Search results for: constitutional law

Authors: Mingsiang Chen

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The increasing transactions among countries worldwide have brought about a trend of comparative law research in the legal community. An important branch of legal research, i.e., constitutional law, is no exception to the trend. The comparative study of constitutional law takes various forms, and one of these is to study the use of foreign law by constitutional courts. There are, in essence, three sources of foreign law usually used by constitutional courts: foreign constitutions, decisions by foreign constitutional courts, and legal theories developed by foreign scholars. There are two types of using foreign law by constitutional courts: citing any of the forenamed sources for reference purpose, ruling based on the contents or logic of any of the forenamed sources. This paper examines all the decisions handed down by the Constitutional Court of Taiwan from 1990 to 2017. Its purpose is to seek out the occasions, the extent, the significance, and the approach of such usage.

Keywords: comparative constitutional law, constitutional court, judicial review, Taiwan judiciary

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Authors: Marieta Safta

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The separation and balance of state powers constitute the basis of the rule of law. Observance of this principle requires framing of public authorities within the limits of competence established by the Constitution and the law, as well as loyal cooperation between them. From this perspective, the attribution of the constitutional courts for settling legal conflicts of a constitutional nature is an important tool for correcting the tendencies of violation of these limits, as well as for identifying solutions for situations that do not find an explicit regulation in the constitutional texts. The present study analyzes the jurisprudence of the Constitutional Court of Romania in the field of legal conflicts of a constitutional nature, revealing, together with the presentation of conflict situations, the vulnerabilities of the constitutional reference texts. It is also highlighted the role of the constitutional courts in the evolution of constitutional law institutions, even in terms of defining and redefining the regime of the forms of government. The conclusion of the study, beyond the subject of legal conflicts of a constitutional nature, bears on the necessity, even more so in this matter, of the certainty of jurisdictional interpretation. This certainty cannot be achieved as long as the interpretation is not authoritative; consequently, the assurance of the effectiveness of constitutional justice constitute a key issue of the rule of law.

Keywords: legal conflicts of constitutional nature, the Constitutional Court of Romania, the separation and balance of powers in the state, the effectiveness of constitutional justice

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Authors: Monika Florczak-Wątor

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The main purpose of this paper is to determine the applicability of the constitutional social rights in the so-called horizontal relations, i.e. the relations between private entities. Nowadays the constitutional rights are more and more often violated by private entities and not only by the state. The private entities interfere with the privacy of individuals, limit their freedom of expression or disturb their peaceful gatherings. International corporations subordinate individuals in a way which may limit their constitutional rights. These new realities determine the new role of the constitution in protecting human rights. The paper will aim at answering two important questions. Firstly, are the private entities obliged to respect the constitutional social rights of other private entities and can they be liable for violation of these rights? Secondly, how the constitutional social rights can receive horizontal effect? Answers to these questions will have a significant meaning for the popularization of the practice of applying the Constitution among the citizens as well as for the courts which settle disputes between them.

Keywords: social rights, private relations, horizontality, constitutional rights

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Authors: Muhammad Umer Toor, Syed Imran Haider, Babar Afzaal

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Brexit nudged the British executive towards overriding parliamentary sovereignty in the UK. In 2019, Prime Minister Boris Johnson sought to prorogue parliament to prevent it from debating withdrawal from the UK. In 2022, Pakistan's Prime Minister also tried to nullify the ability of parliament to vote on the constitutional mechanism of a no-confidence vote. In both cases, the apex courts intervened and restored the supremacy of Parliament, averting constitutional crises. This paper examines the legitimacy and power of said courts to intervene in sensitive political and constitutional questions. The research focuses on the administrative law area of judicial review. It examines how in UK and Pakistan practice of judicial review helps mediate constitutional deadlocks between institutions comparatively. This is secondary research employing qualitative, comparative, doctrinal, and analytical methodologies to research a specific area of law from two jurisdictions, using primary and secondary sources.

Keywords: administrative law, judicial review, law, constitutional law

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Authors: Alasdair Stanton

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What makes for a good explanation? Twenty years after Wendt’s important treatment of constitution and causation, non-causal explanations (sometimes referred to as ‘understanding’, or ‘descriptive inference’) have become, if not mainstream, at least accepted within International Relations. This article proceeds in two parts: firstly, it examines closely Wendt’s constitutional claims, and while it agrees there is a difference between causal and constitutional, rejects the view that constitutional explanations lack temporality. In fact, this author concludes that a constitutional argument is only possible if it relies upon a more foundational, causal argument. Secondly, through theoretical analysis of the constitutional argument, this research seeks to delineate temporal and non-temporal ways of explaining within International Relations. This article concludes that while the constitutional explanation, like other logical arguments, including comparative, and counter-factual, are not truly non-causal explanations, they are not bound as tightly to the ‘real world’ as temporal arguments such as cause-effect, process tracing, or even interpretivist accounts. However, like mathematical models, non-temporal arguments should aim for empirical testability as well as internal consistency. This work aims to give clear theoretical grounding to those authors using non-temporal arguments, but also to encourage them, and their positivist critics, to engage in thoroughgoing empirical tests.

