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ČAPKOVIČOVÁ
ČAPKOVIČOVÁ, P.: Political questions
as an object of judicial review
Právny obzor, 99, 2016, č. 5,
s. 421 – 430.
Abstract. Political
questions as an object of judicial review. This article is about a role of
constitutional courts when an object of judicial review is a political question.
It presents arguments, for and against judicial review in such cases, which are
divided into three sections – the competency issue, the legitimacy issue and the
issue of arbitrariness. In the first section, there is a dispute whether
deciding political questions breaches separation of powers, or rather fulfills
the principle of checks and balances. In the second section is raised a question
about legitimacy – does judicial review break the majority rule, or can we refer
to citizens acceptance of constitutional standards (set of constitutional values/
principles and their protection by constitutional court). In the third section,
the author think about vagueness of constitutional text and its consequences for
judicial review – are judges’ considerations really arbitrary, or they are bound
by a line of previous decisions and by necessity to find legal, not political
answers. The author points to the fact that a case, which at first looks like a
political question, may have potential to affect constitutional values and
principles. Due to this fact, the author tries to outline a border between „political“
and „legal“ consideration, while she uses examples from existing decisions of
constitutional court. The article is aimed to show that constitutional courts,
in some point of view, ought to decide also political questions and for that
reason is necessary to create clear rules and procedures.
Key words:
constitutional court, judicial review, political questions, separation of
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ISSN 2729-9228
(online)
ISSN 0032-6984
(print)
THEORETICAL REVIEW FOR ISSUES OF STATE AND LAW.
Právny obzor is peer-reviewed journal and is indexed in SCOPUS and HeinOnline database (INDEX TO FOREIGN LEGAL PERIODICALS).
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