Constitutional Judicial Review Research Articles

Digital Rights in Palestine: Prospects of a Constitutional Judicial Review

Abstract A set of rights and freedoms are protected by constitutions and interpreted by the competent judiciary. The increasing use of information and communication technologies (ICT s) creates new legal challenges to rights and their judicial interpretation. This article aims at analysing the prospects of the Palestinian Supreme Constitutional Court (SCC) concerning digital rights, while considering political and legal challenges. In doing so, it begins with a brief introduction to the concepts of digital right and digital constitutionalism. The article further describes the status of digital rights in Palestine and evaluates the role of the SCC in the adjudication of the constitutionality of the laws in relation to human rights protection on the internet. It finally offers proposals for understanding the necessity for constitutional protection of digital rights in Palestine through judicial review. It argues that the Palestine needs constitutional modernisation to address the legal implications of technologies on human rights.

Supreme Constitutional Court review of the legislative omission in Egypt in light of international experiences

This study examined the concept of legislative omission and distinguished it from several similar concepts. It also showed the reasons for its occurrence and analyzed the conditions that must be met for the phenomenon to be considered a legislative omission. Furthermore, the study reviewed some international experiences related to the judicial constitutional oversight of the practice of legislative omission. The study concluded that some countries regulate constitutional judicial review over legislative omission by the provisions of the constitution and other countries by the provisions of the law.

A consolidação do cabimento do controle concentrado de constitucionalidade das leis orçamentárias

This paper provides an overview of the evolution of the Federal Supreme Court's understanding of concentrated constitutional judicial review of budgetary laws, especially by means of a Direct Action of Unconstitutionality (ADI), presenting former precedents that rejected such constitutionality control, up to the present day, with the overcoming of that rejection, demonstrated in several recent Supreme Court's decision on the matter.

The Pennsylvania Council of Censors and the Debate on the Guardian of the Constitution in the Early United States

Abstract In 1776, Pennsylvania established an institution called the Council of Censors, which would be elected every seven years and was tasked with ensuring that the legislative, executive, and judicial branches of government had remained faithful to the constitution. None of the other thirteen colonies would create a similar institution, although Vermont would in 1777. Nor has the Council of Censors enjoyed a positive reputation among historians or constitutional scholars: Gordon Wood, for example, has attacked the institution as ‘a monster [pulled] out of Roman history’. Contemporaries agreed, and the body was abolished in Pennsylvania in 1790 after years of vociferous opposition and was criticized extensively at the Federal Convention in 1787. But the Council of Censors was a remarkably innovative institution, the first designed to enforce a written constitution, created decades before the Supreme Court’s assumption of the power of constitutional judicial review in 1803. This article presents a new history of the origins of the Council of Censors and its reception both in Pennsylvania and across the United States. It challenges prevailing accounts of the origins and purpose of the Council of Censors and argues that it was a product of a new theory of constitutionalism as the codification of popular sovereignty which emerged in the United States in the 1770s in response to the colonists’ fears about legislative overreach. Prior to the nineteenth century, it was only in Pennsylvania that this resulted in the creation of institutions to secure the supremacy of constitutional law over ordinary legislative power. As the final section of this article demonstrates, the idea that the constitution could be enforced against the legislative branch by an independent constitutional guardian—including the Supreme Court—was rejected at the Federal Convention precisely because of its framers’ antipathy to Pennsylvania’s radically democratic constitution.

