Constitutional Provisions Research Articles

Does Education Make Local Elected Officials Perform Better?—A Case of Gram Panchayats in India

In India, in keeping with constitutional provisions, some states have started prescribing educational qualification criteria for candidates contesting elections to Panchayati Raj system of local self-government bodies. This study attempts to analyse whether educational qualifications indeed enable a local elected official (LEO) perform better. The study was conducted in Uttarakhand state of India. Two-stage cluster (probability) sampling was used. Data for the study were collected from 128 gram panchayats in four blocks of the state, selected randomly using the two-stage cluster sampling method. Results showed that educational background has a significant impact on the LEO’s performance, with secondary education having the largest impact followed by tertiary education.

SHARIAH’S POSITION IN AFGHAN 2004 CONSTITUTION: A LEGAL ANALYSIS

The legal position of Shariah in the 2004 Afghan constitution has been considerably debated due to the full involvement of the international community in the constitution-making process. Though Article 3 of the 2004 constitution of Afghanistan states that “no law shall contravene the beliefs and principles of Islam”, considering this provision and others, the position of Shariah in the constitution seems ambiguous. Some legal experts at national and international levels consider the 2004 constitution to be one of the most Islamic constitutions, recognising the supremacy of Shariah. Contrary to this, some scholars think that a set of constitutional provisions predicate a limited applicability of Shariah by referring to Hanafi Fiqh as a gap-filling law in Article 130. Keeping this problem in mind, this research paper examines the supremacy of Shariah in light of all provisions in the 2004 constitution. It aims to outline the actual role of Shariah within the 2004 constitution by elaborating on the different concepts of Shariah and law in the Afghan legal system. The study which follows qualitative research methodology is conducted through major library research and an empirical study, employing comparative and analytical approaches per doctrinal and non-doctrinal methods. It exposes the conceptual and applied aspects of the legal provisions relating to the applicability of the Shariah in the 2004 constitution. The research generally relied on primary sources such as the constitution of Afghanistan and the Quran and Sunnah for the Shariah. The researcher considered the connection between the various constitutional provisions on Shariah in conjunction with the hierarchy of legal norms and found that Shariah has a weak position under the 2004 constitutional setup up as a judicial review attests. The 2004 constitution provides a limited applicability of Shariah in the sense that no law shall contravene the Shariah while at the same time, the term law does not include the constitution- itself and the term Shariah generally refers to Hanafi Fiqh as a subsidiary source of law. The constitutional provisions on Shariah are not amendable, as the 2004 constitution declares them irrevocable. To strengthen the position of Shariah, it is proposed that the primary step is to define the term law comprehensively to include the constitution. However, the best alternative is that Afghans enact a new constitution that provides the supremacy of Shariah.

Self-Regulation as an Alternative Mechanism of Private Governance and Dispute Resolution in Russia and Kazakhstan

The article seeks to explore self-regulation as an innovative, effective legal mechanism of private governance of any economic or professional activity and dispute resolution, which aims to substitute state regulation and thereby limit state interference in the economy. The research methodology consists of the critical analysis of scholars’ publications, different legislative acts and judicial practice of their enforcement in the Russian Federation and the Republic of Kazakhstan as well as finding legal uncertainties and gaps and making solutions for their settlement in the sphere in question. Special attention is paid to the comparative method. On the examples of the law of these two countries, it is argued that self-regulation as such lays down the freedom of economic activity guaranteed in the constitutional, business and other legislative provisions and stipulates uniting the subjects of economic or professional activity within a self-regulatory organization mainly under the scope of corporate law. It includes (a) setting standards and other rules for pursuing any economic or professional activity by members of a self-regulatory organization; (b) monitoring compliance with such requirements and applying different alternative methods of resolution of legal disputes with the participation of its members. Such corporate normative acts adopted by non-governmental actors are suggested to be recognized as a specific type of source of private law to be clearly enshrined in the present legislation of the Russian Federation and the Republic of Kazakhstan. Unlike recommendatory documents of most non-profit organizations, they are mandatory and can be enforced through legal instruments determined in the special legislation on self-regulation. It allows the proper balance of private and public interests under the joint state and private governance of economic and professional activities. The article also stipulates enlarging the application of self-regulation to digital and other new spheres, which require a lot of rules to be adopted.

