Constitutional Institutions Research Articles

국회의 입법권과 권력통제

The legislative power is responsible for establishing the norms necessary for national life, but it also fulfills a power-control function that allows it to control other constitutional institutions. However, the legislative power functions in different ways depending on the distribution of seats in the National Assembly. If the ruling party has a majority of seats, the executive branch is more likely to use legislation to implement its policies. In the opposite case, the legislative power can be used to control the executive power. Since the inauguration of the current government, the president and the National Assembly have been in serious confrontation and conflict. The National Assembly is pushing for its own legislation, and the president is responding by vetoing bills. The ruling party and the executive branch have also been using decree amendments instead of legislative amendments to create legal grounds. The National Assembly, the people's representative body, has the power to legislate, so it should control administrative legislation and enhance the democratization of administrative legislation. Ideally, the executive branch should enact appropriate administrative legislation based on its expertise and experience in law enforcement, but there are cases of administrative legislation based on administrative convenience or enforcement decrees that go beyond the intent of the parent law. There are also institutional limitations that prevent effective control through notification under Article 98(2)(3) of the existing National Assembly Act. Therefore, it is necessary to control inappropriate administrative legislation by supplementing the existing system. It is undesirable to create executive orders that directly violate the intent of the legislation and neutralize the legislation. The president's power to veto bills has inherent limitations and should be used sparingly. However, whether legal controls are available is another matter. Even if a president abuses his veto power, it is not easy to determine that it constitutes an impeachable offense. Similarly, the National Assembly can override the president's veto through a second reading, so there is a limit to the possibility of judging presidential and parliamentary authority disputes. It is also worth considering defining the limits of presidential veto power in future constitutional amendments. The National Assembly has joint fiscal authority with the executive branch, so a bill that requires the government to spend more than a certain amount of money for a certain reason is not necessarily unconstitutional because it infringes on the government's right to budget. However, the majority party should be cautious about enacting earmarks unilaterally. Congress should avoid pushing legislation that accelerates the deficit. Although impeachment by the National Assembly is part of the impeachment process, it should be recognized as an independent means of state control as it has a separate legal effect. Therefore, the National Assembly should explicitly define the constitutional or legal violations that constitute grounds for impeachment and strengthen the investigative powers of the Judicial Affairs Committee to ensure that the right to impeach becomes a clear state control power.

The History of the Algerian Islamic High Council: Promoting and Preserving the “True Islam” for National Unity and Stability

In Algeria, Islam has often been used to strengthen the sense of national identity and as an instrument of self-legitimation. The Algerian state gradually bureaucratized Islam through different organisms, represented by the Ministry of Religious Affairs and other institutions, such as the Islamic High Council. This constitutional institution can be considered the core tool used by the state to defend an Islam that is near and faithful to the values of the state, always ready to face dangers coming from religious radicalism. This essay describes the council’s historical development, emphasizing the modifications made to support state laws and policies on a variety of topics that are vital to the stability of the country, including religious problems.

Wewenang Dewan Perwakilan Daerah dalam Memperkuat Otonomi Daerah Menurut Undang-Undang Dasar Negara Republik Indonesia Tahun 1945.

In the Indonesian government system, the DPD is a representation of the people, a state institution that is constitutionally given the authority and task of representing regional interests at the national level. The DPD not only proposes policies related to regional autonomy, but also ensures continued development and political stability in Indonesia. However, in practice, the DPD's role is limited by structural constraints and dependence on its partners, especially the DPR and the central government. The DPD relies heavily on the DPR to make decisions, which reduces its effectiveness. This limitation shows that the position of the DPD is not equal to that of the DPR. As a constitutional institution, it is important for the DPD to be given a more substantial role in policy making to ensure better representation for the regions. The main issue discussed is how the authority of the Regional Representative Council of the Republic of Indonesia (DPD-RI) is in strengthening regional autonomy and how DPD-RI as regional representatives can have equal rights and authority to the DPR-RI in fighting for regional interests. This research method uses a type of normative legal research that uses secondary data through literature searches. The conclusion drawn is that DPD-RI has limitations in supporting regional autonomy. Article 22D of the 1945 Constitution of the Republic of Indonesia as a result of the amendment actually weakens its position. The increase in authority is expected to strengthen its role as a balancer in the Indonesian political system.

