Challenges in Constitutional Adjudication III
Panel formed with individual proposals.
The system of judiciary in India is designed to insulate presiding officers from either political or social influences. Presiding officers of court are appointed not by the Executive, but their selection is based of merit in the state level examination, which prevents them from becoming a patron of Ruling Executive. These Presiding Officers play an important role in the administration of justice, as they interact daily with the general public who comes to the courts. The image of judiciary is thus projected to the common masses by them, and in turn on their intellectual, moral and personal qualities. There are some policies within the judicial system which were designed with aim to ensure impartiality among the judges but has led to un-intended consequences, leading of prolonging of cases at various stages of trial. The aim of author is to investigate these structural and policy issues which hamper the normal flow of cases and deny the citizens the right to speedy and effective trial.
The paper examines recent developments in Maltese case law redefining juridical interest or legal standing in public law actions. Rather than applying the strict traditional civil law notion of juridical interest as in the past , the Courts of constitutional and administrative jurisdiction have recently adopted the ECHR jurisprudence s relating to the notion of “potential victim. “ This will liberalize access to a court by NGO'S and persons who wish to challenge the validity of actions by public authorities.
The Indonesian Constitutional Court has declared a law unconstitutional on formal-procedural grounds for the first time. The Court ruled that the Omnibus Law on Job Creation violated the lawmaking procedure under the 1945 Constitution. This article concerns one particular procedural question considered by the Court: the degree of public participation in lawmaking. The Court held that the making of the law failed to guarantee meaningful participation as it provides limited space for public consultation. In the current state of Indonesia‘s democratic decline, the Court decision is critical to safeguard democracy, particularly against the undemocratic legislative process. This article argues that the decision offers a prospect for deliberative lawmaking in at least two ways. First, by setting a judicial precedent to consider the quality of public participation in lawmaking. A second, by pushing the legislative body to reform the ways they conduct a public consultation.
Legal certainty is one of the fundamental pillars of the rule of law - it is closely linked to the stability of judicial decisions and, consequently, to the associates‘ trust in the judicial system. The need for certainty is particularly acute in criminal matters and it is addressed by the principle of strict legality, which enables associates to foresee the legal consequences of a particular conduct. However, in the application of rules there is an inevitable element of judicial interpretation - the situation appears to be further complicated by the impact of the decisions of the European courts on the interpretation of national criminal provisions. The paper focuses on the issue of predictability of judicial decisions, with particular reference to the changes in case law brought about by the rulings of the European Courts. It also deals with the phenomenon of overruling, which may have significant consequences when it comes to criminal law.
North American literature developed the categories of “political regime“ and “jurisprudential regime“ to explain how the political order reflects on legal rationalization (GILLMAN, 2016). Balkin (2019) conducts a systematic investigation of American political-institutional history, establishing constitutional time as a result of the movement of three cycles: political regimes, polarization and constitutional rot. This work aims to understand how this influence occurs and may be explained within our constitutional dynamics. Thus, we consider three factors of analysis particular of Brazil´s political setting: 1) coalition presidentialism - 2) the degree of stability of the governing coalition - and 3) driving constitution. Depending on the direction of each of these factors, we find a different constitutional moment, which reflects on the constitutional interpretation of the Brazilian supreme court, especially regarding its role in the democratic order.
While a constitution is not present wherever polity is constituted, the semantics of the term offers both empirical and normative concepts. In a descriptive (empirical) concept, the constitution may refer to a state, while in the normative and prescriptive aspect it can refer to the laws. A constitution often reflects on the historical aspirations of the constituted state in that it reflects the deeply entrenched aspirations of its polity. Constitutionalism may be compared with conferring legitimacy of public power, with a deviation from the erstwhile concept of a compact to that of a set of institutionalized legal normative principles. Constitutions are part of moralist philosophy and therefore it would be doctrinal to state that the Basic Legitimation Demand is deeply entrenched in them. It is the primary objective of all liberal constitutions. This narrative serves to examine when a state meets this Demand.
Chair(s): Giulia Fabri
July 4 @ 07:30 - 09:00 CEST