Constitutional Change Research Articles

The (Il)legitimacy of Constitutional Amendments in Africa and Democratic Backsliding

Abstract In many African countries with hegemonic-party or de facto one-party systems, political leaders have historically exploited ostensibly proper constitutional amendments to undermine constitutionalism, a practice raising questions about the legitimacy, or lack thereof, of such amendments. This article argues that amendment legitimacy is contingent on achieving ‘broad consensus’, a concept endorsed by the African Charter on Democracy, Elections and Governance. Traditional amendment procedures, such as supermajorities and referendums, while crucial, have proven to be imperfect proxies for ensuring such broad consensus. To more effectively safeguard the core constitutional rules of democratic governance, this article contends that political parties must be recognised as key sites of power division and checks and balances. Accordingly, constitutional amendment procedures should require some level of cross-party approval for key amendments, thus preventing individual political groups, regardless of their dominance, from unilaterally altering fundamental rules of the game. This approach would not only enhance the legitimacy of amendments but also serve as a safeguard against contemporary forms of democratic backsliding, where incumbents exploit formal processes to undermine democratic competition. While this process might make constitutional changes more difficult, it would apply only to a narrow set of fundamental aspects of constitutional democracy. Moreover, it does not necessarily conflict with popular self-governance (and its majoritarian expression), but instead calls for an inclusive re-imagining of majoritarianism.

‘Towards a modern democracy’? The constitutional politics of the 1990s British left

ABSTRACT This article argues that a ‘constitutional lens’ sheds light on British political contestation in the 1990s. It is commonly suggested that 1990s politicians merely consolidated the hegemony of ‘Thatcherism’. Yet, this struggles to encompass the decade’s political volatility, from the Conservatives’ descent into internecine warfare over the Maastricht Treaty to the fraught Irish peace process. Though varied, these developments shared a key theme: controversy over the constitution of the United Kingdom. To illustrate its case, this article applies the constitutional lens to the 1990s left. Existing accounts emphasise Labour’s concessions to Conservative opponents. By 2001, however, the first Blair government had enacted contentious constitutional changes: devolution, proportional voting systems, and a Human Rights Act. These policies reflected a dynamic, new, liberal-left politics of constitutional reform. From the 1980s, liberals, social democrats and Marxists forged a new constitutional agenda, responding to trends since the 1960s—growing ‘popular individualism’, agitation for ‘human rights’, European integration, and Scottish nationalism—and to the end of the Cold War. By the 1990s, campaigners had developed a bold programme for ‘modernising the constitution’, which influenced Labour’s programme. Through New Labour’s governments, this agenda profoundly reshaped the institutions of British politics in the twenty-first century.

Народный делиберативный конституционализм как коллективная мудрость: понятие и предназначение в российской и сравнительной конституционной юриспруденции

The article identifies the ideological sources of collective wisdom, the doctrinal and normative foundations of popular deliberative constitutionalism, some aspects of the inclusive constitutional paradigm, procedures, and technologies for the participation of citizens and civil society institutions in constitutional modernization and constitutional changes in the context of Russian and comparative experience. The article considers popular deliberative constitutionalism as a meta-concept that can be used to analyze prescriptive requirements and promising principles in the constitutional modernization of the state and society, forms and procedures for citizen participation in constitutional changes, processes of preparation and implementation of constitutional changes in the modern period. Popular constitutionalism in scientific works develops as a special doctrinal, normative, and procedural basis for the implementation of the principle of popular sovereignty, the constituent power of the people, the involvement of citizens and civil society institutions in the process of constitutional changes. The author concludes that constitutional collective wisdom in the information age arises as a result of the use of both analog and digital technologies, classical procedures for discussion and the use of aggregated preferences, and a combination of natural and artificial intelligence.

Collective Wisdom in Constitutional, Informational and Digital Dimensions: on the Concept and Nature of Popular Deliberative Constitutionalism for Public Law

The article discusses the scientific and intellectual origins of collective wisdom in the constitutional, information and digital dimensions, reveals the doctrinal approaches and normative foundations of popular deliberative constitutionalism, the development of an inclusive constitutional paradigm and its significance for the use of procedures and technologies for citizen participation, expert opinion and civil society institutions in the constitutional development, in social transformations, in constitutional changes brought to life by the needs of society and the state. Popular deliberative constitutionalism is identified in the article as a public legal meta-concept that explains the process and need for constitutional involvement of citizens. The author concludes that popular deliberative constitutionalism allows us to better understand the problems of implementing the principle of popular sovereignty in modern democratic states, create an optimal model and consider the forms of exercising the constituent power of the people when implementing constitutional changes. In the article, the author notes that the future of democratic constitutionalism is associated with the creation and use of collective intelligence technologies in the public legal sphere, which, in the context of the development of an algorithmic and information society, combine classical procedures for discussing constitutional issues and the use of aggregated preferences. The practical application of the achievements of natural and artificial intelligence is intended to discuss and resolve issues of public legal significance, is based on co-evolutionary development and leads to the emergence of mini-publics, civil assemblies, and constitutional crowdsourcing.

