Democratic Constitutional Order Research Articles

The Democratic Self-Defence of Constitutional Courts

Abstract Courts around the world are under attack. They are being captured, packed, threatened, and their authority and powers are being limited by governments that seek to undermine the democratic constitutional order. Once courts are weakened or captured, it is easier for these governments to undermine other democratic institutions and even set courts themselves against democracy. Accordingly, using the rationale of ‘militant democracy’, this article proposes the theory of democratic self-defence of constitutional courts. According to this theory, constitutional courts (including apex courts with constitutional review powers) should declare the unconstitutionality of reforms to their institutional design when these are instrumental to a process of democratic decay. Not only that they should do so, but they must do so – as a duty – when the viability of the democratic system of government is at stake. The aim of this self-defence is not the self-interest preservation of institutional powers but the protection of democracy itself. In order to be able to protect democracy, courts must be able to protect themselves.

Constitutional and legal principles of the organization and functioning of the system of entities ensuring the national security and defense of Ukraine

The aggressive policy of the Russian Federation against Ukraine, resulting in the annexation of the Crimea peninsula, further aggression in eastern Ukraine in certain areas of the Donetsk and Luhansk regions, and widescale invasion into Ukraine after 24.02.2022, has left no questions about the relevance of the field of national security and defense in Ukraine. In turn, Ukraine, as a legal democratic state, can implement measures for national security and defense only in accordance with legal procedures, which, in turn, highlights the research on the legal support of the activities of subjects of national security and defense in Ukraine. The aim of this research is to determine an exhaustive list of subjects that may be considered part of Ukraine's national security and defense. The research is based on the Constitution of Ukraine, Laws of Ukraine (including Constitutional Laws understood as laws whose existence is already foreseen by the content of the Constitution of Ukraine), and subordinate normative legal acts. This research primarily utilizes comparative-analytical and functional research methods. An exhaustive list of subjects of national security and defense in Ukraine is not specified in any legislative act, and the only normatively regulated list, similar to the subject of the research, is established only in the Law of Ukraine "On National Security of Ukraine" as a "security and defense sector," the definition of which is given in the form of a list of subjects whose functional activities are aimed at protecting Ukraine's national interests from threats. The national security interests include state sovereignty, territorial integrity, democratic constitutional order, economic and information security, human life and health, honor and dignity, inviolability and safety, rights and freedoms, restoration of territorial integrity within the internationally recognized state border of Ukraine, social development, primarily the development of human capital, protection of the rights, freedoms, and legitimate interests of Ukrainian citizens; European and Euro-Atlantic integration. Thus, the significant number of the aforementioned national security interests does not allow considering the list of subjects in the security and defense sector as exhaustive, and consequently, there is a need for a more detailed study of this issue.

Toolkit for optimization of administrative and legal provision of the security sector of Ukraine

The article is devoted to the study of the toolkit, with the help of which it is possible to optimize the administrative and legal provision of the security sector of Ukraine. Attention is focused on the fact that administrative and legal support outlines the boundaries of the subject structure of regulatory activity in such a way that it can be carried out not by any state bodies, but only by those that perform powerful public management functions. Subjects of administrative and legal support of the security sector include: 1) those that manage the security sector; 2) those that are part of the security sector and implement separate measures aimed at the proper state of national security.
 It has been established that the toolkit of administrative and legal provision of the security sector is a set of methods, techniques and methods used by authorized entities to regulate social relations, the content of which is aimed at protecting state sovereignty, territorial integrity, the democratic constitutional order and other national interests of Ukraine from possible threats.
 The toolkit of administrative and legal provision of the security sector is classified according to the following criteria: 1) depending on the subject of application; 2) depending on the form of external fixation; 3) depending on the direction of action; 4) depending on the object to be secured; 5) depending on the time of application, etc.
 Attention was drawn to the need to optimize the tools of administrative and legal provision of the security sector. The importance of the implementation of digital technologies in the activities of specially authorized entities in the field of security is analyzed. It is noted that the peculiarity of the security sector determines the additional need for prompt response to emerging threats and the use of flexible mechanisms for their elimination. It is proposed to amend the legislation by establishing the possibility of making decisions by the National Security Council in the form of directives that do not require additional implementation through the adoption of a corresponding decree by the President of Ukraine, are of general obligation and are adopted during the period of the legal regime of martial law.

