Constitutional Implications Research Articles

Strategic Implications of Legal Constitution: Between Necessity and Contingency

Abstract This article offers a novel perspective on the ‘constitutive role’ of law and discusses the contribution that such a perspective can make to our understanding of law’s potential role in radical political struggles. It suggests that a distinction should be drawn between the necessary dimension of law’s constitutive role—the fact that law is one of capitalism’s necessary power relations—and the contingent dimension of that role—the historically variant ways in which those relations have been institutionalised, and the legal form of power given concrete expression. The article shows how this distinction can help refocus questions about the role of law in radical political struggles and can help inform strategic decisions about whether, when and how law might be mobilised in the context of such struggles, including how law might be used in explicitly subversive ways.

Decentralized Finance (DeFi) vs. Centralized Finance (CeFi)

This research paper explores the dichotomy between Centralized Finance (CeFi) and Decentralized Finance (DeFi) within the context of the Indian Constitution. It critically analyzes the constitutional implications of both systems, particularly focusing on how centralized authorities may misuse their power to curtail freedoms guaranteed under the Constitution. Additionally, the paper investigates how DeFi can support constitutional values such as privacy, freedom of trade, and equality. Finally, it examines how centralized authorities are actively hindering DeFi-based implementations to maintain control over financial systems, thereby compromising democratic principles.

Exploring Child Grooming Sexual Abuse through Differential Association Theory: A Criminological and Legal Examination with Constitutional Implications

The rapid evolution of technology, particularly the ubiquitous presence of the internet, has brought about significant societal changes. While technological advancements have brought numerous benefits, they have also introduced new challenges and risks. Among these challenges is the alarming rise of child grooming, a form of sexual harassment perpetrated against minors, facilitated by the online environment. In Indonesia, the incidence of child grooming is increasingly prevalent, with several reported cases highlighting its emergence as a pressing societal issue. However, the absence of specific legal frameworks addressing this crime has posed significant challenges for law enforcement authorities tasked with its prevention and prosecution. The lack of dedicated legislation targeting child grooming underscores the need for a comprehensive legal response to effectively combat this form of exploitation. Currently, law enforcement officials rely on discretion in the absence of specific legal provisions, resulting in ad-hoc approaches to addressing these cases. This paper employs a normative juridical approach, utilizing The Statute Approach, to examine the legal landscape surrounding child grooming in Indonesia. By synthesizing existing literature and statutory regulations, this study aims to shed light on the legal complexities inherent in combating this emerging crime. In conclusion, while child grooming remains a relatively new phenomenon in Indonesia, its detrimental impact on minors necessitates urgent legislative action. By enacting dedicated laws and policies, the Indonesian government can provide law enforcement agencies with the necessary tools to effectively address and mitigate the prevalence of child grooming, ensuring the protection and well-being of the nation's youth.

A Contituição Financeira das renúncias fiscais: breves notas sobre o princípio da legalidade específica na concessão de benefícios tributários

The article discusses the relationship between tax rules and the 1988 Federal Constitution, focusing on the granting of tax benefits. It highlights the importance of understanding the role of the Constitution in granting these benefits to guarantee their legality and effectiveness, without compromising financial stability and tax equity. Divided into two parts, the first analyzes the Financial Constitution and its role in the State’s financial order, especially in tax exemptions. The second part explores the principle of legality of tax benefits and their constitutional implications, considering fiscal sustainability and tax equality.

Towards a constitutional sociology of property rights:

The article examines the emergence of modern social structures of property rights and their constitutional implications during the formation of world society. While European history has addressed this topic regionally, the process of modernization in colonial and postcolonial contexts, along with its global connections, remains underexplored. This work combines theoretical reflections from the literature on the sociology of constitutions with historiographical research on the formation of modern property rights in Europe and its colonies. It argues that the property structure of colonial Brazil is decisive for social cleavages and the social reproduction of exclusion in the later period. Due to the role land played in the constitution of power and privileges in the colonial times, postcolonial elites remain tied to the land. This results in no considerable and powerful sectors within postcolonial elites, unlike the Central and Northern European context, being interested (and strong enough) to break with the exclusionary social hierarchies inherited from the old regime. The old elite tied to land was also the new elite of independent Brazil.

