Constitutional Justice Research Articles

Consolidating an integrated rights approach: socio-economic constitutional justice in Africa

Consolidating an integrated rights approach: socio-economic constitutional justice in Africa

Constitutional judicial control as a means of directly ensuring the rights and freedoms of citizens

The article offered to the reader is devoted to the study of the institution of constitutional judicial control as a means of directly ensuring the rights and freedoms of citizens. The authors argue that the institution of specialized judicial control is an integral element in ensuring the balance of the branches of government, providing a system of checks and balances in a democratic state based on the rule of law, especially in the context of a “legal explosion” and active juridification of public relations. The latter necessitates the existence of an effective mechanism of constitutional and control activities for the observance of the rule of law, both the procedure for adopting normative legal acts, and the compliance of their provisions with the content of the Basic Law of the state in order to prevent violations of the rights and freedoms of man and citizen, as the main task of balanced activity of all branches of government. Combining normative control and “advisory” functions in their activities, as well as interpreting constitutional provisions, specialized bodies of constitutional control make decisions that, in fact, become the “standard” of law enforcement and fundamentally affect the legal policy of the state in the field of protecting human rights and freedoms and citizen. Special attention is paid to the empirical analysis of the resolutions of the supreme body of judicial constitutional control of the Russian Federation, as well as a number of foreign bodies of constitutional justice, in the field of protection and restoration of violated constitutional rights of citizens in the framework of the a posterior abstract and specific normative control, as well as a priori normative control, which is a novelty of domestic legislation.

Сравнительно-правовой анализ Конституционных судов Российской Федерации и Республики Казахстан: процессуальный аспект

The authors of this work made an attempt to demonstrate the differences and similarities in the status, composition, structure and powers of the bodies of constitutional justice of the Russian Federation and the Republic of Kazakhstan. Such a comparative legal analysis is in demand by legal science in connection with the significant constitutional reform that took place in Kazakhstan in 2022, as a result of which the Constitutional Court replaced the Constitutional Council. In addition, the Constitutional Laws of the Republic of Kazakhstan "On the Prosecutor's Office" and "On the Commissioner for Human Rights in the Republic of Kazakhstan" were adopted. In 2020, the Basic Law of the Russian Federation also underwent significant changes. We should not forget about the similarity of the paths of development of constitutionalism in Russia and Kazakhstan, which is due to the Soviet past, close proximity and close cooperation in various fields of activity. The result of the study was the conclusion about the proximity of the Russian and Kazakhstani models of constitutional justice. Despite this, there are quite unique norms that are characteristic of the constitutional acts of each country. Attention is drawn to the differences in the status of constitutional justice bodies, as well as differences in their competence. The procedure for the formation of the Constitutional Courts of the Russian Federation and the Republic of Kazakhstan is different, the issues of ensuring their activities are resolved in different ways. Differences are established in the subject composition that enjoys the right to apply to the Constitutional Court of their state. Identified special conditions for filing a complaint with citizens of Russia and Kazakhstan in the national bodies of constitutional justice.

ТРАНСФОРМАЦИЯ РОССИЙСКОГО КОНСТИТУЦИОННОГО ПРАВОСУДИЯ НА СОВРЕМЕННОМ ЭТАПЕ: НЕКОТОРЫЕ РАЗМЫШЛЕНИЯ

The Russian legal system, including the justice system, has been operating under the conditions of the updated Constitution for almost three years now. The significant changes made to it have become a significant event in the life of our state, which we and our descendants have yet to appreciate. The constitutional changes have affected many areas of the country's public life, have had and continue to have a significant impact on the process of lawmaking and law enforcement practice. Under these conditions, it is quite obvious that neither the legislator nor the law enforcer is immune from mistakes, which are often revealed in the course of the administration of justice by the courts. However, in those cases where errors are not corrected by the usual forms of legal proceedings, the system of constitutional justice comes first, which puts an end to the issues of protecting the foundations of the constitutional system, fundamental rights and freedoms of man and citizen, ensuring the rule and direct effect of the Constitution throughout the territory of the Russian Federation. Federation. Such a high role of constitutional justice allows the authors of this study to once again turn to the main stages in the formation of the constitutional justice system, to identify the "pros and cons" of the impact of the text of the "updated" Constitution of the Russian Federation on the institutions of constitutional justice, primarily in the subjects of the Russian Federation.

