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Should Countries Implement A Constitutional Court for Fundamental Rights Breaches?

Abstract

This study aims to develop an evidence-based answer to the question inquiring about developing constitutional courts in countries for fundamental rights breaches. The following research have utilised qualitative research design due to the secondary nature of the research aim and objectives. The data has been collected from various secondary sources such as Google Scholar, Research.net, Academia, and Amazon books.

The search criteria for the following research are based on the keywords such as constitutional courts, human rights issues, human rights violations, legal system role in human rights, international human rights breaches, importance of constitutional courts, etc. As far as the secondary analysis technique is concerned, the content analysis technique is applied in the following study.

The key themes have been included to analyse the content and it included an assessment on the Role and success of constitutional courts in combating human rights violations, case examples of different countries’ legal system and their approaches to fundamental rights of people, and shortcomings in the implementation of constitutional court for fundamental rights breaches.

The findings have shown that it is only after the establishment of the Constitutional Court that the significance of the entire system and the mechanism by which it operates can be completely comprehended. It took a combination of factors to prevent the notion of Constitutional Court protection of the Constitution from taking root in the first place.The creation of a special constitutional court with the authority to hear constitutional complaints related to breaches of individual constitutional rights might improve the protection of these rights and highlight the relevance of these rights in the context of the constitution.

Chapter One: Introduction

Contextual Background

Human rights are regarded as the essential element to all individuals, which defines the association among the human beings and power structure, mainly the country or state.  The rights of humans delimit the power of the state and necessitate the state/ country to take measures (positive) through ensuring the surroundings and environment which allows all individuals to cherish their human rights.[1]

However, different incidences in recent times around the world related to the violation of human rights have shifted the democracy of different states and countries.[2] Still, human rights have determined many groundbreaking and innovative movements for empowerment. In addition, for regulating over the handlers of power, particularly the government.[3]

Hence, the new method and approach to social equality and democracy have emphasised the role of courts as a self-governing organisation or body, which has the power and ability to resolve clashes and disputes among the state and the people. This has escalated the attention of the judicial system’s role as the approach of intensifying human rights in the international and national context.[4]

Every individual around the globe is allowed in full equality to an unbiased and public hearing by an impartial and independent tribunal in the purpose of his or her obligations and rights, along with any case of the criminal charge against him/her.[5] However, allegations that the rights of humans are not the world- wide still appear in multiple contexts.

Such as states and governments have over and over again questioned the universality of the rights of humans in justifying the abuses and violations of the human rights of women on the behalf of culture. Such practices are usually centered on the destructive stereotypes relating to the role of women in society. Thus, the responsibility to eradicate such prejudices and stereotypes needs to be clear underneath the international human law rights.[6]

Aim and Objectives

This study aims to develop an evidence-based answer to the question inquiring about the development of constitutional courts in countries for fundamental rights breaches. For this, the current research study fulfills the following objective:

• To identify the role of constitutional courts in the light of human rights violations.
• To assess the issues of the current legal system across various countries relevant to breaches in fundamental rights of people.
• To evaluate the need for implementation of a constitutional court for fundamental rights breaches.

Research Questions

For the above-mentioned aim and objectives, the author seeks out to discover the answers from the research questions of the present study, as follows;

RQ1: What is the role of constitutional courts in the light of human rights violations?

RQ2: What are the challenges and issues of the current legal system across different countries around the world, relevant to breaches in fundamental rights of human beings?

RQ3: How the constitutional court can be implemented for fundamental human rights breaches?

Problem Statement

Distinctions in the comprehending of courts relating to the petition of the essential rights to the lives of people and ensuing discouragement of their liberty have put attention on the denial of direct impacts of the human rights laws (in international and national context). In addition to, also involving political legitimacy, deliberative idleness, and certainty.[7]

It is important that there needs to exist laws that outline the rights of individuals and the primary responsibility of the country or state.[8] Therefore, through considering the causes (above- mentioned) of denial of essential rights application in the event of breaches of the rights of humans between courts in states. However, it is significant for the lawful self-governing governance to establish a composite balancing decision by taking into consideration of its power to facilitate the conditions and situation to a higher degree.[9]

This helps in the execution of a reliable set of standards relating to the concentration of the breaches in human rights that currently do not exist in countries around the globe. It is unquestionable fact there are numerous researches and studies regarding the topic of human rights of people, however, a gap has been identified in the study.

Therefore, as the notion has been brought into concentration in recent years, there is still a substantial lack of the presence of literature on the implementation of a constitutional court for fundamental right breaches. As a result, the author of the current study intends to take into account resourceful discussion on the construction of constitutional courts for the breaches in fundamental or human rights on the international ground. This is done by the author by filling the gap in knowledge by answering the study’s research questions.

Research Rationale

There has been a substantial increase in the breaching of human or fundamental rights around the whole world in recent years. Over 7,800 Public Interest Litigation (PILs) have been filed in India (alone) since 2019.[10] On the other hand, over 32,000 children in the US are added (annually) in adult jails, in addition, many US states carry on to accuse few children in (criminal) adult courts.[11]

Similarly, approximately 245,000 Nigerian refugees were enforced to be externally displaced to neighbouring countries from Nigeria.[12] This intensification in the developed and underdeveloped countries illustrates the urgent need of enquiring about the efficiency and role of courts in providing results on the breach of fundamental rights.

As a result, this has also increased the need to have a legislative body, (as the topic of the study suggests) i.e. constitutional court for accurate provision of judgment on the fundamental rights of human beings. Hence, this study seeks to identify the evidences and necessity (mentioned above) and lack of beneficence of courts in multiple countries by filling the gap through answering the study’s research questions. And such a gap justifies the execution of the study, which fills further helps other researches and studies (in the future), in exploring topics relevant to the current study’s topic.

[1]Untied Nations, ‘Human Rights’ (Ohchr.org, 2016) <https://www.ohchr.org/documents/publications/handbookparliamentarians.pdf>

[2] Hannah Miller, ‘Human Rights And Development: The Advancement Of New Campaign Strategies’ (2019) 23 The International Journal of Human Rights.

[3]Untied Nations, ‘Human Rights’ (Ohchr.org, 2016) <https://www.ohchr.org/documents/publications/handbookparliamentarians.pdf>

[4] Boo-Ha Lee, ‘State Obligation To Protect Fundamental Rights In The Case Of Fundamental Rights Violations By Foreigners Or Foreign Countries – An Analysis Of The Decision Of The German Constitutional Court -‘ (2019) 20 Journal of hongik law review.