The Role of the State in Health Law Enforcement in Indonesia: A Constitutional Law Perspective

The role of the state in enforcing health law in Indonesia is a crucial aspect aligned with constitutional provisions, particularly Article 28H paragraph (1) of the 1945 Constitution, which emphasizes the right to health. The state is expected to create a legal system that protects and fulfills the health rights of the community through the formulation of policies, regulations, and oversight of health service delivery. The implementation of Law No. 36 of 2009 on Health underscores the government's responsibility to provide accessible and quality health services. Health law enforcement includes actions against violations, including sanctions for providers that do not comply with standards. In this context, the state must also respond to health emergencies, such as pandemics, with swift and effective measures. Additionally, public participation in health decision-making processes is vital. In the long term, political commitment and adequate resource allocation are necessary to ensure the sustainability of health programs. Through a holistic, human rights-based approach, the state can create an inclusive and quality health system for all members of society.

Comparative Study of Separation of Power in India, Pakistan, and South Africa and its Impact on Judicial Independence

In this paper the separation of powers and its impact on judicial impact is discussed in the country of India, Pakistan, and South Africa. The goal of this research paper is to examine the division of powers between the different organs of the government which is necessary for the good governance. Various aspects are focused in this paper including political, historical, and legal aspects. The paper includes the historical development in all the three countries and the conditions which affect doctrine in these countries. This paper includes the provisions of constitution both written and unwritten and judicial precedents that establishes the said doctrine. This paper also discusses that how the doctrine of separation of power affects the judicial independence in all the three countries.

“Nowhere but Everywhere”: The Principle of Legality and the Complexities of Judicial Discretion in Iran

Abstract To comply with Shiʿi theological-jurisprudential justifications and dogmatic traditions, the Iranian postrevolutionary legal system formally enshrined the principle of legality of crime and punishment within the Iranian Constitution and important legal provisions. Despite this formal entrenchment and codification of its criminal law, which together act as a legal constraint on the traditionally excessive power of Muslim judges, the Iranian theocratic system has exempted religious sins from this principle by blurring the distinction between crime and sin and criminalizing certain sinful acts with unclear language. These two legal mechanisms not only violate the principle of legality and amplify legal uncertainty, but their reference to Sharia law also binds the fate of the accused more tightly to the discretion of the judge than to the letter of the law. Consequently, the religiopolitical predilections of judges have become a determining factor in findings of criminal responsibility and imposition of punishment on citizens.

Constitutional and Legal Provisions Related to Reservation Policies for Village Panchayat Elections in Maharashtra

This paper examines the legal framework governing reservation policies in village panchayat elections within Maharashtra. The basis of these policies is enshrined in Article 243D of the Indian Constitution, which mandates that reservations be provided for Scheduled Castes (SCs) and Scheduled Tribes (STs) in proportion to their population within the panchayat area. This article also stipulates that at least one-third of all seats, including those reserved for SCs and STs, must be allocated for women. Furthermore, reserved seats must be rotated among different electoral wards to ensure broader participation, and the reservations for SCs and STs are subject to a time limit as specified in Article 334, which is currently set at 80 years. Additionally, state legislatures have the discretion to enact laws providing further reservations for "Other Backward Classes" (OBCs). In alignment with these constitutional principles, Maharashtra's Village Panchayat Act, 1959, extends the reservation policies by mandating a 27% reservation for OBCs on top of the existing SC/ST reservations. The state law also enhances women's representation by requiring a 50% reservation for women across all castes, surpassing the constitutional minimum. Candidates contesting reserved seats are required to produce caste validity certificates within six months of the election to avoid disqualification. The 73rd Constitutional Amendment was designed to bolster participation and leadership from marginalized communities in local governance, and the Supreme Court has affirmed the importance of these reservation policies in promoting political empowerment and democratic decentralization. Despite these advancements, several challenges persist. The stringent requirement for obtaining caste validity certificates within a limited timeframe can create barriers for candidates. Additionally, there is a risk of misuse if the reservation system is not properly implemented or monitored, potentially allowing individuals who do not genuinely belong to reserved categories to exploit the provisions.

A aplicação do in dubio pro societate na jurisprudência do Supremo Tribunal Federal: uma pesquisa empírica

In jury trials, Brazilian courts apply, during the first phase of the trial by jury, the legal maxim in dubio pro societate. Such practice sparks academic and jurisprudence controversies. How has the Supreme Federal Court (STF) applied and interpreted the principle of in dubio pro societate in its rulings? The research unfolds through qualitative analysis of 37 judicial cases from the STF on the subject. This research reached the following conclusions: there is no express constitutional provision for in dubio pro societate, it being a jurisprudential construct related to the constitutional competence of the jury; the evidence supporting the decision at the end of the first phase of the procedure, regarding the person who committed the crime, must be the evidence produced under the scrutiny of adversarial proceedings, with decisions solely supported by elements gathered in the investigation being prohibited; the standard of proof required to consider indications of the author of an offense is the preponderance of evidence, that is the set of evidence incriminating the accused must outweigh the evidence that would exonerate them, justifying their submission to trial by jury.

