German Constitutional Court (Bundesverfassungsgericht BVerfG) 2 BvE 2/08, 30. 6. 2009 – Organstreit proceedings between members of the German Parliament and the Federal Government

2011 ◽  
Vol 7 (4) ◽  
Author(s):  
Hans-W. Micklitz
Keyword(s):  
Federal Government ◽  
Constitutional Court ◽  
German Constitutional Court ◽  
German Parliament

scholarly journals Perbandingan Hukum Pembubaran Partai Politik Jerman dan Indonesia

2020 ◽  
Vol 7 (1) ◽  
pp. 44-52
Author(s):  
Nadzirotus Sintya Falady
Keyword(s):  
Political Parties ◽  
Federal Government ◽  
Secondary Data ◽  
Constitutional Court ◽  
Secondary Data Source ◽  
Data Source ◽  
German Constitutional Court ◽  
Clear And Present Danger ◽  
The Right ◽  
Basic Order

The objective of this article is to analyze the mechanism of dissolution political parties in Germany in order to find the right policy of dissolution political parties in Indonesia. Normative juridical research methods are used in this study with case studies and comparative approaches. The data source used is the secondary data source, which consists of primary legal material, secondary legal material, and tertiary legal material. This research analyzed descriptively qualitative. The conclusion obtained is that the dissolution of political parties denied the right of association and assembly which is endorsed by the constitution. The German Constitutional Court has disbanded political parties proportionally by examining and deciding on the dissolution of political parties not only in text but also in the context which meets the criteria of  ”clear and present danger” to the sovereignty of the German Federal Government and the free democratic basic order. Therefore, it is necessary to redesign the disruption of the dissolution of political parties in Indonesia with empirical sociological and psychological studies in order to meet the ”clear and present danger” criteria

scholarly journals Defending Sovereign Statehood Against Transforming the Union Into a State

2009 ◽  
Vol 5 (3) ◽  
pp. 353-373 ◽  
Author(s):  
Dieter Grimm
Keyword(s):  
Case Law ◽  
Court Decision ◽  
Democratic Legitimacy ◽  
Constitutional Court ◽  
Legislative Authority ◽  
German Constitution ◽  
German Constitutional Court ◽  
German Parliament ◽  
State Legislative ◽  
The Eu

German Constitutional Court decision of 30 June 2009 on the compatibility of the Lisbon Treaty with the German Constitution – Overview of earlier case-law – Analysis of the judgment – Comparison with earlier case-law – The Court's reference to sovereignty – The concept of democratic legitimacy – Participation of the German Parliament – Transformation of the EU into a state – Creeping evisceration of state legislative authority – Assessment of the judgment

scholarly journals Redesign Of Constitutional Mechanism For The Dissolution Of Political Parties: Comparative Study Of Indonesia and Germany (Redesain Mekanisme Konstitusional Pembubaran Partai Politik: Kajian Perbandingan Indonesia dan Jerman)

2019 ◽  
Vol 9 (2) ◽  
pp. 121-139
Author(s):  
Oly Viana Agustine
Keyword(s):  
Political Parties ◽  
Federal Government ◽  
Political Party ◽  
Government Policies ◽  
Constitutional Court ◽  
Federal Constitutional ◽  
German Constitutional Court ◽  
Clear And Present Danger ◽  
The Right ◽  
Basic Order