[5] Hafeezullah Ishaq, ‘The Right To Fair Trial: Better Late Than Never’ (Shaikh Ahmad Hassan School of Law, 2014) <https://sahsol.lums.edu.pk/law-journal/right-fair-trial-better-late-never>

[6]Untied Nations, ‘Human Rights’ (Ohchr.org, 2016) <https://www.ohchr.org/documents/publications/handbookparliamentarians.pdf>

[7] Nóra Chronowski, ‘The Post-2010 ‘Democratic Rule Of Law’ Practice Of The Hungarian Constitutional Court Under A Rule By Law Governance’ [2021] Hungarian Journal of Legal Studies.

[8] Fahed Abul- Ethem, ‘The Role of the Judiciary in the Protection of Human Rights and Development: A Middle Eastern Perspective’ [2002] Fordham International Law Journal <https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1883&context=ilj>

[9] Nóra Chronowski, ‘The Post-2010 ‘Democratic Rule Of Law’ Practice Of The Hungarian Constitutional Court Under A Rule By Law Governance’ [2021] Hungarian Journal of Legal Studies.

[10] India Today, ‘Over 7,800 Pils On Violation Of Fundamental Rights Filed In High Courts Across Country Since 2019: Data’ (India Today, 2021) <https://www.indiatoday.in/law/story/pils-fundamental-rights-violation-high-courts-country-2019-data-1835536-2021-08-02>

[11] Kenneth Roth, ‘World Report 2019: Rights Trends In United States’ (Human Rights Watch, 2019) <https://www.hrw.org/world-report/2019/country-chapters/united-states>

[12] Nigerian Govt, ‘NIGERIA 2019 HUMAN RIGHTS REPORT’ (Nigerian Govt, 2021) <https://www.state.gov/wp-content/uploads/2020/02/NIGERIA-2019-HUMAN-RIGHTS-REPORT.pdf>

Chapter 02: Literature Review

Introduction

The current chapter aims to layout the literature available regardingcountries implementing a constitutional court for fundamental rights breaches. The chapter will discuss the breaches of fundamental rights in different countries around the world. The chapter will then discuss different constitutional courts around the world.

The chapter will then present the role of constitutional courts in human rights violations. The chapter will then identify the issues of legal systems across various countries. The chapter will then discuss the need for a constitutional court for fundamental rights. Furthermore, the chapter will present a theoretical framework for the issue of the research and lastly, the chapter will provide a chapter summary.

Breaches in Fundamental Rights of People Across the Globe

States violate common freedoms directly or implicitly. Violations may be intentional on the part of the state or may occur because the state failed to prevent the violation. When the state becomes involved in a violation of the common freedoms, a variety of actors may become involved, including police, judges, investigators and government agencies, and this is only the beginning[1].

Some violations are purely gross, e.g. police brutality, while other rights, e.g. the right to restraint, may be ignored even if they are not outright atrocities. A second violation is the failure of the state to ensure that disputes between individuals or groups within the community are resolved. In the view of Chronowski, when the state does nothing to mediate and protect a vulnerable person or group, it is complicit in the violation[2].

As when killing occurred repeatedly in various parts of the United States, the state failed to ensure the protection of darker Americans[3]. Since many of those responsible for the lynching were also police officers and other public officials, this shows that two types of violations occur simultaneously. Social rights, cultural, political, economic, cultural and civil are violated in different ways. While according to Meysman all the rights respected in the “International Covenants on Human Rights” and the “Universal Declaration of Human Rights” are considered fundamental, there are certain types of violations that are generally considered more genuine in today’s world[4].

Civil and political rights are abused through extermination, torture and arbitrary detention. These violations often occur in times of war[5]. In terms of Chetail the violation of fundamental freedoms goes beyond the scope of the law on combat equipment, it is called an atrocity[6]. Illegal exploitation is probably the biggest problem in the world today, with many men, women and young people being held for childbirth and sexual duplicity.

Strict segregation is also quite common in many parts of the world. Given the inability of the state to protect vulnerable groups, such violations occur regularly[7]. In terms of Neuwahland and his colleague stated that international advocates of fundamental freedoms have waged a massive battle, mobilising public opinion and campaigning relentlessly to ensure that those who deprive people of their most important rights are held accountable[8].

The study of Patel, stated some of the most significant violations of the right to freedom include the subjugation of young people in the African region, the restriction of sanitation for disabled underage women, the forced vaginal evaluation of women in Afghanistan, the most notable and egregious violations of fundamental freedoms, Uganda’s violations against gays, sex trafficking, child labour during the modern insurgency, the US. Subjugation and much more[9].

Constitutional Courts in the International World

The electoral progress that took place in many parts of the world in the second half of the twentieth century led to an increase in the number of courts mediating constitutional law, but the inherent power of these higher courts has fluctuated alarmingly from country to country[10]. Some courts, known as constitutional courts or constitutional councils, are specifically responsible for constitutional enquiries.

The others mix elements of judicial review of legislation and advisory acts and review of lower court decisions. In some countries, whilst in the view of Amos there are several higher courts with different jurisdictions and powers[11]. In Italy, for example, according to Patel, there is a Constitutional Court, which only conducts constitutional reviews, and a Supreme Court, which can check whether the usual choice of courts is in accordance with the law[12].

Egypt has a Grand Chamber that examines whether the decisions of the lower courts are in accordance with the law, but only the Supreme Constitutional Court has the power to declare laws unconstitutional or to judge and control the expectations of the authorities[13]. In terms of Amos, the Supreme Court in Japan is the main court expressly authorised to conduct judicial review[14].

The Supreme Court’s powers are limited to matters such as assembly disputes, and it does not deal with issues raised by state authorities. The Japanese judicial system is compromise-oriented, and in this sense, courts are reluctant to conduct judicial reviews and judicial activism. In many systems, in the view of Lock the power to control public demonstrations is concentrated in a particular parliament, while in some countries, such as Portugal and the United States, it is decentralised and ‘diffused’, with each court having the power to conduct judicial review of the law[15].

According to Neuwahland and Rosas, the specific conditions under which public high courts may conduct judicial reviews are even more varied. Some courts conduct ‘specific’ judicial reviews (random investigations in the selection of cases) and can only overturn laws in specific cases[16]. Several courts may engage in ‘dynamic’ judicial review (reviewing a law on constitutional grounds without applying it to a specific case).

Some of the courts that may engage in dynamic review may do so before the rules produce their results, while others may do so only after the law has produced its results. In the view of Bartels the drafting of the constitutions of electoral systems that emerged in the 1990s in focus countries and Eastern Europe. Many of the drafters of the constitutions of electoral systems that emerged in the 1990s in central and Eastern Europe chose a robust and embedded judiciary[17].

As such in the view of Patel, judicial investigative power is usually vested in a council that can participate in both independent and substantive reviews. The French and German constitutional courts can conduct dynamic judicial review[18]. The Portuguese Constitutional Court seems to be in an optimal environment, as it conducts both substantive review of lower court decisions and dynamic enquiry[19].The US Supreme Court avoids alarmist assumptions and consequently does not engage in conceptual judicial appraisal.

