Constitutional Review最新文献

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Social and Economic Rights in the German Basic Law? An Analysis with Respect to Jurisprudence of the Federal Constitutional Court 德国基本法中的社会和经济权利?联邦宪法法院的法理分析
Constitutional Review Pub Date : 2020-12-30 DOI: 10.31078/consrev621
Christoph Enders
{"title":"Social and Economic Rights in the German Basic Law? An Analysis with Respect to Jurisprudence of the Federal Constitutional Court","authors":"Christoph Enders","doi":"10.31078/consrev621","DOIUrl":"https://doi.org/10.31078/consrev621","url":null,"abstract":"The Basic Law for the Federal Republic of Germany did originally not provide for social or economic rights understood as claims to benefits. The Federal Constitutional Court (FCC) did, indeed, recognise the states obligation to protect individuals against assault by others (right to security) and further ruled that everyone has the right to use facilities provided by the state under equal conditions (right to participation). These rights, however, aim to ensure that the state uses existing means as intended. In addition, the FCC by now has recognised a “right to the guarantee of a dignified minimum subsistence”. It is an original entitlement as the state is obliged to create and provide benefits for individuals in need. This new legal construction, however, misconceives the division of responsibilities between the FCC and the legislator and collides with the principle of the separation of powers","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-12-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43206446","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 1
The Urgenda Case in the Netherlands on Climate Change and the Problems of Multilevel Constitutionalism 荷兰气候变化紧急案例与多层次宪政问题
Constitutional Review Pub Date : 2020-12-30 DOI: 10.31078/consrev622
G. van der Schyff
{"title":"The Urgenda Case in the Netherlands on Climate Change and the Problems of Multilevel Constitutionalism","authors":"G. van der Schyff","doi":"10.31078/consrev622","DOIUrl":"https://doi.org/10.31078/consrev622","url":null,"abstract":"This contribution analyses the Urgenda judgments in the Netherlands which ordered the state to reduce the national emissions of greenhouse gasses by 25% by the end of 2020. In arriving at this conclusion, the courts relied heavily on international law, which was applied indirectly and directly to the case. The analysis shows various incongruencies and gaps in the judgments’ legal grounds and reasoning, and suggests that a focus on the Constitution is needed as well in addressing such important issues. This will require long overdue reform of the bar on constitutional review in order to stimulate a strong national legal culture based on the Constitution.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-12-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69274278","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 1
Constitutionalized But Not Constitute: The Case of Right to Social Security in Indonesia 宪法化而不构成:印尼社会保障权案例
Constitutional Review Pub Date : 2020-12-30 DOI: 10.31078/consrev623
Stefanus Hendrianto
{"title":"Constitutionalized But Not Constitute: The Case of Right to Social Security in Indonesia","authors":"Stefanus Hendrianto","doi":"10.31078/consrev623","DOIUrl":"https://doi.org/10.31078/consrev623","url":null,"abstract":"Previous studies on the development of socio-economic rights in Indonesia heavily focus on the Constitutional Court’s decisions in upholding the rights. But there is still minimum study on the political economy behind the development of socio-economic rights in Indonesia. This article will analyze the development of socio-economic rights through the lenses of the right to social security. This article relies on two major theoretical frameworks to analyze the development of the right to social security in Indonesia. The first theoretical framework is the authoritarian constitutionalism in the economic sphere. The second theoretical framework in this article is Kathrine Young’s theory of the construction of socio-economic rights. This article postulates that the rights to social security has been constitutionalized but not constituted in Indonesia for several reasons. First, and foremost, the legacy of authoritarian constitutionalism that prioritizing economic growth over the fulfilment of social economic rights. The “growth” ideology has contributed to the discrepancy between the constitution and reality, in which the government merely considers protection of socio-economic rights as extra cost, which will hamper the growth of the economy. Second, the lack of philosophical and comparative analysis in the interpretation of rights to social security. Third, the transformation of the Court as a detached court in the enforcement of the rights to social security. The element of detachment is clearly seen in the Court’s too much deferral to the Executive and Legislative branches in defining the scope and meaning of the right to social security. Finally, the failure of social movement to create a new narrative on injustice and the importance of rights to social security.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-12-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45905264","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 4
Enforcing Nonjusticiable Rights In Indonesia 在印度尼西亚执行不可审理的权利
Constitutional Review Pub Date : 2020-12-30 DOI: 10.31078/consrev625
Andy Omara
{"title":"Enforcing Nonjusticiable Rights In Indonesia","authors":"Andy Omara","doi":"10.31078/consrev625","DOIUrl":"https://doi.org/10.31078/consrev625","url":null,"abstract":"A debate over which branch of government is the most appropriate institution to deal with economic and social rights is far from ended. Is it the legislature which is democratically elected or the unelected Court that should determine the enforcement of economic and social rights? Problems pertaining to the lack of legitimacy and competence often come up when the Court is involved in determining economic and social rights. These problems arise because a court is not democratically elected and is not equipped with necessary tools to deal with such a complex issue in economic and social rights. However, others believe that the Court’s involvement in determining economic and social rights can strengthen democracy since the Court may enforce matter that is not sufficiently addressed by the lawmaker. This paper will address the above issue in context of Indonesia. Should the Court involve in protecting economic and social rights? If so, how far the Court can go to determine economic and social rights? This paper acknowledges that economic and social rights are a broad and complex topic. Therefore, this paper limits the discussion by analyzing four selected judicial rulings which have significant impact in the protection of economic and social rights in Indonesia i.e. the judicial review cases on Electricity Law, Water Resources Law, National Education System Law and National Budget Law. This paper argues that it is necessary for the Court to involve in determining economic and social rights, especially when the lawmaker does not sufficiently address issues related to economic and social rights in its legislative product. The Court may fill the gaps in the protection of Economic and Social rights. The Court roles in this context, however, potentially encroach the authority of other branches of governments i.e. the executive and the legislative. Therefore, the Court roles should be carefully and strategically conducted so that it does not infringe the jurisdiction of the government and the lawmakers.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-12-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41515272","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 2
Progressive Nature of Social and Economic Rights in Kenya: a Delayed Promise? 肯尼亚社会和经济权利的进步性质:一个延迟的承诺?
