Supremacy Of Constitution Research Articles

Constitutional Complaint, Human Rights, and Protection of Right to Freedom of Religion and Belief in Indonesia

Indonesia as a democratic state of law as mandated by Article 1 paragraph 3 of 1945 Indonesian Constitution is regarded as a political construction of the law of the state idealized to bring justice, welfare, and prosperity to society, to the state. Based on this principle, the existence of living constitution should serve as a basis for the construction of national legal system to respond to varied dynamics of state administration either at national level or globally. The responsiveness has contributed paradigmatic thought about the protection of the constitutional rights to the domain of legal studies and practices of state administration through the mechanism of constitutional complaint intended to guarantee the enforcement of constitutional supremacy and to respond to the progress of law in the society in regard to the right to freedom of religion and belief. This is aimed to provide legal facilities for justice seekers over the practices of anarchism, intolerance, and discrimination that paralyse or even kill the justice per se (justice denied). This article is intended to elaborate the importance of constitutional complaint to fulfil the right to religion and belief in Indonesia. The idea of constitutional complaint within the scope of idea and implementation has become the part of constitutional review mechanism that is in fact not restricted to the review of abstract norm, but it also involves the element of concrete legal conduct that may arise from negligence in state administration in terms of interpreting legislation. Such negligence has a consequence on policies and violates the constitutional rights of the people. Therefore, the idea of constitutional complaint as an attempt to enforce the constitutional supremacy has to be implemented to set free the idea of protecting and guaranteeing human rights that has been long trapped in the realm of utopia.

CONSTITUTIONAL INTERPRETATION OF ORIGINAL INTENT ON FINDING THE MEANING OF SOCIAL JUSTICE IN THE CONSTITUTIONAL REVIEW

<p><em>This article will study whether original intent method able to find justice in constitution and formulate constitutional interpretation that will able to perform constitutional supremacy. This study uses a doctrinal approach or also referred to as the normative legal approach. The method taken in this writing is analysis descriptive which describes and analyses constitutional interpretation with original intent method. Formulating constitution interpretation which answers people dynamic but doesn’t lose its original constitutional intent. This research shows that Constitutional interpretation with original intent method can mean as an interpretation which assimilate the spirit of how the original written constitution was formulated when building UUD 1945, the opinion of constitution’s founders in their understanding on the purpose and the nation’s ground principals. Basically, All the rules must not contradict with constitution’s intention. The freedom of judges to decide is not freedom without limits. The limitations of judges' freedom of interpretation are Pancasila and the 1945 Constitution. Decisions made by judges must not conflict with Pancasila and the 1945 Constitution, constitutional judges have great power in interpreting the 1945 Constitution. This power is vulnerable to various interests which make the decisions of constitutional judges not objective. Accountability of decisions in public and academics should be a legal idea that can be realized, not to judge the verdict but to know the basis of interpretation and or legal discovery by constitutional judges</em></p>

Os setenta anos da Convenção Europeia de Direitos Humanos e as muitas dúvidas ainda existentes sobre sua real eficácia na Itália

A Convenção para a Proteção dos Direitos Humanos e das Liberdades Fundamentais (CEDH), assinada em 4 de novembro de 1950 em Roma pelos representantes dos Estados Membros do Conselho da Europa, permite que indivíduos processem seus governos por violação dos direitos humanos. Apesar de sua importância em garantir os interesses supremos da pessoa, 70 anos após a assinatura da CEDH, ainda existem muitas dúvidas sobre a real eficácia que esta Convenção deve ter na hierarquia de fontes em nível nacional. Na Itália, alguns juízes começaram a desaplicar normas nacionais em conflito com a CEDH. Mas, em 2007, a Corte Costituzionale decidiu interromper essa tendência, que constituiu uma “exceção” indevida à supremacia constitucional e derrogou a revisão centralizada. Essa abordagem sofre algumas críticas. Para garantir uma eficácia real do sistema da CEDH, é necessário fortalecer e aumentar a autoridade dos direitos da Convenção em nível nacional, garantindo também a implementação rápida e eficaz dos acórdãos do Tribunal de Estrasburgo.

