Constitutional Research Articles

The end of Fianna Fáil's Ireland: drifting in an ‘unmoored’ political system*

ABSTRACT This essay investigates and describes the political regime that dominated much of Irish political life in the twentieth century. It was marked by the rise, and eventual fall, of Fianna Fáil as the nation's government party. It charts the creation of the Fianna Fáil regime – the building of a government party to manage a state deliberately cast in its own terms – and then identifies and explores the long decade that saw the slow collapse of both. In the aftermath, the fragmentation of national political competition, and the challenges to the constitutional framework, have left a political regime bereft of the party and constitutional frames that long defined its core political moorings.

Reflections about the animal protection in Colombia

This article seeks to analyze the protection of animals from the different currents of thought that develop the relationship between human beings and sentient beings, such as anthropocentric, biocentric and other visions that seek recognition of the rights of animals. animals. From the immersion of these visions, some jurisprudential discussions will be exposed that intend to open the borders of the constitutional mechanisms established in the Political Constitution of 1991, such as the unconstitutional public action, tutelage action, popular action and habeas corpus, which from the judicial decision will seek to promote a constitutional debate in progress to gradually guarantee the recognition of animals in the Law as subjects of special protection.

Sieyès’s idea of constituent power: a moderate and illiberal idea of sovereignty in the French revolution

ABSTRACT Moderation and liberalism are different and in some cases antagonistic concepts. In recent years, the view that Sieyès’s idea of constituent power is a moderate and liberal rendering of sovereignty has gained acceptance in intellectual history and constitutional theory literature. This claim is based on the premise that radical and illiberal readers of Rousseau’s idea of sovereignty, such as Robespierre and the Jacobins, were opposed to representing the general will (volonté générale). Thus, constituent power as the exercise of power by extraordinary representatives to draft a constitution would be a liberal attempt at political moderation in the French revolution. In contrast to this liberal reading, my analysis shows that Sieyès’s idea of constituent power is an illiberal attempt at political moderation. Against moderate liberal theories, constituent power demands that the extraordinary representatives of the constituent assembly must will, deliberate, and act as if they were the people themselves. These representatives have absolute powers and the mandate to create a constitution but also the imperative to perceive and mirror the sovereign will. From a political theory approach, I conclude that constituent power is not a liberal idea but a key notion of moderate illiberalism that prevailed during the French Revolution.

Going back to the drawing board: The picture of family support in European constitutions

This paper aims to explore the extent in which contemporary constitutional concepts of the family influence the recognition of the importance and the implementation of family support in European context. The authors start from the premise that constitutions lay the foundation for national legislation and policy, at the same time indicating a state's recognition of internationally agreed standards in a given field. Considering family support as a human right, the authors reflect on the meaning of constitutional protection vis a vis policies and practices of providing support to children and families and look into family related constitutional provisions of various European countries. Building upon the work of the European Family Support Network – COST Action 18123, the key elements of constitutional protection of families are identified, having a direct effect on the conceptualization and delivery of family support. In conclusion, considering the place and significance afforded to family support in national constitutions, the paper offers a classification of constitutions in that respect and evaluates the implications of constitutional regulation on family support policies.

Подозреваемый, обвиняемый — возможно ли поставить знак равенства в современном досудебном производстве?

The relevance of the study of the procedural position of a person subject to criminal prosecution by pre-trial investigation authorities is caused by the fact that in accordance with Ruling of the Constitutional Court of the Russian Federation No. 11-П of June 27, 2000, on the Verification of the Constitutional Nature of the Provisions of Part 1 Article 47 and Part 2 Article 51 of the Criminal Procedure Code of the RSFSR and in View of the Complaint Filed by Mr. V.I. Maslov, the start of such investigation is related to carrying out investigative and other procedural actions against a specific person upon the receipt of a crime report or notice by the law enforcement authority. Even if such person has not obtained the suspect status yet. However, such person obtains the legal status of a convict upon lodging of charges, which often takes place only upon termination of criminal case investigation in the form of pre-trial proceedings, or upon preparation of the final procedural document (letter of accusation, bill of indictment) by an interrogator if cases are investigated in the interrogation form and the summary interrogation form with some exceptions. The criminal procedure theory is now lacking a consolidated position with regard to the suspect/convict correlation. Along with the traditional approach towards the evaluation of arraignment as a guarantee of rights, freedoms and legal interests of a person subject to criminal prosecution, the position that the institution of arraignment has long lost its initial function and is almost the same as the suspect institution and thus requires a fundamental review has started to gain more and more supporters.

