Constitutional Development Research Articles

Transformation of the Institution of Constitutional Control in the Republic of Belarus

The article examines the stages of the evolution of constitutional control in the Republic of Belarus, through the prism of the development of abstract and concrete control. Characterizing the form of abstract control, attention is drawn to a certain adjustment of abstract subsequent control, introduced with the adoption of the Constitution of the Republic of Belarus in 1994, at different stages of constitutional development (1996, 2014, 2022) in relation to subjects of circulation, objects of control. The form of mandatory preliminary control over the constitutionality of laws adopted by Parliament before their signing by the President, introduced in 2008, is analyzed. As a result of the constitutional changes of 2022, the Belarusian model of preliminary constitutional control has undergone a certain transformation associated with its constitutional legitimation, the expansion of objects of preliminary control, as well as the transition from mandatory to optional control over the constitutionality of laws adopted by Parliament before they are signed by the President. Particular attention is paid to the study of the development of specific constitutional control, taking into account a certain adjustment of the constitutional formula in 2022 with the aim of consistent development of the Belarusian model of constitutional justice within the framework of the European model. Attention is focused on the most important constitutional innovation of 2022 – the introduction of a constitutional complaint, which significantly expands citizens’ access to constitutional justice. It is concluded that each stage of the development of constitutional control in Belarus serves as an example of adaptation to the changing conditions of the functioning of constitutional justice. It has been established that the adjustment in 2022 of the Belarusian model of subsequent concrete constitutional control indicates a transformation of the Belarusian model of constitutional control, consisting of the abandonment of elements of a mixed model, and the current stage of the evolution of constitutional control in the Republic of Belarus demonstrates the transition from an abstract form of constitutional control to concrete constitutional control , which means an increasing role of the Constitutional Court not only as a guarantor of the supremacy of the Constitution, but also as a defender of individual rights and freedoms.

Organization of parliamentary institutes in Azerbaijan Democratic Republic

The author mentions that a large part of our researchers deals with the problem of parliamentary activity and the main directions of activity of the Azerbaijan Democratic Republic on the issues of the legislative parliament almost do not analyze. So, there is a need to examine the study of this problem in terms of the scientific point of view. It is necessary to take into account the experience and traditions of the Azerbaijan Democratic Republic in the constitutional and legal field. Based on the experience of our country, modern constitution should be one of the methodological principles of legal research. The achievements gained at the level of the theory and the experience of constitutional development in Azerbaijan at the beginning of the twentieth century can be used to improve the modern constitutional system and to build a state of law. The events taking place in the parliament, the parliamentary inquiries, and the ministerial responsibility of the ministers are crucial.The current socio-economic and political situation in the Republic of Azerbaijan once again proves that our country is at the highest stage of development, and this development is characterized by intensive progress. With its achievements as a multicultural and tolerant country, the Republic of Azerbaijan can be an example for some of the world's most developed countries. Establishing a legal state in accordance with the regulations of the era of globalization, Azerbaijan is one of the leading countries, and even the first leading country practicing modern integration processes.

ELABORATION, ADOPTION OF THE CONSTITUTION OF THE REPUBLIC OF LATVIA AND DEVELOPMENT OF CONSTITUTIONALISM UNTIL 1940

The Constitution is the core of the existence of a democratic and judicial state. The aim of the research is to examine the constitutional development of Latvia from the proclamation of the Republic of Latvia in 1918 to the occupation of Latvia in 1940. In order to achieve it, the author analyzed the origins of the constitutional rights of the Republic of Latvia, described the history of composing the Constitution of the Republic of Latvia, including the essence and functioning of the Constitution until 1940. The main conclusion of the research is that during this historical period, the Constitution of the State of Latvia functioned continuously, independently of the fact that an authoritarian regime was established in 1934.