NORTH MACEDONIA TOWARD THE EUROPEAN UNION THROUGH GOOD NEIGHBORLINESS

After declaring independence in January 1991, North Macedonia decided that its future would be in the family of democratic peoples of Europe. North Macedonia has clearly expressed its priority for membership in the European Union as one of its strategic and vital interests. With the realization of this determination, the Republic of North Macedonia was legitimized as a reliable partner and ally of the European Union, but it still went through a series of different stages in the development of relations, rapprochement, and integration in the EU. We all know that reforms are required within the states that seek and want to be members of the European Union. There are several important steps through which the state of North Macedonia, a candidate country, has shown its goodwill in the long path of integration and contribution. The key points and changes necessary to achieve the goal of being part of the European Union that have been realized so far are the following: the Prespa Agreement between North Macedonia and Greece, the Treaty of Friendship, Good Neighborliness, and the Union of Cooperation, between Macedonia North and Bulgaria. This paper analyzes North Macedonia's approach to the European Union, the transition, its difficulties and challenges on this path, and the Constitution's changes. In the end, conclusions and suggestions are given to make North Macedonia's path towards the European Union a little easier.

LEGAL ANALYSIS OF THE PROCEDURE OF CONSTITUTIONAL AMENDMENT IN THE CONSTITUTION OF THE REPUBLIC OF NORTH MACEDONIA AND CHANGES OF THE PREAMBLE THROUGH A CONSTITUTIONAL AMENDMENT

In this article we will try to give an overview of the examines the constitutional amendment process in the 1991 Constitution of the Republic of North Macedonia and, more specifically, how these changes have affected the preamble of the constitution. The constitutional amendment process is conducted in accordance with the procedures outlined in the 1991 Constitution. The modification of the preamble is a consequence of constitutional amendments. This study explores the constitutional adjustments of the Republic of North Macedonia as well as the alignment of these changes with practices in Europe. This work offers a more detailed analysis of the Republic of North Macedonia's constitutional amendment process and changes to the preamble. The research topic will examine the permissibility of amending the preamble or any segment of the preamble through constitutional amendments. It will analyze various perspectives on whether the preamble constitutes an integral part of the constitution and consequently assess the feasibility of amending it via a constitutional amendment. In this regard, as a source in terms of methodology will search relevant scientific literature actually scientific books, constitutions, scientific papers in printed version and on the online databases as Google Scholar, Researchgate (journals indexed on EBSCO, SCOPUS, WEB OF SCIENCE) insight by keywords: “amendments” “procedure of constitutional amendment”, “constitution of the republic of North Macedonia” and “constitution of the Republic of Croatia”. All these books and scientific works are in different languages, such that, in English, Macedonian, Croatian, Turkish, etc. In that way, the references and the quality of this scientific research are enriched.

The Counter-Majoritarian Referendum: Popular Voting Processes and Constitutional Change

ABSTRACT On the one hand, it seems important to bring real citizens into the constitutional processes of making and amending constitutions. This is important in order to foster a sense of ownership and commitment to constitutional principles, have those documents reflect the interests and concerns of ordinary people, and fulfill the principles of popular sovereignty and constituent authority of the people. On the other hand, there are many misgivings about handing over decisional power to the people (for example through referendums) on constitutional issues. The worry here is that these means of bringing citizen into the process are easily hijacked by majoritarian or populist forces and may be used to undermine rather than strengthen principles of constitutional democracy. Constitutions are, among other things, supposed to protect individuals and minorities from majorities. This is the classic tension between democracy and constitutionalism. One solution is to shift ideas of popular sovereignty away from voting and towards fostering public dialogue. In this paper, I argue that one of the most effective ways to foster public dialogue about constitutional essentials is through initiating a referendum. Thus I defend constitutional referendums on the counterintuitive grounds that if properly structured they are effective in promoting the recognition of the limits of majoritarianism.

