Constitutional Institutions Research Articles

Constitutional Design and the Point of Constitutional Law

Abstract: This essay offers an account of the diverse range of rich insights Professor Finnis’s work offers for several perennial questions of constitutional theory: such as what valuable moral ends constitutional law serves, how best to approach the design of constitutional arrangements and institutions, and how to best approach constitutional interpretation. I proceed in four parts. The first two parts begin by looking at Finnis’s treatment of the purpose of law as a social practice and then, more specifically, the point or purpose of channeling political power through constitutional law. Having outlined the point or purpose of constitutional law and constitutional institutions, I then probe what Finnis has to say about questions of constitutional design. Finally, I give an account of how Finnis’s work approaches constitutional interpretation.

Current issues of digitalization of criminal proceedings: a look into the future

The authors point out the main problems of the transformation of criminal justice. Which rest on the need to reform the entire system of the branch of law, as the digitalization of any sphere of activity requires changes in formal and constitutional institutions, culture, as well as the creation and use of AI artificial intelligence systems, the creation of technological capabilities to analyze huge amounts of Big Data and the protection of personal data. This is a condition of digital transformation.In the formation of a strategy of digitalization of criminal justice in the Russian Federation, according to the authors, there is a stalemate, which is difficult to resolve. On the one hand, criminal justice is a procedural institute, which operates strictly within the system of regulations, on the other hand, the digitalization of criminal proceedings requires huge changes in the sphere of law in general and in its individual branches.From the technological point of view, we see from the example of some business projects that such processes of some sectors of the economy are feasible. To build a technological platform for criminal proceedings is currently possible, it requires a transition to electronic criminal records (with minor amendments to the RF Criminal Procedural Code), to implement artificial intelligence and “drive” it all into technologies for processing large heterogeneous data Big Data, OLAP and DataMining. The problem lies not in the impossibility to change the existing legal model of criminal procedure and other procedural subjects, but in the fact that law enforcement is carried out between values where logic is powerless, where thinking is carried out in the form of understanding. And the necessary condition for understanding requires intuition and empathy as the most important elements of legal thinking of the law enforcement officer. Artificial intelligence cannot have them.In other words, in some parts of the law enforcement will be possible to create some kind of digital platforms, which will not meet the whole concept of building a sectoral platform, the consequence of these particular transformations is the fact that a co mprehensive digitalization of criminal justice is not expected in the near future, in view of the thin matter of science – law.

Hidden Figures: The Holy Roman Empire as a “Realm of Ladies”

AbstractThe aim of this article is to make clear that, although men largely dominated the institutions of the Holy Roman Empire, beyond these constitutional institutions we can find many examples of women's agency. In particular, women of noble and princely families assumed political roles, both in relation to territories and to the empire as a whole. While it would not be correct to reinterpret the Holy Roman Empire as a “realm of ladies,” it seems clear that the empire, as a communicative context and dynastic network, was constituted with the participation of elite women, and that women were important for the ritual perpetuation of the constitution of the empire. In short, it was not only law and the constitution and the actions of men that held the empire together, but also the actions of women, who helped shape networks and politics just as they influenced the transfer of knowledge and culture.

