Constitutional Grounds Research Articles

CONSTITUTIONAL GROUNDS FOR JUDICIAL INDEPENDENCE AS A GUARANTEE FOR PROPER ADMINISTRATION OF JUSTICE (COMPARATIVE LEGAL ANALYSIS). THE ARMENIAN EXPERIENCE

The article reveals the constitutional grounds of judicial independence within the context of recent constitutional reforms in the Republic of Armenia. It discusses the issues of cooperation of the judicial, executive and legislative powers in the frames of the new parliamentary form of government. In particular, the article discusses the issue of the role of the legislative body of the Republic of Armenia in formation of the judiciary. It also turns to the issues of the internal and external independence of the Supreme Judicial Council which is itself responsible for the independence of the judiciary and the appointment of judges. As a conclusion, the article outlines the advantages and disadvantages of the current and new constitutional regulations.

The United States Congress and nuclear war powers: explaining legislative nonfeasance

ABSTRACTScholarly debate over the role of the United States Congress in approving military action has focused on the respective war powers granted the executive and legislature by the United States Constitution. Although a voluminous literature has examined the institutional and partisan politics shaping their exercise, a conspicuous lacuna concerns nuclear war powers. Despite periodic but mostly ineffective reassertions of congressional prerogatives over war, the decision to employ nuclear weapons has been left entirely to presidential discretion since 1945. Explaining this consistent refusal by Congress to rein in the ultimate presidential power and exercise co-responsibility for the most devastating form of war relies less on disputatious constitutional grounds than on three arguments about congressional dysfunctionality, legislative irresponsibility, and the relative costs of collective action by federal lawmakers on perilous national security questions.

Prawa człowieka i obywatela w Konstytucji RP a przyzwolenie na obecność islamu w Polsce

Human and Civil Rights in the Constitution of the Republic of Poland and Approval of the Presence of Islam in Poland. Studies of Students’ Attitudes in the City of BialystokThe article is dedicated to the confrontation of the constitutional grounds of the religious liberties in Poland and institutional enshrinement of faith with social attitudes towards Muslims, exemplified by the data obtained from a study conducted by a team from the University of Białystok: Maja Biernacka (head), Wojciech Wądołowski and Łukasz Wołyniec in the year 2015. The research is dedicated to a large spectrum of issues, including attitudes towards Muslims as displayed by students of three major public academic institutions in Białystok, i.e. University of Białystok, Medical University of Białystok and Białystok University of Technology. The data was collected via a standardized questionnaire, allowing for the answers to be systematically compared and contrasted. The module of the research which is presented in this article refers to contextualized scenarios related to respondents’ approval of the expression of the creed and everyday practices which are grounded in Islamic tradition.

A study on the guarantee system of freedom of election campaign - Constitutional grounds and protection area -

A study on the guarantee system of freedom of election campaign - Constitutional grounds and protection area -

The institute of head of the state in the mechanism of strengthening state unity and the rule of law (theoretical-historical and constitutional-legal interpretation)

The subject. The article investigates historical legal, theoretical-methodological and constitutional-legal problems of the formation and functioning of the institute of the head of state.The purpose of the study is to show how the constitutional functions of the head of state concretize his powers.The study is based on the use of methods of analysis and synthesis, historical legal, formal legal, comparative legal methods, scientific abstraction.The main scientific results. The authors summarize that the historical and legal analysis shows the key role of the head of state in the mechanism of ensuring state unity and law and order. Reality testifies the fact that the role of the President of the Russian Federation creates sufficient constitutional and legal grounds and conditions for the consolidated work of all state authorities, including law enforcement agencies, in the direction of ensuring the unity of state power and constitutional law and order. The indicated directions are in many ways identical, organically interrelated and interdependent, systematically define the main lines of activity of the head of state, contributing to the improvement of the constitutional and legal mechanism for ensuring the rule of law in general. Firstly, the Constitution of the Russian Federation contains only the basic powers of the President of the Russian Federation, which are substantially expanded by the legislator and presidential decrees. Secondly, the President has so-called “hidden”, discretionary powers that are not directly enshrined in the Constitution of the Russian Federation, implicit in it and stem from the sense of presidential functions that manifest themselves in unforeseen extraordinary circumstances. Thus, the constitutional design of a strong presidential power allows the President of the Russian Federation to ensure the unity of the executive power and the exercise of the powers of the federal government throughout the territory of Russia (pt. 4 of Art. 78 of the Constitution of the Russian Federation). Such presidential power is carried out through the issuance of its decrees and orders, the adoption of operational and administrative decisions.Conclusions. The authors noted that the effectiveness of the work of the head of state is especially evident in the state unity and the constitutional and legal mechanism for ensuring the rule of law, which is developed in the constitutional doctrine.

