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Constitutional Review in the Middle East and North Africa最新文献

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Mapping Constitutional Review in the Middle East and North Africa: Historic Developments and Comparative Remarks 绘制中东和北非的宪法审查:历史发展和比较评论
Pub Date : 2021-08-24 DOI: 10.5771/9783748912019-11
A. Schoeller-Schletter
a priori Incidental/ concrete control Individual complaint Mauretania Constitutional Council Yes No No Lebanon Constitutional Council Yes No No Syria Constitutional Court Yes No No Egypt Constitutional Court Yes Yes No Tunisia Constitutional Court Yes Yes No Bahrain Constitutional Court Yes Yes No Morocco Constitutional Court Yes Since 2011 No Algeria Constitutional Council Yes Since 2016 No Saudi Arabia Supreme Court N/A Yes No UAE Supreme Court No Yes No Iraq Supreme Court No Yes No Jordan High Tribunal No Filtered (Cass. C) No Kuwait Constitutional Court Yes Yes Yes Libya Supreme Court Yes No Yes Sudan Constitutional Court No No Yes Yemen Supreme Court No Yes Since 1991
先验偶然/混凝土控制个人投诉毛里塔尼亚宪法委员会是的不黎巴嫩宪法委员会不叙利亚宪法法院是不否埃及宪法法院是的是的没有突尼斯宪法法院是的是的没有巴林宪法法院是的是的摩洛哥宪法法院是自2011年以来否阿尔及利亚宪法委员会是自2016年以来,不是沙特阿拉伯最高法院N / a是的没有阿联酋最高法院没有对伊拉克最高法院没有对不约旦高级法庭(Cass)C)否科威特宪法法院是是利比亚最高法院是否苏丹宪法法院否否也门最高法院否1991年以来
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引用次数: 0
Challenging the Validity of Membership of the House of Representatives in Jordan 质疑约旦众议院成员资格的有效性
Pub Date : 1900-01-01 DOI: 10.5771/9783748912019-259
Laith K. Nasrawin
This chapter aims to analyze the legal means available to challenge the validity of membership in the Jordanian House of Representatives, which is considered as one face of electoral disputes that arise after the completion of the voting process and the announcement of final results. The chapter focuses on the scrutiny that the Jordanian judiciary exercises in case of contesting the election procedures and consequently claiming that the membership of a certain candidate is void, from the legitimacy and constitutionality perspectives. The oversight of legitimacy revolves around the extent to which electoral procedures were violated, whereas the constitutional control relates to the extent the Law of Election is compatible with or contravenes the provisions of the Jordanian Constitution. Both methods were substantially revised in 2011, upon the comprehensive constitutional reform that Jordan conducted. Finally, the chapter deals with the legal implications of applying both the legitimacy and constitutional scrutiny with respect to the membership of those elected to the Jordanian House of Representatives.
本章旨在分析挑战约旦众议院成员资格有效性的法律手段,这被认为是投票过程完成和宣布最终结果后出现的选举争端的一个方面。本章集中讨论约旦司法机关在对选举程序提出异议并因此从合法性和合宪性的角度声称某一候选人的成员资格无效时所进行的审查。对合法性的监督围绕着选举程序被违反的程度,而宪法控制则涉及选举法在多大程度上符合或违反约旦宪法的规定。2011年,约旦进行了全面的宪法改革,对这两种方法进行了实质性修改。最后,本章讨论了对当选为约旦众议院议员的成员实行合法性和宪法审查的法律影响。
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引用次数: 0
Guarantees and Challenges of Judicial Independence: The Constitutional Courts of Kuwait and Bahrain as Case Studies 司法独立的保障与挑战:以科威特和巴林宪法法院为个案研究
Pub Date : 1900-01-01 DOI: 10.5771/9783748912019-61
Salma Waheedi
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引用次数: 0
The Independence of Constitutional Judges: The Case of Jordan 宪法法官的独立性:约旦的案例
Pub Date : 1900-01-01 DOI: 10.5771/9783748912019-47
Sufian Obeidat
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引用次数: 0
Constitutional Courts and Supreme Courts: A Difficult Relationship 宪法法院和最高法院:艰难的关系
Pub Date : 1900-01-01 DOI: 10.5771/9783748912019-77
Rainer Grote
In countries with a specialized constitutional jurisdiction, the smooth functioning of the separation of powers between a constitutional court and the supreme courts in the administrative, criminal, civil and other jurisdictions cannot be taken for granted. The expanding reach of constitutional law and especially of the fundamental rights provisions of contemporary constitutions render close cooperation between the former and the latter both more necessary and more complex. A comparative survey shows that this central institutional relationship has evolved very differently in the four major constitutional democracies of Germany, Italy, Spain and France. While in Germany a hegemonic position of the Constitutional Court was swiftly established and has largely been accepted by the supreme courts of the other jurisdictions, in Spain the relationship between the Constitutional Court and the Supreme Court has taken a confrontational turn which has severely impaired the former’s authority. These widely diverging experiences show that constitutional and statutory regulation alone is not sufficient to produce a stable and productive relationship if it is not backed up by mutual respect and understanding which can only result from a permanent dialogue between the courts.
