Draft Constitution Research Articles

Курдский народ в борьбе за независимость (вторая половина ХХ – начало ХХI в.) и геноцид в Иракском Курдистане

The article delves into the struggle of the people of Southern (Iraqi) Kurdistan for self-determination and the repression of the ruling regime in Iraq, which brought the Kurdish population to the brink of extermination. The issue of Southern Kurdistan in Iraq has been on the agenda for many decades. The Iraqi Kurds achieved self-government at the cost of incredible efforts. It is emphasized that the recognition of the right to territorial autonomy by the Iraqi government in 1974 was a success of the Kurdish national movement. However, the infringement of the rights of the Kurds continued. The apogee of the repressions were the events of the Iran-Iraq War of 1980–1988 and the use of chemical weapons against the population of the autonomy. In 2005, Iraq promulgated a new draft Constitution, which reflected the opinion of all ethno-confessional groups of the country – Shiites, Sunnis and Kurds: the country was declared a Federal Republic, and the Kurdish language was declared the state language on the territory of Kurdistan. Conclusion dwells upon the fact that the centuries-long struggle of the Kurds of Iraq ended with the proclamation of autonomy and the granting of democratic rights and freedoms to the population of the Kurdish Autonomous Region. And the facts reflected in the documents of international organizations on the deliberate destruction of the Kurdish minority in Iraq, especially during the years of Saddam Hussein’s rule, are obvious. An important condition for the success of the Kurdish national movement at any stage of its development is the unity of its ranks. The methodological basis of the article is the principles of historicism and objectivity. Documentary materials, personal sources, and media news data serve as the empirical basis of the study and are introduced into scientific discourse.

Young Chileans Evaluate the News in order to decide how to Vote in 2022

Based on the call for the mandatory vote of young Chileans to approve or reject the draft of a new constitution for Chile in 2022, this research explored how they informed themselves about this political process and what was their assessment of the news to make their electoral decision. An ad-hoc quantitative survey was designed, applied online in 2023, to which 183 participants between 18 and 24 years old, mostly higher education students, responded. Young people consider it very important to vote in an informed manner, they are interested in current affairs, they value the professional work of journalists and they searched for news about the constitutional process. However, for more than half of them, the news did not respond to their interests. This finding is particularly relevant, since when asked what quality news is for them, they refer to information that responds to their needs. It is likely that the news industry does not sufficiently consider this young audience, which constitutes an opportunity to get to know their interests.

Gabon: Draft Constitution

Gabon: Draft Constitution

The Surprising Survival of Constitutionalism in the Caudillo Republic of Rio Grande do Sul, Brazil, 1836–1845

Abstract The caudillo strongman remains emblematic of Latin American authoritarianism, but scholarship has seldom reflected on the semantic shifts that this concept suffered over time and its implications for the history of political thought. Numerous political experiments have been marginalized from historical and state-building narratives as the irrelevant work of caudillos, such as the short-lived Rio Grandense Republic in southern Brazil (1836–45). By explaining the Rio Grandense caudillos’ engagement with constitutionalism, this article argues that ‘caudillo’ can be a useful category of analysis if historically contextualized. The article thus reconsiders the history of political thought and state-building in Latin America and beyond in the age of revolutions, suggesting the serious need to scrutinize ‘failed’ states and revolutions. This argument is pursued in three steps. First, the article describes shifting understandings and usages of ‘caudillo’ in nineteenth-century Brazil and neighbouring River Plate states. Second, it analyses the Rio Grandense Republic’s 1842–3 constituent assembly and the novel electoral procedures it employed. Third, it examines the never-promulgated constitutional draft produced by its assemblymen. This constitutional draft is then compared to contemporary River Plate and Brazilian constitutions and its rejection is explained through the assemblymen’s divergent understandings of constitutionalism and democracy.