국회의원 특권의 공법적 허용 한계 - 특권 내려놓기 논의를 포함하여 -

Our Constitution stipulates the president's criminal privilege (Article 84), the non-arrest privilege of the National Assembly member (Article 44), and immunity Privilege (Article 45), which are privileges for direct constitutional institutions' governing functions. The immunity and non-arrest privileges constitutionally granted by the Constitution are being criticized as indulgences for the politics of revelation or the bulletproof National Assembly that protects criminals. There is pressure to be However, since these powers and privileges are premised on the function of the National Assembly, depending on the case, individual members cannot renounce these privileges on their own, and their existence itself is so important that it cannot be restricted even by a resolution of the parliament. In the 16th presidential election around 2003, the attendance of lawmakers involved in the presidential slush fund case of candidates from both the opposition parties was postponed due to the convening of an extraordinary session of the National Assembly before the prosecution. Due to this incident, the privilege of non-arrest left a stigma as a tool to the 'Bulletproof National Assembly'. At the Constituent Assembly of the 1st Republic, a member of the National Assembly, who also served as the Minister of Agriculture and Forestry, was recommended to resign on the grounds that he had a different view on the president's grain purchase policy, and the arrest agreement was subject to him. There was also a positive case in which Congress protected a member of the parliament from government oppression by rejecting the arrest motion. The immunity privilege does not conform to equity with the general public by sculpting responsibility for criminal acts such as insults or defamation, but it can also be a powerful device to protect lawmakers from illegal government oppression, such as the case of Yoo Seong-hwan. . By the time of the 21st National Assembly's legislative period, all three motions for the arrest of a member of the National Assembly submitted for general crimes unrelated to their legislative activities were approved. This shows a fairly positive progress in that the lawmakers do not wrap themselves around and think about objective legitimacy. However, in general, the legislative activities of the National Assembly members are still being criticized for not reaching the level of the public, and they are being forced to lay down the contents of the various powers that have been given to them. In this situation, in order to systematically review the privileges and privileges of the members of the National Assembly and find ways to improve them, the powers and privileges of the members of the National Assembly will be reviewed, various methods for releasing the privileges will be introduced, and the discussion on the release of the privileges of members of the National Assembly will be briefly discussed. and (II), the most representative privileges of non-arrest and immunity, which are the most representative privileges of the National Assembly, are analyzed (III), and finally, measures to improve the privileges of the National Assembly are presented by dividing them into dropping privileges, non-arrest privileges, and immunity (IV).

Państewko Gabriele d’Annunzio — ustrój Włoskiej Regencji Carnaro

The subject of the study is the constitutional regime of the independent city of Fiume during the authoritarian rule of Gabriele D’Annunzio (September 1919 — December 1920). His power was based not on legal norms, but on the will of the commander known as the prophet (vate) or the leader (duce), supported by the strength of his army. Nevertheless, in September 1920, D’Annunzio proclaimed the Charter of Kvarner — the constitution of the small state, which never came into force. The author analyzes its provisions using the formal-dogmatic approach, pointing to the modernity and originality of its regulations: gender equality, guarantees of social rights, protection of work, secularity of education, society divided into corporations, elements of direct democracy, division of powers between legislative chambers, and a lack of the head of state. Constitutional institutions are presented with consideration of the history of Fiume, studied by the historical approach.
 The author concludes that D’Annunzio did not belong to the fascist movement, but was rather a rival of Mussolini, with a different vision of the state and methods of rule. His Charter of Kvarner can therefore be seen as a concept for the new Italy. At the same time, the commandant was a forerunner of the methods of communicating with society which were later used by the leaders of totalitarian states.

Охрана исторической памяти как институт конституционного права: российский и зарубежный опыт

Introduction. Identification and analysis of factors influencing the transformation of the main institutions of constitutional law, the emergence and development of new constitutional and legal institutions are considered to be an urgent problem for the science of constitutional law. One of the dynamically developing institutions of constitutional law is, in our opinion, the protection of historical memory. The article uses formal legal, historical and comparative methods. Their application will allow for a comprehensive study of the constitutionalization of state memorial policy in Russia and abroad. Theoretical analysis. The protection of historical memory is a multi-component constitutional and legal institution that includes at least three levels: creation and consolidation of the state memorial concept (national image of history); preservation of historical heritage; protection of historical memory from encroachments and distortion. The authors study them in more detail, first, by examining constitutional law of foreign states, and, then, by looking at the constitutional law of the Russian Federation. Empirical analysis. The research into constitutional and legal acts of foreign countries makes it possible to identify a steady tendency towards increasing social and political significance of understanding one’s own national history, which contributes to the formation of a constitutional and legal institution for the protection of historical memory in many foreign countries. Legislation aimed at protecting historical memory was gradually being formed in Russia, including both measures of positive legal regulation and prohibitions on publicly challenging historical facts related to the Second World War. The task of developing a unified political and legal concept of the national image of history and its constitutional and legal legalization turned out to be more difficult. Results. The establishment of the state memorial concept at the constitutional level is aimed at solving the tasks of determining the axiological foundations of development of society, formation of national identity, preservation of cultural identity and spiritual and informational sovereignty. The high social significance of regulated public relations, their relative isolation and internal structural unity give reason to conclude that a new constitutional and legal institution for the protection of historical memory is being formed. This process is typical of both Russia and foreign countries. The controversial issues of the formation of this institution are related to its relationship with the already established principles and institutions of constitutional law.

