Supremacy Of Constitution Research Articles

Unshackling from Shadows of the Anisminic Orthodoxy: Reconceptualising Approaches to Ouster Clauses in Hong Kong

Abstract Ouster clauses have perennially borne the mantle of a ‘litigation minefield’, where clashes between legislative and judicial powers unfold in open fora. Recent jurisprudential advancements in the United Kingdom and Singapore demonstrate how judicial approaches to ouster clauses can evolve in the face of constitutional developments. Hong Kong has, however, remained muted while these jurisprudential advancements bear fruit in other parts of the common law world, notwithstanding the fact that its constitutional framework, umpired by the Basic Law, has been in existence for over twenty-five years. This article argues for the need to reconceptualise approaches to ouster clauses in Hong Kong, grounded firmly in its post-1997 constitutional framework. Drawing on comparative jurisprudence, it presents a spectrum of approaches, animated by the dynamic interplay between various ‘macrocontextual’ and ‘microcontextual’ factors, ranging from a localised version of Anisminic, remedial interpretation, and invalidation of ouster clauses on the grounds that they impermissibly affront the constitutional right of access to courts, allocation of judicial power, and constitutional supremacy.

Peran Mahkamah Konstitusi dalam Penegakan Hukum dan Mempertahankan Keseimbangan Kekuasaan dalam Sistem Pemerintahan Indonesia

This research aims to evaluate the role of the Constitutional Court (MK) in maintaining constitutional supremacy, democracy and balance of power in the Indonesian constitutional system. This research uses a qualitative approach with descriptive methods. Data was collected from primary sources in the form of statutory regulations, such as the 1945 Constitution of the Republic of Indonesia and Law Number 24 of 2003 concerning the Constitutional Court, as well as secondary sources in the form of books, legal journals and legal scientific articles. The research results show that the Constitutional Court has an important role in maintaining legal stability, maintaining the balance of power between state institutions, and upholding democratic principles and constitutional supremacy in Indonesia. Through its authority to carry out judicial reviews of laws and government policies, the Constitutional Court functions as the front guard in enforcing the law and maintaining the balance of power between the executive, legislative and judiciary. However, the role of the Constitutional Court often sparks debate regarding the limits of judicial intervention in public policy, showing the complexity in maintaining the balance of power. Therefore, this research contributes to understanding the role and challenges faced by the Constitutional Court in the context of the Indonesian constitutional system.

The Role and Benefits of People's Requirements (MPRS) in The Indonesian State System after The 1945 Amendment: Optimization and Challenges

The study seeks to examine the role and jurisdiction of the People's Assembly of Permusyavaratan (MPR) within the Indonesian statehood system after the modification of UUD 1945. It also intends to identify the efforts made to optimize its functioning and the problems encountered. Normative legal research methods are employed to specifically analyze primary, secondary, and tertiary legal material. The primary legal materials consist of the 1945 Basic Act and its subsequent changes, along with the relevant statutes that regulate the MPR. Secondary legal resources encompass pertinent literature, periodicals, and scientific publications. The research findings indicate that the modifications made to the 1945 UUD have limited the jurisdiction of the MPR, which currently possesses only one primary authority while the others are considered secondary. Constitutional Supremacy establishes the Constitution as the primary framework for governing the state, with the MPR being seen as an autonomous institution alongside the DPR and DPD. While the powers of the MP are restricted, responsibilities like the Socialization of the Four Pillars continue to be essential in maintaining the fundamental foundations of the state. The enhancement of the MPR's authority relies significantly on the agreement among parliament members as stated in the MD3 Act. The primary obstacle it faces is to ensure the MPR remains relevant and effective in a constantly changing statehood environment. The paper suggests implementing strategic initiatives to enhance the role of MPR in the Indonesian statehood system by implementing policy reforms and improving institutional capability.

Constitution Supremacy and the Reasonable Limits of Case Law Reversal within the Framework of Constitutionality Control

Undoubtedly, constitutional supremacy can lead to spacious social peace in a constitutional democracy. The fact that the other laws in the normative hierarchy are valid and conform to the fundamental act leads to juridical security for the subjects of law. Sometimes, to guarantee the supremacy of the constitution, a constitutionality review is established through a constitutional litigation court, at other times, this review is left to ordinary courts, thus guaranteeing constitutional supremacy in both ways. Contrary to the purpose of guaranteeing constitutional supremacy, constitutional courts can disconnect themselves from what they protect – the constitution, and through undesirable case law reversals, the content of constitutional norms can be disregarded. In this context, it is necessary that some reasonable limits be brought into discussion.

