Constitutional Foundations Research Articles

Rząd a parlament w III Republice Francuskiej (do I wojny światowej)

The omnipotence of the parliament in the. Third Republic came about to counteract the constitutional division of authority into the legislative and executive one, and therefore could not be free from hence ensuing contradictions. This tendency was reflected by the attempts to furnish the parliament with powers relating not only to the appointment of ministers and undersecretaries (and thus to manifest its supervision over the government) but also to dissolving ministries and transfering the competence from some to others (this pertained to the very organization of the government). Thus the parliament attempted to abolish the main attribute of the executive, i. e. the right to decide about its interior organization, somas it is the case with the regulation of inner activities of the legislature (the regulations of the houses). The standpoint of the parliament resulted in such an arrangement that actually the ministries were set up and their competence determined by the president, under the political supervision of the parliament and on the condition that respective credits had been granted. The exponents of the doctrine acknowledged the right of the executive to determine about its own functions and offices, even though the praxis had no legislative background. The former right was even recognized as constitutional, since the head of the state was the main executive of the resolutions, and in consequence the competence to organize the executive, i. e. respective offices and to divide competence among them, lay with him.Moreover, in spite of the parliament’s supremacy over the government, the resolutions of the former did not predominate the governmental legislation in the form of the president’s decrees. The latter were actually adopted by ministers during the Council, or outside and independently, and next submitted to the head of the state to be signed. For, apart from the decrees which were to carry out the resolutions, there also existed independent decrees — the remnants of the government legislation (domaine règlementaire), which dated back to the limited monarchy and the traditional, horizontal division of legislature, not the vertical one, put forward by Carré de Malberg. Without any constitutional foundations and oposition on the part of the doctrine the custom of the legislative activity of the president was continued into the Third Republic, although he was provided with no legislative commission whatsoever, either explicit or implicit. The said legislative activities related mainly to the administration of colonies, the order, security, structure and functioning of the public administration — hence the autonomic decisions of the government regarding the ministries. Finally, the president — ’’the civil servant” — though effaced by the parliament, in the doctrinal terms was the ’’only agent of the state” and from time to time he could again play the role of the main political, executive leader, thwart the plans of the candidates for the office of the president of the Council of Ministers, affect the ministerial nominations, play a real part in foreign policy. The mentioned facts indicate that within the said parliamentary system of the political accountability of the French government there were certain elements, or even a trend of the balanced parliamentarianism, where the activities of the government became detached from the parliament, and the former could be autonomous in organizational, legislative and even political terms. However the trend was manifested in legal-organizational sphere rather than in the political one. Consequently there was a political domination of the houses over the executive. Nevertheless the discussed trend gained permanent supporters (so as the case was with the parliamentary absolutism) who considered the executive to account for the actual, natural and primary life of the country and opposed the former being dominated by the legislature.

ZАMON BILАN HАMNАFАS KONSTITUTSIYAVIY ISLOHOTLАR: DOLZАRBLIGI, АHАMIYATI VА ISTIQBOLGА YO‘NАLTIRILGАNLIGI

The article is devoted to the analysis of the large-scale constitutional reforms taking place in the country and the political and legal significance of the announced referendum on the project Constitutional Law. In it, the main content and essence, important features, as well as proposed new constitutional provisions of the project new edition of the Constitution of the Republic of Uzbekistan are subjected to scientific understanding. Suggestions and comments are put forward aimed at further improvement of a number of articles of the project. Additional arguments are given justifying the need for ongoing constitutional reforms, as well as commented on the following main ideas that form the basis for updating the Basic Law, namely the exaltation of human dignity, the creation of a humane, just and social state, the importance of which is recognized on a global scale, the strengthening of constitutional guarantees for ensuring the right of a citizen to immunity and their legitimate interests, ensuring favorable conditions for employment and labor activity of people, strengthening the legal protection of private property, strengthening the constitutional foundations of the institution of the family, stimulating the initiative of civil society institutions. Also, issues related to the improvement of the legal mechanisms for the functioning of people’s power were scientifically analyzed. The article also provides additional arguments in favor of new articles and norms being introduced into the Constitution, regarding the rights of citizens to be protected by justice, to use the services of a lawyer, to further expand the implementation of the principle of the presumption of innocence, to increase the role of parliament, to ensure accountability of the government and other state bodies to it, as well as improving the quality of lawmaking.