Congress, public opinion, and an informal constraint on the commander-in-chief

US presidents have routinely ordered the use of force without seeking prior authorisation from Congress. However, this practice does not mean that the legislature is irrelevant, as Congress often influences decisions by exercising informal political levers. One of the most important is through Congress’ ability to affect popular support for the commander-in-chief. Through a pair of experiments embedded on nationally representative opinion surveys, this article evaluates whether Congress’ constitutional prerogatives in war powers remain relevant when battling the president in the public sphere. Policy criticism significantly decreased support for the use of force, as did challenges to administration actions on constitutional grounds. Although Congress routinely fails to use the constitutional tools at its disposal to check the commander-in-chief, these powers bolster Congress’ capacity to influence public opinion. Hence, while presidents enjoy considerable leeway in the military arena, Congress’ capacity to erode public support can serve as a check on presidential power.

Presidential Proclamation Indefinitely Restricting Entry of Individuals from Designated Countries Is Fully Implemented Amid Ongoing Legal Challenges

On December 4, 2017, the U.S. Supreme Court permitted the most recent version of President Trump's executive action restricting the entry of nationals from certain countries to take effect. The decision stayed nationwide injunctions granted by two federal district courts on constitutional and statutory grounds. This version of Trump's “travel ban,” (EO-3), issued on September 24, 2017, restricts the entry of nationals from Iran, Libya, Somalia, Syria, and Yemen—all of whom had been restricted under previous orders—as well as North Korea, Venezuela, and Chad. While litigation continues in the Courts of Appeals for the Fourth and Ninth Circuits, the Trump administration fully implemented EO-3 by December 8.

Walls, Waivers, and What We Don’t Know

Walls, Waivers, and What We Don’t Know Kenneth D. Madsen There is no shortage of studies and anecdotes about the lack of geographical knowledge in the U.S. In the case of the U.S.-Mexico border, however, it is not just the basics of states, capitals, and major physical features that should give us pause. Borders are in the news, and with a general lack of knowledge about the region, there is an imaginative and insidious othering that goes on to fill the gaps, perhaps akin to medieval maps where cartographers’ imaginations filled in the blank spaces (e.g. Van Duzer, 2013). This fundamental willingness to project the worst onto our borders and what lies beyond can be seen as an outgrowth of a greater devaluation of intellectual work in recent years. Border regions and the people who live there face many challenges, but lacking specific knowledge of details, political posturing flattens the nuances of those experiences. Negatives (drug smuggling, undocumented entries) are portrayed as something that must be addressed at all costs. Positives (low crime rates in border cities, immigrant contributions to the U.S.) are downplayed or ignored completely. Problems elsewhere (drug consumption, inability to agree on immigration reform, crime by migrants, integration) are projected onto the border as well. Geographic ignorance is not entirely to blame, however. From a policy perspective, the U.S. has deliberately handicapped itself by suppressing knowledge and the creation of knowledge. This is especially true in the realm of the environment. Despite legislation that mandates environmental studies and consideration of impacts and alternatives, and provides for public input, in the case of border barrier construction this information is frequently suppressed. Drawing on authority granted by the Real ID Act of 2005 expressly for this purpose (see Sundberg, 2015), the U.S. Department of Homeland Security (DHS) to date has waived forty-eight laws in eight different proclamations. These include “all federal, state, or other laws, regulations and legal requirements of, deriving from, or related to the subject of” those statutes (wording from the most recent waiver proclamation; Nielsen, 2018, p. 3,013). Some laws are waived for particular places, such as the Sikes Act (within and near the Barry Goldwater Range in Arizona) and the Wild Horse and Burro Act (in San Diego only), but other laws are waived more consistently. All eight waiver proclamations to date have included the Endangered Species Act, the Clean Water Act, and the Administrative Procedures Act. Among other frequently waived laws are the Native American Graves and Repatriation Act, the Solid Waste Disposal Act, the Eagle Protection Act, and the Religious Freedom Restoration Act. Each of these waived statutes has its own niche, but probably the most far-reaching for the present discussion is the National Environmental Protection Act, included in all eight waiver proclamations and the engine behind agency analyses designed to assist with informed government decision-making. Many of these laws have stood for decades, some for over fifty or a hundred years. Most were enacted after years of discussion and [End Page 262] development. Today, a single government official, the DHS secretary, is able to waive any law without public discussion or oversight. The waiver of laws for border barrier construction is also broadly interpreted, covering the provision of roads and other means of access, staging areas, upkeep, and other supporting elements (e.g. lighting, sensors, cameras, and watchtowers). Legal recourse to challenge these waivers is severely truncated, allowing no more than sixty days after promulgation to file in district court, with appeals allowed only on constitutional grounds directly to the Supreme Court. In practice, U.S. Customs and Border Protection (CBP) has been somewhat conservative geographically in its application of the waivers, proclaiming them only in areas where border barrier construction is imminent. Yet there are also no assurances that future interpretations of the waiver will continue to be limited in scope. Furthermore, there are no stated restrictions on how far away from the border the waivers apply and no specified limits to their duration. Just because laws are waived does not mean that CBP is entirely oblivious to environmental concerns. The agency developed its own alternative mechanisms for...

