Constitutional Commitment Research Articles

June–September 2021

Though public policy continued to be dominated by the COVID-19 pandemic, restrictions began to ease as the vaccine rollout progressed. The volume of secondary legislation barely slackened, however, and the lack of parliamentary scrutiny was a cause of concern both to academic commentators and to parliamentarians. On 10 June, the House of Lords Constitution Committee published its third and final report on the constitutional implications of coronavirus and was clearly very unhappy with the course of events: ‘The Government has introduced a large volume of new legislation, much of it transforming everyday life and introducing unprecedented restrictions on ordinary activities. Yet parliamentary oversight of these significant policy decisions has been extremely limited.’

Land Property Regime According to the Vidovdan Constitution and the Agrarian Question in the Kingdom of Serbs, Croats and Slovenes

Тhe paper discusses the attitudes of political parties on land property regimes in the context of the agrarian issue, and dynamics of the debate on this matter in the Constitutional Committee and in the Constituent National Assembly of the Kingdom of Serbs, Croats and Slovenes. The very notion of “agrarian question” concerns specifically small peasant landholdings in the process of development of capitalism. This question was raised in the context of the debate on socio-economic problems that were invited by, and eventually, introduced into the Constitution of the Kingdom of Serbs, Croats and Slovenes (Vidovdan Constitution, 1921) under the pressure of progressive opposition parties and parts of the ruling political organizations.

The Soviet Federation and the principles of its construction in the context of constitutional discussions of 1918

The Bolsheviks, alongside their mentors K. Marx and F. Engels, were staunch opponents of the federal structure. However, the political goals of the revolutionary party were put at the forefront; thus, V. I. Lenin viewed federation as the method for uniting the proletariat into a single union. The leader of the revolution developed the forms of structurization of this union on multinational basis throughout his entire creative life. The article traces the evolution of V. I. Lenin's representations of the state structure of Soviet Russia – from the unitary centralized state to the federation of free nations. Such political and legal views on the Soviet federation underlines the development of the constitutional doctrine of the Soviet State. However, the constitutional commission of the All-Russian Central Executive Committee did not reach a common ground on which type of federation should be built on the territory of the former Russian Empire, thereby offering different projects of federal structure. The author describes the reflection of Lenin’s ideas on the Soviet federation in perception of majority of the members of the constitutional commission, as well as the corresponding political projects.

Socialist idea and methods of constitutional implementation in 1918

This article demonstrates that socialism was the key political concept for the nascent Soviet constitutionalism. The matter is that the political-legal ideas of V. I. Lenin underlied the ideology of Bolshevism, which became the basis of the entire legal system of the Soviet state. The author traces the evolution of socialist ideas and their reception by the Russian social democracy. In the Bolshevik party, the idea of a socialist society has acquired rather utopian and radical forms than the initial European model. This was associated with the fact that socioeconomic, political and cultural conditions dictated certain framework for the implementation of socialism. The Communist Party had to establish the socialist principles and fundamentals of the Soviet society on the constitutional level. This led to robust debates on the issue in the constitutional commission. The discourse that emerged due to the adoption of the Constitution of the RSFSR of 1918 is poorly reflected in the scientific publications; therefore, the author provides brief biographical data of the key members of the constitutional commission. This allows correlating the political-legal ideas with the historical and personal contexts. It is worth noting that such concepts as “socialist society”, “association” and “union” underlie the comprehension of the essence of state and law. This served as the basis for further discussion of the goals and objectives of the councils, first steps, as well as rights and responsibilities of citizens.

Constitutional Democracy and Electoral Commissions: A Reflection from Asia

This symposium explores the role of “fourth branch” institutions, and specifically the role of independent electoral commissions (IECs) in protecting and promoting constitutional democracy. It does so by focusing on the global South, and Asia in particular. It aims to go beyond the “usual suspects” in comparative constitutional law, and put the constitutional experiences of countries such as Indonesia, Kenya, Myanmar, Malaysia, and Sri Lanka at the centre of a decolonized constitutional project and understanding, supplementing them with an examination of more-often-studied systems such as Australia and India.

The Independence, Accountability, and Effectiveness of Constitutional Commissions and Independent Offices in Kenya

One of the concerns that animated the search for a new constitution in Kenya was how to build more effective mechanisms for accountability. Towards this end, the 2010 Constitution of Kenya establishes constitutional commissions and independent offices in an attempt to dismantle and democratize the Kenyan state. This paper proceeds on the basis that what determines whether an independent institution ends up as an effective force for accountability in governance is its institutional design. The paper thus interrogates the constitutional and statutory design of the regime meant to effectuate the independence, accountability, and effectiveness of these independent institutions to determine whether they can deliver on their mandate.

