Search results for: constitution

Authors: Onyinyechi Lilian Uche

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Limiting arbitrariness and political power in governance is expressed in the concept of constitutionalism. Constitutionalism acknowledges the necessity for government but insists upon a limitation being placed upon its powers. It is therefore clear that the essence of constitutionalism is obviation of arbitrariness in governance and maximisation of liberty with adequate and expedient restraint on government. The doctrine of separation of powers accompanied by a system of checks and balances in Nigeria like many other African countries is marked by elements of ‘personal government’ and this has raised questions about whether the apparent separation of powers provided for in the Nigerian Constitution is not just a euphemism for the hegemony of the executive over the other two arms of government; the legislature and the judiciary. Another question raised in the article is whether the doctrine is merely an abstract philosophical inheritance that lacks both content and relevance to the realities of the country and region today? The current happenings in Nigeria and most African countries such as the flagrant disregard of court orders by the Executive, indicate clearly that the concept constitutionalism ordinarily goes beyond mere form and strikes at the substance of a constitution. It, therefore, involves a consideration of whether there are provisions in the constitution which limit arbitrariness in the exercise of political powers by providing checks and balances upon such exercise. These questions underscore the need for Africa to craft its own understanding of the separation of powers between the arms of government in furtherance of good governance as it has been seen that it is possible to have a constitution in place which may just be a mere statement of unenforceable ‘rights’ or may be bereft of provisions guaranteeing liberty or adequate and necessary restraint on exercise of government. This paper seeks to expatiate on the importance of the nexus between constitutionalism and democratic process and a juxtaposition of practices between Nigeria and South Africa. The article notes that an abstract analysis of constitutionalism without recourse to the democratic process is meaningless and also analyses the structure of government of some selected African countries. These are examined the extent to which the doctrine operates within the arms of government and concludes that it should not just be regarded as a general constitutional principle but made rigid or perhaps effective and binding through law and institutional reforms.

Keywords: checks and balances, constitutionalism, democratic process, separation of power

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Authors: Chintan Chandrachud

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When primary legislation is challenged for breaching fundamental rights, many courts around the world adopt interpretive techniques to avoid finding such legislation incompatible or invalid. In the UK, these techniques find sanction in section 3 of the Human Rights Act 1998, which directs courts to interpret legislation in a manner which is compatible with European Convention rights, ‘so far as it is possible to do so’. In India, courts begin with the interpretive presumption that Parliament intended to comply with fundamental rights under the Constitution of 1949. In comparing rights-compliant interpretation of primary legislation under the Human Rights Act and the Indian Constitution, this paper makes two arguments. First, that in the absence of a section 3-type mandate, Indian courts have a smaller range of interpretive tools at their disposal in interpreting primary legislation in a way which complies with fundamental rights. For example, whereas British courts frequently read words into statutes, Indian courts consider this an inapposite interpretive technique. The second argument flows naturally from the first. Given that Indian courts have a smaller interpretive toolbox, one would imagine that ceteris paribus, Indian courts’ power to strike down legislation would be triggered earlier than the declaration of incompatibility is in the UK. However, this is not borne out in practice. Faced with primary legislation which appears to violate fundamental rights, Indian courts often reluctantly uphold the constitutionality of statutes (rather than striking them down), as opposed to British courts, which make declarations of incompatibility. The explanation for this seeming asymmetry hinges on the difference between the ‘strike down’ power and the declaration of incompatibility. Whereas the former results in the disapplication of a statute, the latter throws the ball back into Parliament’s court, if only formally.

Keywords: constitutional law, judicial review, constitution of India, UK Human Rights Act

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Authors: Wided Bakari, Patrce Bellot, Mahmoud Neji

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With the development of electronic media and the heterogeneity of Arabic data on the Web, the idea of building a clean corpus for certain applications of natural language processing, including machine translation, information retrieval, question answer, become more and more pressing. In this manuscript, we seek to create and develop our own corpus of pair’s questions-texts. This constitution then will provide a better base for our experimentation step. Thus, we try to model this constitution by a method for Arabic insofar as it recovers texts from the web that could prove to be answers to our factual questions. To do this, we had to develop a java script that can extract from a given query a list of html pages. Then clean these pages to the extent of having a database of texts and a corpus of pair’s question-texts. In addition, we give preliminary results of our proposal method. Some investigations for the construction of Arabic corpus are also presented in this document.

Keywords: Arabic, web, corpus, search engine, URL, question, corpus building, script, Google, html, txt

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Authors: Abiodun Odusote

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This paper gives content to the Provisions of Chapter II of the Constitution of the Federal Republic of Nigeria, it offers new perspectives on the nature of fundamental objectives and directive principles of state policy and the duties of citizens. It makes inquiries into the justiciability of these rights and examines the reasoning of the Nigerian courts in the interpretation and enforcement of the rights. The paper examines the emerging jurisprudence in India and South Africa and lessons are drawn from their respective models of enforcement of similar rights. The paper concludes by proposing more creative and novel alternatives to the enforcement and enjoyments of these rights, including: enforcement through Acts of Parliament, enforcement through other Constitutional provisions, indirect enforcement, enforcement through regional and international courts, enforcement by constructive engagement, and enforcement through electoral process. Overall, it is shown that there are available a variety of practical and effective ways of improving the realization and enjoyment of the provisions of Chapter II of the CFRN.

