Constitutional Court Judges Research Articles

Hukuman Mati dalam Tindak Pidana Narkotika Ditinjau dari Perspektif Hak Asasi Manusia (Studi Putusan Mahkamah Konstitusi Nomor 2-3/Puu-V/2007

The capital punishment is regulated in several laws and regulations in Indonesia, in particular for narcotics crimes that are submitted for judicial review against the Constitution. The type of research used is the type of normative. The sources of the data used in this research are primary, which are taken from the original source of the law and secondary materials are materials derived from books, journals and scientific works and tertiary legal materials. The technique of collecting data in this research is carried out by collecting existing materials or studying documents from existing laws and regulations as well as the decisions of the constitutional court judges and explaining the sentence by using the legal material processing method systematically. The purpose of this research was to determine the capital punishment for narcotics crime in terms of human rights and to find out the judges considerations on the capital punishment for narcotics crime in Indonesia based on the decision of the constitutional court number 2-3/PUU-V/2007. The results of the research revealed that the capital punishment for narcotics crime has been stated in articles and laws, but on the other hand there is a consideration of the panel of judges regarding the capital punishment case for narcotics crime that the capital punishment in the Narcotics Law does not contradict human rights and human rights as in the 1945 Constitution of the Republic of Indonesia because the guarantee of human rights and the right to life in the 1945 Constitution of the Republic of Indonesia does not adhere to absolute principles.

Dos pronunciamientos judiciales relacionados y decisivos para el avance del reconocimiento mutuo del Reglamento 805/2004: La sentencia del TC 26/2020, de 24 de febrero y el auto de la AP de Girona 243/2020, de 10 de junio

En este trabajo se analizan dos pronunciamientos judiciales, la STC 26/2020, de 24 de febrero y el Auto de la AP Girona 243/2020, de 10 de junio, que vienen a confirmar que solo puede certificarse como Título ejecutivo europeo una resolución dictada en rebeldía si, en el proceso de origen, se han cumplido las normas mínimas establecidas en el capítulo III del Reglamento 805/2004. La supresión de los controles de la resolución en el Estado miembro de ejecución debe estar inseparablemente vinculada a la existencia de una garantía suficiente de que se observen los derechos de la defensa. El órgano de la ejecución solo puede suspender la ejecución mientras se resuelve la impugnación en origen, como sucede en las resoluciones comentadas.

Kelsen versus Schmitt and the Role of the Sub-National Entities and Minorities in the Appointment of Constitutional Judges in Continental Systems

Abstract In composed and decentralised states, sub-national entities and (ethnic, linguistic, racial) minorities ought to play a determinant role in the process of appointment of constitutional courts justices to obtain a balanced representation in the guardian of the constitution. The necessary appearance of constitutional justice independence can be at stake without a proportionated participation of minorities and sub-national entities in the court. It is not enough to introduce a symbolic presence. The first section of this essay analyses the transcendence and political-legal significance that the system of appointment of constitutional court judges has and its relation to the separation of powers (horizontal and vertical). The second section is a return to the roots, ie the system of appointment the Austrian Constitution of 1920, even that first constitutional court was created in 1919, and Kelsen’s theory on federalism. The third section carries out an analysis from a comparative constitutional law perspective by using as an analytical basis the reports on the composition of the Constitutional Courts of the European Commission for Democracy through Law. The paper ends with a reflection on Schmitt considerations on the Guardians of Constitutions.

On the record - Interview with Shaun Shelly, Researcher at the University of Pretoria and the Policy, Advocacy and Human Rights lead at TB HIV Care, South Africa

In November 2020 Anine Kriegler interviewed Shaun Shelly about recent developments in South African Drug Policy in the wake of the 2018 Constitutional Court judgment decriminalising personal possession of cannabis, and the subsequent Cannabis for Private Purposes Bill. Shaun is a researcher at the University of Pretoria Department of Family Medicine where he is part of the team implementing a community oriented primary care approach to address drug use in the City of Tshwane. He is the founder of the South African Drug Policy Week and is the drug policy lead at TB HIV Care, a non-profit organisation that works to prevent, find, and treat TB, HIV, and other major diseases by targeting interventions to address the needs of populations at risk, such as inmates, sex workers, and people who inject drugs. Shaun is a founding member and chair of the South African Network of People Who Use Drugs and the former Deputy Secretary of the United Nations Vienna NGO Committee on Narcotic Drugs. He sits on various other national and international task teams and advisory boards on drugs.
 Anine is a board member of the South African Drug Policy Initiative, a voluntary association that aims to reform South African drug laws, and which submitted an objection to the Bill.

