Constitutional Rights Research Articles

State Administrative Constitutionalism and Environmental Rights

Since New York’s Environmental Rights Amendment took effect in 2022, judges and litigants alike have understandably struggled to make sense of it. The “Green Amendment” presents unique interpretive challenges as a state constitutional positive right that is closely related to a preexisting regulatory scheme. Thus far, Green Amendment claims have been accompanied by statutory causes of action. Consequently, courts’ early interpretations of the right have, at best, entangled—and at worst, equated—the right with adherence to existing environmental laws, especially the State Environmental Quality Review Act (SEQRA). Reviewing environmental statutory and constitutional rights claims concurrently raises questions related to state constitutional interpretation, administrative agencies’ role in constitutional interpretation, and deference. This Note seeks to propose a framework for reviewing Green Amendment claims within the existing statutory context using lessons from scholarship on state constitutionalism and administrative constitutionalism. This Note ultimately concludes that democratic proportionality review is the most appropriate way to interpret the Green Amendment as a positive state constitutional right and argues that courts can conduct this proportionality analysis by merely reviewing agencies’ mitigation findings under SEQRA using a de novo standard of review. Such an approach acknowledges that administrators engage in constitutional interpretation when implementing their statutes, but it applies the appropriate standard of review to those interpretations, since courts are the final arbiters of constitutional meaning.

Political Parties Hair the Democracy of 52 Former Constitutions for the 2024 Election of the DPR RI

Objectives: This research investigates the restrictions on the political rights of former convicts to become legislative candidates for the 2024 General Election. It aims to identify the root causes behind the legal and democratic challenges related to this issue. Theoretical Framework: The study draws on democratic and constitutional law theories, emphasizing the balance between safeguarding individual rights and preserving the integrity of democratic institutions. It also considers legislative theories to evaluate the implications of allowing former convicts to run for public office. Method: Using a qualitative research approach, this study analyzes secondary data, including laws, regulations, and relevant theories. It focuses on examining the legal and political context surrounding the political rights of former convicts, particularly in the 2024 elections. Results and Discussion: The findings reveal that former convicts are allowed to participate in the 2024 elections under specific conditions, raising concerns about democratic integrity and the monitoring of the nomination process. The inclusion of 52 former convicts as candidates highlights tensions between their constitutional rights and public expectations of political transparency. The study underscores the need for legal reform and clearer regulatory frameworks. Research Implications: This research suggests the necessity of stronger oversight and regulation to ensure transparency in the nomination of former convicts, with clearer enforcement mechanisms to uphold democratic standards. Originality/Value: The study contributes to debates on electoral democracy, providing insight into the balance between individual political rights and the principles of democracy in Indonesia's electoral system.

Sanitation Challenges in the Complexo da Maré

Objective: The objective of this study is to investigate the challenges faced by vulnerable urban communities, such as Complexo da Maré, addressing the impacts on public health, the environment, and constitutional rights, with the aim of exposing the vulnerability of these communities and highlighting the difficulties related to the universalization of basic sanitation, aligned with constitutional rights and the Sustainable Development Goals. Theoretical Framework: This section presents the key concepts and theories that underpin the research. Key aspects include the lack of basic sanitation as a reflection of the country’s structural inequalities, the 1988 Constitution, which considers sanitation a social right, and the regulatory framework (Laws No. 11.445/2007 and No. 14.026/2020), which reinforces the importance of universal access. Method: The methodology adopted for this research includes a descriptive, qualitative, and documentary approach, based on a literature review. Articles, theses, and reports from the sanitation sector, with a 20-year time frame, were consulted. Data collection was conducted through the analysis of these documents to understand the context and challenges related to sanitation in vulnerable urban communities. Results and Discussion: The results revealed the precarious sanitation conditions in Complexo da Maré, with open sewage and significant impacts on public health. Environmental racism and social exclusion exacerbate the situation, while community initiatives, though promising, do not address the existing gaps. In the discussion section, these results are contextualized in light of the theoretical framework, highlighting the identified implications and relationships. Possible discrepancies and limitations of the study are also considered. Implications of the Research: The practical and theoretical implications of this research are discussed, highlighting the need for effective public policies that use sanitation as a tool for social inclusion and environmental justice. Collaboration between government and communities is essential for concrete progress. These implications may impact public policy, public health, the environment, and sustainable urban development. Originality/Value: This study contributes to the literature by providing a detailed analysis of sanitation in Complexo da Maré, connecting it to constitutional rights and the Sustainable Development Goals (SDGs). The relevance and value of this research are evident in its exploration of practical community solutions, contributing to the debate on socio-environmental justice and proposing the universalization of basic sanitation as a way to reduce inequalities and ensure sustainability in marginalized communities.