Carl Schmitt's “Tyranny of Values” in the Context of the Debate on the Nature of Constitutional Rights

Discussions about the nature of constitutional rights set out in the Constitution emerged in post-war Germany in the late 1950s and early 1960s, triggered by the judgement of the German Federal Constitutional Court in the so-called “Lüth case”. In this judgement, for the first time, the Court clearly articulated the position that fundamental rights are an objective value system that extends its legal force to all branches of law, including civil law. One of the fiercest critics of the Court decision was Ernst Forsthoff, a disciple of Carl Schmitt. In a series of articles, he attacked the “value” legal interpretation, pointing out that it leads not only to the destruction of the legal method and the loss of jurisprudence autonomy, but also to changes in the institutional structure of the state. E. Forsthoff’s criticism was predominantly juridical, focusing on the actual law enforcement, as well as on the theoretical-legal origins of value interpretation which he found in R. Smend’s “integration theory”. In contrast, C. Schmitt, in Tyranny of Values, practically omitted legal arguments and attacked the philosophical basis of the German Court’s position. Relying on M. Weber, the German legal scholar attempted to demonstrate that the adoption of value interpretation by constitutional justice means the direct application of values, which destroys the rule of law. Despite the different trends of criticism, the conclusions reached by E. Forsthoff and C. Schmitt show a significant similarity in that both call for the autonomy of legal science and a return to the formal legal state.

The Role of Constitutional Justice in Preserving the Rule of Law in Albania

The Role of Constitutional Justice in Preserving the Rule of Law in Albania

The “Solar Plexus” of Russian Law (on the Evolution of Judicial and Normative Constitutionalization of Russian Law)

The article analyzes the potential of constitutional provisions from the standpoint of the philosophy of public law, theory and practice of constitutionalism, reveals the mechanism and levels of constitutionalization of legislative norms, and traces the law-forming role of the Russian Constitution for the entire legal system. The law is considered as a dynamic system, the parameters of which can change under the influence of the ideology of modernity and postmodernity, challenges and global threats. The connection of law with current social processes is obvious and its understanding helps to realize the creative power of law in the transformation of social relations. This confirms not only the dogmatic, but also the important practice-oriented dimension of constitutionalism. Constitutional justice ensures the coherence and harmonization of the ideas of natural law with the requirements of the certainty of the norms of law that have a branch affiliation. Global changes in the world required the modernization of the provisions of the country's Basic Law as a guiding vector for the development of the entire system of Russian legislation. In fact, this direction was a new legal effect of constitutionalization. In the year of the 30th anniversary of the Constitution of the Russian Federation, it is important to discuss not only the one-level links of constitutional norms and sectoral legislation, but also to consider the images of the future phenomenon of constitutionalization.

The powers of constitutional (statutory) councils of subjects of the Russian Federation as bodies of legal protection of the Basic Law

Constitutional (statutory) council is a new state body of federal subjects of Russia. The council is designed to replace the regional body of constitutional justice, abolished since 2023. At the same time, status of this new body is not detailed in the federal legislation, therefore, it gives rise to conflicting approaches in legal science. It is not clear whether the constitutional (statutory) council should (can) be a constitutional control body. Or it should be a supervisory body. It is not clear what set of powers the constitutional (statutory) council should have. The work uses historical and comparatively legal research methods. The authors study the experience of constitutional councils in republics of Yakutia, Bashkiria and Adygea. The conclusion is made about the main purpose of constitutional (statutory) councils: to ensure the supremacy and direct action of the Basic Law of the constituent entity of the Russian Federation and to exercise its legal protection. This implies the presence of powers: for normative control; on the interpretation of the constitution (charter) of the constituent entity of the Russian Federation; to resolve disputes between the highest authorities of the constituent entity of the Russian Federation. At the same time, an analysis of the laws on constitutional councils of subjects of the Russian Federation shows that they have the authority to exercise normative control in relation to all normative acts of a subject of the Russian Federation and local governments. However, they cannot deprive them of their legal force, since their decisions are advisory in nature. The right to interpret the Basic Law is granted to constitutional councils only in Yakutia and Bashkiria. The results of the interpretation are also advisory in nature, so the interpretation cannot be called an official interpretation (especially since the Constitutional Council of Bashkiria is preparing only a draft of such an interpretation). There is no power to resolve disputes in the laws on the status of constitutional councils in Yakutia, Bashkiria and Adygea. The conclusion is made about the ineffectiveness of the means of legal protection of the Basic Law available in the constituent entities of the Russian Federation. Mechanisms are proposed that will ensure the effectiveness of decisions of constitutional (statutory) councils. The right of constitutional councils to give an official normative interpretation of the Basic Law of a constituent entity of the Russian Federation is substantiated.