Keywords: constructive-engagement, indirect enforcement, judicial activism, justiciability, social rights

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Authors: Ronelle Prinsloo

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Teenage pregnancy in South African schools is a growing concern. In South Africa, many young female learners end their schooling permanently, not because they have completed their studies, but due to pregnancy. The admission policy of public schools is determined by the governing body of such a school, and this policy can determine that a pregnant leaner may not attend school during pregnancy and for a certain period after the birth of the child. This can be seen as an infringement of the rights of the teenage mother to be allowed to attend school. It can also be argued that this conflicts with the best interest of the child as well as the rights of the governing body to determine policy in accordance with the mandate as given to them by the parents and community served by the school. A pregnant learner can argue that the admission policy of a school is discriminatory if it does not allow the pregnant learner to continue her schooling. She may also argue that she is being unfairly discriminated against based on gender because in many instances, the baby’s father is still allowed to go to school. The Constitution (Constitution of the Republic of South Africa, Act 108 of 1996), provides in section 9, that everyone is equal before the law; it goes on to provide that equality includes the full and equal enjoyment of all rights and freedoms and provides those grounds on which one may not be discriminated against including, gender, sex, and pregnancy. Schools should be encouraged to re-enroll students if they have a support system available to assist with the necessary childcare when they attend school. To dramatically increase the number of young people enrolled in alternative pathways such as Further Education and Training or Adult Basic Education and Training must be provided. In addition, alternative systems must offer viable exit opportunities for participants by cohering with further education and economic opportunities.

Keywords: admission policy, Constitution of South Africa, human rights, teenage pregnancy

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Authors: Bagam Venkateswarlu

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NMDC Limited, Indian multinational mining company operates under administrative control of Ministry of Steel, Government of India. This study is undertaken to evaluate how sustainable mining practiced by the company fulfils the provisions of Indian Constitution to secure to its citizen – justice, equality of status and opportunity, promoting social, economic, political, and religious wellbeing. The Constitution of India lays down a road map as to how the goal of being a “Welfare State” shall be achieved. The vision of sustainable mining being practiced is oriented along the constitutional responsibilities on Indian Citizens and the Corporate World. This qualitative study shall be backed by quantitative studies of National Mineral Development Corporation performances in various domains of sustainable mining and ESG, that is, environment, social and governance parameters. For example, Five Star Rating of mine is a comprehensive evaluation system introduced by Ministry of Mines, Govt. of India is one of the methodologies. Corporate Social Responsibilities is one of the thrust areas for securing social well-being. Green energy initiatives in and around the mines has given the title of “Eco-Friendly Miner” to NMDC Limited. While operating fully mechanized large scale iron ore mine (18.8 million tonne per annum capacity) in Bacheli, Chhattisgarh, M/s NMDC Limited caters to the needs of mineral security of State of Chhattisgarh and Indian Union. It preserves forest, wild-life, and environment heritage of richly endowed State of Chhattisgarh. In the remote and far-flung interiors of Chhattisgarh, NMDC empowers the local population by providing world class educational & medical facilities, transportation network, drinking water facilities, irrigational agricultural supports, employment opportunities, establishing religious harmony. All this ultimately results in empowered, educated, and improved awareness in population. Thus, the basic tenets of constitution of India- secularism, democracy, welfare for all, socialism, humanism, decentralization, liberalism, mixed economy, and non-violence is fulfilled. Constitution declares India as a welfare state – for the people, of the people and by the people. The sustainable mining practices by NMDC are in line with the objective. Thus, the purpose of study is fully met with. The potential benefit of the study includes replicating this model in existing or new establishments in various parts of country – especially in the under-privileged interiors and far-flung areas which are yet to see the lights of development.

Keywords: ESG values, Indian constitution, NMDC limited, sustainable mining, CSR, green energy

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Authors: Muhammad Noor Hossain

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The biography of the father of the nation is the path of national life. It is natural that the ideals of the father will be reflected in his nation. In the interest of themselves, it is necessary to keep the father of the nation above controversy as well as necessary to research various aspects of his life. In that light, various aspects of Sheikh Mujibur Rahman's (1920-1975 AD) life are being researched at home and abroad. He is the father of Bengali nation, the architect of Bangladesh's independence, the best Bengali of a thousand years, and a beacon of thought and consciousness of the nation. It is unfortunate but true that there are still doubts among the nation about his religious thought. There are many political and historical reasons behind this. Many consider him to be anti-Islamic. Before independence of Bangladesh, Pakistanis called him Islamophobic, accused India's broker and hero of partitioning Islamic Republic of Pakistan. He was also accused of secularism as the post-independence constitution of Bangladesh adopted secularism as one of its fundamental principles. Many called him a communist due to the inclusion of socialism in the constitution. On the other hand, some intellectuals did not hesitate to call him sectarian after seeing his devotion to religion. As the architect of freedom and the father of the nation, his religious thought should be clear. In the interest of national unity and solidarity, it is necessary to verify the truth of the charges against him and come to a decision. The article was written with the aim of clarifying his religious thought and removing doubts about them. This is an endeavor to review the charges of communalism, secularism, and socialism practiced by him. It is written in the historical and analytical method. The major findings are that he is not communist in the meaning of atheist, nor communalist in the meaning of fundamentalist. He is not socialist or secularist in the meaning of anti-religion. He is a moderate Muslim and devoted to righteousness.

Keywords: Sheikh Mujubur Rahman, religious thought, secularism, socialism, communalism, Constitution of Bangladesh of 1972

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Authors: Leone Sherman

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While the democratic rights of a citizen may be very clearly outlined in a country’s constitution, it’s not uncommon for political elite to undermine those rights and gain more power and control over a country than it is allowed by this constitution. Moreover, while such a change in some smaller states may not have a substantial impact on the international community, the same change in countries with vast resources and political influence, such as Russia, is always a considerable factor for the world policy. This article aims to research the weaknesses of the Russian democratic system and their effect on the international policy through the three key aspects: The Russian people’s ability to produce the required political will to control their government’s decisions, the current development of the Russian political environment, and the affection of this environment on the world community as a whole during the recent years. The used methodology is a narrative analysis of recent political events, official statistics, international investigations and media statements. As a result, the ever-widening gap between the people and the government becomes evidently seen, as well as the challenges it imposes on the political world arena, both current and those that still lie ahead of us.