Constitutional Development in Pakistan Some Significant Judgments of Supreme Court of Pakistan

Constitutional Development in Pakistan Some Significant Judgments of Supreme Court of Pakistan

The “Constitution” of Idel-Ural as the foundation of multinational statehood

The question of the national autonomy of the Turko-Tatar peoples of Russia has been in the air for quite a long time. At the First All-Russian Muslim Congress, held in Moscow in May 1917, while discussing the question of the state structure of Russia, delegates split into two camps – Unitarians and federalists. The latter soon won the victory, immediately starting to draw up a project of national-territorial autonomy. One of these projects was the “Idel-Ural State”. At present, a considerable array of scientific research has been accumulated on the process of preparing and proclaiming the project of the State of Idel-Ural as a multinational state. However, among these studies there are no works that would cover the legal component of this project.
 As a result of a long meeting of the National Assembly of Turko-Tatar Muslims in January 1918, a number of resolutions came into being, which generally established the framework for the subsequent constitutionalization of law and order in the State of Idel-Ural. The combination of these resolutions can be given the conditional name “Constitution” of Idel-Ural. It fixed the path of development of constitutionalism, and guaranteed the fundamental principles of building statehood: national equality, federalism, democracy, political and ideological pluralism. The “Constitution” of Idel-Ural played a particularly important role in the practice of state building of the Tatar people. This work aims to provide a general analysis of the provisions of this legal document, and thereby reveal the hidden areas of the state-legal history of the Tatars.
 For citation: Zaynutdinov D.R. The “Constitution” of Idel-Ural as the foundation of multinational statehood. From History and Culture of Peoples of the Middle Volga Region. 2023, vol.13, no.3, pp.118–135. https://doi.org/10.22378/2410-0765.2023-13-3.118-135 (In Russian)

A constitutional complaint is a mechanism for protecting the constitutional rights of citizens

It has been established that a constitutional complaint helps citizens protect their constitutional rights and freedoms from violations by authorities. In a world where civil rights and liberties are threatened, this mechanism remains critical. The specified legal instrument is actually a means of limiting power and provides an opportunity to control the actions of the authorities, checking their compliance with constitutional norms. Therefore, a constitutional complaint is an important component of democracy, as it supports the principle of the rule of law and contributes to the development of a judicial system that guarantees equality before the law and a fair trial.
 It is emphasized that the recommendations of the Venice Commission note a significant trend in the development of European constitutionalism, which refers to the expansion of the scope of constitutional control over individual administrative decisions and judicial acts based on individual complaints. This trend is explained by the fact that human rights violations often occur due to unconstitutional actions or decisions that were taken in accordance with constitutional regulations.
 It is noted that constitutional courts are key actors in the field of consideration of constitutional complaints in many countries and usually have an independent status from other branches of government. This means that they make decisions without any influence, which makes their decisions more objective and fair. Decisions of constitutional courts have a decisive influence on the protection of constitutional rights and freedoms of citizens, and constitutional courts are a symbol of the rule of law in society. Their role is to remind all citizens and authorities that the Constitution is the supreme law that must be respected.
 In summary, a constitutional complaint is an important tool for ensuring the rule of law and protecting the constitutional rights of citizens. This mechanism helps to avoid abuse of power, non­compliance with constitutional norms and provides citizens with an opportunity to defend their rights in court. As a result, it contributes to the strengthening of legal democracy and the protection of human rights and freedoms.

Climate Constitutionalism as a Foundation for Climate Litigation in Latin America

Abstract Climate emergency is one of the facets shaping the current stage of ecological imbalance and requires action to be taken. The trend to address conflicts involving climate change by legal means is clearly on the rise, and the article argues that this calls for an evolving constitutional dialogue on human rights. The article examines the phenomenon, particularly in Latin American countries, explaining how past development of constitutions in the region, for all its precarious effectiveness, has already served to consolidate a path demanding judicial review in matters affecting human rights of constitutional stature. It argues that this path is being pursued by the ongoing climate litigation in Latin America. Based on case discussions, the article demonstrates how compliance with the Paris Agreement has been assimilated as a commitment to constitutional protection of human rights in the region, and how this process must deepen, taking into account regional vulnerabilities and future developments, in order to strengthen the fundamental human right not only to mitigation, but also to adaptation and equitable transitions.