Global Patterns of Constitutional Judicial Review Systems: Two Major Models of Constitutional Judicial Review in the World

Judicial constitutional review is an essential component of upholding constitutionalism, even though it is a relatively new concept outside the United States. The US Supreme Court set a precedent in 1803 in the Marbury v. Madison case by declaring legislative acts unconstitutional, which is widely regarded as the beginning of the principle or doctrine of judicial constitutional review. Since then, judicial constitutional review has become a widely accepted feature of most democratic legal systems. Comparative constitutional law recognizes two well-known models of judicial constitutional review: the American model of dispersed or decentralized review by ordinary courts and the constitutional Kelsen/European model of centralized review by a specialized constitutional court. Additionally, there are mixed or hybrid systems that combine elements of both models. Judicial constitutional review is an essential component of upholding constitutionalism, even though it is a relatively new concept outside the United States. The US Supreme Court set a precedent in 1803 in the Marbury v. Madison case by declaring legislative acts unconstitutional, which is widely regarded as the beginning of the principle or doctrine of judicial constitutional review. Since then, judicial constitutional review has become a widely accepted feature of most democratic legal systems. Comparative constitutional law recognizes two well-known models of judicial constitutional review: the American model of dispersed or decentralized review by ordinary courts and the constitutional Kelsen/European model of centralized review by a specialized constitutional court. Additionally, there are mixed or hybrid systems that combine elements of both models.

A Constitutional Judicial Review: is It Time for a More Comprehensive Procedure for the Removal of Judges From Office?

A Constitutional Judicial Review: is It Time for a More Comprehensive Procedure for the Removal of Judges From Office?

The judicial constitutional review for the legislative omission: a comparative study

The judicial constitutional review for the legislative omission: a comparative study

Keeping it real in constitutional theory

In constitutional theory, we are familiar with the claim that a good theory must ‘fit’ and justify constitutional practice. However, the criterion of ‘fit’ sometimes gets lost in the quest to provide a bold normative theory about what constitutional law should be. Using the debate about the legitimacy of constitutional judicial review as an example, this article warns against a problematic disjuncture between theory and practice in the domain of constitutional law. The key argument is that credible normative theorizing about constitutional law should rest on a descriptively plausible foundation. Absent such grounding, there is a risk that our theories of constitutionalism become theories of a fiction. To avoid this hazard, we need to ‘keep it real’ in constitutional theory and comparative constitutional law.

PORTUGUESE ADMINISTRATIVE LAW: CONSTITUTIONAL FRAMEWORK, ADMINISTRATIVE PROCEDURE AND JUDICIAL REVIEW

Yürürlükteki 1976 tarihli Portekiz Anayasası, uzun süren bir diktatörlük tecrübesinden sonra yapılması sebebiyle, kamu gücü kullanan otoriteleri olabildiğince sınırlamayı amaçlayan, kazuistik ve sert bir anayasadır. İdarenin teşkilatlanmasına ve faaliyetine ilişkin detaylı hükümler içeren, aynı zamanda idari usulün ve idari yargılama usulünün çerçevesini çizen Anayasa, idare hukukunun anayasallaşması olgusuna da örnek teşkil etmektedir. Anayasa’daki etkili yargısal korunma hakkını somutlaştıran 2002 tarihli İdari Yargılama Usulü Kanunu (Código de Processo nos Tribunais Administrativos), başta yargısal emir olmak üzere, idari yargıcı güçlendiren birçok müesseseyi düzenlemektedir. Son versiyonu 2015 yılında yürürlüğe giren İdari Usul Kanunu (Código do Procedimento Administrativo) ise, Anayasa’nın koyduğu esaslar doğrultusunda, idare ile bireyler arasındaki eşitsizliği azaltan çok sayıda yeni çözüm getirmektedir. İdari yargı örgütü bakımından yaklaşık bir buçuk asırdır Fransız modelini benimseyen ülke, yine Anayasa’nın etkisiyle mahkeme tipi örgütlenmeyi (Alman modelini) tercih etmiş durumdadır. Bu makale, Portekiz’de idarenin yargısal denetimine ilişkin anayasal çerçeveyi tasvir etmekte, İdari Usul Kanunu ve İdari Yargılama Usulü Kanunu hakkında temel bilgiler vermekte ve Türk hukuku açısından karşılaştırmalı değerlendirmelerde bulunmaktadır.