Keywords: causal explanation, constitutional understanding, empirical, temporality

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Authors: Norbert Tribl

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European contemporary scientific public opinion considers the concept of constitutional identity as a highlighted issue. Some scholars interpret the matter as the manifestation of a conflict of Europe. Nevertheless, constitutional identity is a bridge between the Member States and the EU rather than a river that will wash away the achievements of the integration. In accordance with the opinion of the author, the main problem of constitutional identity in Europe is the undetermined nature: the exact concept of constitutional identity has not been defined until now. However, this should be the first step to understand and use identity as a legal institution. Having regard to this undetermined nature, the legal-theoretical examination of constitutional identity is the main purpose of this study. The concept of constitutional identity appears in the Anglo-Saxon legal systems by a different approach than in the supranational system of European Integration. While the interpretation of legal institutions in conformity with the constitution is understood under it, the European concept is applied when possible conflicts arise between the legal system of the European supranational space and certain provisions of the national constitutions of the member states. The European concept of constitutional identity intends to offer input in determining the nature of the relationship between the constitutional provisions of the member states and the legal acts of the EU integration. In the EU system of multilevel constitutionalism, a long-standing central debate on integration surrounds the conflict between EU legal acts and the constitutional provisions of the member states. In spite of the fact that the Court of Justice of the European Union stated in Costa v. E.N.E.L. that the member states cannot refer to the provisions of their respective national constitutions against the integration. Based on the experience of more than 50 years since the above decision, and also in light of the Treaty of Lisbon, we now can clearly see that EU law has itself identified an obligation for the EU to protect the fundamental constitutional features of the Member States under Article 4 (2) of Treaty on European Union, by respecting the national identities of member states. In other words, the European concept intends to offer input for the determination of the nature of the relationship between the constitutional provisions of the member states and the legal acts of the EU integration.

Keywords: constitutional identity, EU law, European Integration, supranationalism

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Authors: Maria Ashitko

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The Constitution of the Republic of Belarus is based on the principle of the unity of rights and obligations, including those of the child. The constitutional status of the child is aspecific system of constitutional elements established and guaranteed by the state through the current legislation and regulatory acts that ensure the special legal status of the child, his or her constitutional legal capacity, implementation of the principles of the constitutional and legal status of the child, constitutional rights of the child and their safeguards. Under the principles of the constitutional status of the child, we consider the general, normative, social-volitional rules of behavior established by the Constitution of the Republic of Belarus, laws and other regulatory acts that determine the content and social purpose of the legal status of the child. The constitutional and legal status of the child is characterized by the following special principles, which form a feature of the state legal system:1) Ensuring the interests of the child means providing for the child in accordance with his or her age, state of health, characteristics of development, life experience, family life, cultural traditions, ethnicity. 2) The principle of equal responsibility of both parents or their substitutes characterized by caring for the next generation as one of the priority tasks of the state and society, and all issues related to the implementation of children’s rights should be addressed at the constitutional level. 3) We would like to highlight such a special principle as the subprinciple of safeguards, which is the principle of ensuring the safety of the child. It is also worth noting that in legal studies, there is no relationship between safety and constitutional rights as general safeguards of individual rights and freedoms, and as special safeguards for the right to life. 4) The principle of justice is expressed by the fact that in modern conditions, the quality of life is determined not only by material wealth but also by the ability of the state to ensure the harmonization of social relations and social harmony on the basis of humanism and justice. Thus, the specificity of the constitutional status of the child is the age boundary between adulthood and minority; therefore, we propose to highlight the age characteristics of the child as an additional element. It is advisable to highlight such a special principle as the subprinciple of safeguards, which is the principle of ensuring the safety of the child.

Keywords: children’s rights, constitutional status, constitutional principles, constitutional rights

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Authors: Masnur Marzuki

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As in other democratic countries, the constitutional court of Indonesia has the role of interpreting and applying the Constitution in order to preserve its supremacy testing the constitutionality of statutes. With its strong power to enforce and guard the Constitution, the court is now challenged to provide people an opportunity to understand their constitutional rights close up. At the same time, the court has built up an enviable reputation among constitutional courts in new democracies for the technical quality of its legitimacy in the legal sense. Since its establishment in 2003, the Constitutional Court of Indonesia has decided more than 190 statutes in judicial review case. It has been remarkably successful to make a credible start on its work of guarding the Constitution. Unsurprisingly, many argue that the Court has elevated Indonesia’s democracy to a whole new level. In accomplishing its roles judicial review, the basic principle that can be identified is that the Constitutional Court must always be subordinated to the Constitution. It is not being allowed to invade the field of the legislator. In doing so, the court does not have any discretionary political basis in order to create legal norms or provisions that could not be deducted from the Constitution itself. When interpreting a statute “in accordance with the constitution”, the court recognizes and reasserts that it is strictly forbidden to extend the scope of a legal provision in such a way that would create a general norm not established by the law-maker. This paper aims to identify and assess the latest role of Indonesian Constitutional Court in interpreting and applying the Constitution. In particular, it questions 1) the role of the Constitutional Court in judicial review; and 2) the role of the court to assist the legislators in the accomplishment of their functions in order to preserve its supremacy testing the constitutionality of statutes. Concerning positive legislator, jurisprudential and judicial review theories will be approached. The empirical part will include qualitative and comparative research. Main questions to be addressed: Can the Constitutional Court be functionalized as positive legislator? What are the criteria for conducting role of Constitutional Courts as Positive Legislators and how can it be accepted? Concerning the subordination of Constitutional Courts to the Constitution and judicial review, both qualitative and quantitative methods will be used, and differences between Indonesia and German Constitutional Court will be observed. Other questions to be addressed: Can Constitutional Courts have any discretionary political basis in order to create legal norms or provisions that could not be deducted from the Constitution itself. Should the Constitutional Court always act as a negative legislator? However, the Constitutional Court in Indonesia has played role as positive legislators which create dynamic of Indonesian legal development. In performing the task of reviewing the constitutionality of statutes, the Constitutional Court has created legal norms or provisions that could be deducted from the Constitution itself.