Dysfunctional Constitutionalism or Dysfunctional Politics: A Matter of Law, Politics, and Institutional Design

The following reflections are an attempt in constitutional theory to adress the core elements of the U.S. constitutional crisis. It will first identify structural and normative properties of the U.S. Constitution that may become battlegrounds for adversarial ideas, meanings, logics of appropriateness, and, finally, institutional and constitutional missions, all centering around constitutional liberty. In a second step, it will be shown that institutional theory addresses important links between norms/rules/institutions and actors/citizens that are crucial for a constitution and its potential normative battlegrounds. It is alleged that a constitutional crisis is closely related to incommensurable interpretations of constitutional value choices (e.g., liberty) and the ways actors choose to make their interpretations actionable through the institutional channels of a polity. Constitutional theory, hence, should consider institutionalist findings in order to come to grips with the phenomenon of constitutional crisis. Third, in this light it will be discussed whether the prevailing models of (U.S.) constitutionalism are able to assimilate defects in the crucial relationship between the constitution and actors, especially when it comes to factionalized and polarized meanings and interpretations—which in turn trigger adversarial institutional/constitutional missions and may lead to constitutional wars. Fourth and finally, these reflections are taken together for an outlook on the prospects of constitutional development in the United States and the challenges that lie ahead.

Publius’ Proleptic Constitution

Even as The Federalist is frequently read to illuminate the origins of the American constitutional order, it advances a powerful account of the political future to be created and encountered by the polity the Constitution would found. Central to this account is a proleptic mode of analysis used to anticipate probable political developments and future patterns of constitutional politics, depict their systemic consequences, and identify how those consequences would feed back into the political system. Publius’ proleptic analyses comprise a descriptive theory of constitutional development according to which success on the terms stipulated—namely, the realization of a stable and well-administered constitutional union—would both bolster the new national government and supply the conditions for the expansion of its authority. Together, The Federalist’s proleptic analyses and the developmental theory they comprise disclose a dynamic constitutional imagination characterized by the changeability of authority relations.

Balancing Civil and Political Rights: Constitutional Court Powers in Indonesia and Austria

This study focuses on analyzing the role and challenges faced by the Constitutional Court in upholding political and civil rights in Indonesia and Austria. This research explores various conceptual and comparative aspects of law through normative research methods and delves deeper into how these institutions operate in practice. Analysis shows that the Constitutional Courts in both countries serve as the primary guardians of justice and human rights. However, it must also operate in a complex environment, dealing with social, political, and international challenges. The study found that changes in laws and regulations have significant potential to strengthen the authority and effectiveness of the Constitutional Court. This is reflected in the constitutional evolution in both countries, where legal and regulatory reforms have played an important role in shaping and defining the authority of the Constitutional Court. This study confirms the importance of increasing the capacity and legal knowledge of members of the Constitutional Court, as well as the need for greater understanding and appreciation from the public of this institution's vital role and function. This research contributes to understanding how constitutional institutions can adapt and evolve to meet challenges in enforcing political and civil rights.

Consistent C-bar radial-basis Galerkin method for finite strain analysis

For finite-strain problems of quasi-incompressible materials, with hyperelastic and hyperelasto-plastic behavior, we develop a mixed polynomial-enriched radial-basis function (RBF) interpolation. It is characterized by decoupling quadrature and polynomials for the deviatoric and volumetric terms of the right Cauchy–Green tensor. With an enriched interpolation, first and second derivatives of the deformation gradient are continuous. A finite-element mesh is employed for quadrature purposes with the corresponding distribution of Gauss points. In terms of discretization, linear, quadratic and cubic polynomials are combined and function support is established from the number of pre-assigned nodes. Due to the adoption of a Lagrangian kernel, finite strain elasto-plastic constitutive developments are based on the Mandel stress. Combined with the C¯ technique, these developments are found to be convenient from an implementation perspective, as RBF formulations for finite strain plasticity have been limited in terms of generality and amplitude of deformations in the quasi-incompressibility case. Three benchmark tests are successfully solved, and it was found that a combination of reduced integration with a deviatoric cubic basis and volumetric quadratic basis provides superior results in the quasi-incompressible case. Numerical testing shows very good convergence behavior of the results. Besides absence of locking with selective interpolation, outstanding Newton convergence was observed regardless of strain levels.

