Constitutional Research Articles

The Role of Governance in Strengthening of the Constitutional Judiciary

This research article aims to identify the governance of the judiciary in various aspects (transparency, rule of law, participation, accountability, justice, and equality) and its impact on the development of constitutional judicial powers. To centralize the authority and achieve judicial goals within the state, reforms must be implemented. The concept of judicial governance was previously nonexistent, with some viewing judicial power as separate entities performing their duties independently. However, due to developments that the world has witnessed, the responsibilities of the constitutional judiciary have increased, leading to the adoption and application of governance principles. This can only be achieved through promoting the concept of governance and implementing its principles in all state institutions, particularly those of a constitutional nature. This includes reforming the institutional structure to recover the powers to the judiciary, which serves as the arbiter, separator, and balancer among all branches of government.

Reconstruction of the Position and Authority of the Honorary Council of General Election Organizers (DKPP) as a QuasiEthical Court of Election Organizers

The Honorary Council of Election Organizers (DKPP) is an institution responsible for resolving ethical violations committed by election organizers, established under the law as part of Indonesia’s election system. As a state institution, the DKPP holds the authority to examine, summon, sanction, and adjudicate such violations through a court-like process, which includes witness examination, expert testimony, verification of evidence, and the issuance of rulings. Notably, DKPP decisions are final and materially binding. The quasi-judicial nature of its proceedings, combined with the finality of its decisions, places the DKPP in a unique legal position, often referred to as a "quasi-public court." In the Constitutional Court's interpretation, the DKPP functions as an integral part of the election administration alongside the General Election Commission (KPU) and the Election Supervisory Body (Bawaslu), forming a comprehensive election organizing body. This study explores the legal status and authority of the DKPP, particularly in its role as a quasi-public court. Through normative legal research with a descriptive and prescriptive approach, using legislative, conceptual, historical, and comparative methods, the study concludes that the DKPP, as an independent auxiliary state organ, functions similarly to a general court in enforcing the code of ethics for election organizers. The final and binding nature of its decisions has significant legal implications, reinforcing the DKPP's role in maintaining electoral integrity within Indonesia’s constitutional framework.

Can’t Contracting Be Relational?; Comment on "Alignment in the Hospital-Physician Relationship: A Qualitative Multiple Case Study of Medical Specialist Enterprises in the Netherlands"

Ubels and van Raaij provide a valuable account of the operation of novel hospital/medical specialist enterprise contracts in a Dutch healthcare system shaped by market reform. However, their analytical distinction between the separate domains of contractual and relational governance frames the contractual domain more narrowly than does the relational contract theory widely deployed in socio-legal studies. The authors’ conclusion that contract plays little or no part in governing relations between hospitals and MSEs leads them to underplay a wider realm of contractual practices that develop in the shadow of the written contract. Apparent non-use of contracts in favour of shared planning, compromise and extralegal solutions only takes the form it does because of the potential application of the available legal framework. Larger qualitative field studies involving a more extensive combination of interviews and observations may be needed to gain fuller insights into the relational dimensions of the contracting process.

‘Towards a modern democracy’? The constitutional politics of the 1990s British left

ABSTRACT This article argues that a ‘constitutional lens’ sheds light on British political contestation in the 1990s. It is commonly suggested that 1990s politicians merely consolidated the hegemony of ‘Thatcherism’. Yet, this struggles to encompass the decade’s political volatility, from the Conservatives’ descent into internecine warfare over the Maastricht Treaty to the fraught Irish peace process. Though varied, these developments shared a key theme: controversy over the constitution of the United Kingdom. To illustrate its case, this article applies the constitutional lens to the 1990s left. Existing accounts emphasise Labour’s concessions to Conservative opponents. By 2001, however, the first Blair government had enacted contentious constitutional changes: devolution, proportional voting systems, and a Human Rights Act. These policies reflected a dynamic, new, liberal-left politics of constitutional reform. From the 1980s, liberals, social democrats and Marxists forged a new constitutional agenda, responding to trends since the 1960s—growing ‘popular individualism’, agitation for ‘human rights’, European integration, and Scottish nationalism—and to the end of the Cold War. By the 1990s, campaigners had developed a bold programme for ‘modernising the constitution’, which influenced Labour’s programme. Through New Labour’s governments, this agenda profoundly reshaped the institutions of British politics in the twenty-first century.