On resolution priority by Russian Federation constitutional court over interstate body decisions for the protection of human rights and freedoms

This article examines the priority of Russian Federation Constitutional Court decisions over the decisions of interstate bodies for the protection of human rights and freedoms. Since the international treaty, the legal positions of the ECHR do not abolish the supremacy of the Constitution for the Russian legal system, the decisions of the ECHR are subject to implementation within this system only on condition that the supreme legal force of the RF Constitution is recognized. If the ECHR interprets the 1950 Convention as contrary to the RF Constitution, then in this regard, Russia refuses to follow literally the ruling of the ECHR. In conclusion, the authors note that the Constitutional Court of the Russian Federation ruled that it would decide the issue of the ECHR decision execution in each case individually but considering the recognition of the RF Constitution supremacy.

The Welfare State: Construction of the Caliphate System and the Indonesia Constitutional Citizen Health and Social Rights

The caliphate system is a system which is known to only acknowledge a government or a state leadership aslegal if its governance uses the Islamic law as the absolute law, meanwhile other laws such as the positivelaw (the law which is applied in Indonesia) is deemed as a form of governance which is against Islam.Such understanding is clearly contradictory to the Indonesian Constitution (the 1945 Constitution). In theIndonesian Constitution, it has stated that the implementation of the government or the authority is basedon the constitution supremacy. All forms of governance or application of authority (in the state) refer to thenorms created by the state through the mandated organizations.

Supremacy of the Constitution: The Constitutionality of International Business Transactions Involving the Government of Ghana

Ghana has over the years developed into a world player with its Government engaging in all kinds of international business and economic transactions with foreign partners. All the same, Ghana being a sovereign nation does not act in a vacuum. All its actions must be done in line and in accordance with the laws of the country specifically the Constitution. It is without doubt that Ghana’s Constitution reigns Supreme and is not superseded by any other law, act, etc be it domestic or international. Over the years, these international transactions entered into by the Government of Ghana and other international partners have ended up before the Courts of Ghana where the Courts in upholding the Supremacy of the Constitution have held that all these transactions being contracts involving the Government of Ghana are in a certain class which thus demands compliance with certain laid down requirements in the Constitution failure of which grave consequences have been suffered by these international partners. It is thus necessary to consider the decisions in the light of Ghana’s Constitutional Supremacy, to sift out the road-maps as set out by the Courts of Ghana in order that Legal Advisers to foreign entities that contract with the Government of Ghana are aware of these important case laws in order to guide them appropriately on the Ghanaian law on this issue.

The Conceptualization of Constitutional Supremacy: Global Discourse and Legal Tradition

AbstractThis Article argues that a) constitutional supremacy is affected by the legal tradition, which implies that it is a concept largely shaped by the legal context in which it is elaborated, and b) the common law version of constitutional supremacy determines a sort of cultural resistance to constitutional imperialism. In making its argument, this Article begins with the doctrine of sources of law with a view to unpack its operational logic within the common law and, therefore, to understand how the supremacy of constitutions is conceptualized. It then examines the embryonic conceptualization of constitutional supremacy in the British legal culture by addressing the “constitutional statutes.” It goes on to analyse how constitutional supremacy is safeguarded in jurisdictions that are affected by the British tradition and equipped with written constitutions, to show how constitutions concretely established themselves as supreme laws without neglecting the relevance of traditions pre-dating the constitutional texts. It then shows how the common law finds its way to be applied alongside or even instead of the constitution. Eventually, this Article offers some conclusions as to the implications of such a conceptualization of constitutional supremacy for comparative and global constitutional studies.

Constitutional Supremacy Doctrine V. Tax Legislative Competency: Court of Appeal of Nigeria Nullifies The Taxes And Levies (Approved List For Collection) Act

The Court of Appeal of Nigeria was recently called upon to determine the question of whether the entire provision of the Taxes and Levies (Approved List for Collection) Act 2004 is ultra vires the Constitution and therefore null and void by reason of the ouster clause at the beginning of the said Act. The Court answered in the affirmative – Yes. The Court of Appeal based its decision primarily on the grounds of the tax legislation infringing the Constitutional Supremacy Doctrine as enshrined in Section 1(3) of the Constitution of the Federal Republic of Nigeria 1999 (As amended).