Peasant Struggles in Times of Crises: The Political Role of Rural and Indigenous Women in Chile Today

This article explores the political role of rural and indigenous women in the context of the socio-environmental, health and political crises in Chile, where social movements have pressured the political establishment to decisively move towards a change in Chile’s constitutional foundations. The study analyses the historical political demands and strategies of the National Association of Rural and Indigenous Women (ANAMURI) as a case of the women’s peasant movement with a relevant political role in shaping the social demands in the face of the crises. Following the political ecology of food through the decolonial and ecofeminist perspective and the social movement theory, findings indicate the current relevance of rural and indigenous women as political actors of change, a relevance that has been neglected for most of Chile’s history. With their leadership and socially grounded demands, peasant and indigenous women are influencing the political agenda decisively using strategies that are shared with other peasant movements in Latin America. Rural and indigenous women are fundamental political actors that should undoubtedly be considered when studying struggles for social change in the 21st century.

Constitutional foundations of cross-border digital healthcare

The purpose of the research is to look at the issues of legal regulation of information healthcare, consider the positive experience of international legal regulation to overcome legal gaps in digital healthcare, improve the quality of life of the population and the systemic functioning of information biomedicine based on the principles of mutually beneficial cooperation between Russia and foreign countries. It examines the historical aspects and modern trends of cross-border digital healthcare in accordance with international standards, positive and negative consequences of the information biomedicine impact on basic constitutional human rights and freedoms. The research analyzes national and international legislation, the main directions of constitutional regulation of digital biomedicine and proposes to create an effective mechanism for implementing national legislation on digital healthcare, based on the positive experience of international legal regulation and protection of basic constitutional human rights in order to prevent the use of ethically unacceptable methods. The following scientific methods have been applied in the research: theoretical, historical, empirical, classification and comparative legal analysis. The study identified the urgent need for holistic approach to transnational digital healthcare, characterized by integration of law and biomedicine, and constitutional regulation of the biomedical research approbation. It is worth mentioning that the practical research activities of medical professionals and lawyers are interrelated and require constant interaction and analysis of biomedical results and their legal justification. Therefore, the function of law is to regulate the limits of human intervention in information biotechnologies, identify and exclude all possible risks of approbation of scientific research and their results in the sphere of digital healthcare. The author believes that development of information biomedicine involves interplay of various spheres of knowledge based on scientific synergy of medical, legal, and ethical aspects, integration of interrelated legal and non-legal sciences. Given the importance of integrating the constitutional foundations of cross-border digital healthcare, the author proposes to create a single extraterritorial Concept of Transnational eHealth. It is essential to consider international experience in order to ensure proper protection of human rights in the sphere of information healthcare.

The social supremacy of the constitution "An analytical study"

The focus of this research is on the social supremacy of the constitution, as it stands at the extent of individuals' attachment to their constitution and constitutes one of the constitutional foundations in the modern state, and through it the proper constitutional and political construction is formed in the state, due to the link between the legal system in the state and the constitutional provisions that must be applied to all legal rules in force in the state. If these laws or regulations conflicted in their texts, spirit, or objectives with the social eminence of the constitution, then the predominance or preponderance of the latter, so our research came to address this by reviewing the constitutional organization of social eminence as one of the basic elements for achieving political stability and social security. Individuals feel a sense of belonging to the homeland, and gives them the right to state protection.

Failures of comparability in global governance: Exploring the practical dimension of the redress of law