Article: In Search Of Constitutional Supremacy In Malta

Article: In Search Of Constitutional Supremacy In Malta

Developments in Comparative Public Law in South Africa

In South Africa, the study and practice of law involve comparing different legal systems due to the complex historical blend of Roman-Dutch, English, indigenous, and religious laws. Constitutional supremacy since 1994 has amplified the importance of comparative legal method. The 1996 Constitution itself drew from various legal systems, endorsing the use of foreign law in interpreting rights. Comparative legal method is vital across all legal domains, and has greatly grown in relevance in constitutional and administrative law following constitutionalisation. This contribution explores the use of comparative legal method in South African constitutional and administrative law. It uses Herwig Hofmann’s three categories of comparative frameworks, namely “law as category”, “law as source” and “law as variable”, to consider the continuity and discontinuity between historical reliance on comparative method in South Africa and comparative legislative and judicial practices under the Constitution in the areas of constitutional and administrative law.

What do we mean by constitutional supremacy?

This paper offers a comment on Paolo Sandro’s “The making of constitutional democracy”. It discusses Sandro’s choice of defining modern constitutionalism as legal otherness from two perspectives. First, Sandro’s methodological option for discussing constitutional theory is addressed by looking at legal traditions, clarifying the extent to which comparative constitutional law can help the development of studies in legal theory. Second, it addresses the accounts of constitutionalism that Sandro introduces in his work to set the scene for the discussion of the conditions for the existence and endurance of constitutional democracy.

Manifestation of Direct Application of Constitutional Norms in the Field of Law Enforcement

The article refers to the application of constitutional norms by the courts and the interpretation given in the practice of the Constitutionl Court. In particular, the right of a person to seek judicial linitgation to protect his/her constitutional rights, the jurisdiction of the courts to apply the Constitution, the relantionship between the principle of supremacy of Constitution and the concept of implementantion of Constitution, the duty of ordinary courts to appeal to the Constitutional court and simultaneously justify unconstitutionality of a legislative norm, have become the subject of discussion. The article proposes an effective application of the constitutional nroms, introduction of flexible and applicable mechanisms for constitutional justice.

Reformulation of Absolute Judicial Review Authority in the Constitutional Court to Uphold the Principle of Constitutional Supremacy

The Constitutional Court and the Supreme Court's dual-roof judicial review authority has generated new legal complications. The decisions between the Supreme Court and the Constitutional Court often conflict, giving rise to legal uncertainty for justice seekers. Even though judicial review has an important role as an effort to protect the constitutional rights of citizens who are disadvantaged over the existence of norms of legislation established by the government. Through the judicial review mechanism, there is a mechanism to rectify the norms of laws and regulations to comply with the basic legal norms, namely the Constitution. However, the practice of judicial review so far in Indonesia seems ineffective because of the two-roof design at the Supreme Court and the Court. Therefore, reforming judicial review under one roof of the Constitutional Court is an alternative idea to find ways to solve existing problems. This article attempts to provide insight into the model of judicial review in Indonesia and the reformulation of judicial review authority under one roof of the Supreme Court of Justice to uphold the principle of constitutional supremacy. The study employed normative legal research methods. This study offers a reformulation of judicial review authority under one roof of the Constitutional Court. The results of this study reveal that the authority of judicial review under the two roofs of the Supreme Court and the Court has given rise to legal problems, such as conflicting decisions, which result in legal uncertainty. Ultimately, this article provides an alternative idea, namely the reformulation of judicial review authority under one roof of the Constitutional Court to create legal certainty and uphold the principle of constitutional supremacy.

