Constitutional Limits Research Articles

Legal and Technical Defects of Constitutional Amendments of 2020

The quality of legal and technical elaboration of amendments to the Constitution of the Russian Federation, approved by the all-Russian vote on July 1, 2020, does not correspond to the level of the Basic Law. Oddly enough, the constitutional legislator ignored a number of basic technical means, rules and methods of legal technique. Thus, the constitutional amendments were drafted without taking into account the requirements of the structural organization of the legal act, namely: many new norms were included in inappropriate articles, the transitional provision on "resetting the deadlines" was duplicated in the main text of the Constitution. The authors of the amendments abandoned criteria of efficiency and compactness of legislative norms, having included an identical set of restrictions in nine articles of the Constitution in relation to various categories of officials. The text does not meet the requirement for uniformity of legal regulation, legal structures, the unity, simplicity and brevity of terminology: the scope of constitutional restrictions for various categories of officials differs somewhat without any objective reasons; there is no uniformity in the issue of the possibility of establishing additional requirements for officials by laws, “bifurcation” of the titles for senators (who in Chapter 9 of the Constitution are still referred to as members of the Federation Council). Insufficient attention to the requirement of consistency of legal norms has led to the creation of a new contradiction between Art. 71 and 72 of the Constitution of the Russian Federation. Amendments also have a number of other legal and technical defects. Such serious and numerous defects in the legal technique of amendments to the Constitution of the Russian Federation became a natural result of a steady decline in the quality of federal legislation that has lasted for a long time. Constitutional amendments clearly demonstrate an insufficient level of legal culture in our country, which sharply raises the question of a radical improvement in the quality of legal technology, and legislative technology in particular.

Federal Constitutional Challenges to the OSHA COVID-19 Vaccination Mandate

Despite the development of vaccines against once-widespread, potentially fatal diseases such as smallpox and polio, the United States has never had a general federal vaccination mandate. Yet in September 2021, President Joe Biden directed the Occupational Safety and Health Administration (OSHA) to promulgate a mandatory vaccination requirement—known as an “emergency temporary standard”—under the Occupational Safety and Health Act of 1970 If OSHA has the authority to adopt such a rule (which is doubtful), the federal courts will soon decide what, if any constitutional limitations exist on the federal government’s vaccination authority. The most likely challenges will rest on one (or more) of four provisions: the Article I Commerce Clause, the Fifth Amendment Due Process Clause, the First Amendment Free Exercise Clause, and the Fourth Amendment.Despite a host of Supreme Court decisions filling out the Commerce, Due Process, and Free Exercise Clauses, as well as the Fourth Amendment, the Court’s 1905 decision Jacobson casts a long shadow over contemporary constitutional law. Unless and until the Court overrules Jacobson, no constitutional challenge to an otherwise lawful mandatory vaccination requirement is likely to succeed, other than possibly the Commerce Clause. The bottom line is this: It is unlikely that the Constitution would stand in a state’s or Congress’s way were it to adopt a mandatory vaccination requirement.

Reading Regents and the Political Significance of Law

Reading Regents and the Political Significance of Law

JUDICIAL ACTIVISM IN INDIAN DEMOCRACY

Judicial Activism is a powerful weapon, which the judges have to wield to Sub serves the ends of justice by making the law responsive to the felt necessities of the changing times. The scope of judicial activism varies with the courts power of Judicial Review. The judicial activism is use of judicial power to articulate and enforce what is beneficial for the society in general and people at large. Supreme Court despite its constitutional Limitation has come up with flying colors as a champion of justice in the true sense of The word .JUSTICE…this seven letter word is one of the most debated one sin the entire English dictionary. With the entire world population being linked to it, there is no doubt about the fact that with changing tongues the definition does change. The judicial activism has touched almost every aspect of life in India to do positive justice and in the process has gone beyond, what is prescribed by law or written in black and white. This article covers definition, Theories of judicial activism, development of Judicial Activism in India, Judicial Activism in various periods.