AbstractIn The Redress of Law, Emilios Christodoulidis explores the philosophical foundations of market constitutionalism and shows how its embedded rationality shapes global governance. The author delves into critical phenomenology to lift the veil of ignorance on the fact that market constitutionalism has replaced political rationality with economic reasoning. By grounding its theory in the continental critical theory, ranging from Marxism to Weil’s existentialism and Luhmann’s systems theory, the book shows how the redress of law is also a practice that could radically transform the global political economy. However, the challenge is to displace the modern thinking of market constitutionalism that is rooted in functional differentiation and privileges constituted rather than constituent power. Such market thinking has allowed global governance experts to simplify and reduce to numbers complex polical, cultural and social phenomena embedded in constitutional legal regimes. The disembedding of law from society through functional differentiation, and the sole preoccupation of legal experts with constituted power, have contributed to the depoliticisation of constitutionalism as both theory and practice. A quintessential example of market constitutionalism in practice are global governance indicators. These indexes entail comparisons among legal regimes that empower private market rules as the final arbiter of local redistributive policies while bracketing historical, genealogical and reflexive connections to law’s social realities. The book offers several strategies of ‘redress of law’ such as rupture, contradiction and open dialectic, aiming to foreground political rather than market constitutionalism and to revamp the dialectic between constituted power exemplified by constitutional texts and constituent power, exemplified by strikes. This Article praises Christodoulidis’s sophisticated theoretical framework grounded in critical phenomenology, but at the same time pushes the author’s argument beyond the book itself. By questioning the practical implications of the redress of law, the focus on legal assumptions in global governance shows how legal experts in a variety of legal fields beyond constitutionalism have reproduced existing inequalities defined in terms of market, social and colonial hierarchies.

PROTECTION OF THE RIGHTS OF THE CHILD IN THE EVENT OF HIS REMOVAL FROM THE FAMILY: PROBLEMS AND PROSPECTS FOR THE DEVELOPMENT OF LEGISLATION

Purpose of the study. In the article, the author presents an analysis of article 77 of the Family Code of the Russian Federation, which is devoted to the procedure for removing a child from a family. The author has proved the theoretical inconsistency of this norm, which leads to numerous problems of its enforcement. The absence of clear criteria, grounds that fall under the signs of the term «immediate threat to the life or health of the child» leads to ambiguous practice and the adoption of unreasonable decisions aimed at removing the child from the family. The article substantiates the conclusion about the theoretical and practical expediency of taking into account a specific life situation in the family, not limited to purely formal criteria, which will protect the interests of a child removed from the family. The objective need for reforming the institution of removing a child from a family is proved, Art. 77 of the RF IC, but taking into account the development not only of general trends in family law at the present stage, but also of the constitutional foundations that determine the fundamental rights of every citizen, the protection of which is a priority for the state.

Nepal's Constitutional Foundations between Revolution and Cold War (1950–60)

The 1950s represent a foundational decade in Nepal's constitutional history. In the wake of decolonization in British India, the “year 7 revolution” (1950–51) grew out of the alliance between King Tribhuvan Shah and Nepal's democratic political parties created in India against the Rana autocratic regime in Kathmandu. Eventually the pro-democracy forces prevailed, and a crucial political transition began. Two constitutions were promulgated, the 1951 Interim Constitution and the 1959 Constitution. Both short lived and only partially implemented, these documents, however, laid the foundations of Nepal's constitutional edifice for years to come. Constitution building became a marker of sovereignty understood in terms of independence and an assertion of popular sovereignty. However, in the fraught Cold War context, the preoccupation with securing political stability by constitutional means that centered around the Shah monarchy prevailed, even at the expense of democracy. As such, the shift from a traditional notion of sovereignty from above to a modern concept of sovereignty from below remained incomplete. These aspirations, however, were not extinguished even by 30 years of royal autocracy under the Panchayat regime (1960–90) and lived on to this day to inform demands for constitutional reform, democratization, and inclusion. The present analysis is based on Nepali primary legal sources, archival material from the United Kingdom and United States National Archives, and the Ivor Jennings Private Papers.

The 'Will of the People': The Populist Challenge to Democracy in the Name of Popular Sovereignty.

This article analyses how right-wing populist actors claim to represent the "voice of the people" and express "popular sovereignty" as a mode of challenging the traditional constitutional foundation of liberal democracy. This hypothesis is illustrated by an investigation into the political discourse of the Alternative for Germany considering how this populist actor has developed a political strategy claiming to speak for the "people" in an authentic and immediate fashion. The analysis of this actor's political mobilization shows how the championed direct democratic representation is couched in a sovereigntist discourse that relies on divisive identity markers rather than genuine democratic participation. Drawing on Carl Schmitt's concept of the political, the article interprets right-wing populism as invoking a permanent "state of exception" that employs an emotionally charged friend-enemy distinction whose logic of representing the people has the potential of triggering radical political change as well as undermining the integrity of rule-based democracy.