Energy Diplomacy of Turkmenistan: Determining Factors and Legal Framework

Introduction. Energy diplomacy is an effective means of ensuring energy security (international and national) and, at the same time, an instrument for implementing the foreign energy policy of states. Since energy diplomacy is formed and implemented in the conditions of the state legal and international legal environment, the study of its legal component acquires not only theoretical, but also important practical significance. At the same time, the legal aspects of energy diplomacy (both in general and in relation to specific countries) have not yet been systematically developed in the legal literature, including in the science of international law. Based on the analysis of scientific and regulatory material, the article identifies the features of Turkmenistan's energy diplomacy and its legal support.Materials and methods. Within the framework of the study, the sources of international law related to the topic under consideration, political and legal policy documents and acts of national legislation of Turkmenistan are considered. The theoretical basis of the research was the scientific works of experts in the field of international law and energy law, as well as individual studies of the problem of energy diplomacy, including in relation to a chosen country. The methodological basis of the study was presented by general scientific and special legal methods.The results of the study. Factors of a resource-geographical nature, combined with factors of a political and legal nature (the status of Turkmenistan as a permanently neutral state) determine the originality of foreign energy policy and, significant from the point of view of international law, the features of Turkmenistan's energy diplomacy. The main strategic priority of Turkmenistan's energy diplomacy is to increase the export potential of oil and gas products and, in this regard, to create an extensive, modern and efficient infrastructure for transit and delivery of energy resources to foreign energy markets, comprehensive legal support for these processes. Reliance on the potential of multilateral diplomacy (primarily in the UN system) for the international legal legitimization of their national interests in the energy sector is combined with the development of bilateral international legal relations of energy cooperation on terms of mutual benefit, while respecting the basic principles of international law. The head of state plays a special role in the development and legal formalization of Turkmenistan's energy diplomacy. Embargoes, as well as unilateral restrictive measures, used in the practice of a number of States and individual integration associations, are not used as a means of economic pressure on other States. Special importance is attached to preventive diplomacy within the framework of the Central Asian region.Discussion and conclusion. Turkmenistan's energy diplomacy, being the main means of implementing its foreign energy policy, has an international and constitutional legal framework, in turn, including: the UN Charter and other fundamental international legal acts establishing the basic principles of international law and the provisions of the Constitution of Turkmenistan on adherence to these principles, taking into account its permanently neutral status; Resolutions The UN General Assembly and acts of the constitutional legislation of Turkmenistan relating to the legal formalization and implementation of its permanent neutral status; norms of international law and provisions of the constitutional legislation of Turkmenistan regulating the main forms of diplomatic activity; special principles of international energy law correlating with the norms of the constitutional law of Turkmenistan.

Цифровизация местного самоуправления — «новая» демократия?

The article presents the author’s opinions on the impact of digital transformation of public administration in general and local government in particular on citizen participation in local community affairs. It is proposed to distinguish between “electronic democracy” and “electronic participation”, and the position is expressed that traditional and digital democracy have a common constitutional and legal nature, characterized by target and functional unity, but differ in technological methods of expressing will and communication. One of the key factors influencing the conditions for using digital technologies in the process of formation and activities of local government bodies is trust. Based on sociological research data, it was revealed that at the local level, ensuring trust has certain specifics, which are proposed to be interpreted through territorial identity.

Constitutional and legal framework for the institutionalization of Ukraine’s security and defense sector

Constitutional and legal framework for the institutionalization of Ukraine’s security and defense sector

The nature of ‘the best constitutional regime’ and virtuous friendship in Aristotle

Aristotle discusses the ‘best constitutional regime’ in Books 7 and 8 of his work, Politics. The central concepts in this discussion are happiness and virtue. The combination of happiness and virtue finds its expression in virtuous friendship. The best constitutional regime assists individuals and society in reaching their highest potential, both individually and collectively. It provides the necessary institutional structure for the justice and welfare of society, which in turn fosters the development of virtuous friendships. According to Aristotle, the highest and most genuine relationship among people is ‘virtuous friendship’. Such friendships enable individuals to understand and support each other based on ethical values and to seek happiness together. This study argues that there is an identity between the nature of the best constitutional regime and virtuous friendship. This claim is based on the idea that the best constitutional regime is the perfect end (telos). In this sense, the perfect end is virtuous friendship.

Revisiting the Debates on the 2010 Constitutional Referendum in Turkey: Democratic Transition or Authoritarian Populism?