Keywords: Russia, political analysis, democratic weaknesses, international society

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Authors: C. Brierley, H. El-Farahaty, A. Farhan

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The Leeds Parallel Corpus of Arabic-English Constitutions is a parallel corpus for the Arabic legal domain. Analysis of legal language via Corpus Linguistics techniques is an important development. In legal proceedings, a corpus-based approach to disambiguating meaning is set to replace the dictionary as an interpretative tool, and legal scholarship in the States is now attuned to the potential for Text Analytics over vast quantities of text-based legal material, following the business and medical industries. This trend is reflected in Europe: the interdisciplinary research group in Computer Assisted Legal Linguistics mines big data collections of legal and non-legal texts to analyse: legal interpretations; legal discourse; the comprehensibility of legal texts; conflict resolution; and linguistic human rights. This paper focuses on ‘dignity’ as an important aspect of the overarching concept of human rights in current constitutions across the Arab world. We have compiled a parallel, Arabic-English raw text corpus (169,861 Arabic words and 205,893 English words) from reputable websites such as the World Intellectual Property Organisation and CONSTITUTE, and uploaded and queried our corpus in Sketch Engine. Our most challenging task was sentence-level alignment of Arabic-English data. This entailed manual intervention to ensure correspondence on a one-to-many basis since Arabic sentences differ from English in length and punctuation. We have searched for morphological variants of ‘dignity’ (رامة ك, karāma) in the Arabic data and inspected their English translation equivalents. The term occurs most frequently in the Sudanese constitution (10 instances), and not at all in the constitution of Palestine. Its most frequent collocate, determined via the logDice statistic in Sketch Engine, is ‘human’ as in ‘human dignity’.

Keywords: Arabic constitution, corpus-based legal linguistics, human rights, parallel Arabic-English legal corpora

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Authors: Aneri Mehta, Krunal Mehta

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Financial administration is part of government which deals with collection, preservation and distribution of public funds, with the coordination of public revenue and expenditure, with the management of credit operation on behalf of the state and with the general control of the financial affairs of public households. The researcher has taken the prime body of the local self government viz. Municipal Corporation. However, the number of municipal corporations in India has rapidly increased in recent years. Countries 27% of the total population are living in urban area & in recent it increasing very fast. People are moving very fast from rural area to urban area. Their demand, awareness is increasing day by day. The Municipal Corporations render many services for the development of the urban area. Thus, researcher has taken a step to know the accounting practices of the municipal corporations of Gujarat state (AMC & BMC ). The research will try to show you the status of finance of municipal corporations. Article 243(w) of the constitution of India envisaged that the state government maybe, by law , endow the municipalities with such powers and authorities as may be necessary to enable them to function as institution of self government and such law may contain provision for devolution of powers and responsibilities upon municipalities subjects to such condition as may be specified there in with respect to (i) the peroration of plans for economic development and social justice and (ii) the performance of the function and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the twelfth schedule. The three tier structure of the Indian Government i.e. Union, State & Local Self Government is the scenario of the Indian constitution. Local Self Government performs or renders many services under the direct control of state government. They (local bodies) possess autonomy within its limited sphere, raise revenue through local taxation and spend its income on local services.

Keywords: financial administration, urban local bodies, local self government, constitution

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Authors: María José Benítez Jiménez

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Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (E.C.H.R.) proclaims that no one may be subjected to torture, punishment or degrading treatment. The legislative correlate in Spain is embodied in Article 15 of the Spanish Constitution, and there must be an overlapping interpretation of both precepts on the ideal plane. While it is true that there are not many cases in which the European Court of Human Rights (E.C.t.H.R. (The Strasbourg Court)) has sanctioned Spain for its failure to investigate complaints of torture, it must be emphasized that the tendency to violate Article 3 of the Convention appears to be on the rise, being necessary to know possible factors that may be affecting it. This paper addresses the analysis of sentences that directly or indirectly reveal the violation of Article 3 of the European Convention. To carry out the analysis, sentences of the Strasbourg Court have been consulted from 2012 to 2016, being able to address any previous sentences to this period if it provided justified information necessary for the study. After the review it becomes clear that there are two key groups of subjects that request a response to the Strasbourg Court on the understanding that they have been tortured or degradingly treated. These are: immigrants and terrorists. Both phenomena, immigration and terrorism, respond to patterns that have mutated in recent years, and it is important for this study to know if national regulations begin to be dysfunctional.

Keywords: E.C.H.R., E.C.t.H.R. sentences, Spanish Constitution, torture

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Authors: Sitaram Dahal

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Among many strategic and practical needs in overcoming the threats and challenges being experienced in the global environment, constitutional provision for Rights to live in clean and healthy environment is one and so is the school curriculum incorporating information on such rights. Government of Nepal has also introduced information on rights to live in clean and healthy environment, as provisioned in its interim constitution of 2007, in the secondary level curriculum of formal education. As the predetermined specific objective of such curriculum is to prepare students who are conscious of citizens’ rights and responsibilities and are able to adopt functions, duties and rights of the rights holders and duty bearers; the study was designed to assess the effectiveness of such curriculum. The study was conducted in one private school and a community school to assess the effectiveness of such curriculum. The study shows that such curriculum has been able to make students responsible duty bearers as they were aware of their habits towards environment. Whereas only very few students are aware enough as being rights holders. Students of community schools were aware rights holders as they complain if they are not satisfied with the environment of the school itself. But private school is far behind in this case. It can be said that only curriculum with very few portion of information on such rights might not be capable enough to meet its objective.