Legal Framework of State Formation in Lithuania: A Historical Comparison Pre- and Post-EU Integration

The accession of new countries to the European Union (EU) in May 2004 marked a qualitatively new stage in the integration processes both in Europe and worldwide. Analysing the positive and negative phenomena accompanying the enlargement of the EU is significant for countries considering or potentially joining the EU in the future. This analysis is crucial when forming long-term economic policies and deciding their integration directions. The experience of the Republic of Lithuania in studying the impact of external political situations on the processes of integration into the European community is seen as illustrative for Ukraine due to shared initial characteristics and historical proximity between the states. The article analyses the features of Lithuania’s integration into the European community. A significant normative and systemic gap between the periods studied in the context of the legislative field is demonstrated. The study aims to analyse the dynamics of the normative-legal framework in developing European integration and state-building processes in Lithuania from 1990 to 2021. The research identifies which countries had the most significant influence on the state-building process in Lithuania after 1990 during the establishment and development of democratisation. Fundamental concepts of state-building in Lithuania during the studied period and the corresponding normative-legal framework of the process are highlighted. It is established that Lithuania’s accession, despite a solid societal push for integration into the Western political and economic culture, had several distinctive features related to constitutional institutions, significantly impacting the resolution of issues between the government and EU institutions.

Étienne Parent, the Demise of the Mixed Constitution, and the Rise of Liberalism of Government in French Canada

Abstract Between the adoption of the Act of Union in 1840 and the British North America Act in 1867, French-Canadian elites had to reconceptualize the nature and virtues of the British constitutional system. Étienne Parent, an early defender of the ‘mixed constitution’ and one of the most influential thinkers among French-Canadian reformists, turned to the civil service to give the new constitutional regime a stable foundation. His theory of the ‘sovereignty of intelligence’ borrowed French liberal ideas to build a distinct model of constitutionalism out of British constitutional institutions. Parent’s thought also exemplifies how the idea that the constitution is the principal integrative force of the polity continued to shape French-Canadian constitutional imaginary in the mid-nineteenth century. Recovering this dynamic and historical approach to constitutionalism sheds light on this distinct constitutional model, obscured by the later influence of AV Dicey and his retrospective interpretation of nineteenth-century constitutionalism. Putting the emphasis on the administration, Parent’s theory of the ‘sovereignty of intelligence’ offered a form of government liberalism which differed from the liberalism associated with parliamentary sovereignty, and republicanism and popular sovereignty. In many respects, Parent participated directly in the consolidation of the constitutional model he defended, and his thought allows us to recapture the synergy and generative tension between the cabinet and the civil service that endures in the contemporary constitutional practices of Westminster parliamentary systems.

Execution the decisions of the constitutional court

The constitutional judiciary is one of the most important constitutional and judicial institutions of the state. It has an important role in resolving lawsuits related to the state’s constitution, or those that have a constitutional dimension, and resolving constitutional issues. Decisions must be decisive and final and have binding force on all constitutional institutions of the state, meaning that they have authority Absolute towards all authorities within the state, in order to comply with and implement the decisions of the constitutional judiciary by state institutions. Having said that, the content of this research under the title (Execution of the decisions of the constitutional court) discusses the form and authoritativeness of the decisions of the constitutional judiciary, and the execution of these decisions by each of the authorities (legislative, executive, and judicial), and overruling by constitutional court with the rulings of the Iraqi Federal Supreme Court.

Popular Understandings and the Limits of Popular Democracy

ABSTRACT This essay focuses on how more democratic processes and more democratic participation are not in themselves good measures for a successful democratic order. Rather, whether more democratic participation is good depends on the type of knowledge the people actually bring to the political order. Increases in democratic participation are, thus, a misleading measure of democratic success. The crucial point is what sort of knowledge the people bring to democratic discourse. Furthermore, political and civic institutions play a key role in fostering and shaping public understandings. Here, I suggest that American institutions, while designed to help educate popular understandings by requiring the building of complex democratic majorities, have in many instances enabled the worst aspects of popular government, often empowering minority rule, rather than refining popular sentiment. Thus, American political institutions could engage in constitutional reform to recapture the balance between popular understandings and the constitutional institutions that help articulate, educate, and refine those understandings.

The Immunity of the Deputy in the 1998 Constitution of the Republic of Albania

Immunities are generally configured as an exception to the application of the common law provided for the benefit of some subjects due to the function they perform. It should be emphasized that immunity, in general, is a very significant instrument for the protection of the autonomy and independence of constitutional institutions. In this paper, the author will deal only with the immunity of the deputy, postponing to a second moment the treatment of immunity for other constitutional institutions provided by the Constitution of the Republic of Albania. The issue of the MP's immunity has been and continues to be at the center of the political debate at the moment we are writing this. It will continue to be in the center of attention from our politicians until it is not considered as a personal privilege but as an instrument to protect the exercise of functions in the Parliament. First, the author will deal with the notion and origin of immunity in general, then to stop at the immunity of the deputy according to the 1998 constitution and the evolution that has occurred during these years.
 
