Constitutional Obligation Research Articles

The concept of liability for the degradation of the natural environment under Article 86 of the Constitution of the Republic of Poland

The concept of liability in environmental protection is addressed in the Constitutions in various ways if at all this issue is regulated in this type of act. The Polish constitutional legislator belongs to this group of constitutional legislators who have regulated the issues of legal liability in environmental protection in a direct manner. The constitutional legislator regulated this issue in Article 86 of the Constitution of the Republic of Poland. In the system of Polish Law, legal responsibility in environmental protection has been linked to the universal duty of everyone to care for the state of the environment. The Basic Law itself defines two designations of this responsibility. Firstly, it is personal responsibility for the effects caused by oneself. Secondly, it is responsible for the deterioration of the environment. Thus, it is indicated that it is a model of individualised liability, as well as liability that results from the deterioration of the state of the environment. However, some of the institutions of the Environmental Law related to liability do not stand the test of constitutionality. It is difficult to see the deterioration of the state of the environment in the breach of reporting and information obligations. This raises the questionof the constitutionality of legal liability for the breach of these obligations. Additionally, it should be pointed out that the deterioration of the state of theenvironment must be the result of a breach of the constitutional obligation to care for the state of the environment. Such a link results from the very construction of Article 86 of the Constitution of the Republic of Poland and the conjunction “and” used by the legislator. The model of the concept of respon-sibility in the protection of the environment in the Constitution of the Republic of Poland is a model linked to a universal duty, and not, for example, to the duties of the State or public authorities. It constitutes a modern solution making everyone aware that contemporary problems of environmental protection do not concern only the State, and that their solution should be the common domain of all subjects of the law. It also strengthens everyone’s awareness of their environmental responsibilities.

Regional Security, Problems and Influencing Factors: A Case Study of Albania

The new national, regional and global security environment and its trends are expressed in a synthesized way in the National Security Strategy. Our region is increasingly characterized, on the one hand, by overcoming the old mindsets of confrontation between states and the perceptible reduction of traditional threats, by the promotion of a new spirit of cooperation and the values of integration in the collective security structures and on the other hand, it is facing a new nature of challenges, dangers and threats with non-traditional, asymmetric forms and contents, on terrorist, ethnic or other grounds, initiated by nationalist-extremist elements and groups. Receiving the long-awaited invitation to the Bucharest Summit in April 2008, as well as the final moment for NATO accession at the NATO Summit in Stratsburg and Kehl, marks a qualitative stage in the complete process of Albania in the Euro-Atlantic structures. In this new perspective, the security and defense of our country will suffer qualitative effects; from the concept of individual security and protection, it will finally be passed "de jure" to the concept of collective security and protection, accompanied by all the relevant benefits and contributions. Likewise, the new states of Kosovo and Montenegro have given our region a new favorable panorama of regional security. Going forward, our assessments of the security environment, expected risks and threats, and the spectrum of FARSH combat and non-combat missions will be significantly influenced by the collective security assessments articulated in the Alliance's Strategic Concept (CSC), Policy of European Security and Defense (ESDP) and the Charter of the United Nations. In this new perspective, in full accordance with the constitutional obligations, FARSH to adopt a new defense planning system, in harmony with the standards and planning processes of the Euro-Atlantic Alliance. Keywords: Influencing factors, Regional security, NATO, National security

The constitutional obligation to protect the right to education in Nigeria: A call for action

The constitutional obligation to protect the right to education in Nigeria: A call for action

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.

МЕСТО И РОЛЬ ОПЕРАТИВНО-РОЗЫСКНОЙ ДЕЯТЕЛЬНОСТИ В ВОЗМЕЩЕНИИ ВРЕДА ОСУЖДЕННЫМИ

In the protection of human rights, compensation for harm caused by a crime is important. This constitutional obligation of the State is to a certain extent ensured by the current legislation, including criminal and operational investigative legislation. However, the practice of executing claims while serving sentences by convicts indicates a low level of compensation for harm. The analysis of the penal enforcement legislation makes it possible to establish unused reserves. The purpose of the study was to consider the process of ensuring compensation for harm caused as a result of the commission of crimes as a task of carrying out operational investigative activities in the execution of sentences in the form of imprisonment. The author suggests specific measures to improve criminal legislation and legislation regulating operational investigative activities in correctional institutions.