Planetary health values and their implications for sustainability governance: Case study in the City of Blue Mountains, Australia

Planetary health asserts that human health is contingent on the health of ecosystems. While the field has grown significantly since 2015, no known research has tested the expediency of planetary health as an applied values framework in local sustainability governance. This article seeks to address this gap by answering: how useful is planetary health for understanding the way citizens value nature and how nature shapes their health and wellbeing? What are the implications for using planetary health as a sustainability governance framing? Blue Mountains City Council is arguably the first local government globally to adopt a planetary health approach to its strategic framing of sustainability. This makes the Blue Mountains, Australia, an internationally relevant case study for contributing original knowledge about the usefulness of planetary health for sustainability governance. Through this case study, I undertook a face-to-face survey (n = 85) in March and April 2022 with Blue Mountains residents on their values associated with planetary health. I used the IPBES Assessment for Diverse Values of Nature as the basis for thematic analysis of the survey data. The article presents a first outline of residents’ planetary health values. Planetary health was found to be an effective means of understanding diverse nature-health values. Local governments can consider using planetary health in its strategic planning, outcomes monitoring and financial reporting. Future research can consider how planetary health values are prioritised in respect to other values framings and improve knowledge of planetary health by understanding of how people with diverse life experiences value nature-health relationships.

POPULAR CONSULTATION IN MEXICO

The aim of this work is to analyze the shift from a representative democracy to a participatory democracy, allowing citizens to have a greater involvement in decisions corresponding to the State through mechanisms such as the popular consultation. Additionally, the constitutional framework and secondary laws are examined to scrutinize the arguments put forth by the Supreme Court of Justice of the Nation, as well as by legislators, regarding the popular consultation. Key arguments linked to various articles, particularly those related to Human Rights, established in the Political Constitution of the United Mexican States, are unraveled in the cited examples of attempts to carry out the popular consultation, concerning issues such as the energy sector, political matters, or labor. In conclusion, this inquiry addresses the legal complexity for the first-time implementation of the constitutional framework of the popular consultation, reflections that contribute to a better understanding of the background and current situation of this participatory democracy mechanism in Mexico.

თანაზომიერების პრინციპის თეორიული და პრაქტიკული ასპექტები (ქართული და გერმანული სამართლის მიხედვით)

The principle of proportionality brings governmental activities into a strict constitutional and legal framework and thereby contributes to the adequate balancing of basic human rights and public legitimate goals set by the state. In the current edition of the Constitution of Georgia, specifically, in paragraph 3 of Article 34, it is explicitly stated that the limitation of the basic human rights must correspond to the importance of the legitimate goal that it serves to achieve. The dogmatics and practice of the principle of proportionality have been developed in German law since the 50s of the 20th century and spread throughout the continental European legal system. In the present situation, the constitutional courts consider the principle of proportionality as a universal constitutional principle and evaluate the justification for limiting the basic rights based on the established practice. However, there is no unambiguous and doctrinal discussion-free approach to the individual components of the principle of proportionality, especially where the line is drawn between the scope of the legislative view and the constitutional requirement of proportionality. The principle of proportionality and its proper articulation in practice represents a crucial achievement, although it is necessary to adequately understand its dogmatic nature in order to avoid separate theoretical or practical objections regarding this issue. Key words: the principle of proportionality, legitimate purpose, utility, necessity, proportionality in the narrow senses.