Role of Constitutional Courts in Human Rights Violations

In states possessing a constitutional court, the scope of judicial review by the court is broadens to include the consideration of conventionality, if not directly then at least indirectly. With Neuman three different forms of constitutionalisation can be discerned: a strong, a moderate, and a mild one[20]. Strong constitutionalisation consists of incorporating the international or European convention as such in the constitution, sometimes affording it the same status as the constitution, and bringing it directly or indirectly, within the reach of the constitutional court. Examples of the incorporation of human rights accords in the constitution include Andorra, Andorra, Bosnia-Herzegovina, Latvia, Montenegro, Russia, San Marino, Serbia and Sweden[21]. The finest example of providing constitutional status to the conventions is Austria.

In the event of moderate constitutionalisation, the rights given by the conventions are likewise enshrined in an analogous form in the constitution[22]. Examples of this approach may be found mostly in the post-Communist constitutions of Central and Eastern European states that were established up following the collapsing of the Berlin Wall. These constitutions contain, often following the proposals of the Venice.

Not only do the catalogues of fundamental rights in these constitutions bear a great resemblance to that of the ECHR and other human rights conventions, but also their limitation clauses – transversally or per individual right – include the requirements of legality, legitimacy and necessity or proportionality[23]. Some of these constitutions also have sections regarding the misuse of basic rights and derogations from fundamental rights in times of war or emergency.

Finally, there is a weak sort of constitutionalisation, through the application of the principle of treaty-conform interpretation of the constitution. A number of constitutions specifically mention that the essential rights which they provide must be understood and applied in line with human rights accords. Such provision is incorporated in the constitution of Moldova, Portugal, Romania, Serbia  and Spain  as well as – to the degree that it may be regarded as part of the constitution of the European Union – in the EU Charter of Fundamental Rights[24].

In several nations, the constitutions do not include such a clause. That has not stopped the constitutional court, when called upon to interpret the core rights protected by the constitution, from drawing inspiration from the ECHR and from the case law of the European Court of Human Rights, in particular. A number of constitutional courts do not hesitate to refer explicitly in their judgements to the Convention and to the Strasbourg case law. Other constitutional courts seldom identify in their judgements where they get their inspiration from.

Issues Within Legal Systems Regarding Protecting Fundamental Rights

Scientific research of constitutional jurisdiction and judicial experience of appeals made directly by persons alleging infringement of their basic rights have jointly given rise to a range of concepts that already belong to common legal heritage. Furthermore, they serve as a starting point for contemplation on the challenges that occur when an attempt is made to circumscribe the region covered by “constitutional appeal”[25].

Kelsen undertook theoretical research in most European countries in order to build constitutional guarantees based on the idea of a hierarchy of legal norms. This research resulted in the present model of constitutional review, which was developed by the European Court of Justice. He outlined the concept of a comprehensive legal system, in which all of the rules are taken from the Constitution, which is the highest point in the hierarchy and has the greatest amount of juridical weight in its own right.

It is only after the establishment of the Constitutional Court that the significance of the entire system and the mechanism by which it operates can be completely comprehended. It took a combination of factors to prevent the notion of Constitutional Court protection of the Constitution from taking root in the first place[26].

A number of decisions were taken that were in violation of the system that should have provided such protection, and among those who supported them, there was a general idea that constitutionality checks should be fashioned after those in the United States. To begin with, countries with legal systems that were comparable to each other’s (such as Scandinavia, Germany, Portugal, Greece, and Switzerland’s) were all in agreement on how to solve the problem.

Need of a Constitutional Court for Fundamental Rights Breaches

The creation of a special constitutional court with the authority to hear constitutional complaints related to breaches of individual constitutional rights might improve the protection of these rights and highlight the relevance of these rights in the context of the constitution. It goes without saying that the Constitutional Court is not intended to take the place of conventional courts in the preservation of fundamental rights, which is why drawing the boundary between ordinary jurisdiction and constitutional jurisdiction is such a tough and challenging problem[27].

There are several differences between legal systems that provide for constitutional appeal, such as the scope of the issue protected (pleadable rights or categories of acts that can be the subject of a constitutional appeal) and the scope of the issue protected that varies from one nation to another. Thus, constitutional jurisdiction in the field of freedoms is based on a number of concepts and criteria that go beyond the individual interests of those who file complaints, and serve a greater purpose of integrating and applying fundamental rights to a wider range of people[28].

The Court may direct the action of the judicial, executive, and legislative branches of government in all areas involving fundamental rights in response to an individual’s constitutional complaint. People across the world recognize that the protection of human rights is essential to the very existence and survival of a democratic state. Constitutional jurisdiction has played a rather major role in this area, contributing to the concrete formulation of fundamental rights and balancing them, when necessary, in terms of consistency with other rights.

A country’s constitutional court is required to assess the meaning of the constitution and relate all applicable laws to the country’s constitution, because disagreements over this subject may occur in regular courts as a result of the application of various laws in different countries. As a result, the legal system’s unity with a constitution of this nature must be properly preserved in order to provide the country with legal stability based on the supreme concept of the constitution[29].

It can be ensured that the laws and legal system in the country are in accordance with the country’s constitution by keeping an eye on constitutionality legislation. Due to these efforts, constitutional provisions can now be found across the country’s whole body of legislation, therefore cementing their position as an integral element of the country’s broader legal system.

Although it has been discovered that legal systems differ greatly in terms of their methods, branches, and protected interests, all of these systems should be incorporated under the constitutional umbrella and subject to the same constitutional principles throughout the country, according to the findings[30]. This is a conclusion reached after extensive investigation. These ideas highlight the importance of a country’s constitutional court.

When Congress exceeds constitutionally set majoritarian bounds, a constitutional court has the authority to intervene and prevent the legislature from trampling on constitutional content, which has been embodied in democratically elected legislation. That is how the Supreme Court transforms into a tool of the majority of the population[31].

The constitutional court changes into an instrument for defending the people’s rights and interests by enforcing their constitutionally mandated responsibilities in the face of an unlawful takeover by politicians who are either disconnected or inattentive to the needs of the people. Constitutional courts have remained essential to democratic self-government for more than a century after they were first created.

It may be necessary to use these tribunals to nullify majoritarian legislation in order to protect minority rights or to establish structural constraints on majoritarian authority. It is the goal of both of these programmes to make it simpler for individuals to exercise their right to self-governance by engaging in regular political activities. Counter-majoritarian activities, in particular, help to ensure democratic coexistence since they are lawful and acceptable in a democratic environment. Nonetheless, they are correctly labelled as anti-majoritarian in their actions.

