Constitutional Disputes Research Articles

THE LEGALITY OF ISSUING A STATE ORDER IN THE DECISIONS OF THE FEDERAL SUPREME COURT IN IRAQ

In this legal study, we discussed the nature of the state order in terms of its legal definition, as the state order is a temporary administrative procedure issued by the competent judge in some instances according to the law on the petition submitted by one of the parties to the case, including facts and evidence and supported by documents in an urgent matter. Likewise, the state order does not enjoy the authority of the ruling order. Still, it enjoys the power of urgent legal enforcement. It suspends the implementation of all urgent procedures and decisions resulting from the issue issued against the state order until the issue of the case is resolved. And that the Federal Supreme Court, as far as the matter relates to the constitutional dispute, has taken the issue of issuing the state order regarding these disputes, even though its law and internal system are devoid of a text on it, basing it on Civil Procedure Law No. 83 of 1969 as amended in force, and as far as the matter relates to the nature of the constitutional dispute. It also fortified the state decision issued by it from appeal, although the Iraqi Civil Proceedings Law permitted appeal against this decision by way of grievance. Therefore, we will discuss this issue from both legal and practical perspectives, as well as the role of the Federal Supreme Court in resolving constitutional disputes and issuing such decisions when considering constitutional disputes.

May States Curb Freedom of Religion, Speech, and The Press? A Constitutional Analysis

This is an analysis about whether individual states are prohibited from establishing official religions within their jurisdiction, as the Supreme Court has long held. Specifically, it considers whether the Supreme Court is correct in applying the 14th Amendment to extend the First Amendment's religion establishment limitation of Congress to state governments. Finally, it examines the notion of "judicial supremacy" - that the Supreme Court is to be the universally recognized authority in resolving constitutional disputes - because that is a distinction the Supreme Court granted onto itself; the Constitution does not say so.

CONSTITUTIONAL IDENTITY AND WHERE TO FIND IT

The category of constitutional identity is now con dently used in the science of constitutional law and in resolving some disputes, but it remains not completely clear. The article is aimed at identifying the content of this category and the possibility of its application in practice. The article presents the meanings of the term “identity” and checks whether this term can be used in constitutional law, and if so, in what sense. Possible ways of nding the features of constitutional identity in the texts of constitutions (in preambles, among the foundations of the constitutional system, or provisions protected from change) are shown. The nal conclusions concern the limits of the application of constitutional identity in constitutional disputes. It seems that constitutional identity can be used to resolve constitutional con icts only if two conditions are met: xing the features of constitutional identity, de ned precisely as such (1), and carried out previously, not at the time of the decision, but in advance (2). It is these two conditions that will provide the necessary predictability and validity of decisions, in the adoption of which the category of constitutional identity was used for argumentation. Otherwise (if these conditions are not observed for whatever reason), the constitutional review body should, as far as possible, avoid using the category “constitutional identity” as an argument in resolving disputes.

Judicial Review and the Jordanian Constitutional Court: False Start or Slow Start?

Abstract Judicial review of the constitutionality of legislation has moved in recent decades from being the exception to the rule among Arab states. Not only has it spread, but contests about adjudication of constitutional disputes have become much more prominent and political reform efforts have sometimes included a great emphasis on establishing or strengthening constitutional courts. In Jordan, longstanding calls for a constitutional court were finally met in 2011 and the Jordanian Constitutional Court began operating the following year. This article traces the background to establishing the court and analyzes its structure. It then assesses the Jordanian Constitutional Court in operation, first by examining its short history and then by analyzing why its emergence as a judicial actor has been slow and uneven and how this might be changed.