Colonialist intervention in a metropolitan revolution: reconsidering A remonstrance of divers remarkeable passages

AbstractThis article presents findings from a fresh examination of a familiar source, shedding new light on the creation of one of the best-known contemporary accounts of the 1641 Irish uprising. It is argued that a text usually regarded as the work of Henry Jones, dean of Kilmore, ought to be understood as the intellectual property of both a team of authors and their sponsors, a New English faction at Dublin Castle with long-standing ambitions to crush popery and entrench planter hegemony in Ireland. It is argued that this group's objective was to strengthen the hand of the populist ‘junto’ at Westminster, led by John Pym, that was wrestling with Charles I for political and constitutional supremacy in English affairs in the winter and spring of 1641–2. The colonialists contributed to this metropolitan revolution by rendering safe to handle the Irish rebels’ politically-explosive seditious slander that their uprising had been raised by royal command. The notorious falsehood of the rebels’ claims has obscured the demonstrably underhand and fundamentally deceitful calculation with which the colonialists helped introduce it into mainstream English political culture, in order to isolate the king further and weaken his personal authority on both sides of the Irish Sea.

Implementasi Tugas Dan Fungsi Komisi Pemberantasan Korupsi Sebagai Independent Agencies Dalam Sistem Ketatanegaraan Di Indonesia

The 1945 Constitution of the Republic of Indonesia (1945 Constitution of the Republic of Indonesia) confirms that Indonesia is a constitutional state. Therefore, the administration of the state in Indonesia must uphold the values of Pancasila and the 1945 Constitution of the Republic of Indonesia, and guarantee that all citizens, together with their position before law and government, in carrying out constitutional affairs. From the perspective of this rule of law, it is the law that holds the highest command in the administration of the state. Thus, in fact the leader in administering the state is the law itself, in which there is an understanding of the recognition of the principle of legal and constitutional supremacy, adherence to the principle of limitation and separation of powers according to the constitutional system regulated in the Constitution. There are three classical functions of power in legal and political theory, namely the legislative, executive and judicial functions or called the trias politica. Problems Based on the background of the problems described above, the problems that are examined and discussed are as follows how the implementation of the duties and functions of the Corruption Eradication Commission as independent agencies in the Indonesian constitutional system and what are the obstacles to implementing the duties and functions of the Corruption Eradication Commission as independent agencies. Type of Research This research is normative juridical research or also called doctrinal research. In this type of research, law is conceptualized as what is written in laws and regulations (law in book) or law is conceptualized as rules or norms which are standards for human behavior that are considered appropriate.

The Increasing Need for Cultural Experts in New Zealand Courts

New Zealand’s unique demography, with a large indigenous Māori population and a national population which is also increasingly superdiverse, means that New Zealand courts need more assistance from cultural experts if “the common law [is to] serve all in society”, as our Chief Justice recently said in the Supreme Court (Peter Hugh McGregor Ellis v R (Ellis) 2022: para 174). This paper examines two recent Supreme Court decisions: Ellis and Deng v Zheng (2022), which explain the increasing need for cultural experts in New Zealand courts to determine what tikanga (Māori customs and practices) as the first law of New Zealand is and how it applies, as well as to ensure equal access to justice despite cultural and linguistic diversity. The greatest need for cultural experts arises from the majority of the Supreme Court’s acceptance that tikanga was the first law of Aotearoa/New Zealand. There has been ad hoc (albeit growing) incorporation of tikanga and Te Tiriti o Waitangi (Te Tiriti) in various statutes, and no entrenchment in a supreme constitution, but even without statutory incorporation, the courts have interpreted statutes to take account of tikanga values and interests and to be consistent with Te Tiriti to the extent possible. Lawyers and judges need to acquire a base level of tikanga knowledge and cultural competency to be able to identify when a deeper level of tikanga/cultural expertise is needed, and cultural experts need to be called on to provide evidence to assist the Court.
 This is important (not only to ensure that justice is done in particular cases) but to maintain broader constitutional legitimacy. This includes acknowledging significant cultural differences in the application and development of the common law, in relevant cases. Pluralism is an important value which may be relevant to filling the gaps in the common law created by new situations that indigenous and superdiverse cultures and languages give rise to (Chen, forthcoming 2024; see also Palmer & Ling 2023).
 Keywords: tikanga; New Zealand; cultural experts; evidence; statutory interpretation; development of the common law.

