Constitutional Law Research Articles

Consulting citizens: Addressing the deficits in participatory democracy

‘Democracy’ is a pliable, and much abused concept, yet constitutional law cannot do without it. It is usually linked to the equally flexible notions of rule of law and constitutionalism. Due to many changes in public life around the world, entrenched ideas of governmental propriety, including being democratic, are undergoing a ‘loss of meaning’. The Constitution of the Republic of South Africa, 1996 explicitly requires democracy to be participatory. Despite various official efforts to formulate the modalities of public consultation and an established routine of public hearings and calls for comment on draft legislation and policies, it has not developed beyond a ‘box-ticking’ exercise, sometimes amounting to outright abuse. As a corrective to the shortcomings of standard electoral democracy a novel approach to the involvement of the citizenry in contentious decision-making has emerged in many parts of the democratic world. It takes the form of citizens’ assemblies composed to achieve descriptive representation rooted in an age-old method of randomised selection, known as ‘sortition’. To employ these mechanisms to realise genuine participatory democracy would require surmounting the difficulties presented by the complexity of South African society. Modern technology and advances in sortition methodology hold promises of overcoming the difficulties, but it would also require a political sea change.

Constitutional regime in the Republic of Poland: Democracy and authoritarian tendencies

The purpose of the article is the analysis of the constitutional regime in the Republic of Poland, the study of democratic and authoritarian tendencies. The article is devoted to the coverage of one of the most pressing issues, namely the constitutional principles of Polish democracy, which play an important role in determining the political system and functioning of the State. They establish the basic principles of a democratic system, protect the rights and freedoms of citizens, and determine the relationship between the Government and the people. Poland, as a democratic republic, has its own constitutional principles, ensuring the stability of the political system and the development of democracy in the country. The article analyzes the constitutional principles in the doctrine of constitutional law and constitutional practice of Poland, examines their nature and significance for the supremacy of the Constitution and the development of the legal system. Authoritarian tendencies are covered as well. It is determined that nowadays there is a tense interaction between democratic principles and tendencies towards authoritarianism in the Republic of Poland. This situation is reflected in political actions, legislative changes and Government actions that can contribute to the undermining of democratic institutions and values.

Between Authority and Usurpation? Common Good and Constitutional Government

Abstract The classical tradition of law and government supports lawful authority and condemns usurpation. But the common good sometimes provides a reason to sweep aside existing constitutional arrangements. This article considers the way in which authority and usurpation feature in Adrian Vermeule’s recent book, Common Good Constitutionalism, and thus reflects on the nature of constitutional government. Vermeule’s work combines a commendable philosophy of government with a questionable philosophy of legal reasoning, which weakens the force of Vermeule’s account of American constitutional law and practice. Reflection on the scope of the common good—on whose common good counts—has important implications for how, and for whom, authority should be exercised. Collective agency is important in securing the common good and representative democracy is an important means to unite a people in common action for their good. Constitutional government should aim to command popular support. Forms of constitutional government are contingent, but usurpation of lawful public authority is an evil that should be avoided.

Applicability of the Doctrine of Necessity in Constitutional Law

Applicability of the Doctrine of Necessity in Constitutional Law

ADDRESSING HUMAN RIGHTS VIOLATIONS IN THE CRIMINAL JUSTICE SYSTEM OF KAZAKHSTAN: THE ROLE OF THE PROSECUTOR'S OFFICE AND A CALL FOR LEGISLATIVE REFORMS

