Constitutional Amendment Research Articles

Судебная система Российской Федерации в свете конституционных поправок 2014 и 2020 годов: проблемы и пути их решения

The article analyzes the content of constitutional amendments in relation to the organization of the judiciary. Specific proposals are made to create several completely independent judicial systems with their own Higher (Supreme) courts, the problems of world justice are considered (and a change in the vector of its development is proposed), and the need for bodies with judicial functions below the level of world justice is justified — in sparsely populated territories of the country. In addition, a proposal is being put forward to create a federal judicial authority with state powers similar to those of the bicameral Federal Assembly — for the legislative branch, and the Government of the Russian Federation — for the executive branch.

An Analysis of the Obligations of COMESA Public Procurement Regulations: The Case of Zimbabwe’s Public Procurement Regulatory Framework

With the coming into force of the new Constitution in 2013, public procurement was given a constitutional status in Zimbabwe. The Constitution sets out vital principles that public procurement legislation must comply with. Moreover, it is a requirement of the Constitution that the governance of Zimbabwe must be pursued in accordance with Zimbabwe’s international law obligations. Zimbabwe is a founding member of the Common Market for Eastern and Southern Africa (COMESA). To accelerate interstate trade, COMESA promulgated Public Procurement Regulations (PPR) for regional competitive bidding across member states. The viability of the regional trade agreements is hinged on mutual cooperation. Pursuant to the foregoing, member states are required to domesticate international agreements into their municipal laws. In 2017, the Zimbabwean legislature passed the Public Procurement and Disposal of Public Assets Act 5 to give effect to the provisions of section 315(1) of the Constitution (Amendment No. 20), 2013. The public procurement reform agenda in Zimbabwe occurred close to a decade after the adoption of the public procurement regulations by COMESA in 2009. This article explores the obligations imposed on Zimbabwe pursuant to the public procurement regulations. This is done by identifying the public procurement principles enumerated in public procurement regulations, which are binding on member states. This article endeavours to answer the question: To what extent does the Zimbabwean legal framework conform to public procurement regulations? This article notes that the legal framework underlying public procurement in Zimbabwe, by and large, conforms to the bar set in the public procurement regulations. Nonetheless, it highlights Zimbabwe’s public procurement shortcomings. The article concludes by making possible legislative recommendations.

Генезис законодательства об организации судов с участием присяжных заседателей в постсоветской России и проблемы обеспечения его конституционности

The article examines the process of development of legislation on the organization of jury trials in post-Soviet Russia, and also touches upon the problems of ensuring compliance of this legislation with the Constitution of the country. According to the author, as a result of constitutional amendments, before the constitutional reform of 1993, the legislator thought or assumed a wider introduction into socio-political practice of the institution of trial with the participation of jurors, and civil cases were even placed in first place by the Constitution compared to criminal cases. The Constitution of the RSFSR still supported the construction of “professional justice together with people’s assessors”, but was aimed at a major transformation of democratic forms of justice in the future.

A ‘flawless’ constitutional engineering project in Turkey: regime transformation through constitutional amendments of 2007, 2010, and 2017

ABSTRACT A functional legislature is very vital for democratisation. During the time of democratic consolidation, parliament changes from its primary roles of oversight, representation and legislation into ‘important public arenas of partisan dispute, of encounters with social topics, of negotiations and of important decision-making’. Populist leaders in parliamentary systems like Turkey recently either led to sui generis presidential systems or transformed them into illiberal democracies by expanding the executive branch's power to amend the constitution, which contradicts the favourable conditions of the third wave of democratisation at the turn of the twenty-first century. By streamlining legislative processes, the Turkish Constitution of 1982 envisaged an empowered executive that would subordinate the parliament. The three constitutional modifications passed after 2007 resulted in de-democratisation, de-parliamentarisation and eventually, a regime change from democratic consolidation to autocracy. The parliamentary debates on these constitutional amendments, which included popular presidential election, judicial reform and the so-called 'Turkish style' presidential governance system, failed to reach a consensus and were marked by an adversarial rather than deliberative approach. Have constitutional reforms made in the name of re-democratisation resulted in de-democratisation, with the legislature entirely crippled, the judiciary reliant and the executive exercising sole authority? This study aims to analyse the impact of three consequential constitutional amendments on democratic backsliding in Turkey, with special reference to the decline of parliament. Parliamentary minutes on the relevant constitutional amendments, procedural changes disabling the parliament from performing its legislative and oversight functions and the actual outcomes of these amendments in terms of executive-legislative relations will be discussed. In conclusion, potentials for strengthening parliament, checks and balances, and re-democratisation will be presented.

