Search results for: constitutions

Authors: Mehmet Durnali

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The main purpose of this study is to find out, analyze and discuss basic principles of education and training in the constitutions, including the latest amendment, of France, Indonesia, Japan, South Africa, the United States of America, and Turkey. This research specifically aims at establishing a framework in order to compare educational values such as right of education, responsibilities of states and those of people, and other issues pertaining to education in the Constitution of Turkey to others. Additionally, it emphasizes the meaning of education in constitution, the reasons for references to education in constitutions and why it is important for people, states or nations and state organs. Qualitative analysis technique is performed to accomplish the aim of this study. Maximum variation sampling is used. The main data source of the analysis is official organic laws of those countries. The data is examined by using descriptive and content analysis method.

Keywords: education in the constitution, education law, legal principles of education, right to education

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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: Marc Arthur Bien Aimé, Julio da Silveira Moreira

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This study examines the political speech in Haiti over the course of the decade 2011-2021, focusing on the speeches of the presidents Michel J. Martelly and Jovenel Moïse and their impacts on their awareness collective. In using a qualitative approach, we have analyzed the speech of the president pronounced in response to the political instability of countries, as well as interviews with a group of 20 Haitians living in Port- Au-Prince. Our results put in evidence their complex relationship between politics, awareness collective, and the influence of the powers imperialists. We show that the situation in Haiti's disastrous social and political situation is driven by personal political interests and the absence of a state political project. Moreover, the speeches of the president’s analysis are meaningless, transforming concepts such as social progress and justice in simple words. This political rhetoric contributes to the domination symbolic of the population of Haitian. This study is also linked to the theme “Constitutions, processes democratic and critical of the state in Latin America,” emphasizing the importance of analysis of political speech to understand the complexities of the democratic process and criticism of the State in their Latin American region. We suggest future research to deepen our understanding of these political dynamics and their impact on public policies and developments of the constitutions throughout Latin America.

Keywords: political discourse, conscience collective, inequality social, democratic processes, constitutions, Haiti

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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: 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: 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: Mbuzeni Mathenjwa

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Upon their independence, most African countries adopted constitutions that proclaim respect for the rule of law. The decision to constitutionalise the rule of law is basically informed by the countries’ experience during the colonial era which was characterised by discrimination on various grounds including race, gender and religion. Despite the promise to be bound by and adhere to the rule of law, disrespect for the rule of law has become a norm in the African continent. This is evident from the reported incidence of abuse of power, failure to perform obligations imposed by law and flagrant disregard of the law by the Executive including the heads of states in the continent. In some African countries including South Africa, the courts of law have been approached to rule on the legality of the decisions of the executives, taken contrary to the prescripts of the law. South African Courts have laid down a number of decisions wherein they found that the conduct of the executive contravenes the rule of law. Consequently decisions of the executive have been declared invalid by courts. In this regard courts have become a safety net in preserving the rule of law in. Accordingly, this paper discusses the role of the courts in preserving the rule of law in Africa. This it does by explaining the notion of judicial independence and the doctrine of the rule of law. The explanation on the notion of judicial independence is relevant because only an independent judiciary can effectively review and set aside the decision of the executive including the president of a country. Furthermore, a comparative overview of the enforcement of the rule of law in African countries is done. The methods used for this research is literature review, and study of legislation and case law in selected African countries relating to the independence of the judiciary and the rule of law. Finally, a conclusion is drawn on the role of the independent judiciary to preserve the rule of law in Africa.

Keywords: Africa, constitutions, independence, judiciary

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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: Girma Y. Iyassu Menelik