Challenges Implementing Constitutional Courts

In this evolving world of human rights, the Supreme Court must choose how best to respond to these changes while still respecting the responsibilities of individuals to maintain public order and national security inside their own nations. People’s sentiments of their own government in the United States have shifted substantially as a result of the judicial review mechanism that has been put in place[32].

As a result, constitutional courts have been under a great deal of pressure to match public attitudes on official proceedings, which have evolved in favour of curbing freedoms and rights in all circumstances. Studies have shown that it is always difficult to define the limits between a constitutional court’s duties to its own people and its obligation to the entire community at large in this context[33].

He points out that this is based on regulations that are unique to each country. Due to this might occasionally result in political repercussions, it is conceivable that a solution will be presented here without any complications or complications. Others argue that the constitutional court should play a small role in public life, and that rules should be made by the ruling party in both extraordinary and routine circumstances, with the constitutional court handling any challenges.

Often depicted as anti-majoritarian organisations having the authority to overturn common law legislation that is found to be in violation of the constitution, constitutional courts are really the opposite. Due to the fact that it is in direct opposition to democratic values at their core, this authority should be applied with prudence. In these cases, the only things that should be susceptible to judicial scrutiny are the safeguarding of minorities’ rights and the enforcement of structural constraints on government power[34]. The truth, however, is that this is only half of the story. Courts that strike down legislation because it is in disagreement with the constitution may also be characterised as taking a majority viewpoint in their decisions, depending on the constitution’s democratic credentials.

Often depicted as anti-majoritarian organisations with the authority to overturn common law legislation that is in violation of the constitution, constitutional courts are actually quite the opposite. Due to the fact that it is in direct opposition with democratic values at their core, this authority should only be employed with discretion. In these cases, the only things that should be susceptible to judicial scrutiny are the preservation of minorities’ rights and the implementation of structural restrictions[35]. It should be noted that this is only a partial account. Depending on the democratic credentials of the constitution, judges that strike down legislation because it is in disagreement with the constitution may also be characterised as taking a majority view in their decisions in their decisions.

Theoretical Framework

While formal legal or moral hierarchy may be important, constitutional supremacy goes well beyond those realms of concern. Constitution-making might be considered as a higher form of democratic legislation in modern times, and “constitutions can fully represent” a society’s firmly held policy preferences. To put it another way, modern constitutions have the potential to serve as the ultimate tool of majoritarianism.

Constituents enacted in the previous several decades differ from their forebears in that they aim to be policy instruments rather than merely documents[36]. Modern constitution-making and actual constitutional substance have certain similarities despite their conceptual differences. Compared to traditional legislative legislation, constitution-making nowadays tends to be more democratic and participative. Consequently, this kind of production procedure usually results in substantive policies that reflect the ideas of a political community.

Chapter Summary

The chapter included the existing literature regarding countries implementing a constitutional court for fundamental rights breaches. The chapter identified the role of constitutional courts in protecting fundamental rights. The chapter also identified issues within legal systems regarding protecting fundamental rights and challenges regarding implementing constitutional courts.

[1] Steve Peers, ‘Reconciling The Dublin System With European Fundamental Rights And The Charter’ (2014) 15 ERA Forum.

[2] Ibid 9

[3] Vassilis P Tzevelekos, ‘Reconstructing The Effective Contril Criterion In Extraterrestrial Human Rights Breaches: Direct Attribution Of Wrongfulness, Due Diligence, And Concurrent Responsibility.’

(2014) 36 Michigan Journal of International Law <https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1073&context=mjil>

accessed 26 November 2021.

[4] Michaël Meysman, ‘The Tension Between Cross-Border Cooperation In The European Area Of Freedom, Security And Justice And The Fundamental Rights Of Mentally Ill Offenders In Detention’ (2016) 47 International Journal of Law and Psychiatry.

[5] Dare Ojo Omonijo and others, ‘Fundamental Human Rights, Polices Of A Nigerian Private Mission University And The Safety Of Students: Critical Analysis’ [2018] The Journal of Social Sciences Research.

[6] Vincent Chetail, ‘The Human Rights Of Migrants In General International Law: From Minimum Standards To Fundamental Rights’ (Ohchr, 2013) <https://www.ohchr.org/Documents/Issues/Migration/StudyMigrants/CivilSociety/VincentChetailMigrantsHumanRights.pdf> accessed 26 November 2021.

[7] Ibid 16

[8] Nanette A Neuwahl, Allan Rosas and eds, The European Union And Human Rights. (BRILL 2021).

[9] Nimisha Patel, ‘Human Rights-Based Approach To Applied Psychology’ [2019] European Psychologist

[10] Tobias Lock, ‘RIGHTS AND PRINCIPLES IN THE EU CHARTER OF FUNDAMENTAL RIGHTS’ (2019) 56 Kluwer Law International <http://mural.maynoothuniversity.ie/13653/7/TL-Rights-2019.pdf> accessed 26 November 2021.

[11] Merris Amos, ‘The Value Of The European Court Of Human Rights To The United Kingdom’ (2017) 28 European Journal of International Law.

[12] Ibid 21

[13] Ibid 17

[14] Ibid 23

[15] Ibid 22

[16] Ibid 20

[17] L. Bartels, ‘The EU’s Human Rights Obligations In Relation To Policies With Extraterritorial Effects’ (2014) 25 European Journal of International Law.

[18] Ibid 21

[19] Ibid 27

[20] Alec Stone Sweet, ‘Constitutional Courts’ [2011] SSRN Electronic Journal.

[21] Conrado Mendes, Constitutional Courts And Deliberative Democracy (Oxford University Press 2013).

[22] Ariel E Dulitzky, ‘An Inter-American Constitutional Court? The Invention Of The Conventionality Control By The Interamerican Court’ (2015) 50 Texas Journal of International Law

[23] Paul Hoffman and Beth Stephens, ‘International Human Rights Cases Under State Law And In State Courts’ (2021) 3 UC Irvine Law Review.

[24] Ibid 34

[25] Anthony Arnull, ‘The Principle Of Effective Judicial Protection In EU Law: An Unruly Horse?’ (2011) 36 European Law Review

<https://www.researchgate.net/profile/Anthony-

Arnull/publication/290568823_The_Principle_of_Effective_Judicial_Protection_in_EU_law_An_Unruly_Horse

/links/5755ae5108ae155a87b9c8cb/The-Principle-of-Effective-Judicial-Protection-in-EU-law-An-Unruly-Horse.pdf>

accessed 27 November 2021.

[26] Martin Ruhs, The Price Of Rights (Princeton University Press 2013).

[27] Rhona Smith, International Human Rights Law (Oxford University Press, USA 2020).

[28] Jorge Farinacci-Fernós, ‘Constitutional Courts As Majoritarian Instruments’ (2020) 14 ICL Journal.

