Constitutional Protection Research Articles

The challenges to the mega infrastructure of China-Pakistan Economic Corridor in Pakistan

This article provides an argument for amending the China-Pakistan Economic Corridor (CPEC) in the 1973 Constitution of Pakistan. That will ensure accountability, reduce criticism of corruption, and secure Chinese investment in Pakistan. The study’s main question is why CPEC does not have constitutional protection in Pakistan, which is more investment than Pakistan’s annual budget. CPEC should reduce the sense of deprivation and inequality within Pakistan and ensure its transparency in various aspects. The CPEC Amendment can establish parliamentary oversight and reduce the deprivations of the provinces by electing members on a National Economic Council (NEC) formula and a regional basis. Furthermore, it can provide some basic constitutional framework for upcoming governments regarding heavy investment in infrastructure. The constitutional provisions of the flagship project can serve as an example for BRI member countries.

Legal Convergence Related to Environmental Protection Policy with Investment Policy in Constitutional Perspective

This study is to examine the legal convergence related to environmental protection policies with investment policies in a constitutional perspective. The environment has become a supreme power in the constitutional life of Indonesia. The concept of environmental sovereignty is clearly regulated in Article 25A, Article 28H paragraph (1) and Article 33 paragraph (3) and (4). These articles provide green nuances to the 1945 Constitution, so that the implementation of the articles in the 1945 Constitution provides new thinking for lawmakers so that the concept of the environment can be realized in every law made. The problems that will be in this study are How is the Convergence of Law Related to Environmental Protection Policy with Investment Policy in Constitutional Perspective Environmental Protection Policy with Investment Policy. The research method used is a normative research method using a statute approach and analyzed using content analysis

Strengthening Constitutional Complaint Authority: Enhancing Citizens' Constitutional Rights Protection in Indonesia

Constitutional complaint serves as a vital self-defense mechanism for citizens in safeguarding their constitutional rights against the actions of state authorities. The role of the Constitutional Court in upholding the constitution and protecting citizens’ rights is of paramount importance. However, certain challenges have arisen due to the absence of a mechanism to address state administrators’ actions that violate citizens’ constitutional rights, the lack of a defined framework for constitutional complaints within the Constitutional Court’s jurisdiction, and the limited application of the constitutional complaint law in Indonesia. Consequently, this article examines the urgency of expanding the Constitutional Court’s authority to hear constitutional complaints as a important legal reform in Indonesia. Employing normative and conceptual study methods, as well as a statute approach, this paper explores the concept of constitutional complaints as a means to strengthen citizens’ constitutional rights protection. The ultimate goal is to guide the Constitutional Court towards a more explicit and effective constitutional complaint mechanism during its review of laws, thereby providing optimal safeguards for citizens’ constitutional rights.

Safeguarding the child’s right to privacy and data protection in the European Union and China: a tale of state duties and business responsibilities

ABSTRACT The importance of strong legislative frameworks to guarantee children’s privacy, agency and safety in the digital environment has been emphasised by the Committee on the Rights of the Child in its most recent general comment. Both the EU and China, who(se Member States) are Parties to the United Nations Convention on the Rights of the Child, have adopted their own legislative frameworks for protecting children’s rights to privacy and data protection in recent years. This article compares how these two distinct legislative frameworks safeguard these rights. The analysis focuses on the constitutional protection as well as on a comparison of the legislation that is currently in place, such as the General Data Protection Regulation in the EU and the Personal Information Protection Law, the Provisions on Online Protection of Children’s Personal Data and other relevant regulations in China. More specifically, the article zooms in on the responsibilities emerging from these regulatory frameworks for private companies and platforms that process children’s personal data. It ultimately aims to draw conclusions as to whether and how the child’s rights to privacy and data protection are protected in different parts of the world where children use similar commercial apps and services.