Deciphering Encryption Rights in India: The Road Ahead

Encryption enhances privacy and cybersecurity and contributes to the growth of the digital economy. India is the second largest online market in the world and yet still lacks a comprehensive data protection law and a conductive regulatory approach towards encryption. Recent developments, particularly the 2021 Intermediary Guidelines, indicate the state adopting an approach aiming to restrict use of encryption, providing wide leeway for surveillance and introduce traceability. The ‘Right to Privacy’ was first formulated in India in 2017, in the landmark Puttaswamy judgment by the Supreme Court. This imposes constitutional limitations on the scope of state intrusion into individual privacy. This article critically examines three decades of the regulatory approach in India towards encryption and the expectations post the Puttaswamy judgment, the 2021 Intermediary Guidelines and the upcoming Data Protection Law. It examines whether a right to encryption can be said to exist in India and analyses various facets of the global encryption debate in the Indian context. Nigeria, NDPR, GDPR, Data Protection, Data Processing

Do contravention attempts affect public support for presidential term limits?: Evidence from sub-Saharan Africa

ABSTRACT Leaders in many African countries have attempted to subvert constitutional limits on the number of terms they can serve in office. By comparing attitudes among citizens who have experienced term limits challenges and those who have not (yet), we show that these attempts have driven a backlash: on average, citizens who experience a contravention attempt become significantly more likely to say they support term limits, especially if the challenge is successful and term limits are lifted. We argue that term limit challenges make salient the possibility of a “president for life” and find that the backlash is greatest among those who are likely to be most alarmed by the prospect: those who oppose the current regime, those who are not thriving economically and those who most strongly support democracy over one-party rule.

Ordo-Responsibility in the Sharing Economy: A Social Contracts Perspective

Can private companies legitimately regulate sharing markets, and if yes, how? Whereas scholars have either criticized sharing platforms for expanding into private and public arenas or welcomed them to counterbalance encroaching government regulations, studies document their unbridled popularity. On the basis of a special version of social contracts theory pioneered by James Buchanan, we develop a heuristics that helps guide reasoning about the legitimacy of the sharing economy’s regulatory function. First, we discuss the conditions under which free and responsible individuals deliberately subject themselves to rules without their prior direct participation, that is, exit, voice, and constitutional limits. Second, we suggest sharing platforms can use novel ordo-responsibilities to establish a sharing constitution that takes these conditions into account. Third, we argue that sharing platforms can legitimately do so within an enabling institutional environment in society, the provision of which relies on the joint efforts of sharing platforms, political actors, and civil society.

THE INVOLUNTARY DETENTION AND ISOLATION OF PATIENTS INFECTED WITH EXTREME RESISTANT TUBERCULOSIS (XDR-TB): IMPLICATIONS FOR PUBLIC HEALTH, HUMAN RIGHTS AND INFORMED CONSENT Minister of Health, Western Cape v Goliath 2009 2 SA 248 (C)

Public health-care providers (public hospitals) and related health-care services in South Africa have in recent times been under severe strain due to the seemingly uncontrollable increase in dangerous infectious airborne diseases like Extreme Resistant Tuberculosis (hereinafter “XDR-TB”). Ultimately these health-care providers/services have been challenged, not only in the diagnosis and treatment of XDR-TB patients, but specifically to control and curtail the spread thereof by effectively managing sufferers by way of forced isolation and monitoring to ensure that they abide by the rules and strict treatment regime related to XDR-TB. The said challenge hasbecome exacerbated specifically in public health-care facilities where patients suffering from XDR-TB fail to abide by the treatment regime and regularly abscond from follow-up appointments, posing a real threat of infection to the community at large. Consequently public health-care providers and communities have increasingly questioned whether it is possible to invoke some mechanism legally whereby the involuntary isolation of patients with XDR-TB in State-funded health-care facilities could be effected. It goes without saying that such a mechanism (by way of a court order/court authorisation) would have a definite and marked influence on a patient’s right to bodily integrity and freedom (as contemplated in s 12 of the Constitution of the Republic of South Africa, 1996) and will pose significant challenges to any constitutional limitation (as contemplated in s 36) and related legislation (such as the National Health Act 61 of 2003). Ultimately the question under consideration is whether the public’s right to be protected from potentially dangerous infectious diseases constitutionally trumps the right of an individual sufferer to bodily integrity. It is in this regard that the present case under discussion offers far-reaching perspectives.

Juvenile Homicide in the United States: Sizing Up the Problem and Moving Forward

Juvenile murder arrests in the United States increased dramatically from 1984 to 1993, leading experts to forecast an epidemic of continued violence. Juvenile arrests for murder from 1995 to 2019 are examined to assess whether this prediction was correct. Changes in the laws in response to juvenile violence and US Supreme Court cases that addressed constitutional limitations to the punishment of juvenile murderers are synthesized. The evolution of research on juvenile homicide offenders over the last two decades is highlighted. Recommendations about ways to move forward by using evidence-based practices to prevent juvenile violence and to reduce recidivism are discussed.