Сирийский кризис (2011–2021): развитие конфликта

The author analyses the course of the conflict, the composition and the actions of the armed opposition. The methods of the media war against the Syrian Arab Republic are examined. The role of Russia in the suppression of ISIS and the political solution of the Syrian crisis is demonstrated. The academic novelty of the author’s approach is its focus on the new stage of the Syrian crisis in the years 2018–2021, i. e. after the downfall of ISIS. The internal situation in SAR, the activity of the Constitutional Committee, the Presidential elections in 2021 are examined and analyzed. The author concludes that after the defeat of ISIS and its affiliated radical Islamist groupings, the main factors of the conflict continuation are the external actors illegitimately presented in SAR and the armed groups under their control, as well as the Kurdish factor. The author maintains that the polit-ical solution of the Syrian crisis is possible after the transformation of the armed groups of the moderate opposition into a political force and under the condition of the territorial integrity and sover-eignty of Syria that would guarantee the free creed of all its confessions.

Determinants of Effective External Audits for Independent Constitutional Commissions: A Case of Teacher’s Service Commission, Kenya

Effective external auditing enables institutions to meet their financial obligations by instituting effective controls and risk management mechanism to obtain good governance. The current study established the determinants of effective external audits for independent commissions in Kenya: a case of Teachers Service Commission (TSC). The study was premised on three objectives; to determine the influence of audit technical competency, audits independence, and audit duration on effective external audits at TSC. The study adopted a descriptive research design. The study targeted all staff in the finance related departments at the Headquarter, Upper Hill-Nairobi totaling to 299. Questionnaire was distributed through purposive sampling method. The study used descriptive statistics and multiple regression analysis. Multicollinearity and heteroscedasticity were used to test the model’s reliability. The study established that technical competence, audit independence, audit duration, and ethical practices had positive relationship with effective external audits. The study concluded that external auditors adhered to quality standards, exercised good forensic skills, and provided reliable and verifiable reports. The study concluded that TSC ensured that auditors have free and unrestricted access to all financial operations and to the relevant staff at TSC. It concluded that auditors with longer duration possessed adequate experience with TSC systems. The study concluded that external auditors continuously complied with reporting procedures, made professional disclosures of auditing reports, upheld fair, and truthful representation of financial issues. The study recommends that the line Ministry should procure modern ICT external audit tools (software) that can promote efficient and faster audit service delivery including offering adequate compliance with expenditure management, fraud prevention, and detection measures. The study recommends that the commission should create conducive environment so that auditors can adequately plan their activities using auditing guidelines to ensure impartial reporting exercise free from conflict of interests. Keywords: Effective External Audits, Technical Competency, Audits Independence, Audit Duration, and Ethical Practices.

COVID-19 and the Political Economy of Shared Adjustment

By April 2021, the COVID-19 crisis in Europe had reached a magnitude that, in the eyes of some observers, either deepened lingering divides and threatened the EU’s very existence, or, conversely, forced the Union to address the fundamental flaws of its euro area and provided an opportunity to reboot. From the outset, the EU had to confront fundamental challenges that require coordination; however, decentralised coordination is best as it improves the quality of policy, economic efficiency and civic virtues. While some argue for a debt union to provide the answer to the EU’s call for shared adjustment, a solution should rather be sought in economic reform, accountability and enforcement of constitutional commitments.

Ustavotvorstvo pre 100 godina: štampa prema Vidovdanskom ustavu

In the article, published on the occasion of the 100th anniversary of the enactment of the St. Vitus Day Constitution, the author deals with one of the key institutes of this document – freedom of the press. Based on discussions in the Constitutional Committee and the plenum of the Constituent Assembly, he concludes that the provisions of the St. Vitus Day Constitution on the press were created by the autocratization of certain provisions of the Constitution of Serbia of 1903. The article especially analyzes the restrictions of the press introduced by the transitional orders of the St. Vitus Day Constitution, through circumventing censorship and incrimination of “religious or tribal discord or hatred against the state”.