Die Bürgerschaftswahl in Bremen vom 14. Mai 2023: SPD wieder stärkste Partei, Rot-Grün-Rot wird fortgesetzt

After a rather boring election campaign the Social-Democrats (SPD) managed to achieve the position of the strongest party again which they lost to the Christian-Democrats (CDU) in 2019 . The CDU and the Left Party defended more or less their last election results whereas the Greens came up with a loss of more than five per cent of the votes . Apparently, the performance of the Greens in the three-party-coalition with the SPD and the Left Party obtained only low credit by the voters . With 5,1 per cent the Liberals were very close to enter the parliament . The SPD as the strongest party invited the Greens and the Left Party as well as the CDU to exploratory talks but came up very quickly with the decision to continue with the former left coalition . The coalition contract issued by the three coalition parties formulates ambitious goals with respect to investigations in the infrastructure, the ecological transformation of industries, and the increase of personnel in the education system, but remains vague with regard to their financing . The coalition plans to use money for many of these projects from the so-called climate-fonds that was already adopted in the last election period . Against this background the CDU announced that it will call the Bremer Staatsgerichtshof for a judicial review of constitutionality because the budgetary rights of the parliament may be violated by credit authorization without the parliament . Finally, the coalition decided to reallocate senate portfolios . Five portfolios went to the SPD, two to the Greens and the Left Party . Additionally, the representative of Bremen for national and European affairs from the SPD joins the senate in the function of a state councilor .

Law enforcement practice as an object of constitutional judicial assessment in the Russian Federation: Background, experience, problems

Turning to law enforcement practice has been and remains an important component of the activities of the Russian Constitutional Court. At the first stage of the history of the Russian judicial constitutional control — during the period of the Constitution (Basic Law) of the Russian Federation — Russia of 1978 and the RSFSR Law of July 12, 1991 No. 1599-I “On the Constitutional Court of the RSFSR” — consideration of cases on checking the constitutionality of law enforcement practice was separate authority of the Constitutional Court. In these conditions, law enforcement practice was the direct object of judicial constitutional review. With the adoption of the Constitution of the Russian Federation of 1993 and the Federal Constitutional Law of July 21, 1994 No. 1-FKZ “On the Constitutional Court of the Russian Federation”, the verification of the constitutionality of law enforcement practice was excluded from the competence of the Constitutional Court. At present, the Constitutional Court, while checking the constitutionality of legal acts, actively uses law enforcement practice as one of the means of establishing the meaning of the contested acts. The article shows that the Constitutional Court is constantly faces with the problems of defining the concept of law enforcement practice, which can receive different content in different situations. The question of the criteria under which law enforcement practice should be recognized as established is also unclear. Nevertheless, the importance of law enforcement practice for the activities of the Constitutional Court is generally increasing, which is confirmed, among other things, by the amendments made to the Federal Constitutional Law “On the Constitutional Court of the Russian Federation” in 2020. The conclusion is substantiated that the appeal to law enforcement practice contributes to the adoption of more motivated and balanced decisions by the Constitutional Court.

A double-edged sword: Constitutional dialogue confined

Abstract Dialogic judicial review is a dialectic interaction between supreme courts and legislatures regarding the constitutionality of legislation, in which each institution preserves its constitutional authority, and yet performs it while considering the other institution’s stance and its ability to respond. This interaction is based on reciprocity and upon the contribution of both institutions to the constitutional design and interpretation of legislation. This dialogic interaction has much value at the institutional and instrumental level. Unfortunately, constitutional dialogue sometimes has a negative influence on petitioners and similar groups, as their rights are being trampled under a dialogic veil. This article argues that constitutional dialogue can (and sometimes must) be restricted to avoid hindering human rights during the constitutional institutional interaction. It sketches a doctrine designed to prevent impairing human rights in the name of dialogic interaction, through three arguments: (i) the constitutional dialogue must be restricted, since reality shows that courts in many cases prefer legitimacy considerations over protecting human rights; (ii) in the case of under-represented groups, there is no reason to trust legislatures to take human rights into consideration while formulating a legislative response; and (iii) courts can restrict the dialogic interaction by declaring the constitutional purpose to be unconstitutional or by using judicial decisiveness which strives for full and coercive judicial constitutional review.

