Article

Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment

April 2016
Sravnitel noe konstitucionnoe obozrenie 2(111):32-63

DOI:10.21128/1812-7126-2016-2-32-63

Authors:

David Landau

Florida State University

Why Law was Late to Comparative Constitutional Amendment

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Jan 2023

Richard Albert

ResearchGate has not been able to resolve any references for this publication.

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The Protection of Human Rights in Indonesian Constitutional Law after the Amendment of the 1945 Cons...

February 2018 · Fiat Justisia Jurnal Ilmu Hukum

The amendment to the 1945 Constitution of the Republic of Indonesia has shown progress in respecting, protecting and fulfilling human rights in Indonesia. This is proven from the advanced provisions that have set the human rights material, starting from the affirmation of fundamental rights, individual rights, social rights, solidarity rights, and even the assertion of rights included in the ... [Show full abstract] category of non-derogable rights in the Second Amendment to the 1945 Constitution. The urgency of the Constitution 1945 as written constitution due to its status as the ultimate instrument to determine a norm (law), action or government policy so it will not violate human rights and/or constitutional rights of the citizens. Thus, the Constitution is an important instrument in term of guaranty and ensuring that human rights within the Republic of Indonesia are protected, even though the source of human rights is not actually derived from the State but naturally originated from natural law, whether its universal validity is either affirmed or not in the Constitution. This shows progress on the level of regulation and protection of human rights in Indonesia. Related to the guarantee of the protection of human rights, one of the important materiala of the 1945 Constitution of the Republic of Indonesia is the presence of a new judicial institution called the Constitutional Court, in addition to the Supreme Court. The existence of the Constitutional Court in Indonesia is an improvement in maintaining and upholding the Constitution and protecting human rights. Hence, the Constitutional Court referred as “the Protector of Human Rights”. Protection of human rights is carried out through the exercise of authority as defined in Article 24C Paragraph (1) of the 1945 Constitution which is to review an Act against the Constitution, to judge on authority disputes of state institutions whose authorities are granted by the Constitution, to judge on the dissolution of a political party, and to judge on disputes regarding the result of a general election. In addition, Article 24C Paragraph (2) obliges the Constitutional Court to render a judgment on the petition of the People’s Representative Council regarding an alleged violation by the President and/or the Vice President according to the Constitution. Keywords: Human Rights, Constitutional Law, Amendment to the Constitution.

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The Constitution of Luxembourg in the Context of EU and International Law as ‘Higher Law’

May 2019

Jörg Gerkrath

The Constitution of Luxembourg (1868) is characterised in the report as rather a historic and political document than a truly normative one. Its style and wording are typical of a 19th century document, and thus there is a difference between the written document and the ‘living constitution’. The chapter on fundamental rights is relatively brief and fragmentary, with some widely recognised ... [Show full abstract] principles missing; the standards do not go beyond the standards of the ECHR. Luxembourg has embarked on a process of adopting a new Constitution, which is broadly set to continue the evolutionary constitutional tradition. In the Luxembourgish legal order, international law is regarded as ‘higher law’, a doctrine that is expected to be formalised in the new Constitution. The powers and history of the Constitutional Court, which started its work in 1998, are described as rather limited compared to other European constitutional courts; the proposed new Constitution envisages its abolition, to be replaced by the Supreme Court. EU and international measures are immune from constitutional review, and there has never been a challenge to national measures implementing EU law. However, some reservations with regard to the European Arrest Warrant have been expressed by the Conseil d’État. Luxembourg’s approach to extradition for offences of political nature is more protective than elsewhere.

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Municipal Constitutional Rights: A New Approach

April 2013 · SSRN Electronic Journal

Josh Bendor

American law long held that the Constitution does not limit state power over municipalities, a doctrine exemplified by Hunter v. Pittsburgh. While the Supreme Court has made some moves to update this doctrine in light of the Reconstruction Amendments and the constitutional rights revolution, those moves have been minimal enough to obtain uneven recognition from the Courts of Appeal, and a recent ... [Show full abstract] Supreme Court decision suggests a possible return to the ancien regime. I argue that the problem is that Hunter’s reach today is determined by its dicta, not its purpose, which courts have forgotten. Hunter’s purpose should be to preserve state policy flexibility, which means that state grants of municipal powers are not constitutionally enshrined as property or contract. This leaves room for municipal residents and municipalities themselves to invoke the Constitution against their creating states when individual rights or federal regulatory regimes are at stake. It even leaves for municipalities themselves to claim constitutional rights. One such candidate is free speech rights. I also discuss suits between municipalities.