The Eighteenth Constitutional Amendment and the Baloch National Question in Pakistan

The passage of the eighteenth amendment bill in 2010 represented a critical milestone in Pakistan’s constitutional history. It sought to better manage the perennial federal-provincial tensions by restructuring the country’s constitutional framework to assuage the grievances of the ethno-regional movements opposed to the centralised state system, especially in Balochistan, where Pakistan’s territorial integrity faces its toughest challenge. Islamabad’s inflexibility in accommodating ethnic dissidence through various institutional measures has exacerbated ethnic tensions and hardened nationalist sentiments. The eighteenth amendment aimed to reverse deformations introduced during dictatorships and promote a more federal polity. More than a decade has passed since the introduction of the bill, yet the question lingers: Did the amendment achieve its intended goal of mitigating the ethnic conflict in Balochistan? This article scrutinises the current situation in Balochistan and offers a critically oriented analysis of the amendment’s impact on the province’s security scenario. It contends that the amendment fell short of its objectives because it remained silent on issues of critical import to the Baloch and failed to address the underlying issues fuelling the conflict.

RIGHT TO EDUCATION AS A HUMAN RIGHTS - CONSTITUTIONAL AND LEGAL OUTLOOK

Education is a strong foundational democratic value of continuous universal significance. It is the best platform for acquiring the skills, techniques, information and respect for the duties. The magnitude of the importance of education in life is multi-fold. Education is like the right to life as it is the mother of realizing other human rights. In the 21st Century worldwide activities are running on the wheels of education. To live a dignified life, education leads the way. The Universal Declaration of Human Rights declares that "Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory." "Parents have a prior right to choose the kind of education that shall be given to their children." The International Covenant on Economic, Social and Cultural Rights says "Primary education shall be compulsory and available free for all." The right to education has been recognized as a constitutionally protected fundamental right in India. In Unni Krishnan Case (1993), the Supreme Court declared that the ‘right to education’ is part of the right to life under Article 21 of the Constitution of India. In 2002 through the Eighty-Sixth Constitutional Amendment Act, Article 21-A was inserted. Article 21A ‘requires the state to provide free and compulsory education of all children between the ages of six and fourteen in such a manner as the state may determine’. In 2009, the Indian Parliament enacted the Right of Children to Free and Compulsory. Education Act [RTE Act]. The Act aims to provide “free and compulsory education to all children of the age of six to fourteen years. The International Human Rights Bill and Constitution of India tries its best to ensure availability, accessibility, acceptability, adaptability of the right to education. The Article seeks to highlight various provisions related to right to education in international law and domestic law along with judicial interpretation. The authors also try to highlight the features of the Right to education Act, 2009.

RIGHT TO EDUCATION AS A HUMAN RIGHTS - CONSTITUTIONAL AND LEGAL OUTLOOK

Education is a strong foundational democratic value of continuous universal significance. It is the best platform for acquiring the skills, techniques, information and respect for the duties. The magnitude of the importance of education in life is multi-fold. Education is like the right to life as it is the mother of realizing other human rights. In the 21st Century worldwide activities are running on the wheels of education. To live a dignified life, education leads the way. The Universal Declaration of Human Rights declares that "Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory." "Parents have a prior right to choose the kind of education that shall be given to their children." The International Covenant on Economic, Social and Cultural Rights says "Primary education shall be compulsory and available free for all." The right to education has been recognized as a constitutionally protected fundamental right in India. In Unni Krishnan Case (1993), the Supreme Court declared that the ‘right to education’ is part of the right to life under Article 21 of the Constitution of India. In 2002 through the Eighty-Sixth Constitutional Amendment Act, Article 21-A was inserted. Article 21A ‘requires the state to provide free and compulsory education of all children between the ages of six and fourteen in such a manner as the state may determine’. In 2009, the Indian Parliament enacted the Right of Children to Free and Compulsory. Education Act [RTE Act]. The Act aims to provide “free and compulsory education to all children of the age of six to fourteen years. The International Human Rights Bill and Constitution of India tries its best to ensure availability, accessibility, acceptability, adaptability of the right to education. The Article seeks to highlight various provisions related to right to education in international law and domestic law along with judicial interpretation. The authors also try to highlight the features of the Right to education Act, 2009.

