Judicial Function Research Articles

A Comparison of Judicial Review in Indonesian Constitutional Court and French Constitutional Council

One of the advances in contemporary legal and governmental ideas to arise in the 20th century was the notion of establishing a Constitutional Court. A constitutional court is a high court that focuses on constitutional law issues. Its primary authority is to rule on whether laws that are reviewed are in fact in line with constitution or not. The purpose of this study is to compare the judicial review functions and institutional aspect of the Indonesian Constitutional Court with the French Constitutional Council. It explains the distinctions and similarities between the roles of the Indonesian Constitutional Court and the French Constitutional Council as judicial entities allowed to conduct judicial reviews of statutes in accordance with the constitution. The research method employed is library research, while the research approach is a statutory approach and a comparative approach. The study shows that the Constitutional Courts in France and Indonesia have certain similarities and differences that come from the issue of court’s authority, nature of decision, complainant party, and qualification and composition of justices.

Disobedience of The Constitutional Court’s Decision by The Supreme Court

The Constitutional Court as one of the institutions that exercises judicial function has a final and binding decision that binds all parties. However, in practice, the decisions of the Constitutional Court are often ignored by parties, one of which is the Supreme Court. There are several Supreme Court decisions that do not consider the decisions of the Constitutional Court. This demonstrates disobedience to legal norms that are final. This is the reason why the researcher wants to examine the constitutionality of the Supreme Court’s decision which does not consider the decision of the Constitutional Court, and what are the legal implications. This research is doctrinal research with a normative legal approach, that used secondary data obtained through literature study. Based on the results of the study, the decisions of the Supreme Court which do not consider the decisions of the Constitutional Court can be said to be unconstitutional, or it can be said that there has been a violation of the constitution because the decisions of the Constitutional Court represent the essence of the 1945 Constitution of the Republic of Indonesia. The legal implication obtained are the supreme court decision is still be act as jurisprudence; there is legal confusion and uncertainty regarding the conflicting decisions; the occurrence of constitutionalism justice delay; and can undermine the authority of the 1945 Constitution of the Republic of Indonesia.

The Deliberative Principle In The Management System Of The Armenian Church

The historical mission of the Armenian Church was manifested by spiritual-andcultural, political-and-deliberative, diplomatic, legislative and judicial functions and specific principles of governance. After the fall of the statehood, the Armenian people concentrated the national power in the Armenian Church, which with its pro-national policy became the supreme authority in the national existence. The role of the rule of law, representative democracy and the principles of parliamentarianism in the management system of the Armenian Church has been particularly important in Armenian social and political circles. In this context, the results of the cooperation of the spiritual-and-ecclesiastical and secular-and-political authorities, as well as the unique self-governance ability of the Armenian nation were revealed.

The Real Politics of The European Convention on Human Rights

Avrupa mekânında temel haklar koruması, devlet egemenliği düzeyi ile İnsan Hakları Avrupa Sözleşmesi tarafından inşa edilen ulus-üstü egemenlik düzeyi arasındaki yetkilerin paylaşımı üzerine oturur. Bu iki egemenlik düzeyi bir birinden su geçirmez bölmelerle ayrılmış değildir. Tam tersi iki düzey arasında bir tamamlayıcılık ilişkisi vardır. Bu ilişkiyi yöneten ise İnsan Hakları Avrupa Mahkemesinin ürettiği içtihadi bir ilke olarak ikincilliktir. İkincillik ilkesi, temel haklar korumasının “birincil” olarak taraf devletlere düştüğü, Mahkemenin ise “düzenleyici” bir yargısal fonksiyona sahip olduğu anlamına gelir. Ne var ki 1 Ağustos 2021 tarihinde yürürlüğe giren 15 No’lu Protokol ile bu ilke şimdi taraf devletler tarafından Sözleşme metnine eklenmiş ve aynı devletler, egemenlikleri ve iç hukuklarının özgün niteliklerini koruma arayışına girmiştir. Bu noktada çalışmanın temel kaygısı, 15 No’lu Protokolün anlamını, Avrupa mekânında birlik fikri ile Sözleşme hukukunun karşılıklı gelişim çizgisi üzerine oturtup geleceğe yönelik bir takım sorular sorabilmektir.