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117th Constitution Amendment Bill, 2012- Efficiency and adequacy of the State Administration

December 2012 · SSRN Electronic Journal

Manish Raj

I have read many Articles in the newspaper taking either of the side without even considering the real points. However, I have tried to highlight all those points which may deliberately left behind to frame such deteriorated picture of the Bill. Further, my point wise submission to the questions rose in the press and by the parties opposing the motion of the Bill, as follows: Reservation in ... [Show full abstract] general or in promotion as a concept is very wide. Different people understand reservation to mean different things. One view of reservation as a generic concept is that reservation is anti-poverty measure. There is a different view which says that reservation is merely providing a right of access and that it is not a right to redressal. Similarly, affirmative action as a generic concept has a different connotation. Some say that reservation is not a part of affirmative action whereas others say that it is a part of affirmative action.The words ‘consistently with the maintenance of efficiency of administration’ under Article 335 of the Constitution of India are capable of being read differently though have not been so read by the courts so far. In a mixed and diverse society as in India, representation of all sections of society in different walks of life creates an integral and, therefore, efficient society. Accordingly, representation of SC/STs which constitute about 24.4% as per Census 2011 of the total population of the country and whose representation in the State administration is small, if not totally absent, will lead to efficiency in the administration. So, the intention of the constitution makers directed that in consistency with the goal of maintenance of efficiency of administration of SC/STs must be duly represented in the State administration. It may also be argued that active inclusion of about such percentage of population into the category from which the administrators have to be selected creates wider choice must naturally lead to selection of better administrators. Thus the words ‘consistently with the maintenance of efficiency of administration are not the words of limitation but of guidance that in order to ensure maintenance of efficiency of administration the claim of SC/STs must be taken into consideration in making the appointments to services and posts qua the affairs of the Union and the States.

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Constitutional Amendments and Party Power Centralisation in China

January 2019 · East Asian Policy

Gang CHEN

In March 2018, Chinese President Xi Jinping kick-started his second term at the annual National People’s Congress, which amended the country’s constitution to allow Xi to remain in power beyond his scheduled departure in 2023. Xi’s power consolidation also came with the Party’s reinforced Leninist control of state apparatus at various levels, corporations, civil society, the media and the ... [Show full abstract] academia. Party-State reforms in 2018 were a reversal of Party-State separation (dangzheng fenkai) initiated by Deng Xiaoping.

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Constitutional Amendment and Political Constitutionalism

February 2016

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US Supreme Court to decide whether health reform law is constitutional

November 2011 · The BMJ

Janice Hopkins Tanne

The US Supreme Court agreed this week to decide whether President Barack Obama’s health reform act, passed in March 2010 ( BMJ 2010;340:c1635, doi:10.1136/bmj.c1635), is constitutional. Members of the Democratic Party support the law; Republicans strongly oppose it. The White House expressed confidence in its constitutionality. However, the recent rulings of the Supreme Court have tended to be ... [Show full abstract] strictly conservative. The court will hear unusually long oral arguments, probably next March, and is likely to issue its decision by late June 2012, in the heat of the presidential campaign. The court said that it would rule on a challenge to the law brought by 26 Republican state governors and attorneys general who …

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O VÍCIO DE DECORO PARLAMENTAR NA EMENDA CONSTITUCIONAL Nº 41/2003

December 2018 · Ponto de Vista Jurídico

p class="resumo"> Resumo: O presente artigo visa elaborar um entendimento sobre a constitucionalidade da Emenda Constitucional Nº 41/2003, que trata da Reforma da Previdência. O objetivo geral da pesquisa é investigar a situação política brasileira e a falta de decoro parlamentar e a compra de votos na aprovação de Emendas Constitucionais. São objetivos específicos: analisar como a consequente ... [Show full abstract] falta de decoro pode influenciar no processo legislativo; esmiuçar acerca da supremacia da constituição bem como o controle de constitucionalidade das leis; e constatar a possibilidade, em caso de comprovação da compra de votos e o reconhecimento da inconstitucionalidade por vicio de decoro parlamentar, qual será o posicionamento do Supremo Tribunal Federal. Num primeiro momento, conclui-se que diante dos vícios, além de ser desrespeitado o §1º do Art. 55 da Constituição Federal que trata do comportamento exigido aos representantes do povo, também foram golpeados princípios constitucionais da moralidade pública e da soberania popular, pois prevaleceram interesses individuais aos dos mandatários do processo legislativo, que é o povo. Palavras-chave: Constitucionalidade; Emenda constitucional 41/2003; Supremo Tribunal Federal. THE ADDITION OF DECORUM PARLAMENTAR IN THE CONSTITUTIONAL AMENDMENT Nº 41/2003 Abstract: This article aims to elaborate an understanding on the constitutionality of Constitutional Amendment No. 41/2003, which deals with Pension Reform. It is presented as a monograph meeting the mandatory requirement to obtain a Bachelor of Law degree from UNIARP - Alto Vale University of Rio do Peixe. The general objective of the research is to investigate the Brazilian political situation and the lack of parliamentary decorum and the purchase of votes in the approval of Constitutional Amendments. Specific objectives are: to analyze how the consequent lack of decorum can influence the legislative process; to think about the supremacy of the constitution as well as the control of the constitutionality of laws; and to verify the possibility, in case of proof of the purchase of votes and the recognition of unconstitutionality por vice of parliamentary decorum, what will be the position of the Federal Supreme Court. KEY WORDS: Constitutionality; Constitutional amendment 41/2003; Federal Court of Justice. </div