안정과 변동

Societies are constantly changing, and legal systems are always organized in the context of those changes. Constitutions have a dual nature in the context of social change. On the one hand, it seeks to remain stable in the face of social change (stability). This helps maintain a normative and institutional core that should not be easily altered in response to social changes. On the other hand, it also aims to adapt to social changes (changeability). Constitutions themselves recognize the possibility of amendment and are open to various interpretations and applications. The two may seem contradictory, but both are essential to maintaining the normative power of a constitution.
 In some cases, however, these attributes of a constitution may be unjustifiably or unnecessarily overemphasized. For example, an overemphasis on stability during a time when the constitution should be adapting to social change can cause it to fall behind. This can include legitimate amendments or laws that fail to meet the overly stringent requirements of the amendment process or are declared unconstitutional by the constitutional court. However, changeability can become problematic as well when it is unfairly exercised. This can occur when a constitution is misinterpreted or improperly amended.
 This article examines these cases and proposes the dualization of the constitutional amendment process, eternal clauses, and the introduction of constitutional review on constitutional amendments as remedies for the problems. Although these measures are not perfect solutions, they will help preserve the rational core of constitutional stability and changeability while curbing the unwarranted exercise of each attribute.
 Although there has been considerable debate about the current constitution, the issue of revising the constitutional amendment process has received less attention. However, to improve our constitution in the future, it is essential to pay attention to the amendment process. Revising the process for amending the constitution is a crucial task in constitutional revision.

Democratic Transition or Autocratic Adjustment? Constitutional Amendments in Kazakhstan and Uzbekistan in 2022–2023

Central Asian states have recently implemented significant constitutional reforms. In the case of the authoritarian republics of Kazakhstan and Uzbekistan, the nature of the constitutional amendments, introduced in 2022 and 2023, respectively, is hard to accurately assess. On the one hand, they are a step towards democratization and strengthened guarantees of human rights and freedoms; on the other, they reinforce the current undemocratic government mechanisms. This article discusses the most recent constitutional reforms in both countries, distinguishing three main areas of change: ideology, social issues, and governance mechanisms. It is argued that these reforms generally fall within the paradigm of authoritarian constitutionalism and are an adjustment of the countries’ constitutions to the current needs of their undemocratic presidents.

Applied cratology and the political process through the prism of the scientific heritage of E. I. Kozlova

The will of the multinational people of Russia is the basis of the political process of a modern state. The values enshrined in the Constitution of the Russian Federation are a guideline for the political process, legal consolidation of goals and objectives facing the state and civil society; the basis for specific legal regulation and act as a criterion for balancing various interests. The article analyzes the creative heritage of Professor E. I. Kozlova in terms of her study of fundamental issues of the theory of democracy and various forms of its manifestation and mechanisms of implementation. Over the course of many years of her creative life, Ekaterina Ivanovna Kozlova has studied the evolution of the conceptual foundations of democracy in the Russian Federation, the quintessence of which is the will of the people. In light of the constitutional amendments of 2020 and the digitalization of state and public life, ideas, fears and judgments about the significance of the will of the people of the classics of state (constitutional) law take on a new meaning. The institutionalization of the political process and its legal concept is the basis of the modern theory of practical cratology. The author’s vision of the constitutional design of the foundations, tasks and subjects of the political process is proposed.