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“The world is now like a global village!” so goes the saying that shows that due to development and technology the countries of the world are now closely linked. In the field of Human rights there is a close relationship in the way that rights are recognised and enforced. This paper will show that human rights have evolved from ancient times through important landmarks such as the Magna Carta, the French Declaration of Rights of Man and of the Citizen and the American Bill of Rights. The formation of the United Nations after the Second World War resulted in the need to codify and protect human rights. There are some rights which are so fundamental that they are found in international and continental instruments, national constitutions and domestic legislation. In the civil and political sphere they include the right to vote, to freedom of association, speech and assembly, right to life, privacy and fair trial. In the economic and social sphere you have the right to work, protection of the family, social security and rights to education, health and shelter. In some instance some rights can be suspended in times of public emergency but such derogations shall be circumscribed by the law and in most constitutions such limitations are subject to judicial review. However, some rights are so crucial that they cannot be derogated from under any circumstances and these include the right to life, recognition before the law, freedom from torture and slavery and of thought, conscience and religion. International jurisprudence has been developed to protect fundamental rights and avoid discrimination on the grounds of race, colour, sex, language or social origin. The elaborate protection system go to show that these rights have become part of the international order and they have universal application. We have now got to a stage where UDHR, ICCPR and ICESCR and have come to be regarded as part of an international bill of rights with horizontal and vertical enforcement mechanisms involving state parties, NGO’s , international bodies and other organs.

Keywords: rights, international, constitutional, state, judiciary

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Authors: Abderrahim El Maslouhi

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The paper aims to analyze an often-overlooked dimension of global constitutionalism, which is the rise of the regulatory state and its impact on parliamentary dynamics in transition regimes. In contrast to Majone’s technocratic vision of convergence towards a single regulatory system based on competence and efficiency, national transpositions of regulatory governance and, in general, the relationship to global standards primarily depend upon a number of distinctive parameters. These include policy formation process, speed of change, depth of parliamentary tradition and greater or lesser vulnerability to the normative conditionality of donors, interstate groupings and transnational regulatory bodies. Based on a comparison between three post-Arab Spring countries -Morocco, Tunisia, and Egypt, whose constitutions have undergone substantive review in the period 2011-2014- and some European Union state members, the paper intends, first, to assess the degree of permeability to global constitutionalism in different contexts. A noteworthy divide emerges from this comparison. Whereas European constitutions still seem impervious to the lexicon of global constitutionalism, the influence of the latter is obvious in the recently drafted constitutions in Morocco, Tunisia, and Egypt. This is evidenced by their reference to notions such as ‘governance’, ‘regulators’, ‘accountability’, ‘transparency’, ‘civil society’, and ‘participatory democracy’. Second, the study will provide a contextual account of internal and external rationales underlying the constitutionalization of regulatory governance in the cases examined. Unlike European constitutionalism, where parliamentarism and the tradition of representative government function as a structural mechanism that moderates the de-parliamentarization effect induced by global constitutionalism, Arab constitutional transitions have led to a paradoxical situation; contrary to the public demands for further parliamentarization, the 2011 constitution-makers have opted for a de-parliamentarization pattern. This is particularly reflected in the procedures established by constitutions and regular legislation, to handle the interaction between lawmakers and regulatory bodies. Once the ‘constitutional’ and ‘independent’ nature of these agencies is formally endorsed, the birth of these ‘fourth power’ entities, which are neither elected nor directly responsible to elected officials, will raise the question of their accountability. Third, the paper shows that, even in the three selected countries, the de-parliamentarization intensity is significantly variable. By contrast to the radical stance of the Moroccan and Egyptian constituents who have shown greater concern to shield regulatory bodies from legislatures’ scrutiny, the Tunisian case indicates a certain tendency to provide lawmakers with some essential control instruments (e. g. exclusive appointment power, adversarial discussion of regulators’ annual reports, dismissal power, later held unconstitutional). In sum, the comparison reveals that the transposition of the regulatory state model and, more generally, sensitivity to the legal implications of global conditionality essentially relies on the evolution of real-world power relations at both national and international levels.

Keywords: Arab legislatures, de-parliamentarization, global constitutionalism, normative conditionality, regulatory state

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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: Dahiru Jafaru Usman