Ефективність заборони діяльності проросійських політичних партій: досвід та реалії

The legal regulation of the prohibition of political parties in Ukraine and foreign countries in the article is examined. The key issue in the issue of banning political parties is the mechanism of this ban and its effectiveness in protecting fundamental human rights, national security of Ukraine and protection of the democratic constitutional order. Since information security is an important front line, Ukraine is defending its independence and democracy in this area. In this regard, it is of particular relevance to improve national legislation and state policy in the field of information space protection and restriction of the activities of pro-Russian political parties. It is emphasized that the right to freedom of association of citizens into political parties is a reflection of the pluralistic nature of a democratic political regime. The activities of political parties allow for the real influence of various social groups on the political life of the State. At the same time, the need to ensure this pluralism and other constitutional values requires the legislator to introduce special mechanisms to protect the democratic constitutional order, in particular, by establishing special restrictions on the activities of public associations. The key issue in the prohibition of political parties is the mechanism of this prohibition and its effectiveness in protecting fundamental human rights, national security of Ukraine and protection of the democratic constitutional order. The main models of banning political parties are analyzed. The practice of banning political parties in Ukraine since 2014 in the context of Russia's hybrid aggression against Ukraine is considered. A mechanism for improving the legal regulation of the ban on the activities of pro-Russian political parties in Ukraine is proposed based on the experience of countries with stable democracies and taking into account the challenges facing Ukraine's national security today.

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The article examines the issues of implementation of the Law of Ukraine "On Amendments to Certain Legislative Acts of Ukraine on Criminalization of Collaboration Activities" No. 2108-IX dated 03.03.2022 in the context of ensuring the State security of Ukraine. The author analyses the elements of the crime under Article 1111. The author provides the features which distinguish this crime from other criminal offences. The author suggests approaches to improving the legal acts in the field of state security and criminal law through the use of successful legal and commonly used terms. The author considers the criteria which could serve as a basis for the creation and improvement of legislation in general and criminal law in particular. It is emphasized that since 2014, the issue of bringing to justice before the State and the people of Ukraine therefore citizens of Ukraine who actively cooperate with the aggressor country and whose actions are not covered by the crime under Article 111 of the Criminal Code of Ukraine "High Treason" has become very relevant in Ukraine. It is noted that, according to this Law of Ukraine "On National Security of Ukraine", state security is defined as the protection of state sovereignty, territorial integrity and democratic constitutional order and other vital national interests from real and potential non-military threats. It is emphasized that the key terms of the definition of state security are "security" and "non-military threats". It is argued that these categories indicate the priority of the legal plane of state security protection through legislative regulation of social processes which are potentially and actually dangerous for state and national security.

Healing Liberal Democracies: The Role of Restorative Constitutionalism

AbstractThis brief essay contrasts two modes of constitutional change: abusive constitutional projects that seek to erode democracy and restorative constitutional projects that aim to repair eroded democratic constitutional orders. Constitutional democracies are eroded and restored via the same mechanisms: formal processes of constitutional amendment and replacement, legislative amendment, changes to executive policies and practices (or respect for conventions), and processes of judicial decision-making. Under the right conditions, abusive uses of these mechanisms for antidemocratic ends can be reversed by prodemocratic or restorative uses. The more difficult question is what kinds of political discourses are most likely to sustain successful processes of democratic rebuilding. In recent work, we have pointed to the role sometimes played by liberal democratic discourses as purported justifications for processes of abusive constitutional change: we label this the rise of “abusive constitutional borrowing.” Less well understood are the kind of discourses likely to sustain successful democratic healing or rebuilding. Often, the most popular discourse is a restorative one, which focuses on repairing damage caused by authoritarians and returning to a constitutional status quo ante. In this essay, we discuss the advantages and disadvantages of restorative constitutionalism as a response to prior episodes of democratic erosion.

Confucian Democracy in East Asia: A Discussion of Sungmoon Kim’s Democracy After Virtue: Toward Pragmatic Confucian Democracy

Confucian Democracy in East Asia: A Discussion of Sungmoon Kim’s <i>Democracy After Virtue: Toward Pragmatic Confucian Democracy</i>

From the Person to the Institution: Religious Freedom and Institutions in Democratic States

