Constitutional Text Research Articles

Une législation suisse glottophile ? Entre territorialité et liberté, pragmatisme et indifférence : un plurilinguisme à géométrie très variable

Unlike other officially multilingual states, Switzerland is often seen as a glottophile country, where linguistic minorities have few complaints. Its success is often attributed to the principle of territoriality (one official language per territory), but the principle of personality (free choice of by citizens of the language in State-citizen communications) is also important in bi/plurilingual cantons, in what appears to be a differentiated territoriality. The legal framework is based on cooperation between the cantons, which govern their own linguistic matters, and the federal State. The officialization of the three main languages (German, French, and Italian) was recently supplemented by that of Romansh, a vulnerable language from a demographic perspective. At the same time, the Swiss-German dialects have remained very much alive, despite their absence from constitutional texts. However, one should be wary of total acceptance of this idealised image of Switzerland, when the legislator seems indifferent to languages of immigration and, moreover, does not grant recognition to Franco-Provençal. This Romance language that is still spoken in parts of Francophone Switzerland is not protected by any policies aimed at ensuring its survival. This article aims to reflect on the applicability of the notion of glottophilia to Switzerland by focusing on the texts that constitute the architecture of language legislation in the country.

EMPOWERING WOMEN IN JORDANIAN LEGISLATIONS: A STUDY IN LIGHT OF THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN (CEDAW) AND THE AMENDMENTS TO THE JORDANIAN CONSTITUTION IN 2022

Jordan has ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) with reservations about some of its provisions for reasons related to the state's religious and national identity. Therefore, Jordanian legislations varied in terms of their compatibility with this Convention. On the other hand, a new text was added to the Jordanian Constitution under the 2022 amendments aimed at empowering women and protecting them from all forms of violence and discrimination. This added text raised the question of whether it paves the way for the lifting of reservations to CEDAW. In light of this added constitutional text, this study seeks to address and analyze Jordanian legislation to determine their role in empowering women, and to indicate their compatibility or incompatibility with CEDAW. This study concluded that Jordanian legislations include many provisions aimed at empowering women politically, economically and socially in a manner consistent with CEDAW, while preserving the regulation of the issue of nationality, personal status and family affairs in accordance with the interests of the state and its religious affiliation, and in contravention with CEDAW. The study recommended the necessity of stipulating in the constitution to grant Jordanian nationality to the children of Jordanian women married to non-Jordanians as a woman’s right, and then lifting the reservation regarding this matter in CEDAW.

WEIGHTING PRINCIPLES IN CIVIL PROCEDURE AND THE GUARANTEE OF PROTECTION TO FUNDAMENTAL RIGHTS RELATED TO THE EXISTENTIAL MINIMUM

Objectives: This article aims to examine and study the normative provisions concerning the weighting of principles in Civil Procedural Law aiming at the guarantee and protection of Fundamental Rights concerning the existential minimum. With the innovations brought by the Civil Procedure Code of 2015, in which the legislator sought to write it in the light of the precepts of the normative Federal Constitution of 1988, there was a clear constitutional influence on civil procedural provisions, making the Courts of Justice and their magistrates, in the exercise of their attributions, to perform obligations and responsibilities different from those performed until then.
 Methodology: For that, it uses bibliographic-documentary analysis, from the deductive method, to infer the conclusions. It examines, therefore, the attributions of the Judiciary, which from applying the laws, passes in its attributions and decisions to observe the legal system as a whole, through a normative and principled analysis, recognizing new rights and effectively putting into practice fundamental rights with direct foundation in the constitutional text.
 Results: It is concluded that in the normative absence or in the conflict of norms, especially in the figure of the principles, when providing the effective application of Fundamental Rights, under the goal of ensuring and promoting minimum material conditions for human survival, this will take place under the prism of balancing constitutional principles, such as the Existential Minimum, influencing this weighting not in the dimension of the validity of the principles, but in their weight in concrete cases, which tend to lean towards the protection of the dignity of the human person as a vector of fundamental rights and foundation of the Republic.

