Constitutional Disputes Research Articles

O naturze sporów kompetencyjnych. Konflikty pomiędzy organami władzy państwowej w polskiej myśli polityczno-prawnej na przełomie XX i XXI wieku

Competency disputes between the organs of state authority are one of characteristics of the Polish political system functioning at the turn of the 20th century, that is since regaining independence until today. The first conflicts between the organs of executive and legislative powers emerged in the period of the Second Republic of Poland. More frequently referred to as constitutional disputes then, these competency conflicts were focused around Marshall Józef Pi³sudski, and their main cause was the interpretation of the Small Constitution, and then the Constitution of 17th March 1921. These interpretations were particularly skillfully applied by the supporters of the Marshall, especially by Stanis³aw Car, Minister of Justice, whose name gave rise to the notion of carowanie [bewitching] of the Constitution. The available sources allow the conclusion that competency disputes were one of the causes for amending the Constitution in 1935, at least from a legal point of view. The period of the Second World War also saw disputes that can be called conflicts of competency. This time the representatives of executive power played the main roles. The conflicts between Prime Minister W³adys³aw E. Sikorski and President W³adys³aw Raczkiewicz resulted in the clearly reinforced position of the former. After 1989, competency disputes became a permanent element of political life, as was the case after regaining independence in 1918. Analogous to the interwar period, a problem with the interpretation of the Constitution emerged, in particular after the Small Constitution was passed in October 1992. The notion of the ‘Falandization of law’ was coined in reference to the advisor to President Lech Wa³êsa – Professor Lech Falandysz. Also the 1997 Constitution, which remains in force, was a source of conflicts, this time between President Lech Kaczyñski and Prime Minister Donald Tusk. Competency disputes over the last two decades clearly show the direction of the further evolution of the Polish political system towards strengthening the position of the Prime Minister while limiting the powers of the head of state.

Transnational Constructors of Parliamentary Democracy in Swedish and Finnish Constitutional Controversies, 1917–1919

During the First World War, the legitimacy of established polities was challenged everywhere in Europe. Not only the combatant great powers but also smaller states witnessed a resurgence of constitutional disputes and competing ideological conceptualizations of revolution and reform, the will of the people, democracy, and parliamentarism. While these controversies primarily focused on the future of the national polities concerned, historical experiences and discourses accelerated by the war and the Russian Revolution were transnationally interconnected and contributed to discursive transfers between political cultures. Swedish and Finnish socialists were linked by their internationals, liberals were connected by transnational debates for and against ‘Western’ democracy and parliamentarism, and conservative politicians and academics were involved in ideologically oriented networks. This article reconstructs transnational links and discourses in order to understand the exceptionally confrontational dynamics (which, in Finland, partly led to a civil war) and the outcomes of the Swedish and Finnish constitutional debates in 1917–1919. It examines the nature of the transnational connections of eight Swedish and Finnish conservatives, liberals, revisionist socialists, and far-Left socialists, analysing their argumentation on constitutional questions in published works and parliamentary speeches as illustrative examples of the political groups they represented.

CONSTITUTIONAL LEGAL DISPUTES BETWEEN THE PRESIDENT OF ROMANIA AND OTHER PUBLIC AUTHORITIES IN THE CASE-LAW OF THE CONSTITUTIONAL COURT OF ROMANIA

Article 146 (e) of the Romanian Constitution stipulates the power of the Constitutional Court to solve legal disputes of a constitutional nature between public authorities. Thus, the Constitutional Court solves or settles constitutional disputes between the authorities belonging to the three powers in the state. These situations may concern disputes between two or more constitutional authorities regarding the content or length of their powers, as provided for by the Constitution. The result sought is to overcome possible institutional blockages.From 2005, when the Constitutional Court of Romania first decided on such dispute, and until today, thirteen decisions for settling certain disputes between the President of Romania and other public authorities have been issued. The multitude of disputes is due, primarily, to the semi-presidential system of government provided for by the Constitution and to the ambiguous provisions regarding the division of powers between the Romanian President, Government, Parliament and the judicial power. Last but not least, this dispute is due to a certain political context, too. The present paper aims to analyze the case-law of the Constitutional Court of Romania regarding the constitutional legal disputes between the President of Romania and other public authorities, as well as its impact on the constitutional order and the relationships between the public authorities from the checks and balances system.