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Nigerian courts have been sanctioned by a plethora of authorities to always employ the literal rule in interpreting statutes where the language of the statute is clear and unambiguous. This cardinal rule of interpretation appears not to be employed on Shari'ah issues in Nigeria. This is more pronounced in the interpretation of the jurisdiction of the Shari'ah Court of Appeal (hereinafter the court). The paper doctrinally assesses the judicial attitude of Nigerian appellate courts towards the construction of Section 277 of the 1999 Constitution as amended and other relevant statutory enactments by the State Houses of Assembly. The paper argues that a careful examination of the wordings of the constitution on the jurisdiction of the court literally reveals the intention of the constitutional drafters empowering the National Assembly and States' House of Assemblies to add to the itemised jurisdictional areas of the court other matters not mentioned. The paper found that the appellate courts failed in their construction of the constitutional provisions to accord the words and phrases used in the establishment, jurisdiction, and quorum sections of the court their ordinary and grammatical meaning. This results in consistent limitation of the jurisdiction of the court to matters of Islamic personal law. This remains so even when Decree No. 26 of 1986 was in force suspending and amending the provisions of the 1979 Constitution deleting the word 'personal' in the suspended Nigerian Constitutions. In order not to render section 277 futile, the paper recommends that appellate courts in Nigeria should as required by rules of statutory interpretation adopt literal and ordinary grammatical meaning in interpreting constitutional provisions on the jurisdiction of the court. It is further recommended that appellate courts must interpret the provisions of the 1999 constitution in a manner not to frustrate the several decades' yearnings of the Muslims for a court that would hear all their appellate criminal and civil matters on the path of Shari'ah from the lowest court to the highest. This is a duty the Nigerian Supreme Court placed on their shoulders.

Keywords: interpretation of statutes, jurisdiction, literal rule, Nigeria, Shari'ah Court of Appeal, 1999 Constitution

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Authors: CM van der Bank, Marjoné van der Bank

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International and domestic environmental law has evolved quite rapidly in the last few decades. At the international level the Stockholm and Rio Declarations paved the way for a broad based consensus of the international community on environmental issues and principles. At the Domestic level also many states have incorporated environmental protection in their constitutions and even more states are doing the same at least in their domestic legislations. In this process of evolution environmental law has unleashed a number of novel principles such as; the participatory principle, the polluter pays principle, the precautionary principle, the inter-generational and intra-generational principles, the prevention principle, the sustainable development principle and so on.

Keywords: environment, human rights, international law, protection

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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: 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: Jan Podkowik

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The article discusses issues of mutual relationships of human dignity and personal autonomy. According to constitutions of many countries and international human rights law, human dignity is a fundamental and inviolable value. It is the source of all freedoms and rights, including personal autonomy. Human dignity, as an inherent, inalienable and non-gradable value comprising an attribute of all people, justifies freedom of action according to one's will and following one's vision of good life. On the other hand, human dignity imposes immanent restrictions to personal autonomy regarding decisions on commercialization of the one’s body, etc. It points to the paradox of dignity – the source of freedom and conditions (basic) of its limitations. The paper shows the theoretical concept of human dignity as an objective value among legal systems, determining the boundaries of legal protection of personal autonomy. It is not, therefore, the relevant perception of human dignity and freedom as opposite values. Reference point has been made the normative provisions of the Polish Constitution and the European Convention on Human Rights and Fundamental Freedoms as well as judgments of constitutional courts.

Keywords: autonomy, constitution, human dignity, human rights

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Authors: Anna-Lisa Osvalder, Jonas Borell

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There are several reasons behind the use, non-use, or inadequate use of personal protective equipment (PPE) in the construction industry. Comfort and accurate size support proper use, while discomfort, misfit, and difficulties to understand how the PPEs should be handled inhibit correct usage. The need for several protective equipments simultaneously might also create problems. The purpose of this study was to analyse the correct usage, comfort, and fit of different types of PPEs used for construction work. Correct usage was analysed as guessability, i.e., human perceptions of how to don, adjust, use, and doff the equipment, and if used as intended. The PPEs tested individually or in combinations were a helmet, ear protectors, goggles, respiratory masks, gloves, protective cloths, and safety harnesses. First, an analytical evaluation was performed with ECW (enhanced cognitive walkthrough) and PUEA (predictive use error analysis) to search for usability problems and use errors during handling and use. Then usability tests were conducted to evaluate guessability, comfort, and fit with 10 test subjects of different heights and body constitutions. The tests included observations during donning, five different outdoor work tasks, and doffing. The think-aloud method, short interviews, and subjective estimations were performed. The analytical evaluation showed that some usability problems and use errors arise during donning and doffing, but with minor severity, mostly causing discomfort. A few use errors and usability problems arose for the safety harness, especially for novices, where some could lead to a high risk of severe incidents. The usability tests showed that discomfort arose for all test subjects when using a combination of PPEs, increasing over time. For instance, goggles, together with the face mask, caused pressure, chafing at the nose, and heat rash on the face. This combination also limited sight of vision. The helmet, in combination with the goggles and ear protectors, did not fit well and caused uncomfortable pressure at the temples. No major problems were found with the individual fit of the PPEs. The ear protectors, goggles, and face masks could be adjusted for different head sizes. The guessability for how to don and wear the combination of PPE was moderate, but it took some time to adjust them for a good fit. The guessability was poor for the safety harness; few clues in the design showed how it should be donned, adjusted, or worn on the skeletal bones. Discomfort occurred when the straps were tightened too much. All straps could not be adjusted for somebody's constitutions leading to non-optimal safety. To conclude, if several types of PPEs are used together, discomfort leading to pain is likely to occur over time, which can lead to misuse, non-use, or reduced performance. If people who are not regular users should wear a safety harness correctly, the design needs to be improved for easier interpretation, correct position of the straps, and increased possibilities for individual adjustments. The results from this study can be a base for re-design ideas for PPE, especially when they should be used in combinations.

