Constitutional Judicial Review Research Articles

The 2018 Australian High Court Constitutional Term: Placing the Court in Its Inter-Institutional Context

Drawing on the scholarly commentariat tradition now practised across the world, this article provides an overview and analysis of the 2018 Australian High Court’s constitutional term. However, this article approaches this task through a slightly different lens: I consider the 2018 developments by reference to their inter-institutional context. That is, how the High Court’s jurisdictional and doctrinal developments do and should impact the jurisdiction and behaviour of the other branches of government, and in the context of constitutional judicial review, particularly the Australian parliaments. In the article, I consider the High Court’s 2018 constitutional jurisprudence in three areas of law, and how its decisions have and should impact the constitutional responsibilities and practice of parliaments. Placing the High Court’s term in this inter-institutional context will give a better sense of the reach of the impact of the Court’s jurisprudential developments, as well as serve as a reminder that constitutional responsibility will not always lie with the courts for the articulation and prioritisation of constitutional principle.

Integrasi Konstitusional Kewenangan Judicial Review Mahkamah Konstitusi dan Mahkamah Agung

The separation of judicial review authority of the rules and regulation between the Supreme Court and the Constitutional Court raises many questions, what is the reason for the Reform of the 1945 Constitution to make this separation. The results of the study state that in countries that adopt the civil law system submit all judicial review authority to the MK, so that the separation of testing or judicial review that separates between the law that is the authority of the MK, and the testing of legislation under the law becomes the authority MA, is considered an awkward thing. Implications of the MK’s decision to test the legal norms of the 1945 Constitution, the scope of which may be horizontal to the same norms in the law, and vertically down to the rule of law as the implementation of the law that has been tested and stated to have no binding legal force. Conceptually the judicial review of the legislation should be under one roof. The burden of handling matters in the Supreme Court, can be a sufficient basis that the handling of judicial review under one roof system by the Constitutional Court, requires new interpretation or amendment to the 1945 Constitution, However, the conception will be difficult to realize except with the amendment of the 1945 Constitution because the divided judicial review authority is explicitly regulated in the 1945 Constitution. This will change if the MK’s decision with “courage” can give a new interpretation of the constitution, or through application of inherent/implied power jurisdiction of judicial constitutional review ”, then the granting and regulation of separate authorities made explicitly and expressively verbis in Article 24A and 24C, can be realized without demanding amendment to the 1945 Constitution concerning Article 24A paragraph (1) and Article 24C paragraph (1) of the 1945 Constitution.

Application of the Constitution of Ukraine in the implementation of justice: basic principles

The article focuses attention on the fact that the phenomenon of the Constitution is not limited to the constitutional text, since the Constitution, first of all, is a system of basic values designed to limit any manifestations of arbitrariness of public authority to ensure human rights. At the same time, it is noted that the «tangible» for the constitutional system exactly is the embodiment of the material Constitution as a text and a system of legal requirements in lawmaking and law enforcement, which directly depends on the subjects of law «users» of the Constitution. It is noted that the application by the courts of the Constitution as an act of direct action allows filling in the gaps and eliminating other defects in the legislation, is one of the dimensions the embodiment of the supremacy of the Constitution of Ukraine in the law application. It has also been established that the provisions of Article 8 of the Constitution, according to which its norms are direct action norms, and an appeal to the court to protect the constitutional rights and freedoms of a person and a citizen directly on the basis of the Constitution of Ukraine are guaranteed in a systematic connection with Article 150 of the Constitution according to that powers the Constitutional Court of Ukraine refers to the resolution of issues of compliance with the Constitution of Ukraine (constitutionality) of laws and other legal acts, cannot restrict courts in competence of direct application of the Constitution and solution to the issue of compliance with any other regulatory acts, that should be applied in a specific case. It has been proved that one of the mechanisms for ensuring the direct operation of the norms of the Constitution is the review of court decisions in view of exceptional circumstances, which is one of the manifestations of the «responsibility» of the state and responsible public administration, since in this way the state fulfills its the duty to restore of human rights as a consequence violation due adopting an act that has the subject of judicial constitutional review and recognized as unconstitutional. It is summarized that the Constitution will be real only with the active position of the courts on the application of its provisions in resolving disputes, and the courts will occupy a prominent place in the system of separation of powers, only if the Constitution will be basis of judicial decisions. Key words: courts of the judicial system, Constitution of Ukraine, implementation of justice, constitutional politics, constitutional conflicts, generic principles, application of constitutional norms, human dignity, constitutional values.