VETTING OF JUDICIARY IN TRANSITIONAL COUNTRIES – SUCCESSFUL TOOL OR ENTRY POINT FOR POLITICAL INFLUENCE

The author analyzes experience in the vetting of the judiciary as a tool used to regain trust in the justice system. Special focus is put on Serbia and Albania experience. The comparative experience and practice do not show a clear link between vetting process and public trust in the judiciary. The author analyzed the importance of a common understanding of reasons for vetting process as well as preparatory activities for its implementation – Constitutional ground, selection of proper institution, including the establishment of ad hoc bodies, proper timeframe and administrative capacities to implement the whole process. In addition, communication with the public and professional community is of utmost importance to ensure support throughout vetting. The author provides an overview of the comparative practices related to the models of vetting conducted in Serbia in 2009 and ongoing vetting process in Albania. Although there are delays in implementation in Albania, it is obvious that Albania legislators learned from Serbian experience and included tools to ensure transparency of the vetting.

Konstytucyjne źródła funkcjonowania samorządu zawodowego doradców podatkowych w Polsce

The article focuses on the characteristics of the constitutional grounds for functioning of the professional self-government association of tax advisors in Poland. The initial part of the article includes presentation of the definition of self-government, professional self-government association, and the problem of the so-called constitutionality of self-government of professions of public trust, including tax advisors. A very important element is presentation of the duty of professional self-government associations of tax advisors to exercise supervision over proper performance of the profession. The objective of the article, on the background of the deliberations, is to answer the question of whether it is possible to eliminate this professional self-government association – the answer I provided in the conclusions is negative.

The Author and the State: Germany's Bill of Rights in the Shadow of the Past

This article considers the state of the law in Germany in relation to state power to criticise an author’s published commentary. It considers the constitutional protection of an author against a government body, doing so through the examination of a decision of the German Constitutional Court. Can an author complain on constitutional grounds when his work is withdrawn from circulation by the publisher acting in concert with a government body? How far can the publisher and government go in explaining to the public the course they have taken? Can their explanation in itself provide cause for constitutional complaint? In the case in question, the subject of the author’s commentary was the German-Jewish relationship during the Hitler period and the commentary itself aroused considerable hostility. The Court had the task of delivering a reasoned judgment on the basis of accepted constitutional principles and without participating in the emotions raised by the case.