Keywords: construction work, PPE, personal protective equipment, misuse, guessability, usability

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Authors: Masoud Raei, Mohammadmahdi Sadeghi

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The right to life as the most essential right in human rights issues and in the first group has devoted a special place to itself. Attention to this right and its domain and its reflection in civil rights is one of the most important axis of the rights to life issues. Issues discussed concerning this matter in public law with regard to its status in human rights are the determination of government’s duty toward identification; application and guarantee of this right. The constitutions of countries have chosen different approaches towards the identification of this right and also its limits and boundaries, determining the territory of governments for citizens. The reason for such a difference is the question arising in this regard. It is claimed that without the determination of meaningfulness of the right to life, it is not possible to provide a clear response to this question. The goal of this paper is to justify its theoretical framework from the view of meaningfulness of right to life relying on Quranic verses with a conceptual approach towards the right to life so that the relationship between government and citizens with regard to right to life is determined. Through a comparative study, it is possible to attain significant differences between the teachings of the Holy Quran and human rights documents. The method of this paper is a descriptive-analytic approach relying on interpretation books on Holy Quran.

Keywords: meaningfulness, objectivism, separatism, right to life

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Authors: Yasemin Gülşen Yılmaz, Süleyman Hakan Yılmaz, Muhammet Erbay

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Social media is among the most important means of communication. Social media offers individuals and groups with an opportunity for participatory socialization over the internet, which is free of any time and place restrictions. Social media is a kind of interactive communication and bilateral social network. Various communication contents can be shared and put into mass circulation easily and quickly through social media. These sharings are not only limited to individuals but also happen to groups, institutions, and different constitutions. Their contents consist of any type of written message, audio and video files. We are living in the social media era now. It is not surprising that social media which has extensive communication facilities and massive prevalence is used in politics. Therefore, the use of social media (Facebook) by political parties during the Turkish general elections held on June 7, 2015, has been chosen as our research subject. Four parties namely, AKP, CHP, MHP and HDP who have the majority of votes in Turkey and participate in elections in Konya have been selected for our study. Their provincial centers’ and parliamentary candidates` use of social media (Facebook) on the last three days prior to the election have been examined and subjected to a qualitative analysis by means of content analysis.

Keywords: social media, June 7 general elections, politics, Facebook

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Authors: Thato Masiangoako

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While being home to one of the greatest constitutions in the world, South Africa is also notorious for brutal policing practices, endemic corruption, and an overstrained criminal justice system. This apparent gap between the normative conceptions of the law and the actual experiences of being subjected to the criminal justice system forms the crux of this study. This study explores how community activists, student activists, and migrants in Johannesburg, who rely on the law for protection and effective political expression and participation and understand the law through their experiences of arrest and short-term incarceration. This work introduces the concept of legal consciousness to the South African context, whilst also drawing very heavily from South African literature of the law and criminal justice system. This research is grounded in the experiences of arrest and pre-trial and immigration detention shared by these individuals, which are used to develop a rich account of legal consciousness in South Africa. It also sheds light on some of the ways in which the criminal justice system sustains its legitimacy within a post-apartheid framework despite the gaps between what the law ought to be and it actually is. The study argues that the ways in which these groups make sense of their experiences of the criminal justice system and the law, more broadly, are closely bound to their socio-political identities. This calls the core values of equality and dignity that undergird South Africa’s Constitution into question.