The Constitutional Foundations of the Russian State Policy in the Field of Family Protection and Traditional Family Values

The paper presents an analysis of constitutional provisions aimed at protecting the family in various periods of Russian statehood, shows the multi-vector nature of state policy in the field of family relations in the Soviet period, characterizes the family and demographic policy of the post-Soviet period, analyzes the constitutional novelties of 2020 aimed at strengthening the family and the spiritual and moral values of Russian society. An analysis of the constitutional category of «traditional family values» is carried out from the perspective of the needs of the individual, family as a social group and the importance of family for society and the state. The institution of family is considered as an intrinsic value and a basic determinant of the formation of the spiritual and moral heritage of Russian society, the preservation of the cultural identity of the Russian nation. The author provides the data from an official survey involving Russians that testifies to the attitude towards the family. The article also outlines the results of a research conducted by domestic scientists stating the unfavorable transformational processes taking place with the institution of family in the past 30 years. These include voluntary childlessness and celibacy; postponing the birth of children to later age periods; reducing the value of a family with several children; preference among young people for actual marital relations (common-law marriage) to a registered marriage. The author considers the protection of the family and family values as a task for ensuring the national security of Russia, the solution of which is aimed at preserving the all-Russian identity, sustainable development of the state, preservation of socially significant spiritual and moral values. The author substantiates the proposal on the need to form in society the idea of the importance of the family as a value in itself, which implies a responsible attitude to marriage, birth and upbringing of children, encouragement and support of a multigenerational and large family, respect for the elderly, disapproval of the rejection of the birth and upbringing of children.

A Study of Dimensions of Islamophobia in Nigeria: Causes and Solutions

Islamophobia is an unfounded fear of Islam and, more accurately, of his adherents i.e. Muslims. This phenomenon has found a fertile terrain in Nigeria given her status as a multi-religious society where Muslims and Christians live together as citizens. Over the years, Islamophobia has taken constitutional, diplomatic, educational, financial, and political dimensions in the country. Any Attempt by Muslims to live in line with their religious codes of conduct and without violating the constitutional provisions is often misconstrued by Christians - their religious counterparts- as a systematic way of Islamizing the country. However, the imaginary fear of Islam/Muslims by Christians is belied by the realities on ground. Against this backdrop, this paper will cast a look at Islamophobia as a concept with a view to highlight its various dimensions in Nigeria. After identifying possible causes of Islamophobia, practicable solutions shall be proffered accordingly. To achieve the objective, both historical and analytical methods shall be employed. Available resources as well as events in the recent past reveal that Islamophobia is not unconnected with misinformation about Islam at the instance of some orientalists. It is also a possible consequence of violent activities of insurgent groups like Boko Haram which proclaim the Islamization agenda to terrorize the entire nation. The paper shall show that this insurgent group is ignorance based and stands condemned by the Muslim authority in the country. As such, the paper suggests adequate knowledge and tolerance as critical tools to curtail the menace of Islamophobia. This will go a long way in achieving mutual tolerance and peaceful co-existence among the adherents of Christianity, Islam, and other religions in Nigeria.

On the Application of the Constitution of Russia by Courts in Resolving Judicial Disputes in Ca­ses of Bankruptcy of Individuals

The article discusses the implementation of the direct effect of the Constitution of the Russian Federation in resolving disputes arising in connection with the recognition of individuals as bankrupt. An analysis of the acts of the highest courts has demonstrated the insufficient use of the regulatory potential of the provisions of the Russian Constitution, in connection with which a conclusion was made about the need to expand the judicial application of constitutional provisions when considering this category of disputes. According to the authors, this will contribute to the stability of the legal regulation of the legal relations under consideration and the establishment of uniformity in the law enforcement activities of the judiciary.

Freedom of Association in Italy: Genesis, Evolution and Limits of Protection of Associations in the Italian Legal System

Abstract This paper analyses the different dimensions of freedom of association in Italy. Section 1 introduces the topic and highlights some methodological issues related to comparative law. Section 2 briefly describes the evolution of the provisions protecting freedom of association in Italy from the Albertine Statute to the 1948 Constitution and gives an overview of the various constitutional provisions in which there is an intersection between the issue of freedom of association and the protection of intermediate bodies. Section 3 analyses the entitlement to the right to freedom of association and outlines some past and present derogations for certain categories of public servants, the regulation of constitutionally prohibited associations and the issue of compulsory associations. Section 4 analyses the rights in associations and the rights of associations focusing on compulsory associations and ideologically oriented organisations. Section 5 draws some conclusions and points out some recent legislative trends.