The Analysis of Authority Abuse that Results in State Financial Loss in the State Administrative Law & Islamic Law Framework

Implementation of duties and functions for the Government is a constitutional obligation. So that every task carried out must be based on the norms stated in the constitution. Holding a position as a leader means there is a mandate that must be held accountable. The aim of this research to analyze state financial losses resulting from authority abuse within the legal framework of state administration from a positive legal perspective in Indonesia and an Islamic legal perspective. The type of research used was normative juridical. Authority abuse is basically an act against the law (the concept of a criminal act) accompanied by mens rea (malicious intent). The emergence of losses to state finances in the legal aspect of state administration requires the restoration of state finances and redressing the causes of state financial losses. So in state administrative law, the aspect of improving the system is a very important thing to do. In Islam, position means power which has implications for the lives of society as a whole, office holders are God's representatives in the human world because the only one who has true power is God. In Islamic criminal law, authority abuse is an act that approaches the crime of corruption.

Representation in International Relations, Impeachment of the President of Georgia, and European Integration

Abstract The 2017–2018 constitutional reform amended the Constitution of Georgia and changed the political system of the country. The president has the responsibility to represent the country in international relations, but only with the approval of the government. Constitutional norms are not specific, leaving room for different interpretations. Article 78 of the Constitution obliges constitutional bodies to use all measures for European integration. Under this constitutional obligation, the president met with European colleagues, though without governmental approval. This provoked the ruling party to initiate the process of impeachment. The Constitutional Court of Georgia concluded that the president breached the Constitution, but the parliament could not impeach the president. The paper analyses the role of presidential representation in international relations and its constitutional responsibility in the light of Georgia’s European aspirations.

LEGAL INSTITUTE OF MOBILIZATION AND SOCIAL RESPONSIBILITY: THEORETICAL AND LEGAL ASPECTS OF INTERACTION AND MUTUAL INFLUENCE

Introduction. The article is devoted to the legal aspects of mobilization and social (civic) responsibility, their features and manifestations during the period of martial law. The interrelationship between them and the manifestations of the processes associated with them is also analyzed. In addition, it is emphasized that mobilization and civic responsibility are one of the key components of successful defense of the Motherland. Summary of the main results of the study. Mobilization processes and subsequent military service during martial law are regulated by the legislation of Ukraine, in particular, Constitution of Ukraine, the laws «On military duty and military service», «On mobilization training and mobilization», «On the defense of Ukraine», «On the legal regime of martial law», «On the number of the Armed Forces of Ukraine», the Regulation on the completion of military service by citizens of Ukraine in the Armed Forces of Ukraine, approved by the Decree of the President of Ukraine dated 10.12.2008 № 1153/2008. Approaches to the definition of the concept of «mobilization» from the perspective of legislation and from the point of view of scientists have been analyzed. The definition of the concept of «martial law» and the number of possible numbers in the usual regime and in a special state have been determined. It is noted that the constitutional obligation applies to all citizens of Ukraine, both men and women. At the same time, the percentage ratio of the number of representatives of the female and male sexes is demonstrated with the help of a diagram. The diagram also shows the change in the number of the Armed Forces of Ukraine before and after the full-scale invasion of the russian rederation into the territory of our Motherland. The concept of «civic responsibility», as a form of social responsibility, is defined, which is considered by scientists in different ways, but directly relates to the personality of a citizen. Next, the relationship between civic responsibility and mobilization, how they influence each other, is considered. It was determined that the formation of civic responsibility among representatives of the country's population affects the desire for voluntary military service during the mobilization period, and later – for contractual military service. In addition, the author's opinion regarding the expression of the fact of the formation of civil responsibility of the population during their stay in the rear was presented. Conclusions. Reasoned conclusions based on the presented material about the specifics of the definitions of the concepts «mobilization» and «civic responsibility»; on the specifics of the fulfillment of the constitutional duty to protect the Motherland by the citizens of the country, the total number of the Armed Forces of Ukraine, which increased by 2.7 times during the full-scale invasion of the Russian Federation on the territory of Ukraine, which is a reason to claim that the citizens of Ukraine have developed civic responsibility and joined the ranks of the Armed Forces of Ukraine and other military formations not only as a fulfillment of a constitutional duty. In addition, the author emphasizes that the formation of this type of responsibility consists not only in readiness to protect the Motherland, but also in other aspects, in particular, volunteering, helping and supporting military personnel and their families, participation in events, observance of public order, especially during the wartime period state.