Constitution development cyclicity and factors that influence it

The article is dedicated to the study of certain aspects of the constitution development cyclicity and the factors that influence such cyclicity. The author emphasizes that the state, society and the constitution are in constant interconnection with each other, and therefore formation of cyclicity of constitution development is inseparable from other legal phenomena. It was found that cyclicity is characterized by stability (invariability of the stages (phases) forming cyclicity of constitution development) and survivability (dynamics that forms the constitution’s ability to adapt to new challenges and tasks arising in society). The author draws attention to both actual and legal constitutions. It was established that: a) actual and legal constitutions are indeed independent juridical phenomena, however, they interact with each other and that is manifested in the aspect that de facto relations which influence emergence of an actual constitution contribute to changes of a legal constitution; b) the factors under which de facto relations are formed in the state serve as prerequisites for beginning, development or termination of the stages of adoption, reform and invalidation of the constitution. The author specifies that, since the constitution functions within the political organization of society, all factors relating to cyclicity of its development in relation to the state can be divided into internal factors arising in the state (social, cultural, economic, political, etc.) and foreign policy factors (adoption of international acts, unilateral acts of other states, etc.) which influence determination of a political course and orientation of the state and contribute to dynamism of the constitution’s life cycle. The author gives an example of an internal (political) factor influencing cyclicity of the constitution development – a choice of a new vector of Ukraine’s policy towards membership in the European Union and the North Atlantic Treaty Organization that resulted in introduction of amendments to the Constitution of Ukraine in 2019. The other example given is associated with a foreign policy factor – constitutional changes in Germany in 2022 aimed at increasing the budget expenditures of the state for its army’s defense capability because of the full-scale invasion of Ukraine.

Lysander, Serapis and the School of Theophrastus

The aim of this article is to draw attention to two stories found in the works of Plutarch. These are Lysander’s last efforts to obtain oracles and overthrow the Spartan Constitution and the Sinopic tradition about the aetiological myth of the introduction of Sarapis’ cult in Alexandria. There are several common points between the two: Plutarch, kingship, the young boy and his divine paternity, the Black Sea area, the travel by sea, Delphi, Apollo and oracles. After analyzing and comparing these common points, we argue for a shared cultural background in the early Hellenistic period. This background consists of the work of a historian and a philosopher of this period, Theophrastus, the successor of Aristotle in the Peripatetic School. Plutarch mentions that the story he narrated in Lysander’s Life about the admiral’s last effort to obtain oracles from Delphi and to make a change in the Spartan constitution by introducing the election of the king from thearistoi goes back to a philosopher and historian. We know that he considered Theophrastus to be both a philosopher and a historian. The most famous pupil of Theophrastus, Demetrius of Phaleron, moved to Alexandria after 307 BC, became a worshipper of Serapis and wrote books about Serapis. Other students of Theophrastus were also great worshippers of this newly created god. This combined evidence permits us to advance the hypothesis that the story of Lysander served as a model for the construction of the Sinopic tradition about the introduction of Serapis’ cult in early Ptolemaic Egypt.

Hating Women: A Constitution of Hate in Plain Sight.

In April 2023, the U.K. government announced that misogyny would not be categorized as a hate crime stating that this "may prove more harmful than helpful." This article argues that before and beyond hate crime, misogyny, understood as the hatred of women (from the Greek misein [hate] gynae [women]), is the foundational logic of our legal, social, and political order in the west. This constitution of hate relies on the active dehumanization, exploitation, and ownership of women's bodies by the institution of white men through making women the object of the "colonization of the everyday." This exhausting hatred is enacted through repetitive, unceasing, and everyday violence toward women. Simply put, patriarchal, colonial, capitalist democracy is only sustained through violence against women. Hating women is, therefore, not a pathology of society but rather is the necessary existence condition of our legal-political constitution, clear to see yet hiding in plain sight. Misogyny ensures the precarity of women's bodies and women's status as trespassers in everyday spaces that are deliberately always already misogynistic. Given the foundational nature of misogyny, did the government have a point in excluding endemic violence against women from hate crime as "more harmful than helpful?" Is hate crime merely constitutive of a cultural matrix of misogyny? This paper enacts a decolonial feminist prism to disrupt the cultural condition of misogyny by thinking hate crime together with legal-political constitutional and cultural change. The paper explores violence against women set against the historical emergence of misogyny from Greek dehumanization, to medieval persecution of "witches," the muzzling and banning of women from public spaces, Shakespeare's "Taming," to contemporary femicide rates. Interrogating hate crime through this prism offers nuanced routes for how to disrupt the legal-political constitution of misogyny that is neither hidden nor new. Misogyny is enduring.