Research on the Judicial Function of General Yili during the Qing Dynasty's Xinjiang Military Government System from the Perspective of Big Data Analysis

Research on the judicial function of general Yili during the Qing dynasty's Xinjiang military government system from the perspective of big data analysis is discussed in this paper. Xinjiang has a vast territory, is located in the borderlands, and is far away from the country's political regions. General Yili is stationed, and heavy troops are stationed. The Qing government's powerful and complete rule over Xinjiang mainly started with the establishment of General Yili. The general system is a system that governs special areas in the Qing Dynasty. Hence, this paper gives the novel suggestions for the systematic construction and the literature study.

Nowelizacja ustawy o Sądzie Najwyższym z 9 czerwca 2022 r. – zmiana prawdziwa czy pozorna?

This paper is devoted to the Act of June 9, 2022 amending the Act on the Supreme Court and certain other acts. Despite the liquidation of the Disciplinary Chamber of the Supreme Court, the analysis of this act leads to the conclusion that the Polish legislator petrifies the unconstitutional judicial appointments. Judges appointed to the Supreme Court with the participation of the National Council of the Judiciary, formed according to unconstitutional rules, will be able to continue to exercise judicial functions in that court. In addition, the unconstitutional procedure for the appointment of judges remains unchanged.

Institution and Virtue in the Judiciary

This essay reconsiders The Federalist's design of the Judiciary. The argument has two themes. In general, The Federalist does not neglect ambition in the case of judicial power. Rather, The Federalist presents a coherent institutional order that is fully informed by this problem. It defines the central judicial function quite narrowly and describes an elaborate a constellation of influences to contain judicial will within these boundaries. This end and these means impose a very narrow scope on judicial review. The more specific theme concerns the place of virtue in that institutional design. The Federalist's discussion of other, truly discretionary functions introduces the need for some virtue to condition judicial will in the absence of the guidance of law. This concern for virtue in relation to other powers confirms the limited scope of judicial review. Moreover, the need to secure and preserve some virtue in judges imposes further restrictions on functions and powers.

Promoting Constitutional Literacy: What Role for Courts?

AbstractThis article explores the role of constitutional judges in advancing constitutional literacy, understood as knowledge relating to the functioning of the constitutional order. Part of the inquiry is descriptive and geared towards identifying the modalities that courts today use to cultivate such literacy among the public, or segments thereof. The article also poses normative questions about literacy-boosting efforts. How do these relate to “typical” judicial functions? Are courts well-placed and equipped to disseminate constitutional knowledge? Based on an analysis of judicial practices, it is suggested that lay individuals are increasingly treated as a key constituency by courts, warranting the development of specially curated initiatives crafted with the values of inclusion, accessibility, and transparency in mind. This manifests notably in a turn to social media use and an incipient embrace of legal design thinking. The available literacy-boosting modalities are not without flaws, however, and we should be cognizant of limits regarding what can realistically be expected of courts in furthering popular constitutional knowledge. Notwithstanding room for improvement in the design and delivery of constitutional literacy, the existing judicial efforts when viewed in their entirety should be evaluated positively as making a meaningful contribution in meeting people’s interests in greater constitutional knowledge.

The German Federal Supreme Court’s Judgment in Booking.com as a Case Study of the Limitations of Competition Law

The German Federal Supreme Court (BGH) held that the use of narrow price parity clauses (NPCs) between Booking.com and hotels infringed Art. 101 Treaty on the Functioning of the European Union (TFEU), confirming the Federal Cartel Office’s decision. The Supreme Court based its judgment mainly on the following grounds: (1) the use of these clauses restricts intra and inter-brand competition between hotels; (2) NPCs cannot be considered an ancillary restraint in the sense of Art. 101(1) TFEU; and (3) avoiding free-riding through these clauses cannot be considered as a justifying efficiency in the present case under Art. 101(3) TFEU. The present comment focuses on the analysis of the Court regarding (3) and argues that the reasoning in the judgment made conceptual mistakes and statements against settled EU law. The case shows the difficulties the Court had in handling a case where dynamic considerations are important. Therefore, even though the Court may have had valid concerns regarding NPCs, the judgment at hand is a step in the wrong direction regarding the judicial function of guidance of undertakings throughout the economy that wish to comply with competition law.