Political rents under alternative forms of judicial review

Opponents of bills that are approved in the legislature frequently pursue subsequent judicial challenges based on constitutional grounds in order to overturn them. Such challenges may occur through a specific legal case as in the U.S. (concrete judicial review) or through the petition of an opposition party at the constitutional court as in many parliamentary democracies (abstract judicial review). While the decision-making process of high court justices has been widely studied, the effect of anticipated judicial review on the composition of bills introduced in the legislature has received limited attention. This paper theoretically analyzes how the institutions of concrete and abstract judicial review influence the political rents associated with a bill when the justices decide solely based on the bill's ideological component. The results indicate that abstract review may lead in equilibrium to a greater diffusion of rents across the political spectrum through its anticipatory effect, while the rents under concrete review are more concentrated among the legislative winning coalition. When this is the case, abstract review improves the equilibrium payoff of the party that would be left out of the legislative winning coalition under concrete review and favors those parties that command large rents in the status-quo.

Recent Developments Regarding South African Common and Customary Law of Succession

This article will concentrate on the development in the common law of succession and administration of estates versus the customary law of succession and inheritance as well as the winding up of estates pursuant to constitutional tendencies, case law, and statutory reform over the last ten years. The principles of customary law of succession and inheritance have become a contentious issue since the commencement of the Constitution and Bill of Rights which provide for a human rights dispensation in South Africa. As a pluralistic legal system was retained, the inevitable conflict between the principles of customary law of succession and the Constitution soon came to the fore. Although the South African Law Reform Commission reported on this issue and submitted their recommendations to the Minister of Justice and Constitutional Development, the report was never formally published. Aspects of intestate succession and the administration of estates of deceased blacks were challenged in court on constitutional grounds. This eventually lead to a number of principles of customary law being declared unconstitutional, and consequently invalid, by the Courts who had no choice but to provide relief until such time as the legislature enacted a lasting solution. As far as the intestate succession is concerned, the Intestate Succession Act 81 of 1987 was extended to all persons in South Africa, including those adhering to a system of customary law. No distinction will, for purposes of succession, be made in future between legitimate and illegitimate children, between a first born son and other siblings or between men and women. Notwithstanding several court judgments in this regard, the Intestate Succession Act has not been amended by the Legislature as yet. As far as the historical discrepancy in the winding up and administration of estates is concerned, all estates, including intestate estates of black persons that have to devolve under customary law, in the future will be administered by the Master. Magistrates no longer will be responsible for supervising and administering customary estates.

Policy by Other Means: Collective Self-Defense and the Politics of Japan's Postwar Constitutional Reinterpretations