How do Chinese judges invoke the constitution? Analysis based on 1907 decisions

Abstract The abolition of the judicial interpretation issued by the Supreme People’s Court of the People’s Republic of China in Qi Yuling’s case marks the end of the trend of developing a judicial constitutional review system in China, but issues of courts invoking constitutional norms in judicial decisions continue to arise. This essay investigates the actual situation of the Constitution in judicial decisions by categorizing 1907 court decisions that invoked the Constitution as the reasoning basis and the court decisions which invoked the Constitution as the decision-making basis and by exploring the logic of the use of the Constitution by Chinese judges. In the absence of a constitutional review system, the primary sense of Chinese judges invoking constitutional norms is characterized by “simplistic reasoning”, “politicized enforcement” and the “parent law” concept. The insufficient judgment reason is a universal feature of judicial adjudication in Chinese courts. However, due to the lack of a constitutional review system, the poor perception of the interpretation and application of the constitution may exacerbate the lack of legal arguments invoked by the Constitution. The political model of Constitution enforcement in China makes judges invoke the Constitution in judicial decisions by “asserting the prestige of the Constitution”, which leads to numerous errors in legal argumentation in judicial decisions. This also reflects the tendency of “political enforcement” to take precedence over the legal enforcement of the Constitution. The influence of the old “parent law” concept is that judges can arbitrarily apply constitutional norms directly to civil cases, including fundamental rights norms. By summarizing and describing the above three features, we can depict the activities of current Chinese courts in invoking the Constitution.

DUALIST POPULAR CONSTITUTIONALISM A Reply to Michelman

DUALIST POPULAR CONSTITUTIONALISM A Reply to Michelman

Judicial Constitutional Review as the Practice of the Objective Value Order of Fundamental Rights: The 111-Xian-Pan-8 Decision Focusing on the Children’s Best Interest

Judicial Constitutional Review as the Practice of the Objective Value Order of Fundamental Rights: The 111-Xian-Pan-8 Decision Focusing on the Children’s Best Interest

К вопросу о специфике использования средств специализированного конституционного контроля Конституционного Суда Российской Федерации в механизме разрешения публично-правовых конфликтов

The following work addresses the issues of the specifics of using the means of specialized constitutional control of the Constitutional Court of the Russian Federation in the mechanism of resolving public law conflicts. The purpose of this article is to explore the relationship between the norms of the constitutional law of Russia in the field of judicial constitutional review carried out by a specialized judicial body - the Constitutional Court of the Russian Federation, and the management of conflicts arising from public law relations, by considering both the theory and practice of federal constitutional jurisprudence. Based on examples of normative control activities of a specialized jurisdictional control body, the author of this article makes analytical conclusions regarding the possibility and effectiveness of eliminating the identified uncertainty in the legal regulation of various spheres of society, including the “conflict” and “gaps” of domestic legislation, by “legal”, «peaceful» means. Particular attention is paid to the issue of analyzing the theoretical complexity of the considered legal conflicts arising from public law relations, due to their «mixed» nature, which includes both legal and extra-legal elements based on political confrontations or arising from national conflicts, and therefore not related exclusively to law.

ՍՈՑԻԱԼԱԿԱՆ ԻՐԱՎՈՒՆՔՆԵՐԻ ՍԱՀՄԱՆԱԴՐԱԿԱՆ ՊԱՇՏՊԱՆՈՒԹՅԱՆ ՀԻՄՆԱԽՆԴԻՐՆԵՐԸ ՀԱՅԱՍՏԱՆԻ ՀԱՆՐԱՊԵՏՈՒԹՅՈՒՆՈՒՄ/THE ISSUE OF CONSTITUTIONAL PROTECTION OF SOCIAL RIGHTS IN THE REPUBLIC OF ARMENIA/ ПРОБЛЕМА КОНСТИТУЦИОННОЙ ЗАЩИТЫ СОЦИАЛЬНЫХ ПРАВ В РЕСПУБЛИКЕ АРМЕНИЯ