 Received: 19 February 2024 / Accepted: 15 March 2024 / Published: 23 March 2024

Informal Concentration of Powers in Illiberal Constitutionalism: The Case of Hungary

Classic and new concepts of the separation of powers doctrine focus on the control of central political power. Institutional checks and balances are classic legal instruments of this control, especially the activity of independent state organs. In those countries where the political system is dominated by a populist government, the institutional checks and balances and independent institutions are under constant pressure. In a consolidated political system that has already departed from liberal constitutionalism and where constitutional institutions do function only in a formal sense (illiberal constitutionalism), institutional checks and balances lose their significance. However, in addition to the exercise of powers by independent branches of government, other legal institutions or actions can also have a significant impact on relations between branches of government, even informally. Therefore, the system of checks and balances can be described as a multi-layered structure with formal (classical) and informal elements. The article analyses in detail, how the use of informal constitutional amendments and national referendums—as additional institutions belonging to the complex system of separation of powers—instead of controlling the central political power, has contributed to the informal concentration of government power in Hungary in recent years.

Deconstructing the Sublime Kills Free Speech?

Recently, a Chinese stand-up comedian was reported for allegedly insulting the military in his stand-up comedy,which eventually led to the downfall of his acting career, a police investigation, and left significant implications on theentire stand-up comedy industry. To understand the gravity of the situation, it is necessary to go back to the roots ofChinese history and culture. In China, the military holds significant importance as a constitutional institution, a statusdeeply rooted in the country’s historical context. This importance is reinforced by the contemporary political structureknown as the Party-Government-Military Trinity. Within this framework, the Communist Party’s mass line plays a crucialrole in establishing a strong foundation for the party’s acquisition and legitimacy of political power. Additionally, themilitary’s image serves as a symbol of political authority and national security.

Судебная власть в системе средств защиты прав и свобод человека и гражданина

The article is devoted to the study of a number of problems related to the role of the judiciary in the system of means of protecting the rights and freedoms of man and citizen. The author substantiates the point of view that justice differs favorably from other human rights means by being connected by law and law in the substantive and procedural senses, which guarantees the true dominance of legal forms over extra-legal ones. Even if extrajudicial state authorities or local governments exercise their powers in order to realize the legitimate interests of rights holders, such activities should be based on the concept of preventive justice. Any illegal action or inaction of authorized subjects of the state apparatus is under the protective influence of the constitutional institution of subsequent judicial protection, if the right holder considers it necessary to resort to this form when other means have been exhausted.

Feminist constitutional narratives, the pandemic and hyper-presidentialism in Turkey

Constitutional resilience has been tested by various crises worldwide, and the COVID-19 pandemic constituted another litmus test for global constitutionalism. In Turkey, the pandemic came three years after a constitutional revision introduced hyper-presidentialism in 2017, which undermined the separation of powers and the system of checks and balances. This article looks at the period that begins with the official announcement of the COVID-19 pandemic in March 2020 and ends with the assessment of the general elections of May 2023 to document three years of hyper-presidentialist constitutionalism and the counter-responses to it proposed by the Turkish feminist movement and the constitutional institutions that still remain autonomous from the executive. By combining conventional constitutional methods with the critical feminist positionality approach, this article diagnosed the impact of the pandemic on authoritarian regime-building. Based on feminist constitutionalism, this scholar activist approach shed light on some overlooked aspects of the pandemic in Turkey, such as persistent déconstitutionalisation and its link with anti-gender politics, to reveal the living essence of authoritarian constitutionalism and the evolution of hyper-presidentialism in Turkey.

The parallelism of Serbian constitutional norms on the concept and competences of autonomies

Serbia is a decentralised unitary state comprising two territorial autonomies - the Autonomous Province of Vojvodina and the Autonomous Province of Kosovo and Metohija. The autonomies are constitutional institutions (categories), which means that their status is generally regulated by the Constitution. However, this regulation primarily concerns Vojvodina, whereas Kosovo and Metohija's status will be determined by a special law, which will embody the constitutionally proclaimed 'substantial autonomy'. The Constitution determines the concept and competences of provinces through six articles, leaving the more specific regulation to the law and provincial acts. The paper critically describes this constitutional regulation, with the major remark that some provisions are redundant as they are, unacceptably, simply repeated.