On the record - Interview with Shaun Shelly, Researcher at the University of Pretoria and the Policy, Advocacy and Human Rights lead at TB HIV Care, South Africa

In November 2020 Anine Kriegler interviewed Shaun Shelly about recent developments in South African Drug Policy in the wake of the 2018 Constitutional Court judgment decriminalising personal possession of cannabis, and the subsequent Cannabis for Private Purposes Bill. Shaun is a researcher at the University of Pretoria Department of Family Medicine where he is part of the team implementing a community oriented primary care approach to address drug use in the City of Tshwane. He is the founder of the South African Drug Policy Week and is the drug policy lead at TB HIV Care, a non-profit organisation that works to prevent, find, and treat TB, HIV, and other major diseases by targeting interventions to address the needs of populations at risk, such as inmates, sex workers, and people who inject drugs. Shaun is a founding member and chair of the South African Network of People Who Use Drugs and the former Deputy Secretary of the United Nations Vienna NGO Committee on Narcotic Drugs. He sits on various other national and international task teams and advisory boards on drugs.
 Anine is a board member of the South African Drug Policy Initiative, a voluntary association that aims to reform South African drug laws, and which submitted an objection to the Bill.

The effectiveness of a law suspended for the first time, after almost eighteen years since the introduction of precautionary power in the judgments of Constitutional Court in principal way

The effectiveness of a law suspended for the first time, after almost eighteen years since the introduction of precautionary power in the judgments of Constitutional Court in principal way

Dissenting opinions on the freedom of peaceful assembly

The main purpose of the article is to analyze the content of dissenting opinions of the judges of the Constitutional Court of Russia regarding the implementation of freedom of peaceful assembly. The author concluded that in 2009–2020, there were three judgements (postanovlenie) and one decision (opredelenie) by the Constitutional Court of Russia (hereinafter also referred to as the CCR) that were accompanied by dissenting opinions of CCR judges. In 2013, one single judgment of the CCR was accompanied by three dissenting opinions. This research analyzes the six dissenting opinions of the judges of the Russian Constitutional Court, which considered various problematic issues regarding the implementation of freedom of peaceful assembly in the contemporary Russian Federation. The author also analyzes the role and significance of the dissenting opinions in the context of amendments to the Russian Constitution in 2020, and changes in legislation that significantly limited the publicity of dissenting opinions of CCR judges. This article shows the role of dissenting opinions as: a means to raising the level of legal consciousness in society, a guarantee of a fair and open trial, a guarantee of the independence of judiciary and judicial democracy, and a means of improving legislation and law enforcement practice. The author concludes that the CCR judges’ dissenting opinions could in some cases be regarded as “sleeping law”, because the European Court of Human Rights later confirmed the judges’ minority report in findings. The article uses traditional research methods such as analysis, synthesis, induction, deduction, logical method, and comparative legal methods. The author expresses that it is necessary to keep the democratic tradition of constitutional justice, which allowed the publicity of dissenting opinions of CCR judges during 1991–2020. It is also concluded that the dissenting opinions of the Constitutional Court judges enable a deeper understanding of the political and legal nature, features, and main stages of the development of Russian public assembly law, one of direct democracy’s most important institutions alongside elections and referendums. The author argues that dissenting opinions of the judges of the Constitutional Court of Russia make it possible to identify gaps and defects in the legal regulation of public events in Russia. The study was funded by the Russian Foundation for Basic Research (RFBR) and the Expert Institute for Social Research (EISR) in the framework of the research project no.20-011-31740.

Review of legal reasoning in the Russian Constitutional Court judgments: Nos.20-P– 29-P (2021)

Review of legal reasoning in the Russian Constitutional Court judgments: Nos.20-P– 29-P (2021)

Review of legal reasoning in the Russian Constitutional Court judgments: Nos. 49‑P – 50‑P (2020), Nos. 1-P – 3-P (2021)

Review of legal reasoning in the Russian Constitutional Court judgments: Nos. 49‑P – 50‑P (2020), Nos. 1-P – 3-P (2021)

Notes: The unlamented demise of the common-law derivative action: A note remembering Michael Larkin