Aspek Hukum Pertanggungjawaban Pelaku dan Upaya Pemulihan Hak Korban Atas Kejahatan Doxing

The Indonesian Government has legalized Law Number 11 of 2008 concerning Electronic Information and Transactions (and its amendments) (“ITE Law'') and Law Number 27 of 2022 concerning Personal Data Protection (“PDP Law”). These laws were established to protect privacy rights from cybercrimes such as doxing. Doxing is defined as the unlawful access and dissemination of information with bad faith towards the victims. This cybercrime can create significant losses for the victim due to their personal information being revealed. Despite doxing being regulated under the ITE Law and PDP Law, the enforcement of these rules and reparations for the victims are challenging. To uphold the constitutional rights of Indonesian citizens, this article addresses the regulation and implications of liability in doxing, as well as the restoration of rights for doxing victims. The research method used in this article is a normative juridical approach. Therefore, doxing is regulated as a prohibition on the misuse of personal data under the PDP Law. Furthermore, victims are entitled to receive reparations for such acts.

Equity in Education Management: Bridging the Gap and Policy Disparities for Non-ASN Teachers

This study explores the legal and human rights challenges faced by non-ASN teachers in Indonesia, emphasizing the fundamental right to education and the professional rights of teachers as a cornerstone of equitable development. The research highlights the urgency of addressing systemic inequities in the compensation, benefits, and job security of non-ASN teachers compared to their ASN counterparts. Employing a normative legal approach supported by empirical data, the study examines legislative frameworks and their practical applications in East Luwu Regency, South Sulawesi, Indonesia. The findings reveal significant gaps in policy and practice, which undermine not only the professional dignity of non-ASN teachers but also their basic human rights, including the right to fair compensation and protection from discrimination. These disparities contravene national and international human rights standards and hinder the fulfillment of Indonesia's constitutional mandate to promote education for all. The study concludes with actionable recommendations for legal and policy reforms to ensure fair treatment, professional recognition, and human rights protection for all teachers, thereby strengthening Indonesia’s education system and upholding human dignity. The government’s responsibility to uphold teachers' rights is essential for fulfilling its broader commitment to human rights and education as a constitutional right.

Meeting of the Minds: Reshaping Citizens’ Rights and Duties

Abstract How might constitution-makers write “transformative constitutions”? Scholars and policymakers have looked to constitutional design as a mechanism for societal change, for example, promoting democracy, equality, and social rights. In these efforts, accountability has most often been limited to government actors. Yet, constitution-makers are increasingly introducing the “horizontal” application of rights, a potent tool for transformation whereby private actors also gain constitutional rights obligations. We argue that a key predictive element in introducing this mechanism is a meeting of the minds in constitution-making processes, where interests and mutual commitments from a broad cross-section of society are expressed at the negotiating table. We test our theory, employing cross-national data concerning the adoption of horizontal application over time, and examples from specific countries’ experiences. Our findings support our theory, suggesting that powerful articulation of interests by expert professionals in inclusive processes is a significant factor in reshaping citizen duties and, thus, transforming society.