Keywords: constitution, court, law, rights

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Authors: Sudaporn Arundee

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The purposes of this research were to study in three areas: (1) to study political understanding and participating of the constitutional monarchy, (2) to study the level of participation. This paper drew upon data collected from 395 Dusit residents by using questionnaire. In addition, a simple random sampling was utilized to collect data. The findings revealed that 94 percent of respondents had a very good understanding of constitution monarchy with a mean of 4.8. However, the respondents overall had a very low level of participation with the mean score of 1.69 and standard deviation of .719.

Keywords: political participation, constitutional monarchy, management and social sciences

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Authors: Zsuzsanna Fejes

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The aim of this paper is to provide an overview of the legal history of constitutionalism in Hungary, in focus of the democratic transitions in 1989-1990, describing the historical and political background of the changes and presenting the main and most important features of the new democracy, and institutional and legal orders. In Hungary the evolved political, economic and moral crisis prior to the constitutional years 2010-11 had been such a constitutional moment, which led to an opportune and unavoidable change at the same time. The Hungarian constitutional power intended to adopt a new constitution, which was competent to create a common constitutional identity and to express a national unity. The Hungarian Parliament on 18th April 2011 passed the New Fundamental Law. The new Fundamental Law rich in national values meant a new challenge for the academics, lawyers, and political scientists. Not only the classical political science, but also the constitutional law and theory have to struggle with the interpretation of the new declarations about national constitutional values in the Fundamental Law. The main features and structure of the new Fundamental Law will be analysed, and given a detailed interpretation of the Preamble as a declaration of constitutional values. During the examination of the Preamble shall be cleared up the components of Hungarian statehood and national unity, individual and common human rights, the practical and theoretical demand on national sovereignty, and the content and possibilities for the interpretation of the achievements of the historical Constitution. These scopes of problems will be presented during the examination of the text of National Avowal, as a preamble of the Fundamental Law. It is examined whether the Fundamental Law itself could be suitable and sufficient means to citizens of Hungary to express the ideas therein as their own, it will be analysed how could the national and European common traditions, values and principles stated in the Fundamental Law mean maintenance in Hungary’s participation in the European integration.

Keywords: common constitutional values, constitutionalism, national identity, national sovereignty, national unity, statehood

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Authors: Zsuzsa Szakaly

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Several constitutions have explicit or implicit eternity clauses in the European Union, their classic roles were analyzed so far, albeit there are new possibilities emerging in relation to the identity of the constitutions of the Member States. The aim of the study is to look at the practice of the Constitutional Courts of the Member States in detail regarding eternity clauses where limiting constitutional amendment has practical bearing, and to examine the influence of such practice on Europeanization. There are some states that apply explicit eternity clauses embedded in the text of the constitution, e.g., Italy, Germany, and Romania. In other states, the Constitutional Court 'unearthed' the implicit eternity clauses from the text of the basic law, e.g., Slovakia and Croatia. By using comparative analysis to examine the explicit or implicit clauses of the concerned constitutions, taking into consideration the new trends of the judicial opinions of the Member States and the fresh scientific studies, the main questions are: How to wield the double-edged sword of eternity clauses? To support European Integration or to support the sovereignty of the Member State? To help Europeanization or to act against it? Eternity clauses can easily find themselves between a rock and a hard place, the law of the European Union and the law of a Member State, with more possible interpretations. As more and more Constitutional Courts started to declare elements of their Member States’ constitutional identities, these began to interfere with the eternity clauses. Will this trend eventually work against Europeanization? As a result of the research, it can be stated that a lowest common denominator exists in the practice of European Constitutional Courts regarding eternity clauses. The chance of a European model and the possibility of this model influencing the status quo between the European Union and the Member States will be examined by looking at the answers these courts have found so far.

Keywords: constitutional court, constitutional identity, eternity clause, European Integration

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Authors: Zeynep Ozkan, Cigdem Serra Uzunpinar

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Citizenship is a legal bond that binds a person to a certain state. How constitutions define ‘the citizen’ and how they regulate the elements of citizenship have great importance in terms of individuals’ duties before the state as well as the rights they own. Especially in multi-segmented societies that contain foreign elements, it becomes necessary to examinate the institution of naturalization in terms of individuals’ duty of constitutional citizenship. The meaning of citizenship in Turkey has transformed due to the changes in practices of naturalization, in parallel to receiving huge amount of immagrants with the recent Syrian Crisis, the change in the governmental system and facing economic crisis. This transformation took place in the way of a diversion from the states’ initial motive of building the bond of citizenship with the aim of founding/sustaining political unity. Hence, rising of the economic and political motives in naturalization practices are in question, instead of objective and subjective criterias, that are traditionally used on defining the notion of nation. In this study, firstly the regime of citizenship and the legal regime of aliens in Turkish legislation will be given place. Then, the transformation, that the notion of constitutional citizenship underwent, will be studied, especially on the basis of governmental practices of naturalization. The assessment will be made in the context of legal institutions brought with the new governmental system as a result of recent constitutional amendment.

