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Constituent Assembly passes articles on court structure
I receive this news on the email list about Timor ...see below for the lot and in particular Art. 118...
Article 118 provides that the Supreme
Court has the jurisdiction to make
declarations of illegality or unconstitutionality upon application by the
Prime Minister, President, President of Parliament, Attorney General,
Ombudsman, or one fifth of the members of Parliament.
Why don´t ordinary citzens who can demonstrate an interest in the law at issue have a right to seek to have a law declared unconstitutional or acts of the government illegal....?
It seems that only the political class will have the right to enforce the law and constitution
why is this so and who argued for and against it?
Is not the effect of this that nobody will challenge the constitutionality of a law becuase only the people who have passed the law or assented to it (other than the Ombudsman) can enquire as to its validity.
The section allows for advisory opinions on the constitutionality of the law (soemthing not allowed in many systems) but does not allow for constitutional litigation (something allowed by most democratic systems based upon the rule of law).
Why is this so?
Why has judicial power been constrained in this way?
To me this does not seem a very good step....
please discuss ....
Christian Ranheim wrote:
UNITED NATIONS TRANSITIONAL ADMINISTRATION IN EAST TIMOR
Dili, 15 January 2002 The Constituent Assembly has now passed 123 articles of the 151-article draft Constitution.
The articles passed since early last Friday include Article 112, which incorporates the principal of judicial independence and mandates that judges are expected to be independent in the exercise of their functions, and obedient to the Constitution, the law and their conscience. An amendment to the article was passed stating that judges are not legally liable for their judicial decisions, except in situations provided for by law.
Article 113 provides that judges may not perform other functions except teaching or legal research, and Article 114 provides that the courts shall not apply laws that contravene the Constitution or the principles contained therein.
Article 115, passed on Monday, provides for three categories of courts: The Supreme Court of Justice and other courts of law; Administrative courts and a High Administrative, Tax and Audit Court; and Military courts.
The Supreme Court of Justice is established by Article 116 as the highest court of law. Its President will be chosen from among judges of the Supreme Court and appointed by East Timor's President.
Article 118 provides that the Supreme Court has the jurisdiction to make declarations of illegality or unconstitutionality upon application by the Prime Minister, President, President of Parliament, Attorney General, Ombudsman, or one fifth of the members of Parliament.
Article 119, passed today, says that only career judges of original East Timorese nationality may become members of the Supreme Court.
Article 120 says the Superior Council for the Judiciary is the organ of management and discipline of the judiciary. It will be presided over by the President of the Supreme Court of Justice, and other members will include one person designated by the President of the Republic, one member elected by Parliament, one appointed by the Government and one elected by the judges from among their peers.
Article 121 says the High Administrative, Tax and Audit Court is the highest body in the hierarchy of administrative, tax and audit courts. This court's functions include ensuring the fiscal legality of public spending, judging actions arising from legal, fiscal and administrative matters, and ruling on contentious appeals against decisions made by State organs.
Article 122 says military courts will have the competence to judge military matters, and with Article 123, members agreed that court hearings will be public unless the court rules otherwise to safeguard personal dignity, public morality and national security.
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