Definitive basis for the constitutional protection of passive electoral rights in the Russian Federation

Relevance. The study of issues of protection of fundamental rights and freedoms of man and citizen since the birth of Russian constitutionalism and to this day is one of the key areas in legal science. The essence of constitutional protection of passive electoral rights in Russia belongs to the little-studied aspects of domestic constitutional law. In no small measure, a certain impetus for the present study was the tendentious scale of the loss of the status of candidates during the election campaign of 2021 for the election of deputies to the State Duma of the Federal Assembly of the Russian Federation.The purpose of the study is to update theoretical and practical approaches to the protection of passive electoral rights of Russian citizens, to conceptually clarify the definitive series that collectively affect the effectiveness of constitutional and legal protection of the declared subjective rights.Objectives: to analyze the conceptual foundations and structural components of constitutional protection in general and passive electoral rights in particular, taking into account the provisions of the general theory of law and branch science, legislation, interpretation of constitutional justice bodies.Methodology. Study was based on the dialectical method of cognition, as well as such general scientific and special research methods as: analysis and synthesis, induction and deduction, statistical, formal-logical and comparative-legal methods.The results of the study allowed to form the conceptual basis of the constitutional protection of passive electoral rights in Russia in the paradigm of constitutional and branch science, namely: to present the author's conclusions and generalisations about the interpretation of passive electoral rights of Russian citizens; their constitutional protection; functional orientation of its mechanism.Conclusion. The constitutional protection of passive electoral rights of Russian citizens is a law-supporting mechanism determined by constitutional provisions to prevent violations and eliminate obstacles in the implementation of the constitutional right of citizens to be elected to public authorities.

WOMEN'S ACCESS TO PROPERTY IN BANGLADESH

This paper critically examines the legal, social, and institutional barriers affecting women's access to property in Bangladesh, focusing on the challenges faced by Muslim and Hindu women under personal and statutory laws. The study begins by analyzing the legal framework governing women’s property rights, exploring the interplay between constitutional provisions and personal laws such as the Muslim Personal Law (Shariat) Application Act, 1937, and Hindu inheritance laws. Using India’s Hindu Succession Act, 1956 as a comparative framework, the paper highlights the disparities between Bangladesh and neighboring countries in terms of legal reforms aimed at promoting gender equality in property ownership. The research also discusses key case laws, including Fatema Khatun v. Md. Aminul Haque (1983) and Bipasha Rani Das v. Bharat Chandra Das (1997), to illustrate how the courts have addressed women’s inheritance claims and the limitations of the legal system. The paper concludes with several policy recommendations, including the need for legal reforms to harmonize personal laws with constitutional rights, the adoption of gender-sensitive land policies, and increased awareness and accessibility for women in rural areas. These reforms are essential for ensuring that women in Bangladesh can fully exercise their property rights and for promoting greater gender equality in property ownership. The study also identifies areas for future research, including the impact of international human rights standards on domestic legal reforms and the lived experiences of women in marginalized communities.

Constitutional Labour Rights in the Gig Economy: Digital Platform Workers and Section 2(d) of the Charter

Constitutional Labour Rights in the Gig Economy: Digital Platform Workers and Section 2(d) of the Charter

The impact of Washington Consensus rules on the guarantee of constitutional social rights in a comparative perspective in Latin America

The impact of Washington Consensus rules on the guarantee of constitutional social rights in a comparative perspective in Latin America

Constitutional Labour Rights in the Gig Economy: Digital Platform Workers and Section 2(d) of the Charter

Constitutional Labour Rights in the Gig Economy: Digital Platform Workers and Section 2(d) of the Charter

Urgensi Kewenangan Constitutional Complaint dalam Penguatan Hak-Hak Konstitusional

The idea of ​​the urgency of constitutional complaint authority to the Constitutional Court is part of an effort to protect the rights of citizens protected by the 1945 Constitution. This arose because the constitutional rights of citizens are often violated by various parties, including non-compliance of state administrators and abuse of authority in the executive, legislative and judicial realms. This study discusses the urgency of constitutional complaint authority for strengthening constitutional rights in the Constitutional Court of the Republic of Indonesia. The method used in this study is descriptive analytical research using a normative legal approach. The results of the study show that in order to strengthen the meaning of the constitutional life of Indonesian citizens and as a last resort for violations of citizens' constitutional rights, constitutional complaint authority needs to be given to the Constitutional Court as a form of constitutional supremacy in regulating people's sovereignty, because constitutional complaints are part of the problem of constitutional review. This is clearly stated in the spirit of the Preamble to the 1945 Constitution and is in line with the essence of the presence of the Constitutional Court of the Republic of Indonesia

