constitutional Court of the Republic of Indonesia. The review of conrete norms in the decision of judicial review basically does not constitute authority of the Constitutional Court. Theoretically, norms review should be starting from abstract norms as the implications of the Constitutional Court authority. In order to review the constitutionality of laws, norms and abstract norms should be interpreted by the Constitutional Court. While concrete norms focuse more on the implementation or application of the norm itself. The application of norms cannot be separated from the legality of the norms, while constitutionality of norms is related to its coherence with with the Constitution. If the basis of norms review is the 1945 Constitution of the Republic of Indonesia then abstract norms should be the main subject matter to be reviewed. Otherwise, when concrete norms are the subject matters to be reviewed, then the implementation of the norms that have been applied in concrete cases. This research is using normative juridical method with case approach in which 15 (fifteen) verdicts of the Constitutional Court of Republic of Indonesia over the period of 2003-2013 in judicial review of laws against the 1945 Constitution are analyzed. The focus is on the ratio decidendi of the Constitutional Court judges in determining the constitutionality of norms. The result of this research shows that, the Constitutional Court, in the judicial review of laws against the 1945 Constitution of the Republic of Indonesia does not separate abstract norms and concrete norms dichotomously. In an attempt to protect the constitutional rights of citizens, the absence of legal remedies that can be further pursued by the applicant, as well as to provide legal certainty, the Constitutional Court, granted, in its decision, the review of concrete norms. Even though the Constitutional Court remains firm in satting that it is a concrete norms, the applicant’s petition is granted in part which is concerning the review the abstract norms only. Whereas, with respect to the verdict of the constitutional court that rejected the review of concrete norms, it is because the review is not on the constitutionality of norms but the application of the norms and also concerns a petition for an interlocutory decision which is irrelevant to the subject matter of the case. The review of concrete norms in a rejecting ruling is a form of prudence by the Constitutional Court in order not to prosecute the matters which constitute the authority the other judicial bodies, namely the Supreme Court and the lower courts. As for the ruling which declared a petition inadmissible, the Constitutional Court stated that the applicant has no legal standing and the Constitutional Court does not have the authority to test these norms. In the future the Constitutional Court needs to affirm the status of norms before further examining in depth the petition filed. In addition, the Constitutional Court should be conferred with the authority to hear constitutional complaint and constitutional question in order to create the harmonization of interpretation based on the Constitution.

Perkembangan Pengujian Perundang- Undangan di Mahkamah Konstitusi

The judiciary is a tools to find justice. The Constitutional Court of Republic of Indonesia (MKRI) who attended after the 1945 amendment also established to fulfill the desires of the justice seeker. The Efforts to comply the sense of justice depends on how the constitutional court judges deciding cases. If the judge of the constitutional court failed to parse the meaning of substantive justice, it found the unfair justice. It’s fair according to the judge verdict, but it was unable to fulfill the desires of the justice seeker. The step of judges to find the justice known as the concept of judicial activism. And its consisting in constitutional court authority namely as judicial review. Within seven years since the MKRI have been formed, the court has become an institution recognized by the justice seeker through the decisions. In fact, the court not only courageous in deciding the facts of the existing law, but further than that, the court also made a bold reform in its verdict forms.

FREEING THE HAWKS: Why an anti-corruption agency should not be in the SAPS

The Directorate for Priority Crime Investigation (DPCI), commonly known as the ‘Hawks’, is currently at a crossroads. The Constitutional Court judgment in Glenister vs the President of South Africa and Others has called into question the Directorate’s continued existence in its current form. One of the most important questions raised by the Constitutional Court judgment is whether the DPCI can be sufficiently independent while located within the SAPS. This article presents arguments in support of the view that separating the unit from the SAPS is essential to build public confidence in the unit and to meet the requirements of the judgment.