Keywords: curriculum, environmental rights, constitution, effectiveness

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Authors: Thiago R. Pereira

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The philosophical hermeneutics is able to change the Brazilian Judiciary because of the understanding of the characteristics of the human being. It is impossible for humans, to be invested in the function of being a judge, making absolutely neutral decisions, but the philosophical hermeneutics can assist the judge making impartial decisions, based on the federal constitution. The normative legal positivism imagined a neutral judge, a judge able to try without any preconceived ideas, without allowing his/her background to influence him/her. When a judge arbitrates based on legal rules, the problem is smaller, but when there are no clear legal rules, and the judge must try based on principles, the risk of the decision is based on what they believe in. Solipsistically, this issue gains a huge dimension. Today, the Brazilian judiciary is independent, but there must be a greater knowledge of philosophy and the philosophy of law, partially because the bigger problem is the unpredictability of decisions made by the judiciary. Actually, when a lawsuit is filed, the result of this judgment is absolutely unpredictable. It is almost a gamble. There must be the slightest legal certainty and predictability of judicial decisions, so that people, with similar cases, may not receive opposite sentences. The relativism, since classical antiquity, believes in the possibility of multiple answers. Since the Greeks in in the sixth century before Christ, through the Germans in the eighteenth century, and even today, it has been established the constitution as the great law, the Groundnorm, and thus, the relativism of life can be greatly reduced when a hermeneut uses the Constitution as North interpretational, where all interpretation must act as the hermeneutic constitutional filter. For a current philosophy of law, that inside a legal system with a Federal Constitution, there is a single correct answer to a specific case. The challenge is how to find this right answer. The only answer to this question will be that we should use the constitutional principles. But in many cases, a collision between principles will take place, and to resolve this issue, the judge or the hermeneut will choose a solipsism way, using what they personally believe to be the right one. For obvious reasons, that conduct is not safe. Thus, a theory of decision is necessary to seek justice, and the hermeneutic philosophy and the linguistic turn will be necessary for one to find the right answer. In order to help this difficult mission, it will be necessary to use philosophical hermeneutics in order to find the right answer, which is the constitutionally most appropriate response. The constitutionally appropriate response will not always be the answer that individuals agree to, but we must put aside our preferences and defend the answer that the Constitution gives us. Therefore, the hermeneutics applied to Law, in search constitutionally appropriate response, should be the safest way to avoid judicial individual decisions. The aim of this paper is to present the science of law starting from the linguistic turn, the philosophical hermeneutics, moving away from legal positivism. The methodology used in this paper is qualitative, academic and theoretical, philosophical hermeneutics with the mission to conduct research proposing a new way of thinking about the science of law. The research sought to demonstrate the difficulty of the Brazilian courts to depart from the secular influence of legal positivism. Moreover, the research sought to demonstrate the need to think science of law within a contemporary perspective, where the linguistic turn, philosophical hermeneutics, will be the surest way to conduct the science of law in the present century.

Keywords: hermeneutic, right answer, solipsism, Brazilian judiciary

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Authors: Lucia Rottava

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The present study focuses on academic literacy and addresses the impact of semantic-discursive resources on the constitution of genres that are produced in such context. The research considers the development of writing in the academic context in Portuguese. Researches that address academic literacy and the characteristics of the texts produced in this context are rare, mainly with focus on the development of writing, considering three variables: the constitution of the writer, the perception of the reader/interlocutor and the organization of the informational text flow. The research aims to map the semantic-discursive resources of the written register in texts of several genres and produced by students in the first semester of the undergraduate course in letters. The hypothesis raised is that writing in the academic environment is not a recurrent literacy practice for these learners and can be explained by the ontogenetic and phylogenetic nature of language development. Qualitative in nature, the present research has as empirical data texts produced in a half-yearly course of Reading and Textual Production; these data result from the proposition of four different writing proposals, in a total of 600 texts. The corpus is analyzed based on semantic-discursive resources, seeking to contemplate relevant aspects of language (grammar, discourse and social context) that reveal the choices made in the reader/writer interrelationship and the organizational flow of the text. Among the semantic-discursive resources, the analysis includes three resources, including (a) appraisal and negotiation to understand the attitudes negotiated (roles of the participants of the discourse and their relationship with the other); (b) ideation to explain the construction of the experience (activities performed and participants); and (c) periodicity to outline the flow of information in the organization of the text according to the genre it instantiates. The results indicate the organizational difficulties of the flow of the text information. Cartography contributes to the understanding of the way writers use language in an effort to present themselves, evaluate someone else’s work, and communicate with readers.

Keywords: academic writing, portuguese mother tongue, semantic-discursive resources, sistemic funcional linguistic

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Authors: Kate N. Okeke

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The ever-growing needs of man requiring satisfaction have pushed him strongly towards industrialization which has and is still leaving environmental degradation and its attendant negative impacts in its wake. It is, therefore, not surprising that the enjoyment of fundamental rights like food supply, security of lives and property, freedom of worship, health and education have been drastically affected by such degradation. In recognition of the imperative need to protect the environment and human rights, many global instruments and constitutions have recognized the right to a healthy and sustainable environment. Some environmental advocates and quite a number of literatures on the subject matter call for the recognition of environmental rights via rule of law as a vital means of achieving positive outcomes on the subject matter. However, although there are numerous countries with constitutional environmental provisions, most of them such as Nigeria, have shown poor environmental performance. A notable problem is the fact that the constitution which recognizes environmental rights appears in its other provisions to contradict its provisions by making enforceability of the environmental rights unattainable. While adopting a descriptive, analytical, comparative and explanatory study design in reviewing a successful positive environmental outcome via the rule of law, this article argues that rule of law on a balance of scale, weighs more than just environmental rights recognition and therefore should receive more attention by environmental lawyers and advocates. This is because with rule of law, members of a society are sure of getting the most out of the environmental rights existing in their legal system. Members of Niger-Delta communities of Nigeria will benefit from the environmental rights existing in Nigeria. They are exposed to environmental degradation and pollution with effects such as acidic rainfall, pollution of farmlands and clean water sources. These and many more are consequences of oil and gas exploration. It will also pave way for solving the violence between cattle herdsmen and farmers in the Middle Belt and other regions of Nigeria. Their clashes are over natural resource control. Having seen that environmental rule of law is vital to sustainable development, this paper aims to contribute to discussions on how best the vehicle of rule law can be driven towards achieving positive environmental outcomes. This will be in reliance on other enforceable provisions in the Nigerian Constitution. Other domesticated international instruments will also be considered to attain sustainable environment and development.