Background: Human rights violations within the criminal justice system represent a pervasive problem. International human rights agreements and national laws clearly assert the absolute protection of human rights. However, despite these strong legal principles, human rights violations frequently occur within the criminal justice system. This article examines the problem of human rights violations in the criminal justice system of Kazakhstan and the role of the prosecutor's office in protecting human rights. Methods: This study utilised documentary analysis and secondary data analysis methodologies to conduct a detailed examination of legal acts, international agreements, and policy documents It specifically reviewed documents including the Universal Declaration of Human Rights (UDHR), the Constitutional Law “On the Prosecutor's Office”, the Concept of Legal Policy of the Republic of Kazakhstan up to 2030, and human rights reports from international bodies such as Amnesty International, Human Rights Watch, and Freedom House. The study also analysed reports from the Ministry of Justice and the Commissioner for Human Rights of the Republic of Kazakhstan. Results and conclusions: By analysing international human rights treaties, national legislation, and reports from leading human rights organisations, the study exposes significant discrepancies between legal mandates and actual practices. Despite Kazakhstan's formal commitment to international human rights standards, it reveals systemic issues, including instances of human rights abuses in criminal justice. The study highlights the critical role of the prosecutor's office in human rights protection while also pointing out the challenges in effectively fulfilling these responsibilities. The findings stress the importance of legislative reforms for enhancing the protection of human rights in criminal justice. The study is particularly relevant for policymakers, human rights advocates, and scholars interested in the intersection of law enforcement and human rights protections, offering insights that could guide future improvements in criminal justice practices.

Uniform Civil Code of Uttarakhand and Marriage Laws

This paper is based on the areas of Constitutional and Personal Law. It shall address the reader on the relevance of the Uniform Civil Code in the Indian scenario. The paper sheds light on how the need for UCC for recognised in the Constitution of India itself, but due to reasons of diversity, development, etc. it was never applied. It shall also talk about the states in India that have this module working in the state. The reader shall also be made aware of the conflict between the application of the UCC in a land of religious beliefs. The researcher has addressed the importance and drawbacks of UCC, and also discussed the latest application of the Code in the State of Uttarakhand, in consonance with the marriage laws.

Types and characteristics of human rights limitations

The scientific article explored various aspects of limitations on human rights and freedoms, including their classification, mechanisms, and application features. The article highlighted the distinction between direct restrictions on rights and limitations on their implementation, as well as voluntary and compulsory limitations. The main principle of the study was to ensure a balance between the protection of individual rights and the state’s need to ensure security and order. Various types of limitations that may arise in times of war or emergency were analyzed in detail, taking into account their legality, proportionality, and justification. Restrictions on human rights are only temporary in nature. Human rights can be limited only if this is directly provided for by the Constitution of Ukraine and does not contradict the norms of international law. Only in this case, restrictions can be considered legitimate and legal. It is also necessary to say that from the point of view of practical application, the problem of the relationship between private rights and state activity is particularly important for constitutional law: on the one hand, the state, and on the other, a person. We mean that the state is created by people for themselves, in order to protect their rights, but again, the state arises as a response to the inability of human society to live without it, without its power and limitations, the state becomes, as it were, the highest manifestation of social organization and order, the only guarantor of security, stability and development. To date, the issue of restrictions on human and citizen rights in the rule of law by state authorities has become the most urgent. The main facts of violation of human and citizen rights are violations by the state, as well as violations by individuals. The legislation of Ukraine stipulates that the rights and freedoms of a person and a citizen can be limited only to the extent that it is necessary for the security of the state, the population and the defense of the country. Therefore, the establishment of certain prohibitions caused by the specified legal regime should be of an exclusively temporary nature. The article also discussed the classification of human rights based on their content and the possibility of limitation, providing a basis for further research in this area. Thus, important aspects of restricting human and citizen rights were revealed, contributing to an understanding of their essence and scope.

PRACTICES OF GOOD GOVERNANCE IN NEPAL

This article has mirrored the positive and negative aspects of good governance in Nepal. It has explored both weaknesses and strengths of good governance implications in the system of operation of various organs of the government of Nepal under the new constitution 2015 as envisioned by the legislatures via the Constitution Assembly. Despite the fact that democracy is the precondition of good governance, Nepal, being a democratic nation, lacks a proper functioning form of good governance. Several rules and strategies for good governance are included in Nepal's constitution and other laws. They are, nevertheless, constrained by the black letters of legislation and court judgments. Even Nepal's Supreme Court has issued multiple verdicts on the question of good governance. The division into central, federal, and local governance only can't fulfill Nepal’s good governance needs. But, to manage difficulties within and between municipal, provincial, and federal governments; development projects and governance plans necessitate a sustainable problem-solving mechanism. One cannot deny that Nepal's governance system is still in its early stages of improvisation. However, in the coming days, vital actions will be more important than the provisions guaranteed by the Constitution but never implemented practically.