The Legal Issues of Firearms Trafficking in the United States of America

Relevance and subject of research. The circulation of firearms as a source of increased danger is subject to legal regulation and control in the Russian Federation. The use of weapons by police officers is no exception. The norms of the Federal Law of February 7, 2011 No. 3-FZ “About the Police” (hereinafter referred to as the Law “About the Police”) refer to the achievements of domestic administrative science as a result of the work of specialists. In systemic connection with the norms of criminal law, they regulate the conditions and limits for the use of coercive measures by police officers, including firearms. The fundamental ideas of the activities of the Russian police have successfully cooperated with the norms of international law. On the contrary, in the socalled “leading” democratic state – the United States of America, such cooperation does not look well-coordinated, which the Author substantiates when studying the origins of the right of citizens of this state to own firearms, the regulatory regulation of the circulation of weapons in the United States, the negative consequences of this regulation (based on research by American scientists and statistical data), the activities of the US police to counter armed attacks and its legal regulation. One of the US attempts to comply with international law in this area is analyzed, namely the adopted new policy of the US Customs and Border Protection on the use of force, including firearms.The purpose of the study is to determine the state of legal regulation of the circulation of civilian firearms in the United States, the use of these weapons as a coercive measure by police officers in order to identify its positive aspects, in the presence of which the decision on the possibility / impossibility of their introduction into Russian legislation. This led to the setting of the following tasks: to study the constitutional foundations of the right to own firearms by US citizens (historical aspect); to determine the current state of legal regulation of civilian circulation of firearms in the United States and its consequences; analyze the activities of the US police to counter armed attacks and its legal regulation, evaluate them and determine the prospects for their improvement; identify the provisions of American legislation that are of scientific interest, and the possibility / impossibility of their implementation in Russian legislation.The methodological basis of the study was a dialectical approach to the scientific knowledge of social relations associated with the circulation of firearms, the implementation of their state regulation, analysis and synthesis of the results obtained during the study, which made it possible to formulate and substantiate the conclusions. Among the special methods used in the study are the method of studying normative legal acts and documents, the empirical method, the method of processing and analyzing data, and their generalization. Findings. The study shows that the constitutional foundations for the right to own firearms by US citizens developed simultaneously with the emergence of statehood: first in individual states, and then in the very union of these states formed into a single US government. The existing multi-layered legal framework for regulating the circulation of firearms has created a wide range of owners with a relatively simple system of access, which negatively affects the criminal environment, in which armed attacks with mass casualties are of high importance. Cases of armed attacks and other negative illegal acts to a certain extent influenced the processes of militarization of the police, the creation and strengthening of special operations units, the adoption by the police of various types of military equipment, weapons and special means. Detailed legal regulation of the use of lethal force by the police is developing belatedly. The 2014 adoption of the U.S. Customs and Border Protection Manual did not prompt other law enforcement agencies to adopt similar rules, indicating the fragmentation of U.S. law enforcement. The U.S. Customs and Border Protection Guidelines on the use of force is of particular scientific interest, and after its careful analysis, it is possible to introduce certain provisions into the legal regulation of the activities of the Russian police, especially the use of lethal force. The fundamental ideas of police activity developed in Russia can be recognized as certain guidelines for the development of the American police. The relatively small number of firearm owners in Russia and the high requirements for the circulation of firearms are a deterrent to the negative developments taking place in the United States.

Deliberative popular constitutionalism and constitutional changes: forms, procedures and technologies in comparative constitutional theory and practice (on the 30th anniversary of the constitution of the Russian Federation in a comparative aspect)

The article discusses the doctrinal and normative foundations of deliberative popular constitutionalism, on the one hand, and the forms of constitutional changes - on the other, the procedures and technologies for the participation of citizens and the public participation institute in constitutional modernization in the light of legal forecasting and the development of the scientific foundations of constitutional reform and constitutional design. Deliberative popular constitutionalism is an integrated concept designed to analyze prescriptive requirements and promising principles in the constitutional modernization of the state and society, forms, and procedures for the participation of citizens in constitutional changes, the processes of preparing and implementing constitutional changes in the modern period. As a conclusion, the author of the article notes: deliberative popular constitutionalism is a kind of metatheory that combines the issues of the discursive and deliberative concept of democracy, the doctrine of the constitutional involvement of citizens and the institution of public participation - scientific, professional and otherwise - in matters of constitutional development and constitutional changes.