Незашоренные размышления в связи с внесением 22 мая 2024 г. в Государственную Думу проекта федерального конституционного закона «О Конституционном Собрании»

The proposed article discusses various scientific and legal, as well as practical and political aspects of the problem of legislative regulation of the convening of the Constitutional Assembly as the last constitutional body prescribed in the Constitution, but not yet activated, which has exclusive powers to decide on the issue of preserving the invariability of the current Constitution, drafting a new Constitution and its adoption or its submission to a national vote. The paper considers the significance and status of this institution, offers a historical excursion — previous attempts to adopt the law, substantiates the strategic nature of the Constitutional Assembly, the problem of election of its members and the popular vote on the draft of the new Constitution, analyses the correlation between the Constitutional Assembly and the State Duma, makes a proposal on how to update the Constitution of 1993, makes specific comments on the draft law submitted to the State Duma on 22 May 2024, raises the question of the possibility of an integrated approach to the drafting of the new Constitution. The article is oriented towards continuing the discussion on this issue in scientific and practical terms.

Dialogic incrementalism in deeply divided societies

Abstract A number of the world’s “deeply divided” societies are mired in violent conflicts which often grow out of historic tensions between the nation’s ethno-religious or linguistic groups. Elites within these societies tried to end these conflicts by drafting a constitution that would address the underlying grievances which fuel intergroup conflict. In many cases, however, rather than promoting peaceful political engagement, the process of constitution drafting seemed only to aggravate existing conflicts and create fresh sources of political unrest. Some deeply divided polities have avoided these worst-case outcomes by deploying an “incrementalist” approach to making constitutions. This approach asserts that deeply divided societies need not, and indeed should not, try to answer all constitutional questions. Rather, they can defer the most divisive questions for later resolution. By doing this, incrementalism focuses attention on issues over which some measure of agreement can be forged and enables constitutional ratification under fraught conditions. Critics have, however, identified two real problems with the incrementalist approach: first, once ethnopolitical elites agree to defer important questions, new developments may empower one group and allow it to stop good-faith negotiations and impose its preferred constitutional settlements. Second, the constitution’s open questions may not be resolved in a timely manner, and the lingering ambiguities can produce fresh sources of conflict. This article asks whether one can design constitution-making processes in a way that harvests the benefits of incrementalism while avoiding the problems associated with it. The article suggests that the experiences of Afghanistan and Iraq indicate that there is a particular type of constitutional incrementalism which is more likely than others to accomplish this. It describes three Afghan constitutions, each of which embraced, implicitly, the logic of incrementalism. Of these, however, only one allowed constitutional questions to be addressed in a dialogic fashion. By imposing a process of what I call “dialogic incrementalism,” Afghanistan’s 1931 Constitution helped generate a stable constitutional order. Further, the article suggests that the drafting of Iraq’s 2005 Constitution shows that dialogic incrementalism can be a conscious design option.

An Equilibrium of Education Policy by Dr. Ambedkar - A Visionary Aim with Landmark Change Over in India

His words become true, as proved by Dr. Ambedkar with his unstoppable efforts to eradicate the weeds in our country by drafting the Constitution of India and subsidizing various policies and measures. He was the one who paved the way for revolutionary moments on education in India and also believed that “Education is a key to attaining uniformity and regularity to fulfil human needs”. The major obstacles to obtaining the fruit of wisdom were rejected on the grounds of unequal practices and untouchability’s, racialism, upper and lower class people were diverged by the name of case, religion, etc., he is the one who broke up the chain of inequality by framing the “Rule of law” concept under Article 14 - Every person should be treated equally before the law, also by guaranteeing their freedom of expression under Article 19 and protect their right to live with dignity under Article 21 of Indian constitution. He worked tirelessly to provide equal access to education for all Indian people during the constitution's drafting process, free from discrimination or repression. The educational ideas of Dr. Ambedkar, and the laws that were created in accordance with his vision of an ideal society are then the subject of this research paper. Education not only educates the citizens about their rights and how to exercise them, but also about human dignity & justice. Keywords: policy, education, human rights, dignity, and justice.