It Takes a Movement: Lawyers, Litigation, and Legal Theory in the Attack on Campaign Finance Reform

Abstract Recent Supreme Court decisions have hobbled campaign finance regulation and placed significant constitutional constraints on possible future reforms. But the Supreme Court has not acted alone. Major constitutional changes often require a substantial legal and political infrastructure, an ecosystem of actors, ideas, strategies, and tactics to instantiate new constitutional doctrine into law. In Big Money Unleashed, Ann Southworth examines the composition, development, organization, and intellectual underpinning of the legal movement that has worked to cripple campaign finance regulation. She chronicles the raising and testing of the key legal theories; the sources of political and financial backing for the movement; the combination of disparate groups into an antireform coalition; and the organization of what has proven to be a very effective litigation strategy. The result, she explains, has been the ascendancy of a powerful constitutional discourse that treats money as speech, campaign spending as freedom, and government regulation as censorship. The antireform litigation campaign on its own would not have been enough to transform the law; key appointments to the Supreme Court were essential. But the movement provided the Court with the cases, the arguments, and broader political support that are part of constitutional change.

A reformation to end the revolution: Germaine de Staël and the struggle for republican mores under directory France

ABSTRACT Between 1797 and 1798, Germaine de Staël argued that France needed a reformation to end the Revolution, proposing the adoption Protestantism as a religion of state. This proposal has been explained away as an obvious and uninteresting consequence of her Calvinist upbringing. While obviously relevant, Staël’s religious background is not a sufficient explanation for a proposal that would have upended the constitutional principles of the Directorial republic as well as centuries of tradition in France. I argue instead that Staël’s proposal is better understood in framework of the Directory’s plans to breach the state’s neutrality in religious matters, established in the 1795 Constitution, in order to promote love of the republic via a new religion, theophilanthropy. Thus, Staël identified a political opportunity for constitutional change in matters of religion and sought to steer the course towards an existing religion that, as she argued, had all the benefits that the Directory saw in theophilanthropy, but none of the pitfalls, especially the theophilanthropists’ association with the Terror. This re-interpretation of Staël’s proposal, made in Circonstances actuelles, has implications for our broader understanding of this work, hailed as her ‘most substantial contribution to political and constitutional theory’, and the Thermidorian republic.

Heat spreading effect on the optimal geometries of cooling structures in a manifold heat sink

Embedded cooling is a promising solution to address thermal challenges of power electronics. The present work investigates heat spreading effect on the optimal geometries of cooling structures within a single-phase manifold heat sink in laminar regime by integration of topology optimization (TO) and Bayesian optimization (BO). Such integration is for the manual parameter tuning issue in the density-based TO of conjugate heat transfer, and the TO process is accelerated by using a dual-level simulator and the optimality criteria optimizer combined with the stochastic gradient descent method. The heat spreading effect significantly alters the optimal geometries, due to the change of thermal resistance constitutions. Physical analyses on the BO-TO-generated geometries give two guidelines for improving the cooling structures here: (a) Heat source-coolant distance should increase properly for narrow heating area and small Biot number; (b) Highly-thermal-conductivity solid can be filled into low-velocity regions directly connecting to hot area. As an example, a fabrication-friendly cooling structure is devised in the case of concentrating heating following these guidelines, avoiding the computationally-expensive optimization process and the over-complicated geometries. The CFD simulations show this design can significantly reduce the thermal resistance with minor increase of pressure loss as the Reynold number from 50 to 300.

Explaining institutional change in Nepal and El Salvador: A cultural political economy approach to political settlements analysis

AbstractUnderstanding progressive institutional change remains a central concern in development studies. This paper examines two such cases: constitutional change in Nepal, which broadened political rights, and the outlawing of metal mining in El Salvador, which redistributed resources. To understand institutional change, this paper proposes a cultural political economy approach to Khan's ‘political settlements analysis’. Applying the proposed approach to these cases demonstrates how political movements organise around beliefs and identities as well as interests to achieve rights and status, not just material gain. Identifying cultural as well as material sources of power allows a fuller explanation of institutional change processes.

Obstetric violence and consent during pregnancy and childbirth: the Eighth Amendment and its impact on the Irish maternity system

ABSTRACT In the run up to the referendum on abortion in Ireland in 2018, women shared experiences of being denied abortion care through social media. The ‘In Her Shoes’ dataset is a collection of archived Facebook posts in which women shared their experiences of obstetric coercion, lack of information and lack of consent to medical procedures during pregnancy and childbirth. Using women’s testimonies from the In Her Shoes database (https://repository.dri.ie/catalog/wm11nd02p), this research will critically analyse these stories. The paper will analyse women’s experiences in maternity care pre-2018 before the constitutional change. The article includes experiences of being denied treatment because of their pregnancy, being forced to continue the pregnancy when there was a risk to the woman’s health, as well as a lack of information and lack of consent to medical procedures. The article puts women’s experiences at the forefront of the research and analyses their experiences within a medical narrative framework. It argues that the Eighth Amendment, not just denied abortion care, but contributed towards a medical culture in which the patient’s experience was not central to that care. Since the removal of the Eighth Amendment, we should move towards a patient-centered care approach to maternity care in Ireland.