Keterlibatan Orang dengan Gangguan Jiwa dalam Proses Pemilu: Tinjauan Hukum Perdata terhadap Kewenangan dan Batasan

The involvement of people with mental illness in elections is an important issue in the context of civil law, human rights and political participation. In Indonesia, although the 1945 Constitution and related laws provide equal rights for all citizens, including people with mental disabilities, there is still debate about their eligibility to participate in elections. Several articles in the Civil Code state that people with mental illness are not legally competent, while electoral laws allow their participation if they are not permanently mentally impaired. This research examines the legal basis and limitations of the authority of persons with mental disabilities in elections, and analyzes the existing legal uncertainties. It is hoped that the results of this research can provide recommendations to improve political inclusion for people with mental disabilities in Indonesia.

THE FORM OF GOVERNMENT OF A DEMOCRATIC STATE ON THE BACKGROUND OF CRISIS POLITICAL AND INSTITUTIONAL DESIGN

The article is devoted to the study of the peculiarities of the form of government as a structural basis for the exercise of power, formed within the framework of constitutional law, under the condition of representation of the main socio-economic groups of society. The purpose of the study is to establish the peculiarities of the form of state government as a factor in the formation of democratic institutional design. Features of the form of government as a factor of institutionalization of relations between authorized centers of power are characterized. It was emphasized that the modernization of the form of government in the political agenda may indicate a lack of deep consensus regarding the development of the political system. The significance of changes for institutional design within the evolution of the form of state government, which depends on the level of satisfaction of the requirements and needs of key political players, is analyzed. The significance of the political experience of Ukraine, which during the last decades has shown that political expediency is a more significant principle than considerations of preserving constitutional stability, is revealed. It was found that the existence of the current form of government in Ukraine is the result of the evolution of certain institutions, first of all, the institution of the presidency. In the context of the experience of the countries of Central and Eastern Europe, the assessment of the crisis phenomena of 2008 and 2010 becomes important, in particular the pressure of the demands of socio-economic balancing, which caused the “internal national reading” of the functioning of the form of government. It is revealed that the use of the existing potential of the form of government to ensure advantages in political competition led to the authoritarianization of the institution of the prime minister in modern Hungary. It has been proven that the international community’s fixation on the deterioration of the state of human rights protection has become a clear evidence of the influence of the form of government on inter-institutional interactions, in particular, in increasing the pressure of public authorities on civil society. It was established that the contradictions between high standards and the demands of the consumer society caused the support of right-wing conservative populist political forces. It was found that the situation in modern Slovakia shows that the parliamentary republic as a form of government also ensured the transition to democracy and the observance of democratic procedures. It was established that the trends of “non-normative” use of the power potential of the form of state government may indicate the search for a national model of balance between branches of government and key officials. It was concluded that a high level of self-regulation in the political system corresponds to a high level of civil political activity, responsibility and consensus of political elites, professionalism of the political class as a whole.