The Role of Social Services in Realising Children’s Rights in and through Education

Section 28(1)(c) of the South African Constitution (1996) unequivocally affirms that children are the only vulnerable group with an explicit right to social services. Nonetheless, the practical realisation of this right remains elusive for many children, leaving them without access to vital social services. Through the theoretical framework of transformative constitutionalism, this article posits that the evolving field of social services provision within school settings presents a promising avenue to champion children’s right to social services and a range of other children’s rights, and facilitate and promote their access to basic education. Utilising a qualitative research approach with an exploratory case study design, this study investigates whether providing social services through a programme in Botshabelo schools in the Free State effectively promotes the realisation of children’s rights. The results show that social services in schools can contribute to realising various children’s rights. It is recommended that there should be a symbiotic partnership between the Departments of Social Development and Basic Education with the latter endorsing and expanding the provision of social services within schools. This integration is recommended on the basis that it not only advances crucial human rights for children, such as child protection, social security, and a safe environment, but also shows promise in enhancing the academic performance of learners grappling with challenging circumstances.

Who is our friend and who is our enemy? The enregisterment of tribalising digital discourse during the COVID-19 pandemic

Abstract This study demonstrates how tribalism and nationalism, exacerbated by the COVID-19 pandemic, have given rise to the enregisterment of a cultural discursive practice – dui (怼) – on Chinese social media. Based on a sample of social media posts collected through a combination of ‘noticing’ and systematic data scanning and archiving over a month, our analysis shows that dui shifted from a discursive practice of friendly teasing, a specific function that underpinned its rise of popularity prior to the onset of the pandemic, to an oppositional discursive practice characterised by wrangling, words of violence and a conversationalised journalistic discourse of refuting. We argue that COVID-19 has heightened Chinese netizens’ sensitivities towards China’s perceived friends and enemies. This politicisation, together with the associated traditional discourses of national pride and humiliation, contributed to the emergence of dui as a tribalising discourse, which in turn has further destabilised and polarised the user community on Chinese social media and beyond. The study illustrates the mutually constitutive nature of the enregisterment of discursive practices and social relationships and the importance of bringing together discourse analytical and socio-cultural perspectives in analytical terms.

Reflections on Constitutionalism and Democratic Governance in Africa

AbstractSeveral post-independence African states have opted for constitutional democracies in response to various governance challenges. Most of these constitutions espouse values of constitutionalism, such as the rule of law, human rights and citizenship. This article interrogates the concept of constitutionalism, examines its pillars and values, and reflects on how Africa's constitutions mirror them. Its thesis is that a constitutional government does not necessarily approximate constitutionalism. The article argues, with evidence, that many states possess constitutions but fall short in practising constitutionalism. It calls on these states to embark on institutional reforms and to pursue good governance that improves the living standards of their citizens.

Interruption of pregnancy in México within the framework of human rights

The Mexican State is part of the inter-American system, it safeguards the human rights of both the Political Constitution of the United Mexican States and the International Treaties, particularly in the interruption of pregnancy it protects the human rights to life, health, reproductive rights and non-discrimination. These human rights are analyzed in the resolutions of the Inter-American Court of Human Rights, the Inter-American Commission on Human Rights and the Supreme Court of Justice of the Nation, to aknowledge both the international and national interpretation, which has served as a legal basis in the interruption of pregnancy in Mexico. Based on these human rights and resolutions, ten states have legislated to allow the interruption of pregnancy, due to which the legal framework of the former Federal District (D.F.), Oaxaca, Hidalgo, Baja California, Veracruz, Colima, Sinaloa, Guerrero, Baja is studied. California Sur and Quintana Roo, highlighting that they have reformed their Penal Codes and Health Laws, standardizing most of their criteria. Likewise, a legal comparison is made at an international level to highlight differences and similarities between Mexico and other countries. This issue continues in Mexico, the states continue to discuss the interruption of pregnancy

Three Modalities of (Originalist) Fiduciary Constitutionalism

Abstract There is an ongoing body of scholarship in contemporary constitutional theory and legal history that can be labeled ‘fiduciary constitutionalism’. Some have wanted to strangle this work in its cradle, offering an argument pitched ‘against fiduciary constitutionalism’, full stop. But because there are enough different modalities of fiduciary constitutionalism—and particularly originalist varieties of it at the center of recent critiques—it is worth getting clearer about some methodological commitments of this work to help evaluate its promise and potential pitfalls. This article develops the ambitions, successes, and deficiencies of three modalities of historical and originalist argument that link American constitutionalism with the law and theory that constrains those with especial discretion and control over the legal and practical resources of beneficiaries known as fiduciary governance. Probing primary and secondary research in fiduciary constitutionalism can help show its value and limitations for legal historians and constitutional theorists alike.