Keywords: constitutional citizenship, naturalization, naturalization practices in Turkish legal system, transformation of the notion of constitutional citizenship

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Authors: Stephen Clear

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Brexit, the relationship between devolved administrations, and Westminster, as well as recent Supreme Court judgments, all evidence that traditional paradigms in the divide between legal and political constitutionalism are changing within the United Kingdom. Whilst not mutually exclusive concepts, these latest constitutional developments suggest that the UK is about to embark upon radical constitutional reform over the course of the next decade. Such will systematically redefine the roles and relationships of each of the three arms of the State. In mapping these three latest events, this paper starts by defining constitutionalism as a jurisprudential concept, from the Age of Enlightenment, through to its present day manifestations in 2020. Such thereafter explains why the UK is seeking to move further away from political constitutionalism, and instead towards an increased reliance on newly defined laws and rules, particularly given that the UK now has a government with a stronger working majority following the general election results in 2019. In doing so, this paper concludes by commenting upon recent concerns surrounding the potential for the politicization of the judiciary within the United Kingdom, at a time when the UK Prime Minister is seeking to redefine the country’s constitutional rulebook.

Keywords: United Kingdom, Brexit, constitutionalism, law, politics, constitutional reform, separation of powers

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Authors: Carol Howells, Edwin Parks

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This paper explores the existing and evolving constitutional arrangements within the United Kingdom and within the wider international context of the EU. It considers the nature of an ‘English’ constitution and internal colonialism that underpins it. The debates over the UK’s exit from the EU have been many however the constitutional position of the devolved nations (Scotland, Northern Ireland and Wales) is little understood or explored. Their constitutional position has been touched upon in academic debate (but not widely) and is only now beginning to receive attention. The paper considers the constitutional role of the legislatures within the UK; the UK Parliament Bill for exiting the European Union and provides a commentary on the Brexit process in relation to constitutional arrangements within the UK and EU. Questions arise over the constitutional framework and, whether, having delegated competencies, the UK Parliament can now legislate in relation to delegated competencies without the consent. The Scottish Parliament and Welsh Assembly are a permanent and a fixed feature of the UK’s constitution, but their position is set within the traditional concept of the ‘English’ constitution. The current situation is opaque and complex and raises significant constitutional questions. In relation to exit from the EU two of the nations did not vote in favour of Brexit and the third is in receipt of an inequitable funding settlement. Questions arise as to whether the work of modernising the UK’s constitution over the past twenty years in recognising the Nations and governments within those nations is now being unpicked and whether the piecemeal and unequal process of devolution and new constitutional arrangements hold weight. Questions of democratic legitimacy arise throughout. An advisory referendum (where no definition of the EU was provided) in which two of the four nations voted to leave the EU and two voted to remain has led the UK Government negotiating a wholesale exit from the EU based on ‘English’ constitutional law principles. Previous constitutional referendums in relation to devolution within the UK have been treated differently. Within the EU questions are being raised in relation to the focus on member states. The goals of the EU mention member countries and its purpose is seen as being to promote greater social, political and economic harmony among the nations of Europe. The emphasis on member states is proving challenging and has led flawed processes. Scrutiny of legislative proposals, historical developments, and social commentary reveal distinct national identities within the UK. Analysis of the debate, legislation and case law surrounding the exiting process from the EU reveal a muddled picture of a constitution in crisis and significant challenges to principles underpinning the rule of law. Suggestions are made for future reforms and a move towards new constitutional arrangements beyond the current ‘English’ constitution.

Keywords: English, constitution, parliament, devolved

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Authors: Ákos Cserny

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The unequivocal increase of the area of operation of the executive power can happen with the appearance of new areas to be influenced and its integration in the power, or at the expense of the scopes of other organs with public authority. The extension of the executive can only be accepted within the framework of the rule of law if parallel with this process we get constitutional guarantees that the exercise of power is kept within constitutional framework. Failure to do so, however, may result in the lack, deficit of democracy and democratic sense, and may cause an overwhelming dominance of the executive power. Therefore, the aim of this paper is to present executive power and responsibility in the context of different dimensions.

Keywords: confidence, constitution, executive power, liabiliy, parliamentarism

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Authors: Valentina Tereshkova

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The paper shows how the relationship between international law and national sovereignty is viewed through the implementation of European Court of Human Right judgments. Methodology: Сonclusions are based on a survey of representatives of the legislative authorities and judges of the Krasnoyarsk region, the Rostov region, Sverdlovsk region and Tver region. The paper assesses the activities of the Russian Constitutional Court from 1998 to 2015 related to the establishment of the implementation mechanism and the Russian Constitutional Court judgments of 14.07.2015, № 21-P and of 19.04.2016, № 12-P where the Constitutional Court stated the impossibility of executing ECtHR judgments. I. Implementation of ECHR judgments by courts and other authorities. Despite the publication of the report of the RF Ministry of Justice on the implementation, we could not find any formal information on the Russian policy of the ECtHR judgment implementation. Using the results of the survey, the paper shows the effect of ECtHR judgments on law and legal practice in Russia. II. Implementation of ECHR judgments by Russian Constitutional Court. Russian Constitutional Court had implemented the ECtHR judgments. However, the Court determined on July, 14, 2015 its competence to consider the question of implementation of ECHR judgments. Then, it stated that the execution of the judgment [Anchugov and Gladkov case] was impossible because the Russian Constitution has the highest legal force on April, 19, 2016. Recently the CE Committee of Ministers asked Russia to provide ‘without further delay’ a compensation plan for the Yukos case. On November 11, 2016, Constitutional Court accepted a request from the Ministry of Justice to consider the possibility of execution of the ECtHR judgment in the Yukos case. Such a request has been made possible due to a lack of implementation mechanism. Conclusion: ECtHR judgments are as an effective tool to solve the structural problems of a legal system. However, Russian experts consider the ECHR as a tool of protection of individual rights. The paper shows link between the survey results and the absence of the implementation mechanism. New Article 104 par. 2 and Article 106 par. 2 of the Federal Law of the Constitutional Court are in conflict with international obligations of the Convention on the Law on Treaties 1969 and Article 46 ECHR. Nevertheless, a dialogue may be possible between Constitutional Court and the ECtHR. In its judgment [19.04.2016] the Constitutional Court determined that the general measures to ensure fairness, proportionality and differentiation of the restrictions of voting rights were possible in judicial practice. It also stated the federal legislator had the power ‘to optimize the system of Russian criminal penalties’. Despite the fact that the Constitutional Court presented the Görgülü case [Görgülü v Germany] as an example of non-execution of the ECtHR judgment, the paper proposes to draw on the experience of German Constitutional Court, which in the Görgülü case, on the one hand, stressed national sovereignty and, on the other hand, took advantage of this sovereignty, to resolve the issue in accordance with the ECHR.

