ICON S Conference 17 – 19 June 2016 Humboldt University Berlin

41 CONSTITUTIONAL GUARDIANS:
COMPARING SUPREME COURTS
Panel formed with individual proposals.
Participants Sanjay Jain
Pratyush Kumar
Tamar Hostovsky Brandes
Angela Schwerdtfeger
Fritz Siregar
Luca Martino Levi
Alex Schwartz
Name of Chair Angela Schwerdtfeger
Room BE2 144
Sanjay Jain and Pratyush Kumar: Is Supreme
Court the Guardian of Indian Constitution? Reflections
on Constitutionalism in India through
the Philosophical lenses of Kelsen and Schmitt
In this paper we want to grapple with an engaging
question, who should be the most effective guardian
of the Constitution; judiciary (Kelsen) or the President
(Schmitt). In the light of this dialectic, enquiry of this paper
is which of the three branches assumes guardianship
of Constitution in India? We argue that there is no
basis to establish that the role of the Supreme Court as
the guardian of the constitution is exemplary. Nor there
is any rationale to contain that, had parliament and
president been empowered to have the final word on the
constitutionality of the amendments – the constitutionalism
would have been much more progressive. Section
one is excursion on both these philosophers and establishes
that the issue of guardianship of Constitution is
neither juridical nor political. Section two, by discussing
Kesavanada Bharati and S.R. Bommai, enunciates that
court lacks the competence to unilaterally decide the
core of the Constitution. Section three demonstrates
with the analysis of Indira Nehru Gandhi and Shivkant
Shukla of how Parliament and executive have failed to
be the protector of the Constitution. To conclude, the
paper calls for the adoption of Collaborative Constitutionalism
to harness the endurance of the Constitution.
Tamar Hostovsky Brandes: Identity and Social
Solidarity: the Supreme Court of Israel and the
Denied Israeli Nation
In October 2013 Israel’s High Court of Justice issued
its ruling in the case of Ornan v the Ministry of the
Interior. A nation explained the Court is characterized
primarily by solidarity between its members. Recognition
of an Israeli nation, the Court argued would imply
that there are those among the Jewish nation who have
no “special feelings of solidarity” (as opposed to general
human solidarity) towards Jews in the diaspora
as they have transferred their solidarity to such Israeli
nation. The literature in the field of transitional justice
emphasizes the role courts may play in creating and
fostering social solidarity in divided societies.
Angela Schwerdtfeger: Courts as Guardians
of Constitutional Identity within the EU:
The German Approach
The German Federal Constitutional Court (BVerfG)
has developed three types of review with respect to
EU law that constitute an exception to the supremacy
of EU law: fundamental rights, ultra vires and identity
review. This constitutionally grounded review potentially
threatens the uniform application of EU law and conflicts
with the jurisdiction of the Court of Justice of the
European Union (CJEU). In the recent past, the BVerfG
has increasingly referred to identity review. The latest
example is a decision of 15 December 2015. The Court’s
comprehensive deliberations on identity review and the
fact that it avoided the significant inter-court dialogue
with the CJEU in this case exemplify the confident role
that the BVerfG intends to go on playing in the multilevel
cooperation of courts. Beyond that, the jurisprudence
reveals a tension between European integration on
the one hand and constitutional identity on the other.
Fritz Siregar: Indonesian Constitutional Court:
Weak Court Strong Court or Pretend to be
Strong Court?
This theorization argued whether there is further
action once the Court declared constitutionality of a law.
If no action required upon the Court invalidates laws
is unconstitutional, it adopts a strong form of judicial
review. If the court possess the power to determine
whether the law is consistent with the constitution but
it does not have the authority to invalidate the law, it
adopts weak form of judicial review.
Strong form judicial review that has embodied with
Indonesia Constitutional Court silently has been transformed
to weak-form judicial review. Since issuing conditionally
constitutional decision became the majority
of granted judicial review decision, Court had ignored
its judicial restraint. When ‘negative and positive legislator’
collide, it created uncertainty for Parliament and
Government how to respond towards Court decision.
It does increase potential attack because “legislative
power” that has been exercised massively by the Court.
Luca Martino Levi: Labor-Market Outsiders, Italian
Justices and the Right to Social Assistance
From Carneades’ shipwreck who saves herself by
thrusting someone from a plank, to H.L.A.Hart’s park,
where no vehicles are allowed, fictional cases have
allowed generations of legal philosophers to show
the particulars and the implications of their theories.
Looking back at this tradition, this paper aims to reflect
upon the process of constitutional adjudication concerning
social rights generally, and social assistance
in particular. The starting point of the analysis is an
imaginary suit brought by an indigent against the Italian
Republic, on allegation that her constitutional right
to social assistance has been violated. The Court can
decide the case in various ways, each of which is analyzed
from the perspective of one of the Justices on the
Concurring panels 74