LEGAL POSITIONS OF THE CONSTITUTIONAL COURT OF UKRAINE REGARDING THE CONSTITUTIONAL DUTIES OF A PERSON AND A CITIZEN

The article analyzes the properties of the constitutional duties of a person and a citizen in the light of the legal positions of the Constitutional Court of Ukraine. After all, in order to renew the understanding of the legal nature, content orientation and social significance of the constitutional duties of a person and a citizen, it is necessary to analyze the understanding of this important category of jurisprudence through the prism of the legal positions of the Constitutional Court of Ukraine. The latter, due to their specific and meaningful content, as well as the authority of the body that formulates them, can be considered as original sources of the constitutional law of Ukraine. A careful analysis of the multifaceted practice of the Constitutional Court of Ukraine allowed to identify and analyze the basic legal positions, which in turn, supplementing and developing the achievements of the constitutional and legal doctrine of Ukraine from a practical point of view, indicate such properties of constitutional duties. First of all, all constitutional duties, regarding which the body of constitutional jurisdiction has formulated legal positions, are directly or indirectly related to ensuring the national security of Ukraine as a complex socio-legal category. Secondly, legal positions confirm the fact that constitutional duties are socially significant due to their special purpose and role in the life processes of society and the state. Thirdly, the Constitutional Court of Ukraine in its formulated legal positions emphasizes that the implementation of constitutional duties requires adequate guarantees from the state. Fourthly, in addition to the formalized guarantees, the body of constitutional jurisdiction indicated that the implementation of some constitutional duties requires public support and respect for the persons who implement them. Fifth, constitutional duties, giving rise to a wide variety of legal relations, are able to influence the relevant subjects and change, strengthen or fundamentally transform their legal status. Sixth, in some decisions, the Constitutional Court of Ukraine formulates legal positions that confirm the respective potential possibilities of constitutional obligations regarding their implementation in extraordinary situations, including those that require the introduction of a special period. And, finally, seventhly, the body of constitutional jurisdiction pointed out that the proper implementation of constitutional duties is aimed at neutralizing the factors that cause the need to introduce a special period.

Constitutional Obligations of the State in the Social Sphere and Their Implementation in View of Constitutional Transformations

Constitutional Obligations of the State in the Social Sphere and Their Implementation in View of Constitutional Transformations

Implementing early childhood education for children with disabilities in South Africa and Kenya.

The immediate implementation of early childhood education (ECE) for children with disabilities in South Africa and Kenya has been impeded by obstacles. Major gaps in implementation remain. We investigate, firstly, the widely held, but in our view fallacious, belief that the implementation of inclusive ECE can be progressively realised only when there are available resources. Secondly, we examine the other fallacious belief that children with severe and profound intellectual disabilities are ineducable, and thirdly, the belief that the provision of inclusive ECE is merely a regulatory governmental function, implying that accessibility and reasonable accommodation requirements for children with disabilities do not rest primarily on the state. This study aimed to investigate the gaps in both countries between the policies and legislation and effective implementation, to show that these gaps are exacerbated by the perpetuation of these fallacious beliefs and by information vacuums at governmental level. A critical analysis of inclusive ECE was undertaken on relevant law and policy processes in both countries to expose both governments' reasons for their lack of effective implementation of inclusive ECE. The factors contributing to the lack of immediate and significant implementation of inclusive ECE for children with disabilities in both countries have been investigated. Accountability and transparency need to be implemented at the governance level to ensure that both governments fully implement and prioritise inclusive ECE. This article establishes that mistaken premises and information vacuums may be used by governments in an attempt to renege on their international and constitutional obligations to implement inclusive ECE.

The relationship of rights and obligations: questions of theory

It is indicated that, in the modern period of conflicting legal norms, one of the means of ensuring the implementation and observance of constitutional obligations is the responsibility and sanctions of the norms of the current legislation. It is noted that in the modern world, with the rapid development of society, the issue of compliance with law and morality is becoming more and more necessary and relevant. That is why considerable attention should be paid to the consideration, analysis and research of these two concepts. Today, law and morality depend on each other. Norms of morality and law are the most widespread and quite important for society. They are intertwined in the process of social regulation, their demands coincide in many respects: what law allows or prohibits, and morality encourages or condemns. The interaction of morality and law in society is a very complex and diverse process. Strongly influencing morality, law contributes to its intensive implementation in the minds of all members of society, at the same time, under the influence of moral requirements, law constantly improves and elevates its role as a social regulator of social relations. The author emphasizes that the attitude to rights and duties in the context of a person’s legal status creates a rather complex problem for ethics and morality. On the one hand, theorists fix such qualities of moral demands as universality and a high level of commonality. Ethical theory in the sense of attitude to rights and duties inevitably uses as one of its bases the moral ideas of “ordinary man” or “ordinary human mind”. It cannot simply ignore moral intuitions, although it can make attempts to discredit some of them, especially if they contradict the main body of moral convictions and are not accompanied by absolute certainty. However, moral duties to have a different character. They are an integral component of the normative system of universal morality and have an almost axiomatic character for the “ordinary person”.