EU constitutional dismantling through strategic informalisation: Soft readmission governance as concerted dis‐integration

AbstractThis contribution takes issue with what I have called the ‘constitutional dismantling’ of external migration policy through the tactical informalisation of readmission cooperation. It maps out the strategic use of soft law mediating the tacit approval or active involvement of the main EU actors. The strategy is supposed to enhance policy outcomes but is at the expense of foundational principles. The principles of conferral, institutional balance, and sincere/loyal cooperation impose key constraints on EU/Member State action that the choice for soft law ignores. My main contention is that this is not an unintended consequence, but a deliberate or, at least, tolerated result, amounting to a form of ‘concerted dis‐integration’ pursued by the very actors supposed to guard the EU integration project in line with Treaty provisions. The approach denotes the instrumentalisation of legal mechanisms for the advancement of policy objectives, embracing a regulation‐without‐legitimation paradigm that unravels the EU’s constitutional framework.

Sharia and Human Rights Law in the Constitutional Framework of Gulf States

ABSTRACT: The present article discusses the extent to which the Sharia and human rights are intermingled in the constitutional architecture of Gulf countries, focusing on two main questions: first, the extent to which the constitutional references to the Sharia in Gulf Cooperation Council (GCC) Constitutions coexist—or can coexist—harmoniously with constitutional liberties. Secondly, the extent to which the Sharia plays a role in the interpretation of human rights by judicial entities, and whether such interpretation is in line with international human rights standards. Drawing primarily on the jurisprudence of the Kuwaiti Constitutional Court (including the female Members of Parliament hijab case, the passport retention case, the Ramadan eating ban, and the more recent case on the prohibition of “imitating the opposite sex,” the article suggests that judicial entities in GCC states should strive to align themselves better with their obligations stemming from human rights treaties, especially in relation to the principle of non-discrimination. It further argues that the richness and flexibility of Islamic law can effectively advance the argument of universality and cultural legitimacy of human rights in a spirit of reconciliation, arguably paving the way for a functioning regional human rights body in the Arab region.

Los saberes en la medicina intercultural de la Unión Campesina del Azuay (Ecuador)

The study shows how healers from the Peasant Union of Azuay (UNASAY-E) in Ecuador, faced with the needs of today's world, raise the need to continue training; and they make known their vision of what knowledge they require to care for the body, mind and spirit. The research is ethnographic and uses tools such as semi-structured interviews and focus groups. The results reveal that the knowledge inherited from generation to generation is in permanent territorial and collective construction. It also explains which resources, natural medicines and treatments are applied for healing. The investigation concludes that ancestral medicine continues to be devalued and folklorized, even though, on the one hand, it is recognized in the national Constitution and, on the other, it confers well-being to the social structure.

The prospects of litigation to secure maternal health in Nigeria: Does SERAP v Attorney-General Lagos have any value?

Blood transfusions play a crucial role in addressing obstetric complications such as post-partum haemorrhage and anaemia that contribute to maternal deaths. The right to health guaranteed by numerous international human rights instruments, national constitutions and legislation obligates governments to ensure that women have access to interventions to prevent maternal mortality. In 2020 a health policy in Lagos State, Nigeria, providing that, in the event that patients are likely to need a blood transfusion, such as pregnant women, spouses and relatives are required to donate blood as a condition for accessing maternity and health services in government-run health facilities, was the subject of a High Court ruling. The judgment declared the policy to be a breach of some human rights guaranteed by the Nigerian Constitution, legislation and international instruments that the country had ratified. Additionally, the judge noted that the policy contributed to maternal deaths. Consequent to the above, this article explores the contribution of human rights litigation and the ensuing verdicts to the protection of maternal health globally, and in light of these evaluates the value of the judgment in particular. A few national and international cases involving other countries that depict the strides that have been made in the use of human rights litigation to protect maternal health are presented to enable an appreciation of the extent to which human rights litigation has been used to support maternal mortality reduction efforts. A critical appraisal of the Lagos State court's decision with a view to determining its potential to contribute to maternal mortality reduction efforts in Nigeria and elsewhere is then embarked upon. The finding is that despite certain flaws identified in the judgment, it makes a valuable contribution to the protection of maternal health and, by extension, the reduction of maternal mortality in Nigeria.