Da li i kako reformisati ustavni sud?

The heralded constitutional amendment does not seem to encompass the constitutional judiciary, notwithstanding the fact that the Constitutional Court is in a major crisis. For a number of reasons, the forthcoming constitutional reform should include a fundamental reconstruction of the present model of the constitutional judiciary in all its dimensions. The changes to the Constitution should encompass not only the organization and jurisdiction of the Constitutional Court but also the decision-making procedures and the legal effect of the Constitutional Court meritory decisions. In essence, the Constitutional Court should be regulated as the fourth branch of government. The competences of the Constitutional Court should be significantly narrowed, and reduced to the normative control of international treaties, laws and regulations, as well as deciding on constitutional complaints. Thus, the Constitutional Court would focus on the timely resolution of 'real' constitutional disputes. The independence of the Constitutional Court and the independent position of the judiciary should be institutionally reinforced by introducing more stringent conditions for the appointment/election of judges, which would guarantee the genuine political neutrality of the Constitutional Court as an institution and the impartiality of the Constitutional Court judges. The Constitution should validate the complex internal structure of the Constitutional Court and the existing decision-making processes, and provide for the rationalization of the constitutional court procedure It is also necessary to specify the legal effect of the Constitutional Court decisions, especially constitutional complaints, which would lead to establishing clear relations with the regular judicial power. Thus, qualitative institutionalization, as the first premise of constitutional judicature, would become normatively stable, functionally non-controversial, logically coherent and practically sustainable.

IS LADY JUSTICE BLIND? READING BRAZIL’S 2012 AFFIRMATIVE ACTION DECISION THROUGH THE STRUGGLE FOR GENDER EQUALITY / A DONA JUSTIÇA É CEGA? LENDO A DECISÃO DE AÇÃO AFIRMATIVA DE 2012 NO BRASIL ATRAVÉS DA LUTA PELA IGUALDADE DE GÊNERO

Brazil has boldly embraced affirmative action on a scale never before attempted in in the Americas. Despite this innovation, scholars have not analyzed this surprising development in a rigorous and grounded fashion. This essay seeks to delve deeper into the Brazilian Supreme Court’s (STF) 2012 decision (acórdão) to uphold the University of Brasilia’s racial quota system against allegations by the conservative Democrat Party (DEM). The DEM argued that such a system of affirmative discrimination violated a “fundamental [i.e. constitutional] precept”, a procedure of relief and remedy that serves as a last resort for resolving constitutional disputes. The unanimous decision came as surprise to most Brazilian observers both for its broad ideological consensus and for its explicit endorsement of racial quota policies in a country that still widely regarded itself as relatively free of racial tensions and biases. Closely analyzing the judges’ final opinions (votos), this essay makes the case that the decision’s unanimity came from a constellation of metaphors and constitutional philosophies. These metaphors and philosophies, at times in tension, coalesced to form a coherent defense of protected identity classes and the state’s duty to protect them. In fact, the decision served to converge two categories of affirmative action that previously had operated on parallel tracks: Racial and gender quotas. Finally, each vote relied on concepts of difference and equality (in the feminist sense) to arrive at a decision favorable to quotas.