The Politics of the Right to Strike in Zimbabwe since the Advent of the New Constitution in 2013

The year 2013 was important in the history of labour relations in Zimbabwe as it ushered in the country’s Constitution which introduced labour rights under its Declaration of Rights. The article discusses constitutional protection of the right to strike under section 65 of the Constitution of Zimbabwe. It further explores this constitutional right to strike and its effect on both private-sector and public-sector employees. Further, it discusses the scope of the right to strike in terms of the Labour Act, which largely applies to private-sector employees. This is because Zimbabwe has a two-tier labour relations system consisting of private-sector and public-sector employees. Public-sector employees derive their right to strike directly from the Constitution. To put the right to strike into its proper context, international standards on this right are briefly discussed. Important lessons are also drawn from South African labour law and practice since South African constitutional provisions on the right to strike are almost similar to those of Zimbabwe. The article then proceeds to highlight how the right to strike has been linked or can be used in some instances to fulfil political objectives. It also highlights how the State may view the right to strike with suspicion. Finally, recommendations are made on how the right to strike can be improved in both law and practice so that it fulfils its intended objectives of achieving better working conditions for employees at the workplace.

The Supreme Court in Modi’s India

Twenty-first-century elected right-wing regimes share many similarities apart from being led by “authoritarian populists” who centralize power in themselves and represent ethnic or religious majorities at the expense of other citizens. Since higher judiciaries are key to ensuring executive accountability and the separation of powers in a liberal democratic constitutional setup, they are on the front lines of authoritarian attempts at institutional capture. Unlike earlier dictatorships that suspended existing constitutional protections or imposed martial law, current authoritarian regimes maintain a semblance of legality and constitutionalism while in practice attempting to remake the judiciary in their own image. This phenomenon has been variously termed “autocratic legalism,” “abusive constitutionalism,” and “populist constitutionalism.”In this article, I look at how the Indian Supreme Court (SC) has responded to executive incursions under the Narendra Modi regime since 2014. Even today, the court continues to deliver important democracy-enhancing judgments, breaking away from India’s colonial inheritance in matters like criminalizing same-sex relationships and adultery. However, the last decade is strongly marked by two features: first, an unwillingness to hear major constitutional issues that might challenge the regime; and second, judgments that serve as an advertorial for the regime, reinforcing an antiminority ideological orientation, justifying the government’s actions, and promoting Modi’s personality cult. By outsourcing several political decisions to a seemingly disinterested and neutral judiciary, the Modi government has been far more successful than it would have been if it had imposed those decisions purely by legislative majority. In turn, by addressing a variety of political issues as purely legal matters and not addressing them as constitutional questions, the courts have collaborated in the delegitimization of dissent and reinforced the claims of the Modi regime.

Punishment before Trial: The Case for Reforming Pretrial Detention in Nigeria

Abstract In decent society, before a person is punished, they must have committed a crime. The laws of democratic countries prohibit punishment before trial. In Nigeria, that prohibition is contained in the constitution which grants everyone accused of crime, the right to a fair trial and the right to be presumed innocent until otherwise is proven. This paper tries to show that despite these constitutional protections given to all persons in Nigeria, pretrial detainees who are merely accused of crimes suffer extremely punitive conditions before they are subjected to a trial. This paper demonstrates the failure of the Nigerian pretrial detention system to protect the dignity of pretrial detainees whose guilt has not been proved before a court. At the end, this paper draws ideas from Ghana and United States of America, of reforms that could help Nigeria fix its broken pretrial detention system.

Immigration Law Exceptionalism and the Administrative Procedure Act

Abstract Immigration law is exceptional enough to deserve an administrative law focus of its own. The Administrative Procedure Act (APA) does not demand uniformity in adjudication. Therefore, it may be counterintuitive to argue that any one area of administrative adjudication is exceptional. Removal adjudication is indeed exceptional because it is an extremely dysfunctional system, it operates in a double void of fewer constitutional protections and without the protections of the APA, it relies on a vast network of civil detention, and it is of a different genre than the type of regulation that drove the development of the APA. The exceptionality of removal adjudication demands a review of administrative law doctrine with this exceptionality in mind.

Redefining the Role of Women in Pakistan: Zardari’s Effort to Empower Women through Constitutional Development

The role of women in Pakistan has been a topic of discussion and debate for decades. The democratic government under president Asif Ali Zardari contributed his efforts to empower women in all sectors of life by introducing constitutional and political developments. The study examines the significant contributions of the Zardari government to empower women in Pakistan through constitutional and political development and also explains the effects of these initiatives on women’s empowerment and protection in Pakistan. Since the independence, both democratic and military rulers have contributed their efforts to protect and empower women however, the Zardari government provides constitutional protection to women without any discrimination by introducing several laws. The 18th amendments offer massive opportunities for women for political participation and employment. The key sources of the study are published materials like books, articles, newspapers, and reports however preferences are given to authentic and reliable sources. The study finds out that the Zardari government introduced multiple initiatives to empower women in Pakistan, but faced several issues in the implementation of these acts. The study recommends more legal protection and societal awareness to empower women in the true sense.