This contribution presents an exposition of how the common-law rules relevant to the common-law derivative action would have clashed with the current statutory derivative action remedy had the common law not been repealed by s 165(1) of the Companies Act 71 of 2008. The analysis of the possible impact of the common law is a relevant and timely one — irrespective of the fact that a statutory derivative action and remedy has been introduced in s 165(2) of the Companies Act — as it provides lessons to policy-makers on how to deal effectively with common-law rules whose time has passed and must be eradicated, particularly in corporate law. This is so since the Supreme Court of Appeal judgment in Hlumisa Investment Holdings (RF) Ltd & another v Kirkinis & others 2020 (5) SA 419 (SCA) has recently endorsed previous Constitutional Court judgments which confirmed the continued validity of the common-law principle of statutory interpretation that a statute should not be taken to alter the common law unless it is clear that that is what was intended. The contribution arrives at the conclusion that the limiting effect of English judgments, particularly Edwards v Halliwell [1950] 2 All ER 1064 and Prudential Assurance v Newman Industries (CA) [1982] Ch D 204 would have still been applicable in South Africa, even though they allow for a conservative exception to the rule in Foss v Harbottle in providing for derivative action claims at common law.

Aantekeninge: Overview of constitutional court judgments on the bill of rights – 2020

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On equating ‘mays’ with ‘musts’: When can a discretionary power be interpreted as a mandatory one?

In this article I investigate when the otherwise permissive term ‘may’ in an empowering provision can be interpreted as imposing a duty on the recipient of that power to act. In the first part, I examine our courts’ pre-democratic approach to answering this question through an analysis of pre-democratic judgments. In particular, I scrutinise certain factors that the courts have traditionally relied on in this regard. Thereafter, I consider the present-day rules of statutory interpretation and its application to the may/must question. Next, I analyse the Constitutional Court’s approach to determining when the use of ‘may’ to confer a power through statute can be interpreted as requiring the power be exercised. I undertake an analysis of a dissection of relevant Constitutional Court judgments. These judgments are dissected for purposes of illustrating the continued relevance of the traditional factors that were employed before democracy. Finally, I focus on the may/must question in the typical public-law context of this interpretative exercise. I examine potential grounds of review where the holder of the power has failed or refused to execute a duty attached to permissive language. I also consider separation-of-powers concerns that may likely arise.

Review of legal reasoning in the Russian Constitutional Court judgments: Nos. 10-P – 19-P (2021)

Review of legal reasoning in the Russian Constitutional Court judgments: Nos. 10-P – 19-P (2021)

Review of legal reasoning in the Russian Constitutional Court judgments: Nos.4-P – 9-P (2021)

Review of legal reasoning in the Russian Constitutional Court judgments: Nos.4-P – 9-P (2021)

El estado de la cuestión sobre el carácter vinculante del precedente judicial en Colombia

El presente documento describe el desarrollo del carácter vinculante del precedente judicial en Colombia. Acude a normas, sentencias del Tribunal Constitucional, documentos académicos y proyectos de reforma constitucional que abordan la temática luego de la entrada en vigor de la Constitución Política de 1991. Esta última será determinante para la investigación ya que establece las fuentes de Derecho que orientan la labor de los jueces y los fundamentos del sistema jurídico en Colombia. Al final se presentan algunas consideraciones sobre la descripción realizada que podrían facilitar el estudio de nuevas líneas de investigación y, con ello, el avance de la temática. Una conclusión refiere a la necesidad de implementar un sistema a cargo del Estado que le permita a la comunidad jurídica acceder a todos los fallos de los jueces en aras de consolidar la igualdad, con una mayor coherencia entre el sistema y la seguridad jurídicos.

Constitutional Complaint Sebagai Penambah Kewenangan Baru Dalam Undang-Undang Mahkamah Konstitusi Republik Indonesia

Guarantee the rights of every citizen for violations of constitutional rights by seeking to increase the authority of the Judicial Review Request by every justice seeker for violations of constitutional rights, but not at least the petition was granted. The Mahkarnah of the Constitution, which checks what the petition is made of, often considers that what the Judicial Review proposes is not the subject of acknowledgment. Constitutional Court Judges considered it to be a Constitutional complaint in which this constitutional complaint was not part of the Court's authority in accordance with the Constitution of the Republic of Indonesia and the applicable Law on the Understanding of the Constitution. As a legislative body, the DPR is the one who has the right to change the Constitutional Court Law by including the authority of Constitutional complaint to the Constitutional Court. In this paper the author uses a research method in the form of quality data analysis with secondary sources of literature and deductive logic analysis. Consitional Complaint to the Constitutional Court.