Teaching the “Other Law” in a South African University: Some Problems Encountered and Possible Solutions

African customary law is a legal system that is recognised in South Africa and forms part of the law of the indigenous people of South Africa. Due to colonialism and apartheid, this legal system was rejected and underdeveloped in favour of common law. The supremacy of the Constitution and its recognition of African customary law as an independent legal system, separate from the common law, aimed to correct past injustices that flowed from the underdevelopment of this important legal system. Whether the Constitution and higher learning institutions have attained the goal of developing African customary law in South Africa is a question that will be explored and debated in this contribution. Its aim is to assess the role of higher learning institutions in developing African customary law through their teaching of this system of law, as well as to outline some of the challenges faced by these institutions in offering an African customary law course to students. Possible solutions are discussed; the aim is to ensure that the teaching component of African customary law is developed, and to contribute to the current debate about curriculum transformation among universities and various stakeholders in higher learning. Curriculum transformation is key to the future development and inclusiveness of the South African community that is so diverse.

‘Striking Back’ and ‘Clamping Down’ in South Africa: Responding to Adverse Judicial Decisions Under Systems of Parliamentary Sovereignty and Constitutional Supremacy

‘Striking Back’ and ‘Clamping Down’ in South Africa: Responding to Adverse Judicial Decisions Under Systems of Parliamentary Sovereignty and Constitutional Supremacy

Beyond “unwinding”: Constitutional review strategies in consociations

AbstractThis article contributes to the emerging literature on the role of constitutional courts in consociational democracies. While most works have approached the topic from the perspective of regime dynamics, this analysis focuses on how courts relate to the constitutions they are mandated to enforce. Beyond addressing the empirical question of what choices courts make in their balancing between universal values and stability, this article also investigates how courts do this balancing. Through the analysis of seven cases from two consociations, Bosnia and Herzegovina and Northern Ireland, I argue that courts embrace specific interpretive approaches (proportionality analysis, purposive interpretation, and the political question doctrine) to reconcile the ideas of constitutional supremacy and respect for political agreements. The analysis also demonstrates how—by their nature political—framework agreements establishing consociational settlements become primary reference points for interpreting constitutional documents.

Ware v. Hylton: supremacía constitucional y origen de la doctrina de las “cuestiones políticas”

In the last days of may 1793, Circuit Court of Virginia heard oral arguments in Ware v. Hylton, a case which justice James Iredell described as “the greatest Cause which ever came before a Judicial Court in the world”. It dealt with such an important legal maters for the early republic as constitutional supremacy clause and the conflicts between state laws and international treaties signed by United States. In the Circuit Court opinion, chief justice John Jay used the distinction between acts of political and judicial nature. This article tries to study the case in depth.Fecha de envío / Submission date: 2/12/2019Fecha de aceptación / Acceptance date: 25/02/2020

KEWENANGAN PRESIDEN DALAM MEMBENTUK UNIT KERJA PRESIDEN

The constitution is supreme because it is assumed as a form of agreement of all people. Indonesia adheres to the supreme constitution and the understanding of democracy, so that every policy whether it is a product of legislation or other political policies must be in accordance with the values ​​of society or in accordance with the wishes of its people. The authority of the President as the holder of government power is not unlimited power, but has guiding principles in making specific policies regarding the formation of the Presidential Work Unit. These rules must be in line with the constitution and democracy (constitutional democracy). Institutional relations between the President's Work Unit for Development Supervision and Control with the Ministry of State, Cabinet Secretariat as well as between the Legal Mafia Eradication Task Force and law enforcement agencies such as the Corruption Eradication Commission, the Police, and the Prosecutors' Office, have the potential for overlapping authorities in the practice of implementing government and law enforcement.