An Analysis of the Legislative Protection for Journalists and Lawyers Under Zimbabwe’s Interception of Communications Act

Abstract This paper provides a legal analysis that interrogates the Information Communication Act (ICA) in Zimbabwe. Its purpose is to examine the extent to which the ICA protects journalists and lawyers privileges, critical constituencies in any democratic state. The ICA, passed in 2007, has remained a heavily contested legislation in the country. On the one hand, it is understood to be security minded legislation, yet, other critics have argued that it interferes with the journalist’s source privilege, and lawyer–client confidentiality. In this paper, we are concerned about whether the Act provides adequate safeguards where the subject of surveillance is a practising journalist or lawyer. Thus we ask; to what extent does the ICA provides adequate legal safeguards to lawyers and journalists? Through a qualitative textual analysis of the law, the paper determines the constitutional implications of the main provisions of the Act on whether they reflect constitutional norms that safeguard the legal privileges accorded to the professions. We note that the ICA does not provide adequate safeguards for the protection of lawyers and journalists. We, therefore, argue that ICA is a weaponized legislation meant to emasculate these two communities of practice. As such, we call for the Act’s alignment with the current broadened constitutional provisions. South Africa’s Constitutional Court has invalidated unconstitutional provisions within its surveillance and interception laws, likewise identical provisions within its neighbouring state, Zimbabwe should follow the same. Both countries share common historical, political and economic ties.

Balancing Justice in Pixels: Legal and Constitutional Implications of Virtual Court Sessions in Ghana

The legal sector is experiencing a transformative shift towards the adoption of virtual court sessions to enhance efficiency, accessibility, and transparency within judicial systems. However, this paradigm shift is not without its challenges. This research examined the implementation of virtual court sessions in Ghana, focusing on the legal and constitutional implications of the Practice Direction issued by the Chief Justice. While digitalization of court proceedings holds promise, concerns regarding privacy, technological disparities, and the preservation of due process rights loom large. The research drew on a recent case of Law to affirm that administrative/practice directives fall outside the purview of Laws of Ghana. The study employed the Innovation Diffusion Theory as the lens for analyzing and proposing a solution framework to sustain virtual court systems in Ghana. The findings of the study included the implementation strategy incompatibility of virtual court hearing with the existing legal framework for observing due process and the fundamental rights of citizens. The solutions require a balanced approach that acknowledges the strengths of both the traditional court system and technology. To sustain virtual court hearing, strategies for addressing implementation and legitimacy concerns, enhancing the compatibility of virtual court technology security with existing legal framework and practices, and ensuring long-term adherence to constitutional requirements should be paramount. Substantive law and regulation including relevant constitutional amendments may be necessary to ensure smooth implementation. Keywords: e-Justice system, Implementation, Virtual Court Sessions, Practice Direction, Due Process, Proceedings, Ghana.

El acceso a la justicia arbitral: reflexiones sobre el amparo de pobreza en los procesos arbitrales en Colombia

This article explores the complex legal and constitutional implications of granting fee waivers in arbitration proceedings in Colombia. Fee waivers are a constitutional guarantee that exempts individuals from certain procedural costs in legal proceedings due to economic hardship, ensuring access to justice. However, its application in arbitration has been a subject of intense debate, as this figure is generally specific to ordinary courts. In this context, the inherent costs of arbitration, which are often higher than ordinary court proceedings, are analyzed. The principle of party autonomy is also considered, whereby agreeing to arbitration implies acceptance of associated costs. Critics argue that granting fee waivers could undermine this autonomy and the binding force of the arbitration agreement. Additionally, concerns about potential abuse and the contractual nature of arbitration as distinct from the judicial system are examined. Proponents and some scholars argue that denying fee waivers could effectively prevent those facing extreme economic difficulties from accessing arbitration, violating fundamental rights to access to justice and equality before the law. The article examines proposals for the exceptional and limited application of fee waivers in arbitration, subject to stringent standards. Alternative mechanisms to improve access to arbitral justice for the economically disadvantaged, such as subsidized services, legal aid programs, and specialized arbitration centers, are also discussed. The importance of ensuring equitable and equal access to arbitral justice to maintain the integrity, legitimacy, and effectiveness of arbitration as a dispute resolution mechanism is emphasized. A balanced approach is required that respects the principles of arbitration while upholding both constitutional and conventional guarantees. The article concludes with a call for reflection, open debate, and collaboration within the legal community to address this complex issue and shape the future trajectory of arbitration in Colombia.