A Legal Analysis of the Constitutional Disputes Between the Iraqi Government and the Kurdistan Region (2005- 2013)

This research paper will make a comprehensive legal analysis of the constitutional disputes between the Iraqi Federal Government and Kurdistan Regional Government in a way that authorities are divided between the Iraqi Federal Government and the Kurdistan Regional Government, Powers Exclusively Given to the Federal Government, Powers Shared Between the Iraqi Federal Government and the Kurdistan Regional Government and Powers that are Neither Given Exclusively nor Shared. This paper also discusses those conflicts that arise about the distribution of powers in the Iraqi constitution between the Iraqi Federal Government and Kurdistan Regional Government. Constitutional problems include oil and gas disagreements, disputed territorial areas between Iraq and the Kurdistan Region, article 140 in Iraqi constitution, and other issues including budget.Constitution,

Requirements of the Principle of Legality in the Field of Taxation // Zahtjevi principa zakonitosti u oblasti poreza

The principle of legality of taxation is among the greatest rule of law, which not only provides protection against the arbitrariness of the authorities, but also, in a political sense, ensures the legal certainty of citizens, their rights and freedoms. The legal meaning of the principle of legality of taxation manifests in the establishment of taxes and the determination of the important tax components, tax rate interpretations, determination of taxes and the prohibition of the retroactive effects of tax laws. The very complexity of tax matters requires that certain questions regarding the entire process of taxation are further regulated by subordinate legislation, which is, on the basis of legal authorization, left to the executive authority or the government, the ministry of finance, the tax authorities, and in some particular cases to the local governments. However, subordinate legislation, such as decrees, regulations, instructions and decisions can only have a subsidiary character of the legislation in terms of the elaboration of legal provisions and shall be made when there is a specific authorization by tax law. Whether the principle of legality is violated by some regulation or not is decided in each specific case in a constitutional dispute by constitutional court, which evaluates whether the subordinate tax regulations set to taxpayers some new requirements that are not determined by tax law.

The Structure of Constitutional Choice

I suggest that the core goal of constitutional choice in courts is the ongoing engineering of a coherent system of rights. Constitutional theorists disagree about the procedure of constitutional engineering in cases of constitutional gaps. Is constitutional engineering carried out by constructing doctrines that interpret or supplement the constitutional text or by weighing and balancing conflicting rights and societal interests? Some argue that constitutional deliberation seeks to specify abstract rights established in the constitutional text. Other authors hold that constitutional disputes must be settled by balancing or proportionally comparing rights and societal interests in concrete cases. I study the logical properties of different methods of constitutional engineering and show that all of them rank complex social states in various ways. I also suggest that social rights can be specified as budgetary rights and argue that completeness of the engineered system of rights is not a realistic ideal.

Прокурор как сторона конституционно-правового спора: предложения по совершенствованию действующего законодательства

Прокурор как сторона конституционно-правового спора: предложения по совершенствованию действующего законодательства

Constitutional Adjudication through Second Chamber in Ethiopia

Ethiopia has empowered its second chamber (the House of Federation—HoF) to interpret the constitution and resolve constitutional disputes. This article analyses whether a majoritarian institution such as the HoF can serve as effective mechanisms for the resolution of constitutional disputes. While the HoF has played some role in resolving cases of high political significance such as rights realizing local self-rule, it has of late tilted the federal balance in favour of the centre. The fact that the HoF remained a political organ controlled by the same dominant party meant that constitutionally entrenched civil and political rights remain without a guardian.

All Voters are Equal but...

Abstract Equal suffrage is a basic principle of democratic elections which is included in most constitutions and international human rights documents. It applies to the design of the boundaries of the political community, electoral system and electoral procedure. However, there are special cases where the effectiveness of this principle is questionable. This paper deals with two different aspects of the Hungarian regulation concerning the voting rights of Hungarian citizens living abroad. The paper gives an overview of the regulation and presents the recent constitutional disputes and relevant case law of Hungarian and European fundamental rights protection mechanisms. Finally, it opens the debate by posing some key questions on the future of the Hungarian situation and more generally, on the level of protection of voting rights before the national and international institutions.

