In Search of the Theory of Constitutional Machinery Failure (Emergency) Models in India and Pakistan: a Comparative Exploration

Author(s): Panch Rishi Dev Sharma / Language(s): English Issue: 1/2017

In spite of a contextual and constitutional affinity, Comparative Constitutional Law has been an unexplored area in South Asia. The article relates to one form of Constitutional Emergency in India and Pakistan - Constitutional Machinery Failure Emergency in the provincial units, which has a colonial past and an oppressive present. With identical provision in the constitutions of India and Pakistan, it sanctions almost unfettered power to the centre to declare an emergency relating to Constitutional Machinery Failure: one of the most abused provisions of Indian and Pakistani Constitutional Polity. The unique system of Constitutional Machinery Failure has also gone through huge changes, at times influenced by each other, scaling the modification of Emergency; the article also tries to conceptualize Constitutional Machinery Failure Emergency in India and Pakistan.

ИЗДВОЈЕНО МИШЉЕЊЕ НА ОДЛУКУ УСТАВНОГ СУДА IУЗ-156/14 (Оцена уставности Закона о допуни Закона о судијама, „Службени гласник РС“, број 121/12)

Author(s): Dragan Stojanović / Language(s): Serbian Issue: 71/2015

ИЗДВОЈЕНО МИШЉЕЊЕ НА ОДЛУКУ УСТАВНОГ СУДА IУЗ-156/2014 (Оцена уставности Закона о допуни Закона о судијама, „Службени гласник РС“, број 121/12)

Author(s): Olivera Vučić / Language(s): Serbian Issue: 71/2015

ИЗБОРНО ПРАВО ОСОБА СА ИНВАЛИДИТЕТОМ

Author(s): Maja Nastić / Language(s): Serbian Issue: 70/2015

Принцип једнаког права гласа, као један од елементарних принципа изборног система, подразумева да изборни процес треба свим грађанима да обезбеди да се њихови гласови једнако узимају у обзир. У контексту остваривања прокламоване једнакости у раду се посебна пажња посвећује остваривању изборног права особа са инвалидитетом. Имајући у виду сложену природу изборног права, неопходно је изборни процес у сваком од његових аспекта прилагодити тако да обухвата особе са инвалидитетом. Полазну основу у раду представљају релевантни међународни документи. Такав приступ се допуњује решењима у упоредном праву. Посебна пажња усмерена је ка решењима која постоје на националном нивоу, са циљем да се укаже на могуће недостатке и евентуална прилагођавања са међународним стандардима.

EUROPEAN MODEL OF CONSTITUTIONAL JUSTICE - ITS EXISTANCE AND PERSPECTIVE

Author(s): Olivera Vučić,Dragan Stojanović / Language(s): English Issue: 69/2015

In a number of states, including the Republic of Serbia, constitutional justice has been assuming the role of the supervisor of the legislative, the executive and the regular judicial power. Although it means that constitutional courts in Europe have increasingly become "the people's courts", they still preserve the character of independent institutions which, while resolving extremely complex objective constitutional conflicts, still occupy, "a position at the intersection of law and politics". On the other hand, an extraordinary activism of constitutional justice in review of rights has resulted in an increased number of proponents in the doctrine of constitutional jurisprudence advocating the standpoint that constitutional justice is a specific power of constitutional control; given its nature, it has come to be the "forth" branch of state authority.

Уставносудско и законско уобличавање нормативне надлежности Аутономне Покрајине Војводине

