Constitutional Principles Research Articles

Análisis sobre el principio de igualdad y no discriminación en la aplicación del Impuesto al Valor Agregado en el Ecuador

This article aims to evaluate the value added tax application in Ecuador, which goes against guaranteeing the equality, non-discrimination, and pro-tributario principles, since it identified disproportionate socioeconomic impacts arising between different groups of Ecuadorian society. The value added tax (VAT) in Ecuador, an essential tool for tax revenue, has sparked heated debate because of its potential impact on equity and non-discrimination. This research article explores how VAT affects different social groups, highlighting that the most vulnerable sectors bear a relatively greater tax burden, contravening the constitutional principles of equality and non-discrimination. The analysis reveals that, while VAT effectively raises revenue, its design and application need adjustments to protect low-income populations. The solutions proposed include commodity exemptions and tax equalization mechanisms. In addition, the need for transparency and citizen participation in tax policy development is emphasized, as well as the promotion of tax education to foster clear understanding of the tax system, ensuring that the tax burden is distributed more equitably and fairly.

The Necessary Qualification Of The Agribusiness Manager As To The Modalities Of Unenforceability And Bidding Waiver

Background: This study investigates the level of knowledge of agribusiness managers about the modalities of unenforceability and exemption from bidding, as established by Law No. 14,133/2021. The survey was carried out with a sample of 50 managers who participated directly or indirectly in bidding processes. Using structured questionnaires, the study evaluates the familiarity of future managers with the constitutional principles and legal procedures related to public procurement. The results indicate a satisfactory knowledge of the managers on the subject, but reveal gaps in practical aspects, such as the correct application of bidding exceptions. Ethics was highlighted as the most important principle to be observed in the bidding waiver. The conclusion highlights the need for more practical teaching to ensure better preparation of public managers.

O RECONHECIMENTO DO CRIME DE ESTUPRO VIRTUAL À LUZ DO PRINCÍPIO DA LEGALIDADE

This study seeks to investigate whether recognizing the crime of rape in its virtual form violates the constitutional principle of legality, considering the lack of legal provision on the circumstance related to technology. Thus, the main objective of the research is to evaluate the feasibility of a new legal classification for this criminal category, in order to ensure the primacy of the Federal Constitution with regard to the principle of legality and, consequently, ensure other fundamental precepts of the Supreme Law, such as the principle of human dignity, given the essential incidence of the aforementioned principle in the protection of legal assets and in the regulation of the duty to punish attributed to the State. The research adopts a bibliographic and qualitative approach, analyzing the factual context based on doctrines, legal provisions and case law. Through the study in question, it was possible to conclude that, although the scenario of Criminal Law in the digital sphere is one of uncertainty, there is no violation of the constitutional principle of legality, when the necessary elements of the criminal type listed in article 213 of the Penal Code are configured.

Right to Privacy as a Fundamental Right in India: Evolution, Challenges, and the Impact of Digitalization

The right to privacy has emerged as a cornerstone of individual autonomy and dignity in contemporary India, particularly in the digital age. Historically under-recognized within Indian jurisprudence, this right underwent significant transformation following the landmark Supreme Court judgment in Justice K.S. Puttaswamy (Retd.) v. Union of India (2017), which established privacy as a fundamental right under Article 21 of the Indian Constitution. This paper explores the evolution of privacy as a legal and constitutional principle in India, tracing its development from early judgments such as Kharak Singh v. State of U.P. and Gobind v. State of M.P. to the pivotal Puttaswamy case. It examines the growing challenges posed by digitalization, including data privacy concerns, mass surveillance, and the ethical implications of emerging technologies like facial recognition. Additionally, the paper discusses the interplay between privacy rights and regulatory efforts such as the proposed Personal Data Protection Bill, reflecting on the need for robust frameworks to safeguard individual freedoms while promoting innovation and security. This research underscores the importance of a balanced approach in ensuring that privacy rights keep pace with technological advancements, emphasizing the role of civil society and judicial oversight in shaping India's privacy landscape. As the digital realm expands, this study highlights the ongoing need to reconcile individual rights with collective interests in the pursuit of a free and equitable society.