국경간(國境間) 표현의 자유에 관한 비교법적 연구

While technological developments are rapidly facilitating the cross-border exchange of ideas and information, the Korean legal system continues to differentiate the treatment of domestic speech and cross-border speech. Various restrictions on grounds of expression are imposed regarding the physical movement of people and objects as well as internet speech that transcend borders. The Korean Constitutional Court has yet to explicitly acknowledge the constitutional status of cross-border expression, and the gap between protection of domestic and cross-border speech remains unaddressed. In contrast, the US Supreme Court ruling Lamont v. Postmaster General(1965) acknowledged the right to receive foreign mail under the First Amendment. Also, Holder v. Humanitarian Law Project(2020) acknowledged that content-based restrictions of speech under the direction of, or in coordination with foreign groups are subject to heightened scrutiny. The German Constitutional Court ruling of the case Leipziger Volkszeitung(1961) acknowledged the right to receive foreign information under Article 5 of the Basic Law, and in the case Ausland-Ausland-Fernmeldeaufklärung(2020), the German Constitutional Court clarified that fundamental rights vis-à-vis the German state authority is not restricted to German territory - the German state authority is bound by fundamental rights even when acting against foreigners in foreign territory. This article analyses the above decisions along with others from the US Supreme Court, the German Constitutional Court and the European Court of Human Rights with the aim of extracting lessons that may be applicable in establishing the constitutional status of cross-border speech under the Korean Constitution. Similarly to the foreign examples, the Korean Constitutional Court may be able to justify the constitutional protection of cross-border speech based on its former justification theories regarding domestic speech, and also considering international human rights standards. This can serve as a starting point for a broader and more substantial perspective of the freedom of speech that will be able to address its increasingly international aspects.

Legal Protection Against Consumers Experiencing Price Differences Between Labels Prices and Self-Service Cashiers in the District Sleman

The number of cases of price difference between the price tag and the self-service cashier, especially in Banyuwangi Regency, of course, is proof that the consumer's right to obtain goods at the promised exchange rate is in accordance with Article 4 Paragraph 2 Constitution Protection Consumer has violated. Based on the problems above, the author formulates problems related to how the form of accountability from supermarkets in problem difference price between label price And machine cashier Which experienced by consumers? The results of the study concluded that the implementation of legal protection for consumers who suffered losses due to cases of price differences between price tags and supermarket cashiers in the district Sleman fall into the criminal element.

Конституционное право на свободу совести как объект уголовно-правовой охраны

Introduction: The relevance of the study is determined by the fact that, in accordance with the Constitution of the Russian Federation, the state guarantees equality of human rights and freedoms regardless of attitude to religion. To this end, the State prohibits insulting beliefs related to the expression of religious preferences by a person, as well as agitation based on religious hatred or enmity, as well as the creation of public associations, including religious ones based on the principles of religious superiority or intolerance. The growing complexity of social relations, the increasing role of religion in the life of society requires the state to pay close attention to compliance with legislation in the field of the freedom of conscience.
 The purpose of the study is to identify the features and problems of protecting the constitutional right to freedom of conscience through criminal law legislation.
 The object is the public relations protected by criminal law norms that arise in the field of preventing crimes that infringe the freedom of conscience.
 The subject of the study is the peculiarities of constitutional and criminal law protection and protection of the right to freedom of conscience.
 Research methods: analysis, synthesis, generalization, classification.
 Results. The author analyzes the current problems of criminal law legislation guaranteeing the implementation of the constitutional right to freedom of conscience. The author comes to the conclusion that the current criminal law guarantees protecting freedom of conscience in Russia do not fully comply with the Constitution of the Russian Federation. The study also proposed a definition of the concept of «crimes against freedom of conscience»; the author’s classification of types of crimes infringing the freedom of conscience is presented. It is concluded that the criminal law legislation in the area under study requires adjustment.