The Changes of the Basic Rights in the Current Constitution of China

The current Constitution of the People’s Republic of China is the 1982 Constitution, which is the fourth constitution after the founding of the People’s Republic of China. The provisions of the current Constitution on the fundamental rights of citizens are generally similar to those of the first Constitution of 1954, but are more specific, while the freedom of movement provided for in the 1954 Constitution is deleted. The 1975 Constitution and the 1978 Constitution are the second and third Constitutions, respectively. Because of their special historical period, the provisions on fundamental rights in these two constitutions are retrogressive and failing. The historical background of the revision of the Constitution, the possibility of realizing rights and the level of social development are the main reasons for determining the provisions of the basic rights of citizens in the 1982 Constitution. In 2004, the current Constitution was amended to include “the State respects and protects human rights,” which establishes the constitutional obligation of the State to guarantee human rights. In practice, there is still ongoing debate over how the State’s guarantee obligations are implemented and whether citizens can file lawsuits if they believe that their fundamental rights have been violated. In recent years, the recordation review has partially realized the supervision of legislation that may infringe on citizens’ basic rights by reviewing the constitutionality and legality of laws and regulations, but citizens have not been able to directly protect their rights through litigation. The changes in the basic rights of citizens in terms of constitutional provisions and legal guarantees over the past 40 years are the result of the development of the rule of law in China. In order to more effectively solve the problem of constitutional rights from text to reality, it is also necessary to further develop the constitutional review system.

Institute Of Constitutional Complaint In The Republic Of Kazakhstan: Some Issues Of Theory And Practice

The beginning of the Constitutional Court’s operation in the Republic of Kazakhstan marked the posing of a large number of problematic issues that require their solution both at the level of legal theory and practice. The presented article is focused on the analysis of the constitutional complaint’s institution and the formation of suggestions aimed at improving the relevant provisions of the Law of the Republic of Kazakhstan «On the Constitutional Court of the Republic of Kazakhstan» (hereinafter referred to as the Law). The author, first of all, studies the issue on the system of entities having the right to file a constitutional complaint. The author states that the current wording of the Art. 45 of the Law unjustifiably narrows the range of such entities. A constitutional complaint is currently not available to foreign citizens and stateless persons, as well as to legal entities, which, according to the author, is a manifestation of discrimination. Besides, the author studies the issue on the subject matter of a constitutional complaint – regulatory legal acts of the Republic of Kazakhstan. It is concluded that the definition of the category of «regulatory legal acts» is borrowed from the Law of the Republic of Kazakhstan «On Legal Acts», which, in turn, is improperly formulated. In particular, it does not absolutely cover all types of legal acts containing the norms of law, which, therefore, «takes» them out of the scope of the subject matter of a constitutional complaint. It is offered that the Law of the Republic of Kazakhstan «On Legal Acts» should provide an independent type of regulatory legal act – a legal act of social partnership within the system of legal acts. The author pays attention at the end of the article to the need to increase the level of consistency of certain provisions of the Art. 45 of the Law with each other. As a result of the conducted research, the author offers the paragraph 1 of Part 2 of the Art. 45 of the Law in the following wording: «the disputed law or another regulatory legal act applied by the court, directly affects the rights and freedoms in a specific case with the participation of a citizen, and a judicial act was issued in the case, which entered into legal force». In addition, some recommendations were made in regard to Part 4 of the Art. 45 of the Law. As a conclusion, the author indicates the need to take systematic steps aimed at clarifying the provisions of the Law, to establish appropriate procedures, wide informing campaign for citizens about the limits of the competence of the Court, as well as to ensure studying the discipline of «Constitutional Procedural Law» by the students.

Russian Public Assembly Law: Constitutional Evolution 1993–2023

The current Public Assembly Law in the Russian Federation, which regulates the implementation of the constitutional right to freedom of peaceful assembly in Russia, has been developed and formed over the course of the past three decades, following the ratification of the Russian Constitution in 1993. The Public Assembly Law can be described as an important institute of public law as well as a sub-branch of the constitutional law of Russia, which combines constitutional provisions, relevant norms of the federal and regional laws and case law of the Russian Constitutional Court regarding the implementation of the Freedom of Peaceful Assembly. The modern Public Assembly Law has high importance for the development of a democratic society and for the rule of law. The author investigates the constitutional adjudication of the Russian Constitutional Court from 1993–2023, focusing in particular on its eleven judgments concerning the implementation of Article 31 of the Russian Constitution, which defines the constitutional standards of the Freedom of Peaceful Assembly. The author also examines several prominent cases of the Russian Constitutional Court, referred to as decisions with positive content, which are crucial for obtaining a systemic overview of the current problems of the Public Assembly Law in the Russian Federation.