Pınar BEDİRHANOGLU, Çağlar DÖLEK, Funda HÜLAGÜ and Özlem KAYGUSUZ (Eds.), Turkey’s New State in the Making: Transformations in Legality, Economy, and Coercion (London, Bloomsbury Publishing, 2020)

Turkey’s political history has seen recurring shifts between democratic ideals and authoritarian tendencies, notably during the two decades of the Justice and Development Party’s (Adalet ve Kalkınma Partisi, AKP) rule. This transition marked a departure from a relatively democratic façade that emerged in response to the European Union (EU) accession process towards a more authoritarian regime characterized by increased government control and curtailment of civil liberties. It is a shift accentuated after the 2013 Gezi protests which culminated in a significant regime change in 2018. This transformation was marked by President Recep Tayyip Erdoğan’s consolidation of power through constitutional amendments, leading to the transition from a parliamentary democracy to a presidential system. To comprehend this transformation, it is imperative to examine the interplay between economic dynamics and the state within the neo-liberal capitalist system, aligning with Poulantzas’ observations on global trends. It can be argued that the accumulation and state crises, exacerbated by the 2008 global economic crisis, have contributed to Turkey’s authoritarian shift in parallel with global developments.

The Brazilian Tax Reform: Potential Impacts to the Financial Sector

The Brazilian tax system, known for its complexity, underwent a major change with the approval of Constitutional Amendment Proposal 45 (PEC 45), which was converted into Constitutional Amendment 132 (EC 132) on 20 December 2023. EC 132 aims to simplify the existing tax framework by consolidating five taxes into two – the CBS (contribuição sobre bens e serviços) and IBS (imposto sobre bens e serviços). However, the changes brought by the new system pose challenges, especially for the financial sector, which has, until now, benefited from special tax regimes given the uniqueness of financial transactions, not properly framed by the goals of the most typical VATs. This paper explores the current Brazilian tax system, EC 132’s changes, and their potential impact on the financial sector, focusing on the levy of VATs on financial transactions. Considering that alternatives for the VAT taxation were discussed, the National Congress, as the party responsible for regulating the new tax regime of financial institutions, still has the responsibility of bringing a balanced approach to the issue, noticing the corresponding complexities of the application of the VAT on margin transactions and the broader economic implications, especially to the cost of credit in Brazil.

Balancing Justice in Pixels: Legal and Constitutional Implications of Virtual Court Sessions in Ghana

The legal sector is experiencing a transformative shift towards the adoption of virtual court sessions to enhance efficiency, accessibility, and transparency within judicial systems. However, this paradigm shift is not without its challenges. This research examined the implementation of virtual court sessions in Ghana, focusing on the legal and constitutional implications of the Practice Direction issued by the Chief Justice. While digitalization of court proceedings holds promise, concerns regarding privacy, technological disparities, and the preservation of due process rights loom large. The research drew on a recent case of Law to affirm that administrative/practice directives fall outside the purview of Laws of Ghana. The study employed the Innovation Diffusion Theory as the lens for analyzing and proposing a solution framework to sustain virtual court systems in Ghana. The findings of the study included the implementation strategy incompatibility of virtual court hearing with the existing legal framework for observing due process and the fundamental rights of citizens. The solutions require a balanced approach that acknowledges the strengths of both the traditional court system and technology. To sustain virtual court hearing, strategies for addressing implementation and legitimacy concerns, enhancing the compatibility of virtual court technology security with existing legal framework and practices, and ensuring long-term adherence to constitutional requirements should be paramount. Substantive law and regulation including relevant constitutional amendments may be necessary to ensure smooth implementation. Keywords: e-Justice system, Implementation, Virtual Court Sessions, Practice Direction, Due Process, Proceedings, Ghana.