Based on the assumption that the fundamental rights of people in most democratic states are governed by the personalist principle and that, of course, the religious freedom of the individual is an indisputable fundamental right, this paper reflects on the implications of these premises in the institutional field. The article consists of four chapters: the first two chapters are of a more general nature, and the next two chapters apply the general principles to the Spanish context. The first part discusses the personalist foundation that forms the basis of laws in democratic states. The author highlights the fact that the ethical value of the dignity of every human person provides an axiological foundation for the rules and fundamental laws enacted in the democratic constitutional order. The second part of the paper is devoted to the principle of subsidiarity, which – in a way – constitutes a bridge that makes it possible to transpose the dignity of the person to the functioning of the institutions that operate within a democratic state. Subsidiarity is an essential complement to personalism as it prioritizes the activity of the person that should be supported by the institutions of the State. The application of these general principles to the situation in Spain exemplifies them in the context of the understanding and enforcement of the right to religious freedom. By presenting specific legal solutions implemented in Spain in recent years, the author illustrates the challenges that the right to religious freedom is facing in modern democracies. The paper offers a compelling study of the joint effect of the principle of secularism in a democratic State and the principle of cooperation between the State and religious institutions (a concept referred to in the Spanish model as “positive secularism”) as they act upon social life to guarantee the implementation of a fundamental right of human persons: the right to religious freedom.

Ivermectin and the rule of law

The ivermectin saga has taken on a new dimension: respect for the rule of law by the state. The rule of law is important, as it is a cornerstone of our democratic Constitutional order. The South African Health Products Regulatory Authority (SAHPRA) has a statutory mandate to regulate medicines and related substances, but it also has a constitutional duty to obey the law. This duty includes obeying court orders. However, SAHPRA appears to have contravened the consent order handed down by the Pretoria High Court on 2 February 2021, and therefore undermined the rule of law. This situation is untenable in our democratic Constitutional order.

Regime legal de classificação de informações no Brasil: problemas teóricos, empíricos e (in)compatibilidade com a ordem jurídica democrática

Resumo Leis de acesso à informação têm se tornado instrumentos de governança voltados a promover a transparência de atos estatais e, assim, permitir maior participação política, controle da corrupção e lisura dos atos públicos. No entanto, essas leis permitem a publicização de documentos politicamente sensíveis? O objetivo deste artigo é analisar criticamente o regime legal das “informações classificadas”, a prática institucional decorrente desse regime e a sua compatibilidade com uma Constituição democrática. Por meio de um estudo de métodos mistos, que parte de uma análise de um conjunto exploratório de recursos de acesso à informação para depois selecionar casos para análise qualitativa, concluímos que a sistemática jurídica do ato de classificação torna-o um ato não submetido a mecanismos de accountability social ou horizontal. O artigo possui duas contribuições às atuais discussões sobre transparência e controle social. Do ponto de vista teórico, argumentamos que o ato de classificação impõe obstáculos institucionais à regra de que, nas democracias, deve-se tomar decisões que permitam a incorporação informada das pessoas. Do ponto de vista empírico, o estudo demonstra que a não submissão a mecanismos de controle pode permitir a sobre-classificação de informações por órgãos públicos. Nas conclusões, apontamos possíveis pesquisas futuras sobre o tema.

브렉시트가 민주적 헌법 국가에 남긴 과제

The research examines the legal and political issues in the constitution raised during the Brexit process until the 2019 UK general elections. This study aims to show that Brexit issues apply to all countries with a democratic constitutional order. Brexit began due to fundamental problems in the European Union. European integration echoes marketism and nationalism. While the identity of the sovereign state rapidly disintegrated, the new EU’s identity failed to quickly replace the existing national identities of member states. In the process, representative democracy’s flaws and British populism at the level of the European member states exacerbated financial or refugee problems. Discontent and antipathy toward the EU were redirected to the parliament and the institutional politicians who had handed over sovereign authority to the transnational organisations. However, institutional politics failed to make a binding decision about political controversial issues. Rather, the political system relied on the negative communications which devide the people and lead to social disintegration. Foreign policy lost its original function of peacefully resolving conflicts between countries and became a means of internal political mobilisation. Disgust against institutional politics resulted in the rapid emergence of anti-parliamentarianism in people and political parties. Thus, Brexit does not just concern Britain; it is a universal issue. If we remove particular elements such as the European integration and the United Kingdom, it becomes our reality and future here in Korea.