Reforming Post-Arrest Bail in Pakistan: Lessons from a Comparative Study with India

This research paper presents a comparative analysis of the legal frameworks governing post-arrest bail in India and Pakistan, with a focus on the statutory provisions, judicial interpretations, and procedural safeguards that are involved. Although both states share a common legal heritage which is rooted in British colonial law, however, they have diverged in their approaches to bail, which are influenced by their respective constitutional mandates, legislative developments, and sociopolitical landscapes. This comparison is essential in order to understand how these legal systems are balancing individual rights with societal security and how judicial discretion are shaping bail in each country. For this purpose, this paper examines constitutional provisions besides main statutory provisions of the Indian and Pakistani criminal procedural laws, the role of judicial discretion and evolving jurisprudence of the post-arrest bail. This study offers insights into potential legal reforms, with an aim to enhance fairness and consistency in bail practices, through juxtaposing these principles in India and Pakistan. This study concludes that Pakistan should consider restructuring its bail procedural laws and system, and it suggests reforms taking into account the benefits of India’s progressive legal framework, to ensure consistency, fairness, and the protection of individual rights. This research also recommends future studies on balancing bail and incarceration, through focusing on judicial discretion and the application of the principle of proportionality.

INCLUSION OF PERSONAL DATA PROTECTION IN THE BRAZILIAN CONSTITUTION: REFLECTIONS ON FUNDAMENTAL RIGHTS AND GUARANTEES

The Constitution of the Federative Republic of Brazil of 1988, known as the Constitution of the Federative Republic of Brazil, represents a milestone in Brazilian legal and political history, establishing a wide range of fundamental rights and guarantees. This article aims, first, to analyze such rights and guarantees, discussing their importance and implications for the protection of human dignity and the consolidation of Brazilian democracy. Then, the intersection between fundamental rights and guarantees and the protection of personal data, the General Data Protection Law and Constitutional Amendment No. 115 was made. The methodological approach used was based on a review of the legal literature and constitutional provisions. Finally, it is concluded that Constitutional Amendment No. 115/2022 is a crucial step in strengthening the right to the protection of personal data in Brazil, aligning itself with international trends and reaffirming the country's commitment to defending the privacy and dignity of its citizens. With this change, the Federal Constitution begins to reflect more clearly and directly the importance of protecting personal data, establishing a solid constitutional basis for the development and application of public policies and regulations related to the topic.

Exploring Ownership Patterns: The Ghanaian Experience of Media Control and Editorial Autonomy

Over the years, media autonomy issues in Ghana have emphasized media-state power relations. However, the switch from military to democratic order in 1992 strengthen the autonomy of the media because it received constitutional backing that led to the proliferation of media firms. While these developments are physically evident, the role of owners in the management of their outlets and hence publication seem to occur in a ‘black hole’ which tends to frustrate the autonomy that the Ghanaian media welcomed. To unearth this phenomenon, the study purposively sampled fifteen experienced editors, senior reporters of the print and representatives of media regulatory and professional bodies to source data and applied the concept of media capture to explore how the actions and reactions of media owners; institutional structures and constitutional provisions determine editorial autonomy. Generally, ownership influences are evident in Ghana’s print media but the extent of influence is intense in the private than state media because the two have different ownership structures which informs the diversity of content and hence, their levels of media capture.

The right to education in the mother tongue for Ukrainian refugees in Romania according to international and national law