Means of communication and socio-legal aspects of interaction between subjects of religious-penitentiary space: the case of Muslims

The Constitutional and Legal Institute of Religious Freedom in the Penitentiary System is subordinated to and regulated by the rules established by the Federal Executive Body exercising law enforcement functions in the fi eld of execution of sentences (FSIN of Russia). Finding themselves isolated from society, ethnic and practising Muslims, sentenced to imprisonment, feel forced restrictions on the religious freedom. The time and place of Muslims who perform religious rites and rituals are regulated by the documents issued by the Ministry of Justice of Russia were outlined the internal regulations for correctional institutions. The state is entrusted with the duty to provide in prisons a special environment, which would enable the spiritual nourishment of Muslims, whose rights to freedom of religious life are supported by centralized Islamic religious organizations. The civil institutions exercise public control over this implementation. At the same time, the Russian State is increasingly interested in interacting with the main subjects of the religious and penitentiary space. Among them there are offi cial structures of the Islamic Ummah, sending educated imams and Islamic theologians for religious service in prisons, representatives of the Islamic expert community, also there are Public Councils on the problems of the penitentiary system under the Federal Penitentiary Service of Russia. The present author considers the activities of Muslim spiritual departments to provide prison libraries with religious literature (the Holy Quran and semantic translations, the Hadith of Prophet Muhammad, His biography, books on Islamic law) as well as the best examples of religious literature, which manifest the traditional values of Russian Islam and the imperatives of a positive socio-cultural environment to be the signifi cant means of communication in the religious-penitentiary environment.

The relationship between the President of the Republic of Kosovo and the Assembly in general and in particular in the time period 2011-2016

The Constitution of the Republic of Kosovo in its basic provisions has defined the form of government and separation of state powers, as a fundamental principle of democracy, where the President of the Republic of Kosovo is not part of any of the state powers, but the constitutional powers he exercises affect that he has connections with all state powers. This paper addresses the relation of the President of the Republic of Kosovo with the legislative power, including the exercise of some of his constitutional powers, namely the convening of the constitutive session of the Assembly, the dissolution of the Assembly and the annual speech of the President in the Assembly of the Republic of Kosovo. The above-mentioned competencies, in addition to the theoretical aspect, are also analyzed in the practical aspect when these constitutional competencies of the President were materialized by President Jahjaga during the mandate 2011-2016. Also, the political stalemate and the actions taken by the President, Mrs. Atifete Jahjaga for his overcoming, criticisms and recommendations of the European Commission in the Progress Reports regarding the political stalemate in the country. since the declaration of Kosovo as an independent state in 2008, it has managed to complete a full constitutional mandate, five years, unlike its predecessors and successors until 2019. Therefore, this paper aims to elaborate the exercise of some constitutional powers and the practice of one of the most important constitutional institutions in the Republic of Kosovo, that of the President of the Republic of Kosovo.