TasminBradleyGlobal Perspectives on Violence against Women and GirlsZed Books, 2020, 208 p., £65.00

TasminBradleyGlobal Perspectives on Violence against Women and GirlsZed Books, 2020, 208 p., £65.00

New constitution and media freedom in Libya: journalists’ perspectives

Purpose The purpose of this study is to investigate Libyan journalists’ perspectives regarding the media laws Articles 37,132, 38 and 46, which address media freedom in the new Libyan Constitution of 2017. Design/methodology/approach Focus group discussions were done with 35 Libyan journalists, 12 of them from the Constitution Committee, while 23 of them reported the update of the constitution in the Libyan Parliament. Findings The results of the study indicated that there were media laws articles that did not conform to the international laws and United Nations treaties, which the Libyan Parliament committee approved. Another finding from the journalists was the Constitution should provide and guarantee press freedom, while media laws articles approved to put a paragraph about “censorship” in the press and media as a tool to silence government opposition. In addition, journalists indicated future constitution should redraft Article 38 to conform with Article 19 of the “International Covenant on Civil and Political Rights,” to support the “principles of freedom of expression and information” without control. Moreover, Article 46 needs to be changed and linked to the “provisions of international law on the right of information access” to improve the access and dissemination of information in the media. Practical implications Redrafting the constitution articles in the future can be summarised as follows: First, the Libyan Constitution should provide and guarantee press freedom without any censorship and include clear articles to protect journalists in conflict zones. Second, Articles 37,132 and 38, about “freedom of information and publication,” need to be redrafted to link with Article 19 of the “International Covenant on Civil and Political Rights,” to support the principles of freedom of expression and information, and the use of this right must not be subject to prior control. Third, Article 46 needs to be changed and linked to the provisions of “International law on the Right of Access to Information” to improve access and dissemination of information in the media to protect confidentiality sources. The most important articles should be implemented (freedom of information and personal information act) because after the Arab Spring revolutions, there was a transitional period in societies and a change in the constitutions of Tunisia and Egypt. They developed legal articles about media freedom so that Libya resembles other Arab countries. From that point, the journalists recommended that all information should be protected from government interference to ensure transparency, combat corruption and protect independent journalists. These articles will open the way to add more development articles to media freedom rules in the Journalists’ Syndicate. Fourth, there are also various types of threats encountered by journalists in their work. In pursuit of their right and freedom of expression, they recommended that Libya must establish an independent self-regulatory media that are free from political and economic influence. Fifth, journalists need licenses for them to work through the syndicate. The new syndicate should play an active role to safeguard the rights of journalists, activists and media entities to carry out their work and end the self-censorship. Sixth, the constitution should also add articles to end the impunity and change the articles in the penal code. Overall, the journalists covering the conflict and war are encountering threats, violence and imprisonment. As a result, Libyan journalists must seek new legislation to defend independent journalism and freedom of expression in their deeply divided country. In addition, they need to have a strong central authority to defend journalists and journalism in wartime, where journalists are regularly threatened, abducted and sometimes killed. Also, the Libyan Journalists Syndicate should stress the importance of the media’s self-regulation to guarantee their rights to freedom of expression, grant their readers’ respect and minimise government’s interference. Finally, they need to develop new laws to grant media freedom from regulations and restrictions, as well as defend and promote democracy, the citizens’ right to be informed, as well as their right to discuss and disseminate information. There is also the need to implement articles in the constitution, articles about the protection of political speech, which would be specific enough to differentiate between what is legally permitted and what may be ethically offensive. Originality/value This study will help the new Libyan parliament after the legislative elections on 24 December 2021 to amend the media laws articles in the constitution.

