Judicial Research Articles

THE DOCTRINE OF LIMITED GOVERNMENT IN THE LEGAL POSITIONS OF THE CONSTITUTIONAL COURT OF UKRAINE

Background: The essence of a constitutional system lies in two key aspects: limiting state power and ensuring the supremacy of rights, particularly the protection of human rights and freedoms. Without mechanisms to limit state power, the state inevitably encroaches on society and the private lives of individuals, threatening their rights and freedoms. The evolution of constitutional systems in liberal-democratic countries has been closely tied to strengthening civil society and developing tools for controlling state power. Historically, this evolution has moved from an absolute state, where the state was the sole owner and source of power, to a liberal-democratic state, where the state serves the people and civil society. Alongside this historical shift, there has been a transformation of individuals from being mere cogs in the machinery of state power to becoming citizens of a constitutional state, demanding that the state exercise restraint to safeguard individual freedom. One of the central ideas of constitutionalism is the principle of limited government. This article aims to analyse the legal positions of the Constitutional Court of Ukraine concerning the doctrine of limited government. In particular, it explores how the Court interprets key elements of this doctrine, such as the rule of law, the separation of powers, the rights of individuals and citizens, and the doctrine of constituent power. These and other related issues form the core of the research presented in this article. Methods: The study employed several methods to examine the doctrine of limited government, its elements, and the legal positions related to this issue. The system-structural method was used to characterise the concept and content of the doctrine of limited government and its key elements, including the principle of the rule of law, the principle of separation of powers, the rights of individuals and citizens, and the doctrine of constituent power. The logical-legal method facilitated an understanding of the perspectives of scholars on the formation and development of the doctrine of limited government, as well as their views on the content of its elements. Additionally, legal methods such as examining constitutional texts, primary legislation, and case law were employed to analyse the legal positions of the Constitutional Court of Ukraine. Results and Conclusions: The study examines the historical development and current state of the concept of limited government, exploring its connections with the doctrine of constituent power, the principle of the rule of law, the concept of human rights and freedoms, and the principle of the separation of powers. The primary conclusion is that the legal positions of the Constitutional Court of Ukraine regarding the doctrine of limited government, a key pillar of modern Ukrainian constitutionalism, have been systematically reviewed. It has been established that the Constitutional Court of Ukraine has consistently affirmed the essential elements of the doctrine of limited government from its inception. These elements form the doctrine of constituent power and the fundamental principle of constitutionalism, emphasising the necessity of limiting state power to safeguard human rights and freedoms. Furthermore, the Court upholds the view that the organisation and exercise of state power based on the division into legislative, executive, and judicial branches is not an end in itself but is intended to ensure the protection of individual rights and freedoms.

Alternative dispute resolution: Mediation as a model

Background The topic of Alternative Dispute Resolution (ADR) in civil and commercial contexts presents a contemporary legal challenge aimed at fostering equitable solutions. Among ADR methods, mediation stands out for its ability to reduce time, costs, and litigation duration. This study explores the conceptual framework, essential conditions, and procedural aspects of mediation. It evaluates the sufficiency, regulation, and effectiveness of mediation principles in conflict resolution and risk mitigation. Methods This study is conducted through a comprehensive review of current literature on Alternative Dispute Resolution methods, with a particular focus on mediation as an alternative to dispute settlement. The study utilizes qualitative analysis techniques to examine the effectiveness of mediation principles and their application in resolving civil and commercial disputes. Comparative analyses are also conducted to extract useful insights from various legal systems and authorities. Results The study provides an analysis that illustrates the effectiveness of mediation in resolving disputes, emphasizing its potential benefits in terms of time and cost savings, as well as its srole in facilitating amicable resolutions. The results of this study shall contribute to the current body of knowledge on mediation and provide practical recommendations for its application in diverse legal contexts. Conclusion In conclusion, the study proposes strategies to enhance mediation practices, promote a culture of its adoption, and integrate it more closely into the judicial system. Additionally, it anticipates the future effectiveness of mediation in jurisdictions lacking comprehensive legislation, drawing from successful Western experiences to guide potential developments in Arab legal frameworks.