The balance between constitutional values, rights and legitimate interests as a criterion of constitutionality of restrictions on the freedom of labour

The freedom of labour, as a principle which guarantees the right of the citizens to choose their occupation and profession, is fundamental for establishing legal regulation of social relationship in the relevant area. The legislator is obliged to ensure genuine and effective realization of this freedom for citizens, based on equality and prevention of discrimination. At the same time, the freedom of labour is not absolute, since in some spheres it comes across rights and legitimate interests of other individuals as well as public interests, and it inevitably leads to rivalry between rights and freedoms of various parties as well as values protected by the constitution. The mechanism for legal regulation of the relationship emerging while realizing the freedom of labour, which constitutes a combination, inter alia, of law-making and law enforcement, is intended to ensure that rights and legitimate interests of all the participants in this relationship are taken into account. The guidance for efficient accommodation of rights and legitimate interests of parties (private as well as public ones) in the sphere of labour is given by the Constitution of the Russian Federation which envisages a possibility for restricting constitutional rights and freedoms in general as well as criteria for such restrictions. The federal lawmaker is to strive for such accommodation, and the mechanism of constitutional justice is intended to promote this approach. Therefore, legal regulation of the relationship in this area should respect the balance between constitutional values, rights and legitimate interests, private as well as public ones, and it should be acknowledged as a separate constitutional value which is intended to be a criterion for constitutionality of restrictions on the freedom of labour.

Problems of implementation of decisions of the Constitutional Court of Ukraine

One of the urgent problems of the practice of the Constitutional Court of Ukraine is the implementation of its acts, the non-solution of which calls into question not only its guarantee of the supremacy of the Constitution of Ukraine as the Basic Law of the state throughout Ukraine, but also the authority of the Constitutional Court of Ukraine as a body of constitutional jurisdiction. The fulfillment by the Constitutional Court of Ukraine of the tasks assigned to it is achieved not so much by adopting the relevant acts as by their implementation and implementation. Without the implementation of decisions and conclusions of the Constitutional Court of Ukraine, all its previous activities regarding the consideration and resolution of relevant cases are nullified, it simply loses its meaning.
 As you know, the acts of the Constitutional Court of Ukraine are self-sufficient, that is, those that are mandatory, final, have a direct effect and do not require confirmation or duplication by any public authorities to enter into force. The obligation to enforce the decision of the Constitutional Court of Ukraine is a requirement of the Constitution of Ukraine, which has the highest legal force in relation to all other normative legal acts. In accordance with Art. 69 of the Law "On the Constitutional Court of Ukraine", decisions and conclusions of the Constitutional Court of Ukraine are equally binding.
 The problem is that the current legislation does not define the principles and mechanisms for the execution of decisions and conclusions of the Constitutional Court of Ukraine. As a result, a significant part of such acts do not find their practical implementation.
 It seems that the problems of implementing the prosecution, as well as the implementation of the decision itself, are associated with the lack of a clear control mechanism that would allow to identify the fact of non-compliance with the decision of the Constitutional Court of Ukraine, the result of which could be prosecution.
 Also, in the situation of Russian military aggression that has developed today in Ukraine, an important means of ensuring the implementation of acts of the Constitutional Court of Ukraine is to maintain the high authority of the body of constitutional justice, to increase the level of legal awareness and legal culture of citizens, and especially to persons authorized to exercise state power. Important conditions for the effectiveness of the Constitutional Court, including the implementation of its acts, are the establishment in Ukraine of the foundations of a legal, democratic state, as well as ensuring political and socio-economic stability in the country.