영국의 가석방절차 및 피해자 참여권 보장의 시사점

The characteristic of the UK Parole Board procedure is that it strongly guarantees the rights and participation of victims. Accordingly, the victim makes a statement on the impact of the crime during the parole process, and asks for conditions such as prohibition of access to parole. In proceeding with such procedures, various types of support are also received, including the help of the victim's applicant. Furthermore, since the victim is not a party to parole, he/she cannot directly request a retrial of the decision, but if there is a certain reason, he/she may object to the decision to release the parole. In addition, a closed parole review may be observed, and in certain cases, a public parole review may be requested. Meanwhile, in the UK parole process, inmates can actively state their opinions during oral hearings, receive legal support from lawyers, and request a retrial of the decision to refuse parole. As such, the UK's parole procedure has changed in the direction of protecting the rights of inmates and ensuring fairness and transparency of the parole screening procedure. The Parole Board in the United Kingdom is an independent non-governmental public enforcement agency that plays a government role and cannot be seen as a judicial institution, but it can be seen as a court-like institution that performs corresponding procedures. Therefore, through the characteristics of the procedure guarantee for inmates and victims in the UK's parole procedure, the results and implications of supplementing the judicial function of the parole board, the function of parole as a restorative judicial law, and raising awareness of the parole system through the guarantee of victims' procedures can be found.

Supreme Court’s Splitting of the ‘Jurisdictional Atom’ Threatens to Blow up the Federal Arbitration Act

A recent US Supreme Court decision sharply narrows the jurisdiction of federal district courts to administer arbitration matters under the Federal Arbitration Act (FAA). When a federal district determines whether it has subject-matter jurisdiction to compel arbitration, it may take into consideration both the petition to compel arbitration and the underlying dispute. This is known as the ‘look through approach’ because the court can look beyond the pending motion to the underlying case. Recently, the US Supreme Court ruled that the look through approach cannot be used when the federal court is asked to confirm or vacate an arbitral award. This can produce the incongruous result that a federal district court could have the authority to compel an arbitration but not to confirm the resulting award. The US Supreme Court left for future determination the question of whether the look through approach can be used for other judicial functions under the FAA such as appointment of the arbitrator.

Principle of evidentiary community in the General Organic Code of Processes

This paper proposes an analysis of the principle of the evidentiary community included in the General Organic Code of Proceedings of Ecuador, which governs non-criminal actions. According to the principles that govern the administration of justice, judges must resolve conflicts according to competence, complying with the dispositive principle that is included in the constitutional norm and that is also extended by the Organic Code of the Judicial Function, which consists in that the jurisdictional organ must resolve based on the pretensions made by the parties and, evaluating the evidentiary means that they have managed to introduce. By virtue of this principle, the evidentiary means introduced by one of the parties in the judicial process are not only for its exclusive benefit but, on the contrary, become part of the body of evidence that may favor its opponent.

SOME THOUGHTS ON THE CONSTITUTIONALITY OF “INDEPENDENT” TRIBUNALS ESTABLISHED BY THE STATE

An interesting question for constitutional lawyers arises around the legality of some of the so-called “independent tribunals” or forums that are established to make quasi-judicial decisions. Sometimes the tribunals are designed to only perform administrative functions and other times they are designed to perform purely judicial functions – perhaps on issues of compensation or to make decisions that resolve disputes. The point of this note is not to examine the legality of any specific tribunal but rather to discuss some general considerations that ought to drive any debate on the legality thereof. It sometimes happens that, for reasons of control, the state envisages creating a tribunal that will be part of the executive arm of government. The consequence of this may be that decisions taken by the tribunal effectively remove the resolution of a dispute referred to that tribunal from the judiciary and place it instead in the hands of the executive. This kind of arrangement immediately raises at least two significant constitutional concerns:(a) First, the separation of powers doctrine, given that the Constitution requires a functional divide between executive and judiciary; and (b) Second, the right of access to a court of law that all people have in terms of section 34 of the Constitution.

“Efficiency Is Paramount in This Regard”: The Managerial Role of the ICC Presidency from Kirsch to Fernández

Abstract Since the International Criminal Court commenced its work, much has been made of the institution-building role of successive ICC Prosecutors as central to the Court’s legal framework and as ambassadors for the “fight against impunity”. Much less has been said about the role of the ICC Presidency, as the Court’s smallest organ, and its successive Presidents. Yet the Presidency operates at the apex of the Court as an international organisation, manages relations with states, coordinates internal governance issues, and acts as the “public face” of the Court globally, not to mention its judicial functions. The ICC Presidency and its first three Presidents have been particularly influential in shaping the ICC into an institution prioritising the values of efficiency and effectiveness, with deeply political and distributive implications. This article traces those influences, from the Presidency of Philipp Kirsch, until the end of the third Presidency under the leadership of Silvia Fernández de Gurmendi in March 2018.