History and systems of control of constitutionality: international experience

This article examines the historical evolution of constitutionality control, its concept and its various systems. In the study of modern constitutionalism, the topic of constitutional control, especially from the side of constitutional jurisdiction exercised by constitutional courts, is gaining more and more strength. The control of constitutionality is the supervision of the compatibility of regulatory acts with the constitutional text. From supremacy and constitutional centrality, any laws, to remain valid in the national legal system, must maintain respect, formal and substantive, for the constitutional text. It is at this moment that constitutionality control, which is carried out diffusely by various bodies of judicial power, comes into play. The idea of constitutional review is related to the supremacy of the Constitution over the entire legal system, as well as constitutional rigor and protection of fundamental rights.
 The existence of normative escalation is a necessary prerequisite for constitutional supremacy, since, occupying the constitution of the hierarchy of the normative system, it is in it that the legislator will find the form of legislative development and its content. Moreover, in countries that have a strict Constitution, that is, those that provide for their own amendment a more serious legislative procedure than is provided for by ordinary laws, a kind of regulatory pyramid is established, at the top of which is the Constitution.
 Therefore, the control of constitutionality is a guarantee of the supremacy of basic rights and guarantees provided by the Constitution, which, in addition to setting the boundaries of state power, is also part of the legitimacy of the state itself, defining its duties and enabling the democratic process under the rule of law. Control of constitutionality means checking the perfect adequacy of the law or normative act of the Constitution, checking its formal and material requirements. This is always a comparative examination between a legislative or regulatory act and the Constitution. From this we can say that any legislative or regulatory act that contradicts the Basic Law of the organization of the state must be declared unconstitutional.

Present and Future of Environmental Law in Cuba

The environmental legal framework in Cuba is based on constitutional article 75 and Law 81, of July 11, 1997, on the environment, a framework law on the matter, with a series of complementary provisions with the rank of Decree Law or Ministerial Resolution. The adoption of the new constitutional text in 2019 is followed by the updating of all environmental legislation that requires a new framework law, which fills the gaps in the current one and leads to more effective environmental management. The paper addresses some of the areas in which significant changes have occurred or should occur. In particular, it refers to the changes introduced by the approval of the new Natural Resources and Environment System Law, adopted by the National Assembly of People's Power in May 2022. In this sense, an assessment of the behavior of the different existing environmental management instruments in the country, assessing the changes that must occur in their implementation.

A INTERFERÊNCIA ESTATAL NAS QUESTÕES DE GOVERNANÇA NO ESPORTE BRASILEIRO: AFRONTA À AUTONOMIA DESPORTIVA?

The Federal Constitution disposes in its article 217, I, about the sporting entity autonomy regarding its organization and functioning, as well as brings in its list of fundamental rights the freedom of association, forbidding the federal interference in its functioning. However, over the years, more and more laws are coming into force looking for improving the governance of the sporting associations and end up interfering in its organization. Thus, the present article aims to analyse if such state interference would be on the same page as what the constitutional text disposes.

The "Independent" State Legislature in Republican Theory

The independent state legislature theory provides that state legislatures are not constrained by their respective state constitutions in exercising the authority that the U.S. Constitution delegates to states over federal elections. In its most extreme form, the doctrine permits state legislatures, in overseeing the mechanics of federal elections, to disregard state court interpretations of state constitutions. Scholars have offered a number of criticisms of this doctrine, noting that it runs counter to the Founding Generation’s concerns about the lawlessness of state legislatures; is contrary to historical practice at the Founding; and undermines the constitutional structure in which the more democratically accountable Congress, rather than the states, is vested with final say over federal elections.
 This Article contributes to this growing literature by pointing to the constraints, centered in the constitutional text and history, that limit the ability of legislatures to disregard their state constitutions. Specifically, the Electors Clause of Article II, Section 1 provides, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress . . . .” This text explicitly raises the question: Who is the “state” on behalf of which the legislature deploys power?
 Using this language as its jumping off point, this Article argues that the “state” referenced in Article II, Section 1 refers to its citizens, whose preferences are conveyed to the state legislature through the state’s electorate and in the state constitution. Within a decade of the Founding, the selection of officials by the state’s electorate became central to the theory of republicanism underlying the Guarantee Clause of Article IV, which predicated the legitimacy of government on majority support. By the adoption of the Twelfth Amendment, which changed the structure of presidential elections, political elites viewed republican government as requiring that state legislatures and, to a lesser extent, federal officials, be accountable to the people who elected them, accountability that prevented state legislatures from exercising their authority over federal elections in blatant disregard of the people’s wishes.
 The Article concludes that the independent state legislature theory, particularly in its strongest iteration, runs counter to the democratizing effect that the Twelfth Amendment was intended to have on presidential elections. The theory allows the state legislature to disregard the preferences of the people at a juncture in which they are exercising the oversight and accountability at the core of our system of republicanism: during the election of federal officials. Any version of the doctrine, if adopted, has to respect majoritarian preferences.