Preservation and Strengthening of the Value and Ideological Foundations of Contemporary Russian Legal Science

The author emphasizes the importance of scientific jurisprudence in legal consciousness formation and strengthening the legitimacy of the legal order in Russia within the context of constitutional transformation and a changing socio-historical environment across the country. As the rigid separation of politics, ideology, and jurisprudence comes under criticism, it is argued that law is interconnected with social attitudes and cannot be purely non-ideological. Additionally, the risks associated with the arbitrary borrowing of foreign ideas and applying them in Russian scientific jurisprudence are discussed, such as human rights concepts and legal globalization methods. The need to create an independent system of legal ideals based on national traditions and values is emphasized. In this regard, scientific jurisprudence lags behind practical needs and the dominance of a template-schematic approach. The author comes to the conclusion that it is important to intensify the efforts that seek to strengthen the role of Russian constitutional law in the educational process, for students of law as well as students of other disciplines.

THE INDONESIAN ADVOCATES ASSOCIATION AS A CONSTITUTIONAL STATE ORGAN

This research aims to analyze PERADI's position in the Indonesian constitutional law system and discover PERADI's authority as a constitutional state organ. This research is qualitative research with a normative juridical approach and data analysis techniques using descriptive analysis. This research concluded that PERADI is a state organ, and PERADI is classified as an Auxiliary agent, which has a special position and authority in its function as a state org General Election Commissionan. Institutions or organs established by the state to implement statutory norms as regulated in the provisions of Article 7 of Law No. 12 of 2011 as amended by Law No. 15 of 2019 concerning Amendments to Laws Number 12 of 2011 concerning the Formation of Legislation is a state institution or state organ. In a modern legal state, the government promotes and organizes general welfare, which Lemaire calls bestuurszorg. This has implications for government work becoming more extensive. The Indonesian Advocates Association, better known by the abbreviation PERADI as an advocate organization that was born from Law No. 18 of 2003, is part of the government's role in improving the welfare of society in the field of law enforcement so that it can be said that Peradi is a state organ that carries out state functions.

Constitutional legal limits to privacy protection

Relevance. The right to privacy, as one of the basic constitutional rights of man and citizen, is subject to protection in accordance with Art. 23, 24 of the Constitution of the Russian Federation. On the basis of constitutional justice and the scientific views of theorists, the content of the law in question is disclosed, problems of a legislative and terminological nature that affect its content and the establishment of limits of constitutional legal protection are described.The purpose of the study is to supplement theoretical provisions that contribute to the deepening of scientific knowledge about the protection of the constitutional right to privacy, its content and the limits of constitutional legal protection.Objectives: to analyze the practice of the Constitutional and Supreme Court of the Russian Federation in cases of protecting the right to privacy and the scientific positions of scientists regarding its concept; describe the state of constitutional and legal protection and the content of the right in question; identify legislative and terminological gaps impeding its proper protection; define the boundaries of constitutional legal protection.Methodology. The study was carried out using methods of analysis and synthesis, induction and deduction, documentary, formal-legal, system-analytical and formal-logical methods. The results of the study are formulated theoretical provisions characterizing the content of the right to privacy and the objective limits of its constitutional and legal protection.Conclusion. In the theory of constitutional law and the practice of the Constitutional Court of the Russian Federation, there is a change in the trend in the interpretation of the right to privacy from «negative» to «positive». It is transformed by supplementing the concept of private life with new types of information that make it up (the right to genetic inviolability, inviolability of personal data, secrecy when using reproductive technologies, etc.). A forecast is given on the modernization of the system of personal human rights with the recognition of an independent right to protect personal data.