RACIAL CONSIDERATIONS ARE A PREREQUISITE AND NOT AN AFTERTHOUGHT: A DISCUSSION OF Kroukamp v The Minister of Justice and Constitutional Development [2021] ZAGPPHC 526 and Magistrates Commission v Lawrence 2022 1 All SA 321 (SCA)

This case note engages in a critical examination of two recent cases concerning the issue of race-based appointments, or rather the lack thereof, in the judiciary. The crux of this case note concerns the appointment of judicial officers as regulated by section 174 of the Constitution of the Republic of South Africa, 1996 (Constitution). In particular, the case note is driven by subsection 2 of section 174, which provides:“The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.”In essence, this case note is an advocate for the argument that the South African judiciary must reflect the demographics of the country. That is to say, racial considerations are a prerequisite in judicial appointments, and not an afterthought. The case note starts with a discussion of the matter that was before the Gauteng High Court, sitting as the Equality Court, in Kroukamp v The Minister of Justice and Constitutional Development ([2021] ZAGPPHC 526). The case note then discusses the later decision of the Supreme Court of Appeal in Magistrates Commission v Lawrence (2022 1 All SA 321 (SCA)).

First Century of the Satversme: Constitutional Development and Perspectives

The centenary of the Satversme – the Constitution of the Republic of Latvia – in 2022 was an important event for the State of Latvia. The Satversme is one of the oldest valid constitutions in Europe. Its fate is unique, making Latvia interesting in the context of comparative constitutional law.The authors of this article have examined the creation and evolution of the Satversme in the course of the last century, as well as analysed the current changes to the system of the Latvian State. Re-examining the instruments of direct democracy (referendum and legislative initiative), by expanding participation of the totality of Latvia’s citizens in public administration, has been outlined as a direction requiring improvements, likewise, “parliamentary weakness”, leading to judicial activism, is examined and leads to reflections on the need to increase the role of the President in the area of separation of powers, as well as control over the parliament and the executive power.

Constitutional amendments as a mechanism to pursue different goals in the context of internal and external challenges

This article reviews the constitutional evolution of Russia and Mexico in order to determine the causes for their current differences regarding their policies and governance systems after sharing similar characteristics during their political and economic liberalization period over three decades ago. The subject of this research are constitutional amendments, their frequency by type (article or section) and initiators (institutions and actors) in both countries. Results are compared with the main theories of the main experts in the field as well as speeches by leading government figures to identify and explain discrepancies. The goal consists in finding the causes and purposes of constitutional amendments to determine a hierarchy of actors and their capacity and instruments required in establishing national policies. In order to achieve the research goal, the author carries out a comparative analysis regarding the evolution of both nations at a political and constitutional level, furthermore, external threats are analyzed regarding their ability to influence the decisions behind the main actors regarding the overall course of both nations. In conclusion, the author underlines the importance in initial position of the country within the larger order of nations as a determinant in its course regardless of the implementation of foreign policies and practices. In the same manner, the role of the Mexican and Russian presidents as regulators of the internal power dynamics and overall system of governance is noted in both countries. This article represents a conceptual framework for supporting constitutional studies in the context of comparative analysis to assess the capacity of government institutions in reacting to the challenges of their external context. The detailed theoretical and practical approach towards analyzing constitutional amendments was conducted by means of comparing a quantitative and qualitative analysis that allowed determining the prospects of a standardized system for future comparative studies.