ՊԵՏՈՒԹՅԱՆ ԳԼԽԻ ՍԱՀՄԱՆԱԴՐԱԿԱՆ ՊԱՏԱՍԽԱՆԱՏՎՈՒԹՅԱՆ ՀԻՄՆԱՀԱՐՑԵՐԸ ՍԱՀՄԱՆԱԴՐԱԿԱՆ ԲԱՐԵՓՈԽՈՒՄՆԵՐԻ ՀԱՄԱՏԵՔՍՏՈՒՄ

The work is dedicated to the powers of the President of the Republic of Armenia and issues of constitutional responsibility in the context of the 2015 constitutional amendments. Historical and comparative legal analysis presents the evolution of the constitutional institution of the president in the Republic of Armenia, examines the demands presented to the presidential candidate, the powers of the head of the state and the structures of their implementation according to the Constitution adopted in 1995, then the constitutional amendments of 2005 and 2015. The issues of positive and negative constitutional responsibility of the presidents of RA and other states, the grounds and procedure for the dismissal of the president are also a subject of study. It is noted that it is a primary task for the President of the Republic of Armenia to observe the observance of the Constitution, as this duty derives from the constitutional position of the head of the state. The head of state is the highest official who carries out the highest representation of the state both in domestic and international relations. ensures the continuity of state institutions, acts as the guarantor of the constitutional order, integrity and independence of the state. The analysis of the international constitutional practice proves that the head of the state can occupy a different place in the system of state power. In a number of countries, the institution of the head of state is not provided in any branch of the state power, or it is provided in the legislative and executive powers at the same time, or only in the executive power. In the Republic of Armenia, the institution of the head of the state is under development due to changes in the form of government formed as a result of constitutional changes in the country.

ՏԵՂԱԿԱՆ ԻՆՔՆԱԿԱՌԱՎԱՐՄԱՆ ՄԱՐՄԻՆՆԵՐԻ ՍԱՀՄԱՆԱԴՐԱԿԱՆ ՊԱՏԱՍԽԱՆԱՏՎՈՒԹՅԱՆ ՀԻՄՆԱՀԱՐՑԵՐԸ ՀԱՅԱՍՏԱՆԻ ՀԱՆՐԱՊԵՏՈՒԹՅՈՒՆՈՒՄ / BASIC ISSUES OF CONSTITUTIONAL RESPONSIBILITY OF LOCAL SELFGOVERNMENT BODIES IN THE REPUBLIC OF ARMENIA

The purpose of the article is to present the powers of the local self-governing bodies of the Republic of Armenia and the issues of constitutional responsibility in the context of constitutional amendments. Historical and comparative legal analysis presents the evolution of the constitutional institution of local governments in the Republic of Armenia, examines the powers of local self-government and their implementation structures according to the Constitution adopted in 1995, then the constitutional amendments of 2005 and 2015. The subject of study is also the problems of positive and negative constitutional responsibility of local governments of RA and other states. The experience of more than 30 years of local self-government allows us to come to the conclusion that the system has passed the stage of institutional development, which is expressed by the adoption of a number of international obligations, laws and by-laws regulating the relations of the local selfgovernment sector. During that period, the mechanisms of local self-government bodies were developed and implemented, measures aimed at strengthening their capacities were implemented, legislation was amended, and the process of decentralization was deepened. However, there are still a number of serious problems and gaps in the local self-government system that need to be solved to ensure the sustainable development of the system. The conclusion is that currently the low efficiency of local self-government in RA communities is mainly caused by a number of circumstances. First of all, we believe that processes aimed at raising legal awareness in individual and collective frameworks should be implemented in communities.

Comparison of the Legal Position of Gig Economy Workers in Indonesia, the Netherlands, and the UK

This study aims to determine the position of gig economy workers. The research method used in this study is a normative legal research method, using a statutory approach and being compared with the gig economy worker policies in Indonesia, the Netherlands, and the UK based on the competent constitutional institutions in each country. The results of the research show that the legal status of gig economy workers in Indonesia is still unclear and different from the UK and the Netherlands. In Indonesia, gig economy workers are considered work partners, while in the UK and the Netherlands, they are considered workers. The Indonesian government and policymakers need to make efforts to change the legal status of gig economy workers in Indonesia by developing regulations that are clear and by Indonesian conditions. These regulations can provide legal certainty for gig economy and platform workers, to reduce uncertainty in the protection of gig economy workers. Clear and appropriate regulations can increase the effectiveness of supervision and law enforcement against violations that occur in the gig economy. In addition, clear regulations can also make it easier for parties to prove violations that have occurred and obtain justice more effectively.