Безопасность как основа гражданской солидарности в условиях чрезвычайной ситуации

On the events of the emergency experienced by the author example, the civic solidarity is revealed are essence, formulated as a part of the concept of citizenship and as an opportunity for an individual to express himself in society through association. On positive and negative examples of citizens solidarity are shown that have arisen due to security threats, the problems of possible or proper citizens behavior to ensure the balance of interests of society and the state are shown. The author's characteristic of civil solidarity concept is proposed, the proper institutionalization of which in the theory of constitutional law will contribute to the achievement of mutual trust between society and citizens.

Perubahan Hukum Tata Negara di Indonesia Setelah Amandemen UUD 1945

The 1945 Constitution has undergone four amendments. These amendments have brought significant changes to Indonesia's constitutional law. They encompass the transformation of the state from a unitary to a unitary state with broad autonomy, a shift in the governmental system from presidential to parliamentary-presidential, alterations in the presidential and vice-presidential election systems, changes in the judicial system, and modifications in the party system. This research aims to examine the changes in Indonesia's constitutional law following the amendments to the 1945 Constitution. Additionally, it seeks to analyze the impacts of these changes on Indonesia's constitutional system. The research employs a normative legal method, examining primary legal materials such as the 1945 Constitution and other related legislation concerning constitutional law. Furthermore, secondary legal materials such as books, articles, and journals related to constitutional law are also scrutinized. Based on the research findings, the alterations in Indonesia's constitutional law after the amendments to the 1945 Constitution have significantly impacted Indonesia's constitutional system, making it more democratic and ensuring greater respect for human rights.

Constitutional safeguard research of female equal employment right in China- Based on the perspective of empirical investigation

Employment is the foundation of people's livelihood. As a basic human right, the right to equal employment has always been a top priority for constitutional protection. Female workers are an important part of the economy and society, and their equal employment is an important catalyst for economic development. Women's right to equal employment is an important element in realizing women's personal and social values, as well as an important element of the State's efforts to build a harmonious society. Compared with the early days of the founding of the People's Republic of China, the protection of women's equal rights in employment has made great progress. However, the influence of history, culture and traditional concepts still lingers, and the burden of women's maternity has aggravated the invisible discrimination in employment, while the newly released "three-child" policy has also had a certain impact on equal employment. The phenomenon of women being discriminated against in employment is still not uncommon. Therefore, this paper explores the problems, countermeasures and future development direction of the protection of women's right to equal employment in China from the system of protection of women's right to employment in China's Constitution and other laws and judicial practice. On the one hand, China should improve the existing laws and regulations, improve judicial procedures, define the criteria for determining discrimination in employment, and formulate a special anti-discrimination law; on the other hand, we should strengthen the law enforcement mechanism, and set up a specialized labor inspection and enforcement agency to protect equal employment and a more pro-employment “Equal Employment Commission”.

Division Construction Government Authority In Law Number 23 of 2014

The concept of the division of government affairs in deconcentrating and co-administration has a long history in Indonesian constitutional records. Amendments to the 1945 Constitution, especially the second amendment concerning the concept and pattern of the division of a government, have indicated that a centralized government would actually pose a threat to disintegration so that strengthening decentralization is not a weakening of Indonesia, but an effort to strengthen it. In other words, the choice to use the concept of autonomy as broadly as possible should be understood as a way to build a just balance between central and regional power relations. One of the issues regarding the constitutionality of regional government that has become a space for academic debate after the issuance of Law No. 23 of 2014 concerning Trade Law relates to the concept of the division of government affairs between government structures. Moving on from the point of view of State Constitutional Law and State Administrative Law, the analysis will be directed at the parameters used to construct the division of authority between government structures based on executive power (Article 4 paragraph (1) of the 1945 Constitution of the Republic of Indonesia) or based on the authority stipulated by the constitution. In another part, Law Number 23 of 2014 has reduced the essence of the concept of deconcentrating which previously was only carried out by the Governor, now it is also carried out by the Regent/Mayor. In such a concept, the problem is how to juxtapose the decentralization method with other methods such as deconcentrating and co-administration and institutionalization of the three principles.