Keywords: implementation of ECtHR judgments, sovereignty, supranational jurisdictions, principle of subsidiarity

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Authors: Amy Buckley

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The purpose of this article is to assess the problem of constitutional hyper-rigidity to consider how it and the associated tensions with democratic constitutionalism can be diminished by means of using digital democratic technologies. In other words, this article examines how digital technologies can assist us in ensuring fidelity to the will of the constituent power without paying the price of hyper-rigidity. In doing so, it is impossible to ignore that digital strategies can also harm democracy through, for example, manipulation, hacking, ‘fake news,’ and the like. This article considers the tension between constitutional hyper-rigidity and democratic constitutionalism and the relevant strengths and weaknesses of digital democratic strategies before undertaking a case study on Canadian e-consultations and drawing its conclusions. This article observes democratic constitutionalism through the lens of the theory of deliberative democracy to suggest that the application of digital strategies can, notwithstanding their pitfalls, improve a constituency’s amendment culture and, thus, diminish constitutional hyper-rigidity. Constitutional hyper-rigidity is not a new or underexplored concept. At a high level, a constitution can be said to be ‘hyper-rigid’ when its formal amendment procedure is so difficult to enact that it does not take place or is limited in its application. This article claims that hyper-rigidity is one problem with ordinary constitutionalism that fails to satisfy the principled requirements of democratic constitutionalism. Given the rise and development of technology that has taken place since the Digital Revolution, there has been a significant expansion in the possibility for digital democratic strategies to overcome the democratic constitutionalism failures resulting from constitutional hyper-rigidity. Typically, these strategies have included, inter alia, e- consultations, e-voting systems, and online polling forums, all of which significantly improve the ability of politicians and judges to directly obtain the opinion of constituents on any number of matters. This article expands on the application of these strategies through its Canadian e-consultation case study and presents them as a solution to poor amendment culture and, consequently, constitutional hyper-rigidity. Hyper-rigidity is a common descriptor of many written and unwritten constitutions, including the United States, Australian, and Canadian constitutions as just some examples. This article undertakes a case study on Canada, in particular, as it is a jurisdiction less commonly cited in academic literature generally concerned with hyper-rigidity and because Canada has to some extent, championed the use of e-consultations. In Part I of this article, I identify the problem, being that the consequence of constitutional hyper-rigidity is in tension with the principles of democratic constitutionalism. In Part II, I identify and explore a potential solution, the implementation of digital democratic strategies as a means of reducing constitutional hyper-rigidity. In Part III, I explore Canada’s e-consultations as a case study for assessing whether digital democratic strategies do, in fact, improve a constituency’s amendment culture thus reducing constitutional hyper-rigidity and the associated tension that arises with the principles of democratic constitutionalism. The idea is to run a case study and then assess whether I can generalise the conclusions.

Keywords: constitutional hyper-rigidity, digital democracy, deliberative democracy, democratic constitutionalism

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Authors: A. V. Shashkova

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The aim of the present article is to analyze the position of the Constitutional Court of the Russian Federation on the matter of restricting the constitutional rights of citizens to inviolability of professional and banking secrecy in effecting controlling activities. The methodological ground of the present Article represents the dialectic scientific method of the socio-political, legal and organizational processes with the principles of development, integrity, and consistency, etc. The consistency analysis method is used while researching the object of the analysis. Some public-private research methods are also used: the formally-logical method or the comparative legal method, are used to compare the understanding of the ‘secrecy’ concept. The aim of the present article is to find the root of the problem and to give recommendations for the solution of the problem. The result of the present research is the author’s conclusion on the necessity of the political will to improve Russian legislation with the aim of compliance with the provisions of the Constitution. It is also necessary to establish a clear balance between the constitutional rights of the individual and the limit of these rights when carrying out various control activities by public authorities. Attempts by the banks to "overdo" an anti-money laundering law under threat of severe sanctions by the regulators actually led to failures in the execution of normal economic activity. Therefore, individuals face huge problems with payments on the basis of clearing, in addition to problems with cash withdrawals. The Bank of Russia sets requirements for banks to execute Federal Law No. 115-FZ too high. It is high place to attract political will here. As well, recent changes in Russian legislation, e.g. allowing banks to refuse opening of accounts unilaterally, simplified banking activities in the country. The article focuses on different theoretical approaches towards the concept of “secrecy”. The author gives an overview of the practices of Spain, Switzerland and the United States of America on the matter of restricting the constitutional rights of citizens to inviolability of professional and banking secrecy in effecting controlling activities. The Constitutional Court of the Russian Federation basing on the Constitution of the Russian Federation has its special understanding of the issue, which should be supported by further legislative development in the Russian Federation.