Texas, Abortion, and State Action

The Texas Legislature recently passed what the Supreme Court describes as an “unprecedented” statutory scheme. Texas’s new law allows private, everyday citizens to sue anyone who assists a woman in obtaining an abortion after her sixth week of pregnancy. It’s clear that Texas chose this unusual enforcement mechanism to try to circumvent the Constitution’s “state action” requirement. Before a plaintiff can challenge a policy or action on constitutional grounds, they must show that the government somehow had a hand in causing their harm. But this Texas law strips the government of its enforcement power and instead gives it to everyday citizens, thereby allowing the law’s defenders to argue that the law does not trigger constitutional protections. This short article argues that the courts should have little trouble concluding that this law and its unusual enforcement mechanism amount to state action, meaning this law is subject to normal constitutional scrutiny. The Supreme Court’s decisions in Shelley v. Kraemer, Edmonson v. Leesville Concrete Co., and Terry v. Adams make clear that private parties can be considered state actors, especially when they are working with the express approval of the government and when the courts are required to hand down rulings that seemingly infringe on well-settled constitutional protections. These decisions, among others, show that the private-citizen plaintiffs deputized under this new Texas law must be treated as state actors who are subject to constitutional limitations.

Limitation Clauses and Constitutional Transformation: The Case of the New Arab Constitutions

AbstractFocusing on the constitutional changes undergone since 2005 in Iraq, Sudan, Morocco, Tunisia and Egypt, this article explains how the constitutional limitation clauses affected the respective material constitutional transformations. The explanatory value of the limitation clauses is tested, with possible causalities (as well as non-causal relations) explored through a case study. Generalizing research arguments are offered, theorizing about the material constitutional transformation processes in authoritarian and post-authoritarian scenarios. The research arguments shed light on the limitation clauses’ potential to reveal the policy intent underlying the constituent power, as well as their negative implications for a proper democratic consolidation, their effects in keeping dynamics of political immobilism, and their consequences in terms of favouring instances of authoritarian regression.

Constitutional Restriction on Human Rights and Freedoms in the Development of Liberal Democracy in Europe

This article is dedicated to the constitutional restrictions on human rights and freedoms within the genesis and development of liberal democracy. The article argues that European countries implement the provisions of the ECHR in various ways regarding the application of restrictions of rights and freedoms in their own national legal systems in order to support: 1) the state and public security or economic well-being of the country; 2) the prevention of riots or crimes; 3) health or morals or for the purpose of protecting the rights and freedoms of others; 4) the protection of national security or territorial integrity; 5) protecting the reputation of others; 6) the prevention of disclosure of confidential information; 7) maintaining the authority and impartiality of judicial authorities. The research defines a common feature of all constitutional restrictions of human rights and freedoms within the European countries’ application, taking into account the objective circumstances necessary in a democratic society. The authors underline that under no circumstances should the restrictions distort the essence of human rights and freedoms that fall under such derogations. The article underlines that the restrictions on human rights and freedoms are a necessary component of the legal system of any state and modern society. Such restrictions should be of a legal nature and should be imposed only in accordance with the general interest – national security, law and order, the protection of moral norms, and the protection of the rights and freedoms of other persons when the right of another person in a legitimate balance prevails. The emergence of challenges to human rights does not negate their effectiveness, and they continue to operate, which testifies to their effectiveness and guarantees the inviolability of the rule of law principle when resolving specific cases on human rights restrictions.

Media and judicial processes: A look from constitutional jurisprudence

This text aims to set the limits on parallel trials by Colombian law. This article answers the following research. What constitutional limits exist between the right to freedom of expression of the media, in the case of media coverage of judicial processes and parallel trials?. All through a qualitative research method based on a documentary research design the at gives an account of the current state of the discussion.

Constitutionality of Law-making Process in Pakistan: A Critical Appreciation

This is the age of information and awareness. Democracy cannot flourish without the involvement of the governed in all aspects of political life. Like good citizens, a question comes to mind to ask whether the Parliament of Pakistan is without any limitations in the area of legislation or whether there are constitutional limitations in this regard. Because it is the motto of a good citizen to obey punctually but to censure freely. With qualitative research methodology, this research paper examined both primary and secondary sources, which included a critical analysis of constitutional provisions, other legislative instruments, published research papers, and judicial precedents, in order to theorize the concept of separation of powers in Pakistan and judicial check on the legislature so as to counter apprehension of exploitation of legislative authority.

Comparative study of Indian Judicial Review System with the U.S.A. and U.K.