Constitutional Review Pub Date : 2020-06-02 DOI: 10.31078/consrev615
Jennifer Gitiri
{"title":"Progressive Nature of Social and Economic Rights in Kenya: a Delayed Promise?","authors":"Jennifer Gitiri","doi":"10.31078/consrev615","DOIUrl":"https://doi.org/10.31078/consrev615","url":null,"abstract":"This paper evaluates the steps taken towards the progressive realization of social and economic rights (SER) in Kenya. It aims to provide a better understanding of SER and the obligations of the state under international, regional, and national law. It further elucidates the components of progressive realization. Additionally, it identifies the guiding principles of measuring progressive realization and recommendations to develop tools that would monitor progressive realization. Recognition of SER faces many challenges as they are considered as second class rights that are not equal to civil and political rights considered as first-generation rights. The most enduring challenge for SER is that it interferes with the concept of the separation of powers and the political question doctrine by enabling courts to interfere in matters considered to be under the purview of the legislative and executive branch. The paper uses a desktop review of international, regional, and national legal instruments as well as comparative evaluation of SER jurisprudence from a host of jurisdictions. The concept of progressive realization is a goal in the ICSECR, Kenya’s Constitution, and other Constitutions with the implication that SER would be implemented over a period of time. Jurisprudence from other jurisdictions is evaluated to determine the lessons learned by Kenya. The paper demonstrates that progressive realization and implementation of SER are still work in progress before they are finally anchored into mainstream human rights, just like political and civic rights. In conclusion, progressive realization of SER imports an immediate obligation by Kenya having ratified the three human right bodies (ICSECR, UNCRC, and CRPWD) pursuant to Article 2(5)(6) of the Constitution to expeditiously move towards the realization of SER. There is a further presumption that the country would refrain from retrogressive measures and instead adopt the minimum content approach in the implementation of SER.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-06-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48876891","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
The Regime's Violation of the Right to Property in the West Bank, Palestine: Rawabi Project as a Case Study 巴勒斯坦西岸政权对财产权的侵犯:以拉瓦比项目为例
Constitutional Review Pub Date : 2020-06-02 DOI: 10.31078/consrev616
Osayd Awawda
{"title":"The Regime's Violation of the Right to Property in the West Bank, Palestine: Rawabi Project as a Case Study","authors":"Osayd Awawda","doi":"10.31078/consrev616","DOIUrl":"https://doi.org/10.31078/consrev616","url":null,"abstract":"The purpose of this paper is to assess the Palestinian Constitutional Court's reasoning of its judgment in Rawabi Case, a case in which the Government's expropriation of a large area of privately-owned land was challenged before the Court. The expropriation was to transfer the ownership of that land to Bayti Real Estate Investment Company, a private company that later on built the first planned city in Palestine: Rawabi. This paper explains what implications the judgment in this case has on the relationship between the regime and other major private investors in the West Bank. The paper starts with explaining how some constitutional courts perform the function of providing credible commitments in the economic sphere, where such courts are situated in authoritarian settings. Then, it moves to the specific case of Rawabi, explaining the facts of the case and describing Rawabi's connections to the regime's interests. The paper concludes that the Constitutional Court has failed to perform its main function of upholding the Palestinian Basic Law and, in particular, protecting the right to property for the owners of the expropriated lands.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-06-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41549251","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 1
Against the Odds: Protection of Economic, Social, and Cultural Rights by the Constitutional Court of Ukraine 克服困难:乌克兰宪法法院对经济、社会和文化权利的保护
Constitutional Review Pub Date : 2020-06-02 DOI: 10.31078/consrev613
Y. Sheliazhenko
{"title":"Against the Odds: Protection of Economic, Social, and Cultural Rights by the Constitutional Court of Ukraine","authors":"Y. Sheliazhenko","doi":"10.31078/consrev613","DOIUrl":"https://doi.org/10.31078/consrev613","url":null,"abstract":"The article traces historical development, doctrine, and impact of constitutional review in Ukraine related to matters of social justice. It is shown that international review of Ukraine’s reports on observance of human rights obligations indicated a low level of compliance during the absence of independent constitutional review by the judiciary. After the establishment of the constitutional review, the compliance was improved against all doubts, whether socio-economic rights are justiciable in the Ukrainian context, and whether the judges are empowered enough to reshape authoritarian policies. Constitutional Court of Ukraine developed a doctrine of social justice based on the values of the rule of law, liberty, and equality, founding a pragmatic balance between the imperatives of individual freedom and economic security. In legal reasoning, judges implemented ideas of the human-centered state and personal autonomy in civil society, close to liberal democratic views, expressed by framers of the Constitution of Ukraine.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-06-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42630297","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Constitutional Change: Towards Better Human Rights Protection in Australia 宪法改革:在澳大利亚更好地保护人权