Approval of the new judicial map: A priority of the Albanian justice reform

The justice reform that was crowned in our country with constitutional and legal changes in 2016, aims to reorganize existing institutions in the field of justice and establish new constitutional institutions that aim to increase public confidence in more effective justice. One of the main normative acts that are part of the justice reform in Albania is the adoption of law no. 98/2016 “On the Organization of the Judiciary in the Republic of Albania”, which provides, inter alia, the approval of the new judicial map, based on the criteria and principles of territorial distribution of courts of general jurisdiction, courts of appeal and special courts, including administrative courts. Based on this normative act, it turns out that the new judicial map has not been finalized yet, which is approved by the Ministry of Justice in cooperation with the High Judicial Council. Related to the content of the new draft judicial map in the discussion process, the question that arises is whether “out of 22 courts of general jurisdiction of the districts, including six administrative courts of first instance, including six courts of appeal of general jurisdiction, which are supposed to be reorganized. in 12 courts of general jurisdiction, two administrative courts of first instance and one court of appeal of general jurisdiction “would it be a real opportunity to increase the quality of judicial activity, within a fair legal process? There is a postulate in jurisprudence that is “delayed justice is denied justice”. Based on this postulate, the new judicial map has urged the debate regarding the fact that the resolve of court proceedings as soon as possible, as well as the unification of case law due to the centralization of courts, should not jeopardize access to the parties and interest group for a fair and public process by a competent, independent and impartial tribunal established by law. The lack of resources in the judiciary, due to the vacancies with judges and prosecutors that are currently being created at all levels of the justice system, cannot serve as an excuse for the concentration of courts through a new judicial map without analysis of other social and economic factors, which, as we analyzed above, directly affect the delivery of a more efficient and effective justice than what we currently have.

The revalution proces in Albania during 2016-2021

The constitutional reform related to the system of justice realized in 2016 in Albania, was welcomed with a positive enthusiasm by all stakeholders, civil society, business groups, including the political class who voted for this reform unanimously. One of the goals of the implementation of this reform is not only the restoration of new justice institutions and the strengthening of existing ones but above all the re-evaluation of all judges and prosecutors who are part of the judiciary in three main aspects: – asset valuation, a background and integrity check to discover the links to organized crime and a qualification assessment. The total number of all judges and prosecutors in the Republic of Albania is over 800 subjects, starting from the courts of the first instance and the prosecutor’s offices near them to the Constitutional Court. The re-evaluation process is carried out by two new constitutional institutions that are established and function for a transitional period, the Independent Qualification Commission (IQC) as a first instance with a mandate of 5 years, and the Appeals Commission (AC) as a degree second with an 8-year term.

ЕКОНОМІЧНИЙ КОНСТИТУЦІОНАЛІЗМ: ПОСТАНОВКА ПРОБЛЕМИ

The article clarifies the essence of economic constitutionalism (constitutional economics) as an interdisciplinary doctrine. It is argued that economic constitutionalism (or constitutional economics) is the name of an interdisciplinary scientific field on the border of economics and constitutional law. In essence, economic constitutionalism is a special section of constitutionalism in general, which focuses on economics, property, the combination of private law and public law principles in the constitutional text, the theory of legitimate expectations, the economic nature of human rights and other constitutional legal objects regulation, ensuring de facto equality and establishing the limits of interference with economic freedom, financial and budgetary issues, the economic consequences of the concept of the welfare state and social human rights, etc. It is proved that economic constitutionalism is a promising interdisciplinary direction that integrates politics, constitutional law and economics. The importance of researching the economic nature of basic public and state constitutional institutions is beyond doubt. Similarly, the impact of relevant institutions, on the other hand, especially in the transition and transformation stages of development is enormous. The following main directions can be identified for further research on economic constitutionalism (constitutional economics), namely: consideration of law and the constitution as a manifestation of self-regulation; the role of property institutions, market economy, capitalism to ensure freedom; the need to ensure equality in order to implement rational choices, the interplay of democracy and social rights; the link between democratic transit and a market economy, exploring ways to grow and overcome poverty. The practice of interpretation of the constitution by the body of constitutional jurisdiction plays a significant role in economic constitutionalism. Analysis of the experience of the Ukrainian Constitutional Court in this aspect so far leads to the conclusion that its positions are inconsistent and, unfortunately, insufficient role in the constitutional economy (in terms of potential positive impact).

Moral values of constitutionalism: historical retrospective and modern reality (reflections on the theory of the moral state by S.N. Baburin)

The author of this article continues the discussion that unfolded on the pages of the journal “State and Law” about the monographic study of Professor S.N. Baburin “The Moral State: A Russian perspective on the values of constitutionalism". The article deals with aspects related to the moral and national-cultural values of constitutionalism. The study is conducted in a historical retrospective, affecting the ideas of the formation of constitutionalism, the formation of constitutional legal consciousness, the formation of constitutional institutions. The article raises a number of modern issues related to the constitutional reform of 2020, the formation of a new constitutional model that reflects the state-national identity, the formation of a digital society.