Political vigilantism in Ghana: Motives, membership, and financing

AbstractThis comprehensive study of political vigilantism in Ghana examines the motives, membership, and financing of the phenomenon and proffers solutions to combat it. We use a qualitative methodology of personal interviews with a broad section of Ghanaian political stakeholders totaling 50 participants. This included 30 political vigilante members equally affiliated with the New Patriotic Party and the National Democratic Congress and selected from the vigilante hotbeds of the Northern, Upper East, and Ashanti regions of Ghana. The other political stakeholders total 20 and are made up of: five public political party executives, five civil society members, five police officers, and five local district assembly members. The motives include institutional weakness, winning political power, and economic and group solidarity. Membership involves family and friends, former security personnel, party members, and unemployed youth. Financing emanates from political parties, politicians, and the business class. We argue that patron–clientelism is the driving force behind political vigilantism and recommend more legal accountability for patrons, particularly through constitutional amendments guaranteeing a fixed term for the head of the police and separating the roles of Attorney General and Minister of Justice. This is to ensure that the former can impartially prosecute vigilante patrons. Punitive financial measures are also recommended to deter patrons, backed by sustained public education and more employment opportunities for the masses of unemployed youth—the bedrock of political vigilantism.Related ArticlesAkwei, Cynthia, Isaac S. Damoah, and Joseph Amankwah‐Amoah. 2020. “The Effects of Politics on the Implementation of Government Programs/Projects: Insights from a Developing Economy.” Politics & Policy 48(6): 1161–201. https://doi.org/10.1111/polp.12384.Asiegbu, Martin F., Okey Marcellus Ikeanyibe, Pius Otu Abang, Okwudili Chukwuma Nwosu, and Chuka Eugene Ugwu. 2024. “Natural Resource Fund Governance and the Institutionalization of Rent Seeking in Nigeria's Oil Sector.” Politics & Policy 52(1): Early View. https://doi.org/10.1111/polp.12579.Debrah, Emmanuel. 2016. “Decentralization, District Chief Executives, and District Assemblies in Ghana's Fourth Republic.” Politics & Policy 44 (1): 135–64. https://doi.org/10.1111/polp.12146.

When Should Courts Invalidate Constitutional Amendments?

Abstract Courts having the ability to invalidate procedurally correct constitutional amendments for violating core democratic or constitutional values is a growing practice in global constitutionalism. However, this power is generally exercised by courts on a whim and very often without any textual basis. Such actions raise serious legitimacy concerns and can undermine efforts towards regular constitutional change. In extreme cases, this power has been wielded by courts in ways that contribute to democratic backsliding rather than its prevention. Few solutions to police this power of courts and prevent net negatives exist. These solutions either fall short of addressing the challenges of courts invalidating procedurally correct constitutional amendments or rely heavily on judges’ restraint and good faith, qualities which we struggle to see in many jurisdictions where courts exercise this power. In turn, this article outlines a template for courts to use when evaluating the validity of procedurally correct constitutional amendments. This article’s suggested template hopes to prevent courts from misusing their powers while still leaving sufficient room for them to act to prevent threats to a polity’s democratic and/or constitutional project. It aims to do so by reducing the subjective discretion available to judges relative to other available templates.

The consensus-clarifying role of deliberative mini-publics in constitutional amendment: A reply to Oran Doyle and Rachael Walsh

Abstract Oran Doyle and Rachael Walsh’s article “Constitutional Amendment and Public Will Formation: Deliberative Mini-Publics as a Tool for Consensus Democracy” is a welcome addition to the literature on Ireland’s efforts to integrate deliberative citizen-involved structures into its constitutional amendment process. We agree that the Citizens’ Assembly on abortion played a role in shaping the legal position that ultimately emerged in Irish law; we disagree, however, with the authors’ account of how that occurred. In particular, we do not believe the Irish experience supports the claim that deliberative mini-publics help to build the consensus for constitutional amendment. On the contrary, on each occasion where amendment processes incorporating a deliberative element have succeeded in Ireland, there has been clear evidence of an enduring pre-existing public consensus over the core of the amendment proposed. We suggest that the potential value of deliberative mini-publics might more accurately be seen as one of consensus-clarifying rather than consensus-building. While a mini-public may be unlikely to create a novel constitutional consensus, it can have a significant—potentially causal—role in converting a general and disparate desire for change into a specific form. That, in our view, is what occurred with the repeal and replacement of Ireland’s constitutional position on abortion. We argue that a careful analysis of the process provides tangible evidence that the Assembly affected the outcome in clear and specific ways: its significant impact was not in creating a constitutional consensus that had previously been absent, but rather, we argue, in putting on the agenda, and coalescing support around, a specific form of legal change.