This paper deals with system of judicial review adopted by the various democratic nations. This paper also discuss the various provision of the Constitution of the India which empowers the court for the judicial review. Authors also describe the various landmark judgment and the constitutional amendment done with the help of the judicial review. In present situation the judiciary have the responsibility to uphold the constitutional values and to enforce the Constitutional limitation for the proper functioning of the all the organ of the government.

Constitutional Limits to Administration Authority in Light of the Corona Pandemic

Since the beginning of 2021, the Corona virus, which causes 19-COVID-19 disease, has affected public life and private law areas, which became different with the difference in the authority of administration during the organization of the pandemic, as it expanded to Tamer by closing other whole and partial times, as well as other Factors of social distancing and other legal repercussions that affect the rights and freedoms of society. Certain procedures in cases of crises and disasters, and the initiation of certain procedures to preserve the security and safety of society, and the initiation of crises in crises that all local communities put pressure on, without prejudice to the tenets, principles and provisions contained in the Algerian constitution.

Moral Bars to Intellectual Property: Theory & Apologetics

Various intellectual creations are raising complex moral issues in intellectual property law.  Videos of mass shootings made by perpetrators, statues of the Confederacy displayed openly, torture techniques used on criminal detainees, and devices for consuming illegal drugs are only a few examples.  These expressive and inventive works pose the question of whether their apparent immoral nature should preclude intellectual property protection.  Although courts and scholars have long debated moral values in intellectual property doctrines, the literature is largely silent on the effect of intellectual property theory.  The question thus arises: Do the utilitarian, labor-desert, and autonomy theories of intellectual property imply that morality is relevant to whether a work should receive patent or copyright protection?  This is a critical question left unanswered by the scholarship and jurisprudence dealing with intellectual property and morality.  This Article considers the question. This Article posits that each theory of intellectual property suggests that moral values should inform whether intellectual works receive protection.  The Article then contemplates likely objections, responding to arguments that academics have raised against the position that moral values should define intellectual property.  Specifically, it responds to the argument that denying protection in some instances may increase the output of an immoral work, that laws in areas other than intellectual property should address moral problems, and that the government should not interfere with the laissez-faire approach of letting the public decide the moral worth of an intellectual creation.  The Article concludes that, within constitutional limitations, certain moral values may serve as reasons to deny intellectual property protection.

“Economically inefficient and legally untenable”: constitutional limitations on the introduction of central bank digital currencies in the EU

ECB officials have recently poured scorn on the notion that the ECB could introduce a central bank digital currency (CBDC) in the Eurozone, with one labelling such an initiative as “economically inefficient and legally untenable.” This article assesses the justifications for these claims from legal and economic perspectives. It finds that, based upon prevailing ECB policies and the myriad options available for CBDC design, such claims are flawed. The article further explains that the ECB’s reticence to consider the introduction of CBDC may impair the development of payments systems and obstruct financial inclusion.

Preparation of Pharmaceutical Formula of Rafoxanide and Levamisole 6% Suspension as Pilot Production

A 100 litter of pharmaceutical formula of veterinary drug Rafoxanide and Levamisole with 6% suspension as pilot production was prepared. The formula contains two active ingredients with a broad spectrum anthelmintic activity. Rafoxanide belong belongs to salicylanilide group used for treatment and control of mature and immature liver flukes in cattle, sheep and goats. Levamisole belongs to Bezimidazole compounds and is active against gastrointestinal worms and against lung worms in cattle, sheep and goats. The drug formula is a white color suspension prepared according to scientific literature. Information was collected for all substances in the formulation for active ingredient ingredients and additives. The chemical assay was carried out on the active ingredients and the final formula and the results showed that they conform to the constitutional specifications. The results of the chemical assay of Rafoxanide (102.7%) and levamisole (101%) were found to be within the approved constitutional limits (90-110%) with the adoption of the results of stability study at temperatures (40, 50, 60 °C). The stability of the pharmaceutical formula was observed within the permissible constitutional limits.

Remarks on the legal importance of constitutional public debt limitation

According to Article 216.5 of the Constitution of the Republic of Poland it shall be permissible neither to contract loans nor provide guarantees and financial sureties which would engender a national public debt exceeding three-fifths of the value of the annual gross domestic product. The method of calculating the value of the annual gross domestic product and national public debt shall be specified by statute. However, this provision co-establishing the principle of balance budget as constitutional value is not an absolute paradigm. It is limited by other constitutional values and principles, including the principle of common good, and should not be abused against the principle of diligence and efficiency in the work of state bodies.