This article revisits the scholarly debates on the AKP’s constitutional amendment package that was put to vote in the 2010 Constitutional Referendum. It takes the democratic theorist Andrew Arato and constitutional scholar Aslı Bali as major representatives of the two opposing views on the political implications of the reform proposal. It compares and contrasts their arguments particularly in light of their different assessments of the amendments which concern the restructuring of the judiciary, especially the Turkish Constitutional Court. It argues that their fundamental controversy with regard to the democratic or authoritarian nature of these amendments is rooted in the contrast between Bali’s predominantly contextual and Arato’s predominantly global approach. While Bali affirms the reform proposal as a democratic step forward in transcending the persistent legacy of the Kemalist authoritarian “tutelary” regime represented by the Constitutional Court, Arato interprets it as a manifestation of the global populist-authoritarian retreat that is expresses itself most visibly through assaults against the independent judiciary. After a critical reading of these two approaches, this paper finalizes by way of introducing a new framework that would counterbalance the contextual with the global and vice versa that would arguably provide a new perspective through which one could unveil the particular characteristics of the AKP’s populist constitutional politics at the time of the Referendum.

Gender-Sensitive Approaches In Women's Involvement In Constitution-Making And Peacebuilding Processes In South Sudan

Constitutions play a pivotal role in shaping the political, economic, and social equality of both women and men. As the supreme law, they establish the state's framework, allocate political authority, delineate governance systems, dictate leadership selection, and safeguard fundamental rights. Constitutional reform presents a unique chance to reshape governance structures by enshrining women's rights, incorporating inclusive language, and establishing institutions that ensure and advance gender equality. In South Sudan, akin to many African nations, a pluralistic legal system merges customary practices, religious laws, common law, and statutory regulations. While customary and religious laws hold recognition, they remain unwritten, flexible, and often linked to ethnic concerns, varying across communities. Rooted in generations of tradition, these laws seek to uphold positive community values and norms. However, they frequently disadvantage women, despite the presence of traditional justice mechanisms that some argue are more accessible, cost-effective, prompt, and culturally apt. These alternative justice systems are deeply entrenched in patriarchal norms, often excluding women from comprehensive rights, including equitable participation in governance and decision-making bodies. Drawing lessons from post-conflict nations, this paper contends that the transformative potential of constitutions materializes when women capitalize on constitution reform opportunities to redefine the constitutional community's ambit, compelling the state to honor, safeguard, and fulfill women's rights

A generalized, computationally versatile plasticity model framework - Part II: Theory and verification focusing on shear anisotropy

Shear-dominated deformation (SHDD) is pivotal in sheet metal forming; however, comprehensive modeling of plastic anisotropy in SHDD, specifically shear anisotropy considering both yield stress and plastic flow, has been inadequately addressed in existing literature. In this work, a generalized constitutive framework is introduced on the basis of stress triaxiality-dependent state variable to accurately emulate plastic anisotropy and the physics-based shear constraint in SHDD. The framework is capable to seamlessly integrate with existing yield criteria, preserving computational efficiency and versatility. Notably, the yield function, anisotropic parameters, and their optimization or analytical determination for the non-shear deformation state remain unaltered. When integrated with the Hill48 yield function, featuring either one or two anisotropic parameters within the generalized constitutive framework, precise characterization of yield strength and plastic flow in SHDD is achieved. The applicability of the framework extends to various anisotropic yield functions such as the widely employed Yld2k-2d and the sixth-order polynomial (Poly6) function as a class of associated flow rule-based yield functions, and one non-quadratic yield function for non-associated flow rule scenarios. Experimental validation with two engineering sheet metals, high-strength dual-phase steel DP980 and high-strength aluminum alloy AA7075-T6, was conducted. Comparative analyses with several recently proposed yield criteria, especially Poly6-18p, highlighted the efficiency of the proposed constitutive framework. Furthermore, this study explores intrinsic shear constraints, particularly the absence of through-thickness strains under in-plane shear stress. Additionally, it offers an enhanced description of plastic anisotropy in shear yield stress within the general framework, providing valuable insights into the complexities of SHDD.

Unlocking Access: How Gauteng Province's Online Admission System is upholding the Right to Basic Education in South Africa: A Human Rights Perspective