INDIAS CONSTITUTIONALISM: AN EXAMINATION OF ITS HISTORICAL DEVELOPMENT AND CURRENT ISSUES

This paper explores the idea of constitutionalism in India, charting its development over time and evaluating current threats to the countrys constitutional system. The transition of India from colonial oppression to a democratic republic with a strong constitution is an impressive case study in the evolution of constitutions. The paper examines constitutionalisms tenets in the context of India, highlighting its importance in preserving the rule of law, democracy, and human rights. It also draws attention to some of the major issues that Indian constitutionalism is facing in the twenty-first century, including federalism, judicial activism, and minority rights protection. This essay sheds light on the distinct history of constitutionalism in India and its applicability in the modern world.

IDEAS OF V.A. MAKLAKOV ON THE RUSSIAN AUTOCRACY IN THE LATE IMPERIAL PERIOD

The study of the role played by the autocracy of the late Imperial period in the history of Russia is relevant because it enables to understand the factors of its viability and its loss. Of considerable interest for the study of this topic are the judgments of contemporaries who knew the main political characters of that time, the goals and motives of their activities, domestic political circumstances. The novelty of the work lies in analysing the ideas of a liberal, a member of the Central Committee of the Cadet Party V.A. Maklakov, he gave a characteristics for the potential and weaknesses of the autocracy at the beginning of the XX century.
 
 The purpose of the study is to interpret the representations of V.A. Maklakov about the autocracy’s responsibility for solving the problem of building relationships with the public, about the struggle of traditional and new forces in the Russian bureaucracy of the early XX century, the goals of their activities, their perception of autocracy, their attitude to the constitutional monarchy.
 
 Materials and methods of the study. The sources on the topic are the texts of V.A. Maklakov: a recording of a lecture that he delivered in 1909 at Tinishevsky College, memoirs written in exile, legislative acts, and memoirs of contemporaries. The theoretical basis of the research is the theory of modernization, which characterizes the process of a traditional system’s transformation into a modern one; an axiological approach that focuses on the study of the value system; a civilizational concept that substantiates the idea of the people developing their cultural identity.
 
 Study results. Maklakov characterized autocracy in the context of the ideas of legality and the right of the individual to freedom and self-determination. The Russian autocracy cared about the greatness of Russia, but the power of the monarch was not limited by laws. The idea of legality was present in the official ideology of the XIX – early XX century. Maklakov argued that the higher bureaucracy prevented the principle of legality from taking root in the country’s governance system. In the top leadership of the country, Maklakov singled out the “old” forces that defended the autocracy, and the “healthy elements” that solved promising national tasks of Russia’s development, they contributed to the transformation of an unlimited monarchy into a constitutional monarchy, defended the idea of interaction between the government and the society.
 
 Conclusions. The autocracy proclaimed the principle of legality, but did not seek self-restraint by the constitution. The “historical power” was put on the path of constitutional development by statesmen who understood their duty to Russia. They sought to rely on liberal social forces, but the cadets did not support their program. According to Maklakov, after publishing the Manifest on October 17, 1905 and the Basic Laws of 1906, the Russian autocracy took the form of a “liberal autocracy”, since it was limited by the constitution, which created the mechanism for interaction between the government and the State Duma. Nicholas II made no further attempts to regain unlimited autocracy.

State International Agreements: The United States, Canada, and Constitutional Evolution

AbstractThe text of the US Constitution appears to require that individual states, to the extent that they are ever allowed to conclude agreements with foreign governments, must obtain congressional approval. In practice, however, states conclude many agreements with foreign governments, including with Canada and its provinces, and they almost never seek congressional approval. This practice is an illustration of both the importance of federalism in US foreign relations and the significant role played by historical practice in informing US constitutional interpretation. The phenomenon of state international agreements assumed new prominence in 2019 when the Trump administration sued to challenge a climate change agreement that the state of California had made with Québec. Despite this challenge, for the most part, neither Congress nor the executive branch has resisted the growth in state international agreements. This acquiescence could change as countries like China target US states in an effort to work around strained relations with the US national government and as states become more assertive in resisting the national government’s foreign policies. In any event, the practice of state international agreements unapproved by Congress rests in part on a distinction between binding and non-binding agreements that deserves greater scrutiny under both domestic and international law.