Preliminary Constitutional Review and its Implementation in Russia: Problems of Theories and Applications

The paper is devoted to the problems concerning the legal nature, normative regulation and the procedure for the implementation of the institute of preliminary constitutional review in the Russian Federation. Although the exercise of this type of constitutional control ensurs the prevention of the detected violations, it also carries certain risks associated with the limited time frame of its implementation, impossibility of taking into account interpretation of the contested norm in law enforcement, etc. The author demonstartes permissible forms of the use of preliminary control in the activity of the bodies of constitutional justice in Russia (when checking the constitutionality of international agreements and treaties of the Russian Federation, evaluating constitutional amendments, etc.). The author also investigates the practice of implementing the relevant powers. Particular attention is paid to the analysis of the legal positions of the Constitutional Court of the Russian Federation that stipulate the limits of the implementation of preliminary judicial constitutional review. The paper examines the issue of the powers of constitutional (charter) courts of constituent entities of the Russian Federation in the area under consideration.

Islam as a Civilizational Threat: Constitutional Identity, Militant Democracy, and Judicial Review in Western Europe

AbstractMultiple laws and regulations in Western Europe have been enacted on the premise that headscarves and face veils constitute an existential threat to the constitutional identity of the respective legal systems. Thus, the logic of militant democracy as a justification for restricting fundamental rights have been applied in order to restrict the freedom to manifest one’s religion. Yet, the politicymakers claiming to defend the constitutional identity through militant democracy have not been able to prove the existence of a concrete, imminent threat against the state from the women who wear headscarves or face veils. Nonetheless, the European judiciaries have taken the political claim at face value and allowed the restrictions without compelling the political decision-makers to provide substantive justifications. Thus, the cases of headscarves and face veils offer a prism, through which we can study fundamental paradoxes of liberal democracy and constitutionalism.

СТАТУТНІ ДЖЕРЕЛА В ПРАВОВИХ СИСТЕМАХ ВЕЛИКОБРИТАНІЇ ТА США

У статті здійснено ґрунтовне комплексне загальнотеоретичне вивчення статутних джерел у правових системах Великобританії та США, які із судовими прецедентами становлять основу англо-американської правової сім`ї. В англійському праві традиційним є вузький підхід до розуміння статутів і статутного права як сукупності парламентських актів. Во-дночас статутне законодавство, згідно із широким підходом, поділяється на первинні (акти парламенту Великобританії, парламенту Шотландії, парламенту Уельсу та Асамблеї Північної Ірландії, законодавчі акти про церкву тощо) та вторинні акти (статутні інструменти, статутні правила, церковні інструменти тощо). Для США характерна тенденція збільшення масиву та ролі статутного законодавства, існує писана федеральна Конституція; ієрархія нормативних актів, яка засновується на найвищому авторитеті Основного закону; систематизація законодавства, яка полягає в значній кількості кодифікованих актів; поділ права на матеріальне та процесуальне, публічне та приватне; перевага федеральних статутних актів над судовими прецедентами та конституційний судовий контроль статутів.

PEC nº 88/2019

A pesquisa busca analisar possíveis impactos jurídicos sobre o modelo de controle de constitucionalidade que a proposta de emenda à Constituição (PEC) nº 88/2019, elaborada pela Câmara dos Deputados, pode suscitar. Conforme justificativa constante na referida PEC, a proposta se deu devido ao protagonismo do Poder Judiciário na interpretação da Constituição - o que, supostamente, vem deslocando debates relevantes que deveriam ser realizados na arena legislativa – para o Judiciário. Assim, a proposta seria uma tentativa de recuperar o papel do Legislativo no exercício de seu poder típico de legislar, limitando o papel do órgão judicante. Com isso, a presente pesquisa analisa as alterações almejadas a partir da noção de constitucionalismo popular ou dialógico, estruturada por Mark Tushnet e desenvolvida por Roberto Gargarella, verificando-se como essas mudanças podem aproximar (ou não) o povo da Constituição. Para dialogar com tal teoria, também apresenta-se a percepção dos defensores da ideia de democracia reflexiva – cite-se, por exemplo, Pierre Rosanvallon e Thomas Passos Martins – e como eles concebem o papel da corte e do controle de constitucionalidade. Tem-se, em conclusão, que a proposta de emenda acima elencada possui uma fundamentação genérica e carrega uma noção tradicional de democracia e de povo, devendo-se tomar certas precauções em relação a algumas teorias que pregam uma maior participação do Congresso, sob pena de se promover uma desestruturação da separação de poderes. 