A Recent History of Government Responses to Constitutional Litigation

The 2006 Canadian federal election, which brought the Conservative Party to power for the first time, shifted the dynamics of constitutional advocacy. The government adopted a combative litigation posture, channeled through aggressive political messaging and uncompromising choices. Since the return to power in 2015 of the Liberal Party, many expect a more respectful attitude towards litigants, the courts and the Constitution. Certainly, the new government appears more positively disposed to constitutional rights and judicial review. As a result, Canadians are less likely to witness an openly hostile attitude towards the judiciary. That said, it is impossible to predict the precise way that the new government will respond to constitutional litigation.The observations that follow largely focus on government responses to final judicial settlement of constitutional disputes. But there is, as well, much to be gleaned from how a government conducts itself during litigation. While the latter issue does not feature prominently in this paper, it informs some of the concluding comments.

Power Enumeration and the Silences of Constitutional Federalism

Enumerating power by subject is a familiar feature of federal constitutions that aspire to apportion power among governments. Long-serving federal constitutions seem to say a lot more about how power to govern their communities should be distributed among their governments than about how those governments should treat each other. Yet those texts come no closer to supplying actual answers to disputes about power distribution than they do to disputes about institutional independence. Power enumeration is indeterminate not merely because subjects of power are abstract, but because federal constitutions are silent about aboutness. Federal drafting conventions that resorted to the judiciary to enforce power enumeration seemed to assume that the range of rationally conceivable ways to decide whether laws are inside or outside specified subjects of power (the range of rationally conceivable tests of aboutness) would generally yield the same answers. The assumption is false; laws do not have single subjects. Laws are almost always susceptible of more than one characterization, almost always about more than one thing. Power enumeration defaults to constitutional dispute resolvers an open discretion to decide what to make of it, and an adjudicative necessity to develop a law of aboutness. In deciding disputes about power distribution, as surely as in deciding disputes about intergovernmental independence, constitutional courts have unavoidably responded to constitutional silence with court-created core constitutional law. That law of characterization has sometimes deferred to rational legislative judgment, and sometimes not.Power enumeration was pioneered at the United States Constitution’s Philadelphia drafting convention against the wishes of key nationalist proponents of the Virginia Plan. Power enumeration was an initiative of localist delegates, who relied on a precedent that proved a poor fit for the compromise system that in fact emerged. Their precedent was the specification of subjects in treaties, and in particular the subject specification in the then-operative Articles of Confederation. Power distribution under the Articles was policed by the member states themselves, through their direct control of Congress. Under the localists’ New Jersey Plan, that would have stayed true, and required no judicial enforcement. The Connecticut Compromise maintained this localist vision by constituting the Senate as a true states’ house that resembled the existing Confederation Congress. Even after losing the final vote on the compromise, nationalist delegates bitterly opposed this outcome, until they realized that through a subtle and carefully-timed amendment they could make equal state representation in the Senate about the vocational interests of small-state political leaders rather than about preserving a federal balance. That change, which has received little analysis in the leading historical scholarship, turned the Senate back into the independent, elite institution that nationalists had wanted all along and stopped the Senate from becoming a reliable political safeguard of federalism. Immediately thereafter, the convention referred the task of enumerating Congress’s powers to a committee of detail. Edmund Randolph’s preliminary draft of the committee’s enumeration explicitly linked power enumeration to an arbitral role for the Supreme Court. Having adopted the New Jersey Plan’s vision of enumerated national powers but discarded that plan’s vision of a reliable political mechanism to keep Congress within those powers, the convention backed into depending on the courts to make power enumeration meaningful. Late in the convention’s life, delegates coalesced around explicitly committing to the Supreme Court jurisdiction to decide all cases arising under the Constitution.Power enumeration affords constitutional courts adjudicative discretion that may be exercised to promote not only a federal balance, but individual rights too. Courts could read down constitutional delegations to legislatures so as not to reach valued liberties and not to permit invidious distinctions, much as some common law courts read down statutory delegations to executives. In this way, courts could vindicate the Founding-era Federalist claim that, for example, a law about interstate commerce cannot also be about freedom of speech. A constitutional court could construct a whole implied bill of rights to limit a government of enumerated powers.