Constitutional and Legal Provisions Related to Reservation Policies for Village Panchayat Elections in Maharashtra

This paper examines the legal framework governing reservation policies in village panchayat elections within Maharashtra. The basis of these policies is enshrined in Article 243D of the Indian Constitution, which mandates that reservations be provided for Scheduled Castes (SCs) and Scheduled Tribes (STs) in proportion to their population within the panchayat area. This article also stipulates that at least one-third of all seats, including those reserved for SCs and STs, must be allocated for women. Furthermore, reserved seats must be rotated among different electoral wards to ensure broader participation, and the reservations for SCs and STs are subject to a time limit as specified in Article 334, which is currently set at 80 years. Additionally, state legislatures have the discretion to enact laws providing further reservations for "Other Backward Classes" (OBCs). In alignment with these constitutional principles, Maharashtra's Village Panchayat Act, 1959, extends the reservation policies by mandating a 27% reservation for OBCs on top of the existing SC/ST reservations. The state law also enhances women's representation by requiring a 50% reservation for women across all castes, surpassing the constitutional minimum. Candidates contesting reserved seats are required to produce caste validity certificates within six months of the election to avoid disqualification. The 73rd Constitutional Amendment was designed to bolster participation and leadership from marginalized communities in local governance, and the Supreme Court has affirmed the importance of these reservation policies in promoting political empowerment and democratic decentralization. Despite these advancements, several challenges persist. The stringent requirement for obtaining caste validity certificates within a limited timeframe can create barriers for candidates. Additionally, there is a risk of misuse if the reservation system is not properly implemented or monitored, potentially allowing individuals who do not genuinely belong to reserved categories to exploit the provisions.

Ways to improve the effectiveness of appeal in pre-trial criminal proceedings

The article is devoted to the study of certain issues which, if resolved, will contribute to the enhancement of the effectiveness of appeal in pre-trial criminal proceedings. It is stated that regulatory gaps and the lack of uniform approaches to the grounds, conditions and procedure for applying the appeal institute do not allow for an effective mechanism of legal protection of violated substantive and procedural human rights. The author determines that formalized approaches to the appeal procedure have a negative impact on the effective achievement of the objectives (purpose) of appeal in pre-trial criminal proceedings. It is emphasized that the appeal against a notice of suspicion has regulatory shortcomings in terms of the lack of substantive and criminal procedural grounds for filing a complaint. At the same time, the author emphasizes that there are no grounds for appealing against the decision to put a person on the wanted list. Among the defects in the procedure for applying the institution of appeal, the author highlights the lack of criteria which determine the rules of jurisdiction for consideration of appeals against decisions, actions or omissions of the prosecution during the pre-trial investigation. The author examines the impact on the effectiveness of appeal of the possibility provided by procedural law to file a complaint against decisions, actions and omissions of the prosecution to the prosecutor. It is noted that within the framework of constitutional rights, it is important to provide for the possibility of appealing against certain decisions of investigating judges which affect fundamental human rights and freedoms. In particular, the author finds that the list of appealable decisions does not include decisions on determining jurisdiction and on conducting a search in urgent cases. At the same time, the author argues that it is necessary to introduce cassation appeal in pre-trial criminal proceedings, since the right to appeal in cassation is a practical implementation of the constitutional principle of criminal justice. The author also substantiates the need to regulate the procedure for pre-trial criminal proceedings during the filing and consideration of a constitutional complaint.

IMPACTO DA REFORMA DA PREVIDÊNCIA NA APOSENTADORIA POR INCAPACIDADE PERMANENTE PREVIDENCIÁRIA: UMA ANÁLISE JURÍDICA DA INCONSTITUCIONALIDADE DO ART. 26, § 2º, III DA EC 103/2019

The present study analyzes the impacts of the Pension Reform introduced by Constitutional Amendment No. 103/2019 on the granting of permanent disability retirement, with a focus on Article 26, §2, item III. The topic is justified by the need for a deeper understanding of the history of social security and the evolution of this benefit, analyzing the calculation rules before and after the promulgation of the Constitutional Amendment, and the various ways in which insured individuals under the general social security system are affected. The study aims to provide an accurate analysis of current legislation to evaluate the fairness of the calculation method established by the Pension Reform. The methodology employed involves a rigorous examination of the 1988 Federal Constitution and its constitutional principles, the referenced Constitutional Amendment, Law No. 8.213/91, Decree No. 3.048/99, case law from regional courts and the Federal Supreme Court, and scholarly interpretations from experts such as José Antônio Savaris, Hugo Goes, and Gustavo Beirão Araújo. The main findings indicate that, despite the approval of the Constitutional Amendment, several constitutional principles and laws have been violated by the new calculation rules for permanent disability retirement benefits. These rules disadvantage insured individuals in various aspects, a view that has already been adopted by courts and supported by legal scholars, although a decision is still pending before the Federal Supreme Court. In conclusion, Article 26, §2, item III of Constitutional Amendment No. 103/2019 is inconsistent and should be declared unconstitutional, as it imposes a scenario of true social regression.