Article

The Primacy of Judges

January 2016 · SSRN Electronic Journal

Gautam Bhatia

This essay examines the concept of the "primacy of judges" in judicial appointments, as understood in Supreme Court Advocates-on-Record Association v Union of India ["the NJAC Judgment"]. The NJAC judgment struck down the 99th Constitutional Amendment, which sought to replace the "Collegium" system of judicial appointments with a National Judicial Appointments Commission ["NJAC"], on the ground ... [Show full abstract] that it violated the basic constitutional feature of judicial independence. This essay makes three claims: first, that the constitutionality of the 99th Constitutional Amendment could not have been satisfactorily adjudicated by the Supreme Court without first determining whether the Second Judges Case had held judicial primacy to be part of the basic structure, or only an "interpretive gloss" on Article 124 of the Constitution; secondly, that all five separate opinions in the NJAC Judgment failed to do so; and thirdly, that contrary to the argument advanced by Arghya Sengupta, a majority of three judges in the NJAC judgment held that judicial primacy is part of the basic structure. Consequently, any future attempt at changing the manner of judicial appointments will have to stay true to the principle of judicial primacy, even though its foundations in the NJAC judgment are arguably shaky.

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Constitutional Amendment and Presidential Assent: The Nigeria Perspectives

November 2015

Osahon Omoregie

The proposed “Fourth Alteration” to the Constitution of the Federal Republic of Nigeria, 1999 has rekindled the controversy whether Presidential assent is a sine qua non conditio for constitutional amendment in Nigeria. Prominent legal scholars and foremost jurists in Nigeria are divergent on the issue. At the early stage of this controversy, Honourable Justice Okechukwu Okeke of the Federal High ... [Show full abstract] Court, Lagos had answered in the affirmative in the case of Olisa Agbakoba, SAN v. National Assembly & Anor. that the purported, 2010 amended constitution remains inchoate until it receives the President’s Assent. The National Assembly swiftly appealed Okeke’s judgement. More actions have since been filed by other litigants on the same issue. Most strikingly, the Nigerian Bar Association has officially also joined the debate, pitching tent with the bandwagon of proponents of President’s assent, without which constitutional amendments become ineffectual. This, it seems, is apt to mislead the generality of the Nigerian populace. This paper therefore takes a cursory look at the vexed issue vis-à-vis the extant provisions of the 1999 Constitution. The conclusion is drawn that there is no formal constitutional role for the President, in the amendment process. We however recommend, inter alia, that simplicity, clarity and precision should herald the proposed new amendment – provisions of the 1999 Constitution.

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Judiciary in the Serbian Constitution of 2006 and a critical review of draft amendments

January 2018 · Anali Pravnog fakulteta u Beogradu

Marko Stankovic

This article analyzes the position of judiciary in the Constitution of the Republic of Serbia. Legal norms on the organization of judiciary are one of the most important segments of constitutional matter, having in mind that for the functioning of democracy it is important to ensure complete independence of the judiciary from so-called 'political authorities' - legislative and executive. The ... [Show full abstract] independence of the judiciary can only be ensured by the constitution. However, the Serbian Constitution of 2006 has taken a different stand on this part of constitutional matter, giving the legislator a wide authority to regulate substantive issues relating to the judiciary (election and dismissal of judges), which largely subordinates judicial power to the legislative. First, the constitutional norms on judiciary will be analyzed in this paper. The Serbian Constitution contains five key issues related to the independence of judiciary. Further analysis will include proposed amendments to the Constitution. Ministry of Justice's Working Version of the Draft Amendments to the Constitution has not adequately solved any of five problems. Finally, useful conclusions about the position of the judiciary in the Republic of Serbia will be drawn. .

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[The constitution of the Medical School of the Technico-Educational Marques Souza Foundation]

June 1970 · Revista Brasileira de Medicina

P R de Carvalho

Last Updated: 21 Nov 2024

Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment

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