Since the outbreak of the Russian invasion in February 2022, millions of Ukrainian citizens have sought refuge in Romania, with a significant number of people still remaining in the country as of the latest reports. Romanian government data indicate that by April 2024, approximately 154,617 Ukrainian refugees, including 50,000 school-aged children, were residing in the country. Before this crisis, Romania had established robust educational language rights for its Ukrainian minority of around 40,000 citizens. This study rigorously examines these pre-existing language rights within Romania’s legal framework, focusing on public education provisions. Central to the inquiry is whether the comprehensive language rights afforded to Romania’s Ukrainian minority could be extended to the Ukrainian-speaking refugees. The study begins with an introduction contextualizing the refugee crisis and outlining the existing legal framework for minority language rights in Romania. The legal analysis covers constitutional and sub-constitutional provisions, alongside with an examination of international agreements such as the bilateral treaty between Romania and Ukraine, the Framework Convention for the Protection of National Minorities, and the European Charter for Regional or Minority Languages. Special emphasis is placed on education provisions, including curriculum design, textbooks, language of instruction, and decision-making. By addressing these pivotal questions, this study contributes to the theoretical discourse around the personal scope of minority language rights in Europe and offers a nuanced insight into Romania’s legal framework on minority language education. It also seeks to elucidate how Romania’s legal commitments accommodate both established minority communities and newly arrived refugees with similar linguistic and cultural backgrounds. Further sociological research is needed to explore the implementation of Ukrainian-language education to the benefit of the Ukrainian refugees, which was beyond the scope of this study. Nevertheless, Romania possesses all the necessary legal elements to serve as a truly best practice model in Europe for organizing and ensuring good quality education in the mother tongue for Ukrainian refugees.

Constitutionalization of the parliamentary opposition in the Republic of Moldova: realities, challenges, perspectives

Parliament, embodying society in its diversity, transposes this diversity into the political process. The main challenge facing the legislature is managing tensions and maintaining a balance between competing needs to promote social cohesion and solidarity, with parliamentarians being the most important guarantee of citizens' political freedom. Formed following free and competitive elections, the parliament, by simply expressing the will of the electorate, presumes the existence of the opposition in one form or another. However, the status of the opposition is not always found in the constitutional and regulatory provisions. This research is dedicated to the identification of the constitutional mechanisms for the recognition and protection of the parliamentary opposition, which creates the preconditions for the creation of a balanced, transparent, and responsible political system.

Unnatural Deaths Among Children In India: A Critical Analysis Of Child Rights

Unnatural child mortality in India is a profound threat to the well-being and development of its young population. This research examines the issue within the framework of child rights, revealing significant contributing factors such as inadequate safety measures, socio-economic disparities, and weak enforcement of child protection laws. The study advocates a holistic approach, emphasizing the need to strengthen child protection laws, enhance education and awareness, mobilize local communities, and implement mental health interventions. Child rights, enshrined in the legal framework of India, including constitutional provisions, the United Nations Convention on the Rights of the Child (UNCRC), and domestic laws, play a pivotal role. However, challenges such as poverty, limited awareness, feeble enforcement, child labor, and gender-based discrimination necessitate systemic reforms. Prioritizing child rights and safety can create a secure environment for India's youngest citizens. The research draws from existing literature, highlighting the importance of community engagement, education, and a robust legal foundation in preventing unnatural child deaths. Collaboration among government, civil society organizations, academia, and international entities is crucial for sustainable change. This research seeks to raise awareness, provoke discourse, and stimulate proactive measures to safeguard India's children. Strengthening child protection and advancing child rights are fundamental imperatives with the potential to shape a fairer society

The Evolving Jurisprudence of Environmental Protection in India: A Critical Analysis of the Judiciary’s Role.

The Indian judiciary has played a significant role in the environmental protection, utilizing its powers to interpret and enforce environmental legislations, upholding constitutional provisions, and address Public Interest Litigations. The environmental judgment of the court, in many cases, have significant impacts on the overall environmental protection and improvement process in India. Judicial activism, particularly in present times, has given new direction in the protection and improvement of the environment. The landmark judgments and orders of the Supreme Court and High Courts have triggered a wave of environment awareness and consciousness in our country. The Indian judiciary has developed certain environmental principles while dealing with the cases of environment protection. The aim of this paper is to analyse how the Supreme Court and High Courts make decisions about the environment. For this purpose, most of the important decisions made by our Supreme Court on important environmental issues have been collected and analysed. Analysing the case law is primarily focused on the influence or role played by the court on environmental issues.

Challenges and Frontiers in Intellectual Property Rights Amidst the Rise of Artificial Intelligence

This article investigates the impact of artificial intelligence (AI) on intellectual property (IP) rights, addressing challenges in ownership and authorship of AI-generated creations while exploring legal and ethical dilemmas in traditional IP domains. It offers strategies for navigating these complexities, drawing on legal precedents, international agreements, and policy recommendations. The research emphasizes the urgent need for legislative updates to address these challenges effectively. Recommendations include the enactment of innovative constitutional provisions, updating IP legislation to encompass AI-related issues comprehensively, and advocating for effective judicial intervention. By implementing these strategies, Sri Lanka can foster a harmonious coexistence of AI and IP, ensuring the protection of intellectual property rights while stimulating innovation in the AI era.