Keywords: constitutional court, restriction of constitutional rights, bank secrecy, control measures, money laundering, financial control, banking information

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Authors: Yen-An Tsai, Ching-Ling Lin, Jia-Woei Hou, Mei-Lien Chen

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Endocrine-disrupting chemicals (EDCs) adversely affect the endocrine system. Phthalates, also called phthalic acid esters (PAEs), are manmade chemicals that are used as stabilizing agents in personal care products such as perfumes, lotions, and cosmetics. The aim was to explore whether PAEs exposure was associated with central precocious puberty (CPP) or constitutional delays in growth (CDGP). This case-control study included 48 female with CPP, 37 male with constitutional delays in growth, and 127 normal children and was conducted from December 2011 to August 2014. All participants completed a structured questionnaire regarding socio-demographic characteristics, lifestyle, and secondary sexual characteristics. The analytical method was based on ultra performance liquid chromatography-tandem mass spectrometry (UPLC-MS/MS) with isotope dilution for the quantitative detection of several phthalate metabolites in human urine. The risk of CPP with mep, mnbp, LMW >50th percentile were higher than those with 50th percentile were higher than those with <50 percentile in model 2. In model 1, we only found higher CDGP risk in mep, mnbp, and ΣPAEs. It shows that high phthalate exposure may associate with CDGP. In this case-control study, we found PAEs exposure was associated with central precocious puberty (CPP) or constitutional delays in growth.

Keywords: phthalates, puberty, delays, growth

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Authors: Shaho Ghafur Ahmed

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The right to self-determination of peoples is a fundamental human right recognized by the principles of international law. It could be embodied in the internal level in the form of federalism. Most federal constitutions prevented the secession of constituent entities, while some remained silent, as the case of Iraq, and rare instances of them recognize it. But, after the failure of federalism, these entities seek to separate whenever the opportunity arises. In several cases, they have resort to peaceful methods in some others they resort to force. The constitutional Supreme Court, which guaranty the unity and integrity of the State, often prevent these attempts. After not a commitment of federalism in Iraq, which has been founded since 2004, the Kurdistan region, as the only federated entity, has conducted a unilateral referendum on 25 September 2017 for its independence. The Iraqi government refused it. The Iraqi Federal Supreme Court, through interpreting the constitutional provisions, decided that this referendum and it’s purposes, which was the independence of the region, was unconstitutional. Subsequently, the Iraqi government used forces and blockaded the region so as to force it to turn off this process. So, in this paper, the right to self-determination of the peoples in federated entities and its obstacles will be discussed through the comparative legal basis and analyzing the decisions of the Federal Constitutional Courts. We will compare the role that the Supreme Court of Canada played regarding the referendum that operated in Quebec in 1995, in which it refused only the unilaterally attempts for the independence of this province. While, in the case of the Kurdistan region, the Iraqi Federal Supreme Court has definitively refused this right. No measures were taken by this Court to protect the region from the Iraqi government reactions. This decision led to the questioning of the neutrality of this Court. So, from the point of view of the Kurdistan region, this Court became a political instrument to prevent it to be independent in the international community, in the absence of a clear constitutional provision, through an abstract and an incomplete interpretation of federal constitutional provisions.

Keywords: right of self-determination, federal supreme court, supremacy of federal constitution

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Authors: Tom Hickey

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It is difficult to conceive of a case that might more starkly bring the arguments concerning judicial review to the fore than State (Ryan) v Lennon. Small wonder that it has attracted so much scholarly attention, although the fact that almost all of it has been in an Irish setting is perhaps surprising, given the illustrative value of the case in respect of a philosophical quandary that continues to command attention in all developed constitutional democracies. Should judges have power to invalidate legislation? This article revisits Ryan v Lennon with an eye on the importance of the idea of “democracy” in the case. It assesses the meaning of democracy: what its purpose might be and what practical implications might follow, specifically in respect of judicial review. Based on this assessment, it argues for a particular institutional model for the vindication of constitutional rights. In the context of calls for the drafting of a new constitution for Ireland, however forlorn these calls might be for the moment, it makes a broad and general case for the abandonment of judicial supremacy and for the taking up of a model in which judges have a constrained rights reviewing role that informs a more robust role that legislators would play, thereby enhancing the quality of the control that citizens have over their own laws. The article is in three parts. Part I assesses the exercise of judicial power over legislation in Ireland, with the primary emphasis on Ryan v Lennon. It considers the role played by the idea of democracy in that case and relates it to certain apparently intractable dilemmas that emerged in later Irish constitutional jurisprudence. Part II considers the concept of democracy more generally, with an eye on overall implications for judicial power. It argues for an account of democracy based on the idea of equally shared popular control over government. Part III assesses how this understanding might inform a new constitutional arrangement in the Irish setting for the vindication of fundamental rights.

Keywords: constitutional rights, democracy as popular control, Ireland, judicial power, republican theory, Ryan v Lennon

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Authors: Yrfet Shkreli

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To determine the content of human rights norms in national constitutions, international law - in the form of treaties, declarations and case law from international monitoring bodies, and comparative case law from other countries - is often discussed in the judgments of domestic courts. This paper explores the extent to which international law has influenced domestic human rights case law in Africa. The paper first explores how the human rights provisions of African constitutions came into being before turning to the role played by international law in the constitutional order of various African states and how treaties, declarations and findings of international monitoring bodies have been used in African countries to interpret and expand on constitutional human rights provisions.