Strength of Constitutional Court Decisions in Judicial Review of the 1945 Constitution in Indonesia

This research discusses the strength of the Constitutional Court's decision regarding judicial review in Indonesia. The Constitutional Court is an institution of judicial power tasked with exercising the authority of judicial review born from the 3rd Amendment to the 1945 Constitution. In this study, the philosophical and normative foundations that form the basis for the strength of the Constitutional Court's decision to conduct judicial review will be discussed. The method used is normative juridical, using secondary materials such as laws, decisions of the Constitutional Court, and related legal literature. This study's results confirm that the Constitutional Court's decision to conduct a judicial review has a powerful dimension of power. This power can be viewed from several angles, both philosophical and normative. In the philosophical aspect, the strength of the Constitutional Court's decision lies in the principles of popular sovereignty and constitutional supremacy. While in the normative aspect, the strength of the Constitutional Court's decision is based on the provisions of laws and regulations governing the authority and procedures of the Constitutional Court in conducting judicial reviews.

Conceptual Framework of Judicial Review with Reference to Nepal

The power of the Judicial Review is considered as the touchstone to test constitutionality of the state action including legislation. It brings life and dynamism to the constitutional system. It brings about constitutional clarity and fulfills any gaps that may arise in the constitution. Judicial review controls the arbitrariness of government and protects civil liberties by maintaining the rule of law. The judicial review is exercised to make state organs and bodies as well as government and public officials disciplined and accountable. It is the foundation of constitutional government. The scope of judicial review can be categorized as judicial review of legislation, judicial review of executive action, and judicial review of judicial action. There are several grounds the judiciary can exercise its power. Compliance with the constitution and protection of civilian rights are the fundamental basis of judicial review. The grounds upon which state organs are subject to control by the judicial review have been classified as illegality, irrationality, and procedural impropriety. Its concern is whether a decision-making authority has exceeded its power, committed an error of law, committed a breach of rules of natural justice, and reached a decision without reasonable ground or by abusing its power. The concept of judicial review is not away from criticism. It is often said that judicial review is intolerably uncertain and amounts to little more than a license for judges to interfere arbitrarily with the machinery of government and administration. The power of judicial review has been criticized for being against democratic legitimacy. The question arises that is justifiable for the court to question the validity of the actions of the elected members of the parliament. This question makes the concept of judicial review as the most controversial feature of the Constitution. But this right is not an authority to make the court higher and more powerful than other organs, but it is a means to establish constitutional supremacy and rule of law.

History and systems of control of constitutionality: international experience

This article examines the historical evolution of constitutionality control, its concept and its various systems. In the study of modern constitutionalism, the topic of constitutional control, especially from the side of constitutional jurisdiction exercised by constitutional courts, is gaining more and more strength. The control of constitutionality is the supervision of the compatibility of regulatory acts with the constitutional text. From supremacy and constitutional centrality, any laws, to remain valid in the national legal system, must maintain respect, formal and substantive, for the constitutional text. It is at this moment that constitutionality control, which is carried out diffusely by various bodies of judicial power, comes into play. The idea of constitutional review is related to the supremacy of the Constitution over the entire legal system, as well as constitutional rigor and protection of fundamental rights.
 The existence of normative escalation is a necessary prerequisite for constitutional supremacy, since, occupying the constitution of the hierarchy of the normative system, it is in it that the legislator will find the form of legislative development and its content. Moreover, in countries that have a strict Constitution, that is, those that provide for their own amendment a more serious legislative procedure than is provided for by ordinary laws, a kind of regulatory pyramid is established, at the top of which is the Constitution.
 Therefore, the control of constitutionality is a guarantee of the supremacy of basic rights and guarantees provided by the Constitution, which, in addition to setting the boundaries of state power, is also part of the legitimacy of the state itself, defining its duties and enabling the democratic process under the rule of law. Control of constitutionality means checking the perfect adequacy of the law or normative act of the Constitution, checking its formal and material requirements. This is always a comparative examination between a legislative or regulatory act and the Constitution. From this we can say that any legislative or regulatory act that contradicts the Basic Law of the organization of the state must be declared unconstitutional.