Legal Dynamics of Age Limits for Presidential and Vice Presidential Candidates Based on Article 169 Letter Q of Law Number 7 of 2017 Concerning General Elections

Justice, non-discrimination, equality before the law are important values of the constitution. This study seeks to examine the constitutional rights of the younger generation that were cut by the framers of the law through the age requirement in the electoral law for presidential and vice presidential candidates. The research method used is a normative legal research method with qualitative methods. The age requirement no longer needs to be regulated in the Election Law because it is not in line and is not expressly regulated by the 1945 Constitution. If it is still regulated, the age requirement used must be 18 years, in accordance with the adult size applicable in Indonesia, as a consequence providing opportunities for the younger generation to participate in politics and government, and realize a more inclusive democracy. Factors influencing the setting of age requirements for presidential and vice presidential candidates are the history of national leadership, maintaining the status quo, and senior-junior practices. Therefore, Article 169 letter Q of the Election Law must be revised/deleted.

Sequestration and Right to Effective Appeal Under the OFL Normative Act

In Albania, the Council of Ministers adopted the OFL law in 2020 to strengthen the rule of law by enabling the sequestration and confiscation of assets from individuals suspected of serious crimes, including organized crime and terrorism. Although intended to complement existing laws like the Anti-Mafia law, the OFL law is characterized by its temporary nature and urgent enactment. Despite its survival of a constitutionality challenge affirmed by the Constitutional Court in 2022, criticisms persist regarding its infringement on constitutional rights such as the right to an effective appeal and equality before the law. The law allows for asset sequestration without the presence of the affected party and provides a formal right to appeal that lacks substantive judicial review, thereby raising concerns about the violation of property rights as per the Constitution of Albania. This article explores the implications of the OFL law on fundamental rights and legal processes.

Holistic interpretation and the interdependence of constitutional structures and rights: an essay in honor of Cheryl Saunders

Holistic interpretation and the interdependence of constitutional structures and rights: an essay in honor of Cheryl Saunders

The Issue of Individualization in Justifying the Use of Imprisonment as a Measure of Restraint in Criminal Proceedings (in the Context of Georgia)

The European Court of Human͏ Rights has made it clear in many rulings that the rule under the European Convention on Human Rights is that jail, as a way to hold someone back, should only be used in rare situations when no less harsh choice can meet the goals of the criminal process. The law about criminal procedures in Georgia shows this idea and way. But, a look at court cases and official numbers reveals that jail is the most used way to hold someone back. This might point to an issue with how well judges explain using jail in criminal cases. The problem might be tied to gaps in the laws for criminal procedures or wrong understandings of the law by judges also to missing need for judges to clearly show why they decided on jail use. It is important to highlight that the Constitution dedicates a separate article to the issues of detention and imprisonment. This underscores that the right to personal freedom is a constitutional right. “The Constitution protects individual freedom, which is guaranteed not only by substantive legal norms but also by procedural norms elevated to a constitutional level, emphasizing its special place within the system of fundamental rights”.[1] In this context, Georgian courts do not infrequently use blanket justifications, which undoubtedly presents a problem.

Patterns And Challenges Of Mobility Of Venezuelan Migrants In The City Of Tulcán, Ecuador

This research addresses the violations of constitutional and international human rights norms, focusing on the serious affectations to the rights of migrants. In particular, it analyzes article 137, numeral 11, fourth section of the Organic Law of Human Mobility, with emphasis on its legal and constitutional impact. Through an exhaustive bibliographic review, the problem of Venezuelan citizens transiting through Tulcán and its borders was studied. Articles from indexed journals and provisions of the law, which regulates human mobility but in some cases penalizes migration, were examined

Limitations of Human Rights in the Conditions of War and Peace: The Constitutional Aspect