Mandatory judicial constitutional review in Russia: problems of the theory and practice

The paper shows the specificity of compulsory judicial constitutional review, reveals its role in the mechanism of legal protection of the Constitution of the Russian Federation. This institution is intended to guarantee constitutionality in the exercise of certain powers of the supreme state authorities, being an integral part of the legal composition of a decision made by public authorities that has constitutional significance (the application of measures of responsibility of public authorities, acceptance of a new constituent entity of the Russian Federation, convening of a referendum of the Russian Federation). In some cases, mandatory constitutional review is used as a means of ensuring constitutional legality of judicial law enforcement. The paper analyzes the features of compulsory judicial constitutional review: the emergence of a constitutional law dispute in this case is not always a prerequisite for appeal to the Constitutional Court of the Russian Federation; the need for such appeal is provided for by mandatory legislation or follows from the legal stance of the Constitutional Court of the Russian Federation; some principles of constitutional proceedings in relation to the order of consideration of such cases demonstarte their regulatory impact in a special way.

Political-Liberal Legitimacy and the Question of Judicial Restraint

The term restraint, applied to courts engaged in judicial constitutional review, can refer ambiguously to any one or more of three possible postures of such courts, which we here will distinguish as quiescent, and weak-form. A quiescent court deploys its powers sparingly, strictly limiting the agenda of social disputes on which it will pronounce in the constitution's name. A tolerant court confirms as valid laws whose constitutional compatibility it finds to be reasonably sustainable, even though it independently would conclude to the contrary. A weak-form court acts on the understanding that its pronouncements on matters constitutional will be duly open to considered rejection by other political agencies. Theory commonly tends to treat the question of judicial restraint as turning on a bedrock political value of democracy. We may also, however, understand debates over judicial restraint in the light of a different bedrock value, that of political legitimacy. Where democracy is the focal concern, debaters may tend toward conflating into one measure the three dimensions of judicial restraint. A focus on legitimacy rather tends toward a dis-bundling of the three dimensions, thus complicating the choices while also clarifying the stakes. The political philosophy of John Rawls helps us to see how and why this occurs.

Конституцион¬ный судебный контроль за муниципальными пра¬вовыми актами

Конституцион¬ный судебный контроль за муниципальными пра¬вовыми актами

Constitutional Review of Statutes in Germany and the United States Compared

In Germany as well as the United States courts are engaging in the controversial and extremely political practice of constitutional review of statutes passed by the elected legislature. Under the German Constitution (Grundgesetz) this practice was placed in the hands of the specialized Federal Constitutional Court (Bundesverfasungsgericht). Its power to conduct such review is laid out in the German Constitution as well as in a separate federal statute. Provisions therein govern the means of constitutional review and stipulate that the Constitutional Court ought to declare a law to be null and void if it violates the German Constitution. However, bearing in mind the political consequences of invalidating a law, the Constitutional Court has in some cases not been reluctant to take alternative approaches in order to avoid declaring a law to be null and void. This is usually the case, if a declaration of invalidity worsens or fails to remedy the violation of the Constitution or if there are different political options about how to overcome a breach of the constitution (e.g. in a case of a breach of the principle of equality). In the United States, courts are also conducting constitutional review of statutes. However, the origins, scope and means of judicial constitutional review of statutes are different. Moreover, the U.S. judges find less guidance in the U.S. Constitution or other statutes on how to conduct constitutional review or how to address unconstitutional statutes. Despite the absence of explicit constitutional or statutory rules on how unconstitutionality should be dealt with, courts in the United States generally also default to declaring a statute void if it conflicts with the Constitution of the United States. However, just like in Germany, the U.S. courts deviate from the default remedy of nullity to adequately address unconstitutionality. In this article, we analyze and compare the techniques developed by the German Constitutional Court and the U.S. Supreme Court to avoid a declaration of nullity where it would be counterproductive. The article begins with a brief overview of the constitutional and statutory regimes for constitutional judicial review in Germany and the United States in Part I and then examines the origins and history of constitutional review in Part II. Part III of the article outlines the different means of constitutional review within the United States and Germany, which essentially stem from the different origins of judicial review in both jurisdictions. Part IV defines the concept of unconstitutionality under the Constitution of the United States and the German Constitution. Part V outlines the reasoning of the courts over questions of unconstitutionality. In Part VI. the legal effects of a declaration of unconstitutionality by the courts are examined and similarities are drawn. By doing so the article deals with the courts' default remedy of nullity and critically examines what other techniques are applied in both jurisdictions (e.g., partially invalidating laws, declaring laws to be incompatible with the respective constitution without invalidating them, giving admonitory decisions and interpreting laws in conformity with the constitution). Part VII finishes off by concluding that despite the different origins, scope and means of constitutional review within the United States and Germany, courts in both countries have a similar understanding of the meaning of unconstitutionality and apply similar techniques when deciding on the constitutionality of a law.