Assessing the influence and legitimacy of citizen deliberation on abortion: A rejoinder to Eoin Carolan and Seána Glennon

Abstract This article responds to the two key arguments presented by Eoin Carolan and Seána Glennon in their reply to our article: that the Citizens’ Assembly on abortion had a “consensus-clarifying” function rather than a “consensus-building” function in respect of the Irish constitutional amendment on abortion in 2018; and that participation in deliberative mini-publics should be compulsory, like jury service. We argue that the distinction drawn by Carolan and Glennon does not assist in understanding constitutional amendment processes, as the consensus required for a constitutional amendment must be fully formed, in respect of a specific amendment. We contend that the Irish Citizens’ Assembly assisted the formulation of that consensus in respect of abortion reform in Ireland. We argue that compulsory participation risks distorting the discursive environment that is essential to an effective and legitimate deliberative mini-public, and could fail to ensure the desired representativeness if exceptions to participation were allowed in certain circumstances.

Informal Concentration of Powers in Illiberal Constitutionalism: The Case of Hungary

Classic and new concepts of the separation of powers doctrine focus on the control of central political power. Institutional checks and balances are classic legal instruments of this control, especially the activity of independent state organs. In those countries where the political system is dominated by a populist government, the institutional checks and balances and independent institutions are under constant pressure. In a consolidated political system that has already departed from liberal constitutionalism and where constitutional institutions do function only in a formal sense (illiberal constitutionalism), institutional checks and balances lose their significance. However, in addition to the exercise of powers by independent branches of government, other legal institutions or actions can also have a significant impact on relations between branches of government, even informally. Therefore, the system of checks and balances can be described as a multi-layered structure with formal (classical) and informal elements. The article analyses in detail, how the use of informal constitutional amendments and national referendums—as additional institutions belonging to the complex system of separation of powers—instead of controlling the central political power, has contributed to the informal concentration of government power in Hungary in recent years.

Autocratic Democracy and the Deficit of Human Rights in Nigeria’s Fourth Republic

This article reviews secondary data on Nigeria’s Fourth Republic and finds that successive administrations in the Republic have not fared better in safeguarding human rights than the military regimes that ruled the country in the pre-1999 period. It ascribes the reason for the human rights situation in the country to the autocratic nature of democracy in the Republic. It further locates autocracy in the Republic to flaws in the 1999 Constitution, flawed electoral processes, and elitism. The article recommends constitutional amendment and strict adherence to the principle of the rule of law to promote human rights in the Republic.

Analysis of Legal and Practical Aspects of the Vetting Process

Albania’s quest for accession to the European Union necessitates sweeping judicial reforms, with a primary focus on bolstering the judiciary’s independence, accountability, and professionalism. Collaborative endeavors with the Venice Commission underscore Albania’s unwavering commitment to this transformative process. At the heart of this reform agenda lie constitutional amendments and legislative enactments, prominently among them being the law governing the re-evaluation of judges and prosecutors. This legislative framework facilitates the establishment of innovative judicial institutions. The inception of the “vetting process” in 2018 marks a pivotal mechanism aimed at combating corruption and fostering public confidence in a fair and impartial judicial system. The evaluative criteria encompass the disclosure of wealth, professional competence, and public image. This analysis critically examines the operations of the Independent Qualification Commission and the Special Appeals Panel, scrutinizing their investigative, administrative, and decision-making processes within the framework of the vetting law. Of particular interest is the examination of auxiliary bodies, notably the Public Commissioner and the International Monitoring Body, as key entities tasked with ensuring transparency and impartiality in the vetting process. Recognizing the vetting process as a transformative, albeit non-panacea, initiative underscores its historical significance. While acknowledging short-term repercussions, such as the suspension of the Constitutional Court, as sacrifices in the pursuit of upholding the rule of law, the overarching objective is to establish a robust and qualitatively sound justice system. This paper aims to contribute to scholarly discourse by offering a comprehensive examination of the vetting process in Albania and its implications for judicial reform, the rule of law, and the country’s European integration aspirations.