Contents of the concept of intellectual property in the constitutional section: the experience of foreign countries

The article examines modern trends in the constitutional and legal protection of intellectual property with the help of a comparative analysis of the development of the legal institution of intellectual property. It is concluded that the need to ensure the rights of citizens, national security, and the creation of an innovative economy determine the directions of world constitutional development, one of which is the constitutionalization of the legal institute of intellectual property. There are two main methods of constitutionalization: legislative and interpretive.
 The subjective constitutional right to intellectual property performs a special "social function", which consists in ensuring an optimal balance between private and public interests.
 Constitutionalization is a global trend in the modern development of states and is expressed in the universalization and intensification of the influence of constitutional values on the institutions of different legal systems, which significantly contributes to their convergence. The conclusion that intellectual property is part of the basic constitutional principles of many foreign states. Therefore, among the foundations of the constitutional system, a new principle related to the development of intellectual property relations should be highlighted, including their stimulation, encouragement, guarantee and support in order to achieve economic and social progress of society aimed at building an innovative (based on the knowledge economy) state.
 Objectively existing differences between states in the tasks of constitutional regulation, the level of development of intellectual property relations and the degree of their regulation in the current legislation, in the observance of the traditions of constitutional regulation and the propensity of the constitutional legislator to include modern novelties from the constitutions of other countries give rise to new approaches to the constitutional regulation of intellectual property relations, and also entail the emergence of «mixed» models. All this makes the issue of constitutional regulation of intellectual property rights an interesting and promising object of scientific research.

30 Years of the Constitution of the Russian Federation: Traditional Values and New Priorities

On the eve of the 30th Anniversary of the Constitution of Russia, the author makes an attempt to evaluate the Russian basic law, the content of the norms enshrined in the Constitution for their compliance with traditional values, i.e., spirituality, conciliarity, and civilizational identity inherent in the peoples of Russia. The anniversary date makes it possible to comprehend the meaning of traditional values, their reflection in the basic laws of the Russian State adopted in different historical periods. The author examines approaches to the concept of constitutional (constitutionally significant, constitutionally protected) values expressed in the legal standings of the Constitutional Court of the Russian Federation. The author elucidates various interpretations of the concept of «constitutional values» in the works of modern researchers, proves their relationship with the concept of «traditional values.» The conclusion is substantiated that only the goals, principles and priorities that are based on traditional values will be provided with popular support and will be able to become real prospects for constitutional development.

Understanding the term "constitution" in the period of ancient Rome

It is indicated that the constitution in the modern state is the basis of the legal system, that is, it determines its normative component (legislation and other sources of law), as well as the system of state institutions, legal ideology, and legal consciousness. Thus, the Constitution defines the entire paradigm of constitutional and legal relations in one or another period of state development. At the same time, the transformation of ideas about the content of the constitution also reflects social and political processes.The article is devoted to the study of the process of formation and development of constitutionalism, the understanding of the term “constitution” and the idea that philosophers invested in this concept, looking for a better model of a stable political system of the state. The article analyzes the term “constitution” in historical retrospect and how it correlates with the understanding of constitutionalism in modern legal literature. The homeland of constitutionalism was the ancient Greek polis, and the main theoretician in this field was Aristotle, who, based on the study of the constitutions of the polis of his era, came to the conclusion that the best model of a constitution is a mixed constitution, since it is this model that guarantees a stable political system. An example of a mixed constitution was the constitution of Sparta. According to the opinion of Polybius and Cicero, the model of a mixed constitution was characteristic of Ancient Rome as well. The model of the mixed constitution was accepted by modern constitutionalism as a guide.The article concludes that the constitution in a narrow sense was understood as an institutional arrangement with an indication of who has access to governing bodies and can participate in decision making. Thus, it was about state management. The constitution, in a normative sense, was designed to adapt a just system of government to the nature and purpose of the community of citizens.