Лишение статуса адвоката как последствие его привлечения к уголовной ответственности

In the article, the author reviews consequences of bringing a lawyer to liability in the form of deprivation of the right of representation in court in the lawyer status. Special attention is paid to an analysis of the latest legal positions of the Constitutional Court of the Russian Federation with regards to the disproportion in the establishment of a permanent prohibition against carrying out of attorney activities in the event that an attorney is acknowledged guilty of an intentional crime. The author uses such analysis as a basis to conclude that the acknowledgment of this provision of the Federal Law on Legal Practice and Advocacy as unconstitutional is controversial. On the one hand, the government has solved the legal uncertainty and introduced constitutional protection of labor rights of disbarred citizens. But on the other hand, the legal community has lost a very powerful means of preventive and to some extent punitive impact on its representatives, whose intentional crimes did not only cause damage to their reputation but undermine the general trust of the society in the institution of advocacy.

Regional Ombudsman as a Public Service Oversight Agency in Indonesia (Analysis of Constitutional Court of the Republic of Indonesia Decision Number 62/Puu-Viii/2010)

This study aims to identify and analyse the recognition of Regional Ombudsman institutions in Indonesia that existed before establishing the National Ombudsman of the Republic of Indonesia. This qualitative descriptive research uses a normative juridical approach, specifically focusing on the conceptual approach, legislation, and court decisions. The research findings reveal that the enactment of Law No. 37 of 2008 on the Ombudsman of the Republic of Indonesia has sparked protests from several pre-existing regional Ombudsman institutions. This is because the Ombudsman Law regulates a prohibition on the use of the name “Ombudsman” by public service oversight agencies at the regional level, resulting in petitions for judicial review to the Constitutional Court of the Republic of Indonesia. In its verdict, the Constitutional Court declared that the state cannot monopolise the name “Ombudsman” as a public service oversight agency. The prohibition on establishing public service oversight agencies with the name “Ombudsman” other than the Ombudsman of the Republic of Indonesia, as stipulated in the a quo law, is not in line with the constitutional spirit and protections guaranteed by the Constitution. This includes the right to recognition, assurance, protection, fair legal certainty, and equal treatment before the law within the government. This prohibition is also contrary to the constitutional guarantee of the right of every individual to advance themselves collectively in pursuing their rights for the betterment of society, nation, and the state.

Precautionary Principle as a Criterion of Accusation in the Criminal Liability of Crimes against the Environment

This research involves a documentary review regarding different theoretical and doctrinal postulates, according to which the affinity and interference of the precautionary principle as a criterion for imputing criminal liability for environmental damage in Colombia are gauged. In order to elaborate on this topic, it was necessary to make a theoretical assessment of a risk society and how the legal doctrine has valued risk as a criterion of criminal accusation. In this research, we provided a description and legal analysis of the precautionary principle in environmental matters and defined the parameters under which this principle is measured. In addition, the development and configuration of the environment as a protected legal right, its classification as a fundamental right, and its interference with the right to life and personal integrity are briefly described. In short, it was necessary to assess and question the scope of malice and its components within the accusation of criminal titles in the scenarios of a risk society and its link with the environmental precautionary principle. All these issues were addressed using descriptive and bibliographic research with a qualitative approach. The criminal liability of those who transgress the principle described above and put the protected legal assets related to the environment at potential risk was analyzed from an objective legal point of view. Likewise, we conducted an in-depth evaluation of the constitutional environmental protection category and the state duties concerning this constitutional mandate.

U.S. Bail, Pretrial Justice, and Charitable Bail Organizations: Strengthening Social Equity and Advancing Politics and Public Ethics of Care

The U.S. criminal legal system contributes to the oppression and harm of marginalized groups, calling into question ethical governance. The front end of this system, specifically bail and pretrial justice, exploits opportunities for resource generation and social control as a major driver of incarceration, yet receives limited attention in public administration or ethics. Disproportionate punishment and collateral penalties associated with bail and pretrial justice are causes and consequences of structural racism and administrative dysfunction. Excessive bail as a poverty penalty incurs risks to health, safety, financial security, and constitutional presumptions and protections. In light of civil and constitutional rights concerns, bail and pretrial-associated philanthropic solutions have proliferated. This article provides background on bail and pretrial justice policies and politics; outlines evidence of related consequences; describes select reform efforts and philanthropic tools, including the charitable bail organization The Bail Project; and contextualizes bail and pretrial justice within a public values framework, which centers social equity and incorporates critical race theory alongside politics and public ethics of care. Upholding the Constitution and the law, strengthening social equity, and ensuring procedural due process are core tenets of good governance, yet anathema to the current bail and pretrial justice system, which is a critical public ethics concern.