Prospects of Transformation of the Institution of Constitutional Justice in the Course of Armed Conflicts

The objective of the article was to consider the current state and prospects of the transformation of the institution of constitutional justice in the course of armed conflicts. Observational and comparative methods were the main methodological tools. The research showed that constitutional courts must apply a specific method of judicial constitutional control during armed conflicts. Most of the complaints and appeals of the population to the constitutional courts seek clarifications on the constitutionality of the rules on social guarantees of the military, the rights of refugees. Constitutional interpretation of legislative provisions of the Republic of Azerbaijan, consideration of complaints of constitutional courts of Germany and Ukraine are examples of countries' reactions to armed conflicts. The conclusions confirm the need to transform the institution of constitutional justice, which becomes the main defender of the constitutional system and its principles during armed conflicts. In this vein, it is urged to increase the rate of scientific capital in the judiciary to improve the process of reform of the Constitutional Court in these difficult conditions experienced by Ukraine.

Supreme Court's Ultra Vires Rulings Represent a Paradigm Shift in The Judicial Review Conducted by Constitutional Judges

This study focuses on discussing the legal ratio of ultra vires rulings by constitutional judges as a manifestation of judicial activism. The ultra vires ruling has created a dialectic between preventing rechtvacum to uphold constitutional justice and the threat of judicial autocracy because the Constitutional Court exceeds its authority as a negative law. The purpose of this study is to comprehensively describe the dialectics of affirming ultra vires decisions by the Constitutional Court in accordance with human rights based on constitutional justice, as well as to analyze the application of the ultra vires doctrine to the actions of the Directors in hiring workers/labourers with work agreements for a certain time. The research method used is normative legal research with a legal approach and a contextual approach. The results of this study indicate that ultra vires decisions by constitutional judges are an unavoidable legal necessity. This is because normatively, sociologically, and in principle they are not contradictory. Therefore, ultra vires needs to be done with methods and sources to find the right law/constitutional to prevent rechtvacuum and overlapping judges in dealing with problems that are constantly changing without destroying checks and balances and creating a mini-parliament

The Right of Individuals to Access Constitutional Justice and Its Role in Protecting Rights and Liberties in Morocco

This study aims to highlight the gains in the right of individuals in Morocco to access constitutional justice by pleading the unconstitutionality of a specific statute. It looks at the regulation of this right and the conditions for the acceptance of such claims in comparison with other constitutional judicial systems, specifically the French constitutional judiciary, as well as the extent to which this mechanism helps to safeguard and protect rights and liberties. I use a comparative approach to identify similarities and differences between the Moroccan constitutional judiciary and its French counterpart, as well as to draw in the Egyptian constitutional judiciary whenever possible. The study adopts a legal approach to analyse constitutional and legal texts, and court rulings relevant to claims of unconstitutionality, examining the procedures and conditions for making such claims and their limits. The study finds that there are some difficulties that may hinder individuals in their attempt to access constitutional justice, such as frivolous lawsuits aimed only at prolonging litigation, especially given the potential for the proliferation of claims. The study demonstrates that individuals’ access to constitutional justice is linked to their recognition of the need to make proper use of the unconstitutionality argument, in order to avoid flooding the court with frivolous suits.

Комитет конституционного надзора СССР в государственно-правовой истории России: опыт правового регулирования организации и деятельности

The article deals with the formation and development of the institution of constitutional justice in Russia. An analysis of the organization and activities of the Committee for Constitutional Control of the USSR, the Constitutional Court of the RSFSR and the Constitutional Court of the Russian Federation is carried out.
 The purpose of the work is to study the historical and legal problems of the origin in the USSR and the subsequent development of constitutional supervisory and control bodies. 
 When organizing the study, methods were used: comparative legal (comparative), historical and legal, analytical, formal legal, method of abstraction, which allowed to formulate the main conclusions.
 The author proves that the constitutional and normative model of organizing extrajudicial constitutional supervision in the USSR of the 1989 model is hardly applicable to modern Russia, if we mean the federal level of public authority. The current Constitutional Court of the Russian Federation favorably differs from its institutional predecessor in its judicial status and competence, which covers a very limited partof constitutional control activities, which is methodologically correct and very promising. At the same time, the historical and legal experience of organizing the USSR Constitutional Supervision Committee is relevant and arouses modern interest due to a number of important circumstances. This concerns the use of the institution of preliminary normative control and the problems of organizing extrajudicial bodies of constitutional or statutory control in the constituent entities of the Russian Federation.