Dissolution of political parties is an authority that is monopolized by the Indonesian Constitutional Court and the Federal Constitutional Court of Germany. In contrast to the dissolution of associations, political parties have an important role in determining government policies that require specifically in the constitution. The Federal Constitutional Court of Germany has until now received nine requests for the dissolution of a political party with five decisions, namely two dissolutions granted and three dismissal of a political party has been rejected. While the Indonesian Constitutional Court since its establishment has never examined the dissolution of political parties. Thus it becomes an important and interesting thing to uncover the problem of dissolution of political parties in Germany in order to find the right policy in Indonesia. Normative juridical research methods are used in this study with case studies and comparison approaches. The conclusion obtained is that the dissolution of political parties denied the right of association and assembly which is endorsed by the constitution. The German Constitutional Court has disbanded political parties proportionally by examining and deciding on the dissolution of political parties not only in text but also in the context which meet the criteria of ”clear and present danger” to the sovereignty of the German Federal Government and the free democratic basic order. Therefore, it is necessary to redesign the disruption of the dissolution of political parties in Indonesia with empirical sociological and psychological studies in order to meet the ”clear and present danger” criteria.AbstrakPembubaran partai politik merupakan kewenangan yang dimonopoli, baik oleh Mahkamah Konstitusi Indonesia maupun Mahkamah Konstitusi Federal Jerman. Pembubaran partai politik berbeda dengan pembubaran organisasi lain, dikarenakan partai politik memiliki peran yang penting dalam penentuan kebijakan pemerintah yang pembatasannya perlu diatur khusus dalam konstitusi. Mahkamah Konstitusi Federal Jerman hingga saat ini telah menerima sembilan kali permohonan pembubaran partai politik dengan lima putusan yakni dua permohonan pembubaran dikabulkan dan tiga permohonan pembubaran partai politik ditolak. Sedangkan Mahkamah Konstitusi Indonesia sejak berdiri belum pernah memeriksa pembubaran partai politik. Dengan demikian, menjadi hal penting dan menarik untuk menganalisa mekanisme pembubaran partai politik di Jerman agar dapat ditemukan mekanisme yang tepat dalam pembubaran partai politik di Indonesia. Metode penelitian yang digunakan adalah yuridis normatif dengan pendekatan studi kasus dan perbandingan. Kesimpulan yang didapat dalam penelitian ini adalah pembubaran partai politik merupakan pembatasan hak berserikat dan berkumpul yang disahkan oleh konstitusi. Mahkamah Konstitusi Jerman telah melaksanakan pembubaran partai politik secara proporsional dengan memeriksa dan memutus pembubaran partai politik tidak hanya secara teks tetapi juga konteksnya yang memenuhi kriteria “clear and present danger” terhadap kedaulatan Pemerintah Federal Jerman dan tatanan demokrasi yang bebas. Oleh karena itu, perlu dilakukan desain ulang mekanisme pembubaran partai politik di Indonesia dengan kajian sosiologis dan psikologis secara empiris agar memenuhi kriteria “clear and present danger”.

‘An Association of Sovereign States’

2009 ◽  
Vol 5 (3) ◽  
pp. 391-406 ◽  
Author(s):  
Roland Bieber
Keyword(s):  
European Integration ◽  
Critical Assessment ◽  
Lisbon Treaty ◽  
Court Decision ◽  
Constitutional Court ◽  
German Constitution ◽  
German Constitutional Court ◽  
Conceptual Foundations ◽  
Fundamental Requirement ◽  
The Eu

German Constitutional Court decision of 30 June 2009 on the compatibility of the Lisbon Treaty with the German Constitution – Continuing sovereignty of member states under the EU Treaty – Extended constitutional limits to European integration (‘eternity clause’) under German Constitution, but these are not violated by Lisbon Treaty – Composition of European Parliament does not satisfy fundamental requirement of democracy but does not violate German Constitution since EU is not a state – Critical assessment of conceptual foundations of decision

The Federative Republic of Brazil

2021 ◽  
pp. 201-230
Author(s):  
Steven Gow Calabresi
Keyword(s):  
Judicial Review ◽  
Separation Of Powers ◽  
Civil Law ◽  
Constitutional Court ◽  
Military Government ◽  
Military Dictatorship ◽  
Stare Decisis ◽  
German Constitutional Court ◽  
The Military ◽  
The U.S

This chapter looks at Brazilian judicial review. Judicial review in Brazil originated because it was borrowed from the U.S. Constitution. It emerged in amplified form in Brazil’s 1988 Constitution because, by 1988, the normative appeal of judicial review was widely appreciated all over the world. Moreover, the Hybrid Model of judicial review in Brazil, whereby the Supreme Federal Tribunal is both, at the apex of a diffuse system of judicial review, and is also a Constitutional Court, reflects widespread appreciation for the value of a system like the German Constitutional Court in a civil law jurisdiction. The power of such a court to issue rulings with erga omnes effect is especially important in civil law countries like Brazil, which lack systems of stare decisis. First, judicial review emerged in Brazil as the result of borrowing. Second, it emerged as a rights from wrongs reaction to abuses of power during Fascism and during the military dictatorship, which ruled Brazil for 1964 until 1984. Third, judicial review is necessary in Brazil for both federalism and separation of powers umpiring reasons. Fourth, judicial review in Brazil also emerged because the constitution-writing elite wanted to entrench its liberal and socialist values to forestall the emergence of yet another military government in the country. And, fifth, the Brazilian Constitution divides and allocates power among so many federal and state entities that the Supreme Federal Tribunal has the political space it needs to play a really big role in governing the country.

scholarly journals Beyond the Binary: Towards a Third Sex Category in Germany?