Становление и развитие североамериканской модели судебного конституционного контроля

This article is devoted to the historical aspect of the formation and development of the North American model of judicial constitutional review. The author comes to the conclusion that this model does not create an independent branch of the judicial system, therefore, constitutional control implementation recognizes the integrity of the entire judicial apparatus.

Filling the Hole in Indonesia’s Constitutional System: Constitutional Courts and the Review of Regulations in a Split Jurisdiction

The Indonesian constitutional system contains a serious flaw that means that the constitutionality of a large number of laws cannot be determined by any court. Although the jurisdiction for the judicial review of laws is split between the Constitutional Court and the Supreme Court, neither can review the constitutionality of subordinate regulations. This is problematic because in Indonesia the real substance of statutes is often found in implementing regulations, of which there are very many. This paper argues that that is open to the Constitutional Court to reconsider its position on review of regulations in order to remedy this problem. It could do so by interpreting its power of judicial review of statutes to extend to laws below the level of statutes. The paper begins with a brief account of how Indonesia came to have a system of judicial constitutional review that is restricted to statutes. It then examines the experience of South Korea’s Constitutional Court, a court in an Asian civil law country with a split jurisdiction for judicial review of laws like Indonesia’s. Despite controversy, this court has been able to interpret its powers to constitutionally invalidate statutes in such a way as to extend them to subordinate regulations as well. This paper argues that Indonesia’s Constitutional Court should follow South Korea’s example, in order to prevent the possibility of constitutionalism being subverted by unconstitutional subordinate regulations.

The Unbroken Supremacy of the Canadian Constitution

This article revives the awareness of the heritage and inheritance of section 52(1) of the Constitution Act, 1982. It exposes the pre-1982 legal basis for constitutional judicial review in Canada and the mechanics of the transition in 1982 to an express supremacy clause. This article also challenges two popular notions in Canadian constitutional law today. The first is that the addition of section 52(1) in 1982 transformed Canada from a state governed by parliamentary supremacy into a state governed by constitutional supremacy. The second is that the Canadian judiciary became the guardian of the Canadian Constitution in 1982. Contrary to conventional wisdom, 1982 was, with respect to the supremacy of the Canadian Constitution, a moment of continuity rather than a break with the past.

What was the law of Leptines\u2019 really about? Reflections on Athenian public economy and legislation in the fourth century BCE

The article investigates a case study of fiscal policy formation in fourth century BCE Athens: that of the law of Leptines. The law was enacted but later challenged through a procedure of constitutional judicial review (graphe nomon me epitedeion theinai). Through a detailed analysis of the arguments at the trial, the article reconstructs the financial issues that the law was meant to solve, regarding the liturgical system and its wider implications. Recent scholarship has highlighted the complexity and sophistication of Athenian public finances and economic policy. The article finds a window into the debates from which the relevant institutions originated.

The French Constitutional Council: Another Work-in-Progresss

The French Constitutional Council (hereinafter the Council) is a creation of the 1958 Constitution of the Fifth Republic (hereinafter the Constitution). From inception, the Council was special. Established in a relative indifference, the institution originally fulfilled the role of watchdog of the executive by being entrusted with the task of preventing Parliament from encroaching on the prerogatives of the government which enjoyed a then new autonomous regulatory power. Such a circumscribed role meant that the Council was not set up as a proper constitutional court similar to those established after the Second World War in Germany or Italy, for example. Without rehashing, the reasons behind this choice lie in the particular context of the beginnings of the current Republic, including its approach to the separation of powers and the role the judiciary. Correlatively. This had also to do with the status of the loi (hereinafter law) as a norm which, from then on, could only be restrictively challenged within the confines of a limited form of review, namely the a priori review before its promulgation. The history of French constitutional law had resulted at this juncture in time into a double distrust: towards Parliament, on the one hand, and towards judges, on the other hand. Parliament could not be trusted to respect the prerogatives of the executive as attested by the failure of the previous Republics, which led under the Fifth Republic, to ‘rationalise’ the parliamentary system and which explains, to an extent, the way the ensuing Constitutional Council was established; as for judges, the centuries-old mistrust towards them dated back from before the Revolution when they would oppose the passing of important pieces of royal legislation – the upshot being an enduring aversion towards any form of judicial constitutional review.