Wittgenstein's Poker: Contested Constitutionalism and the Limits of Public Meaning Originalism

The last two decades have seen an explosion in scholarship exploring the intersection between linguistic indeterminacy (usually vagueness), as analyzed within the philosophy of language, and legal interpretive theory. This essay claims that such indeterminacies are an inevitable, and even valuable, part of contested language games — such as our contested constitutionalism — which employ linguistic uncertainty to further different communicative or political ends. It further suggests that two particular types of constitutional indeterminacy — intentional contemporary ambiguity and incidental evolutionary vagueness — present substantial problems for public meaning theories of originalism. Resolving an intentional ambiguity seems to require at least some recourse to authorial intentions, which are beyond the scope of public meaning originalism; and historical usages can offer little guidance when new constitutional problems reveal a latent textual vagueness.When combined with the problems of intentional vagueness — which the New Originalists already concede to modern construction — these types of indeterminacy seriously undermine the practical value of public meaning originalism as an interpretive method. Indeed, many — if not most — of our non-trivial constitutional disputes are contests over just these sorts of textual uncertainties. In all of these cases, then, the New Originalist must either resort to intentionalist theories — with all of their well-known epistemological and jurisprudential problems — or concede the question to modern judicial construction. This, in turn, means that public meaning originalism’s claims about the existence of “empirical” constraints on our constructive practices can inform only a small, and relatively uncontroversial, set of actual constitutional controversies.

MAHKAMAH KONSTITUSI DAN KONTRAK OUTSOURCING

The Amendment of the 1945 Constitution of the Republic of Indonesia has made the sovereignty still retained by the people, no more represented and fully held by the People’s Consultative Assembly like when the constitutional system of Indonesia was still embracing supremacy of parliament. In the constitutional perspective, the standing and relation between the state and people is becoming more obvious. Hence, in the case that constitutional dispute happened, there should have been an adjudication forum for solving the dispute. Therefore, Contitutional Court Of the Republic of Indonesia is established and designed constitutionally to solve the constitutional dispute through The Amendment of the 1945 Constitution of the Republic of Indonesia. Settlement of constitutional dispute through the review of constitutionality of norms in the regulation of outsourcing contract in The Labour Law at Contitutional Court of the Republic of Indonesia, with specific issue “the Contract of Employment for a specified time” that is regulated in Article 65 paragraph (7) and Article 66 paragraph (2) b of Labour Law is declaredconditionally unconstitutional.

Construction, Originalist Interpretation and the Complete Constitution

The literature of constitutional originalism has, in recent years, featured a new concept, “constitutional construction.” This Essay is a critical examination of that concept. It demonstrates that, contrary to claims made for it, the difference between “interpretation” and “construction” is not a common and familiar distinction in common law adjudication. It therefore lacks the historical pedigree its proponents claim for it. The Essay then surveys various descriptions of the practice of constitutional construction and argues that, although differing with each other, they all tend to leave an ill-defined discretion in the hands of constitutional decision-makers. Finally, the Essay disputes the claim that the constitutional text is incomplete in that it fails to provide a decision-rule for many — indeed for most — constitutional disputes so that constitutional construction is a practical necessity. The Constitution would indeed be incomplete if interpreted according to the “new” or “public meaning” version of originalism. At least in the context of constitutional adjudication, however, originalist interpretation that seeks to identify that meaning of the Constitution actually intended by the people whose assent made it law leaves no indeterminate constitutional controversies. In every argument about the application of a constitutional provision to an actual dispute, one side’s interpretation will always better conform to that original meaning. In that sense, at least, the Constitution is complete.

Securing the Sasana through Law: Buddhist constitutionalism and Buddhist-interest litigation in Sri Lanka

AbstractThis article examines the history and effects of Buddhist constitutionalism in Sri Lanka, by which is meant the inclusion of special protections and status for Buddhism in the island's 1972 and 1978 constitutions, alongside guarantees of general religious rights and other features of liberal constitutionalism. By analysing Sri Lankan constitutional disputes that have occurred since the 1970s, this article demonstrates how the ‘Buddhism Chapter’ of Sri Lanka's constitution has given citizens potent opportunities and incentives for transforming specific disagreements and political concerns into abstract contests over the nature of Buddhism and the state's obligations to protect it. Through this process, a culture of Buddhist legal activism and Buddhist-interest litigation has taken shape. This article also augments important theories about the work of ‘theocratic’ or religiously preferential constitutions and argues for an alternative, litigant-focused method of investigating them.