Collaborative renewable development in Chile: a new path forward for the Mapuche

For years, the conflict between the Mapuche people and energy developers has persisted in Chile’s southern Biobío Region. Chile’s future as a leader in renewable development hangs on the drafting of a new law, and workable solutions are needed now more than ever. The voters decisively rejected Chile’s latest constitutional draft, which afforded Indigenous people in Chile unprecedented recognition at the price of a new governmental structure. In the midst of these political developments, Chile is shifting to develop more renewable energy. This shift will require the use of Mapuche ancestral lands and waterways, likely causing increased tensions between the Chilean government, renewable energy developers, and the Mapuche. This paper assesses the just transition approach in Chile alongside the drafting of a new constitution for the country, with particular consideration for restorative and recognition justice. We provide a comprehensive summary of Mapuche’s historic and current claims to the ancestral lands in Chile and their resistance to hydroelectric power development projects along the Biobío River. Then, we review Chilean laws and court cases dealing with hydroelectric power development projects to pinpoint energy injustice. Finally, we use the energy justice framework to propose new energy laws for Chile that will encourage needed collaboration between the Chilean government, renewable energy developers, and the Mapuche.

Reviewing the constitution-making process in Kenya: The failure of the 2005 constituent process

Abstract Kenya began its democratic era after its declaration of independence and the adoption of its first constitution in 1963. However, this supreme norm of the country would undergo countless reforms by the political elites from the very beginning, mostly to satisfy the partisan demands of the political leaders of the moment. These reforms succeeded in transforming the initially democratic model into an authoritarian, one-party system. After two decades of corruption and abuses of power, political changes in the country, and a wave of democratization after the fall of the Berlin Wall fueled the popular clamor for constitutional change. This article analyses the development of the constitution-making process, which began with the first constitutional amendments introduced to the constitution of the independence, as well as the main factors that led to the rejection of a new draft constitution in the ratification referendum held on November 21, 2005. A key element contributing to the failure of the whole process is the strong influence of political forces in the process, all using partisan methods to achieve perceived political advantages.

Constraining Constitution-Making

Whether constitution-making should be constrained has long been debated, but little is known about whether it is possible. We make several contributions to this question. We start by providing a typology of three types of constraints on constitution-making: Substantive, Procedural, and Institutional. We next develop a positive theory of when these constraints are likely to influence drafters’ behavior. We then use a mixed-methods approach to explore these ideas in the context of Chile’s constitutional reform process. In a survey experiment conducted in Chile before citizens voted on the draft constitution, we find that most respondents supported constraints in the abstract, but that they also supported a popular policy initiative—nationalizing mines—that violated these same constraints. This suggests that popular opinion may not enforce constraints on constitution-making. However, in fieldwork conducted in Chile, we found evidence that Chilean political parties did rein in constitution-makers who wanted to ignore constraints. This suggests that constitution-making constraints may be more likely to be effective when enforced by political parties.

The dilemma of constitutional mobilization: The housing and the environmental social movements at the Chilean Constitutional Convention

The dilemma of constitutional mobilization: The housing and the environmental social movements at the Chilean Constitutional Convention

IMPLEMENTATION AUTHORITY OF THE CONSTITUTIONAL COURT IN THE INDONESIAN CONSTITUTIONAL LAW SYSTEM

This study delves into the historical evolution and significance of Indonesia's Constitutional Court, focusing on its speculated super authority and independent interpretation of the Constitution. Rooted in the global context of judicial review, the research traces the court's pivotal role back to discussions during the Draft Constitution at BPUPKI and its prominence in the 1945 reform era. With the primary goal of providing a comprehensive understanding of the Constitutional Court's journey, the study sheds light on its distinctive authority and pivotal role within Indonesia's legal and constitutional framework. The research explores the court's exclusive jurisdiction, making its decisions final and binding and limiting legal recourse for dissatisfied parties. By examining the court's historical development and legal foundations, the study elucidates the Constitutional Court's role as a guardian of the constitution. The research reveals that the court's significance stems from its establishment as a constitutional guardian during the 1945 reform era, gaining prominence with the Third Amendment to the 1945 Constitution. The court's exclusive jurisdiction solidifies its position as a final arbiter in constitutional matters, shaping the legal landscape and restricting avenues for legal redress. In conclusion, the Constitutional Court has evolved into a central player in constitutional interpretation, wielding exclusive jurisdiction and serving as a final arbiter, emphasizing its unique authority and indispensable role in shaping Indonesia's legal and constitutional framework.

President of the Republic of Belarus – head or head of state?