Constitutional Review Pub Date : 2019-11-18 DOI: 10.31078/consrev523
Mohammad Ibrahim
{"title":"Constitutional Change: Towards Better Human Rights Protection in Australia","authors":"Mohammad Ibrahim","doi":"10.31078/consrev523","DOIUrl":"https://doi.org/10.31078/consrev523","url":null,"abstract":"Many legal scholars contend that Australia does not have a charter of rights in its Constitution. The legal scholar Rosalind Dixon, however, suggests that the Constitution does include some provisions that could be viewed as resembling a (partial) bill of rights. This constitutional framework might cause one to ponder whether human rights are adequately protected in the Australian constitutional system. This paper attempts to consider this question. It is argued that the protection of human rights under the Constitution, federal and state laws is not fully capable of responding to at least three human rights crises presented. Accordingly, the paper suggests that Australia should consider the idea of amending the Constitution in order to better human rights protection in the country. It offers suggestion that the Canadian model protection of human rights could be considered as one of the primary sources for reforms in the future.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43586714","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Bosnia-Herzegovina: The Role of the Judiciary in a Divided Society 波斯尼亚-黑塞哥维那:司法在分裂社会中的作用
Constitutional Review Pub Date : 2019-11-18 DOI: 10.31078/consrev521
J. Marko
{"title":"Bosnia-Herzegovina: The Role of the Judiciary in a Divided Society","authors":"J. Marko","doi":"10.31078/consrev521","DOIUrl":"https://doi.org/10.31078/consrev521","url":null,"abstract":"This paper analyzes the role of the Constitutional Court of Bosnia and Herzegovina for the promotion of social justice under the conditions of a triple transformation from war to peace and from a communist regime based on the Titoist self-management ideology to a liberal-democratic political regime and economic market system in three parts. The first section describes the political, constitutional and economic context during and after the collapse of the former Socialist Federal Republic of Yugoslavia and the war in Bosnia-Herzegovina. The second section describes and analyzes the constitutional and institutional arrangements established under the General Framework Agreement for Peace, concluded in Dayton/Ohio and Paris, 1995. The third section deals with the role of the Constitutional Court and analyzes with reference to its case law the interpretative doctrines developed in its adjudication of the right to property concerning different concepts of property and the right to work in the context of the constitutionally guaranteed right to return of refugees and restitution of property.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47717830","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 2
Constitutional Preview and Review of International Treaties: France And Indonesia Compared 国际条约的宪法预览与审查:法国与印度尼西亚的比较
Constitutional Review Pub Date : 2019-05-31 DOI: 10.31078/CONSREV512
Dewi Nurul Savitri
{"title":"Constitutional Preview and Review of International Treaties: France And Indonesia Compared","authors":"Dewi Nurul Savitri","doi":"10.31078/CONSREV512","DOIUrl":"https://doi.org/10.31078/CONSREV512","url":null,"abstract":"The Indonesian Supreme Court and the Indonesian Constitutional Court are experienced in examining international treaties, although the Indonesian constitution and national laws do not stipulate this matter explicitly. The Constitutional Council of France has the authority to examine judicial previews of bills concerning international treaties. Moreover, French judges can examine international treaties. There is also the European Court of Human Rights, which has an important role concerning the control of conventionality. This article aims to promote discussion about the examination of international treaty cases in Indonesia. It begins by considering the international scholarly literature on integrating international treaties and the rank of international treaties in the national legal system. Then, this article discusses the possibility of the Indonesian Constitutional Court to examine judicial preview of international treaty bills and judicial reviews concerning ratified international treaties.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43451364","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 2
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