SHOULD MAGISTRATES TAKE DOWN CONFESSIONS?

Section 217(1) of the Criminal Procedure Act 51 of 1977 (the Act) sets forth the requirements for the admissibility of a confession made by any person in relation to the commission of an offence. Section 217(1)(a) provides that where a confession is made to a peace officer who is not a magistrate or a justice of the peace, such a confession must be confirmed or reduced to writing in the presence of a magistrate. Pursuant to section 217(1)(b), where a confession has been made to a magistrate or has been confirmed and reduced to writing in the presence of a magistrate, it is deemed to be admissible in evidence upon mere production (ss (b)(i)); and presumed, unless the contrary is proved, that the accused made the confession freely and voluntarily, while she or he was in her or his sound and sober senses, and without having been unduly influenced in making it (ss (b)(ii)).In S v Zuma (1995 (1) SACR 568 (CC)), the Constitutional Court found that section 217(1)(b)(ii) of the Act violated the right to a fair trial as embodied in section 25(3) of the Constitution of the Republic of South Africa, 1996 (the Constitution). It is a longstanding principle of both English and South African law of evidence that the state bore the burden of proving that any confession on which it wished to rely was freely and voluntarily made. Section 217(1)(b)(ii) of the Act placed on the accused the burden of proving on a balance of probabilities that a confession made to or recorded by a magistrate was not free and voluntary. This section, therefore, created a legal burden of rebuttal on the accused – a so-called “reverse onus”.The court held that the common law rule requiring the state to prove that a confession was made freely and voluntarily, was integral and inherent in the right to remain silent after arrest, the right not to be compelled to make a confession, and the right not to be a compellable witness against oneself. These rights are the necessary reinforcement of the principle that the prosecution must prove the guilt of the accused beyond reasonable doubt. Reversing the burden of proof seriously compromises and undermines these rights. The court thus declared that section 217(1)(b)(ii) of the Act violated the provisions of the Constitution of the Republic of South Africa, 200 of 1993 (the interim Constitution) and was invalid.In the authors’ view, with the Constitutional Court’s decision in Zuma, the principal rationale for sections 217(1)(a) and (b) of the Act seems to have fallen away. After all, the main reason to specifically provide for a confession made to or reduced to writing by a magistrate would be to ease the process of admissibility of such a confession without the need to test its admissibility at a trial-within-a-trial. After Zuma – whether a confession was made to or reduced to writing by a magistrate or not – if the accused contests the admissibility of the confession, the presiding magistrate must hold a trial-within-a-trial in which the state bears the onus of proving the admissibility of the confession on a balance of probabilities.This raises a possibility that did not exist prior to Zuma, namely that a magistrate to whom a confession was made or who reduced it to writing can be called as a witness by the state in a trial-within-a-trial. The authors question whether it is conducive to central tenets of the judicial function – independence and impartiality – for magistrates to take confessions at all, and thus be required to testify in any matter in which accused persons challenge confessions taken down by magistrates.

El rol transformador de los tribunales constitucionales como ¿estrategia clave y efectiva? para la reducción de las desigualdades y la erradicación de la pobreza extrema

The analysis and justification of inequality and extreme poverty and the need to eradicate or at least overcome them impose historical, ideological, and institutional reasons. Particularly concerning institutions and the new transformations of constitutionalism, this article aims to analyze the transformative role of constitutional courts as a key and effective strategy for reducing inequalities, but mainly for the eradication of extreme poverty. Based on a hypothetical and deductive methodology combined with a technique of indirect documentation analysis, it is concluded that the transformative role of constitutional courts as a key and effective strategy to confront contemporary crises in society, at least in the analysis of deliberative instruments such as public hearings to combat the eradication of extreme poverty, presents apparent effectiveness. The transformative role must recognize limits to the judicial function, especially when judicial decisions involving social rights are projected. Methodological and instrumental outlets of other sciences, together with greater recognition of judicial humility, seem to be a step to begin or, better, to resume the intended path.