ІДЕНТИФІКАЦІЯ АНТИТЕРОРИСТИЧНОЇ ПОЛІТИКИ ЯК ВИЗНАЧАЛЬНОГО ЧИННИКА НАЦІОНАЛЬНОЇ БЕЗПЕКИ

The general articulation of the issue and its connection with the important research and practice tasks. Given the prolonged hybrid confrontation in the east of Ukraine and the annexation of Crimea, our state needs to form a nationwide course of action and implement a set of measures to adequately counter terrorism, as one of the major threats to national security that must be realized through the formulation of the state antiterrorist policy. The analysis of the recent publications regarding the issues this article deals with; identification of parts of the general problem that have not been previously addressed. Modern researchers are actively analyzing the problems of counteracting various forms of terrorism and suggesting ways to solve them. At the same time, comprehensive and coordinated studies of procedures, instruments of counter-terrorism are still lacking, and the definition of the state antiterrorist policy as a component of Ukraine’s national security has not been formulated. The purpose (the objective) of this article is to define the notion of the state antiterrorist policy as an integral component of national security. The key results and the background. It is proved that the state antiterrorist policy is an integral part of national security policy, whose main function is focused on protecting the main interests of the nation and outlining the course of management’s actions to identify the main strategies related to present and future terrorist threats, as well as opportunities for their elimination and minimization. consequences of terrorist manifestations. The goals of the state antiterrorist policy have been identified and its implementation in Ukraine envisages the implementation of a range of measures at several levels. It is determined that the state antiterrorist policy is a course of action chosen by the authorities of Ukraine on the protection of state sovereignty, territorial integrity, democratic constitutional order and other national interests of Ukraine, directly aimed at preventing, detecting, stopping and minimizing the consequences of terrorist activity. Conclusions and the prospects of the further research. Therefore, the state antiterrorist policy is an integral part of national security, and its effectiveness depends on a clear definition of the limits of the functioning of each individual element: political, legal, informational, organizational, motivational and financial-economic, the analysis of which will be devoted to further scientific research of the author.

Constitutional Defence Against the “Enemies” of Democracy: Theoretical Considerations and the Russian Experience

Democratic constitutional order is occasionally threatened by anti-democratic forces, andthus, requires special protection. The concept of militant democracy has been developedto provide adequate defensive mechanisms. In this article, we discuss positive aspectsof their application, but also highlight the risks of abusing these defensive mechanisms.Essentially, the problems are associated with narrowing the political space and favouringthe dominant political force. Fragile democracies, including Russia, are particularlyvulnerable to such exposure. A targeted study of Russian legislation and the caselawof the Constitutional Court of the Russian Federation has allowed us to identify theprerequisites for effective implementation of the doctrine of self-defence in line with theprinciples of constitutionalism.

Conditions of providing national security of the state

The article deals with the issue of national security of the state through the allocation and consideration of the basic conditions for its provision. In particular, the authors identified the main components of national security of the country (state security, public security, technogenic security, environmental security, etc.) and identified the priority tasks of the state policy to ensure them. In particular, the main components of the conditions for ensuring public safety (state of orderly public legal relations, in which each person, state body, local self-government bodies and their officials adhere to legal and moral and ethical norms, social norms and rules, fulfill all recommendations, are identified in order to achieve public safety and well-being). The authors have determined the basic list of factors of state policy formation of national security. The components of sustainable development of the state have been identified and characterized. The content of the basic principles that determine the order of state policy making in the fields of national security and defense is explained, namely: accountability is defined as a system of measures by which equilibrium (balance) of authority of the authority and its responsibility is achieved; legality is defined as a kind of foundation of a civilized society, ensuring the equality of all persons before the law; transparency of government is defined as the publication or dissemination of information about a public authority, the principle of activity of public authorities, in which all decisions are open and public. The authors place special emphasis on ensuring the fundamental national interests of Ukraine, which proclaimed: state sovereignty and territorial integrity, democratic constitutional order, preventing interference in the internal affairs of Ukraine; sustainable development of the national economy, transparency of power.

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The article emphasizes that in the conditions of modern globalization, in order to ensure sustainable development of the national state, the exclusive ability to ensure national security must be preserved. It was stated that the slightest loss of even a part of the sovereignty is contrary to the national interest and poses a threat to the national security of the state.A number of works devoted to the conceptual, organizational, legal and institutional principles of development and implementation of the state national security policy, its origins and problems of implementation in the modern practice of state management are analyzed. It is stated that the political assessment of the effectiveness of measures to ensure national security depends on the conciseness, clarity and balance (logical conditionality) of the basic security law.It is concluded that the unity of national interests, national goals and national ideas is the basis for the formation and construction of national security policy of Ukraine, the system of national and state security, as well as the subject of further research in security administration technologies. It was emphasized that Ukraine, as an ethnic entity to ensure national security, with common national interests, national goals and national idea should have formed a stable political system, which, in turn, should ensure the formation of governing bodies of society and the state and decision-making bodies that are responsible for the issues of national and state security.It is emphasized that only within the ratio of the categories “ethnic entity of national security” and “state security” “protection of state sovereignty, territorial integrity and democratic constitutional order and other vital national interests from real and potential threats of non-military nature.” Finds its manifestation.