[29] Ibid 40

[30] Paolo Passaglia, ‘Institutional Communication As A Means To Strengthen The Legitimacy Of Constitutional Courts’ [2019] In Judicial Power in a Globalized World.

[31] Luís Roberto Barroso, ‘Reason Without Vote: The Representative And Majoritarian Function Of Constitutional Courts’ [2016] In Democratizing constitutional law.

[32] Ibid 43

[33] Ibid 40

[34] Ibid 43

[35] Ibid 40

[36]  Ibid 40

Chapter 03: Methodology

Introduction

The methodology is an important element of a study as it is based on the determination of research approaches and framework. The methodology chapter relies on understanding and explaining research design, research approach, secondary data collection, searching criteria, data analysis, and ethical considerations.

Research Design

The research design is referred to as the framework, which is relied on the methods, which are applied to conduct the analysis[1]. As such, there are three main types of research designs named as qualitative research design, quantitative research design and mix design. The qualitative research design is focused on the subjective data and theoretical aspects whilst the quantitative design is only focused on the numerical data[2]. The following research have utilised qualitative research design as due to the secondary nature of the research aim and objectives.

The reason of using the qualitative method is to attain subjective findings along with knowing the depth of complexities and related concerns. Another aspect of using qualitative design is for the requirement of detailed analysis of the content related to the constitutional court and human rights. As such, quantitative design in contrast does not own the capability to cover a problem with such depth and with wide aspects[3]. Thus, qualitative study designed to cover the wider aspects of a study with focusing on the different aspects of a problem, which is primary need of the following study.

Research Approach

The research is known as the path or process, which is carried during the analysis and it, helps in attaining the suitable findings of the study. There are two types of research approaches, which are mainly referred in most of the research analysis named as deductive and inductive. The inductive approach is referred to attain generalised findings whilst the deductive approach is focused on a specific subject or a problem[4]. The following study is based on the inductive approach due to the secondary nature.

Although as it has applied qualitative design, it is important to use an approach that supports the theoretical aspects and cover the generalised aspects of the study. Thus, the inductive approach facilitates the generalised property of the study as it has the ability to transform the findings from a narrow point of view to the broader and generalised prospect[5]. Moreover, another aspect of using inductive approach is to attain the finding, which covers the detailed and comprehensive information about the research problem and defined objectives[6].

Research Philosophy

The research philosophy is a kind of framework that transcribe the author belief and thoughts utilised in conducting the research analysis. There are various types of research philosophies such as positivism, interpretivism and others[7]. As long as the following research is concerned, it is based on the interpretivism philosophy, which is relied on the contemporary social aspects and realism.

Furthermore, interpretivism approach has the ability to support the subjective nature of the study as through focusing on the theoretical models and aspects, which helps in attaining valuable and reliable findings and results[8]. Thus, using the interpretivism philosophy results in reliable and detailed constructive findings, which is extremely valuable for the current research requirements and objectives.

Secondary Data Collection Method

There are two main types of data collection, one is primary data collection and second is secondary data collection. As the current research is secondary, therefore it has used secondary data collection method. The secondary data collection methods is primarily concerned with the secondary sources such as published articles, books, blogs journals, magazines and previous research findings[9].  The following research data is collected from various secondary sources such as Google Scholar, Research.net, Academia, Amazon books and various other sources. The secondary data collection is mainly relied on the searching criteria described below.

Searching Criteria

The searching criteria for the following research is based on the keywords such as constitutional courts, issues of human rights, human rights violations, legal system role in human rights, international human rights breaches, importance of constitutional courts, etc. These keywords are interacted with the Boolean research operators or tools such as AND and OR.

Inclusion and Exclusion Criteria

The inclusion criteria for the following research has relied on the searching strategy, which eventually based on the identified keywords and use of Boolean operator tools. As such, inclusive sources are selected based on the published years. The researches published after 2012 are included in the research whilst the sources before 2012 were excluded. As such duplicated sources were also excluded along with the sources does not link with the human rights violation or constitutional courts.

Data Analysis

The data analysis is based on the analysis techniques which are selected based on the research determined methods and approaches. As the following research have selected the secondary qualitative method along utilising inductive approach. Thus, the secondary analysis techniques in this manner are needed to be initialised.  As long as the secondary analysis technique is concerned, content analysis technique is applied in the following study.

The reason behind using the content analysis is to attain depth and detailed analysis data and results[10]. As such, the content analysis helps in producing broader picture of the research focused problem and tactics. In this concern, the research aim and objective demanded a theoretical and detailed analysis. Thus, content analysis technique is the best suitable secondary analysis technique for the following research reliable findings and results.

Ethical consideration

The research is approved from the ethical research Committee and all the content utilised in the present research has gathered from the reliable sources and has not concerned any kind of information, which is objectionable or questionable. The content used in the analysis is not belong to any criminal or political aspects. As such, the research is conducted as per detailed requirements provided for the study.

Chapter Summary

The methodology used in the analysis is secondary qualitative in concern to research design, whilst the research approach is inductive. The interpretivism philosophy is followed with the content secondary research analysis technique for conducting analysis.

[1] Looi Theam Choy, ‘The Strengths And Weaknesses Of Research Methodology: Comparison And Complimentary Between Qualitative And Quantitative Approaches’ (2014) 19 IOSR Journal of Humanities and Social Science.

[2] Sam Goundar, ‘Research Methodology And Research Method’ (Prallagon.com, 2012) <https://prallagon.com/wp-content/uploads/2021/05/Research-Methodology-A2.pdf> accessed 26 November 2021.

[3] Ibid 33

[4] David Gough and Mark Newman, ‘Systematic Reviews In Educational Research: Methodology, Perspectives And Application’ (Library.oapen.org, 2020) <https://library.oapen.org/bitstream/handle/20.500.12657/23142/1007012.pdf?sequence=1#page=22> accessed 26 November 2021.

[5] Victoria Sherif, ‘Evaluating Preexisting Qualitative Research Data For Secondary Analysis.’ (Qualitative-research.net, 2021) <https://www.qualitative-research.net/index.php/fqs/article/download/2821/4211?inline=1> accessed 26 November 2021.

[6] Judith Ann Tate and Mary Beth Happ, ‘Qualitative Secondary Analysis: A Case Exemplar’ (2018) 32 Journal of Pediatric Health Care.

[7] Ibid 37

[8] Largan Claire and Theresa Morris, Qualitative Secondary Research: A Step-By-Step Guide (Sage 2019).

[9] Ibid 35

[10] Ibid 35

Chapter 04: Finding and Discussion

Introduction

The purpose of this chapter is to offer the analysis of the data obtained through secondary sources. The previous chapter has shown that the data analysis technique in the study has been content analysis. Therefore, the researcher has used content analysis for analysing the results from the previously conducted studies. In addition, the key themes have been included in order to analyse the content and it included an assessment on the Role and success of constitutional courts in combating human rights violations, case examples of different countries’ legal system and their approaches to fundamental rights of people, and shortcomings in the implementation of constitutional court for fundamental rights breaches. The chapter has also included the discussion where key findings of the study have been discussed and compared and contrasted with previously conducted studies.