在具有专门宪法管辖权的国家,不能想当然地认为宪法法院和行政、刑事、民事和其他司法领域的最高法院之间的权力分立能够顺利运作。宪法,特别是当代宪法的基本权利条款的范围不断扩大,使得前者和后者之间的密切合作更加必要和复杂。一项比较调查显示,在德国、意大利、西班牙和法国这四个主要宪政民主国家,这种核心制度关系的演变非常不同。虽然在德国,宪法法院的霸权地位迅速确立,并在很大程度上为其他司法管辖区的最高法院所接受,但在西班牙,宪法法院和最高法院之间的关系已转向对抗性,严重损害了前者的权威。这些广泛不同的经验表明,如果没有相互尊重和理解的支持,仅靠宪法和法定规定是不足以产生稳定和富有成效的关系的,而相互尊重和理解只有通过法院之间的长期对话才能产生。
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引用次数: 0
The Changing Constitutional Framework of Church-State Relations in Europe 欧洲政教关系宪法框架的变迁
Pub Date : 1900-01-01 DOI: 10.5771/9783748912019-329
Rainer Grote
Although the Christian religion has lost its once-dominant place in European societies as they have taken on a more secular, religiously diverse character in the post-World War II era, the constitutional principles and rules governing the relationship between state and church have remained remarkably stable in most parts of non-Communist Europe. They can be grouped into three main categories, depending on the form and degree of cooperation or separation they provide for in the relationship between the established Church(es) and the state. By contrast, the task of accommodating the new religious groups including Muslims which are an important feature of the increasing religious diversity of European societies within the existing constitutional settlements on the relationship between the state and religion has largely been left to the legislature and the courts. This has allowed new meta-norms to penetrate the constitutional space of the European states, particularly the guarantees in the European Convention of Human Rights on religious liberty in its individual as well as collective dimensions and the principle of non-discrimination on religious grounds.
尽管基督教在二战后的欧洲社会中已经失去了曾经的主导地位,因为欧洲社会呈现出更加世俗、宗教多样化的特征,但在非共产主义欧洲的大部分地区,管理政教关系的宪法原则和规则仍然非常稳定。根据它们在国教与国家之间的关系中所提供的合作或分离的形式和程度,它们可以分为三大类。相比之下,在现有的关于国家与宗教关系的宪法解决方案中,容纳包括穆斯林在内的新宗教团体的任务在很大程度上留给了立法机关和法院。穆斯林是欧洲社会日益增加的宗教多样性的一个重要特征。这使得新的元规范得以渗透到欧洲国家的宪法空间,特别是《欧洲人权公约》中关于个人和集体层面的宗教自由的保障以及基于宗教理由的不歧视原则。
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引用次数: 0
Judicial Review of Elections: The Egyptian Experience 选举的司法审查:埃及的经验
Pub Date : 1900-01-01 DOI: 10.5771/9783748912019-209
Yussef Auf
In line with adopting the Egyptian Constitution of 1923, which paved the way for the first-ever pluralistic elections in the history of modern Egypt, the judicial bodies have been a major player in deciding not only on the election’s results and validity, but also on the electoral laws in terms of its constitutionality and legitimacy. While in Egypt the administrative courts decide in queries about the election’s procedures, the Court of Cassation, Egypt’s highest court in the general judiciary, decides on the validity of the MP’s memberships itself. Over time, the Supreme Constitutional Court has frequently been interacting with the electoral issues by deciding on the legitimacy and constitutionality of the electoral laws and regulations. This has been done by judicial review prior to the issuance of the law, and by judicial review after the law’s promulgation. This chapter discusses and illustrates the role that has been played over decades by various courts concerned with electoral disputes in Egypt
1923年通过的埃及宪法为现代埃及历史上第一次多元化选举铺平了道路,司法机构不仅在决定选举的结果和有效性方面,而且在决定选举法的合宪性和合法性方面发挥了重要作用。在埃及,行政法院对有关选举程序的质疑作出裁决,而埃及最高司法法院——最高上诉法院,则自行决定议员身份的有效性。长期以来,最高宪法法院通过对选举法和条例的合法性和合宪性作出裁决,经常与选举问题相互作用。这是通过法律颁布前的司法审查和法律颁布后的司法审查来实现的。本章讨论并说明了几十年来埃及各法院在选举纠纷中所扮演的角色
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引用次数: 0
Constitutional Courts and Councils in the Middle East and North Africa: Basic Facts and Figures 中东和北非的宪法法院和委员会:基本事实和数据
Pub Date : 1900-01-01 DOI: 10.5771/9783748912019-377
A. Schoeller-Schletter, R. Poll
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引用次数: 0
The Extent of the Authority of the Constitutional Court of Kuwait to Annul an Elected Parliament: The Cases of the 2012 Parliaments 科威特宪法法院废除民选议会的权力范围:2012年议会的案例
Pub Date : 1900-01-01 DOI: 10.5771/9783748912019-229