Constitutional justice as an element of the law protection function of the EU States

Traditionally, the main function of the body of constitutional jurisdiction is the function of constitutional control, but the human rights function, although not a classic one, is equally important.
 The human rights protection function of the body of constitutional jurisdiction in practice is expressed in ensuring the possibility of turning to such a body of a natural or legal person whose rights have been violated, as is usually the case in the case of using all possible means of protection.
 In this article, the experience of applying the human rights function by the bodies of constitutional jurisdiction is considered on the example of the activities of the constitutional courts of the countries of Central Europe and at the same time of the countries of the European Union - Poland, Hungary, Slovakia and the Czech Republic. This experience is valuable for Ukraine, since the constitutional crisis recently affected the Constitutional Court of Ukraine, as well as in view of the active European integration processes in Ukraine and the need for its post-war reconstruction, which is not possible without the coordinated functioning of all state authorities.
 The article examines the experience of reforming the body of constitutional jurisdiction, the legislator's view on the powers of such a body, and vivid examples from human rights practice. A conclusion was made about the formation of transnational constitutionalism by such states, similar to the principles of the European Union, the application of unified, developed principles of proportionality when assessing the balance in the conflict of two or more fundamental human rights.

Fundamental Law, Fundamental Rights, and Constitutional Time

This Article lays the groundwork for a novel theory giving citizens pride of place in constitutional interpretation—as voters and jurors, deliberators and disobedients, and more. My account adopts different answers to two basic questions that divide it from other prevailing theories: first, that citizens, rather than judges, shoulder primary responsibility for interpreting principles of fundamental law; and second, that fidelity to their Constitution requires, above all, keeping faith with their fellow citizens across constitutional time. This approach conceives of the Citizens’ Constitution as an enduring social contract. In setting the stage for this account, I advance several related claims that carry independent weight as theoretical contributions. First, the Citizens’ Constitution as Fundamental Law is a distinct and vitally important domain of constitutional principles, which are accessible and justifiable to citizens’ common reason, and which ground their pervasive disagreements. Second, propositions of fundamental law can be understood in another register—as propositions about constitutional time, relating the constitutional present to its past and future. Third, these propositions about constitutional time are moral arguments of a certain kind: arguments about constitutional justice, about what we share as citizens andparticipants in an enduring enterprise and what makes the Constitution worthy of our allegiance. Finally, together these claims point the way to a recognitional account of fundamental rights that deepens their connection to constitutional justice, even as it generates a measure of commonality across pitched value disagreements.

Models of constitutional adjudication in the Baltic States

AbstractThis article examines the particularities of constitutional control models in Latvia, Lithuania, and Estonia. On the thirtieth anniversary of regaining independence in 2020 for Latvia and Lithuania and in 2021 for Estonia, it is an opportune moment to consider the path taken by constitutional review institutions in each of the three Baltic States. Accordingly, the authors explore the establishment of the particular constitutional review model in each country and discuss the main features of constitutional adjudication: the status and the composition of the constitutional review bodies, the subjects entitled to file a petition, the main elements of their jurisdiction, and the legal effects of the constitutional judgements. The paper also looks briefly at the possible perspectives. The choice of a constitutional control model in Lithuania, Latvia, and Estonia results in differences in the place of a constitutional control institution in the judicial system, its special competence (other than constitutionality control of legal acts), and composition. However, regardless of which model of constitutional control was implemented, during the transitional period to a more democratic political regime, it has been vital to guarantee the fulfilment of the objectives of the constitutional control bodies without fear of legal or political obstacles and interference. These constitutional justice institutions in the respective country have step by step developed into authoritative bodies that have no peer, are irreplaceable, and are appreciated by state power institutions and the society.

