A COMPARATIVE PERSPECTIVE ON CONSTITUTIONAL COMPLAINT: DISCUSSING MODELS, PROCEDURES, AND DECISIONS
This Article has been published by Constitutional Review Journal, Vol 5, No.1, May 2019. Fully open access, to read the article please click here!
Abstract
The constitutional
complaint is one of the important constitutional court jurisdictions that can
be described as a complaint or lawsuit filed by any person who deems his or her
rights has been violating by act or omission of public authority. Currently,
the constitutional court in many countries have adopted a constitutional
complaint system in a variety of models. However, the first application of the constitutional complaint jurisdiction came
from Europe. In Austria, the
constitutional complaint is allowed against the administrative actions but not
against the court decisions. While Germany and Spain have a similar model that
is a complaint against an act of the public authority including court decisions. In Asia, it is imperative that
the court in Asia actively participate in the Association of Asian
Constitutional Courts and Equivalent Institutions (AACC). The AACC members have adopted a
system of constitutional adjudication in a variety of models, and when it comes
to jurisdictions, out of
sixteen AACC members, there are four countries (Azerbaijan, South Korea, Thailand, and Turkey) have the constitutional complaint in their
jurisdictions. In Azerbaijan, constitutional
complaint is comparatively broad. Azerbaijan’s Constitutional Court can handle
constitutional complaint against the normative legal act
of the legislative and executive, an act of a municipality and the decisions of
courts. In contrast, even though constitutional complaint in South Korea and Thailand can be
against the exercise and non-exercise of state power, constitutional complaint
cannot be filed against court decisions. In Turkey, the constitutional
complaint mechanism is coupled with the regional system of human rights protection.
The Turkish Constitutional Court handles complaints from individuals concerning
violations of human rights and freedoms falling under the joint protection of
the Turkish Constitution and the European Convention on Human Rights (ECHR). This paper argues that constitutional complaint represents the main part
of the constitutional court, and through a comparative perspective among three
countries in Europe and four AACC members are expected to provide lessons for
the other AACC members that do not have a constitutional complaint mechanism, such as Indonesia.
Keywords: Comparative Law; Constitutional Complaint; Constitutional Court; Association of Asian Constitutional Courts and Equivalent Institutions
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