Keywords: environment, rule of law, constitution, sustainability

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Authors: Eliane Cristina De Carvalho Mendoza Meza

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The Brazilian Federal Constitution from 1988 innovated with decentralized management, sharing the decision process among the federal government, states, and municipality (federalism). This innovation gave the opportunity to the civil society participates in the public policy agenda, including the municipal one; the state recognized that new actors were needed now it has been one more actor and not the only one. It was in this context that the woman’s Policy Secretaries were created in the three levels of government: federal, state and municipal. It intend to reduce the historical and social differences between men and women, especially in the poorest municipalities, working in a network basis with other secretaries, governmental institutions and non-governmental organizations to promote actions that can result in benefits and empowerment for women. In addition, they promote actions to protect them from domestic violence and to help them to learn how generate income. It was not a calm process, women have been fighting for their rights since the 1970s and despite the gender equality was recognized in the Federal Constitution of 1988, just in 2013 it was possible to see a real growth in the creation of municipal Women’s Policy Secretary. In 2009, just 6.5% of the cities in Brazil had implemented the Secretary; in 2013, it was 11%. The municipality realized that the gender issue was in reality a public problem, so the municipal agenda incorporated it and transformed in public policy, creating the municipal Women’s Policy Secretary. The introduction of a gender policy in Brazilian municipalities shows us that the female citizens are treated as political subjects and it is the first step to try to compensate inequality between men and women in the local level. It becomes more important when the Brazilian federalism is analyzed. In Brazil, the federal government controls the municipalities’ budgets to implement federal public policies and others federal interests, so having a public policy of gender approved by the actors in the local government with so little freedom to manage is something very important. It is necessary mark some points: taking a gender policy to the poorest cities is a form to protect all citizens with no distinction, men and women, as recommended in the Federal Constitution; not all problems in a city center in the municipal agenda, this only happens when a problem is perceived as an issue, it means the women situation was perceived as important, so that it became a public policy; at least, the gender public policy intend to emancipate and contemplate the empowerment of women.

Keywords: federalism, gender, municipal agenda, social participation

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Authors: Rika van Zyl

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South Africa’s racial discrimination past has led to the drafting of the Constitution with the Bill of Rights for the people of South Africa. The Bill of Rights prohibits the state from unfairly discriminating directly or indirectly on certain grounds, one of which is race and another is gender. This has forced changes to the law of succession. The customary law rule of male primogeniture was abolished to ensure that women were not excluded from the intestate succession of the male head of the family in 2005. It was said that this rule cannot be reconciled with the notions of equality and human dignity contained in the Bill of Rights. The freedom of testation has further come under fire in South Africa, where it was found to be unfair discrimination and against public policy to exclude a specific gender (women) from inheriting in a private will. Although no one has the right to inherit in South Africa, any person with an interest can approach the court alleging that a right in the Bill of Rights has been infringed. A will that is found inconsistent with the South African Bill of Rights then cannot be enforced. Recent case law found that to leave out a specific gender (women) from a will, based entirely on the fact that they are of said specific gender, is in contravention of the Constitution and should, therefore, be declared invalid. It was said that the courts should take a transformative constitutional approach when equality rights are affected. Otherwise, the historical and insidious unequal distribution of wealth in South Africa will continue along the fault lines such as gender. This decision has opened the debate on the extent to which the state can interfere with the private autonomy of an individual who is deceased. Some of these arguments will be discussed, including the ambit of public policy in this regard.

Keywords: equality, discrimination, succession, public policy

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Authors: Koboro J. Selala

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Whilst the system of collective bargaining is well-researched in South Africa, recent studies reveal that this is an area of law and practice that is poorly understood. Despite the growing attention being paid by most scholars to the role of collective bargaining in the labour relations system, only a handful of the studies have considered collective bargaining as a mechanism of dispute resolution. The purpose of this paper is to provide a critical analysis of the current understanding of the right to engage in collective bargaining in South Africa to assess the extent to which collective bargaining is used to resolve labour disputes. The overall objective is to offer a deeper understanding of the role of collective bargaining in dispute resolution process within the South African constitutional labour law context. To this end, the paper examines the applicable legal framework of collective bargaining to address two fundamental questions that are critical to the proper understanding of the functioning of the South African collective labour dispute resolution system. The first concerns the extent to which the current South African legislative framework supports the fundamental labour rights entrenched in the Constitution of the Republic of South Africa. The second addresses the role of trade unions in collective dispute resolution processes and the extent to which they can best utilize collective bargaining to resolve labour disputes. Finally, the paper discusses the general implications of the findings to stimulate further research and to enhance the constitutional development of collective labour rights in South Africa.

Keywords: collective bargaining, constitution, freedom of association, labour relations act

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Authors: Muhammad Adil

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Women in different parts of the world confront several barriers to accomplishing their legal rights, particularly political rights. One of the common barriers in this respect is the indigenous culture of the locality. In the same way, women in Khyber Pakhtunkhwa are facing difficulties in accomplishing their political rights. The most significant obstacle in this context is Pakhtunwali, the traditional code of conduct in Pakhtun society, which is perceived as a substantial impediment for Pakhtun women in practicing their political rights as guaranteed by the Constitution of Pakistan and international legal instruments. Several codes of Pakhtunwali, like peghor (slander or abuse), tor (blame or disgraced), sharam (shame and dishonor), purdah (gender segregation), and ghayrat (honor) have a prominent role in this regard. The research approach employed a combination of both qualitative and quantitative methods to ensure a thorough exploration of the subject. Not only different documents have been analyzed but also a questionnaire has been developed to get accurate findings. Simultaneously, both primary and secondary data have been utilized. The finding shows that the Pakhtun culture is a formidable hurdle in accomplishing women’s political rights in Pakhtun society, particularly in rural areas. Observation reveals that a prevailing societal perception is that having women as their representatives would be viewed as a challenge to the honor of Pakhtun men. Consequently, women candidates who participated in the general elections in Khyber Pakhtunkhwa received only 1 percent or less than 1 percent of the votes compared to their male counterparts. It is recommended that certain codes of Pakhtunwali should be redefined and made compatible with international legal instruments.

Keywords: constitution, fundamental rights, honor, pakhtunwali.