The Auxiliary State Organ Authorities in Indonesia: The Constitutional Implications of Law No. 19 of 2019 Concerning KPK

The Auxiliary State Organ Authorities in Indonesia: The Constitutional Implications of Law No. 19 of 2019 Concerning KPK

A Study on the Constitutional Implications of Democratic Backsliding

A Study on the Constitutional Implications of Democratic Backsliding

Constitutional Implications of EU Sanctions against the EU Citizens

Constitutional Implications of EU Sanctions against the EU Citizens

Trans-Tasman Challenge

The Trans-Tasman Proceedings Acts took effect in Australia and New Zealand in 2013, and since then have created a well-functioning trans-Tasman judicial area in which the process of all Australian and New Zealand courts can be served, and the judgments of all of those courts can be enforced, anywhere in New Zealand or Australia. The unquestioned jurisdiction that is given to all Australian and New Zealand courts in trans-Tasman cases is also limited only by principles of forum conveniens and the enforcement of choice of court agreements. In Zurich Insurance Company Limited v Koper (‘Zurich Insurance’), the validity of the Australian rules of jurisdiction under the Trans-Tasman Proceedings Act 2010 (Cth) was challenged. The New South Wales courts and the High Court of Australia all rejected the challenge. This article is an account of the constitutional considerations that were canvassed throughout the Zurich Insurance litigation, including the possibility that a High Court majority recognised a positive constitutional implication when upholding the personal jurisdictions created by the Trans-Tasman Proceedings Act 2010 (Cth) and the recognition of a federal power to extend the jurisdiction of state courts in all international cases. It also undertakes an analysis of the private international law issues of Zurich Insurance: the clarification of the effect of the Trans-Tasman Proceedings Acts; and the unsatisfactory conclusions reached on the territorial application of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) — the issue that forced the need to consider the validity of the Trans-Tasman Proceedings Act 2010 (Cth) in the first place. In this respect, a plea is made for Australian state parliaments and courts to avoid extra-territorial overreach in the application of state legislation.

Death benefit provisions in the Pension Funds Act 5 of 2019 of Lesotho: Contradictions or deliberate policy choices?

This article discusses the provisions in the Pension Funds Act 5 of 2019 (PFA 2019) that regulate the payment of death benefits after a member of a pension fund has died. While the article welcomes the death benefit provisions in the PFA 2019, it discusses two potential problems that will likely confront Lesotho as it implements those provisions. The first problem is the possible contradiction between sections 32 and 35(1) of the PFA 2019. The article suggests ways to avoid this potential contradiction short of amending the PFA 2019. The second problem is the absence of a definition of a "dependant" in the PFA 2019 and the constitutional implications of this. The article recommends reliance on the common-law definition of dependency or the inclusion of such a definition in the regulations to the PFA 2019.

Constitutionalising Israel's Constitutional System

AbstractThe current political landscape in Israel, with countrywide demonstrations occurring weekly, and citizens calling for democracy in the face of initiatives introduced by the coalition, may be regarded as transformative events with potential constitutional implications. This article explores the question of whether Israel is experiencing a ‘constitutional moment’ and what such a moment entails, taking into account the intricate social, legal and political reality of the country. I argue that the current events should be examined and analysed within a broader context of processes that have been occurring in the Israeli society and legal system over the past two decades. These processes may hinder or create challenges for the realisation of a constitutional moment, rather than facilitating progress towards that goal. Correspondingly, the article lays the basic foundations for the occurrence of an Israeli constitutional moment, which I refer to as ‘constitutionalising Israel's constitutional system’.

Anti-Corruption in a Party-State: Constitutional Implications of China's Supervisory Reform

AbstractThe 2018 amendments to the People's Republic of China (PRC) Constitution saw the establishment of a system of supervisory commissions, which is a landmark development not only for anti-corruption, but also constitutional law in China. After providing an overview of the background and legal framework of the reform, this article discusses its constitutional implications from three perspectives. First, the reform alters the long-established state structure and creates interesting dynamics of institutional interactions among various branches of state structure. Second, it marks a reversal from the principle of ‘party-state separation’ and raises difficult issues of interface and transition between the party disciplinary system and the formal legal system. Finally, it legalises the previously extralegal practice of shuanggui (‘double specifications’) and affects the individual rights of those subject to investigation. The article concludes with some brief reflections on what this development indicates for the future of the rule of law in China, and highlights the potential for further research.