Criticism of the mandatory nature of preventive detention for recidivists in Ecuador

Despite the fact that Ecuador has a Constitution that enshrines the principles of freedom, equality and minimal criminal intervention, with an express rule that prohibits discrimination based on "judicial past" and that the Constitutional Court and the National Court of Justice have insistently pronounced for the exceptional application of preventive detention, the Comprehensive Organic Criminal Code maintains unchanged the third paragraph of the article 536, which prohibits judges from substituting this precautionary measure for another of lesser rigor when lawbreakers are recidivists; this situation that has caused high rates of people deprived of liberty without conviction, around which a serious prison crisis has unfolded with at least 385 deaths in seventeen months. The study that is presented, carried out under a qualitative approach and the critical and reflective method has allowed to show the internal contradictions between the criminal legal norms; the principles that the Code itself states and the constitutional text, in addition to revealing the social need to adopt Urgent legal reforms around preventive detention to help to reduce the negative effects of violence in detention centers and comply with constitutional mandates.

Failures of comparability in global governance: Exploring the practical dimension of the redress of law

AbstractIn The Redress of Law, Emilios Christodoulidis explores the philosophical foundations of market constitutionalism and shows how its embedded rationality shapes global governance. The author delves into critical phenomenology to lift the veil of ignorance on the fact that market constitutionalism has replaced political rationality with economic reasoning. By grounding its theory in the continental critical theory, ranging from Marxism to Weil’s existentialism and Luhmann’s systems theory, the book shows how the redress of law is also a practice that could radically transform the global political economy. However, the challenge is to displace the modern thinking of market constitutionalism that is rooted in functional differentiation and privileges constituted rather than constituent power. Such market thinking has allowed global governance experts to simplify and reduce to numbers complex polical, cultural and social phenomena embedded in constitutional legal regimes. The disembedding of law from society through functional differentiation, and the sole preoccupation of legal experts with constituted power, have contributed to the depoliticisation of constitutionalism as both theory and practice. A quintessential example of market constitutionalism in practice are global governance indicators. These indexes entail comparisons among legal regimes that empower private market rules as the final arbiter of local redistributive policies while bracketing historical, genealogical and reflexive connections to law’s social realities. The book offers several strategies of ‘redress of law’ such as rupture, contradiction and open dialectic, aiming to foreground political rather than market constitutionalism and to revamp the dialectic between constituted power exemplified by constitutional texts and constituent power, exemplified by strikes. This Article praises Christodoulidis’s sophisticated theoretical framework grounded in critical phenomenology, but at the same time pushes the author’s argument beyond the book itself. By questioning the practical implications of the redress of law, the focus on legal assumptions in global governance shows how legal experts in a variety of legal fields beyond constitutionalism have reproduced existing inequalities defined in terms of market, social and colonial hierarchies.

A CONSTRUÇÃO DE UM DIREITO POLICIAL: A conexão entre a polícia e a sociedade

In Brazil, there is no continuous doctrine of public security that allows for the convergence of legal points regarding the exercise of police activities. Faced with this reality, this article lecture about the need to create Police Law, still unexplored in the brazilian legal system, for the security of the legal security of police activities and for the promotion of the fundamental rights and guarantees of the citizen enshrined in the constitutional text. The research methodology is qualitative, exploratory and descriptive. Thus, without intending to deepen, the study is guided, especially, by Guedes Valente's thesis on the General Theory of Police Law and by Niklas Luhmann's theory of law. Finally, an integrative communication between the social system, the legal system and the police system is proposed for the construction of police legal language which is characterized as a connection between the police and society.

General Characteristics of the Unamendable Norms of the Constitution

The article considers the phenomenon of unchanging provisions of the constitution, their evolution, different classifications. Immutable provisions are considered narrowly – as provisions that are not subject to any changes, as well as criteria (principles), which the changes made should notcontradict. Synonymous concepts denoting immutability are considered – absolute entrenchment, the clause of eternity, stone provisions. The idea of supra-constitutionality, however, is seen as a different phenomenon from the unchanging provisions of the constitution. It is claimed that thematerial (substantive, substantive) requirements for change were not common from the beginning (although the situation has changed quite a few centuries). As practice shows, immutability can be not only formally established in a positive constitutional text. Existing examples lead us to thinkabout the important role of judges who interpret a positive constitutional text. In this case, the constituent power speaks not only through the positive text of the constitution, but also through the judges (for the Kelzen model of constitutional control – the judges of the constitutional court).The unchanging provisions themselves can be changed, as evidenced by relevant examples from practice (albeit isolated). In addition, history knows examples of departure from the positively enshrined immutable provisions (in the case of a rupture of constitutional continuity). Even if theprovisions remain unchanged, there may be no specific jurisdiction to monitor compliance. The absence of explicit immutability does not mean that the practice has not formed implicit criteria of immutability. However, even combined explicit and implicit immutability can still not claimuniversalism in constitutional law.