Policy by Other Means:Collective Self-Defense and the Politics of Japan's Postwar Constitutional Reinterpretations Adam P. Liff (bio) keywords japan, security policy, u.s.-japan alliance, collective self-defense, japanese constitution [End Page 139] executive summary This article analyzes Japan's landmark cabinet decision reinterpreting the constitution to allow the limited exercise of collective self-defense (CSD) in both a historical and a contemporary context and assesses its implications for the conditions under which Japan may use military force. main argument In July 2014, a historic cabinet decision reinterpreted Article 9 of Japan's 1947 constitution to allow the use of force to aid an ally under attack, overturning 60 years of authoritative constitutional interpretations categorically prohibiting Japan's exercise of CSD. The decision was followed by a revision of the U.S.-Japan Defense Guidelines and landmark legislation intended to transform Japan's security policy. Yet the change is evolutionary rather than revolutionary. Japan's self-imposed precondition for the use of force by the Japan Self-Defense Forces (JSDF) remains uniquely strict: an armed attack posing an existential threat to Japan's security. Nor is this the first case of a major reinterpretation of Article 9. Though its original wording remains untouched, the article's effective policy significance has changed repeatedly over 70 years in accordance with shifting domestic political winds and perceived strategic exigencies. Specific to post-2014 developments, understanding what changed and why—especially how Prime Minister Shinzo Abe and his allies' push for full exercise of CSD failed—elucidates the strategic, political, and normative factors shaping changes to Japan's security policy and the U.S.-Japan alliance. policy implications • While Japan may now legally exercise "limited" collective self-defense, unique, self-imposed conditions appear so strict that the use of force in support of allies or partners outside a defense-of-Japan scenario seems unlikely. • Security legislation in effect since 2016 opens up space for more expansive JSDF logistical support for U.S. military operations, bilateral planning, and exercises, as well as new authorities that somewhat resemble collective security or CSD operations in peacetime, including use of small arms during UN peacekeeping operations and protection of foreign militaries engaged in activities contributing to Japan's defense. • Without formal constitutional revision (at a minimum), however, more ambitious efforts to fundamentally transform Article 9's interpretation or the scope of scenarios in which Japan can use force overseas are unlikely without major domestic political realignments. [End Page 140] On July 1, 2014, global headlines were awash with news of Japan's historic cabinet decision "reinterpreting" its never-revised 1947 constitution to allow the country for the first time to exercise collective self-defense (CSD)—the UN Charter–sanctioned right to use force to aid an ally under attack. This substantively unprecedented, controversial decision spearheaded by Prime Minister Shinzo Abe overturned 60 years of authoritative government interpretations forbidding the exercise of CSD on constitutional grounds. It sparked a political firestorm domestically, and its policy impact was swift: in April 2015, Tokyo and Washington rewrote the seminal document articulating the allies' respective responsibilities and procedures for operational coordination. In March 2016, landmark legislation intended to transform and "normalize" Japan's security posture and expand the roles and missions of the Japan Self-Defense Forces (JSDF) came into effect. The debate that was sparked by the Abe administration's push to enable Japan to exercise CSD without formally revising the constitution's famous Article 9 "peace clause" became a revealing focal point for the latest intense contestation of core issues permeating Japan's postwar domestic politics. These issues range from the legitimacy and appropriate role of Japan's de facto military and alliance with the United States to deeply sensitive domestic political issues concerning civil-military relations, Japan's democratic institutions, and even national identity. The political atmosphere was highly incendiary. Domestic and overseas criticism of Abe's allegedly unprecedented affront to Japan's democratic norms and constitutionalism was widespread, while warnings of resurgent Japanese "militarism" abounded and opposition parties disparaged bills codifying the reinterpretation in law as "war legislation" (senso hoan) that would inevitably trap young Japanese in foreign wars "on the far side of the...

To Inform and Recommend: Hamilton and the Constitutional Ground for Interaction Between Executive Officers and Congress

In today's government, executive officers interact continually with Congress on issues of legislation and administration. But does the Constitution's text support such interaction? This article argues that a basis may be found in the State of the Union and the Recommendation clauses of Article II. Combining an examination of the Constitution's text with Alexander Hamilton's at times ambiguous tenure as Treasury secretary, this article argues that such interaction fits within the structure of the two branches. Furthermore, this article distinguishes the two clauses by claiming that executive officers must respond to most requests for information but only recommend at the president's discretion.

Treating the Personall as Private: Contextualising the Normative Framework of Cannabis Clubs in Spain within a Global Model of Constitutional Rightss

This article provides an analysis of the normative framework of Spanish cannabis clubs with the aim of contextualising it within a growing body of comparative constitutional law that recognises legal obstructions to personal drug consumption as intrusions on the right to privacy. Article 3(2) of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 relieves signatory states from the Article’s obligation to criminalise drug possession and cultivation for ‘personal consumption’ where doing so would conflict with the constitution or the basic concepts of their legal system. Spain appears to have been the only country in which the legislature (as opposed to the judiciary) has relied on Article 3(2) in its decision not to criminalise conduct for personal consumption. In doing so the government omitted to specify the constitutional ground relied upon, and the scope of the conduct encapsulated in its drug offence is open to judicial interpretation. The Spanish judiciary has had to consider the legal implications of collective consumption and cultivation. As well as operating in a grey area of domestic law, Spain’s cannabis clubs straddle the blurred boundary in international and European instruments between ‘personal consumption’ and ‘drug trafficking’. This article argues that the ambiguity surrounding the meaning of ‘personal consumption’ is best decided within the framework of the ‘global model of constitutional rights’, particularly given the acknowledgement given to the engagement of constitutional principles by the term in the 1988 Convention. This article includes an analysis of all constitutional decisions on the relationship between human rights and criminal laws on recreational drug use from around the world.