Keywords: criminal justice, immigrant detention, legal consciousness, remand detention

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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: Vera Lúcia Raposo

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The right to health care – usually known as the right to health – is recognized in many national laws and Constitutions, as well as in international human rights documents. The kind of health care that citizens are entitled to receive, especially in the framework of the National Health Service, is usually identified with conventional medicine. However, since ancient times that a different form of medicine – alternative, traditional or nonconventional medicine – exists. In recent times it is attracting increasing interest, as it is demonstrated by the use of its specific knowledge either by pharmaceutical companies either by modern health technologies. Alternative medicine refers to a holistic approach to body and mind using herbal products, animal parts and minerals instead of technology and pharmaceutical drugs. These notes contributed to a sense of distrust towards it, accusing alternative medicine of being based on superstition and ignorance. However, and without denying that some particular practices lack indeed any kind of evidence or scientific grounds, the fact is that a substantial part of alternative medicine can actually produce satisfactory results. The paper will not advocate the substitution of conventional medicine by alternative medicine, but the complementation between the two and their specific knowledge. In terms of the right to health, as a fundamental right and a human right, this thesis leads to the implementation of a wider range of therapeutic choices for patients, who should be entitled to receive different forms of health care that complement one another, both in public and private health facilities. This scenario would demand a proper regulation for alternative medicine, which nowadays does not exist in most countries, but it is essential to protect patients and public health in general and to reinforce confidence in alternative medicine.

Keywords: alternative medicine, conventional medicine, patient’s rights, right to health

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Authors: Ugwu Chukwuka E.

Abstract:

The African context of human right instruments as recognized today can be traced to Africa’s relationship with the Western World. A significant preponderance of these instruments are found in both colonial and post colonial statutes as the colonial laws, the post colonial legal documents as constitutions or Africa’s adherence to relevant international instruments on human rights as the Universal Declaration of Human Rights (1948) and the African Charter on Human and Peoples’ Rights (1981). In spite of all these human rights instruments inherent in the African continent, it is contended in this paper that, these Western-oriented notion of human rights, emphasizes rights that hardly meets the current needs of contemporary African citizens. Adopting a historical research methodology, this study interrogates the dynamics of the African poverty context in relation to the implementation of human rights instruments in the continent. In this vein, using human rights and poverty scenarios from one Anglophone (Uganda) and one Francophone (Senegal) countries in Africa, the study hypothesized that, majority of Africans are not in a historical condition for the realization of these rights. The raison d’etre for this claim emerges from the fact that, the present generations of African hoi polloi are inundated with extensive powerlessness, ignorance, diseases, hunger and overall poverty that emasculates their interest in these rights instruments. In contrast, the few Africans who have access to the enjoyment of these rights in the continent hardly needs these instruments, as their power and resources base secures them that. The paper concludes that the stress of African states and stakeholders on African affairs should concentrated significantly, on the alleviation of the present historical poverty squalor of Africans, which when attended to, enhances the realization of human right situations in the continent.

Keywords: Africa, human rights, poverty, western world

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Authors: Neslihan Cetin

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In this study, we will aim to analyze how the period of the state of emergency in Turkey lead to gaps in law and the formation of areas in which there was a complete lack of supervision. The state of emergency that was proclaimed following the coup attempt of July 15, 2016, continued until July 18, 2018, that is to say, 2 years, without taking into account whether the initial circumstances persisted. As part of this work, we claim that the state of emergency provided the executive power with important tools for governing, which it took constant use. We can highlight how the concern for security at the center of the basic considerations of the people in a city was exploited as a foundation by the military power in Turkey to interfere in the political, legal, and social spheres. The constitutions of 1924, 1961, and 1982 entrusted the army with the role of protector of the integrity of the state. This became an instrument at the hands of the military to legitimize their interventions in the name of public security. Its interventions in the political field are indeed politically motivated. The constitution, the legislative, and regulatory systems are modified and monopolized by the military power that dominates the legislative, regulatory, and judicial power, leading to a state of exception. With the political convulsions over a decade, the government was able to usurp the instrument called the state of exception. In particular, the decree-laws of the state of emergency, which the executive makes frequent and generally abusive use, became instruments in the hands of the government to take measures that it wishes to escape from the rules and the pre-established control mechanisms. Thus the struggle against the political opposition becomes more unbalanced and destructive. To this must also be added the ineffectiveness of ex-post controls and domestic remedies. This research allows us to stress how a legal concept, such as ‘the state of emergency’ can be politically exploited to make it a legal weapon that continues to produce victims.