The framework and features of language policies in global constitutional texts.

Language policy, which is directly concerned with language practice, language ideology and language management, has become increasingly important in real social life. Explicit language policies in different fields, such as texts in law, education, and the public, have been explored for many years. However, the global comparative research on language policies in various constitutional texts (CT) is quite limited. In response, the present study aimed to investigate the framework and features of language policies in global CT through a combination of qualitative and quantitative analysis. Results showed that: 1) there were seven parts of the CT dealing with language policies, such as Preamble, General principle, The state, Fundamental rights and Duties of citizen, State authority, National objectives, and Supplementary; 2) there existed significant differences in the frequency of language policies in seven parts of the CT. Among them, language policies appeared most frequently in the part of Fundamental rights and duties of citizen; 3) the geographical location where the Constitution was enacted affected the distribution of language policies across parts. Overall, our findings suggested that the language policy in CT was influenced not only by constitutional principles, but also by the national language environment.

Poverty discrimination under the Promotion of Equality and Prevention of Unfair Discrimination Act: A transformative substantive equality approach

This article considers the implications of a transformative substantive equality interpretation of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act) for the interpretation stage of a claim of poverty-based discrimination. It draws from the work of the critical social and global justice theorist, Nancy Fraser, to briefly develop and extend existing transformative accounts of substantive equality that are faithful to the constitutional text and its legislative expression in the Equality Act. The article shows that the Equality Act could be interpreted to capture poverty discrimination that manifests along three intersecting axes, namely ‘misrepresentation’, ‘maldistribution’, and ‘misrecognition’. These axes highlight the political marginalisation, material disadvantage and pervasive prejudices, violence and stigma that characterise the disadvantages of poverty. The article then proposes three inquiries of an unfair discrimination analysis under the Equality Act that provide adjudicators with a critical legal framework to interpret the various stages in line with a transformative substantive equality approach.

Asking the Woman Question of Constitutions: Insights from Sri Lanka

What do we learn when we ask ‘the woman question’ of constitutions of the Global South? Constitutions worldwide are increasingly the subject of gender analysis, which rests on ‘asking the woman question’ to uncover the gendered implications of seemingly neutral constitutional provisions. But can gender analysis account for all forms of gender inequality in all kinds of constitutions? In this article, we place three lines of inquiry in conversation in responding to these questions: the feminist method of asking the woman question, dominant approaches to constitutional gender analysis, and the perspective(s) from the Global South. In doing so, we develop a way to understand how constitutions of the Global South are gendered in their design and operation, in ways that are perhaps distinctive. We use Sri Lanka as a case study to show how asking the woman question of Sri Lanka’s Constitution requires us to revise some fundamental assumptions about constitutions and to engage with laws, institutions and practices that are close to the constitution, but not usually considered within the constitutional remit. We argue that constitutional gender analysis needs to move beyond a focus on constitutional text and institutions to better address gender inequalities in societal institutions, such as the family, institutions relating to labour, religious institutions and the military. We describe these institutions as ‘proximate institutions’, by which we mean institutions that are close to the constitution, because of their role in constitutional governance and in the exclusion and subordination of women from it. We propose the identification and analysis of proximate institutions as a methodology that calibrates the issues of context that are critical for fully understanding the gendered nature of constitutions, in the Global South and beyond.

Verfassungsrechtliche Grundlagen der „Völkerrechtsfreundlichkeit“ – Österreich

Austrian constitutional law theory is slowly but steadily warming up to the concept of “Völkerrechtsfreundlichkeit” (“friendliness towards international law”). Due to its largely technical and unemotional formulations, the Austrian Federal Constitution nevertheless blocks elaborated theories based on the constitutional text. However, some elements of “Völkerrechtsfreundlichkeit” can be filtered out indeed, each of which are significant in their own right but they do not reveal any signs of a coherent and verifiable concept. This article introduces a number of relevant legal rules, including the generally recognised rules of international law, the handling of violations of international law, and the constitutional establishment of treaties – especially in their human rights dimension. The analysis concludes that the Austrian Federal Constitution does not harbour an empathetic, but rather an unpretentious variant of the concept of “Völkerrechtsfreundlichkeit”.

THE FUNDAMENTAL LAW – A REVIEW?