Znamiona państwa wyznaniowego. Uwagi na kanwie dorobku współczesnego konstytucjonalizmu

An analysis of contemporary constitutions indicates that the number of denominational states is slowly decreasing. However, we also encounter opposite tendencies. The model of a denominational, or a religious state is primarily characteristic for Muslim countries of the Near and Middle East and for a number of Southeast Asian countries. In the last decades, the number of Christian states and secular ideological states has declined signifi cantly. There is a stable group of states with Buddhism as a privileged religion. The religious constitutional norms of states of confession are generally characterised by a high degree of generality. Detailed provisions are seldom and denominational clauses are primarily included among the principles of the supreme constitution. Underlying the religious character of the state lies the rejection of the neutrality of the worldview. It is not possible, on the basis of the constitution alone, to reconstruct a detailed, universal model of a religious state. In the light of fundamental laws, the most common characteristics of religious states are: the negation of the neutrality of the state in worldviews, the acceptance of a particular religion as the offi cial religion, the rejection of the equality of religious associations, the requirement of a head of state to follow the state religion or belief, and the state support for a given confession. The constitutions of most religious states formally provide for religious freedom. In the fundamental laws of some Muslim states, the guarantees for this freedom are, however, silent. The Western political culture fails the characteristics of an organisational unity of the state or the religious apparatus. The socio-political reality of contemporary religious states indicates that this model of statehood cannot be a priori regarded as contrary to the principles of democracy and human rights.

Inter-State River Water Disputes in India: A Study of Water Disputes Between Punjab and Haryana

In its 10 November 2016 advisory opinion, the Supreme Court (SC) of India nullified the Punjab Termination of Agreement Act, 2004. This inter-State water sharing termination act of the Punjab government had challenged the constitutional authority of the Union government over the states. The SC looked at that dimension of the Punjab Termination of Agreement Act, 2004, and maintained the constitutional supremacy of the Union government over the states. This article discusses the federal water relationships in India, and then examines the river water disputes between the Indian states of Punjab and Haryana. The author argues that the growing inter-State water disputes in India have also challenged the federal constitutional arrangement which holds the primacy of the Union government over the State governments in matters relating to regulation and development of inter-State waters and river valleys.

From Earl Grey to Boris Johnson: Brexit and the Anglo-American Constitutional Model

Trump and Brexit are at the forefront of political discussions around the world. Many treat them as symptoms of the same phenomenon: the rise of populism, nationalism, and xenophobia towards immigrants and refugees. Both seem to repeatedly challenge constitutional limits on a variety of fronts. Brexit was approved in a referendum by a slim majority, with wavering public support and in spite of a reluctant Parliament. Yet, all British political players feel bound by its results and have taken steps to withdraw from the EU, absorbing the costs of trillions of dollars to their economy. Exclusionary policies may not be enough to explain the extraordinary politics involved. This Article argues that the forces affecting Brexit are rooted in nineteenth century Britain. It deconstructs the familiar narrative that casts the US as the archetype of a constitutional model, with a formal supreme Constitution, judicial review, and popular sovereignty. In that narrative, the UK is cast as the antithesis, because Parliament reigns supreme, it has no formal Constitution, and it lacks a doctrine of judicial review. This Article reveals that, even as this narrative was becoming orthodoxy during the nineteenth century, the UK was already operating under a model similar to the US, demonstrating a continued commitment to popular, rather than parliamentary, sovereignty. The fact that Parliament refers major decisions to the People and carries out those decisions, as exemplified in the British determination to go ahead with Brexit, signals that the People is the sovereign, not Parliament. The challenges encountering popular sovereignty have remained the same over the past two centuries though gaining new dimensions: enfranchisement, protectionism, territorial divisions, and allocation of legislative power. This Article demonstrates how Britain has been operating under a common Anglo-American constitutional model for the past 200 years and highlights its implications for comparative constitutional law. The common Anglo-American model sheds new light on the meaning of the government’s mandate at elections, the rise of party power, and the conditions that would legitimize packing the courts.