Author(s): Tamás Korhecz,Katinka Beretka / Language(s): Serbian Issue: 1/2018

Provisions of the Constitution of the Republic of Serbia from 2006 concerning the position of the Autonomous Province of Vojvodina are essentially based on constitutional solutions from 1990 with some differ ences. Compared to the previous one, the present Constitution contains numerically more norms regulating the position of autonomous provinces (actually the Autonomous Province of Vojvodina being the only autono mous province in the legal system of the Republic of Serbia): regulatory powers have been extended to new social fields, there are constitutional guarantees of property of the autonomous province, types and degree of its incomes, as well as protection of the autonomous province from po tential usurpation of its competences by the State and local municipali ties. Notwithstanding the formal extension of constitutional guaranties concerning the position of the AP Vojvodina real weight and scope of these constitutional provisions, especially those being a novelty in the legal system of Serbia, might be evaluated only through analysis of the constitutional practice. This paper is going to analyze competences of AP Vojvodina in the field of regulation, law-making. The analysis involves different solutions in laws regulating competences of AP Vojvodina as well as interpretations and standings of the Constitutional Court on the scope and limitations of these regulatory powers. It has been found that laws contain „colorful“ solutions concerning determination of the regula tory powers of the AP Vojvodina, and still, ten years after the enactment of the Constitution, owing to juridical practice and interpretations of the Constitutional Court the AP Vojvodina has practically no right to regulate issues of social life by the regulations of the Provincial Assembly, even though it would be possible in different ways even within current constitutional framework and limits.

FUNDAMENTAL VALUES IN NEW DEMOCRACIES: THE PRINCIPLE OF REPRESENTATION IN THE SERBIAN CONSTITUTION

Author(s): Irena Pejić / Language(s): English Issue: 67/2014

In this paper, the author analyzes the process of establishing a system of fundamental values in the rule of law in the context of constitutional discontinuity by exploring the concept of representative mandate as a basic constitutional principle in new democracies. The first part contains general considerations on the relationship between the constituent power and the fundamental values, as well as the (non)legal factors which should provide both for the establishment of constitutional rules and their interpretation for the purpose of upholding the fundamental values. The subject matter of analysis in the second part are citizens’ value judgments on the representative mandate, which point out to the evolutive pattern underlying this principle both in the developed and in the developing democracies. Taking into account a discrepancy between the existing and the proclaimed constitutional system in Serbia, the third part of the paper contains a proposal for instituting a set of prospective constitutional measures to support citizens’ value judgments on the representative mandate.

O doktrini nedelegacije u pravnoj tradiciji Sjedinjenih Američkih Država

Author(s): Danilo Stevandić / Language(s): Serbian Issue: 2/2017

The article deals with application of the nondelegation doctrine in the law order of the United States of America. After the introductory statements, it is the constitutional ground of the nondelegation doctrine that is explored first and then the basic standpoints of the law science regarding the legislative delegation problems are considered. Exploring the origins and development of the nondelegation doctrine has been completed with the analysis of the Supreme Court practice during and after The New Deal period. The author concludes that the revival of the nondelegation doctrine is hardly possible but that simultaneously the idea of nondelegating the legislative powers still lives within a part of the law science and judicial practice.

ПРЕДЛОЗИ ЗА РЕФОРМУ УСТАВА У ДЕЛУ КОЈИ СЕ ОДНОСИ НА ПРАВОСУЂЕ – ПРЕИСПИТИВАЊЕ НАЦИОНАЛНЕ СТРАТЕГИЈЕ

Author(s): Vladan Petrović / Language(s): Serbian Issue: 68/2014

The National Strategy for the Reform of the Judiciary (2013 – 2018) is adopted in the National Assembly in June 2013. It is said that “some commitments of this Strategy demand the revision of the Constitution“. The author analizes the part of the Strategy relating to the change of so-called constitutional framework of the judiciary. Among defined goals, which should be realized by 2018, he considers particularly disputable the prediction of the Judical Academy as a mandatory condition for the first election of judges and prosecutors. Without denying the importance of the Judicial Academy and the necessity of its reform, the author believes that the Academy should not be a constitutional category, just as the conditions for the election of judges and prosecutors are not a constitutional matter. On the other hand, the author advocates a return of the basis for the termination of judicial and prosecutorial functions, as well as the reasons for their dismissal, into the Constitution which are currently in the law.