Die Freiheitlich Demokratische Grundordnung im System der Grundrechte – Grundlage und Grenze verfassungsrechtlich gewährleisteter Freiheit

The free democratic constitutional order is a legal institution of the German Constitution which captures a central position in the rulings of the Federal Constitutional Court. Pointing towards this decisive significance for the German Constitution, it is necessary to determine the position of the free democratic constitutional order within the constitution itself and its relationship to fundamental rights. In doing so, it must be shown that the free democratic constitutional order is the value system of the German Constitution which, in turn, has a decisive impact on the interpretation of fundamental rights. The resulting consequences necessitate critical reflection on the theory of value systems and culminate in a more restrictive understanding of the free democratic constitutional order.

Tocqueville, religión y orden constitucional en América

This article addresses Tocqueville’s position on the role of religion in the democratic society of the 19th century through the lens of two connected debates: (i) historiographical discussions concerning the functionality of religion in Tocqueville’s thought, and (ii) discussions on Tocqueville’s position on the need of a civil religion. More specifically, this article brings up a paradox underlying Tocqueville’s work: while defending a strict separation between the State and the Church –religion and politics–, on the one hand, he affirms that religion is the first political institution in democratic societies, on the other. Through the analysis of Democracy in America in its final and draft versions, plus the analysis of Tocqueville’s private correspondence, a wider issue is tackled: i. e., the role that religion as the basis of customs plays in Tocqueville in the formation of laws and the preservation of freedom in a democratic constitutional order.

The Principles of Constitutional Reform

AbstractIn legal orders around the world, commitments to democracy, liberalism and constitutionalism are increasingly eroding. Although political and constitutional theorists often lament this trend, they invariably adopt frameworks that are indifferent to these commitments. My aims in this article are both critical and constructive. As a critical matter, I will expose the indifference of the leading political and constitutional theories to the emergence, maintenance and refinement of liberal democratic constitutional orders. As a constructive matter, I will draw on Immanuel Kant’s constitutional theory to explain why realizing such a form of governance is a public duty and why receding from it is a public wrong.

The Principles of Constitutional Reform

In legal orders around the world, commitments to democracy, liberalism, and constitutionalism are increasingly eroding. Although political and constitutional theorists often lament this trend, they invariably adopt frameworks that are indifferent to these commitments. My aims in this paper are both critical and constructive. As a critical matter, I will expose the indifference of the leading political and constitutional theories to the emergence, maintenance, and refinement of liberal democratic constitutional orders. As a constructive matter, I will draw on Immanuel Kant’s constitutional theory to explain why realizing such a form of governance is a public duty and why receding from it is a public wrong.

Конституционное закрепление основных прав в Федеративной Республике Германии

Introduction. The article is devoted the constitutional foundations of the legal status of the individual in the Federal Republic of Germany, some fundamental rights, their content and protection. Particular attention is paid to the institute of restrictions of fundamental rights and freedoms in Germany. Fundamental rights are considered in the interpretation of the Federal Constitutional Court of Germany, the legal doctrine that describes fundamental rights and freedoms. The works of the leading German constitutionalists, as well as the works of domestic researchers are used. The author emphasizes the importance of fundamental rights in the formation and evolution of the democratic constitutional order in Germany. The modern tendencies of development of the institution of rights and freedoms in Germany are analyzed. Materials and methods. The material sources of the study were the provisions of the Basic Law of the Federal Republic of Germany of 1949, the current German legislation, the decisions of the Federal Constitutional Court (Bundesverfassungsgericht) of Germany, international human rights documents ratified by Germany. The works of German and Russian constitutionalists were also used during the research. The methodological basis of the article consists of general and special methods of legal research. Research results. The article analyzes in a detailed form the specifics of the constitutional regulation of fundamental human and civil rights and freedoms in Germany, their current state and prospects for further evolution. Problems related to the protection of rights and freedoms and mechanisms of their guarantees are thoroughly considered. Special attention is paid to the analysis of the resonant decisions of the supreme judicial body of the constitutional control of Germany on the legal status of the individuals in this country. Discussion and conclusions. The author comes to the conclusion that the Basic Law of the Federal Republic of Germany contains a fairly complete catalog of fundamental rights and freedoms, which are an integral part of the democratic constitutional order of Germany. The constitutional legislator provides for the possibility of restricting fundamental rights and freedoms only by law and on the basis of the law. The practice of the Federal Constitutional Court plays a special role in the interpretation of these restrictions. The protection of rights and freedoms is considered by the German constitutional legislator as the most important task of all constitutional bodies of the country. The country’s extensive system of guarantees of fundamental rights makes them very effective and efficient instruments.