Managing courts in competitive authoritarian regimes

Abstract More than a decade of democratic backsliding has turned Hungary into a competitive authoritarian state. The government has initiated many judicial reforms to exert control over the judiciary, yet needed to maintain plausible deniability due to formal international and constitutional standards of judicial independence. Based on interviews with Hungarian judges and experts for the judicial system, we explore techniques of managing the courts. In particular we study mechanisms of co-optation and soft repression and explain why the resistance of judges was weak. We find that a complex web of informal patronal politics undermines judicial independence in practice. Moreover, the regime fosters competition between three clients who are entrusted to manage and control the judiciary: the heads of the Supreme Court (Kúria), the National Judicial Office, and the Constitutional Court. Their resources and power ebb and flow with their reliability and performance. We conclude that competitive authoritarian regimes can maintain formally independent judicial institutions by delegating and incentivizing control over the judiciary. They thereby escape measurement, maintain plausible deniability, and evade international pressure.

Assessing Public Trust in Ghana’s Courts

Abstract Much of the research on public trust in courts focuses on countries with strong rule of law traditions and clear judicial norms. Less is known about such attitudes in young democracies with developing judicial institutions. To address this, we examine public confidence in Ghana’s court system. Ghana’s courts have faced various scandals, from judges’ personal conduct to separation of power conflicts. Using Afrobarometer data, we evaluate public attitudes toward Ghana’s courts. We find that Ghanaians generally have low trust in their courts, with factors such as partisanship, education, standard of living, and gender strongly influencing trust.

Do Citizens in Backsliding Democracies Support International Courts’ Judicial Power? Evidence from Hungary

Do Citizens in Backsliding Democracies Support International Courts’ Judicial Power? Evidence from Hungary

Analyzing the Causes of the Slowdown in Economic Growth--From the Perspective of the Economic System

Following the conclusion of the Second Cold War, the economic landscape of the Soviet Union experienced a significant decline, in stark contrast to the rapid growth observed in its competitor, the United States. Even Russia, which implemented reforms via "shock therapy," not only failed to reverse the economic downturn during that period but also faced adverse effects from international lobbying due to the hasty liberalization of its capital account. In essence, Russia's current economic system still favors the extractive approach, which is reflected in the government's control of the main distribution of resources, small and medium-sized enterprises (SMEs) account for a small proportion of output, which in turn inhibits the enthusiasm and creativity of the labor force. Conversely, the United States, Japan, and Singapore safeguard private property rights via the judicial system and foster the growth of private enterprises through strategic policies or government-driven initiatives. By comparing the impact of countries adopting extractive and inclusive economic systems on their economic situation, this paper argues that developing countries need to ensure the independence of legislation when switching to an inclusive economic system so that private property rights can be protected from a legal perspective. Simultaneously, it is essential to restrict government involvement in the market via the state-owned sector to maximize the preeminence of the private economy.

An Analysis of the Evidentiary Value and Implications of an Accomplice Witness in the Criminal Justice System of Pakistan

The study aims at analysis the legal frameworks which are associated with accomplice liability in order to the ethical issues regarding the accomplice testimony as well as the procedural protections granted to such witness. The main objective of this study is to compare and analysis the performance of Pakistan Legal System keeping an eye on justice and rights of the accused in the desired cases under the provision of Qanun-e-Shahadat Order, 1984 (QSO) and the Criminal Procedure Code, 1898 (CrPC). By using qualitative research approach to answer the research questions using IRAC method for the analysis of case judgments, this study finds out some of the challenges as including; the credibility of accomplice evidence, the need to corroborate the accomplices and the ethical issues that surround compelled or prompted cooperation. The results indicate the needs for amendments of legal frameworks regarding the accomplice witness. Therefore, the study makes a finding that whereas Pakistan’s legal system provides the basic necessary protection; there is a need to reform on corroboration provisions, education for judges, and procedural protections of fairness. Suggestions include increasing legal certitude, strengthening the legal supervision of judicial power and raising legal consciousness of people.

Fathers’ Experiences of Negotiating Co-Parenting Arrangements and Family Court

Background: this study builds on existing research on fathers’ experiences of family breakdown, separation, and post-separation abuse, exploring the systemic challenges they face in negotiating co-parenting arrangements. Methods: using data from a survey of 141 fathers and interviews with 30 participants, we examined the dynamics of post-separation co-parenting, particularly focusing on how fathers perceive and navigate family court systems. The data were analysed using reflexive thematic analysis to identify key themes. Results: the findings highlighted two primary themes: the difficulties that fathers face in establishing equitable co-parenting arrangements and their negative experiences with family courts, including perceptions of gender bias and systemic inefficiency. Conclusions: the results indicate a need for greater support mechanisms post-separation to facilitate healthier co-parenting relationships and minimise reliance on adversarial court processes. Furthermore, the research underscores the importance of addressing gender stereotypes within family law and social services to ensure more just outcomes for fathers and their children.