Judicial problem-solving: An evaluation of Grobler v Phillips and Others [2022] ZACC 32

The South African Constitutional Court was recently tasked with considering whether the "just and equitable" requirement of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act had been complied with when an eviction order was granted in the Somerset West Magistrates' Court. The Magistrates' Court found that the occupier unlawfully occupied the land and determined that the eviction was just and equitable in the circumstances. However, the High Court and the Supreme Court of Appeal held that the order of the Magistrates' Court could not be confirmed. With certain conditions attached, the Constitutional Court held that the eviction was just and equitable. These judgments are noteworthy as they highlight the in consistencies in the reasoning of the various courts that considered the same facts. The conclusion is that judicial reasoning which creates tension between the rights of private landowners and unlawful occupiers is not constructive. Ideally, evictions should be resolved by enforcing a potentially homeless person's right to access adequate housing by holding the state to account for its constitutional obligations.

PROMOTING ADMINISTRATIVE JUSTICE FOR PRESIDENTIAL PARDONS IN SOUTH AFRICA

The President’s power to grant pardons, remit fines, penalties or forfeitures and the nature of the accountability for the exercise of such power remains unclear. The question of accountability relates to whether the President has a constitutional obligation to disclose the reasons for his decision. The nature of the power is broadly formulated and should undergo reform to enhance the attendant accountability. Over the years, there were debates on whether the granting of pardons constitutes administrative action in terms of the Promotion of Administrative Justice Act (PAJA). Because it is a power that potentially has an adverse effect on rights enshrined in the Bill of Rights, it is submitted that it should be construed in terms of PAJA. Similarly, the role of Parliament in exercising oversight over the process is unclear and inadequate. The article submits that the President should exercise the power together with the relevant Cabinet Minister, and subject to legislative endorsement.

Причины неправомерного поведения налогоплательщиков

Paying taxes is a constitutional obligation of a citizen and expresses his contribution to the development of society. However, not all taxpayers are willing to pay taxes. At the same time, the illegal behavior of taxpayers cannot be explained by any one reason – it is caused by a whole set of reasons. The article describes these reasons, which are classified into the following groups: economic, moral and psychological, socio-cultural and political reasons. There are also peculiarities in the reasons for illegal behavior of taxpayers – large companies.

Presumption of innocence in the doctrinal and regulatory sources of Western Europe (XIX-XX centuries)

The supreme value in a state is man, his rights and freedoms, and the recognition, respect and defense of these rights and freedoms is the basic obligation of the state. The criminal trial represents that field of activity where the issues related to the defense of human rights and freedoms are of special relevance. For this reason, it is of particular importance to study the historical evolution of the means by which the legislator ensures the fulfillment of this constitutional obligation by the state. Medieval criminal procedure regulations regarding the presumption of guilt have been harshly criticized by scientists. However, the most important event that contributed to its emergence in most criminal procedure legislations of several states on the European continent was the Great French Revolution. Its importance was felt far beyond the borders of France, exerting an enormous influence on the political and legal system of several states.

The Legal Nature of Compensation Payments to Citizens Participating in Shared-Equity Construction

Relevance. Meeting the needs of citizens for housing is a constitutional obligation of the State, and at the legislative level it is implemented in various forms, including through participation in shared-equity construction. In cases when a developer becomes bankrupt and cannot fulfill its obligations to shareholders, various measures are provided by law to guarantee the restoration of property rights. Such measures also include a compensation mechanism aimed at ensuring the payment of funds by the Public Law Company "Territorial Development Fund" to compensate citizens participating in construction who have claims for the transfer of residential premises, parking spaces and non-residential premises included in the register of claims of construction participants.However, the peculiarity of the legal status of the Fund as a public law company creates problems for the law enforcement officer to determine the legal nature of these compensation payments, which negatively affects the level of protection of citizens' rights. The purpose of the study is to identify the legal nature of compensation payments made by the PPK "Territory Development Fund", to determine the effectiveness of the legally established compensation mechanism.Objectives: to determine the legal status of the Fund, to identify the peculiarities of the procedural and legal status of the Fund in cases of insolvency (bankruptcy) of the developer, to analyze the legal facts that constitute the grounds for succession between the bankrupt developer and the Fund.Methodology. In preparing the study, the author applied general scientific methods, methods of analysis and synthesis, a systematic method, a formal legal method.Results. In the course of the study, it was determined that the compensation mechanism and obligations to pay money to shareholders are of a civil nature. When determining the effectiveness of the compensation mechanism, its low level is established, since the goal of ensuring the protection of the rights and legitimate interests of citizens participating in construction is not fully achieved.Conclusions. The current compensation mechanism does not ensure the restoration of the right to housing by participating in shared construction. The factors that have a negative impact can be called a significant change in socio-economic conditions and poorly effective legal means that generate collisions and gaps in legal regulation, which negatively affects the process of their implementation.