Keywords: constitutional law, state of emergency, rule of law, instrumentalization of law

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Authors: Zoaib Mirza

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Half of the Muslim countries in the world have declared Islam the state religion in their constitutions. Yet, none of these countries have implemented authentic Islamic laws in line with the Quran (Holy Book), practices of Prophet Mohammad (P.B.U.H) called the Sunnah, and his four successors known as the Rightly Guided - Khalifa. Since their independence, these countries have adopted different government systems like Democracy, Dictatorship, Republic, Communism, and Monarchy. Instead of benefiting the people, these government systems have put these countries into political, social, and economic crises. These Islamic countries do not have equal representation and membership in worldwide political forums. Western countries lead these forums. Therefore, it is now imperative for the Muslim leaders of all these countries to collaborate, reset, and implement the original Islamic form of government, which led to the prosperity and success of people, including non-Muslims, 1400 years ago. They should unite as one nation under Khalifat, which means establishing the authority of Allah (SWT) and following the divine commandments related to the social, political, and economic systems. As they have declared Islam in their constitution, they should work together to apply the divine framework of the governance revealed by Allah (SWT) and implemented by Prophet Mohammad (P.B.U.H) and his four successors called Khalifas. This paper provides an overview of the downfall and the end of the Khalifat system by 1924, the ways in which the West caused political, social, and economic crises in the Muslim countries, and finally, a summary of the social, political, and economic systems implemented by the Prophet Mohammad (P.B.U.H) and his successors, Khalifas, called the Rightly Guided – Hazrat Abu Bakr (RA), Hazrat Omar (RA), Hazrat Usman (RA), and Hazrat Ali (RA).

Keywords: khalifat, khilafat-e-Rashida, the rightly guided, colonization, capitalism, neocolonization, government systems

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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: Foluke Abimbola

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The United Nations Convention on the rights of the child has been signed and ratified by several countries due to the concern about various abuses and crimes committed against children both locally and internationally. It is a shame that in view of the peculiar hardships being experienced by children today, the natural right to childhood has to be protected by a vast array of laws and international conventions. 194 countries have so far acceded to and ratified the convention on the Rights of a Child while some countries such as Nigeria have enacted the convention as a domestic law, yet child abuse is still rampant not only in Nigeria but all over the world. In Nigeria, the Child Rights Act was passed into law in 2003, with its provisions similar to the United Nations Convention on the Rights of a Child. Despite the age of marriage provided in the Nigerian Child’s Rights Act 2003, many communities still practice child marriages to the detriment of the girl-child. Cases where these children have to withdraw from school as a result of these unripe marriages abound. Unfortunately, the Constitution of the Federal Republic of Nigeria 1999 appears to indirectly support early marriages for girls in section 29 (4) where it states that a woman who is married is deemed to be of full age whereas ‘full age’ as a general term in the Constitution is from 18 years old and above. Section 29 (4) may thus be interpreted to mean that a girl of 12 years old, if married, is deemed to be of ‘full-age.’ In view of these discrepancies which continue to justify this unwholesome practice, this paper shall proffer solutions to this unlawful act and make recommendations to existing institutions, using a rights-based approach, on how to prevent and/or substantially reduce this practice. A comparative analysis with other African countries will be adopted in order to conduct a research for effective policies that may be implemented for the protection of these girls. Thus, this paper will further examine the issue of child marriage which is still quite rampant in African countries particularly in Nigeria which also affects the girl-child’s right to an education. Such children are in need of special protection and this paper will recommend ways in which state institutions, particularly in Nigeria, may be able to introduce policies to curb incidences of child marriage and child sexual abuse while proffering strategies for the prevention of these crimes.