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Authors: Charles A. Khamala

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In 2003, constrained by an absent “rule of law culture” and negative economic growth, the new Kenyan government chose to pursue incremental judicial reforms rather than comprehensive constitutional reforms. President Mwai Kibaki’s first administration’s judicial reform strategy was two pronged. First, to implement unprecedented “radical surgery,” he appointed a new Chief Justice who instrumentally recommended that half the purportedly-corrupt judiciary should be removed by Presidential tribunals of inquiry. Second, the replacement High Court judges, initially, instrumentally-endorsed the “radical surgery’s” administrative decisions removing their corrupt predecessors. Meanwhile, retention of the welfare-reducing Constitution perpetuated declining public confidence in judicial institutions culminating in refusal by the dissatisfied opposition party to petition the disputed 2007 presidential election results, alleging biased and corrupt courts. Fatefully, widespread post-election violence ensued. Consequently, the international community prompted the second Kibaki administration to concede to a new Constitution. Suddenly, the High Court then adopted a non-instrumental interpretation to reject the 2003 “radical surgery.” This paper therefore critically analyzes whether the Kenyan court’s inconsistent interpretations–pertaining to the constitutionality of the 2003 “radical surgery” removing corruption from Kenya’s courts–was predicated on political expediency or human rights principles. If justice “must also seen to be done,” then pursuit of the CJ’s, Judicial Service Commission’s and president’s political or economic interests must be limited by respect for the suspected judges and magistrates’ due process rights. The separation of powers doctrine demands that the dismissed judges should have a right of appeal which entails impartial review by a special independent oversight mechanism. Instead, ignoring fundamental rights, Kenya’s new Supreme Court’s interpretation of another round of vetting under the new 2010 Constitution, ousts the High Court’s judicial review jurisdiction altogether, since removal of judicial corruption is “a constitutional imperative, akin to a national duty upon every judicial officer to pave way for judicial realignment and reformulation.”

Keywords: administrative decisions, corruption, fair hearing, judicial review, (non) instrumental

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Authors: Marjone Van Der Bank, C. M. Van Der Bank

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This paper presents an overview of the foundation and evolution of environmental related problems in local governments with specific reference on air pollution in South Africa. Local government has a direct mandate in terms of the Constitution of the Republic of South Africa, 1996 (hereafter, the Constitution). This mandate to protect, fulfil, respect and promote the Bill of Rights by local governments in respect of the powers and functions creates confusion around the role of where a local government fits in, in addressing the problem of climate change in South Africa. A reflection of the evolving legislations, developments, and processes regarding climate change that shaped local government dispensation in South Africa is addressed by the notion of developmental local governments. This paper seeks to examine the advances for mitigation and adaptation regulation of air pollution and application in South Africa. This study involves a qualitative approach that will involve South African national legislation as well as an interpretation of international strategies. A literature review study was conducted to undertake the various aspects of law in order to support the argument undertaken of mitigation and adaptation strategies. The paper presents a detailed discussion of the current legislation and the position as it currently stands, as well as the relevant protections as outlined in the National Environmental Management Act and the National Environmental Management: Air Quality Act. It then proceeds to outline the responsibilities of local governments in South Africa to mitigate and adapt to air pollution strategies.

Keywords: adaptation, climate change, disaster, local governments and mitigation

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Authors: Rosy Makeresemese Qhosola

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South Africa has maintained the effort to uphold its guiding principles in terms of its constitution. The constitution upholds principles such as equity, social justice, peace, freedom and hope, to mention but a few. So, such principles are made to form the basis for any legislation and policies that are in place to guide all fields/departments of government. Education is one of those departments or fields and is expected to abide by such principles as outlined in their policies. Therefore, as expected education policies and legislation outline their intentions to ensure the development of students’ clear critical thinking capacity as well as their creative capacities by creating learning contexts and opportunities that accommodate the effective teaching and learning strategies, that are learner centered and are compatible with the prescripts of a democratic constitution of the country. The paper aims at exploring and analyzing the progress of conventional accounting in terms of its adherence to the effective use of principles of good teaching, as per policy expectations in South Africa. The progress is traced by comparing conventional accounting to Critical Accounting Research (CAR), where the history of accounting as intended in the curriculum of SA and CAR are highlighted. Critical Accounting Research framework is used as a lens and mode of teaching in this paper, since it can create a space for the learning of accounting that is optimal marked by the use of more learner-centred methods of teaching. The Curriculum of South Africa also emphasises the use of more learner-centred methods of teaching that encourage an active and critical approach to learning, rather than rote and uncritical learning of given truths. The study seeks to maintain that conventional accounting is in contrast with principles of good teaching as per South African policy expectations. The paper further maintains that, the possible move beyond it and the adherence to the effective use of good teaching, could be when CAR forms the basis of teaching. Data is generated through Participatory Action Research where the meetings, dialogues and discussions with the focused groups are conducted, which consists of lecturers, students, subject heads, coordinators and NGO’s as well as departmental officials. The results are analysed through Critical Discourse Analysis since it allows for the use of text by participants. The study concludes that any teacher who aspires to achieve in the teaching and learning of accounting should first meet the minimum requirements as stated in the NQF level 4, which forms the basic principles of good teaching and are in line with Critical Accounting Research.

Keywords: critical accounting research, critical discourse analysis, participatory action research, principles of good teaching

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Authors: Adriana Pereira Arteaga