The Constitutional and Legal Organization of the Supreme Constitutional Court in the Iraqi State for the Year 2005

The constitutional system in Iraq after the overthrow of the previous regime in 2003 witnessed major fundamental changes, which marked the end of a historical era, the advent of the beginning of a new phase of political and constitutional history, and the adoption of the federal (federal) system as a form of the new Iraqi state, where Iraq transformed from a simple state to a complex state. With the adoption of the democratic parliamentary system based on the principle of separation of powers and respect for the constitution by emphasizing the principle of the supremacy of the constitution as a system for the work of state authorities and the management of its various constitutional institutions.
 If the constitutional distribution of competencies between the federal authorities is one of the essential characteristics of the federal systems, then one of the important features in the design of any federalism and its effective operation is to ensure the rule of law and the constitution as the source of powers, and in contrast, one of the authorities infringes on the powers of the other, which leads to a constitutional imbalance in the federalism And the matter that leads to its disintegration and its end, and in order to preserve this constitutional system, it is necessary to establish a supreme judicial body to ensure respect for the application of the constitutional principles of this system and not to be violated.
 The federal system is characterized by the presence of a Supreme Constitutional Court that works to monitor the constitutionality of laws and chapters
 In disputes between the central regions, it has the authority to interpret the Iraqi federal constitution, especially the interpretation of the constitutional rules related to the distribution of constitutional powers between the regions and the federal government.
 Which is one of the thorny issues in the countries of the union, and on this basis in Iraq the foregoing was the establishment of the Federal Supreme Court, which was granted by the constitution judicial and political competencies in order to exercise its role in preserving the union and the balance of powers within it while preserving the constitution and safeguarding its principles.

Institute of public associations in the system of human rights enforcement in Ukraine: constitutional and legal aspect

Purpose. The aim of the work is to analyze in the constitutional and legal aspects public associations as a constitutional institution of public nature, to determine its role and importance in the system of human rights enforcement in Ukraine, to clarify the peculiarities of formation and effective activities of this institution. Methodology. The methodology includes a comprehensive analysis and generalization of available scientific and theoretical material and the formulation of relevant conclusions and recommendations. The following methods of scientific reseach have been implemented: terminological, logical-semantic, functional, system-structural, logical-normative. Results. The study states that the driving force of a democratic, legal process is the growth of an active civil position, which is the basis for the formation of public associations, which are a basic component of civil society. The institute of public associations is an important component of the system of constitutional law of Ukraine. Involving citizens in political decision-making is one of the main principles of direct democracy. The focus is on improving the legal framework of the institute of public associations. Scientific novelty. The study has revealed that public associations, as institutions, should be an integral part of civil society in the formation of democracy; to introduce constitutional and legal mechanisms of interaction with the institution of public associations and to identify their real practical effectiveness for ensuring human rights and needs in society. Practical significance. The results of the study can be used in law-making and law enforcement activities during the functioning of the institution of public associations in the system of human rights.

The Malaysian Election Commission: Navigating Electoral Authoritarianism and Political Change

AbstractThe urgency of electoral reforms has long been identified as a key to improving democracy in Malaysia. For decades, electoral manipulation through gerrymandering, malapportionment, and issues with the electoral roll and conduct of elections have undermined democratic quality and competition. The Malaysian Election Commission (EC) has – understandably – come under scrutiny for its role in facilitating and sustaining these problems. However, what requires a greater level of attention is the question of how the EC – despite its position as a constitutional institution that exists independently from the other branches of government – has operated in ways that undermined Malaysia's democracy and maintained a dominant party regime for over six decades. This Article brings this to light by examining the structural, institutional, and political conditions that shape the EC's operation, particularly with regard to re-delineation of constituencies and the conduct of elections. It argues that flaws in constitutional design, along with subsequent constitutional amendments, have rendered the EC vulnerable to partisan capture and thus affected its ability to function as an independent constitutional institution. In addition, this Article demonstrates how changes in political imperatives and judicial restraint in reviewing the EC's decision-making have also contributed to the deficiencies in Malaysia's electoral democracy.