Based on the existing theories in the science of comparative constitutional law, as well as judicial practice formed at the international and domestic levels, this article discusses the issue of constitutionalization of social rights. Despite the controversial approaches and disagreements, the studies show that there are a number of acceptable structures of constitutional regulations regarding the protection of social rights. Analyzing the strong and weak forms of judicial constitutional review, the author outlines the importance of weak or dialogic judicial remedies for social rights. The article presents the advantages and disadvantages of the four most discussed types of weak legal protection. Based on the studies, the author suggests that the social rights included in Chapter 3 of the RA Constitution, fixed as legislative guarantees and political goals, should be provided with a special regime of protection, based on weak judicial constitutional review. The author believes that the "reasonableness measure" or mixed (weak-strong, hybrid) constitutional review models can be considered as options for weak control, depending on the political problems faced by the State.

The Constitutional Court in the System of Public Authorities: A Doctrinal Approach

The article examines the place and role of the Constitutional Court in the system of public powers in the doctrinal understanding of the concept of human rights and constitutionalism. The Constitution of the Russian Federation establishes the basic constitutional and legal principles that are fundamental to substantive and procedural law. Judicial constitutional review, as the experience of European countries shows, is the most effective in protecting the Constitution. The principles of law applied to the doctrinal assessment of the place and role of the Constitutional Court in the system of public powers constitute a rather dynamic legal concept. The methodology is based on the legal system, public relations, and the political-state course, which, like all fundamental ideas, change, affect legal awareness and establish new requirements for legal regulation and the formation of an appropriate mechanism. The article concludes that the most important condition for the implementation of the prerogatives of the judiciary to administer justice in the consideration and resolution of specific cases, with emphasis on the study and evaluation of evidence. It is the evidence that serves as the basis of information for the court's findings in the case.

Содержание и формы участия Конституционного Суда РФ в правотворчестве

Introduction. The judicial constitutional review authorities ensure the supremacy and direct application of the constitutions. They also participates in lawmaking activities. Constitutional review authorities can participate in lawmaking activities directly or circumstantially. There are two kinds of the direct participation of such authorities in lawmaking activities: legislative initiative and participation in lawmaking activities in connection with the implementation of the constitutional review. The methodology of research is based on general scientific and special legal research methods. Theoretical analysis. Some authors note that the decisions of the constitutional review authorities can modify conditions of public life. Authors often emphasize that court decisions that rules certain norms as unconstitutional have the same goals as statutory acts. Empirical analysis. Constitutional courts administer a special kind of lawmaking, such as “positive”, “negative”, “adjusting” and “interpretative” lawmaking. “Positive” lawmaking is connected with the adoption of statutory acts, which regulate the activities of the constitutional courts. “Negative” lawmaking consists in ruling certain legal norms and sources of law unconstitutional and making them void. By means of “adjusting” lawmaking constitutional courts do not rule the norms as completely unconstitutional, but constitutionally interpret them. “Interpretative” lawmaking consists in clarifying legal norms of constitutions. The constitutional review authorities may also provide recommendations to the legislative authorities. Results. The constitutional review authorities can directly participate in lawmaking activities as a legislative initiative or in connection with the implementation of the constitutional control as “positive”, “negative”, “adjusting” and “interpretative” lawmaking. Circumstantial participation of such authorities in lawmaking activities is administered by adopting special messages.

Constitutional Judicial Review and International Obligations of Criminalization

Abstract The main purpose of this article is to investigate the role that international obligations of criminalization do play and could play in the judicial review carried out by the Italian Constitutional Court. It is divided into three main parts. The Court’s case law is examined first, a general and theoretical appraisal of the Court’s approach follows, and further implications of that approach are taken into account at the end. The author maintains that the Court is quite deferential to international obligations and, despite the significant constitutional constraints surrounding criminal law-making, it seems prepared to let criminalization obligations have various legal effects in the Italian national legal order.