The legal nature of evidence in the international doctrine of constitutional law

The article is devoted to relevant, but understudied issues related to the formation of the evidence base in the doctrine of constitutional law. Legitimation of the constitutional process by evidence can be successful regardless of the goal preferred by the subjects of the constitution. If constitutional design prioritizes the goal of substantive legitimacy, it legitimizes the broad powers of the constitutional judge through the need to maximize the evidence gathered. If, on the contrary, the constitutional design gives priority to the goal of procedural legitimacy, it legitimizes the function of the constitutional judge through the development of a fair procedure of proof. In this way, the outcome of the trial can more easily gain the approval of the community and strengthen confidence in the functioning of constitutional justice. The fundamental right to evidence is constitutionally protected to the extent that it is implicit in the right to due process. The author pays special attention to the definition of the content of the concept of proof in the constitutional judicial process based on the analysis of the norms of international constitutional law, which are characterized by the presence of a set of certain methods of cognition, that is, scientifically determined and practically tested rational methods or a system of methods of obtaining the necessary amount of knowledge for making an objective and well-founded decision. Evidence in a judicial constitutional process should be understood as a certain process of learning by the subjects of this process — judges and the apparatus of constitutional jurisdiction as a whole, which is implemented as the collection, verification and evaluation of evidence. In this extremely complex intellectual process, proof plays an important role as a logical action during which the truth of an opinion or position is substantiated and established.
 As a result of working on this topic, the author investigated and highlighted two discourses on procedural legitimation. In the first case, legitimization is the result of a test procedure check that takes place before an ordinary judge. In the second case, legitimation is the result of the absence of a complex procedure of proof before a constitutional judge.

RULE OF LAW AND PARLIAMENTARISM: CORRELATION THROUGH THE PRISM OF CONSTITUTIONAL LEGAL THEORY

The article deals with modern problems of perception and implementation of the basic principle of therule of law through correlation with the constitutional and legal concept of parliamentarism, proposed as alever to improve the efficiency of lawmaking procedures and the formation of an internally stable and fairstate mechanism. Attention is drawn to the practical difficulties of comparing the terms under consideration,associated with different national perceptions of the concept of the rule of law; with the debatable definitionof the justice of the law; with the presence of an often subtle difference between the legal force of a law anda by-law; with the intrusion of the judiciary and executive power into the prerogatives of the legislator; withthe processes of globalization, putting supranational bodies above parliaments; with chaos, inconsistency,irrationality and a significant amount of legal norms, as well as a variety of areas of legal regulation in themodern state. At the same time, the article notes positive trends in the convergence of legal structures ofthe rule of law and parliamentarism, associated with the emergence of legal levers to ensure the reality ofthe rule of law (law), including constitutional justice, supranational bodies; awareness of the inextricablerelationship between the rule of law and the implementation of human rights, the separation of powers,the accessibility and fairness of the court, the responsibility of the authorities; posing the question of theeffectiveness of legislation.

Introduction Theory and Practice Court Procedural Law Constitution

Laws that develop in society sued the Court for follow development law these, including procedural law. Development procedural law of the Constitutional Court in practice need ijtihad from the Constitutional Court in skeleton find law new to use enforce supremacy constitution, democracy, justice and rights constitutional inhabitant country. Writing this use method approach juridical normative: that is the approach used for study or analyze secondary data in the form of materials primary law and materials law secondary Terms general procedural law arrange about provisions that are general, i.e provision about trial, conditions application, and regarding verdict. Provision in Thing trial in the Constitutional Court, for example, the Court examines, hears, and cut off in hearing plenary attended by all judges consisting of over 9 (nine) people, only in " outside " state normal”, then hearing plenary the attended at least 7 (seven) Constitutional Justices. State outside normal that meant is die world or disturbed physical / soul so that no capable doing the obligation as Judge. Conclusion from article this is The Constitutional Court's procedural law is intended as applicable procedural law by general in things that become the authority of the Constitutional Court as well as applicable procedural law by special for every authority meant. The existence of the Court with the authority possessed bring up needs existence law new, that is procedural law, and develop it in skeleton enforce law in Indonesia.