Rules of Procedure for Deciding Disputes on the Constitutional Authority of State Institutions by the Constitutional Court

This study aims to describe one of the powers possessed by the Constitutional Court, namely resolving disputes over authority between state institutions. The type of research used is a type of library research (literature), with a normative juridical approach method or doctrinal legal research, namely legal research whose data sources come from secondary data in the form of laws and regulations, books, and journals related to the focus of the problem. Law No. 24 of 2003 on the Constitutional Court does not explain the details of the authority of the Constitutional Court . Therefore, the Court of Justice is empowered to form a regulation to support the smooth performance of its duties and authorities relating to the authority to decide disputes between state institutions. Based on this, PMK No. 08/PMK/2006 on Guidelines for Beracara in Disputes over the Constitutional Authority of State Institutions. When viewed in the formulation of the 1945 Constitution, the institutions that can be both petitioners and respondents in constitutional disputes of state institutions are state institutions whose authority is granted by the 1945 Constitution. The formulation of state institutions whose authority is granted by the 1945 Constitution gives rise to multiple interpretations, thus causing differences in the determination of which state institutions can be parties to the dispute. Regardless, however, determining which state institutions can be parties to constitutional disputes between state institutions remains with the Constitutional Court.

Jurisprudential comment "activer legitimation of public universities with autonomy to promote constitutional disputes"

El 10 de noviembre de 2021, la Suprema Corte de Justicia de la Nación (SCJN) admitió la controversia constitucional 135/2021 promovida por la Universidad de Guadalajara (UdeG), por actos del Poder Ejecutivo del Estado de Jalisco consistentes en la omisión de transferir 140 millones de pesos a dicha Casa de Estudio, los cuales habían sido aprobados y asignados en el presupuesto estatal para la construcción del Museo de Ciencias Ambientales. Posteriormente, el Poder Ejecutivo del Estado de Jalisco interpuso el recurso de reclamación 137/2021-CA y, finalmente, el 9 de febrero de 2022, la Primera Sala resolvió desechar la controversia constitucional por mayoría de cuatro votos, con voto particular de la Ministra Ana Margarita Ríos Farjat. A pesar de que la controversia constitucional fue desechada, brinda la oportunidad para reflexionar sobre la finalidad y evolución de este medio de control constitucional y sobre la legitimación de las universidades públicas autónomas para promoverlo.

Рarties to constitutional proceedings as subjects of proof

In conditions of concentrated review, the specificity of constitutional proceedings leads to a limitation of the limits of maneuvers provided to participants in the judicial process. Although the subjects of the constitutional process can be defined as real parties, their function remains limited. The existence of a dispute explains and justifies the development of an adversarial procedure that imitates the general principles of procedural law applied in ordinary courts. Constitutional justice has both subjective and objective consequences. As a result, the constitutional process appears as a place of indirect protection of the Constitution, where the individualistic concerns of the parties are mixed with the protection of the common good. Naturally, the parties are the first to be affected by this duality. Their action is primarily aimed at the protection of personal interests, but it also gives the constitutional judge the opportunity to ensure the objective protection of order. Thus, the simultaneous presence of subjective interests and the general interest gives an ambivalent character to constitutional disputes. Although it is impossible to eliminate this duality, it has been possible to give priority to the objective dimension of the dispute. The conflict between the participants in the legal process is consonant with the legal process, it is the origin and driving force of the proceedings. In response to this logic, the founder and legislator tried to recreate before the constitutional courts the conditions for a real dispute between the parties. For this purpose, the constitutional procedural texts define the persons and bodies that have the right to participate in the consideration of the case, taking care of the appointment of participants in the judicial process with opposing interests. Whatever the legal field, the legal process always takes the form of a confrontation, a struggle that takes place with the help of legal arguments. From this point of view, a trial is really a confrontation directed procedure. Proceedings are the arena of this organized struggle between two parties with opposing claims. The constitutional process also follows this model. It should be recognized that the specifics of the judicial process require certain adaptations to the principle of competition, but they do not go so far as to eliminate the structural element of the judicial process, namely the opposition of the parties. In constitutional disputes, the contradiction concerns the divergent interpretation of the Constitution.