노동조합법 제2조 및 제3조 개정법률안에 대한 거부권 행사의 부당성

This article aims to look into the constitutional legitimacy of the possible exercise of the President's veto power to prevent the proposed amendments to Articles 2 and 3 of the Trade Union Act, which were referred to the plenary session of the National Assembly at the end of June 2023 with the collaborative initiation of the opposition parties despite the resistance of the ruling party, from becoming law.
 The presidential veto is a power that allows the president to object to a bill passed by the National Assembly and return it to the National Assembly for reconsideration. There are some competing views on the legal nature of this power, which is understood as a suspension or release condition, but it is reasonable to understand it as a unique constitutional mechanism that restrains the finalization and promulgation of laws for a certain period of time, since the request for reconsideration itself does not actively create a legal effect on whether the bill is confirmed or not.
 The constitutional function of the presidential veto has been recognized to be the procedural control of rushed, frivolous, or flawed legislation but it is noteworthy to growing focus is given to the presidential check on the National Assembly to promote the balance of power. As the function of the veto has been expanded, there has been a strengthening tendency to argue that there are no legal limitations on the requirements for its exercise so that it can be used out of policy disagreement or political motivation alone. Against this tendency, counter arguments have been consistently put forward that there should be inherent limitation on the exercise of the veto power so that it can be justified only if the target legislation is (1) unconstitutional, (2) unenforceable, (3) contrary to the national interest, and (4) politically motivated to exert political pressure by unreasonably restricting executive power in violation of the separation of powers. I conclude that the inherent limitation theory is preferred when considering the compatibility of the basic values, principles, and institutions of a democratic republic, the constitutional implications of the constitutional power structure, and the relative persuasiveness and logical consistency of the arguments. Above all, considering that the legislative power is an inherent function of the National Assembly in accordance with the principle of separation of powers, which is a universal principle that cannot be denied regardless any form of government, and that the veto power is a procedural controlling power, not a substantive formative power, even according to the systematic interpretation of democracy and the rule of law, and that its legitimacy is to control the evils such as legislative dictatorship, not to replace the legislative power, the constitutional principles of a democratic republic cannot justify that the legislative power is neutralized by the abuse of the presidential veto leading to the presidential administrative dictatorship.
 Even if there is an inherent limit in the exercise of presidential veto power, there is a problem that this limit is a ‘political morality of the constitution’ rather than a ‘law of the constitution’ where normative power can be enforced through judicial procedures, and there is no possibility of external control such as judicial review or constitutional adjudication.

The constitutional implications of pension deductions under the Pension Funds Act of Lesotho: A comparative analysis

This article discusses the constitutional implications of pension deductions in the kingdoms of Eswatini and Lesotho. The article is based on a constitutional problem that arose in Government of Eswatini v Mhlanga, where the Supreme Court declared section 32(2) of the Retirement Funds Act 2005 unconstitutional on the grounds that it conflicted with the Constitution. Two decisions in the case - a majority and a minority decision - will be discussed for the purposes of applying them to Lesotho. The article considers comparative questions, including whether the newly enacted section 33(d) of Lesotho's Pension Funds Act 5 of 2019 potentially offends the Constitution of Lesotho in the same way as the majority judgment found in Mhlanga. The article recommends that, when called upon, the judiciary in Lesotho should interpret section 33(d) of the Pension Funds Act in line with the minority judgment in Mhlanga.

폴란드 헌법재판소의 위기와 그 헌법적 함의

This article analyzes the causes and the progress of the crisis in the Polish constitutional court/tribunal since 2015 and reflects on the constitutional implications of the Polish case from the perspective of the tension between the constitutional court/tribunal and political power. The constitutional court/tribunal checks political power and should be independent of political power. At the same time, however, the constitutional court/tribunal is in a situation where it is dependent on political power, both in terms of the composition of its personnel and the formation of its judicial system. This conflicting relation between the need for independence and the need for dependence creates a certain tension between the constitutional court/tribunal and political power. Political powers, especially those with a parliamentary majority, are exposed to the incentives to tame a constitutional court/tribunal that binds them and to enjoy arbitrary rule. If these incentives are not managed stably, the constitutional court/tribunal can become an ally or supporter of the political power. Poland has failed to do so, causing a constitutional court/tribunal crisis. In this article, we focus on the institutional aspects. The Polish system gave the parliamentary majority a monopoly on the composition of the court/tribunal and did not provide sufficient means for the opposition to check it, which made it easy for the parliamentary majority to mold the court/tribunal into its political cronies. This paper is on the position that this case can serve as a lesson for improving our system. Also noteworthy in the Polish case is the constitutional court/tribunal's response to several legislative attempts to undermine it. This article considers possible solutions for our constitutional court system by analogizing this situation to our own.

Unwritten rules shaping the EU's ‘form of government’: A study of conventions and their constitutional implications

The debate on the conventions of the constitution has led to a variety of tools for analysing institutional practices in national governments. Few attempts have been made to identify relevant political rules in the EU's ‘form of government’. This paper argues the applicability of the conventional theory in understanding the EU's most recent constitutional developments by comparing the common law and continental understandings of conventions. It highlights the different features attached to conventions in various national experiences and offers a fresh view of them to take the most out of this notion, long forlorn in EU studies. Using three practical experiences (trilogues, parliamentary hearings for Commissioners-designate and the Spitzenkandidaten practice), the paper shows how unwritten rules can shape the EU's political or material constitution up to the point of bringing concrete informal changes without any formal Treaty amendment.

Role of reservation for women in rural political institutions and constitutional implications

Role of reservation for women in rural political institutions and constitutional implications