The British Political Tradition and Constitutional Policy: The Offer of Deliberative Mini Publics

Abstract The Review of the UK Constitution was an eighteen-month project assessing the functioning of the UK constitution resulting in a set of practical, innovative, and robust recommendations. This article draws out one theme from this research, the offer of Deliberative Mini Publics (DMPs) in the process of constitutional change in the UK. Using Marsh, Richards, and Smith’s ‘Asymmetric Power Model’ as a mechanism for understanding the centralised and top–down nature of British democracy, we argue that the integration of DMPs can offer an opportunity to mitigate some of the core problems with the functioning of the UK constitution and produce better constitutional policy.

SEJARAH DAN PERKEMBANGAN PERADILAN ISLAM MASA KEMERDEKAAN SAMPAI REFORMASI

This study examines the history and development of Islamic judiciary in Indonesia from the independence period to the reform era. The main focus is to identify structural, legal, and role changes of the Islamic judiciary in the context of political and social dynamics during this period. In the early days of independence, the Islamic judiciary was part of the national legal system and faced various challenges in enforcing Sharia law. Significant changes occurred throughout the Old Order, New Order, and especially during the reform era, marked by decentralization and democratization that strengthened the position of the Islamic judiciary. This study employs a historical approach and policy analysis to explore the transformation of the Islamic judiciary in response to various political and social changes in Indonesia. The results of the research indicate that the Islamic judiciary has developed significantly, adapting to constitutional and legal changes, and plays an important role in law enforcement in Indonesia. However, there are still challenges in the full integration of the Islamic judiciary into the national legal system that need to be addressed.

Non-compliance as a determinant of constitutional change? A comparative study

Non-compliance as a determinant of constitutional change? A comparative study

International Memberships and Their Contribution to the Development of Additional State Capacities of Bosnia and Herzegovina: Membership in the Council of Europe

The membership of Bosnia and Herzegovina (BiH) in the Council of Europe, in a broader theoretical sense, is an example of a somewhat neglected aspect in the relations between states and international organizations — the effect that international memberships, with a company in rights and obligations, have on achieving internal political consensus and building additional state capacities. This is particularly important for small, vulnerable, and highly decentralized states like Bosnia and Herzegovina. Although the concept of membership is neither demanding nor exclusive like that of the European Union, BiH waged a fierce diplomatic and political battle for this membership – by fulfilling pre-accession conditions (adopting the Election Law of BiH) and through intensive diplomatic lobbying, along with the obligation to meet a whole series of post-admission conditions. More than two decades of membership have provided examples of building additional state capacities – the imperative for constitutional changes, the upgrading of judicial and diplomatic-bureaucratic infrastructure through the formation of inter-ministerial groups, innovative institutional solutions, introduction of new functions or institutions; projecting one's political values in the context of current problems and issues that the international organization and its membership address, and opening new opportunities for international careers for officials, diplomats, or citizens of BiH.

Confused Constitutionalism in Hungary—New Assessment Criteria for Recognising a Populist Constitutional Court

The starting point of the paper is that the early constitutional changes after the populist transformation of Hungarian majority state politics (from 2010) and the application of the new Fundamental Law (since 2012) have created difficulty in achieving constitutional justice by judicial means. The fundamental populist constitutional transformation and, within this, the transformation of the regulation of the Constitutional Court have created great challenges for constitutional adjudication. Scholarship on the transformation of the Hungarian Constitutional Court regards the change of jurisprudence as a consequence of the constitutional environment, which ended up in institutional state capture. Basing my arguments on the classic competence-related issues of constitutional justice, activism and deference, I argue here that for constitutional courts, there is always a limited room for manoeuvre by interpretation except for in a ‘hard’ dictatorship. Populist Hungarian jurisprudence is, therefore, not only a consequence of constitutional change but a contribution per se—a cause of the construction of a populist constitution. This job has been done by constitutional interpretation in an activist or deferent manner with regard to specific politically sensitive issues. EU- and emergency-related constitutional conflicts are used here as examples to explain the proposed assessment criteria. The conclusion is that either the Court is activist or deferent, it contributes actively to the populist construction by constitutional interpretation.