Independence of Judiciary Leading Justice System to Injudicious Outline

Independence of judiciary is a topic of protracted debate commonly involving essentials and merits of independence added by its constituents and due execution etc. First, the word independence has been adorned only with judicial organ although the meaning of this feature as a characteristic is essential ingredient of all institutions and their constituent sectors. Importance of the word independence has been applied in a distinguish sense to mean that judiciary as an organ maintained in self-contained composition, competence, and capabilities for administer of justice in the country. Being Independent of external interference or fairly performing judicial function is a privilege and a duty. Judiciary must obtain, secure, defend and continue with its independence by virtue of establishing rule of law in the country. Judiciary shall not only administer justice, but that also must ensure continuity of its organizational capacity at all costs. Meaning thereby its professional responsibilities must continue judiciously by overpowering any obstruction from any other person or organ. That is why Judiciary has been declared guardian of the constitution as well. This study must examine to what extent independence of judiciary has been exercised in Pakistan in the context of its actual meanings and requirements. Doctrine of independence of judiciary outstandingly elaborates that judiciary is to be equipped of self-sustaining condition and can never shift the burden of failure to external factors. When a judicial system under the constitution is given independence or it claims so, responsibility of its execution and maintenance is retained on its articulatio humeri. The study will conclude that in case of failure judiciary shall have to acknowledge responsibility all alone.

Citizenship training strategy in the electoral processes in Ecuador

Citizen participation is a vital element for building high-quality democracies. However, statistics suggest that a greater number of citizens reject the polyarchic system as the most efficient. This research guides its analysis in the main characteristics that evidence the electoral processes in Ecuador, as well as in the strategies of citizen formation that can be applicable to the national case. The methodology used adheres to a path of qualitative order, of a theoretical -descriptive and documentary type, under an exhaustive review of the Ecuadorian jurisprudential regulations that support this document. Finally, the Ecuadorian actions in electoral matters should not be governed only by the Code of Democracy, but also by the Organic Code of the Judicial Function, increasing the jurisdictional power, and adding functions and powers to which it can be included by normative means. the counting of votes in the country.
 Keywords: National Electoral Council, citizen training, specialty principle, electoral processes.

American Politics and Media Relations

The American news media plays a vital role in the American political activities. It has long been regarded as the "fourth power" to exercise supervisory functions beyond administrative, legislative and judicial functions, and the "fourth branch" in cooperation with the actions of government, Congress and the Supreme Court. However, the freedom of the press in America is not unlimited. Media can influence politics, but the same government can influence, restrict and use media. Therefore, studying the connection between the US news media and the government, by clarifying the relationship between the two, we can partly grasp the limited reasons for the US press freedom and help a better understanding of American politics.

“HIS LOYALTY IS REPUTED”: POLITICAL ACTIVITY OF NAIB OF DERBENT IMAM KULI-BEK

The accession of Derbent to the Russian Empire as a result of the Persian campaign of Peter the Great and being the part of it until 1735 is one of the important milestones in the centuries-old history of Derbent. The peaceful process of joining the city to the empire was greatly facilitated by the political position and activities of the city ruler in the person of Naib Imam Kuli-bek, who decided not to resist the imperial troops and peacefully surrender the city to Tsar Peter the Great. Being approved by Peter I in the same position, Naib developed an active political activity with the imperial authorities, demonstrated timely concern for protecting the city from attacks by mountaineers and providing food for the townspeople, shared managerial and judicial functions with the Russian commandant A.T. Junger. The study of the political activities of Naib Imam Kuli-bek, the nature of his relationship with the Russian central and regional authorities makes it possible to deepen and expand historical knowledge about the events in Derbent, and in the Eastern Caucasus as a whole, related to imperial policy in the region in the first third of the 18th century. However, a special study of the activities of Naib Imam Kuli-bek in domestic historiography has not yet been undertaken, which is the reason for the relevance of the present study. The article aims to analyze the activities of the Naib in building relations with the new imperial government, integrating Derbent into the political, legal and economic space of the Russian Empire; show cases demonstrating loyalty (loyal speech, offering a key, honoring the monarch, a visit to the imperial court) on the part of the Naib, and power and favor (approval in office, rank, gifts, awards) on the part of sovereigns. The study has been prepared on the basis of an analysis of available works and a wide range of documentary data from the collections of federal and regional archives, a significant part of which is being introduced into science for the first time.