Beijing's Crackdown on Human Rights and the Rule of Law in Hong Kong

executive summary: This essay examines how Beijing's escalating crackdown on Hong Kong has systematically imposed authoritarian policies that undermine international human rights and the rule of law, abandoning China's commitments both to the Hong Kong people and to the international community. main argument Confidence in the "one country, two systems" model China promised Hong Kong has slowly drained away in the years since the 1997 handover. In 2019, as "one country" seemed set to gobble up "two systems" under the weight of a proposed law to allow the extradition of accused from Hong Kong to the mainland, the people of Hong Kong staged one of the world's largest ever protests to demand the autonomy, rule of law, and basic freedoms they were promised in the city's Basic Law. In the face of government indifference and aggressive police tactics, these protests morphed into a confrontation that carried on for months throughout the second half of 2019. In 2020, Beijing responded with a total crackdown, imposing a national security law that undermined the core liberal institutions that have long sustained Hong Kong. To ensure absolute control, Beijing this year amended the Basic Law to impose new rules under which electoral committees can bar from the political process anyone deemed disloyal to the Chinese Communist Party regime. The new rules create an electoral model that profoundly violates the International Covenant on Civil and Political Rights requirements applicable to Hong Kong. policy implications • International partners and organizations can play a more constructive role by focusing on meeting grassroot concerns. In this regard, recognition and support for autonomous territorial entities, such as Hong Kong, could be conditioned on adherence to relevant international and constitutional commitments to secure democratic representation, human rights, and the rule of law at the local level. • To encourage central government engagement on critical issues relating to human rights and the rule of law, diplomatic efforts ought to be multilateral, targeted, and involve clear messaging on the importance of the rule of law and international standards of human rights. • If Chinese and Hong Kong officials remain indifferent to both local and international concerns, immediate policies will need to focus on the exit and immigration concerns Hong Kong residents will face as they seek to escape the repressive conditions being imposed.

Religious institutionalism: a feminist response

People who are committed to religious freedom are generally also committed to protecting the conditions for the cultivation of religious life. Because of the deep linkages between religious belief and practice and religious institutions, it can seem natural and straightforward to move from championing religious freedom to championing religious freedom for religious institutions themselves. Members of the Supreme Court of Canada indicated their readiness to make this move in a 2015 case involving a Catholic secondary school in Quebec. In this article, I challenge the idea that according religious institutions section 2(a) protection in their own right is either a natural or a straightforward consequence of a commitment to collective religious freedom. I describe the intellectual history and characteristics of religious institutionalism and summarize the claims of its principal Canadian proponent. I then outline several ways in which religious institutionalism clashes with our basic constitutional commitments. Finally, I develop several prongs of a feminist response to religious institutionalism. I highlight the normative character of questions about the constitutional status of religious institutions, the gendered nature of the relationship between religious institutions and individual rights-holders, and the organic and dynamic features of religious institutions. I argue that we must approach institutional religious freedom claims cautiously and resist any interpretation of section 2(a) that would entrench and shield from internal resistance a singular, institutional religious voice.

English

University education enables people to have better socio-economic return, engage in critical reflection of political affairs, social practices, and inequalities which subsequently strengthens democracy. The educational opportunities for disadvantaged people help them to break the vicious cycle of poverty, marginalization, and discrimination by enabling them to improve the social and economic status. The Government of Nepal has enacted the National Higher Education (HE) Policy, but it lags ensuring equitable opportunities for the marginalized community, particularly the Dalit community. Despite the constitutional commitment to provide equitable opportunities for educational development, Dalits who comprise above 13% population have been facing multitudes of exclusion in HE opportunities. Venanzi’s social exclusion perspective has been used to analyze the underrepresentation of Dalits in HE. The ethnocentrism-historically developed ethnic perspective manifested by the National Code of Conduct of Nepal in 1854; the discursive formation-micro-stories that explained the derogatory origin of Dalits and the hegemonic discourse-subtle form of power perpetrated by non-Dalit in system implementation curtail Dalit’s equitable participation in HE. Consequently, Dalits fail to move upward to the socioeconomic status which has impacted the overall development of the country. Mass advocacy and awareness campaign to deconstruct hierarchy-based caste system, data/evidence-based gender and social inclusion policy, increased participation of Dalits in decision-making positions, exploration of caste-related issues through periodic academic research and enactment of subsequent actions, inclusion of Dalit-related issues in HE curriculum, and arranging alternative education for geographically excluded Dalit community may enable Dalits to get HE. Key words: Equity, higher education, social exclusion, historicity, Dalit.

A river of disease: Silicosis and the future of class actions in South Africa

Silicosis is an incurable lung disease caused by the inhalation of silica dust. Gold is usually found alongside silica, so goldminers are especially at risk of silicosis. Studies show that up to a quarter of career mineworkers in South Africa have contracted it. As one expert witness in the litigation put it, a ‘river of disease’ was flowing through the mines. The river metaphor also captures the meandering course of the silicosis litigation, which spanned more than a decade, its course unpredictable, joined by new tributaries and splitting into new streams of litigation along the way. It included test cases, arbitration, massed claims and eventually, a class action. The silicosis class action in South Africa not only provided the first real test for the new court-made rules governing class actions, but is one of the largest and most complex multi-class, multi-defendant, dispersed incident class actions the world has seen. The class action succeeded, culminating in a R5 billion settlement. It also provides a strong basis to consider how best class action law should develop in South Africa. This article engages with the test for certification, representation in class actions, settlements and legal fees and costs. It argues that the constitutional commitment to access to justice undergirds class actions and must inform the development of these rules. The profit incentive presented by class actions presents risks of abuse that must be addressed. The Constitution, and not the market, should determine which poor litigants get legal representation to bring class actions, and how class actions work.