Legal Policy of Pretrial Arrangements in Criminal Procedure Law in Indonesia by the Constitutional Court

This research examines the legal policy direction of pretrial arrangements in Indonesia's criminal procedure law, focusing on Constitutional Court Decisions Number 21/PUU-XII/2014, 102/PUU-XIII/2015, and 66/PUU-XVI/2018. These decisions have significantly shaped the evolution of pretrial provisions, ensuring alignment with constitutional principles of justice, legal certainty, human rights protection, and simple, fast, low-cost justice. Through normative legal research employing statutory, conceptual, and case-based approaches, the study analyzes how the Constitutional Court's rulings address ambiguities in existing norms, enhance judicial oversight, and strengthen the protection of suspects' rights. Findings indicate that the Constitutional Court’s decisions aim to refine pretrial norms by expanding judicial authority, clarifying procedural ambiguities, and balancing human rights protection with efficient judicial processes. The research underscores the role of legal politics in harmonizing criminal procedural law with evolving societal and legal demands, offering insights for further reforms to uphold justice and human dignity. Future research could explore comparative analyses, implementation challenges, and the integration of digital technologies to enhance the efficiency and equity of pretrial systems.

The Prudent Parliament and Section 24(1)

The appeal of Attorney General of Canada v Power was heard by the Supreme Court of Canada on December 7, 2023. The case concerns the availability of damages under section 24(1) of the Charter for legislative action. In response, our paper argues: 1) the text of section 24(1) does not bar damages for unconstitutional legislation; 2) the history of section 24(1) points towards damages for legislative action; 3) unwritten constitutional principles suggest courts should treat different types of damages differently; 4) precedent suggests Crown liability for unconstitutional legislation should proceed on a negligence standard for some types of damages; and 5) meeting the standard of care for such negligence should require Parliament to obtain legal advice. In advancing these arguments, we reconsider early Charter scholarship on the value of private law concepts to the unique public law context of section 24(1) in light of more recent jurisprudence.

Leyes nacionales ¿pueden restringir y/o limitar las potestades tributarias de los fiscos provinciales y/o municipales?

The tax powers of the provinces and municipalities are broad, but their exercise is limited by the constitutional tax principles, the distribution of tax powers, the powers expressly delegated to the federal government and the regulatory hierarchy established in the National Constitution.The laws issued by the National Congress based on the prerogatives expressly delegated to the federal government may condition the exercise of local tax powers. Said conditioning must be examined jointly with the federal regime enshrined in our Fundamental Charter, so that local governments are not deprived of the tax powers that the same constitutional text recognizes for them.

ADOÇÃO DO ACORDO DE NÃO PERSECUÇÃO PENAL NO RIO GRANDE DO NORTE (ANPP)

The Non-Prosecution Agreement (ANPP), established by Law No. 13.964/2019 (Anti-Crime Package), aims to reduce mass incarceration, especially for less serious crimes, primarily those committed negligently. This article evaluates the effectiveness of the ANPP in the Criminal Courts of the State of Rio Grande do Norte, analyzing the reduction in the number of cases, the impact on recidivism, and the social repercussions. Between 2020 and 2023, the ANPP prevented the imprisonment of more than 8,000 people, promoting a more agile justice system and consequently alleviating prison overcrowding in the state. However, despite the advances brought by the law, it is necessary to consider limitations regarding the application of this benefit to repeat offenders, particularly regarding retroactivity to the fact and the individual. As liberty is the most valuable legal good that the law seeks to guarantee and uphold, the article highlights constitutional principles such as subsidiarity and proportionality in the defense of a more rational and humane criminal policy.

MÍDIA E PROCESSO PENAL: A INFLUÊNCIA DA COBERTURA MIDIÁTICA NAS DECISÕES JUDICIAIS E AS VIOLAÇÕES AOS PRINCÍPIOS CONSTITUCIONAIS

The media coverage in the Brazilian criminal justice system, especially in the Jury Court, has raised concerns about the impartiality of judicial decisions by interfering with the fundamental rights of defendants. This study aims to analyze the influence of the media on the criminal process, highlighting violations of constitutional principles such as due process, the presumption of innocence, the right to a fair trial, and the right to a broad defense. The impact of public opinion pressure, often fueled by sensationalist media coverage of high-profile cases, is discussed in the context of the impartiality of jurors. The main objective is to propose strategies to mitigate this media interference, including jury sequestration, precise guidance for jurors, and the implementation of measures like "gag orders." The research adopts a qualitative and descriptive approach, based on bibliographical review and the analysis of a concrete case, the Nardoni Case, to illustrate the effects of media on the criminal process. The study suggests that, although it is difficult to completely eliminate media influence, the adoption of effective measures can contribute to ensuring a fairer and more transparent trial, respecting the constitutional rights of the defendants.