Fawaz Almutairi
The Kuwaiti Constitutional Court annulled two elected parliaments in the same year. The court annulled the National Assembly that was elected in February 2012 after four months of its election 1 , and the National Assembly that was elected in December 2012 after six months of its election 2 . The two decisions had a major impact on the extent of the court’s authority to nullify elected parliaments due to wrong governmental measures which have nothing to do with any parliamentary actions. The legal access to the Constitutional Court to examine the legitimacy of an elected parliament was through the exceptional authority granted to it to examine the electoral appeals. This chapter first discusses the extent of the Court’s jurisdiction to examine electoral appeals and then its authority to annul an elected parliament. The Constitutional Court has a number of competences - its inherent competence being to examine the constitutionality of laws and decrees. The control of election laws and the electoral process also fall under its jurisdiction, as is the case in several other countries of the region, for example Egypt. Here it may be considered as a normal Court where the electoral cases are appealed; whether concerning the division of constitu-encies or the voting mechanism. In some instances, the same court hears electoral appeals in terms of election invalidity, whether in relation to invalid legal procedures that vitiated the electoral process, or in relation to the inspection of practices during the electoral process, or in relation to arithmetic errors and erroneous announcement of results. Thus, through this appeal function and “detour” in cases, wherein the Constitutional Court examined the former Royal Decrees regarding the electoral process,
同年,科威特宪法法院宣布两届民选议会无效。法院宣布2012年2月当选的国民议会(4个月后)和2012年12月当选的国民议会(6个月后)无效。这两项裁决对法院的权力范围产生了重大影响,该法院有权因错误的政府措施而废除与任何议会行动无关的民选议会。向宪法法院审查选举议会合法性的合法途径是通过授予宪法法院审查选举上诉的特殊权力。本章首先讨论法院审查选举上诉的管辖权范围,然后讨论法院废除民选议会的权力。宪法法院具有若干权限- -其固有权限是审查法律和法令是否符合宪法。对选举法和选举过程的控制也属于它的管辖范围,正如该区域其他几个国家,例如埃及的情况一样。在这里,就选举案件提出上诉的法院可被视为普通法院;无论是关于选区划分还是投票机制。在某些情况下,同一法院审理与选举无效有关的选举上诉,无论是与损害选举过程的无效法律程序有关,还是与检查选举过程中的做法有关,或与计算错误和错误宣布结果有关。因此,通过这一上诉职能和在宪法法院审查关于选举进程的前皇家法令的案件中“绕行”,
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引用次数: 0
Integrating or Polarising? How to Promote Integrative Decision-Making in Constitutional Courts 积分还是极化?如何促进宪法法院的一体化决策
Pub Date : 1900-01-01 DOI: 10.5771/9783748912019-189
Gertrude Lübbe-Wolff
For constitutional courts to be able to activate the integrative function of the constitution they have to interpret and apply, and to avoid the risk of fostering polarization, they must work in a collegial, consensus-oriented, deliberative way. Some courts do better on that score than others. Why is that so? The article draws attention to institutional frameworks explaining the differences in underlying cultures of deliberation. A fundamental difference between courts in common law countries with their historical roots in the tradition of seriatim decision-making, and courts outside the common law world with their less individualist decision-making traditions is that the former need a majority only for the outcome of a decision, whereas the latter need a majority for the reasons, as well. Many other institutional features, mentioned in the final section of the article, also matter. The differences with respect to majority requirements, however, provide a particularly telling example of how institutional frameworks shape judicial behavior in unnoticed ways.
宪法法院要想发挥其解释和适用的宪法的综合功能,避免两极分化的风险,就必须以合议、协商一致的方式开展工作。有些法院在这方面做得比其他法院好。为什么会这样呢?这篇文章引起了人们对制度框架的关注,这些制度框架解释了审议的潜在文化差异。英美法系国家的法院与英美法系国家以外的法院之间的一个根本区别是,前者只需要判决结果的多数,而后者则需要理由的多数。英美法系国家的法院的历史根源在于,它们的决策传统不那么个人主义。文章最后一节提到的许多其他制度特征也很重要。然而,多数要求方面的差异提供了一个特别有说服力的例子,说明体制框架如何以不被注意的方式影响司法行为。
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Constitutional Review in the Middle East and North Africa
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