The Penetration of European Banking into Ottoman Lands during the Second Half of the Nineteenth Century

We discuss the development of ‘modern’ banking in Ottoman lands during the nineteenth century. We present some evidence showing considerable local financial sophistication prior to European entry in 1856. Drawing on the ‘constitutional commitment’ literature we argue its success was related to the ability of European bankers to extend security of life and property to Ottoman decision makers. We describe the conflictual process ending around 1900, with the domination of Ottoman capital markets by European banks, particularly the Banque Imperiale Ottomane, or BIO. The conflict pitting the BIO against ethnically based local banking networks opens a different window into that epoch. Last, we consider the role of the ‘South African Gold Panic of Autumn 1895’ in London and Istanbul in bringing about this final outcome.

Powstanie i kulisy uchwalenia ustawy przechodniej z dnia 18 maja 1921 r. do Ustawy Konstytucyjnej z dnia 17 marca 1921 r. w sprawie czasowej organizacji władzy zwierzchniej Rzeczypospolitej

On February 10, 1919, the Legislative Seym met for the first session, whose main goal was to prepare a draft of the basic law for the reborn Poland. Over the next few months, in a specially created constitutional commission, work was carried out to create and submit to the Legislative Seym a draft of a new constitution. However, in order to ensure at least the basic framework for the functioning of the state, on February 20, 1919, a resolution of the Legislative Seym was passed entrusting Józef Piłsudski with the further exercise of the office of the Head of State. This resolution, commonly known as the Small Constitution, was formally in force until June 1, 1921, i.e. the day the March Constitution was announced. Despite the formal repeal of these provisions, they continued to function. In relation to the Seym, the provisions of the Small Constitution were formally in force until November 28, 1922, and in relation to the Head of State until December 14, 1922. However, due to noticing a legislative error in the Small Constitution and in the passing regulations, the provisions of the March Constitution were adopted on May 18, 1921; the Act passed to the Constitutional Act of March 17, 1921 on the temporary organization of the supreme power of the Republic, which “patched up” the incorrectly formulated provisions in the Small Constitution. The work was based on the literature on the Basic Law of 1921, draft laws and amendments presented in the Constitutional Committee, as well as on numerous shorthandings from the sessions of the Legislative Seym, the Seym of the Republic of Poland and the National Assembly.

Nadzor državne vlasti nad lokalnom samoupravom u Vidovdanskom ustavu

In the process of adopting the Vidovdan Constitution of the Kingdom of Serbs, Croats and Slovenes (1921), one of the topical issues was the form of supervision that the state government would exercise over the local self-government. In this article, the author first elaborates on the development of this constitutional document, with specific reference to the constitutional drafts proposed by the governments of Milenko Vesnić and Nikola Pašić, the amendments introduced by the Constitutional Committee, and the adoption of the constitution in the Constituent Assembly on 28 June 1921 (St. Vitus Day). The Vodovdan Constitution was the legal ground for adopting two important legislative acts in April 1922: the Law on General Administration and the Law on Regional and District Self-Governmnent. The author analyzes the constitutional and statutory provisions that regulated the legal position of state authorities in the administrative districts, counties and local self-government bodies, as well as their mutual relations. State supervision over the local self-government activities, primarily at the regional (district) level, has been observed in the context of state supervision over the administrative acts/ documents and local administrative bodies. In particular, the author focuses on the supervision over regional finances, considering not only the importance of these funds for the functioning of the regional self-government but also the restrictions which the regional government was exposed to. The aim of the research is to point out to the legal relations between the central (state) administration and local self-government in the Kingdom of Serbs, Croats and Slovenes, which were initially envisaged in the Vidovdan Constitution and subsequently instituted by the the 1922 Law on Regional and District Self-Government.

Comment on Petra Schleiter and Thomas G. Fleming: International Best Practice and the Constitution, Democracy and Rights Commission

Comment on Petra Schleiter and Thomas G. Fleming: International Best Practice and the Constitution, Democracy and Rights Commission