‘Blowjobs are Jobs Too’: An Exploratory Study into Victimization Experiences of Male Sex Workers in Botswana

This study conducted in-depth face to face interviews with twenty male sex workers (MSWs) servicing sex tourists in Botswana. Expert opinions were also sought with support organizations and the police in Botswana to understand more about male sex work in Botswana. The research questions were directed at exploring (a) how male sex workers experienced and perceived victimisation in their interactions with sex tourists, (b) what role support groups played, and (c) what reforms both male sex workers and support groups propose for the male sex work industry. The article presents their victimisation experiences, health risks and opinions of the support groups. The study found out that MSWs frequently experienced physical violence and sexual assaults such as stealthing, especially male sex workers who identified as gay or bisexual. MSWs never reported their victimisation experiences to the police due to fear of stigmatisation, shaming and possible arrests given the partial criminalisation of sex work. Support groups on the other, as non-governmental organizations offered the much-needed support services such as distribution of lubes, condoms, HIV screening, counselling, and ARV and PrEP access and management for sex workers. This study contributes to the limited literature examining the experiences of MSWs, demonstrating their vulnerability and the need for interventions to mitigate their victimisation and protect their health. Many sex workers emphasised constitutional protections of their rights, the need to decriminalise, as well as the promotion of safety and security. The study argues that traditionally, culture and religion have produced a gender-biased socio-cultural parameters that place males as providers, hence, their vulnerability to victimisation and sexual violence is often unnoticed, which also makes reporting difficult to law enforcement.

Anticipated Impact of Dobbs v Jackson Women's Health Organization on Training of Residents in Obstetrics and Gynecology: A Qualitative Analysis.

On June 24, 2022, the Supreme Court of the United States in the case of Dobbs v Jackson Women's Health Organization ended constitutional protection for abortion, thus severely restricting access to reproductive health care for millions of individuals. Concerns have arisen about the potential impact on medical students, residents, and fellows training in restricted areas and the effect on gynecologic training and the future provision of competent comprehensive women's health care in the United States. To qualitatively explore the anticipated impacts of the Dobbs ruling on training in obstetrics and gynecology (OB/GYN). A participatory action research approach employing methods of qualitative analysis was used. Trainees and leaders in national OB/GYN professional and academic organizations with missions related to clinical care and training of medical students, residents, and fellows in OB/GYN participated. Two focus groups were held via Zoom in July 2022. Using an iterative process, transcripts underwent coding by 2 independent researchers to identify categories and common themes. Themes were organized into categories and subcategories. An additional reviewer resolved discrepancies. Twenty-six OB/GYN leaders/stakeholders representing 14 OB/GYN societies along with 4 trainees participated. Eight thematic categories were identified: competency, provision of reproductive health care, residency selection, inequity in training, alternative training, law-based vs evidence-based medicine, morality and ethics, and uncertainty about next steps. This qualitative study of leaders and learners in OB/GYN identified 8 themes of potential impacts of the Dobbs ruling on current and future training in OB/GYN.

The semi-future constitution: entrenching future-oriented constitutional interpretation

ABSTRACT A recent trend in futures studies has called for strengthening the inclusion of future generations in constitutional law. This is problematic from a practical and a normative viewpoint. This paper introduces a future-oriented theory of democratic constitutionalism that overcomes originalism (which privileges the past) and living constitutionalism (which privileges the present) without resorting to the explicit constitutional protection of the yet unborn. It is divided into five sections. The first challenges the notion that the constitutional entrenchment of the non-overlapping future is the best means of implementing long time horizons in democratic legal systems. The second maintains that constitutions are substantive normative expressions of the ultimate justification of authority. The third demonstrates that the substantive dimension of constitutions is cross-temporal and includes what I call ‘the objective interests in the future’ of all members of the people. The fourth connects such objective interests with rights to political participation. The final section focuses on the cross-temporal role of constitutional adjudication. Because rights to political participation include objective interests in the future and necessarily hold the status of constitutional rights in any legitimate democratic constitution, constitutional adjudication must guarantee their enforcement over government action.

Constitutional protection of Egyptian women’s rights in personal affairs

Constitutional protection of Egyptian women’s rights in personal affairs