Constitutional matters and arguable points of law: Reflections on the General Council of the Bar, Jiba and Mrwebi jurisprudence

Over the past few years, the series of cases implicating Advocates Jiba and Mrwebi, two erstwhile senior members of the office of the National Director of Public Prosecutions (NDPP), have received extensive media coverage. The advocates are alleged to have been politically influenced in the exercise of their public power. In mid-2019, the Constitutional Court’s ruling in General Council of the Bar of South Africa v Jiba and others 2019 8 BCLR 919 (CC), namely that the General Council of the Bar (GCB) had failed to show why the matter fell within the jurisdiction of the Constitutional Court for its consideration, disappointed many. This meant that the Supreme Court of Appeal’s (SCA) majority judgment – which had overturned the Gauteng High Court’s decision that Jiba and Mrwebi were to be removed from the roll of advocates – stood, pending a parliamentary process following upon the findings of the Mogoro Commission of Inquiry into their fitness as advocates. Reflecting on the jurisprudence involving the GCB, Jiba and Mrwebi, this contribution first explores the manner in which the ConstitutionalCourt inquired into whether a constitutional issue, or, more specifically, “an arguable point of law of general public importance” that triggers the jurisdiction of the Constitutional Court, was raised. Secondly, it examines the circumstances in which a court of appeal may interfere with the exercise of a discretion by a court a quo. Finally, with reference to certain dicta in the Constitutional Court judgment, the contribution also reflects on how the applicant’s case could have been formulated differently, in order to have persuaded the Constitutional Court to grant the application for leave to appeal to it as sought by the GCB. Examining the details of the various judgments, the article concludes that the injudicious manner in which the majority judgment in the Supreme Court of Appeal interfered with the High Court’s exercise of a discretion could, in fact, have been considered to have raised “an arguable point of law” that triggered the Constitutional Court’s jurisdiction, thus permitting the matter to be adjudicated and finally disposed of by our highest court. Moreover, the author argues that the inherent controversy of the matter, involving the erosion of the South African administration of justice and rule of law, was of sufficient public interest for the South African apex court to indeed consider it, because it offered the Constitutional Court the opportunity to develop the common-law “fit-and-proper standard” for legal practitioners, particularly those in high-ranking public judicial office. Unfortunately, this is now an opportunity missed.

Gerhard Leibholz, Costantino Mortati and the ideological roots of postwar party democracy in Germany and Italy

ABSTRACT This article studies the ideological roots of the particular form of party democracy that was established in Germany and Italy after 1945. Given the deeply rooted tradition of anti-party politics and the previous failure to construct stable party democracies, it is remarkable that political parties evolved into the central actors of post-1945 democratic regimes in Germany and Italy. This article investigates how postwar reforms in this regard build on ideological assumptions put forward in the Interwar era. It centres on two thinkers who not only epitomized the historical continuity before and after the War, but also made a major impact on the reform of political institutions after 1945. Costantino Mortati and Gerhard Leibholz not only inspired political reformers with their writings, but also fostered party–state democracy during their tenures as constitutional court judges. As such, their views on political parties are of crucial importance in understanding why the postwar regimes took the shape of a ‘party–state democracy’.

Los diputados no adscritos en el laberinto: comentario a la S.T.C. 159/2019, de 12 de diciembre

El presente artículo glosa la primera sentencia del Tribunal Constitucional español que resuelve un recurso de amparo de un Diputado no adscrito por los derechos y facultades que se le habían atribuido, en cuanto tal, en un Parlamento autonómico, y pone en relación su situación jurídica con las soluciones que los Reglamentos de las Cámaras y la legislación tratan de dar a la desafección ideológica y al fenómeno del transfuguismo, como anomalía de la relación de representación política.

Designing remedies for a recalcitrant administration

This article concerns remedial design by courts in cases where constitutional rights are jeopardised by a recalcitrant administration. We focus on the recent judgment of the South African Constitutional Court in Bhekindlela Mwelase v Director-General for the Department of Rural Development and Land Reform – in particular its doctrinal innovation in appointing a Special Master to oversee the processing of labour tenant claims by the Department of Rural Affairs and Land Reform. We argue that the case raises both conceptual and practical questions about the relationship between rights and remedies, substantive law, and the separation of powers. We approach these questions after considering the judgment in its socio-political context through a consideration of the factors underlying the granting of the remedy, from both a theoretical and comparative perspective. The paper identifies a set factors that underpinned the Court’s decision that will be likely to influence the granting of invasive remedies in future cases. We then apply these factors to the judgment of the Supreme Court of India in the Right to Food Case to better understand the ways they play out in a different jurisdictional context. These factors can provide doctrinal and normative guidance for courts – especially in the so-called Global South – that often operate under conditions of chronic recalcitrance, inattentiveness, inaction, or incompetence of the coordinate branches of government.