Using linguistic and historical and legal methods, the author set out to show that the President of the Republic of Belarus is not the head of state, but the head of state. It is noted that the constitutional content of the concept of “head of state” does not significantly depend on the form of government. The issues of incorrect translation and substitution of words in аrt. 79 of the draft Constitution of the Republic of Belarus at the republican referendum on November 24, 1996. As a result, the President of the Republic of Belarus unreasonably, in addition to the will of the people, received the status of ,,Head of State”. An assessment of the consequences for the country and society of the ,,President-Head of State” union is given. It is shown that such a combination allows the President not to act, but to rule alone, which leads to the formula: ,,president” – ,,head of state” – ,,sovereign”. In conclusion, it is concluded about the monarchization of the institution of the presidency and the formation of a new atypical form of government in the country – the ,,republican elected monarchy”.

Why Not Indonesia an Islamic State? Constitutional Debate Concerning Religion-State Relation in A Muslim Majority Country

When Muslims are majority in a particular country, it is often linked to the adoption of Islam as the state official religion or Islam as the identity of the state i.e. “Islamic State.” Yet, this is not the case of Indonesia. Why did not the Indonesian constitutional drafters declare Indonesia as an Islamic state or at least recognize Islam as the state official religion in the first Constitution despite the fact that Indonesia is a Muslim majority country? What explains the above fact? This paper aims to answer these two important questions by employing two constitutional law approaches: constitutional history and constitutional deferral. Constitutional history aims to understand the original intentions of the framers of the first Constitution through studying the minutes of the 1st Constitution. Constitutional deferral concept is used to explain the formulation of state-religion relation in the provisions of the first Constitution. This paper argues the fact that the constitutional drafters did not expressly state Islam as the state official religion in the Constitution did not mean that they overlooked to discuss such an important topic, rather because they had diverse views on how to include religion-state relation in the constitution. The sharp ideological difference among constitutional drafters is likely the cause of the adoption of constitutional deferral -a method of drafting constitutional through somewhat general and abstract provisions. The use of constitutional deferral is favorable because it opens more opportunity among constitutional drafters to achieve consensus and get things done. In practice, Indonesia is not a country officially based on Islam, but substantially Islamic values live in Indonesia. This article contributes to the study of the relationship between state and religion in Indonesia, regarding the current and future background and dialectics.

Feminists for a new Constitution in Chile: forging progressive alliances in times of crisis

This article explores the impact and influence of the feminist movement in Chile on the draft of feminist progressive ideas in the Constitutional process of 2021, emerging as a consequence of the social uprising of 2019. Central to this analysis is the pivotal role played by what I term ‘feminists-in-movement’ and ‘feminists-in-power’, delineating the common narratives between grassroots feminist organisations and those individuals advocating within formal political structures, such as political parties and governmental bodies. While the Constitutional draft embodied numerous feminist perspectives, this article focuses on elucidating the feminist political influence by analysing two key proposals included in the 2021 Constitutional draft: care rights and gender-focused politics. The proposals serve as exemplars illustrating the power of political collaboration in pushing progressive agendas during societal upheaval. By dissecting these proposals, this article underlines the significance of forging alliances between different feminist factions, underscoring their collective ability to advance transformative policies during moments of crisis.

The role of the Act of 5 November 1916 in starting the process of rebuilding Polish statehood

The following text is devoted to the issues of the fate of Polish lands being decided during World War I. Above all it discusses the Act of 5 November 1916 issued by two of the partitioning powers – the Second German Reich and Austria-Hungary – and assesses its role in the future revival of Polish statehood. This legal act led to the establishing of semi-sovereign central Polish administration bodies, which prepared a draft constitution for the future state (monarchist), a draft electoral law for the Sejm, and took many steps to establish local Polish authorities, the judiciary, and the education system. The authors analyse the establishment of the two main central bodies under the auspices of Germany and Austria-Hungary (the Provisional Council of State, and the Regency Council), describe the monarchist project of the Polish constitution created thanks to the Provisional Council of State, and the electoral law designed at that time. They also question to what extent the acts of 5 November can be associated with the concept of “Mitteleuropa” – the creation of an economic and political union in Central and Eastern Europe of states that were to function under strict German control. This concept, created in the second half of the 19th century, was redefined during World War I. The historical-legal method was used in work on this article, supplemented with the dogmatic-legal and comparative methods.