Foreign Investment and Development StrategyforIndonesia's Banking Sector: Between Constitutional Supremacy and Economic Reality

Foreign Investment and Development StrategyforIndonesia's Banking Sector: Between Constitutional Supremacy and Economic Reality

An examination of the frigidity of the district municipalities towards the needs of society

Recently, development has taken center stage as it encapsulates an intrinsic aspect of human life. Development is a fundamental requirement for improving the material conditions of communities that contend with abject poverty across all spheres of their lives. It is conversely justifiable that understanding development within the context of service delivery is indispensable and could be considered the backbone towards socioeconomic and political upliftment of the masses. This social science research study examines the frigidity of the district municipalities towards improving the needs of society. This study seeks to closely unpack the challenges that negatively impact ordinary citizens' livelihoods to access the services as their fundamental and constitutional rights. The frigidity of district municipalities to render services violates the citizens' fundamental human rights and undermines constitutional supremacy. The primary focus of this study is on disentangling the issues which have a negative bearing on development initiatives to be undertaken by the district municipalities. This study further navigates the social ills through a lens that would, in turn, reveal and expose the key stumbling blocks which deter infrastructure and socio-economic development by district municipalities. This qualitative study embraces a phenomenological approach to fulfill the descriptive observation of the phenomenon under investigation. Data was collected through phenomenological observations and focus groups among the respondents. This study postulates the essential recommendations that would inform policy shift and policy reform as fundamental approaches to development that respond squarely to service delivery.

Dampak Pemecatan Sewenang-Wenang Hakim Konstitusi Terhadap Masa Depan Konstitusi Nasional Indonesia

At present, constitutional institutions have efforts to be politicized by the exact same institution, namely the legislative body. According to Kurnia Ramadhana, ICW's Political Corruption Division, in a seminar organized by Sahabat ICW, there was a haphazard and authoritarian practice of the DPR RI towards the Constitutional Court which was very clearly seen, both from the actions after the plenary session of the DPR RI and from the statements of DPR members. Qualitative method . In this case, it can be said that what was done by the DPR was contrary to the 1945 Constitution which should not have been carried out because it was contrary to the principle of constitutional supremacy. What was done by the DPR considered attacking the independence of power at the heart of the country, namely the Constitutional Court by legal experts, one of whom was Palguna I Dewa Gede, a former constitutional judge According to legal experts and former constitutional judges, that the Constitutional Court is an institution that is considered the heart of the country, constitutional supremacy that must stand upright. If an independent constitution is intervened by another power institution, it will have an impact on the supremacy of the constitution itself. This also causes constitutional institutions to lose their independence, and what is done by the DPR is considered contrary to the 1945 Constitution. This will have an impact on the supremacy of the constitution itself. This also causes constitutional institutions to lose their independence, and what is done by the DPR is considered contrary to the 1945 Constitution. This will have an impact on the supremacy of the constitution itself. This also makes constitutional institutions lose their independence, and what is done by the DPR is considered contrary to the 1945 Constitution.

The constitution comes second: how the Constitutional Court of Kosovo disregards the supremacy of the constitution

This article examines the Kosovo Constitutional Court's controversial practice of overlooking the Kosovo Constitution's normative supremacy in its jurisprudence. While all constitutional organs can participate in ensuring constitutional supremacy, the role of a Constitutional Court in this regard is unsurpassed as the final interpreter of a constitution's meaning. That said, rather than carefully following the Kosovo Constitution, the Kosovo Constitutional Court frequently relies on other legal sources to reach a decision, although they might directly contradict the Constitution. These sources include ordinary legislation, foreign legal experience, Venice Commission materials, and ECtHR's case-law (not on Kosovo). Often, this practice results in diminished human rights protection, as evidenced best in the Etem Arifi case.

THE CONSTITUTION – THE SUPREME SOURCE OF ROMANIAN LAW?

The purpose of this article is to conduct an analysis of the dynamics between the principle of constitutional supremacy and the principle of priority application of European Union law. Starting from a question and still asking questions, this article is intended to be a preamble for debates:, what is the difference between priority and supremacy?”, “does the European Union have good reasons to be concerned about certain decisions pronounced at national level?”, “is there a need for a reinterpretation of the normative hierarchy?”… For some of these questions I will try to answer, but for the rest, at this moment, the answer would / could be uncertain or non-existent.