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In many Latin American countries the transition towards legal pluralism - has developed as part of what is called Latin-American-Constitutionalism over the last thirty years. The aim of this paper is to discuss how legal pluralism in its current form in Bolivia may produce exclusion and violence. Legal sources and discourse analysis - as an approach to examine written language on discourse documentation- will be used to develop this paper. With the constitution of 2009, Bolivia was symbolically "re-founded" into a multi-nation state. This shift goes hand in hand with the "indigenista" and "decolonisation" ideologies developing since the early 20th century. Discourses based on these ideologies reflect the rejection of liberal and western premises on which the Bolivian republic was originally built after independence. According to the "indigenista" movements, the liberal nation-state generates institutions corresponding to a homogenous society. These liberal institutions not only ignore the Bolivian multi-nation reality, but also maintain the social structures originating form the colony times, based on prejudices against the indigenous. The described statements were elaborated through the image: the indigenous people humiliated by a cruel western system as highlighted by the constitution's preamble. This narrative had a considerable impact on the sensitivity of people and received great social support. Therefore the proposal for changing structures of the nation-state, is charged with an emancipatory message of restoring even the pre-Columbian order. An order at times romantically described as the perfect order. Legally this connotes a rejection of the positivistic national legal system based on individual rights and the promotion of constitutional recognition of indigenous justice administration. The pluralistic Constitution is supposed to promote tolerance and a peaceful coexistence among nations, so that the unity and integrity of the country could be maintained. In its current form, legal pluralism in Bolivia is justified on pre-existing rights contained for example in the International - Labour - Organization - Convention 169, but it is more developed on the described discursive constructions. Over time these discursive constructions created inconsistencies in terms of putting indigenous justice administration into practice: First, because legal pluralism has been more developed on level of political discourse, so a real interaction between the national and the indigenous jurisdiction cannot be observed. There are no clear coordination and cooperation mechanisms. Second, since the recently reformed constitution is based on deep sensitive experiences, little is said about the general legal principles on which a pluralistic administration of justice in Bolivia should be based. Third, basic rights, liberties, and constitutional guarantees are also affected by the antagonized image of the national justice administration. As a result, fundamental rights could be violated on a large scale because many indigenous justice administration practices run counter to these constitutional rules. These problems are not merely Bolivian but may also be encountered in other regional countries with similar backgrounds, like Ecuador.

Keywords: discourse, indigenous justice, legal pluralism, multi-nation

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Authors: Jhabakhar Aryal, Kesh Bahadur Rana, Durga Prasad Neupane

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This research analyzes the nature and impacts of the 2015 unofficial blockade in Nepal, a significant event that triggered an economic and humanitarian crisis. While official channels denied claims of involvement, Nepal perceived the blockade as orchestrated by India due to concerns about the newly adopted constitution and Madheshi infringements. The study adopts a qualitative approach, utilizing semi-structured interviews, document analysis, and content analysis to gather data from various perspectives. Employing a "colonial hangover lens," it investigates if colonial legacies continue to influence postcolonial nation dynamics, focusing on India's potential attempt to exert influence over Nepal. The findings suggest that the 2015 blockade had profound consequences for Nepal, potentially reflecting lingering colonial power dynamics in the region. Despite India's denials, a significant portion of Nepalis perceived the blockade as an act of external pressure. Examining these perceptions offers valuable insights into postcolonial relations and their impact on regional stability. The 2015 unofficial blockade serves as a critical case study in understanding the complex interplay of internal dynamics, external influences, and historical legacies in shaping the geopolitics of the region. This research contributes to a deeper understanding of these factors and their ongoing implications for Nepal and its relationship with India.

Keywords: blockade, unofficial, constitution, Madhesis, India, Nepal, postcolonial, regional stability, geopolitics

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Authors: Huang Gui

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The issues of human rights and death penalty are always drawing attentions from international scholars, critics and observers, activities and Chinese scholars, and most of them looking at these problems are just doing with such legal or political from a single perspective, but the real relationship between Chinese political regime and legislation is often ignored. In accordance with the Constitution of P.R.C., Communist Party of China (CPC) does not merely play a key role in political field, but in legislation and law enforcement as well. Therefore, the legislation has to implement the party’s theory and outlook, and realize the party’s policies. So is the death penalty system, though it is only concrete punishment system. Considering this point, basic upon the introducing the relationship between CPC and legislation, this paper would like to explore the shifting of CPC’s outlook on human rights and the death penalty system changes in different eras. In Maoist era, the issue of human rights was rejected and deemed as an exclusion zone, and the death penalty was unjustifiably imposed; human rights were politically recognized and accepted in Deng era, but CPC has its own viewpoints on it. CPC emphasized on national security and stability in that era, and the individual human rights weren’t taken correspondingly and reasonably account of. The death penalty was abused and deemed as an important measure to control crime. In post-Deng, human rights were gradually developed and recognized. The term of ‘state respect and protect human rights’ is contained in Constitution of P.R.C., and the individual human rights are gradually valued, but the CPC still focus on state security, development, and stability, the individual right to life hasn’t been enough valued like the right to substance. Although the steps of reforming death penalty are taking, there are still 46 crimes punishable by death. CPC should change its outlook and pay more attention to the right to life, and try to abolish death penalty de facto and de jure.

Keywords: criminal law, communist party of China, death penalty, human rights, China

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Authors: Sourina Bej

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Since the process of decolonization in 1940, several countries in South Asia have witnessed intra-state conflicts owing to ineffective political governance. The conflicts have remained protracted as the countries have failed to make a holistic transition to a democratic state. Nepal is one such South Asian country facing a turmultous journey from monarchy to republicanism. The paper aims to focus on the democratic transition in the context of Nepal’s political, legal and economic institutions. The presence of autocratic feudalistic and centralised state structure with entrenched socio-economic inequalities has resulted in mass uprising only to see the country slip back to the old order. Even a violent civil war led by the Maoists could not overhaul the political relations or stabilize the democratic space. The paper aims to analyse the multiple political, institutional and operational challenges in the implementation of the peace agreement with the Maoist. Looking at the historical background, the paper will examine the problematic nation-building that lies at the heart of fragile peace process in Nepal. Regional dynamics have played a big role in convoluting the peace-building. The new constitution aimed at conflict resolution brought to the open, deep seated hatred among different ethnic groups in Nepal. Apart from studying the challenges to the peace process and the role of external players like India and China in the political reconstruction, the paper will debate on a viable federal solution to the ethnic conflict in Nepal. If the current government fails to pass a constitution accepted by most ethnic groups, Nepal will remain on the brink of new conflict outbreaks.