Keywords: European Union, global governance, globalization, normative power

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Authors: Chloe Fauchon

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In Europe, the right to a fair trial is enshrined in the European Convention on Human Rights, signed in 1950, in its famous Article 6, and, in the field of the European Union, in Article 47 of the Charter of Fundamental Rights, binding since 2009. The right to a fair trial is, therefore, a fundamental right protected by all the relevant treaties. The right to a fair trial is an "umbrella right" which encompasses various sub-rights and principles. Although this right applies in all the proceedings, it gets a special relevance in criminal matters and, particularly, regarding the defendant. In criminal proceedings, the parties are not equal: the accusation is represented by a State-organ, with specific prerogatives, and the defense does not benefit from these specific powers and is often inexperienced in criminal law. Equality of arms, and consequently the right to a fair trial, needs some specific mechanisms to be effective in criminal proceedings. For instance, the defendant benefits from some procedural rights, such as the right to a lawyer, the right to be informed of the charges against them, the right to confront witnesses, and so on. These rights aim to give the defendant the tools to dispute the accusation. The role of the defense is, therefore, very important in criminal matters to avoid unjustified convictions. This specificity of criminal matters justifies that the focus will be put on them during this study. Then this paper will also focus on French and Spanish legal orders. Indeed, if the European Court and Convention on Human Rights are the most famous instruments to protect the right to a fair trial, this right is also guaranteed at a constitutional level in European national legal orders in Europe. However, this enshrinement differs from one country to the other: for instance, in Spain, the right to a fair trial is protected explicitly by the 1978 constitutional text, whereas, in France, it is more of a case-law construction. Nevertheless, this difference between both legal orders does not imply huge variations in the substantive aspect of the right to a fair trial. This can be specifically explained by the submission of both States to the European Convention on Human Rights. This work aims to show that, although the French and Spanish legal orders differ in the way they protect the right to a fair trial, this right eventually has the same substantive meaning in both legal orders.

Keywords: right to a fair trial, constitutional law, French law, Spanish law, European Court of Human Rights

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Authors: Laura Çami (Vorpsi), Xhon Skënderi

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In today's rapidly evolving technological landscape, the traditional principles of contract law are facing significant challenges. The emergence of new technologies, such as electronic signatures, smart contracts, and online dispute resolution mechanisms, is transforming the way contracts are formed, interpreted, and enforced. This paper examines the implications of these technological advancements on the constitutional principles of contract law. One of the fundamental principles of contract law is freedom of contract, which ensures that parties have the autonomy to negotiate and enter into contracts as they see fit. However, the use of technology in the contracting process has the potential to disrupt this principle. For example, online platforms and marketplaces often offer standard-form contracts, which may not reflect the specific needs or interests of individual parties. This raises questions about the equality of bargaining power between parties and the extent to which parties are truly free to negotiate the terms of their contracts. Another important principle of contract law is the requirement of consideration, which requires that each party receives something of value in exchange for their promise. The use of digital assets, such as cryptocurrencies, has created new challenges in determining what constitutes valuable consideration in a contract. Due to the ambiguity in this area, disagreements about the legality and enforceability of such contracts may arise. Furthermore, the use of technology in dispute resolution mechanisms, such as online arbitration and mediation, may raise concerns about due process and access to justice. The use of algorithms and artificial intelligence to determine the outcome of disputes may also raise questions about the impartiality and fairness of the process. Finally, it should be noted that there are many different and complex effects of technical improvements on the fundamental constitutional foundations of contract law. As technology continues to evolve, it will be important for policymakers and legal practitioners to consider the potential impacts on contract law and to ensure that the principles of fairness, equality, and access to justice are preserved in the contracting process.

Keywords: technological advancements, constitutional principles, contract law, smart contracts, online dispute resolution, freedom of contract

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Authors: Ebrahim Rahmani, Siyamak Moazeni

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According to the Iraq's first constitutional law (approved 2005), Iraq is an independent with sovereignty and its governmental structure is parliamentary democratic republic and federal. Even in reforms in 2009, this article of law did not changed at all. But considering the existence of this emphasis and clarity which is mentioned in the law, different and sometimes contradictory interpretations and positions are expressed about federalism in the way that we can say, considering the importance of the matter, federalism is a focus point to create and expansion of the cold war among leaders of different groups of the country. Iraq's today political and security position has granted the suitable opportunity to Iraq's Kurdistan in appearing of the recent security crisis to increase its share from the central political power or to achieve to its independent dream. The federalism the weakest point of Iraq's territorial integrity in a way that if different groups do not come to a consensus about it and do not think about a mechanism which is accepted by all of them, this can effect on and Iraq's political stability and security. Iraq's Kurdistan follows the option of disintegration and separation under the shadow of political and security changes, even with existence of some Iraqi groups' hopes regarding the improvement of situation after parliament election and also considering Masoud Barezani's power will for separation from Iraq as well as regarding special international changes and disintegration of Karime from Ukraine and ISIS crises; concerns have been created among regional and international powers and interior players. In this article, a paradox due constitutional law about federalism, Iraq's central government view and its politicians to the matter and the regional effect of this action on region's geopolitics are reviewed as well.