Access to basic education is a fundamental human entitlement enshrined within the framework of the Constitution of South Africa, playing a crucial role in promoting societal equity and national progress. In the dynamic context of Gauteng Province, characterised by rapid urbanisation, demographic diversity, and socio-economic disparities, achieving this constitutional mandate faces significant challenges. This research meticulously examines the implementation and consequences of the online admission system, designed to enhance access to basic education in Gauteng. The study delves into the constitutional framework of education rights and the socio-economic context of Gauteng Province, stressing the importance of innovative solutions like the online admission system to address educational disparities. It scrutinises the legal basis of education rights and the functioning of the online admission system, with a focus on legislative frameworks such as the South African Schools Act. The research extensively examines the implementation and impact of the online admission system in Gauteng, highlighting its role in enhancing access to preferred schools and rectifying historical inequalities. It also assesses challenges like the digital divide and administrative complexities, proposing strategies to enhance fairness and inclusivity in education delivery. Lastly, the study examines the impact of Gauteng's online admission system on educational access, using empirical evidence to assess outcomes and implications. By offering a detailed analysis spanning legal, socio-economic, and practical aspects, the research contributes to discussions on education rights and policy implementation in South Africa. Overall, it suggests that the online admission system has significant potential to advance societal equity and human development. Keywords: Access; Basic Education; Gauteng Province; Human Rights; Online Admission System

Educational aspects in the constitutional and legal provision of democratic governance under martial law: A comparative study

Within the framework of this scientific article, an analysis of various approaches to the constitutional and legal regulation of governance in conditions of martial law in different countries is carried out. The integration of democratic governance under martial law includes an educational perspective, emphasizing the need for citizens and leaders to understand the constitutional and legal frameworks that support democratic principles during crises. Thus, the purpose of this study is to analyze various approaches to the constitutional and legal regulation of governance under conditions of martial law in different countries taking into account the educational aspect. The study integrates an educational perspective, emphasizing the need for both citizens and leaders to understand the constitutional and legal frameworks that support democratic principles during crises. Research methodology includes historical method, method of legal hermeneutics, method of systemic approach, synthesis, method of modeling, comparative method and statistical method. The conclusions emphasize the importance of understanding and using constitutional and legal provisions to ensure openness, transparency, and participation in public processes, even under martial law. This section outlines educational strategies that can support these goals, such as incorporating constitutional education into formal curricula and providing continuous learning opportunities for citizens and officials.

입법과 사법의 경계: 법률해석의 한계

What is the relationship between legislation and adjudication? Traditionally, it is believed that judges should simply apply the law to specific facts and render judgments accordingly. Montesquieu encapsulated this view by describing judges as "the mouthpieces of the law." In contrast, the Free Law Movement posits that judges are not strictly bound by the text of the law and have the freedom to discover or even create law as needed. Between these two extremes, there exists a range of perspectives on the relationship between legislative and judicial powers. This relationship is crucial because it defines the limits of legal interpretation, making it a central issue in judicial decision-making. This paper begins by exploring the objectives and methods of legal interpretation. It then examines how the Supreme Court of Korea, particularly through its en banc decisions, navigates the relationship between legislation and judicial precedent, or between legislative theory and interpretive theory. The Supreme Court cases discussed in this paper — covering topics such as the gender correction for transgender individuals, parental status of children born through artificial insemination, nominee trusts and unconscionable legal transactions, special limited approval for minor heirs, and judicial reduction of penalty clauses — all address challenging issues that sit at the intersection of legislation and adjudication. The judiciary is vested with the authority to interpret the law, determine its meaning, define its scope, and apply it to specific cases. However, this authority is not without limits. Judges must interpret laws in a manner that respects the legislative power to create laws and must avoid distorting, altering, or replacing the legislator' s decision that can be ascertained from relevant statutory text. This approach is consistent with the constitutional principles of separation of powers and the rule of law, which delineate the distinct roles of the legislative and judicial branches. A legislator's legislative decision cannot be overturned by a judge's judicial decision. Judges must also fulfill their constitutional duty to adjudicate independently according to their conscience (Article 103 of the Constitution of Republic of Korea). It is the judge's role to ascertain the just meaning of the law, grounded in the Constitution and statutes, and to apply it to individual cases. When interpreting and applying laws, judges must confront the critical question of whether to prioritize the intent of the legislature, adhere strictly to the text of the law, or pursue the broader objectives of the law. This question forms both the starting and ending points of legal interpretation and influences views on the boundary between legislative and judicial functions. Whether there has been a legislative decision is a question of the boundaries of statutory interpretation. Legislative solutions, within the constitutional framework, offer the advantage of providing comprehensive resolutions and selecting the best option among various alternatives. However, it is not always possible or appropriate to defer to legislative solutions. The judiciary must, therefore, seek the optimal resolution within the boundaries established by the Constitution and statutes, guided by judicial conscience.