The Rights and the Proxies of the Monarch in Romania According to the Constitution of 1866

The article is devoted to the analysis and the characteristics of the rights and the proxies of the monarch in Romania according to the Constitution of 1866. The adoption of the first Basic Law was the fateful act in the history of the state-building processes of Romania and contributed to its development as the sovereign state. The Constitution had the contractual nature and established the compromise between the young bourgeoisie and the large landowners in the form of the constitutional monarchy. The king in Romania for a long time remained the person who was «above» of all the state and political leadership of the country. This status and the proxies of the monarch were delegated with the first Basic Law. The legal fixing of such legal status of the monarch at the level of the Constitution made it possible to establish full-fledged royal power, which was an extremely important state-political step for the development of Romania as the independent country. The constitutional foundations, the functions and the limitations of the institution of the monarchical power in the principality were fixed in the number of the articles of the Constitution of 1866. At the same time, the important state-constitutional aspect was the clear fixation that all proxies of the monarch could be done based on the interests of the Romanian nation. The Basic Law of 1866 established the proxies of the monarch such as in the legislative branch of power (the right of legislative initiative, the right of the interpretation of laws, Articles 32–34); executive power (had to implement it in the manner determined with the Constitution, Article 35) and partially in the justice system (the right to declare amnesty on the political issues, the right to postpone or to mitigate punishment in criminal cases, Article 93). For strengthening of the foundations of the statehood, the Constitution officially established the principle of the hereditary power of the monarch (Article 82). His person was declared inviolable. Herewith, the Romanian constitutionalists fixed that the monarch did not have any other proxies, except those granted to him with the Basic Law (Article 96). Adopted in 1866, the Basic Law approved legally the democratic aspirations of the Romanian nation. It defined directly the most important principles of the state functioning as the principle of the national sovereignty, the principle of the division of powers, the principle of representative government, the principle of hereditary monarchy, the principle of the responsibility of the state officials, the principle of the Rule of law, etc. The Basic Law definitely contributed to the gradual democratization of the state-governing and public structures, the formation of the concept of the civil personality and untouchability, foresaw the presence of the political and legal pluralism in the country, etc. Due to the introduction of the institution of the constitutional monarchy, that ruler in the person of Karl I could establish and hold the certain political balance in the country between the liberals and the conservatives, which opened the possibility to potentially strengthen the two-party system and laid the foundations of the civil society and the future constitutional life of Romania.

Historical Foundations of Constitutionalism

Historical Foundations of Constitutionalism

Interrogating the Constitutional Foundations for Local Government Financing in Nigeria

Interrogating the Constitutional Foundations for Local Government Financing in Nigeria

The features of constitutional regulation of competition in the modern conditions of the digital economy, parallel import, and import substitution in the Russian Federation

The article examines the features of constitutional regulation of competition in the modern conditions of the digital economy, parallel import, and import substitution in the Russian Federation. The research aims include to determine the importance of constitutional regulation of competition in the system of the Russian legal regulation; to disclose the content of constitutional regulation of competition of the Russian Federation; and to identify the features of constitutional regulation of competition in modern conditions. The article analyzes the components of the constitutional regulation of competition: the constitutional foundations of competition and the constitutional right to competition. Special attention is paid to modern problems of constitutional regulation of competition: protection and development of competition in the information environment within the digital economy and protection and development of competition in the context of import substitution and parallel import. The judicial practice of the RF Constitutional Court on competition issues, the constitutional right to competition and state competition policy is also analyzed. The article formulates proposals for improving the current legislation on competition. The conducted research leads to the conclusions that the features of the constitutional regulation of competition in modern conditions significantly affect the state of the domestic economy, the protection and development of competition, require improvement of competition legislation, and the construction of a competent state competition policy, which generally determines the effectiveness of the Russian economic security.