Keywords: child abuse, child marriages, child rights, constitutions, child rights, the girl-child

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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: Donato Vese

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According to the common interpretation, in a legal system, public powers are established by law. Exceptions are admitted in an emergency or particular relationship with public power. However, we currently agree that law allows public administration a margin of decision, even in the case of non-discretionary acts. Hence, the administrative decision not exclusively established by law becomes the rule in the ordinary state of things, non-only in state of exception. This paper aims to analyze and discuss different ideas on discretionary power on the Rule of Law and Rechtsstaat. Observing the legal literature in Europe and Nord and South America, discretionary power can be described as follow: it could be considered a margin that law accords to the executive power for political decisions or a choice between different interpretations of vague legal previsions. In essence, this explanation admits for the executive a decision not established by law or anyhow not exclusively established by law. This means that the discretionary power of public administration integrates the law. However, integrating law does not mean to decide according to the law, but it means to integrate law with a decision involving public power. Consequently, discretionary power is essentially free will. In this perspective, also the Rule of Law and the Rechtsstaat are notions explained differently. Recently, we can observe how the European notion of Rechtsstaat is founded on the formal validity of the law; therefore, for this notion, public authority’s decisions not regulated by law represent a problem. Thus, different systems of law integration have been proposed in legal literature, such as values, democracy, reasonableness, and so on. This paper aims to verify how, looking at those integration clauses from a logical viewpoint, integration based on the recourse to the legal system itself does not resolve the problem. The aforementioned integration clauses are legal rules that require hard work to explain the correct meaning of the law; in particular, they introduce dangerous criteria in favor of the political majority. A different notion of public power can be proposed. This notion includes two main features: (a) sovereignty belongs to persons and not the state, and (b) fundamental rights are not grounded but recognized by Constitutions. Hence, public power is a system based on fundamental rights. According to this approach, it can also be defined as the notion of public interest as concrete maximization of fundamental rights enjoyments. Like this, integration of the law, vague or subject to several interpretations, must be done by referring to the system of fundamental individual rights. We can think, for instance, to fundamental rights that are right in an objective view but not legal because not established by law.

Keywords: administrative discretion, free will, fundamental rights, public power, sovereignty

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Authors: Alina Murtishcheva

Abstract:

The development of an effective system of administrative supervision is a prerequisite for the functioning of local self-government on the basis of the rule of law. Administrative supervision of local self-government is of particular importance in the EU countries due to the influence of integration processes. The central authorities act on the international level; however, subnational authorities also have to implement European legislation in order to strengthen integration. Therefore, the central authority, being the connecting link between supranational and subnational authorities, should bear responsibility, including financial responsibility, for possible mistakes of subnational authorities. Consequently, the state should have sufficient mechanisms of control over local and regional authorities in order to correct their mistakes. At the same time, the control mechanisms do not deny the autonomy of local self-government. The paper analyses models of administrative supervision of local self-government in Ukraine, Poland, Lithuania, Belgium, Great Britain, Italy, and France. The research methods used in this paper are theoretical methods of analysis of scientific literature, constitutions, legal acts, Congress of Local and Regional Authorities of the Council of Europe reports, and constitutional court decisions, as well as comparative and logical analysis. The legislative basis of administrative supervision was scrutinized, and the models of administrative supervision were classified, including a priori control and ex-post control or their combination. The advantages and disadvantages of these models of administrative supervision are analysed. Compliance with Article 8 of the European Charter of Local Self-Government is of great importance for countries achieving common goals and sharing common values. However, countries under study have problems and, in some cases, demonstrate non-compliance with provisions of Article 8. Such non-conformity as the endorsement of a mayor by the Flemish Government in Belgium, supervision with a view to expediency in Great Britain, and the tendency to overuse supervisory power in Poland are analysed. On the basis of research, the tendencies of administrative supervision of local authorities’ activities in selected European countries are described. Several recommendations for Ukraine as a country that had been granted the EU candidate status are formulated. Having emphasised its willingness to become a member of the European community, Ukraine should not only follow the best European practices but also avoid the mistakes of countries that have long-term experience in developing the local self-government institution. This project has received funding from the Research Council of Lithuania (LMTLT), agreement № P-PD-22-194

Keywords: administrative supervision, decentralisation, legality, local authorities, local self-government

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