Quarantined Justice, Compromised Diversity: Barriers to Disability Inclusion in China’s Public Sector Employment

Under the advocacy for diversity and inclusion within Chinese society, the judiciary has become a significant institution for the protection of marginalized groups, especially disabled people. Through proactive power expansion, the Supreme People’s Court has played a crucial role in scrutinizing employment discrimination in the private sector. However, the judiciary has paid less attention to the fact that government agencies failed to consider the value of workplace diversity and maintained ableist standards that preclude many disabled candidates from public sector positions. Due to the intrinsic political embeddedness within Chinese judicial systems, courts tended to adopt a strategy known as “quarantined enforcement” when confronted with discriminatory recruitment clauses issued by government‐tied entities. Social and political factors collaboratively shaped the intersectional marginalization of the disabled community in China. This article attempts to move beyond traditional legislative‐centric approaches and emphasize the judiciary’s role in minimizing the marginalization of disabled people. It argues that eliminating political barriers within the judiciary is crucial for achieving workplace diversity and employment equality.

Resolving Mining Disputes in Tanzania: An Examination of The Role of Arbitration

Disputes are an inevitable aspect of socioeconomic activities, and the mining sector is no exception. As one of the most important sectors of Tanzania's economy, mining often witnesses conflicts between various stakeholders, including government entities, mining corporations, local communities, human rights defenders, and environmental activists. Given the significance of this sector, establishing effective dispute resolution mechanisms is essential for ensuring its sustained growth and prosperity. This paper examines the role of arbitration as a key mechanism for resolving mining disputes in Tanzania. Arbitration, as an alternative dispute resolution (ADR) method, provides parties with the opportunity to resolve conflicts outside the traditional court system through a neutral third party. The paper also explores the challenges of using arbitration in mining disputes and suggests ways to improve the arbitration system in Tanzania.

Failure of Judicial Independence is the Failure of Doctrine of Trichotomy in Pakistan

In Parliamentary form of Government, the independence of judiciary is just a dream, as direct involvement of politicians and other established institutions can be observed in it. The concept of separation of powers given by Montesquieu though based upon logics but cannot be implemented without the principle of check and balance. The notion of term ‘justice’ generally springs the idea of court and notion of term ‘court’ brings about the concept of a ‘Judge’; a neutral, un-biased, upright, honest, a person of integrity presiding the court chair. Judge is a protector of public’s interest and a canon of hope in demise. Appointment of judges is a primary factor which effects the independence and performance of judicial bodies. This appointment should be free from every kind of influence and interference so that the administration of justice is not hindered. Any external influence in the appointment procedure automatically makes the appointed judge slightly biased, which may be due to various factors like fear, favor, and indebtedness. The appointment procedure which the law gave after 18th and 19th amendment may be such that it gives an influence-free effect but practical applicability differs from the provisions in law due to some prevalent informal practices. The recent 26th amendment has paved way to more interference from the executive branch in the appointment procedure, resulting in curtailed independence of judiciary. A scrutinized and transparent system of appointment based on merit and certain legislative reforms needs to be introduced and implemented in the society to foster justice system and ensure independence of judiciary.

Everyone Is Safe Now: Constructing the Meaning of Data Privacy Regulation in Vietnam

Abstract This article explores Vietnam’s distinctive approach to data privacy regulation and its implications for the established understandings of privacy law. While global data privacy regulations are premised on individual freedom and integrity of information flows, the recent Vietnamese Decree 13/2023/NĐ-CP on Personal Data Protection (herein PDPD) prioritise state oversight and centralised control over information flows to safeguard collective interests and cyberspace security. The fresh regulatory logic puts data privacy under the regulation of government agencies and moves the privacy law arena even further away from the already distant judicial power. This prompts an exploration of the nuances underlying the ways regulators and the regulated communities understand data privacy regulation. The article draws on social constructionist accounts of regulation and discourse analysis to explore the epistemic interaction between regulators and those subject to regulation during the PDPD’s drafting period. The process is highlighted by the dynamics between actors within a complex semantic network established by the state’s policy initiatives, where tacit assumptions and normative beliefs direct the way actors in various communities favour one type of thinking about data privacy regulation over another. The findings suggest that reforms to privacy laws may not result in “more privacy” to individuals and that divergences in global privacy regulation may not be easily explained by drawing merely from cultural and institutional variances.