Keywords: constitutional law, federalism, decomposition, Iraq's Kurdistan

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Authors: Eman Muhammad Rashwan

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The identity of the state in many Middle East countries today, between secularity and religiousness, is an important and controversial question. Specially after the sweeping repels in number of countries that put Islamic parties in power. In this paper two role model states in this respect, are under examination to answer the question of how their identity that was expressed in their constitutions influenced the allocation of power between different state authorities. In the beginning both the criteria used to define the two concepts of secularity and religiousness, and the reason why these two states are particularly chosen for comparison, are explained. The situation in Turkey is firstly indicated. The constitutional system shows that power is divided between parliament, cabinet and the president. The first two authorities have the most significant powers, and generally, the system in Turkey is similar to many other secular states in the world. But when the research moves to the system in Iran, the importance of comparison starts to appear. In this section, the nature of Islamic Shi’a of Iran Republic is discussed, and also its influence on the main and unique authorities of this religious state, which don`t only include the president and council of ministers, but also The Supreme Leader and The Council of Guardians. This paper doesn`t aim to favor a one system over another, and doesn`t discuss the influences of the two systems on the social or economic situation in the two model states. The aim of this paper is to study the influence of excluding, and applying religion in respect to allocation of power in constitutions.

Keywords: comparative law, constitutional systems, secular states, religious states

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Authors: Valbona Metaj

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The relationship between the state and the religion is different based on the fact that how powerful is the religion faith in a state and of the influences that affected the views of the constitution drafters according to the constitutional system they were based to draft their constitution. This paper aims at providing, through a comparative methodology, how it is regulated by the constitution the relationship between the state and the religion. The object of this study are the constitutions of Italy as a nation with catholic religious tradition, Greece as a nation with orthodox religion tradition, and Turkey as a nation which represents Muslim religion, while Albania as a nation known for its religious plurality. In particular, the analysis will be focused on the secular or religious principle provided in the constitution of each respective state. This comparative overview intends to discern which of the states analyzed is more tolerant and fully respects the freedom of religion. It results that most of the states subject of this study, despite their religious tradition have chosen the secular principle in their constitutions, but the religious freedom is differently guaranteed.

Keywords: constitution, religion, religious freedom, secular

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Authors: Christiena Van Der Bank, Marjone Van Der Bank, Ronelle Prinsloo

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The constitutional right to a healthy environment and the constitutional duty imposed on the state actively to protect the environment fulfill the specific duties to prevent pollution and ecological degradation and to promote conservation. The aim of this paper is to draw attention to the relationship between child rights and the environment. The focus is to analyse government’s responses as mandated with section 24 of the Bill of Rights for ensuring the right to a clean and healthy environment. The principle of sustainability of the environment encompasses the notion of equity and the harm to the environment affects the present as well as future generations. Section 24 obliges the state to ensure that the legacy of future generations is protected, an obligation that has been said to be part of the common law. The environment is an elusive and wide concept that can mean different things to different people depending on the context in which it is used for example clean drinking water or safe food. An extensive interpretation of the term environment would include almost everything that may positively or negatively influence the quality of human life. The analysis will include assessing policy measures, legislation, budgetary measures and other measures taken by the government in order to progressively meet its constitutional obligation. The opportunity of the child to grow up in a healthy and safe environment is extremely unjustly distributed. Without a realignment of political, legal and economic conditions this situation will not fundamentally change. South Africa as a developing country that needs to meet the demand of social transformation and economic growth whilst at the same time expediting its ability to compete in global markets, the country will inevitably embark on developmental programmes as a measure for sustainable development. The courts would have to inquire into the reasonableness of those measures. Environmental threats to children’s rights must be identified, taking into account children’s specific needs and vulnerabilities, their dependence and marginalisation. Obligations of states and violations of rights must be made more visible to the general public.

Keywords: environment, children rights, pollution, healthy, violation

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Authors: AbdulHameed Badmas Yusuf

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Islamophobia is unfounded fear of Islam and, more accurately, of his adherents. This phenomenon has found a fertile terrain in Nigeria given her status as a multireligious society where Muslims and Christians co-exist. Over the years, Islamophobia has taken constitutional, diplomatic, educational, financial, and political dimensions in the country. Any move by Muslims to adhere to their religious dictates, within the constitutional framework, is misconstrued by Christians - their religious counterparts- as a systematic way of Islamizing the country. Against this backdrop, this paper casts a look at Islamophobia from the five dimensions mentioned above. It shall identify possible causes of Islamophobia and proffer solutions accordingly. Available resources as well as events in the recent past reveal that Islamophobia is not unconnected with orientalism and terrorism, which are informed by prejudice and ignorance respectively. As such, the paper suggests adequate knowledge and tolerance as inevitable tools to curtail the menace of Islamophobia. This will go a long way in enhancing mutual tolerance and peaceful co-existence among the adherents of Christianity, Islam, and other religions in Nigeria. Both historical and analytical methods are used in this paper.

Keywords: islamophobia, islam, Nigeria, orientalism, terrorism

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Authors: Aysha Alshehri

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This paper provides a literature review of the sources of women’s rights under the Saudi legal framework, taking account of the constitutional primacy of Sharia under the Saudi legal system as well as the state’s obligations under international law. Building on one of the central aims of the paper, it conducts an exploration of how Saudi Arabia already has or might be further able to more clearly delineate its position and reservations in the adoptions of international human rights agreements while preserving its core religious beliefs and societal practices in regard to women’s rights at the domestic level. In this regard, the paper will consider the apparent tension between certain jurisprudential and customary aspects on gender equality and contemporary discourses of women’s rights from within and outside the Muslim world. Particular attention will be devoted to the question of the causes behind the lack of direct application of women’s rights mentioned by international reports and any challenges this may bring in the contexts of Saudi Arabia’s evolving gender equality policies.

Keywords: Islamic Constitution, executive actions, gender equality, judicial review

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