Violation of the Constitutional Law and International Provisions in the Dismissal of Justices and Judges from South Sudan Judicial Pillar

This study discusses the constitutional disputes, which arose after the President of South Sudan issued the Presidential decree dismissing 14 justices and judges from the judicial organ in the country. For the President and the Chief Justice, the dismissal complied with the constitutional provisions. On the other hand, the dismissed justices and judges argued that the dismissal violated the provisions of the national Constitution and the East African Community Treaty. In this situation, the victims of the dismissal avoided the domestic remedies, the Supreme Court, which redresses the constitutional disputes and launched a lawsuit impugning the dismissal to the East African Community Court of Justice (EACJ), an international law court to adjudicate the case. The study finds three reasons which persuaded the victims to avoid the domestic remedies in favour of the EACJ: first, the constitutional immunities protecting the executive from lawsuits; second, section 33(2) of the Civil Procedure Code (CPC), 2007, gives the Minister of Justice to stay the lawsuit; third, act of impunity in the executive organ. The research recommends that nationals as voters need to press the legislature to amend the Constitution and rescind immunities and section 33(2) of 2007. The act of staying the lawsuit from proceeding constitutes partiality of the executive organ to the judiciary and that frustrates the independence of the agency.

Pope Leo XIII’s Legacy in European Union Law

The principle of subsidiarity, which also appeared in antiquity, was refined and perfected by the Catholic Church. The essence of the principle of subsidiarity is to ensure that decision-making takes place as close as possible to the individuals, thus avoiding unnecessary centralisation and encouraging effective decentralisation. The rationale behind this principle is the recognition that higher levels of government do not always have an adequate level of insight or understanding of local realities, and that decision-making should therefore be taken at the lowest possible level of authority to achieve the best quality of governance.The principle of subsidiarity is a fundamental principle of the European Union’s decision-making system. A return to subsidiarity can play an important role in the constitutional disputes that have been revived in recent years between national constitutional courts and the Court of Justice of the European Union. This paper analyses the evolution of the subsidiarity principle in EU decision-making and the institutions and procedures that are supposed to guarantee its application. By examining the political and legal enforceability of the principle of subsidiarity, the paper draws conclusions on the present state of the enforcement of the principle and makes some proposals for the future.

БЕЛЫЙ ДОМ И КАПИТОЛИЙ: БИТВА ЗА ВЕРХОВНЫЙ СУД (ВТОРАЯ ПОЛОВИНА XX ВЕКА)

The U.S. Constitution requires the President to submit Supreme Court nominees to the Senate for its advice and consent. The appointment of a Supreme Court Justice is an event of major significance in American politics. Since the early 20th century, Presidents have submitted 62 nominations for the Court, including those for the post of Chief Justice. Of this total, 55 were confirmed (seven declined to serve). The article dissects the crucial constitutional disputes between the executive and legislative branches of government from the Eisenhower administration to the end of the Clinton administration, and examines the day-to-day working relations between the President and Congress, which go beyond the traditional discussions of Supreme Court decisions. The article analyzes the conflicts between the President and Congress in the field of shared power – nomination and confirmation of the Supreme Court Justices in the Senate. The research is based on historical and statistical data on the Supreme Court: its institutional development; decision trends; background, nomination; its relations with public, governmental, and other judicial bodies; and its influence. A special place in the article is given to the analysis of the policies of the Nixon, Reagan and Clinton administrations.

The Federal Constitution of Malaysia: A Kelsenian Perspective

AbstractThis article examines the Federal Constitution of Malaysia through the lens of Hans Kelsen's Pure Theory of Law. It first demonstrates the utility of the Grundnorm in explaining the supremacy of the Federal Constitution within the Malaysian legal system. In particular, this article establishes that despite Malaysia's colonial past, the Federal Constitution is the Kelsenian ‘historically first constitution’ of the present Malaysian legal system because of the Kelsenian ‘revolution’ that had occurred when the Federation of Malaya attained independence from the British in 1957, as well as the absence of a Kelsenian ‘revolution’ during the formation of Malaysia in 1963. The Grundnorm of the Malaysian legal system can thus be expressed as ‘one ought to obey the prescriptions of the Federal Constitution’. However, this article also argues, using the example of the basic structure doctrine controversy in Malaysia, that while the Pure Theory succeeds in elucidating a measure of legal validity for legal norms, it fails to provide any helpful insight when a constitutional dispute relates to the content of a norm rather than the interaction between hierarchically distinct norms.