Content Analysis

An Assessment on the Role and Success of Constitutional Courts in Combating Human Rights Violations

It has been clear that law usually had not work without the dependency of the courts and this clearly mean that courts are usually not under the thumb of the most political powers. As more of the independent judge tend to assure that case of the individuals tend to decide according to the law with the facts, without the vagaries for shifting the current politics[1].

Hence, every region need the courts for interpreting especially for applying the law especially when most of the parties dispute and in this particular way, most of the courts take law out of some dry and with the dusty books, and make part for their living fabric for lives. However, court apply law for some of the specific controversies that has been brought before to them and tend to resolve most of the disputes among the people, organisations and different units of the government[2].

Furthermore, courts usually called for upholding limitations especially onto the government and this directly provide protection in the contrast of the abuses that come from all different branches of the government. Moreover, they tend to protect minorities for all different type of majorities, and provide more of the protection for the rights of people, especially for those who have been not able to protect themselves. Moreover, it has also embody notions for some kind of the equal treatment along with the fair play and courts along with the protections for everyone in the law always found to be open for everybody[3].

Additionally, unique position for the Supreme Court stems especially in the large parts and from the deep commitment especially for the American people towards the rule of law and for the constitutional government. Hence, it has been revealed that United State has clearly demonstrated an unprecedented determination towards the preserving and for the protection that has been written within the constitution, and therefore providing the America experimental in the democracy with some of the old written constitution that are still found in force[4].

In the contrast, complex role especially for the Supreme court within the system tend to drive from direct authority especially for the invalidate legislation or for the executive action that are within the court is considered judgements along with the conflict in the constitution. Moreover, power for the judicial review have been provided to the courts as one of the crucial responsibility especially to make assuring the individual rights, and along with that to maintain a living constitution, whose broad level of provisions tend to applied in continuous way for complicating the new situations[5].

In the meantime, it has been found that supreme court has been with the original jurisdiction with the little amount of the cases that has been arise right out of different disputes among the states or in between the state along with the Federal government. It has been found that especially when the Supreme Court rules differently on the constitutional issues and through that judgment tend to be final in a virtual way, and thus decision tend to be altered only from the rarely used procedure for the constitutional amendment or through the new way of ruling by the court[6]. However, courts tend to interpret a statue and hence some new kind legislative action had to be taken.

Case Examples of Different Countries’ Legal System and their Approaches to Fundamental Rights of People

The main goal of judicial reforms in countries is to transform a court into an independent judge in the interrelationships among individuals and states and resolve conflicts only based on law. [7] Besides this, judicial courts are also responsible for ensuring that fundamental human rights protect human rights and freedoms. Notwithstanding the undeniable achievements, there are still challenges in-laws that have an impact on the justice authority. Individual complaints are essential tools for protecting human rights since they allow the Constitutional Court to delve into a wide range of issues surrounding their application. [8]

Constitutional Court is responsible for verifying the imposed or to-be-applied provision, relevant conditions in applying the law, and helps implement the principle of legal differences.[9] However, there has been a vibrant discussion regarding what defines a human right in the courts. Because there is also a lot of dispute over what constitutes a violation of a person’s human rights, this is especially true for qualified rights. For instance, freedom of expression and privacy can clash with other human rights.

There has already been a vibrant discussion regarding what defines a fundamental human right in the present day. There is still a lot more dispute over what constitutes a violation of a person’s human rights. This is especially true for ‘qualified rights,’ including freedom of expression and privacy, which might clash with other rights. [10]

As little more than a result, elected officials are frequently entrusted with determining how individual rights should be weighed against the general good. In Goodwin UK, the Strasbourg Court held that the UK was now violating the Convention because it was out of step with the mainstream European opinion on this subject.[11]

The government began writing laws to address the issue. Following a further HRA suit, the House of Lords granted a finding of incompatibility in Bellinger v Bellinger [2003]  confirming that current UK legislation was incompatible with Convention rights but leaving the problem to Parliament address. In 2004, Parliament passed the Gender Acknowledgment Act, which provided full legal recognition of gender relocation. [12] Therefore, it would be difficult, if not impossible, for a new Bill of Rights to isolate UK law from Strasbourg’s influence or counter Convention rights[13]. Strasbourg Court jurisprudence serves as a significant reference point for UK courts in interpreting these rights.

Furthermore, it would be conceivable for the UK to repeal or change the human rights act so that convention rights would be de-incorporated and domestic law would be free of Strasbourg’s control. This, on the other hand, would jeopardize legal clarity, violate the principles of the Brighton Declaration, which was signed just a few months ago and add new levels of complexity to the UK human rights legislation. [14]Therefore, it would be conceivable for the UK to repeal or change the HRA in just such a way that Convention rights would be de-incorporated and domestic law would be free of Strasbourg’s control.

Shortcomings in the Implementation of Constitutional Court for Fundamental Rights Breaches

The legal system of UK is a comprehensive legislative framework in terms of regulating variety of different offences such murder, burglary and terrorism[15]. However, in case of consideration of different aspects of human life such as their right, the laws, which are developed in UK, does not have the ability to provide just ruling.

The research, which is presented by Petrov, comprehended that there is an absence of a detailed comprehensive set of regulations on the subjects of fundamental right breaches[16]. This provided an explanation and further expanded, as the different legislative bodies such as national courts at local and national levels are responsible for the implementation of the related frameworks such as the human rights charter, which ensure the safeguarding of human right in a society.

Furthermore, in a study summarised that, there is a potential absence of awareness amongst different actors of the civil society regarding the policies developed by government for the promotions of rights of people in the legislative system[17]. Because of this, courts of UK plays an insignificant role in the determination of the human rights violation and the delivery of ruling against it.

According to this, the research which Arnull delivered suggested that the ineffective consideration of the human rights while making different judicial decisions in which courts is referring to the Charter however fails to directs the decision on the basis of this framework[18]. In addition to this, Equalityhumanrights similarly suggested that in the case of Belmarsh the UK House of Lords discovered an indefinite detention without charge or trial of individuals who are from foreign states and were suspected of being involved in the activities such as terrorism to be incompatible under Article 5 of the ECHR[19].

This concludes the need of development of enhanced legal system, as in the light of the discussed case law; there is a potential need of development of potential, awareness of the human rights framework and its details amongst judges. Moreover, there is a limitation in the consideration of the human rights law at the time of judgement, there is a need of development of an information exchange focused around then experiences of the court in the past cases in UK courts. This is because, the judges through the studying of the judgements in past cases have the tendency to enhance the effective consideration of existing judicial networks in UK as result of development of effective judgement system.