Hubris, constitutionalism, and “the indissoluble unity of the Spanish nation”: The repression of Catalan secessionist referenda in Spanish constitutional law

Abstract This article analyzes the struggles of the Catalan government to organize a referendum on secession and the constitutional framework invoked by the Spanish central authorities to prohibit it. The repression of secessionist referenda within the Spanish constitutional framework triggers several problematic questions concerning the role of constitutional supremacy in handling subnational secessionist challenges developed under a pacific and democratic framework. The article offers a comparison between the Spanish-Catalan case and other examples of secessionist referenda within liberal democracies, underscoring that the Spanish solution of repressing such referenda through criminal law is unique in the liberal democratic context. The article also offers a description of the political, historical, and legal circumstances surrounding the Spanish central authorities’ actions that explains the Spanish constitutional response to both the Catalan Consultation held on November 9, 2014, and the referendum on Catalan independence held on October 1, 2017. The article concludes by arguing that the prohibition of the Catalan referendum initiatives on independence and their subsequent prosecution through criminal law may cripple the basic pillars of the Spanish liberal democracy designed under the 1978 Spanish Constitution.

Statutory rights and de facto constitutional supremacy in Hong Kong?

Abstract Fundamental rights in the Hong Kong Special Administrative Region (Hong Kong) are protected in its Basic Law and the Hong Kong Bill of Rights Ordinance (BORO). The Hong Kong Basic Law enshrines most of the BORO rights, thereby expressly conferring constitutional status on these rights. But there are a number of BORO rights that are not protected in the Basic Law. This article analyzes the cases in which the Hong Kong judiciary has addressed disputes concerning three exclusive BORO rights: (i) the right to participate in public affairs; (ii) the right to a fair hearing in civil cases; and (iii) the prohibition against cruel, inhuman, or degrading treatment or punishment. We will also explain how the courts have conferred de facto constitutional supremacy on all these statutory rights, while simultaneously providing significant leeway and decisional space for the government to craft a considered response in their remedial legislation, thereby promoting a constitutional dialogue between the judiciary and the government on rights-protection in Hong Kong.

Constitutional Supervision in China after the 2018 Amendment of the PRC Constitution: Refining the Narrative of Constitutional Supremacy in a Socialist Legal System

Since the drafting of the 1982 PRC Constitution, constitutional supervision has been a key topic of discussion in China’s political-legal reform process. In 2018, the Chinese Party-state took steps to address this unresolved reform issue. While the 2018 constitutional amendments attracted widespread attention outside of China, foreign commentators focused on provisions covering presidential term limits, new anti-corruption organs, and the constitutional status of the Party and “Xi Jinping Thought.” Another, largely overlooked, amendment reconstituted one of the National People’s Congress (NPC) special committees as the “Constitution and Law Committee,” and a subsequent NPC Standing Committee (NPCSC) decision tasked this Committee with detailed constitutional functions. In a related step, new official reports enhanced transparency in the system for filing and review of legislation. This paper provides an introduction to these recent reforms and assesses their significance. It argues that the reforms should be understood as components of a broader constitutional rationalization intended to refine the Party’s narrative of constitutional supremacy, strengthen the legal system as an instrument to discipline China’s bureaucracy, and marginalize citizen constitutional activism. The reforms demonstrate the Party’s confidence that its grip on China’s political-legal system is sufficiently strong that it can reap the legitimacy and governance benefits of building new constitutional supervision infrastructure without incurring material risks that citizens might leverage it to challenge Party authority.

EROSION OF THE CONCEPT OF CONSTITUTIONAL SUPREMACY IN MALAYSIA

The concept of constitutional supremacy is provided by Article 4 (1) and 162(6) of the Malaysian Federal Constitution. It differs from the doctrine of supremacy of Parliament as practiced in English jurisprudence. The objective of this paper is to study the concept of constitutional supremacy, why it has become very important and the dangers that it poses if there is an erosion of the concept. The study is based on doctrinal research as it is primarily concerned with the review of the provisions of the Constitution and reported cases that have been decided by the courts. It is suggested that it was possible for Parliament to amend the Constitution to a point where it basically may defect the concept of constitutional supremacy in Malaysia.