The article conducts a doctrinal analysis of the constitutional criteria for restrictions on human rights. The author asks whether the content and scope of these restrictions differ during the martial law period and during peacetime. It also questions whether the constitution allows the state to exceed its constitutional limits during an armed response to the aggressor. It is argued that the introduction of more severe limitations on human rights during martial law must be balanced with the constitutional requirement for the state to act in accordance with the constitution. Otherwise, disproportionate restrictions that nullify the core of constitutional rights could lead to state power exceeding the limits established by the constitution. The main criterion, or basis, for the doctrine of limiting state power by the constitution is the fundamental constitutional rights and freedoms. As the jurisprudence of constitutional courts shows, the core of constitutional rights that are not absolute (absolute rights are very few in modern constitutional systems—the right to dignity, the prohibition of torture, and the right to life) cannot be subject to any limitations, similar to absolute rights. A very important criterion, derived from the constitutions and practices of constitutional jurisdiction bodies of modern states, is that the state, when imposing limitations, cannot violate the essence of a constitutional right, i.e., its core, which is not subject to any legislative limitations for the purpose of constitutional protection of individual freedom and autonomy. It is asserted that the narrowing of the content and scope of existing constitutional human rights and freedoms constitutes their limitation, and limitations are permitted by the Constitution. It is concluded that the rights and freedoms listed in part two of Article 64 of the Constitution of Ukraine, and not subject to limitations, should be limited according to peacetime criteria, meaning they are not subject to extraordinary restrictions during wartime. As for other constitutional rights and freedoms not included in the list in Article 64 of the Constitution of Ukraine, stricter restrictions may be applied by the state if they pursue a legitimate goal and are justified by the need to achieve victory over the enemy.

Can Jurors Disregard Inadmissible Evidence? Using the Multiphase Optimization Strategy to Test Interventions Derived from Cognitive and Social Psychological Theories.

Inadmissible evidence generally biases jurors toward guilty verdicts; jurors who hear inadmissible evidence are more likely to convict than jurors not exposed to inadmissible evidence-even when admissible evidence is constant. When inadmissible evidence is introduced, the common legal remedy is judicial instructions to jurors to disregard it. Appeals courts repeatedly affirm instructions to disregard as a sufficient safeguard of defendants' constitutional rights, despite research finding that jurors do not disregard when instructed. The goals of this research were to (1) test the main and interactive effects of four theory-driven candidate strategies to help jurors disregard inadmissible evidence (i.e., inducing suspicion, giving a substantive reason for disregarding, committing to disregarding, advising future jurors) and identify an optimized intervention package, and (2) evaluate whether adding the optimized intervention package showed more favorable effects than judicial instructions only. Study 1 used a 24 full factorial randomized controlled trial to evaluate the four candidate intervention strategies. A synergistic interaction among the candidate components suggested an optimized intervention package comprising all four interventions. Study 2 used a parallel four-arm randomized controlled trial to compare conviction rates in the same hypothetical murder trial under four conditions: (1) no exposure to inadmissible evidence, (2) exposure to inadmissible evidence without objection, (3) exposure to inadmissible evidence + judicial instructions ("standard practice"), and (4) exposure + judicial instructions + optimized intervention package. Across both studies, mock jurors who received the optimized intervention package returned significantly lower conviction rates than comparison conditions. These findings show early promise that novel intervention strategies may assist jurors in disregarding inadmissible evidence. Interpretation, limitations, and calls to action are discussed.

A secularização nos discursos de Joaquim Nabuco

The 1824 Constitution combines elements of permanence and rupture with the Old Regime, by introducing the right to religious freedom and maintaining the confessional model characterized by placet and patronage. Throughout the 19th century, the gradual and ambiguous advance of the secularization process, understood as the reduction of religion to the private field, led to a political crisis accentuated by the Religious Question (1872). This text aims to relate Joaquim Nabuco's perceptions about secularization with the decline of the confessional model and, to this end, considers the author's ideas about the relationship between the Church and the State in the period between 1873 and 1880. Nabuco's view on the subject is in line with the perspective of the liberal radicals of the 1870s who disputed with royalists, ultramontanes, and moderate radicals about the role that religion would play in Brazilian public life. These different positions of the political spectrum are projected into discordant interpretations of the maintenance of the confessional regime and its relationship with constitutional rights and freedoms. The research found the statesman's perception of the need for autonomy in Brazilian public life in relation to religion, which implied reducing the political reach of the Church, breaking with the model adopted by the Constitution of 1824. It is concluded that the thinking of Nabuco on secularization can be framed within what the statesman called Politics with a capital p, as he realizes that the separation of Church and State was inevitable for Brazil to progress.