Discussion

Objective 1: To Identify the Role of Constitutional Courts in the Light of Human Rights Violations

The findings of the study have shown that the European Court of Human Rights is an international judicial forum set up by the member states of the Council of Europe in 1959 to respect their obligations under the European Convention on Human Rights[20]. The Court of Human Rights is a permanent forum of judges based in Strasbourg, to which individuals can turn directly, and whose judgments are binding on the member states.

The Court is composed of the same number of judges as the number of States Parties to the Convention. Judges shall enjoy complete independence in the performance of their duties and shall not represent the sending States[21]. The Court of Justice shall have jurisdiction in any matter relating to the interpretation or application of this Convention. It has the right to investigate both inter-state (against each other) and individual states, these are called individual complaints.

In states possessing a constitutional court, the scope of judicial review by the court is broadens to include the consideration of conventionality, if not directly then at least indirectly. The literature has also shown that with Neuman three diverse systems of constitutions can be discerned: a strong, a moderate, and a mild one.

Strong constitution consists of incorporating the international or European convention as such in the constitution, sometimes affording it the same status as the constitution, and bringing it directly or indirectly, within the reach of the constitutional court[22]. Instances of the merger of human rights accords in the constitution compriseof Andorra, Andorra, Bosnia-Herzegovina, Latvia, Montenegro, Russia, San Marino, Serbia and Sweden[23]. The finest example of providing constitutional status to the conventions is Austria.

Objective 2: To Assess the Issues of the Current Legal System Across Various Countries Relevant to Breaches in Fundamental Rights of People

The findings have shown that the legal system of various countries needs to be focused on to ensure the curbing of breaches of human rights. The most significant guarantee of the enforcement of fundamental rights is their incorporation into the Constitution – the Basic Law and the law[24]. In addition, there is a need to establish and operate an effective institutional system for the protection of human rights.

The Constitutional Court, the judicial organization and the ombudsman serve this purpose. The strengthening jurisdiction of the Constitutional Court includes the judiciary of fundamental rights, the protection of human rights, and the so-called a constitutional complaint that can be invoked if the addressees of a human right challenge either a law and / or a judicial act because they have violated a constitutional right of those concerned[25].

Additional powers of the Constitutional Court may be invoked in the event of a violation of human rights. It is only after the establishment of the Constitutional Court that the significance of the entire system and the mechanism by which it operates can be completely comprehended[26]. It took a mixture of aspects to avert the idea of Constitutional Court protection of the Constitution from taking origin in the first place.

A number of verdicts were booked that were in violation of the system that should have provided such protection, and among those who reinforced them, there was a general idea that constitutionality checks should be fashioned after those in the United States. To begin with, countries with legal systems that were comparable to each other’s (such as Scandinavia, Germany, Portugal, Greece, and Switzerland’s) were all in agreement on how to solve the problem.

It has long been questionable whether the Constitutional Court, i.e. a constitutional complaint, qualifies as an effective remedy. On a constitutional complaint challenging the legislation, the Court recently ruled that it should be invoked before filing a complaint in Strasbourg. Therefore, if the violation is directly the result of a law, one must first turns to the Constitutional Court and only then can the Court come.

The Court has taken a similar view on constitutional complaints seeking the annulment of judicial decisions and since this type of constitutional complaint could result in the annulment of an ordinary court decision that violates human rights, it should be used before going to court[27]. The unfortunate consequence of the above is that it is always necessary to examine the actual practice of the Constitutional Court in a given matter.

Objective 3: To Evaluate the Need for Implementation of a Constitutional Court for Fundamental Rights Breaches

The formation of a special constitutional court with the authority to catch constitutional grievances related to ruptures of individual constitutional rights might improve the protection of these rights and highlight the relevance of these rights in the context of the constitution. It cannot be ignored that the Constitutional Court is not envisioned to take the room of conventional courts in the protection of fundamental rights, which is why illustrating the boundary between ordinary jurisdiction and constitutional jurisdiction is such a hard and challenging problem[28].

There are numerous differences between legal systems that provide for constitutional appeal, such as the scope of the issue protected (plead-able rights or categories of acts that can be the subject of a constitutional appeal) and the scope of the issue protected that varies from one nation to another. People across the world identify that the fortification of human rights is vital to the very being and existence of a democratic state[29].

Constitutional jurisdiction has played a rather major role in this area, contributing to the concrete formulation of fundamental rights and balancing them, when necessary, in terms of consistency with other rights. A country’s constitutional court is required to assess the meaning of the constitution and relate all applicable laws to the country’s constitution, because disagreements over this subject may occur in regular courts as a result of the application of various laws in different countries[30].

As a result, the legal system’s unity with a constitution of this nature must be properly preserved in order to provide the country with legal stability based on the supreme concept of the constitution[31]. It can be ensured that the laws and legal system in the country are in accordance with the country’s constitution by keeping an eye on constitutionality legislation.

[1] Karl Nickerson Llewellyn, The Common Law Tradition.

[2] The Effectiveness Of International Law In Resolving International Armed Conflicts’ [2019] Journal of Law, Policy and Globalization.

[3] Edward B. Foley, ‘Due Process, Fair Play, And Excessive Partisanship: A New Principle For Judicial Review Of Election Laws’ [2016] SSRN Electronic Journal.

[4] Donald F. Kettl, ‘States Divided: The Implications Of American Federalism For COVID‐19’ (2020) 80 Public Administration Review.

[5] David M Beatty, Human Rights And Judicial Review: A Comparative Perspective.

[6]Imelda Deinla, ‘Public Support And Judicial Empowerment Of The Philippine Supreme Court’ (2014) 36 Contemporary Southeast Asia.

[7] Sunstein, C.R., 2018. Legal reasoning and political conflict. Oxford University Press.

[8] Garrett, G. and Weingast, B.R., 2019. 7. Ideas, Interests, and Institutions: Constructing the European Community’s Internal Market (pp. 173-206). Cornell University Press.

[9] Petrov, J., 2018. Unpacking the partnership: typology of constitutional courts’ roles in implementation of the European Court of Human Rights’ case law. European Constitutional Law Review, 14(3), pp.499-531.

[10] Bobic, A., 2017. Constitutional Pluralism Is Not Dead: An Analysis of Interactions between Constitutional Courts of Member States and the European Court of Justice. German LJ, 18, p.1395.

[11] Holovaty, S., 2016. Decision of the European Court of Human Rights: Precedent Law or Precedent Case Law. Law Ukr, Legal J., p.70.