Was the Constitution of 3 May 1791 a Source of Inspiration for 19th Century Polish Constitutional Drafts? The Problem of Using Polish Constitutional Heritage in the Congress Kingdom of Poland in 1815 and 1831

The article focuses on the problem of using legal heritage based on the example of the Constitution of 3 May 1791. This issue is considered in relation to two selected moments in the history of the Congress Kingdom of Poland – 1814/1815 and 1831. What connects them and, at the same time, makes them unique periods in the political and constitutional history of Polish territories under the partitions is the relative freedom the Polish elites had in their right to decide on the constitutional foundations of their own statehood. In 1814/1815, Prince Adam Jerzy Czartoryski was granted the emperor’s consent to prepare a draft which, after corrections, became the basis of the Constitutional Act granted by Alexander I on November 27, 1815. Similarly, in 1831, after the dethronement of Tsar Nicholas I, the insurgent elites were free to embark on an unfettered constitutional debate on the systemic reform of the state. Both in 1814/1815 and in 1831, Polish political and intellectual elites faced a dilemma as to whether the Constitution of 3 May could serve mainly as a monument to and symbol of Polish history, or whether it still had the potential to be directly applied; and if so, then to what extent and under what conditions? The publication is devoted to exploring the answers to these questions.

Модернизация конституционных основ власти в свете «обновлённого» текста Конституции Российской Федерации

Модернизация конституционных основ власти в свете «обновлённого» текста Конституции Российской Федерации

PROJECT BASED PANCASILA ECONOMIC LEARNING FOR STUDENTS OF ELEMENTARY SCHOOL

Pancasila economy is an economic system imposing a joint venture based on kinship and cooperation to symbolize Indonesian identity which is not possessed by another country. Besides, the Pancasila economy is the philosophical foundation and the 1945 constitution (UUD 45) is the constitutional foundation of Indonesia. This research aimed to describe how the implementation of Project-Based Pancasila Economic Learning through the Experiential Learning method. Project-based done, of course, adjusts to students who are still elementary school age. This research used an action research approach in Public Elementary School Blitar, Indonesia, the research subject was 70 elementary students. Data collection was conducted by interview, questionnaire, and Forum Grup Discussion (FGD). The research finding showed that the students were able to interpret that economic learning could be conducted outside the class. By experiential learning method, the students were expected to be more understand the purpose of Pancasila Economic learning. In addition, based on the learning mentioned, the students could understand and implement the form of Pancasila Economic, especially practicing the precepts in everyday life.

Constitutional foundations of energy security and their implementation in national legislation

Constitutional foundations of energy security and their implementation in national legislation

INSTITUTE OF PARLIAMENTARISM IN THE CONTEXT OF CONSTITUTIONAL REFORM IN THE REPUBLIC OF KAZAKHSTAN

The article attempts to study the development and current state of the institute of parliamentarism of Kazakhstan in the context of the constitutional reforms carried out. The main historical stages of its development from 1991 to 1995 are ana-lyzed. The essence of the concept of parliamentarism in the narrow and broad senses of the word is considered, and several groups of scientists with different points of view on the position of parliamentarism are also identified in the course of the study. The constitu-tional foundations of the Kazakh institute of parliamentarism are revealed. The various reasons for the adoption of the new Basic Law in 1995, as well as the shortcomings of the previous Constitution, which led to a protracted parliamentary crisis, are analyzed. The paper defines the 5 stages of the development of independent Kazakh parliamentarism. The article describes in detail the 3 main constitutional reforms carried out in the Re-public of Kazakhstan in 2007, 2017 and 2022, in terms of their impact on the process of improving the institution of parliamentarism. In the process of researching these reforms, the new functions and powers of the parliament to strengthen control over the government of the country are considered. The constitutional novel in the history of Kazakhstan, which establishes the limitation of the terms of office of the President of the Republic from two 5-year to one 7-year term, which undoubtedly affects the parliament, increasing its responsibility for the fate of the country, is analyzed, international experience is studied, according to which it is concluded that in such a developed country as the Republic of Korea such a constitutional mechanism is functioning successfully, and the country is consistently developing with a strong parliament along the democratic path.