КОНСТИТУЦИОНАЛИЗАЦИЈА СУДСКЕ НЕЗАВИСНОСТИ: УПОРЕДНО И ИСКУСТВО СРБИЈЕ

Author(s): Irena Pejić / Language(s): Serbian Issue: 68/2014

The aim of this paper is to point out that the guarantees of judicial independence have to be regulated by the Constitution as they create de iure framework for the independence of the judiciary in the rule of law system. The author is aware that the constitutional guarantees are per se insufficient and that their primary features may yield different effects depending on the political environment and cultural matrix in which they take effect. The judicial system operates in the circumstances of the separation of powers, where the independent judiciary is corroborated a guarantee of the rule of law. Hence, it is important to concurrently elaborate on the institutional and personal guarantees of judicial independence, focusing on the responsibility of the political authorities to create a relevant social environment for the operation of the independent judiciary as well as on the responsibility of the judiciary to independently exercise their judicial function. The author’s intention in this paper is to provides a comparative analysis on the guarantees of independent judiciary and the minimum rules that constitute the cohesive core which serves as the common meeting grounds not only for the EU member states but also for all countries of the European-Continental legal system in their efforts to ensure the judicial independence as the primary condition for exercising the rule of law. The corpus of constitutional guarantees on independent judiciary includes the following elements: the judicial appointments and termination of a judicial office; the permanence of the judicial office and impartiality in decision-making processes; the professional responsibility and judicial immunity; as well as the recently established judicial councils, which have been given the constitutional authority to protect the independence of the judiciary.

The Constitutionality of Taking DNA Reference Sample

Author(s): Józef Wójcikiewicz,Violetta Kwiatkowska-Wójcikiewicz / Language(s): English Issue: 1/2017

This paper focuses on the opinions of constitutional courts in the Federal Republic of Germany, United States of America, Canada, the Czech Republic, and the Constitutional Tribunal in Poland on taking references samples for DNA tests from a suspect (an accused). The inconsistency of Polish regulations referring to the DNA analysis is the main object of criticism.

Šta traže srpski tužioci u sklopu promena Ustava Republike Srbije?

Author(s): Smilja Spasojević / Language(s): Bosnian,Croatian,Serbian Issue: 31/2018

The proposal for changing the Constitution of the Republic of Serbia concerning the prosecution goes in three directions: change of the Constitution regarding the position of the National Assembly, change of the Constitution concerning the Public Prosecution and change of the Constitution concerning the State Prosecutorial Council. There are several dominant ideas that are common to all changes and based on those ideas, the concrete proposals are made. It is a complete release from the influence of the other two government branches - legislative and executive. Then, it is the full work autonomy, which implies a different arrangement in terms of establishing vertical responsibility. A special characteristic is that the prosecutorial council is given the opportunity to have independent autonomy in the choice of prosecutors and to extend the authority of this body in order to ensure independent functioning. There is also the tendency to extend competencies to protect constitutionality and legality, human rights and civil liberties. The most important decision of the proposed changes is the intention that the prosecution, together with the judiciary, forms a new type of authority, which would no longer be called judicial, but right-judicial authority.

Інституційний механізм забезпечення конституційної скарги в Україні: концептуальні проблеми

Author(s): O. M. Litvinov,V. V. Bogush / Language(s): English,Russian,Ukrainian Issue: 141/2018