Confucian Democracy in East Asia: A Discussion of Sungmoon Kim’s Democracy After Virtue: Toward Pragmatic Confucian Democracy

Confucian Democracy in East Asia: A Discussion of Sungmoon Kim’s <i>Democracy After Virtue: Toward Pragmatic Confucian Democracy</i>

The Prospect of Pragmatic Confucian Democracy: Reply to Dryzek, Macedo, Ackerly, and Li

The Prospect of Pragmatic Confucian Democracy: Reply to Dryzek, Macedo, Ackerly, and Li

Sungmoon Kim’s Democracy After Virtue

Sungmoon Kim’s <i>Democracy After Virtue</i>

Some Reflections on Constitutional Amendment Movement in the First Half of Moon Jae-In Government: With Special Reference to the Role of the Judicial Bodies

This article aims at looking into the historical, political, social, and institutional considerations that may have influenced the suspension of President Moon Jae-In s proposal for constitutional amendment in 2018. Although broad factors and dimensions can be called upon in this regard, as far as institutional considerations are concerned, a focus will be given to the role of the judicial bodies in constitutional change. Either any abrupt attribution of all the political, social, and economic problems which the Korean society faces to the constitutional system alone and its concomitant idealistic or fundamentalist, partisan and non-consensual drive for comprehensive constitutional amendment as a panacea for such pathologies are doomed to failure. Since any constitutional reform movement should be based upon deliberative consensus on the exact causes of constitutional problems and effective alternatives to the existing constitutional institutions and rules, not only constitutional amendment but also legislative reform and changes in political culture are required for the successful constitutional change. The Korean experience in the first half of Moon Jae-In Government shows that constitutional changes through either formal constitutional amendment or informal change through judicial interpretation of the constitution can be foreseeable

District health network policy in Iran: the role of ideas, interests, and institutions (3i framework) in a nutshell

BackgroundDistrict Health Network (DHN), one of Iran’s most successful health reforms, was launched in 1985 to provide primary health care (PHC), in response to health inequities in Iran. The present study aims to use interrelated elements of the 3i framework: ideas (e.g., beliefs and values, culture, knowledge, research evidence and solutions), interests (e.g., civil servants, pressure groups, elected parties, academians and researchers, and policy entrepreneurs), and institutions (e.g., rules, precedents, and organizational, government structures, policy network, and policy legacies) to explain retrospectively how (DHN) policy in Iran, as a developing country, was initiated and formed.MethodsA historical narrative approach with a case study perspective was employed to focus on the formation and framing process of DHN. For this purpose, the 3i framework was used as a guideline for data analysis. This study mainly searched and extracted secondary sources, including online news, reports, books, dissertations, and published articles in the scientific databases. Primary interviews as a supplementary source were also carried out to meet cross-validation of the data. Data were analyzed using a deductive and inductive approach.ResultsAccording to the 3i framework, the following factors contributed to the formation of DHN policy in Iran: previous national efforts (for instance Rezaieh plan) and international events aiming to provide public health services for peripheral regions; dominant social discourses and values at the beginning of the Iranian revolution such as addressing the needs of disadvantaged and marginalized groups, which were embedded in the goals of DHN policy aiming to provide basic health services for deprived people especially living in rural and remote areas. Besides, the remarkable social cohesion and solidarity among people reinforced by the Iran-Iraq war were among other factors which contributed to the formation of participatory plans such as DHN (ideas). Main policy entrepreneurs including Minister of Health, his public health deputy and two planners of DHN with similar and rich background in the public health field and sharing the same beliefs (interests) which subsequently led to creation of tight-knit policy community network between them (institutions) also accelerated the creation of DHN in Iran to great extent. Political support of parliamentary representatives (interests), and formal laws such as principles of Iran Constitution (institutions) were also influential in passing the DHN in Iran.ConclusionsThe 3i framework constituents would be insightful in explaining the creation of public health policies. This framework showed that the alignment of laws, structures, and interests of the main actors of the policy with the dominant ideas and beliefs in the society, opened the opportunity to form DHN in Iran.