2018 ◽  
Vol 19 (3) ◽  
pp. 627-648 ◽  
Author(s):  
Peter Dunne ◽  
Jule Mulder
Keyword(s):  
Gender Identity ◽  
Case Law ◽  
Case Note ◽  
Constitutional Court ◽  
Legal Recognition ◽  
The Future ◽  
German Constitutional Court ◽  
Progressive Potential ◽  
Domestic Law

This Case Note discusses the recent judgment of the German Constitutional Court (1 BvR 2019/16) requiring either the legal recognition of sex categories beyond male or female, or the aboltion of sex registration requirements. The Note considers the Court's decision within the broader constitutional case law on gender identity, and explores both the progressive potential, and the future—perhaps unforeseen—consequences, of the ruling. The Case Note proceeds in three sections. Section A introduces the facts of the constitutional challenge, and sets out both the submissions of the complainant, as well as the reasoning of the Constitutional Court. In Section B, the Case Note explores the domestic law novelty of the decision, placing particular emphasis on the application of a constitutional equality framework to persons who experience intersex variance. Finally, in Section C, the Case Note contextualizes the judgment, situating the reasoning of the Constitutional Court within wider movements for transgender—otherwise known as trans—and intersex rights.

scholarly journals Die Linke v. Federal Government and Federal Parliament (Counter Daesh)

2020 ◽  
Vol 114 (3) ◽  
pp. 463-470
Author(s):  
Christian J. Tams
Keyword(s):  
Federal Government ◽  
Foreign Affairs ◽  
Constitutional Court ◽  
Islamic State ◽  
Self Defense ◽  
Military Involvement ◽  
Fresh Perspective ◽  
Federal Constitutional ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

By a September 17, 2019 Order (Order), the German Federal Constitutional Court (FCC or Court) rejected challenges to Germany's military involvement in anti-Islamic State of Iraq and Syria (ISIS) operations in Syria. This outcome was expected and was as such insignificant. What is significant is the FCC's reasoning. The Court used the Order to clarify the constitutional roles of parliament and the executive in German foreign affairs. And it included an intriguing pronouncement on the scope of Article 51 of the UN Charter, which adds a fresh perspective to the polarized debates about self-defense against nonstate actors.

Direct Cooperation Has Begun: Some Remarks on the Judgment of the ECJ on the OMT Decision of the ECB in Response to the German Federal Constitutional Court's First Request for a Preliminary Ruling

2015 ◽  
Vol 16 (4) ◽  
pp. 1025-1048 ◽  
Author(s):  
Sven Simon
Keyword(s):  
Financial Stability ◽  
Constitutional Court ◽  
Preliminary Ruling ◽  
Eu Law ◽  
The European Union ◽  
Critical Question ◽  
Political Problem ◽  
Federal Constitutional ◽  
German Constitutional Court ◽  
Monetary Policy Transmission Mechanism

By its first request for a preliminary ruling, the German Constitutional Court aired its doubts about the lawfulness of the Outright Monetary Transactions (OMTs) program. In this article it is argued that the ECB's pledge in the summer of 2012 to do “whatever it takes” to safeguard the monetary policy transmission mechanism in all countries of the euro area by buying government bonds was generally compatible with EU law. However, it is argued that there is some potential for the ECB to infringe the Treaty on the Functioning of the European Union (TFEU) while acting according to this announcement. The peculiarity of the situation, the author argues, is that we might be dealing with a “self-fulfilling prophecy” in that the ECB announces a particular policy, which might not be compatible with EU law, but the act announced, will never take place because the political problem would have been resolved by the measure previously announced. The critical question in this scenario refers to how a court should react to such a situation. The author argues that a court in such a situation has to show the legal limits of the particular institution, but neither the ECJ nor the German Constitutional Court may replace the central banks' task to maintain financial stability. Finally, a comment is given on how the German Constitutional Court will react to the ECJ's decision in that case.

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