Article 78 of the Law of Ukraine «On the Constitutional Court of Ukraine» prescribes that exclusively the Grand Chamber, on its own initiative, may take measures to secure a constitutional complaint by imposition of a temporary ban on a certain action when it is necessary to prevent irreversible consequences that may occur due to execution of the final court judgment wherein challenged law of Ukraine (specific provisions thereof) has been applied.However, according to the second section of article 32 of the Law of Ukraine «On the Constitutional Court of Ukraine», the Grand Chamber, the Senates and the Boards shall act as the Constitutional Court of Ukraine under the powers determined by this Law in respect of constitutional proceedings.Moreover, analysis of the provisions of the Law of Ukraine «On the Constitutional Court of Ukraine» gives rise to stress that both the Board and the Senate are empowered to consider an issue of initiating constitutional proceedings in the case upon a constitutional complaint (an issue concerning the admissibility of a constitutional complaint). In addition, the Senate is empowered to consider an issue of conformity to the Constitution of Ukraine (constitutionality) of laws of Ukraine (specific provisions thereof) in the case upon a constitutional complaint (an issue concerning the merits of a constitutional complaint), and the Grand Chamber has this power in the event of relinquishment of jurisdiction by the Senate in favour of the Grand Chamber.That is why, prescribed by the Law of Ukraine «On the Constitutional Court of Ukraine» institutional mechanism of securing a constitutional complaint could be very ineffective in practice. It cannot access either the legitimate aim of securing a constitutional complaint that consists in preventing irreversible consequences that may occur due to execution of the final court judgment wherein challenged law of Ukraine (specific provisions thereof) has been applied, or the urgency of such an interim measure in the form of imposition of a temporary ban on a certain action.Nevertheless, the above problems could be easily improved by the relevant amendments to the Law of Ukraine «On the Constitutional Court of Ukraine» (for instance, by changing a phrase «the Grand Chamber», available into the first section of article 78 of the Law of Ukraine «On the Constitutional Court of Ukraine», to a phrase «the Constitutional Court of Ukraine»).

Конституційно-правовий механізм забезпечення незалежності судової влади України

Author(s): D. V. Kuleshov / Language(s): English,Russian,Ukrainian Issue: 141/2018

In the article in a consistent level researching the story behind, the process of global public perception valuable meaning of judicial independent idea, as well as stages of implementation of its idea in the function of direct Constitutional principle into organization and functioning the state mechanism of every modern democracy and legal-state. Pointed that realization of its important politico-legal idea in the society’s and the state’s real life is supported the proper constitutionally legal mechanism. Such mechanism usually means the integral system of statutory and regulatory as well as managerially institutional forms and recourses, which in aggregate provide social authority of judiciary, impartial justice in the form of fair and legally judgments, and indisputable and timely execution of it by all parties of public relationships free of its legal status and social status.In the article there is integrated analysis of legal framework and the system of the state and non state institutions partial constitutionally legal mechanism of judiciary independence supporting as well as problem spheres of it’s functionality on the modern stage of state-legal development of Ukraine. The conclusion is made that existence of statutory-regulatory regulation and institutional system totally are sufficient qualitative for the reaching the desired aim – the providing the real independence and high public authority of judiciary. The main issues were analyzed which preventing for real judiciary independence,for the main important of them are placed: the practice of unjustice adjudgment because of corruption factors; not enough high level of politico-legal culture of the judiciary establishment part; aspiration of representatives of other state authorities and certain political forces to influence for administration of justice; popularity of non-executions practice for judgments which came into legal force.

PRAKSA USTAVNOG SUDA BOSNE I HERCEGOVINE

Author(s): Miodrag N. Simović,Vladimir M. Simović / Language(s): Bosnian Issue: 1/2017

Postoji povreda prava iz člana II/3.d) Ustava Bosne i Hercegovine i člana 5. stav 3. Evropske konvencije za zaštitu ljudskih prava i osnovnih sloboda kada su redovni sudovi propustili da u odluci o produže¬nju mjere pritvora apelantu, uz postojanje osnova¬ne sumnje, kao opšteg uslova za produženje mjere pritvora, propustili sačiniti adekvatnu individu¬alnu procjenu osnova za pritvor u vezi sa apelan¬tom, odnosno pravilno cijeniti apelantove prilike u kontekstu određivanja pritvora iz istog razloga iz kog je pritvor određen protiv ostalih optuženih, te propustili cijeniti mogućnost određivanja mjera zabrane umjesto produženja mjere pritvora.