Balancing Civil and Political Rights: Constitutional Court Powers in Indonesia and Austria

This study focuses on analyzing the role and challenges faced by the Constitutional Court in upholding political and civil rights in Indonesia and Austria. This research explores various conceptual and comparative aspects of law through normative research methods and delves deeper into how these institutions operate in practice. Analysis shows that the Constitutional Courts in both countries serve as the primary guardians of justice and human rights. However, it must also operate in a complex environment, dealing with social, political, and international challenges. The study found that changes in laws and regulations have significant potential to strengthen the authority and effectiveness of the Constitutional Court. This is reflected in the constitutional evolution in both countries, where legal and regulatory reforms have played an important role in shaping and defining the authority of the Constitutional Court. This study confirms the importance of increasing the capacity and legal knowledge of members of the Constitutional Court, as well as the need for greater understanding and appreciation from the public of this institution's vital role and function. This research contributes to understanding how constitutional institutions can adapt and evolve to meet challenges in enforcing political and civil rights.

감사원의 독립성과 정치적 중립성

Since long time ago, Korean people have taken a skeptical view of the independency and political neutrality of the Board of Audit and Inspection as a constitutional institution because the Presidents in Korea have often repeated to indirectly expel the existing commissioners before the completion of their tenures after the President started his or her term and appoint his or her close aids as the commissioners of the Board.
 Recently, just after the new Administration had recommended the early retirement of the chairpersons of the Anti-Corruption and Civil Rights Commission and Communications Commission before the completion of their tenures, the Board of Audit and Inspection started the inspection of the two Commissions to seemingly oppress the chairpersons. These incidents aroused the public response which demanded the extensive reforms for the Board of Audit and Inspection in Korea.
 For the above reasons, this paper will, at first, examine the provisions concerned with the independency and political neutrality in the Constitution and the Board of Audit and Inspection Act. And then, it will reveal the problems in administering the Board of Audit and Inspection concerned with its independency and political neutrality and compare with the Supreme Audit institutions in U.K., U.S.A., Germany, Japan and France. Finally, this paper will suggest the reform measures to secure the independency and political neutrality of the Board of Audit and Inspection in Korea through the revision of the Constitution.

The Guardian of Constitution: A Comparative Perspective of Indonesia and Cambodia

A democratic state may be indicated by the existence of a constitutional institution that has the competence to uphold constitutionalism and defend the constitution. As the guardian of the constitution, the Constitutional Council of the Kingdom of Cambodia (Constitutional Council) and the Constitutional Court of the Republic of Indonesia (Constitutional Court) have the same purpose, namely to uphold constitutionalism and protect the constitution. However, in terms of structure, procedures, and competencies, the Constitutional Council and the Constitutional Court have individual mechanisms. Institutionally, the two judicial bodies occupy different characteristics, but they share the common goal of safeguarding the constitution’s core values. This paper aims to analyze and scrutinize different features of the Constitutional Council and the Constitutional Court by showing the same purpose as the guardian of the constitution. Within this paper, the legal outcomes which is decisions are discussed, particularly the effect of the decisions. In addition, this paper looks into who can be the applicant or can file a complaint and clarifies the qualifications and resignations of judges. This paper concludes on whether the Constitutional Court and the Constitutional Council have different paths in upholding constitutionalism and protecting the constitution.

Formalization of Prosecutorial Supervision and Atrophy of the Real Human Rights Functions of the Prosecutor’s Office, Including the Fight Against Corruption in Law Enforcement Agencies, in the Kyrgyz Republic as a Result of the Deprivation of the Prosecutor’s Office of the Authority to Investigate Criminal Cases in 2023

The need to leave the authority to investigate malfeasance with the prosecutor's office of the Kyrgyz Republic, the relevance of other legislative initiatives on the reform of law enforcement agencies, as well as the need for laws in the field of counteracting the promotion of non-traditional sexual relations, since propaganda is gaining momentum in the Kyrgyz Republic more and more every day , including the veiled one, especially through social networks, sexual perversions, gender reassignment, pedophilia, propaganda of everything that destroys a person in all respects. Based on the speech of the President of the Kyrgyz Republic in honor of the 30th anniversary of the Constitution of the Kyrgyz Republic on May 5, 2023, the main threats to the Kyrgyz statehood and national security are named. Under such circumstances, today's legislative initiatives to exclude investigative functions from the prosecutor's office in the absence of any need justified by objective indicators and without an objective analysis of the activities of the investigative work of prosecutors are perceived as an attempt to sabotage the constitutional institution, designed to protect the rights and protected by law. interests of citizens, society and the state.