The Separation of Powers in Ghana a Mirage? Examining the Excess Power of the Executive Arms of Government of Ghana

This study explores the extent to which the executive arm of government in Ghana exercises excessive power, undermining the principle of separation of powers and its implications for democratic governance. The objective is to evaluate the discretionary powers of the President in appointing key officials and to understand its impact on the autonomy of the legislative and judicial branches, political patronage, institutional effectiveness, and public trust. The methodology involved a comprehensive review of Ghana’s Fourth Republic Constitution (1992) and relevant literature to assess the legal framework and practical manifestations of executive dominance. The study critically analyzed the appointment powers vested in the President, including the roles of the Council of State, Parliament, and other advisory bodies. The results indicate that the President’s extensive appointment powers, as enshrined in the Constitution, significantly compromise the independence of other branches of government. Key appointments, such as those of the judiciary, ministers, and heads of public institutions, are heavily influenced by the executive, leading to a politicized public service and weakened institutional checks and balances. The practice of Winner-Takes-All (WTA) politics exacerbates this issue, fostering political exclusion and undermining democratic inclusivity. The conclusion highlights the need for constitutional reforms to decentralize appointment powers and enhance the role of independent bodies in the selection process. Strengthening parliamentary oversight and promoting merit-based appointments are recommended to ensure transparency, accountability, and the rule of law. Addressing these challenges is crucial for restoring public confidence in Ghana’s democratic institutions and promoting good governance.

دور الصحوة الإسلامية في تهذيب القضاء العشائري عند بدو جنوب فلسطين ومستقبله في ضوء تطور مفاهيم العولمة

In the Arab world in general, and in many regions of Palestine, a set of tribal and clan customs and traditions prevailed for many decades until they became an integral part of the judicial system in these regions and countries. The study aimed to highlight the issue of the Islamic awakening and its role in refining the tribal judiciary among the Bedouins of southern Palestine and its future in light of the development of globalization concepts. The researcher used the forward-looking analytical approach in his discussion of the topic, based on several personal interviews with notables in the region. The study revealed several results. Among them are that the Islamic awakening refined the tribal judiciary, dressed it in the guise of religion at times, heavily resisted those who violated the Sharia, and supported those that were compatible with the Sharia. However, its impact on it is still weak. The study also showed that globalization plays a destructive role against the tribal judiciary if we do not protect ourselves from it, and a beneficial role for it if we choose well what we need from it without taking everything that it offers as a whole. The study came up with recommendations, including: the need to benefit in the future from openness to the other world through globalization, so that tribe members can communicate with each other and with others, whilst ensuring that people are protected from being affected by the negative culture of others.

Gender Dynamics and Women’s Decision-Making Power in Local Governance: A Study of Development in Surkhet

This paper explores the gender dynamics in local governance, particularly focusing on women’s development decision-making for sustainable development, equal representation, and creativity, reducing conflicts and improving decision-making process for both women and society. However, a lack of effective women’s involvement in local government decision-making is hindering the attainment of democracy and equal representation for all citizens. This paper has utilized a mixed-methods research design, combining quantative and qualitative data sources by using both primary and secondary data. In Nepal, the federal Constitution 2015 has significantly enhanced women’s political participation, highlighting their crucial role in political, socioeconomic, and developmental activities for improving the quality of life. However, women’s participation in planning, implementation, and evaluation process is still in the infancy stage. The lack of education, political commitment, existing social structure, and judicial systems are the primary reasons for the inability to enhance their political rights. The paper proposes the implementation of policy advocacy and awareness programs aimed at enhancing women’s involvement in decision-making processes, especially marginalized women in rural municipalities of Surkhet.