The Path the Polish Constitutional Tribunal Negotiated to Refer Questions for a Preliminary Ruling to the Court of Justice of the European Union

Author(s): Marzena Laskowska / Language(s): English Issue: 38/2017

Artykuł przedstawia proces kształtowania się poglądów polskiego Trybunału Konstytucyjnego na temat instytucji pytania prejudycjalnego do Trybunału Sprawiedliwości Unii Europejskiej (art. 267 Traktatu o funkcjonowaniu Unii Europejskiej), zwieńczony precedensowym skierowaniem takich pytań w sprawie o sygn. K 61/13, dotyczącej kontroli przepisów ustawy o podatku od towarów i usług. Chociaż po wyroku TSUE z 7 marca 2017 r. (sprawa C-390/15) postępowanie przed TK zostało ostatecznie umorzone, waga jego wystąpienia z pytaniami prejudycjalnymi jest historyczna. Brak konstytucyjnych oraz ustawowych podstaw prawnych nie powstrzymał TK od uznania swojej właściwości wynikającej w tym zakresie z prawa UE. Omówione w artykule pytania prejudycjalne stanowią przejaw przychylności polskiego sądu konstytucyjnego względem prawa UE i kolejny z zaprezentowanych przez autorkę etapów współpracy pomiędzy TK a TSUE.

Koszty procesu w postępowaniu przed Naczelnym Sądem Administracyjnym – wybrane problemy na tle orzecznictwa

Author(s): Katarzyna Grzelak-Bach / Language(s): Polish Issue: 38/2017

The author of the article discusses with theses of judgment Polish Constitutional Court (case no. SK 46/15). The author presents her own opinion about lack of possibility appeal to the Supreme Administrative Court in costs of proceeding subject. Article based on the European Court on Human Rights in Strasbourg case law and particularly based on the polish case law.

Realizacja uprawnień pokrzywdzonego w świetle uchybień procesowych (zagadnienia wybrane)

Author(s): Marta Kowalczyk-Ludzia / Language(s): Polish Issue: 38/2017

The following discussion indicates the varied nature of criminal proceedings, that at least in the theoretical assumption should be conducted among to principles of material truth (Art. 2 § 2 k.p.k.), objectivity (Art. 4 k.p.k.), process loyalty and equality of the parties. The practice often shapes the different assumptions and errors in its investigations and prosecutions give the wrong course of criminal process. Distortions in this regard were presented on the example of incorrectly performed actions in relation to the victim, which caused the estimation of the value of such actions is a difficult task, leading to a number of discrepancies in interpretation. The theoretical digressions were supported findings from the analysis of the results of the court files study.

Najnowsza próba reform konstytucyjnych we Włoszech

Author(s): Marta Sagan / Language(s): Polish Issue: 38/2017

The article is an attempt to outline the origin of the proposed reforms and their main assumptions (the extent of the issue does not allow for a thorough analysis of all 47 draft amendments to the Constitution). Because of the interconnectedness of the economies of the member states of the European Union, is not the only internal problem of Italy. The specificity of the subject matter is conditioned mainly by the use of Internet sources, both in the form of comments from the Polish and Italian media on the current events, as well as on the available draft of bills and binding legal acts. Other available official documents (ministerial and governmental) were also used. It is not without significance for the present study that translations of source materials are done by the author, taking into account specificity of the legal language.

АМЕРИКАНСКАТА КОНСТИТУЦИЯ ОТ 1787 ГОДИНА

Author(s): Georgi Bliznashki / Language(s): Bulgarian Issue: 1-2/2017

The US Constitution was adopted in 1787 and survived in the course of various historical perceptions, expanding and adapting to the changing reality both by amending its text and by the US Supreme Court's interpretations given in many specific occasions. Thus, the legal constitution is complemented by the phenomenon of “living constitution” in American constitutionalism. The American Constitution reflected the ideal of a society of free and equal citizens. It is based on the ideas and principles formulated by the classics of the liberal political thought John Locke and Charles-Louis Montesquieu, who were perceived as permanent postulates and truths of last resort. American constitutionalism constitutes a rich treasure of excellence, each of which can be both a source of inspiration and a role model.