Constitutionalization in the context of modern constitutionalism: theoretical and methodological analysis

The article examines constitutionalization as an important category of constitutional law. The author explores various approaches to understanding this concept, its historical development, and modern interpretations. The views of domestic and foreign scholars on the essence, characteristics, and forms of manifestation of constitutionalization are analyzed. Special attention is paid to the relationship between the concepts of “constitutional order”, “constitutionalism”, and “constitutionalization”. The author emphasizes that constitutionalization is a dynamic process that reflects the practical aspect of constitutionalism and has a global character. The article examines various aspects of constitutionalization, including its impact on the legal system, the expansion of constitutional regulation, and the subordination of government activities to constitutional principles. The author analyzes the role of constitutionalization in ensuring the unity of the legal system and guaranteeing constitutional rights and freedoms. Special attention is paid to the process of constitutionalization in the context of developing a democratic state governed by the rule of law. Based on the analysis of scientific sources, the author formulates their own definition of constitutionalization as a multifaceted process that includes the formal establishment of rights in the constitution, subordination of government activities to constitutional principles, expansion of constitutional regulation of various spheres of public life, and the influence of constitutional norms on the development of the legal system. The conclusions emphasize the importance of further research on constitutionalization for improving constitutional and legal regulation and ensuring the effective operation of constitutional norms in modern society.

O devido processo legal em investigações administrativas de assédio sexual: a força do mandamento constitucional e a realidade da instrução processual disciplinar

This article aims to present the main difficulties in implementing the constitutional principle of due administrative legal process in sexual harassment investigations, especially regarding the selection and obtaining of evidence, as well as the production and evaluation of evidence. First, we analyze the contemporary contours of the principle of due administrative legal process (article 5°, LIV and LV of the Constitution of the Brazilian Federative Republic and articles 20, 21 and 22 - LINDB). Next, we present sexual harassment as an administrative disciplinary infraction. We deal with aspects related to conceptualization, typology and legal provisions. We also analyzed some jurisprudential precedents of the Federal Supreme Court and Superior Court of Justice. Finally, we point out the elements, production and valuation of evidence in the administrative disciplinary procedural investigation of conduct involving the practice of sexual harassment. At this point, we highlight how the nature of the infraction and the victim's condition of vulnerability interfere with the implementation of the guarantees of contradictory and full defense. We conclude that there is a precarious classification system regarding the administrative offense of sexual harassment. This dysfunction ends up having consequences for the development of substantial due process, including with regard to the institute of evidence collection, requiring the evolution of the legislator, in action to combat the practice of sexual harassment in the Public Administration and in terms of accountability.

Judicial Activism and Governance: A Comprehensive Analysis of Constitutional Principles

The research examines the evolving role of the judiciary in shaping and influencing public policy, emphasizing the delicate balance required to maintain the separation of powers while ensuring effective governance. The study encompasses a broad spectrum of constitutional doctrines and judicial decisions to provide a comprehensive understanding of the dynamics between the judiciary and the other branches of government and it also acknowledges the potential benefits of judicial activism in addressing societal issues. It not only helps in protecting fundamental rights but it also scrutinizes the concerns surrounding overreach and the erosion of democratic principles. A central focus of the paper is the intricate relationship between judicial review and the separation of powers. The analysis evaluates how judicial activism can serve as a check on the legislative and executive branches, ensuring that constitutional rights are safeguarded. However, it also underscores the need for judicial restraint to prevent the judiciary from encroaching on the policymaking domain reserved for elected representatives. The paper discusses the evolving nature of constitutional interpretation and the potential impact on governance, with a specific emphasis on how judicial decisions can influence the legal landscape and societal norms. Furthermore, the analysis considers the role of judicial activism in addressing contemporary challenges such as social justice, environmental protection, and technological advancements. In conclusion, this comprehensive analysis provides a nuanced understanding of the relationship between judicial activism and governance, emphasizing the importance of striking a balance that upholds constitutional principles while respecting the roles of the other branches of government. The paper contributes to the ongoing discourse on the evolving nature of judicial power and its implications for effective and accountable governance within a constitutional framework.