F v MINISTER OF SAFETY AND SECURITY: Vicarious liability and state accountability for the criminal acts of police officers

The Constitutional Court judgement in F v Minister of Safety and Securityis a ground-breaking judgement in two important respects: firstly, it finally does away with the fiction that an employee acts within the course and scope of her employment in the so-called deviation cases in the law of vicarious liability, and secondly it clarifies the normative basis for holding the state vicariously liable for the criminal acts of police officers. In this latter respect it significantly promotes state accountability for the criminal acts of police officers.

Are Judges Political Animals after All? Quasi-Experimental Evidence from the German Federal Constitutional Court

Constitutional court judges maintain to be independent, apolitical actors, even though they get nominated by political elites. So far, much of the research has focused on the legal output of courts in order to show that judges are political animals. Studying outcomes often plagued by endogeneity issues (e.g., when using votes to predict votes), or is simply not possible in some contexts due to non-disclosure of individual voting records. Alternatively scholars employ a party-label heuristic and infer from the ideological position of the nominating party to the ideological position of the judge. But do those ideological differences between judges become behaviorally relevant? In this paper, we show that two pieces of evidence that judges nominated by different parties seem to behave differently. First, we study at the composition of three-judge panels (chambers) of the German Federal Constitutional Court using Chamber decisions from 1998-2011 and show that homogenous panels have been actively avoided. Second, we analyze the court’s replacement rules for absentee judges for the composition of chambers. We show that in situations where mechanically following the rules of procedure to replace absentee judges would lead to homogenous panels, the likelihood to deviate from those rules are systematically higher. Thus, the court actively seek to avoid such homogenous chambers and are more likely to deviate from the rules of procedure in such cases in order to appear politically unbiased.

Editorial

This edition of PER consists of eight contributions; six articles and two notes. In the first article, Angelo Dubeanalyses the interaction amongst African States that eventually led to the development of universal jurisdiction regulations within their individual legal systems to determine if one can say that there is indeed an African signature in those legal rules. Anél Ferreira-Snyman deals with the rapid development of space technology and space flight which has rendered article IV of the Outer Space Treaty dealing with the military use of outer space outdated and in dire need of change. Moses Phooko's article investigates whether the Southern African Development Community (SADC) Tribunal has jurisdiction to deal with cases involving allegations of human rights violations. Analogous to the situation of Chinese people in South Africa who chose to be defined as "Black People" in terms of the Employment Equity Act 55 of 1998 as well as the Broad Based Economic Empowerment Act 53 of 2003, Enyinna Nwauche examines the possibility that people living under a system of customary law may change their legal system by choosing another one. The last two articles, written in two parts by Andre Louw, deals with theEmployment Equity Act 55 of 1998. In the first part, he critically examines the organising principle of the affirmative provisions of this Act and assesses if it is in line with the constitutional requirements for a legitimate affirmative action programme or measure. In the second part, he critically evaluates the Constitutional Court judgment inSouth African Police Service v Solidarity obo Barnard 2014 6 SA 123 (CC), and highlights what he thinks the biggest areas of disappointment of this judgment are within the context of South Africa’s equality jurisprudence.In the first of two notes, Zsa-Zsa Boggenpoel analyses the Constitutional Court's use of the common law remedy ofmandament van spolie in Ngqukumba v Minister of Safety and Security 2014 5 SA 112 (CC). In the second note and last contribution of this edition, Petronell Kruger discusses the case of Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa 2011 5 SA 87 (WCC), which dealt with the challenges faced by persons with disabilities relating to access to education in South Africa.