The relationship between right and duty: moral and ethical principles

It is indicated that, in the modern period of conflicting legal norms, one of the means of ensuring the implementation and observance of constitutional obligations is the responsibility and sanctions of the norms of the current legislation.
 It is noted that in the modern world, with the rapid development of society, the issue of compliance with law and morality is becoming more and more necessary and relevant. That is why considerable attention should be paid to the consideration, analysis and research of these two concepts. Today, law and morality depend on each other. Norms of morality and law are the most widespread and quite important for society. They are intertwined in the process of social regulation, their demands coincide in many respects: what law allows or prohibits, and morality encourages or condemns. The interaction of morality and law in society is a very complex and diverse process. Strongly influencing morality, law contributes to its intensive implementation in the minds of all members of society, at the same time, under the influence of moral requirements, law constantly improves and elevates its role as a social regulator of social relations.
 The author emphasizes that the attitude to rights and duties in the context of a person’s legal status creates a rather complex problem for ethics and morality. On the one hand, theorists fix such qualities of moral demands as universality and a high level of commonality. Ethical theory in the sense of attitude to rights and duties inevitably uses as one of its bases the moral ideas of «ordinary man» or «ordinary human mind». It cannot simply ignore moral intuitions, although it can make attempts to discredit some of them, especially if they contradict the main body of moral convictions and are not accompanied by absolute certainty. However, moral duties to have a different character. They are an integral component of the normative system of universal morality and have an almost axiomatic character for the «ordinary person».

Reflecting on Evictions and Unlawful Occupation of Land in South Africa: Where Do Some Gaps Still Remain?

The issue of unlawful occupation and homelessness has been a very prominent topic for many decades. While our approach to evictions and unlawful occupation has clearly shifted from a draconian approach under the Prevention of Illegal Squatting Act 51 of 1951 (hereafter PISA) to an approach that focusses on human rights under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (hereafter PIE), there are still various aspects that potentially fall short in protecting the rights of the various stakeholders involved in these disputes. In particular, this paper focusses on three areas where PIE potentially falls short. In this regard we examine cases of the impossibility of eviction orders, our current understanding of the notion of "home", and whether or not PIE applies to both occupied and unoccupied structures. We also briefly explore issues relating to the non-implementation of PIE, especially in relation to the government's goal of preventing unlawful occupation. Central to these discussions is whether our current approach is sufficient and in line with constitutional obligations or whether we need to rethink our approaches to ensure that we do not undo the progress made since apartheid.

South Africa and the “Othering” of the “Non-Euro-Christian” Religions

At the heart of Rabiat Akande's inspiring article, “An Imperial History of Race-Religion in International Law,” is the problematization of international law as an enabler of the othering of “non-Euro-Christian” religions.1 Akande employs “the imperial history of international law” to demonstrate that “racial and religious othering were mutually co-constitutive in the colonial encounter.”2 She rightly points out that “the legacy of that past survives in the continuing interplay of the racial and religious of the non-Euro-Christian other.”3 The focus of my essay is the post-colonial/settler colony4 and post-apartheid state that is South Africa. I argue that despite its highly acclaimed Constitution,5 which values international law and human rights, colonial and apartheid legacies still exist in South Africa, and come in the form of subjugating minority religions in favor of Christianity. In particular, I focus on the failure of the South African government in 2024 to pass legislation that would legally recognize Muslim marriages despite a constitutional obligation to do so.6 I argue that the government's non-recognition of Muslim marriages for almost three decades is a result of South Africa's colonial and apartheid legacies. South Africa's international and constitutional obligations law should be at the heart of the South African government's realization of fundamental rights when dealing with matters pertaining to religious freedom, especially as they relate to Muslim marriages.