Unveiling human rights protection in China from the perspective of criminal procedure law

Abstract A significant portion of the misunderstanding surrounding China’s human rights protection stems from a failure to consider its legal progress in light of China’s unique cultural, ideological, and political contexts. The Criminal Procedure Law of China is closely linked to constitutional principles and the fundamental first generation of human rights, providing a clear framework for understanding China’s efforts in human rights protection. As widely accepted standards for human rights codification, Articles 9, 17, and 14 of the International Covenant on Civil and Political Rights (ICCPR) outline the right to personal liberty, privacy, and the defense of the accused. Initially, China’s Criminal Procedure Law of 1979 fell short of meeting these global standards. However, with substantial revisions in 1996, 2012, and 2018, this specific code has progressively aligned with the covenant’s requirements, marking significant strides in human rights protection in China. Despite these advances, there remains room for improving the Criminal Procedure Law, especially under the challenges of the digital age. China, alongside other nations, will focus on building a more comprehensive, robust, and globally integrated legal framework to address the forthcoming issues.

Local Government in Switzerland in the Light of the Constitutional Principle of Separation of Powers

Local Government in Switzerland in the Light of the Constitutional Principle of Separation of Powers

Migration and Education in China: Determinants of the Educational Outcomes of Migrants to Beijing

This project examines the educational disparities faced by second-generation Beipiao in Beijing, with a particular focus on the challenges faced in accessing quality education and the impact of the college entrance examination system. By illustrating the role of the household registration system in maintaining these inequalities, the study highlights an important but under-explored issue in the context of China’s rapid urbanization. Through a mixed-methods research approach, combining quantitative data analysis and qualitative interviews, the study sheds light on the systemic barriers to education and social mobility for children who have “drifted north”. The study provides valuable insights into the psychological and social implications of these disparities and contributes to a deeper understanding of educational inequality in urban China. This study also explores the relationship between the household registration system and the college entrance examination. It finds that students from different household locations face different challenges and inequalities in the college entrance examination. For example, some provinces have a large candidate base but receive enrollment quotas that are much lower than their candidate numbers as a proportion of the national total. Candidates in cities such as Beijing and Shanghai have significantly better chances of gaining admission to local universities than those from other provinces, and such local protectionism in enrolment violates the constitutional principle of equal opportunity in education. In addition, the difficulty of the college entrance examination varies by region, and there are differences in educational resources and admission scores in different regions, leading to unequal educational opportunities. The study also found that household registration and residential background had a significant impact on the chances of enrolling in key universities, and that students with rural household registration were significantly less likely to enroll in key universities than students with urban household registration. These findings further confirm the complex relationship between the household registration system and the college entrance examination, and its role in exacerbating educational inequality. The study’s conclusion emphasizes the urgency of addressing the educational inequalities brought about by the household registration system (Hukou). It calls on policymakers to reassess existing policies and work together to create a more inclusive educational environment. The findings have far-reaching implications for policymakers, educators, and urban strategists, prompting them to consider ways to break down systemic constraints and unlock the potential of this generation.

Educational Equity in Schools in India: Perils & Possibilities

Abstract India is one of the most diverse nation-states in the world. After gaining independence from Britain in 1947, it adopted a constitution that was based on pluralism, secularism, and egalitarianism. This constitutional vision guided the national education policies until very recently. The current moment in all areas of public policy is being defined by the ruling party's agenda of Hindutva, or Hindu nationalism. In education, the hallmarks of this move have been a rewriting of history to glorify a mythohistoric version of the Hindu past and a call to engage with ancient Indian knowledge systems and traditions. Unfortunately, Hindu nationalism is creating growing rifts between the majority Hindu population and other groups, including Muslims, Christians, and Dalits (formerly known as “untouchables” or “outcastes”). The aim of this essay is to understand what is happening in Indian education and to consider ways to return to an engagement with the constitutional principles of pluralism, secularism, and egalitarianism.

Налоговое право как антитеза чрезвычайщине

Tax law is an antithesis of the emergency. The constitutional principles of taxation are aimed at preventing the collection of revenues, although ‘very necessary’ for the budget, but undermining economic and social stability. The amendments to the Tax Code, which allow the establishment of taxes of ‘one-time nature’ — that is, in essence, emergency taxes, — contradict the systemic foundations of fiscal activity. Tax and legal measures to respond to acute situations are necessary, but they should not be accompanied by the destruction of legal foundations. The connivance in this matter, which is observed now, is fraught with serious systemic problems in the future.