公立図書館と「表現の自由」との法的関係 : 憲法上の根拠の喪失

公立図書館と「表現の自由」との法的関係 : 憲法上の根拠の喪失

On the Categorical Approach to Free Speech – And the Protracted Failure to Delimit the True Threats Exception to the First Amendment

On June 1, 2015, the Supreme Court decided Elonis v. United States on statutory rather than constitutional grounds. In doing so, it turned away an important opportunity to provide needed clarification of true threats, a category of expression relegated to a lower level of protection by the Court almost a half-century ago. The categorical approach to free speech made its first explicit appearance in Supreme Court case law in 1942. Since that time, the Court has relied heavily on this method of constitutional interpretation, carving out discrete exceptions from the seemingly absolutist mandate of the First Amendment that Congress make no law abridging the freedom of speech. Although the categorical approach – frequently front and center in First Amendment adjudication – has been with us for almost seventy-five years, it rests on a surprisingly unsettled theoretical foundation. It is an indispensable doctrinal tool with a puzzling and sometimes contradictory array of justifications and operating instructions. In this piece, I attempt to clear up the confusion. I examine the evolution of this approach to the First Amendment. I critically assess the famous dictum from Chaplinsky v. New Hampshire that is responsible for establishing this system of classification. I scrutinize a number of possible interpretations of Chaplinsky and explore the disparate scholarly and judicial perspectives on this mode of constitutional interpretation. Finally, I move from the foundations and justifications of the categorical approach to the way this system works in practice. I argue that if the Court is to maintain its fidelity to an effectual categorical system of First Amendment adjudication – one that is properly respectful of the high stakes for free expression and democratic self-governance – it is vitally important that Court adequately define and operationalize respective categories. The final third of this article delves into one such category: true threats. I closely examine the Court’s true threats jurisprudence and look critically at the recent Elonis decision, contrasting the Court’s protracted failure to define and delimit true threats with the comparatively robust guidance it has offered with other discrete categories.

Challenging Statutory Accommodations for Religiously Affiliated Daycares: An Application of the Third Party Harm Doctrine

Daycare facilities are subject to a host of regulations, governing matters from basic health and safety requirements to caregiver training to maximum caregiver-to-child ratios. In sixteen states, however, legislation exempts religiously affiliated daycares from some of these regulations, with six states extending particularly broad exemptions to religiously affiliated daycares. Though recent reporting reveals that children have been seriously injured or died while in the care of religiously affiliated daycares, challenges to the lack of oversight, brought by secular daycares, have been unsuccessful. Supporters of these exemptions have justified them on Constitutional grounds, arguing that state oversight of religiously affiliated daycares violates the Free Exercise Clause of the First Amendment. This Note argues that both judicial exemptions under the Free Exercise Clause and statutory accommodations under the Establishment Clause have historically been limited by the doctrine of harm to third parties. Invoking a balancing test, this Note argues that courts ought to weigh the free exercise burden imposed on the religiously affiliated daycare against the harm to third parties caused by accommodation. This Note proposes an alternative strategy for challenging statutory accommodations extended to religiously affiliated daycares: parents of children harmed in exempt facilities invoking the balancing test to argue that the harm to third parties outweighs the free exercise burden imposed by regulations.

Application of Land Management Right in Indonesiais against Law

After its effectiveness for 51years in Indonesia, the Land Management Right appears to not having any legal constitutional ground that its implementation has often cause issues even controversies. This is because the land right of management regulated in the Regulation of the Minister of Agrarian Affairs No. 9/1965 is contrary to the Land Act No. 5/1960 which is the main legal provision which regulates land laws in Indonesia. It is recommended that those who directly deal with the Management Right in Indonesia attempt to get security and legal certainty for the sake of justice. In this case, the government and legislative body is expected to immediately issue new legal provisions which specifically regulates the Land Management Right in order to avoid the arbitrariness of the holders of the Right of Management toward the land right holders that come from the Management Right due to the agreement between both parties.