[12]Ibid

[13] Ibid

[14] Dickson, B., 2021. Implications for the Protection of Human Rights in a United Ireland. Irish Studies in International Affairs, 32(2), pp.589-610

[15] Ibid 30

[16] Ibid 50

[17] Ibid 40

[18] Ibid 37

[19] Equalityhumanrights, ‘The UK And The European Court Of Human Rights’ (Equalityhumanrights, 2021) <https://www.equalityhumanrights.com/sites/default/files/83._european_court_of_human_rights.pdf> accessed 26 November 2021.

[20] Spano, Robert. “The future of the European court of human rights—Subsidiarity, process-based review and the rule of law.” Human Rights Law Review 18, no. 3 (2018): 473-494.

[21] Vogler, Richard. “Transnational inquiries and the protection of human rights in the case-law of the European court of human rights.” In Transnational Inquiries and the Protection of Fundamental Rights in Criminal Proceedings, pp. 27-40. Springer, Berlin, Heidelberg, 2013.

[22] Hedling, Nora. “A Practical Guide to Constitution Building: Principles and Cross-cutting.” (2011).

[23] Ibid 33

[24]Sarmiento, Daniel. “Who’s afraid of the Charter? The Court of Justice, national courts and the new framework of fundamental rights protection in Europe.” Common Market Law Review 50, no. 5 (2013).

[25] Halmai, Gábor. “Rights Revolution and Counter-Revolution: Democratic Backsliding and Human Rights in Hungary.” Law & Ethics of Human Rights 14, no. 1 (2020): 97-123.

[26] Ibid 66

[27]Öden, Merih, and Selin Esen. “Fundamental Rights and Freedoms in Turkey and the Turkish Constitutional Court.” In The Convergence of the Fundamental Rights Protection in Europe, pp. 127-162. Springer, Dordrecht, 2016.

[28] Piccirilli, Giovanni. “The ‘Taricco Saga’: the Italian Constitutional Court continues its European journey: Italian Constitutional Court, Order of 23 November 2016 no. 24/2017; Judgment of 10 April 2018 no. 115/2018 ECJ 8 September 2015, Case C-105/14, Ivo Taricco and Others; 5 December 2017, Case C-42/17, MAS and MB.” European Constitutional Law Review 14, no. 4 (2018): 814-833.

[29]Lin, Tzu-Ti, Ming-Sung Kuo, and Hui-Wen Chen. “Seventy Years On: The Taiwan Constitutional Court and Judicial Activism in a Changing Constitutional Landscape.” Hong Kong LJ 48 (2018): 995.

[30]Komárek, Jan. “National constitutional courts in the European constitutional democracy.” International Journal of Constitutional Law 12, no. 3 (2014): 525-544.

[31]Ibid 40

Chapter 5: Conclusion and Recommendations

Introduction

The chapter is intended to offer the conclusion of the study along with key recommendations for practice.  It has been divided into key sections where first section provides the recommendations of the study and the second section has provided the recommendations for future research. The third section has provided a comprehensive conclusion of the current research.

Recommendations

It has been recommended that the constitutional court should play a key role in public life, and that rules should be made by the ruling party in both astonishing and mundane circumstances, with the constitutional court handling any challenges. Due to the fact that it is in direct hostility to democratic values at their core, this authority should be applied with prudence.

In these cases, the only things that should be liable to judicial scrutiny are the safeguarding of minorities’ rights and the implementation of operational constraints on government power. In these cases, the only things that should be susceptible to judicial scrutiny are the preservation of minorities’ rights and the implementation of structural restrictions.

It should be noted that this is only a partial account. Contingent to the democratic credentials of the constitution, judges that strike down legislation because it is in disagreement with the constitution may also be characterised as taking a majority view in their decisions in their decisions. It has been found in the findings of the study that it is only after the establishment of the Constitutional Court that the significance of the entire system and the mechanism by which it operates can be completely comprehended.

It took a combination of factors to prevent the notion of Constitutional Court protection of the Constitution from taking root in the first place. A number of decisions were taken that were in violation of the system that should have provided such protection, and among those who supported them, there was a general idea that constitutionality checks should be fashioned after those existed in the countries.

Future Research

For future researchers, it has been recommended that the research should further be conducted in the context of any specific country. For instance, the key focus can be kept on the USA or UK whereas comparative analysis of the role played by constitutional courts in the two countries can also be considered. In addition to this, the future researchers should consider conducting a systematic review of literature where studies should be taken only from these two countries or any other countries based on the availability of the data. The current research has been focused only on secondary sources whereas the future researches should be using primary data where the data can be gathered by using survey questionnaire conducted from the  lawyers or other respondents belonging to the similar field.

Conclusion

This study aims to develop an evidence-based answer to the question inquiring about the development of constitutional courts in countries for fundamental rights breaches. The rights of humans delimit the power of the state and necessitate the state/ country to take measures (positive) through ensuring the surroundings and environment which allows all individuals to cherish their human rights.

It has been clear that law usually had not work without the dependency of the courts and this clearly mean that courts are usually not under the thumb of the most political powers. As more of the independent judge tend to assure that case of the individuals tend to decide according to the law with the facts, without the vagaries for shifting the current politics.

The decision of the Constitutional Court must be served on the administrative authority that signed the state treaty. If the contract has been concluded by the Federal President, the decision must also be served on the Federal Government. If the National Council has already ratified the State Treaty, it must also be sent to the Federal Chancellor; if the provincial legislature has ratified the treaty, the governor of the Land must also be notified of the decision of the Constitutional Court.

In the case of the legal interpretation of the private sphere in the Hungarian legal system, the right to human dignity has a special role. According to the Constitutional Court, the right to human dignity is a fundamental right that the Constitutional Court can invoke to protect the autonomy of the individual in any case if none of the specific fundamental rights apply to the situation.

The benefits of comprehensive protection of human rights are clear, both in terms of the plurality of the legal framework and the diversity of law enforcement. The publication of a catalogue of human rights always has symbolic force: a new affirmation of human rights. It can also be said that multilateral protection makes human rights more visible.

However, the visibility of human rights must not lead to a lack of clarity. Decisions made under different jurisdictions that differ and correct each other carry the risk of losing persuasive power. It is not possible to calculate by simply adding together the activities of the various courts to achieve the maximum protection of human rights.

Instead, it is important that the different mechanisms fit together effectively. Moreover, power for the judicial review have been provided to the courts as one of the crucial responsibility especially to make assuring the individual rights, and along with that to maintain a living constitution, whose broad level of provisions tend to applied in continuous way for complicating the new situations.

It is well known that in addition to exercising normative control, the constitutional courts may also exercise other powers such as judicial powers which have political significance, the effect of which does not prevail through the parliament. Not only can the Constitutional Court change the outcome of political debates in parliament by intervening in the decision-making process, but its decision has a direct impact on certain institutions of the political system, such as parties and the President of the country. 

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