Constitutional Dispute over the Legislative Authority of the Standard of Ractopamine Residues: Comments on the 111-Xian-Pan-6 Decision

Constitutional Dispute over the Legislative Authority of the Standard of Ractopamine Residues: Comments on the 111-Xian-Pan-6 Decision

Competition of State Powers During the COVID-19 Pandemic

The aim of this article is to analyse what kind of powers deriving from the rule of law can be extended to public authorities in response to the global COVID-19 pandemic, what is the balance of powers between the legislative and the executive whilst imposing measures controlling the virus, and what role is played by the constitutional courts whilst deliberating on constitutional disputes involving public authorities.

Право громадян на конституційну скаргу як засіб вирішення конституційно-правового спору

The article examines the right of citizens to a constitutional complaint as a means of resolving a constitutional dispute. The concept of constitutional justice from the point of view of the theory of the state and law is considered and the role of constitutional justice in the system of protection of human and civil rights and freedoms is determined.

Polskie spory między populistycznym a prawnym konstytucjonalizmem wobec refleksyjności konstytucji

The article aims to analyse legal constitutionalism and populist constitutionalism as two dominant ideological positions in the constitutional discourse of the last decades. The analysis is focused on the exemplifications of these positions in writings of selected Polish legal scholars, in the context of the Polish constitutional crisis of the rule of law, and conducted from the perspective of the philosophy of reflexivity. This theoretical and methodological approach enables demonstrating that the two examined doctrines – despite all the differences between them – share common erroneous assumptions regarding the relationships between law, democracy, and constitutional practice. Both of them strive to shape this practice in a closed-end and monological manner, subjected to one particular type of rationality. For legal constitutionalism, this will be juridical rationality, and for its populist counterpart – political rationality. This shared fallacy makes their ongoing dispute futile. An alternative approach to constitutionalism is to take into account the fundamental reflexivity of constitutional practice (regarded as the practice of creating, applying and interpreting a constitution, and of public debate on its text). In line with the general characteristics of reflexivity, constitutional practice appears as an open and pluralistic process, mediating between different viewpoints in society. Such an alternative is important not only when considering the Polish constitutional disputes, but also in the broader context of the contemporary crisis of liberal-democratic constitutional orders.

The missing arc of a backlash? Thirty years of constitutional debate on ‘women’s equality’ in Hungary

The argumentation in this paper is based on the proposition that constitutions play a key role in defining the approach to women’s social status, not just by determining ordinary legislation and public policy, but also through constitutional review. The focus is on Hungary, a country that is not famous in Europe for a high level of equality between men and women, surrounded by a (liberal) international political discourse which asserts a backlash and claims that women’s equal rights are being curtailed even more during the era of Orbán’s illiberal government. Against this discursive backdrop, the paper highlights a counterintuitive phenomenon: since the democratic transition (1989–1990) all the key constitutional disputes related to equality between the sexes have been initiated by men claiming instances of discrimination against men, as if women were too privileged in Hungary. A relevant contextual feature is that while equal legal standing for the sexes is guaranteed (due partly to the heritage of state socialism, then to efforts related to EU integration), affirmative measures for women are also constitutionally ensured. The Constitutional Court has deployed surprisingly poor-quality reasoning in these disputes, suggesting that it never considered equality between the sexes to be an important issue. This leads us to claim that certain persistent features have characterized this field since the 1990s, not the dynamics of reversal since the 2010s. With our empirical findings, we aim to contribute to the academic discourse in a way that challenges the backlash narrative regarding developments in Hungary from a specific perspective.

Uwagi na temat aksjologicznego wymiaru Konstytucji RP z 1997 r. i jej wykładni w świetle prac Profesora Piotra Winczorka

This article is an extended and supplemented version of the address given during the scientific conference dedicated to Professor Piotr Winczorek. The authors made an attempt to reconstruct theory-of-law views based on the statements of Piotr Winczorek. The subject of the research was especially issues related to the axiology of the Constitution of the Republic of Poland. In the course of research such issues as the concept of the legal order in the light of constitutional provisions, constitutional values, constitutional principles, and sources of law were taken up. One of the interesting problems emphasized by Piotr Winczorek was whether the basic law should be frugal in terms of manifesting values. The research is supplemented by an analysis of the problems of legal interpretation in the works of Piotr Winczorek. The conducted analyses enable formulating a general conclusion that many problems raised by Piotr Winczorek are referred to in the current constitutional disputes. Therefore, it is worthwhile to refer to the works of Professor Winczorek, whose statements can be treated as an authentic interpretation of the Polish Constitution of 1997.