Amendment Creep

To most lawyers and judges, constitutional amendment rules are nothing more than the technical guidelines for changing a constitution’s text. But amendment rules contain a great deal of substance that can be relevant to deciding myriad constitutional issues. Indeed, judges have explicitly drawn on amendment rules when deciding issues as far afield as immigration, criminal procedure, free speech, and education policy. The Supreme Court, for example, has reasoned that, because Article V of the U.S. Constitution places no substantive limitations on formal amendment, the First Amendment must protect even the most revolutionary political viewpoints. At the state level, courts have cited flexible amendment rules in state constitutions to support judicial restraint. Although largely unnoticed by scholars, amendment rules may be creeping into other areas of constitutional law. This Article provides the first systematic investigation and assessment of “amendment creep”—the phenomenon where judges explicitly draw on amendment rules to interpret constitutional provisions unrelated to formal amendment. The Article concludes that federal and state amendment rules contain constitutional substance that can assist judges and lawyers in resolving many diverse constitutional disputes. Based on an extensive review of relevant Supreme Court and state high court opinions, the Article constructs a typology of amendment-based arguments. The Article concludes that amendment creep is an extension of a familiar form of constitutional reasoning known as structuralism, and that it may have several normative benefits for constitutional adjudication—such as promoting overall constitutional coherence and ensuring that judges give appropriate consideration to the democratic values that amendment rules embed in the constitutional framework.

A House Divided: When State and Lower Federal Courts Disagree on Federal Constitutional Rights

Despite their many differences, Americans have long been bound by a shared sense of federal constitutional commonality. As this article demonstrates, however, federal constitutional rights do in fact often differ — even within individual states — as a result of state and lower federal court concurrent authority to interpret the Constitution and the lack of any requirement that they defer to one another’s positions. The article provides the first in-depth examination of intra-state, state-federal court conflicts on federal constitutional law and the problems that they create. Focusing on criminal procedure doctrine in particular, with its unique impact on individual liberty and privacy, the article highlights multiple instances in which state and lower federal courts disagree. As the article makes clear, creation of a “crazy quilt” of conflicting federal rights, which Justice Scalia has inveighed against more generally, generates an array of distinct and quite significant difficulties when localized. To date, however, the conflicts and their consequences have largely evaded the attention of commentators and, more importantly, often go unaddressed by the Supreme Court, which appears content to maintain its historically small plenary docket. In response, the article urges that Congress amend the federal certification provision, which since 1802 has allowed federal but not state courts to certify disputed questions to the Court for resolution. Allocating certification authority to state and federal courts alike will not only help ensure that the Court fulfills its role as arbiter of federal constitutional disputes. It will also help elevate state courts to their rightful place in the nation's constitutional order and allow for greater engagement with the nation’s “one supreme Court,” charged with overseeing the work of state and lower federal courts and ensuring federal constitutional consistency.

The Balance Wheel Reconsidered: Addressing Constitutional Principle Disputes in Practice

In handling contingencies that do not yield to categorical answers, Aristotle argues, deliberation grounded in a general purpose becomes necessary so that reason can be exercised in a way that effectively and correctly resolves particular problems. This article explores how Aristotelian prudence adjusted to constitutional conditions can serve as a normative guide not only in resolving ethical dilemmas but in molding administrative judgment. This modified consideration of Aristotelian thinking requires administrators to rely on regime values and principles as aims in making choices that are often in direct conflict with those of other parties. The deliberation of what these values and principles mean in practice requires that administrators have a sense of both the general and the particular. The ability to tap into these considerations defines a balanced administrator who is able to prudently make quality choices.