IMPACT OF LEGISLATIVE CHANGES ON THE FINANCING OF JUDICIAL ACTIVITIES IN UKRAINE

Judicial activity in Ukraine involves the examination and resolution of contentious issues related to the protection of rights, restoration of violated rights, cessation of rights violations, and application of legal influence measures. All these require appropriate resources, not just informational but also financial and material. The levels of funding depend on the judicial authority financing programs and state budget projects. In other words, changes in legislation will directly affect the volumes and timelines of funding for judicial activities. Conducting an in-depth analysis of scientific and practical literature, our goal was to identify and assess the level of impact of the latest legislative changes on the funding volumes for judicial activities in Ukraine. The object of the study is judicial activity in Ukraine. We believe that the assessment of legislative changes requires the involvement of relevant experts in law and beyond. Therefore, with the help of experts and the applied structuring technique, the weight of the impact of certain legislative changes on the amount of funding for judicial activity in Ukraine is ranked.However, determining which impact is most significant is just one of the outcomes. Additionally, measures for the judicial system's response/adaptation to the most significant changes were proposed. The limitations of the study relate to the fact that the legislative changes identified in the work are not constant and stable. In the future, there will be new changes requiring a new approach to evaluation and response.

The Role of Artificial Intelligence in Judicial Systems

The problem we tried to solve relates to the application of artificial intelligence in the legal and judicial system. Given the fact that artificial intelligence (AI) is increasingly taking precedence in various areas of human existence and work, it is an undoubted fact that the legal and judicial systems have not been left out either. It is precisely for this reason that the current state of the use of artificial intelligence in the judicial system, as well as potential new solutions, was first reviewed. In addition to the current one, we focused on the application of artificial intelligence in the legal and judicial system, especially in the domain of decision-making. In this regard, in this paper we propose the use of explainable artificial intelligence, which increasingly takes place when dealing with systems in which the precision and clarity of the parameters on the basis of which a decision is made are of great importance. Looking at the advantages of using explainable artificial intelligence in the decision-making process, one gets the impression that the application of such a model of neural networks can provide the necessary and sufficient conditions for the legal system to accept the use of artificial intelligence in decision-making in the judicial system.

Judicial Statutes of 1864 and Criminal Proceedings: Historical Role and Legacy

The article reveals from a modern perspective, the historical role and significance of the Judicial Statutes adopted on November 20, 1864, which were the roots of the historical process that laid the foundation for the establishment of democratic principles of Russian criminal procedure. Among the complex phenomena and events of the judicial reform, which affected the fate of criminal proceedings, the most important will be the formation of the system and mechanism of criminal proceedings as the embodiment of judicial power, the establishment and development of the institution of jury trial as a national historical phenomenon in the Russian criminal process, the transition to the formation of a new for that era mixed historical form of criminal proceedings, as well as the introduction of true differentiation of criminal proceedings

Law Enforcement of Indonesian National Army Soldiers Who Commit Criminal Acts Against Superiors

This research focuses on the legal enforcement against members of the Indonesian National Army (TNI) who commit the crime of insubordination. Insubordination, defined as defiance or resistance against superiors, is regulated under Articles 105-109 of the Military Criminal Code (KUHPM). This study examines the judicial process in Military Court III-19 Jayapura, specifically related to cases of soldiers disobeying orders from superiors through violent actions. Using normative and empirical legal research methods, this study aims to illustrate how legal mechanisms are applied in military violation cases, particularly in acts of insubordination. The analysis is based on court rulings where the offenders, low-ranking soldiers, were tried and sentenced according to the KUHPM. The results show that while there is a consistent pattern in sentencing, disparities in punishment remain due to various factors such as the severity of the offense and the discretion allowed within the military judicial system. This study recommends clearer guidelines to minimize differences in sentencing and ensure fairness in military justice.

Қазақ даласындағы билер сотының тарихи және философиялық негіздері

This article examines the historical and philosophical foundations of the Biys' Court in the Kazakh steppe. The Biys' Court occupied a unique place in the legal culture of the Kazakh people. Its activities were not limited to making legal decisions but were also aimed at protecting social and spiritual values. The principles of justice, humanity, wisdom, and collective responsibility are analyzed, highlighting the role and authority of biys during the Kazakh Khanate. The influence of biys on the internal and external policies of Kazakh society, their high moral standards, and impartiality are emphasized. The authors underscore that the Biys' Court drew inspiration from the traditional philosophy of the Kazakh people, particularly from the concepts of wisdom and harmony, and analyze how this judicial system contributed to maintaining the unity of the people. The article also explores how the spiritual essence of the Biys' Court influences the modern national legal system and cultural values