Courts and Diversity: Normative Justifications and Their Empirical Implications

Abstract The study distinguishes between three normative approaches that view diversity in the judiciary as a desirable ideal, outlines their expected empirical implications for judicial decision-making, and tests the implications against data from the Israeli Supreme Court. The “reflecting” approach suggests that diversifying the courts is important mainly as a means of strengthening the public’s confidence in them and does not impact judicial decisions. The “representing” approach asserts that judges serve as representatives of their social sectors. Thus, they tend to rule in favor of their group’s interest only in cases that are relevant to their in-group. The “social background theory” is based on the premise that people of different backgrounds develop distinct worldviews. Hence, social attributes are expected to influence judicial decisions across a wide range of socio-legal issues. The empirical investigation centers on the role of gender and religiosity in judging on five carefully selected socio-legal issues: petitions against the Great Rabbinical Court’s rulings, constitutional disputes in all legal procedures, social welfare cases, and criminal appeals in sex offenses and in drug offenses. The results lend support to social background theory with regard to gender and are consistent with the representing approach with respect to religiosity. I further discuss the limitations and policy implications of the findings.

Dispute over the Guardian of the Constitution. Hans Kelsen, Carl Schmitt and the Weimar Case

The paper discusses one of the most important debates on the meaning of constitutional adjudication in the 20th century that engaged two eminent legal and political thinkers Hans Kelsen and Carl Schmitt. The paper focuses on the constitutional dispute over the guardianship of the constitution in the final years of Weimar’s Germany and reconstructs the arguments of the two major protagonists in this dispute concerning the Weimar constitution and the fundamental question whether the guardian of the constitution is (or should be) the constitutional court or the president of the Reich. The debate highlights the complexity of the political problems of a democratic state, as well as the intricate relationship between law and state and has retained high level of topicality. The paper also pays attention to the philosophical-political premises that underlined the distinctly different views on the relationship between law and politics in the thought of Hans Kelsen and Carl Schmitt.

Constitutionalism Reborn

As Conservatives have come to dominate the US Supreme Court, originalist interpretation methods will determine constitutional disputes. While the Court rejects the use of comparative constitutional law to interpret the Constitution, even its Conservative members accept the legitimacy of resorting to British sources, if the language of the Constitution was derived from the UK. This practice of reliance on British precedents seems natural yet perplexing. It is natural because the US seceded from the UK. It is perplexing since the US constitutional revolution stands for rejection of the British model of parliamentary sovereignty. This Article intends to redefine the relationship between the US and UK constitutional models. While the literature perceives the two as polar-opposites, I suggest that there is, in fact, a common Anglo-American constitutional model, which has been informing the US’ character since its founding. It is not that we misunderstood the American model of popular sovereignty and supreme Constitution. Rather, we did not realize that parallel developments were taking place in the UK. The political actors on both sides of the pond were aware of this reality, but the jurisprudence missed it. Shifting the paradigm and accepting the existence of this common model will enable us to grapple with the most burning current dilemmas of our time on both sides of the Atlantic. It lends new legitimacy to examining British sources to better understand American constitutional law, even if the textual provision per se is not attributable to the UK. We may now study how the common model intended the dynamics between the different constitutional actors to play out. While the US felt powerless to deal with a President who does not care for constitutional norms, the Article reveals how the model designated enforcement mechanisms for constitutional norms/conventions, including court packing and judicial review. British debates on reforming an obstructionist second chamber resonate with current American discourse on reforming the US Supreme Court and the Senate. Both American institutions were modeled after the House of Lords. The Article develops the two types of court packing justified in the US under the common model to remedy breach of constitutional norms. It further discusses the inevitability of filibuster reform. Similarly, while Brexit is incomprehensible in a parliamentary sovereignty system, Parliament’s reluctant adherence to the 2016 “consultative” referendum’s results is a natural outgrowth of the common Anglo-American rule of the People.