RECONSTRUCTION THE AUTHORITY OF CONSTITUTIONAL COURT ON IMPEACHMENT PROCESS OF PRESIDENT AND/OR VICE PRESIDENT IN INDONESIAN CONSTITUTIONAL SYSTEM

In the process of impeachment, Constitutional Court has the obligation to give its judgement to House of Representatives’s opinion regarding allegation of violation by the President and/or Vice President. Constitutional Court checks and judges House of Representatives’s opinion on whether or not the President and/or Vice President works fulfill Article 7A of Constitution of Republic Indonesia 1945 (UUD NRI 1945). The inspection done by Constitutional Court is the judicial process whose decision is in the form of justisil. The result of this impeachment process heavily depends on the judgement of People's Consultative Assembly in its plenary meeting which is also a politics forum, where President and/or Vice President could be dismissed or not. Constitutional Court’s judgement does not apply to People's Consultative Assembly, hence, the difference of Constitutional Court and People's Consultative Assembly’s judgement in plenary meeting that is very political by its nature is very likely to happen. Involvement of Constitutional Court in the procss of impeachment is, of course, different in each country. It depends on governance system in that particular country, it also relies on how much authority that is given by Constitution to Constitutional Court in the process of impeachment itself.Keyword: Authority, Constitutional Court, Impeachment.

Pathways to Karlsruhe: A Sequence Analysis of the Careers of German Federal Constitutional Court Judges

Judges of the German Federal Constitutional Court can be seen as both judicial and political elites. Yet up to now there is no systematic work on the Court's' judges and especially their careers prior to their appointments. Using sequence analysis, this article identifies four relatively distinct clusters of career characteristics: academia, administration (and administrative courts), ordinary jurisdiction and politics. Judges whose career background is limited to the judicial sphere mostly advance from a level below the Länder to the Länder and then on to the federal level, while those with a background in politics or administration switch less often among them. Furthermore, little evidence was found to suggest that differences in the judges' career paths can be explained by reference to the body that elected them (Bundestag or Bundesrat) or the party that nominated them (CDU/CSU or SPD). The article also illustrates the possibilities of sequence analysis for elite studies.

"I am not a number! I am a free man!" The Employment Equity Act, 1998 (and other myths about the pursuit of "equality", "equity" and "dignity" in post-apartheid South Africa) Part 2

The author critically examines the organising principle of the affirmative action provisions of the Employment Equity Act (or EEA), as well as the implications of the recent judgment by the Constitutional Court in its first case involving the application of affirmative action in the employment context (and in terms of the EEA) – SAPS v Solidarity obo Barnard . While reiterating the need for restitutionary measures such as affirmative action in South Africa, the author concludes – probably quite controversially - that the EEA's treatment of affirmative action has nothing to do with the equality right in the Bill of Rights, and that the Act pursues a different (and omnipresent) social engineering agenda by the state. The author calls for this realisation to prompt future affirmative action cases arising from the application of this Act to be removed from the scheme of (and potential defences available under) the equality jurisprudence, and for the courts to critically interrogate the constitutionality of the EEA's affirmative action scheme within its own context. The author believes that Chapter III of the Act is unconstitutional in this sense, and he calls for the scrapping of its provisions. He also calls for a (more) constitutionally-compliant exposition from the Constitutional Court of the parameters of legitimate affirmative action under the Bill of Rights, and adds his voice to the numerous calls for reconsideration of the rationality test expounded in Minister of Finance v van Heerden . More generally, the author considers the apparently all-pervasive application of the government ideology of the pursuit of demographic representivity in transformation of employment and other contexts (expressing grave doubts about its constitutionality along the way). In Part 1 of this piece (which precedes this article in this edition), the author considers the constitutional requirements for a legitimate affirmative action programme or measure. He then examines the affirmative action scheme of the Employment Equity Act , and explains his views on why such scheme is, in fact, unconstitutional. This article forms Part 2 of this piece and the author continues to critically evaluate the Constitutional Court judgment in the Barnard case, and he highlights the biggest areas of disappointment of this judgment within the context of South Africa's equality jurisprudence. After a very brief consideration of the recent amendments to the E mployment Equity Act , the author concludes by providing reasons why the Act's approach to affirmative action needs to be rejected, and soon. Keywords : affirmative action; (substantive) equality; (demographic) representivity; Employment Equity Act , 1998; section 9 Bill of Rights; unfair discrimination; quotas; numerical targets; SAPS v Solidarity obo Barnard ; Minister of Finance v van Heerden ; rationality test