Legal Regulation of Constitutional Justice in the Republic of Kazakhstan: Historical Periodization

The article examines the historical periodization of the phenomenon of constitutional control in the Republic of Kazakhstan. The scientific discourse of the transformation of the institution of constitutional control in historical retrospect in the theory and practice of constitutionalism has revealed trends and patterns. The study periodizes the development of the Institute of Constitutional control of the Republic of Kazakhstan, analyzes the formation and development of constitutional justice bodies over 4 stages.

Embedding constitutional rights

Abstract This article details the concept of constitutional embedding and demonstrates its utility in four country-rights cases. Constitutional embedding refers to the process by which some understanding of constitutional rights comes to take root in everyday life, moving from words on paper to something that shapes expectations and behavior. The degree of constitutional embedding varies along two dimensions: social and legal, or how individuals and groups operating in the social sphere understand and relate to constitutional rights, and how those working in the formal legal sphere do so. In a global political climate defined by democratic backsliding, powerful vested interests, and backlash against moves toward equality, the status of constitutional rights and how they become and remain embedded is doubly important. The constitutional embedding framework highlights how interactions between legal elites and ordinary citizens constitute the extent to which constitutional law influences daily life. The framework has broad applicability across contexts and rights domains.

The Hungarian Retail Sales Tax in the Changing EU Context

In the last twenty years, Hungary has had three periods of special taxes (introduced as a result of the crises), but before and after 2010, and after the recession following the COVID-19 epidemic and the Russian-Ukrainian war, there were different legal policy reasons behind special taxes (including the retail sales tax). This raises questions as to whether the regulatory solutions implemented to address market failures during the first period are playing the same role today as they did in the past, and how their role has changed over the years. The introduced taxes often remain part of the general tax system, i.e. they are applied on a permanent basis (rather than on a temporary basis, as is usual with special taxes), and in 2023 they already accounted for almost 14% of total tax revenue (a higher proportion than, for example, corporate tax), which puts their role in the tax system in a different light. The Court of Justice of the European Union (CJEU) has repeatedly examined the EU framework, but it appears that the control has been weakened, mainly due to the impact of the current crises. At the same time, the Hungarian Constitutional Court is bound by the limits of the debt brake when examining the constitutional framework. The study explores the regulation of the Hungarian retail sales tax and its EU context, in particular with regard to the changes triggered by the crises. The introduced taxes often remain part of the general tax system, i.e. they are not applied on a temporary basis, and in 2023 they already accounted for almost 14% of total tax revenue (a higher rate than, for example, corporate tax), which puts their place in the tax system in a different light. The Court of Justice of the European Union (CJEU) has repeatedly examined the EU framework, but it appears that the control has been weakened, mainly due to the impact of the current crises, while the Hungarian Constitutional Court is bound by the limits of the debt brake when examining the constitutional framework.The study deals with the regulation of the Hungarian retail sales tax and its EU context, in particular with regard to the changes induced by the crises.

Women and the Constitutional Politics of Care in Ireland

Women and the Constitutional Politics of Care in Ireland

The Implementation Basis and Value Identity of the Constitution and Constitutional Governance

The Constitution is at the forefront of the national legal system and has the highest legal effect. The implementation of constitutional governance is not only to visualise the values and objectives pursued by the Constitution, but also a powerful means to realise the national governance strategy. This paper discusses and analyses the constitution and constitutional governance, and comes up with some thoughts on the basis of the implementation of the constitution and constitutional governance.

The role of the European Union’s securitisation policies in exacerbating the intersectional vulnerability of refugees and asylum seekers

ABSTRACT This article compares the European Union's (EU) reception and resettlement of European and non-European refugees and asylum seekers from an intersectional viewpoint. It does so using data collected during fieldwork in Greece focusing on Sexual and Gender-Based Violence (SGBV). The goal is to examine, through an empirical and theoretical study, the gendered, racialised, national and religious nature of the EU's approach to its external policies, border security approaches and its constitutive nature based on contingent, relational and non-additive vulnerabilities and inequalities that have been inherited from the EU's colonial past. The study asks how the influx of refugees fleeing the Russian invasion of Ukraine exemplifies the gendered, racialised, national and religious dimension of the EU's approach to border security. It examines how the EU's approach showcases the paternalistic approach to refugees' vulnerability through essentialisation, which leads to their vulnerabilisation. It looks at the intersectional impact of the gendered, racialised, national and religious constitutive nature of non-European refugees, as well as the gendered, racialised, national and religious notion of ‘others'. Based on the comparison, the article contends that, theoretically, State or EU security and human security policies should not be mutually exclusive. However, as the empirical data illustrate, there are multiple competing ‘insecurities’ which are prioritised over others.