Constitutional revisions, in the majority of them, are determined by internal considerations, considerations that can be of a political or legal nature, revisions through which political commitments are introduced into the constitutional texts through cosmetic changes, thus creating the premises for constitutional and legislative reform.

The United States of America and the Iraqi identity crisis after 2003

The referendum is a mechanism whereby people can give their opinion on the public issues whether on the constitutional, legal or political issues. However, the referendums can be held by the executive or legislative powers or by the president of the state through a constitutional text. Kurdistan region of Iraq (KRI) conducted a referendum on 25 September 2017 by an overwhelming majority vote of roughly 93.25 percent in favour of Kurdistan secession. Therefore, this paper aims to investigate which sort of referendums exercised by Kurdistan Regional Government (KRG), and the constitutionality of the Kurdistan region referendum from the perspective of the Iraqi Constitution. The paper discovers information from secondary sources to cross-examine opinions and reach conclusions. It is concluded that the referendum in the Kurdistan region was a political referendum, therefore its constitutionality can be assumed that imposing the right of self-governance as a law cannot establish a State; it can only occur with the endorsement of the mother State, through a constitutional structure. At the other side, the question of the referendum's constitutionality is essentially a matter of legal controversy, which goes further than the facts of the constitutional framework.

What would a pluralist institutional approach to constitutional interpretation look like? Some methodological implications

Abstract This article makes the case for adopting a genuinely pluralist perspective when studying constitutional interpretation and sets out the principal forms such inquiries can take. While it has now been accepted that the court-centricity that characterized much of the earlier work on constitutional interpretation must be recalibrated, the approach taken in much constitutional scholarship remains underinclusive, as the role of executives, agencies, ad hoc commissions, and social actors in constructing the meaning of the constitutional text is often downplayed, or altogether overlooked. We argue that a pluralist perspective is necessary to fully appreciate the practice of constitutionalism in each jurisdiction and enable more informed analyses of the relationship between constitutions and law-making. Through a series of case studies, we further demonstrate that, while nonjudicial interpretation is an important practice in all countries, such a perspective could be particularly apposite in dominant-party states, as well as those favoring political constitutionalism, where courts are unlikely to position themselves as the principal, let alone exclusive, authority on what the constitution means. This article also explores the methodological implications in designing pluralistic constitutional interpretation studies, focusing on the questions that await investigation, the core variables at play, and the particular hazards in collating and assessing the materials that must be reckoned with.

Process of Europeanization of the Constitutional Court

This study analyzes the process of Europeanization of the Spanish Constitutional Court. From the beginning, when the Constitutional Court considered Community Law as something absolutely alien to the domestic constitutional text and, therefore, as something absolutely alien to its own jurisdiction, up to the present, in which the Constitutional Court seems to point towards a possible recognition of Union Law (specifically, of its Charter of Fundamental Rights) as a direct constitutional parameter subject to the ultimate jurisdiction of the Constitutional Court itself.

Synchronization of the Ukrainian criminal legislation with the Charter of Fundamental Rights of the European Union

The article is devoted to clarifying the compliance of the current legislation of Ukraine with the provisions of the Charter of Fundamental Rights of the European Union. The author evaluates the norms of the Constitution of Ukraine from the perspective of the Charter, and then analyzes the completeness of their reflection in the provisions of the Special Part of the Criminal Code of Ukraine. Special attention is paid to human dignity as a priority right recognized by the Charter of Fundamental Rights of the European Union.
 The author agrees with researchers who recognize that the new "philosophy of human rights" is implemented in the Charter, which receives a normative embodiment in the founding documents of the European Union, and supports the proposal to make appropriate changes to the text of the current Constitution of Ukraine.
 The existing incompleteness of the criminal law protection of such a fundamental right as human dignity in Ukrainian legislation has been confirmed.
 Attention is drawn to the practice of the European Court of Human Rights regarding value judgments that cannot be proven in court. It is argued that in such a situation, a person who defends his dignity has the right to express his opinion, assess what happened, with further consideration by the court of the issue of restoring the violated human right in a certain form. And in the presence of evaluative judgments, a person does not lose the right to compensation for damage caused by such judgments. The content, form, direction of such evaluative judgments, their impact on the addressee (the person it concerns), their publicity, etc., are important for the court to make a fair decision.
 The author's suggestions regarding the further improvement of the criminal legislation of Ukraine with the aim of its proper synchronization with the legislation of the European Union are presented. Added additional argumentation regarding the need to criminalize slander and insults with clarification of the expediency of recognizing the relevant components of criminal offenses as material with a consequence in the form of compound damage (moral and material).