Keywords: democratisation, ethnic conflict, Nepal, peace process

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Authors: Oscar Sang, Shadrack David Rotich

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Parliamentary immunity is grounded on the notion that parliaments need certain rights or immunities to ensure they can operate independently make fair and impartial decisions without capitulating to political pressure or intimidation. The 2013 election in Kenya marked an important milestone in the development of the law of parliamentary privilege. Such importance relates to the dramatic increase in the number of legislatures in the country from one unicameral parliament, to a bicameral national parliament and forty-seven other regional legislative assemblies. The increase in legislatures has resulted in a dramatic increase in political contestations which have led to legal wrangles. The judiciary in Kenya, once considered submissive, has been invited to arbitrate on various matters pitting individual rights and parliamentary privilege and have invalidated a number of legislative action. While judicial intervention is indeed necessary to ensure that legislatures in Kenya live true to the constitutional aspirations of the Kenyan people, certain judicial decisions have had an effect on eroding parliamentary immunity. This paper highlights a number of instances in which it could be argued that parliamentary privilege came under attack by the courts in Kenya. The paper aims to make a case that while Kenya’s progressive constitution necessitates the scope and extent of legislature’s immunities and privilege to be determined by the courts, it is important that courts exercise restraint in its review of legislative action. The paper makes the argument that unrestrained judicial action in Kenya on questions within the realm parliamentary privilege may undermine the functioning of Kenya’s legislatures. The paper explores approaches taken by a number of jurisdictions in establishing a proper balance between maintaining a viable parliamentary privilege regime in a rights-based constitutional system.

Keywords: Kenya, constitution, judicial restraint, parliamentary privilege

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Authors: Demelash Kassaye Debalkie

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The primary objective of this study is to report the tributes that are significantly impeding the Ethiopian police's ability to provide quality services to the people. Policing in Ethiopia started in the medieval period. However, modern policing was introduced instead of vigilantism in the early 1940s. The progress counted since the date police became modernized is, however, under contention when viewed from the standpoint of officers’ development and technologies in the 21st century. The police in Ethiopia are suffering a lot to be set free from any form of political interference by the government and to be loyal to impartiality, equity, and justice in enforcing the law. Moreover, the institutional competence of the police in Ethiopia is currently losing its power derived from the constitution as a legitimate enforcement agency due to the country’s political landscape encouraging ethnic-based politics. According to studies, the impact of ethnic politics has been a significant challenge for police in controlling conflicts between two ethnic groups. The study used qualitative techniques and data was gathered from key informants selected purposely. The findings indicate that governments in the past decades were skeptical about establishing a constitutional police force in the country. This has certainly been one of the challenges of pluralizing the police: building police-community relations based on trust. The study conducted to uncover the obstructions has finally reported that the government’s commitment to form a non-partisan, functionally decentralized, and operationally demilitarized police force is too minimal and appalling. They mainly intend to formulate the missions of the police in accordance with their interests and political will to remain in power. It, therefore, reminds the policymakers, law enforcement officials, and the government in power to revise its policies and working procedures already operational to strengthen the police in Ethiopia based on public participation and engagement.

Keywords: community, constitution, Ethiopia, law enforcement

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Authors: Gülay Dalgıç, Gildis Tachir

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Architectural design studios are ambiencein where architecture design is realized as a palpable product in architectural education. In the design studios that the architect candidate will use in the design processthe information, the methods of approaching the design problem, the solution proposals, etc., are set uptogetherwith the studio coordinators. The architectural design process, on the other hand, is complex and uncertain.Candidate architects work in a process that starts with abstre and ill-defined problems. This process starts with the generation of alternative solutions with the help of representation tools, continues with the selection of the appropriate/satisfactory solution from these alternatives, and then ends with the creation of an acceptable design/result product. In the studio ambience, many designs and thought relationships are evaluated, the most important step is the early design phase. In the early design phase, the first steps of converting the information are taken, and converted information is used in the constitution of the first design decisions. This phase, which positively affects the progress of the design process and constitution of the final product, is complex and fuzzy than the other phases of the design process. In this context, the aim of the study is to investigate the effects of face-to-face learning model and e-learning model on the early design phase. In the study, the early design phase was defined by literature research. The data of the defined early design phase criteria were obtained with the feedback graphics created for the architect candidates who performed e-learning in the first year of architectural education and continued their education with the face-to-face learning model. The findings of the data were analyzed with the common graphics program. It is thought that this research will contribute to the establishment of a contemporary architectural design education model by reflecting the evaluation of the data and results on architectural education.

Keywords: education modeling, architecture education, design education, design process

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Authors: Rohtash

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Academically, the concept of Justice in the literature is vast, and theories are voluminous and definitions are numerous but it is very difficult to define. Through the ages, justice has been evolving and developing reasoning that how individuals and communities do the right thing that is just and fair to all in that society. Justice is a relative and dynamic concept, not absolute one. It is different in different societies based on their morality and ethics. The idea of justice cannot arise from a single morality but interaction of competing moralities and contending perspectives. Justice is the conditional and circumstantial term. Therefore, justice takes different meanings in different contexts. Justice is the application of the Laws. It is a values-based concept in order to protect the rights and liberties of the people. It is a socially created concept that has no physical reality. It exists in society on the basis of the spirit of sharing by the communities and members of society. The conception of justice in society or among communities and individuals is based on their social coordination. It can be effective only when people’s judgments are based on collective reasoning. Their behavior is shaped by social values, norms and laws. People must accept, share and respect the set of principles for delivering justice. Thus justice can be a reasonable solution to conflicts and to coordinate behavior in society. The subject matter of distributive justice is the Public Good and societal resources that should be evenly distributed among the different sections of society on the principles developed and established by the State through legislation, public policy and Executive orders. The Socioeconomic transformation of the society is adopted by the constitution within the limit of its morality and gives a new dimension to transformative justice. Therefore, both Procedural and Transformative justice is part of Distributive justice. Distributive justice is purely an economic phenomenon. It concerns the allocation of resources among the communities and individuals. The subject matter of distributive justice is the distribution of rights, responsibilities, burdens and benefits in society on the basis of the capacity and capability of individuals.

Keywords: distributive justice, constitutionalism, institutionalism, constitutional morality

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