Vetting Bills in the Scottish Parliament for Legislative Competence

In this article, Christopher McCorkindale and Janet Hiebert present the first empirical examination of the process by which bills in the Scottish Parliament undergo vetting for legislative competence. Based on a series of interviews with officials in the Scottish Government, Scottish Parliament and UK Government the paper makes a two-fold argument. First, that – despite the susceptibility of Acts of the Scottish Parliament to strong-form judicial review – the statutory requirement that the responsible minister and the Presiding Officer report to parliament on the competence of every bill, and the discretion of the Scottish and UK Government Law Officers to refer any bill to the Supreme Court before Royal Assent, align the devolution scheme with an emerging family of systems that favour legislative to judicial constitutional review. Second, that the deference shown by political actors to the advice of officials on questions of competence at each stage supplants legislative review – and its aspiration to engender a new culture of constitutional engagement – with a more closed form of bureaucratic review.

A FALTA DE QUESTÃO OU A FALTA DE REPERCUSSÃO: EXAME DO ART. 324, § 2º, DO RISTF, ANTE OS ARTIGOS 1.032 E 1.033 DO CPC/2015

O STF apresenta notória incapacidade de julgar, com celeridade, as causas que lhe são submetidas. Mecanismos diversos, como a repercussão geral, vêm sendo criados para amenizar este quadro. Este artigo examina regra do Regimento Interno do STF que ampliou os efeitos da repercussão geral. Em seguida, faz o confronto desta regra regimental com o art. 1.032 do CPC/2015, norma legal que permite a fungibilidade entre o recurso extraordinário e o recurso especial. São examinados, então, os efeitos produzidos pelo novo CPC/2015 em relação à regra regimental, cujo alcance foi atenuado ou até afastado pelo CPC/2015.

Constitutional Judicial Review, Chief Justices, and Judges' Preferences: Institutional Lessons and Israel's High Court of Justice

Theoretical literature on courts, society and politics is usually divided between the attitudinal and the strategic institutional models in efforts to explicate courts' rulings and their judicial behavior. In this context of empirical analysis of judicial behavior, using insights from both models, we focus on judicial preferences of individual judges as a key for theoretical and empirical analysis of courts as institutional player. Accordingly, we offer to explicate Supreme Courts through an original examination of Israel’s Supreme Court, sitting as High Court of Justice (HCJ) looking into it as a dominant veto point. We have originally coded individual rulings creating a data set that includes more than 9000 judicial decisions made by forty-six judges on the Israeli Supreme Court, between 1995 till 2015. It covers the judicial stint of four Supreme Court Presidents. Among many original and challenging empirical findings, we find that HCJ judges uphold appeals against the government if those appeals are especially turned against the state’s religious institutions and if at least one judge on the bench is dissenting. We find that this judicial behavior varies due to judges’ preferences rather than the judicial preferences of the Court’s President or the political nature of the government and its coalition in the Parliament. Furthermore, unlike a prevailing perception of Israeli Supreme Court Presidents as the sole leaders of the HCJ, there are times when Supreme Court Presidents find themselves in a minority position within the Court that they supposedly lead. Thus, the veto point of the HCJ is a dynamic arena which its policy outputs stem from the preferences of judges behaving as a group of institutional veto players rather than a cohesive veto point. Our analyses repeatedly unveil that there is variance between court decisions that can be consistent with the judges’ preferences and consequent judicial activism. Hence, our findings call for a research program focused on individual judicial preferences as the key to further understanding of institutional behavior of Supreme Courts in parliamentary settings looking at judges as veto players whose rulings (decisions) are far from being self-evident.

Protecting Human Rights Through Constitutional Adjudication ‐ Jordan as a Case Study

AbstractThis article aims at defining the role of constitutional courts in protecting the fundamental human rights of individuals, by relating the importance of constitutional judicial review and the established international standards related to the way it is performed. The study also provides an in‐depth analysis of the structure and working mechanism of the new constitutional court in Jordan with regard to its main functions described in the constitution of providing oversight of the constitutionality of laws and regulations in power, and interpreting provisions of the constitution. The study concludes that current statutory provisions with respect to the court proceedings and the method of undertaking its judicial work serve as safeguards that strengthen the role of the court in promoting individuals’ human rights. The study defines a vision of what is anticipated from the new constitutional court of Jordan and other courts in the field of defending human rights from the contemporary threats the world is facing, which only serve to increase fears among individuals that their basic rights are subject to serious attacks and violations.