Judicial Accountability: A Comparative Note on India and Malaysia

India and Malaysia are the countries having similar characteristics of the political system. The self-governed model of Judicial Accountability has been given impetus importance in Malaysia contrary to the Indian legal system. The Judicial Standards and Accountability Bill 2012 being a replica of the Judges Enquiry (Amendment) Bill 2005, has been pending before the Parliament for many years. On the other hand, the Malaysian legal system adopted the judicial standards way back in 1986. Inordinate delay on the part of the Indian legal system seems to be a major setback for the image of the biggest democratic country. The severe allegations against judges of the Supreme Court of India and High Courts and aborted efforts of the Parliament in ensuring judicial accountability have inspired the author to take up a comparative study of the topic. The paper starts with a cursory view of the judicial system in India and Malaysia followed by a conceptual analysis of judicial accountability. It outlines the status of judicial accountability as contemplated under the constitutional and legal framework of both countries. It concludes by identifying the similarities, dissimilarities, and best practices of both systems in the context of ideal practices required for judicial accountability.

NEED OF UNIFORM CIVIL CODE AND ITS PROSPECTIVE C]CHALLENGES

The debate surrounding the need for a Uniform Civil Code (UCC) in India is as old as the republic itself. This abstract explores the rationale for a UCC and the significant challenges it presents. A UCC is perceived as a means to foster legal uniformity, uphold principles of gender equality, and strengthen secularism in the diverse socio-religious landscape of India. The study also delves into the anticipated roadblocks that may hinder the formulation and implementation of such a code. Challenges that may hinder the implementation of a UCC include political resistance, cultural and religious sensitivities, and concerns about minority rights. The existence of a multi-religious and multicultural society complicates the adoption of a one-size-fits-all approach. Political parties often hesitate to champion the cause of a UCC, given its potential to alienate religious and community groups, which can affect electoral outcomes. Further complications arise due to the constitutional framework of India. While Article 44 of the Indian Constitution calls for the enactment of a UCC, Article 25 guarantees the freedom of religion. This juxtaposition creates legal complexities when attempting to reconcile the demands of a UCC with the constitutional rights of religious freedom. This article highlights the pressing need for a Uniform Civil Code in India to ensure gender justice and equality. However, it is vital to acknowledge the complex challenges posed by political, cultural, and religious factors that have thus far hindered its implementation. Striking a balance between these considerations and devising a UCC that respects individual freedoms and rights, while adhering to the principles of justice and equality, remains a formidable task.

Social inclusion of street vendors in Harare: Challenges and opportunities

Zimbabwe’s unending socioeconomic crisis has led to the flooding of informal street vendors in its urban areas, a development that has led to incessant clashes between the street vendors and the local authorities. Literature has shown that street vending is a global phenomenon and its problems could be addressed through best practices of inclusivity. This study examined the situation of informal street vendors in Harare in the light of social inclusion. It also made use of insights from Pope Francis regarding World Popular Movements. Data were collected through focus group discussions comprising six informal street vendors operating in Harare as its participants. Findings revealed that informal street vendors in Harare faced many structural challenges, one of which included operating in contested spaces characterised by violent evictions from vending sites, bribery and power struggles. Results also showed that street vendors lacked access to bank loans, information, and even the power to influence policies which directly affected them. Based on these findings, it was argued that the informal street vendors were socially excluded and needed to be integrated into the economic fabric of the urban society. This social inclusion process was considered as only possible if local authorities adopted an inclusive approach to policymaking. This would entail involving the street vendors when crafting policies that directly affect them. It was recommended that Harare City Council regularises street vending, aligns its by-laws to the National Constitution, and that it also formulates inclusive policies.Contribution: The article makes a contribution towards the promotion of an inclusive society whereby everyone has equal access to social and economic opportunities.