Political culture and attitudes of economic elites: explaining the Chilean business community’s rejection to constitutional change

AbstractIn contexts of institutional crisis, conflicts arise in which different pressure groups try to maximize their influence, seeking to adjust a political reality in line with their own interest. This article analyzes the changes in the attitudes of economic elites regarding the process of drafting of a new Constitution in Chile. Based on the literature on the political culture of entrepreneurs, the research hypothesis posed in this study suggests the existence of a widespread conservative attitude within this social group regarding a change in institutional rules. This mainly relates to the perception that a new Constitution in Chile could threaten its predominant place in the distribution of economic and political power. The results obtained after analyzing in-depth interviews with presidents or vice presidents of the main business organizations in the country show changing positions throughout the different stages of the constituent process. Even though some attitudinal changes towards an adaptation become visible, what ultimately prevails is an unmitigated rejection of the constituent process. These findings clearly suggest a return to the initial stances of most entrepreneurs, something that also happened in the elite examined as well as in the rest of Chilean society. Thus, one can speak about a sort of “boomerang effect”: the attitudes of rejection have once again dominated the space of discursive expression where the pressure exerted by public opinion seemed to pave the way for a certain reformism or a transforming reaction. This evidence confirms a disconnection found in the literature which reveals the dynamic nature of short-term attitudes linked to each specific situation, albeit with more stable values and positions specific to the political culture which exist on a more persistent basis.

Centenary Paper: The First Spanish Constitution Draft: The ‘Constitutional Laws’ of Manuel de Aguirre (1786)

In 1786 the Basque thinker and military man Manuel de Aguirre entered a competition for ideas on how to improve national legislation in order to achieve public happiness. His proposal consisted in drawing up the draft of the first Spanish constitution. It was a very basic project, but it showed how part of the Spanish Enlightenment was interested in reforming the Enlightenment despotism of Charles III and replacing it with a representative government, in which the king still had important powers, though these were limited by bodies of a representative nature.

Ethnic politics and party realignment in African constitutional referendums: Understanding Kenya’s ‘industry of insults’

Abstract Kenya’s constitutional referendums in 2005 and 2010 stand out for their continuity with the national elections that followed both polls. During campaigns for and against the draft constitutions, politicians attempted to leverage their popularity amongst co-ethnics to signal their viability as coalition partners or ‘formateurs’ in subsequent general elections: rather than nuanced debates on constitutional issues, the campaigns became personal contests that one observer dubbed an ‘industry of insults’. A decade later, this process was repeated as the country’s political class considered further revisions to the constitution. Kenya’s referendum campaigns thus reflect a layer of strategic behaviour that has not been recognized in much of the contemporary literature on democratization and constitutional change in Africa. While the substance of the country’s constitution matters to Kenyan elites, referendum campaigns have added value to leaders independently of the outcomes of the polls themselves. The prominence of ethnicity as an organizing feature in Kenyan politics combined with high levels of party volatility produces an environment in which referendum campaigns serve as opportunities for Kenyan politicians to renegotiate political coalitions and realign party politics in between election cycles. In this way, the country’s referendum politics are a distinct byproduct of its historical and political circumstances.

Navigating Spaces of Everyday Peace and Violence: Societal Protest, Care, and Solidarity in Post-18O Chile

ABSTRACT Social justice protests that began on 18 October 2019 in Chile were greeted enthusiastically around the globe. The mobilisation ‘woke up’ society and contributed to the collective drafting of a new constitution for the country. Building on ethnographic insights gathered in January–February 2020, this paper analyses forms of violence together with relations of care and solidarity that emerged within the mobilisation. It walks the reader through central Santiago de Chile and discusses the praxis of conducting research in a non-war conflict site, embedded in relations of claiming space (both figuratively and concretely) and creating practices that contribute to greater social justice. Simultaneously, they are enmeshed with manifold forms of violence that need to be addressed for peace to become possible. This paper seeks to contribute to debates on the entangled forms of everyday peace and violence, drawing on feminist research and connecting these with critical geographies of peace.