Constitutional Limits Research Articles

Limiting Freedom of Religion in a Pandemic: The Constitutionality of Restrictions on Religious Gatherings in a Response to COVID-19

Restrictions on religious gathering as a response to the COVID-19 pandemic are a contentious issue. This article surveys the measures restricting religious gatherings and the legal challenges to those measures. There are three principal arguments that restrictions on religious gatherings are unconstitutional: (1) they lack instrumental rationality; (2) they are discriminatory; and (3) their deleterious effects outweigh their salutary effects. While the restriction measures likely limit section 2(a) and potentially section 15(1) rights under the Charter, these limits are justified because less restrictive alternatives to the measures are not equally effective, the measures are non-discriminatory, and their contribution to protecting Canadians from illness and death outweigh their deleterious effects. The article concludes with recommendations for future government measures directed at religious gatherings.

Crise Democrática Brasileira e Disfuncionalidade e o Direito – À Liberdade de Expressão: Críticas ao Discurso de Ódio Sob o Viés da Teoria do Discurso Jurídico Habermasiano

A pesquisa centrou-se no conceito de justiça para Aristóteles, tendo por objetivo perquirir as bases históricas e filosóficas desse pensamento e contextualização com instituições existentes em Atenas e na Grécia na sua época, bem como o arcabouço político que permitiu o surgimento de suas teorias. Além disso, partindo da justiça como algo antropológico e não mais vinculado à religião, teve como intenção investigar as diversas noções de justiça para o filósofo, como justiça política, qual seja, aquela derivada da relação entre homens, estabelecida pelas leis. Ademais, centra-se na justiça distributiva, teleológica e justiça corretiva. Os resultados encontrados, por meio de pesquisa bibliográfica, de enquadramento histórico-contextual e de análise semântico-conceitual de textos filosóficos, demonstram que a evolução da noção aristotélica de justiça forjou tanto uma fundamentação revolucionária para a época em questão quanto uma tradição clássica de pensamento que esclarece as vinculações contemporâneas entre o Direito e a Ética.

Ograniczenia wolności wypowiedzi z uwagi na przesłankę „ochrony zdrowia”. Kilka uwag inspirowanych pandemią SARS-CoV-2 w Rzeczypospolitej Polskiej

There is no question that “health protection” is the premise for the establishment of constitutional restrictions on rights and freedoms. It has been so far the subject of legal science only exceptionally and occasionally; mainly in the context of restrictions on the freedom of economic activity. It was only the SARS-CoV-2 pandemic in the Republic of Poland that brought a wider interest in this category, referring it also to the limitations of another fundamental freedom – freedom of expression. Considering the above, the analysis of legal limitations on the freedom of expression, imposed on the basis of the premise of health protection, seems to be by all means justified and purposeful.

Teoria do Caso como Método para a Fundamentação das Decisões Judiciais Criminais

O presente artigo tem como objetivo analisar o potencial uso do método da teoria do caso na fundamentação de decisões judiciais criminais. Apesar de parte da doutrina pesquisada enfatizar que a teoria do caso seria uma ferramenta exclusiva da acusação e da defesa, nunca do juiz, investiga-se a hipótese de, perante a legislação brasileira, a exigência de fundamentação das decisões judiciais propiciar a utilização, dentro de limites constitucionais, da teoria do caso na elaboração da sentença criminal. O principal método de pesquisa foi o de direito comparado, destacando-se o estudo da teoria do caso em países de língua espanhola que contêm previsão legal a seu respeito. Privilegiou-se, ainda, tais países, pelo fato de pertencerem ao sistema de civil law, mais compatível com o brasileiro. Examinou-se, também, a doutrina nacional sobre o tema, mais escassa, haja vista a ausência de previsão legal específica sobre a teoria do caso no Código de Processo Penal pátrio. Como resultado da presente pesquisa, concluiu-se que tal metodologia, a despeito de não expressa na lei, pode ser utilizada pelas partes e também pelos juízes, observando-se, para os últimos, as limitações próprias do sistema acusatório.

Constitutional and legal limits of the exercise of state power in modern Russia

The legislative innovations introduced into the Constitution of the Russian Federation in 2020 required the reform of the legal understanding of the concepts of “state power”, “public power”, and, in addition, led to the realization of the existence of the phenomenon of “public power”. The Constitutional Court of Russia, through an expansive interpretation in unison with the legislator, explained the structure of the unified public authority, which today includes both the system of state authorities and local self-government bodies. At the same time, the purpose and objectives of public administration were clarified, the implementation of which in a truly legal and democratic state is possible only if the limits of designated public administration formulated in the Basic Law of the country are not violated.

Komparasi Bentuk Negara dan Batasan Kekuasaan pada Konstitusi di Indonesia, Amerika Serikat, dan Swiss

Various countries of the world certainly have constitutions, since constitutions are one of the first few conditions for the establishment and development of an independent nation, and so is its genes in countries' existence. Constitutions are enacted in countries around the world including Indonesia, the United States, and Switzerland. Indonesia became interesting to study. The United States, and Switzerland are countries of the world that have a constitution. The constitution became essential to Indonesia, the United States, and Switzerland. Indonesians. Research used the normative- juridical kind of study to find rules of law, principles of law, or legal doctrines to provide answers to the legal issues at hand. The first will be discussed on the constitutionality of the state. According to the constitution Indonesia acknowledges the existence of a united state. While the federal system structure of the United States has developed over a long period of time. While in Switzerland, the constitution and federal laws ensure cantonese autonomy with the principle of subsidies ensure that all duties not explicitly assigned to the federal level are in cantonese responsibility. The next aspect considered is the difference between constitutional restrictions and supervision of power in Indonesia, the United States, and Switzerland.

Constitutionality of Restrictions on Freedom of Assembly during the COVID-19 Pandemic in Poland

Abstract Since the beginning of the pandemic, the Polish government has repeatedly imposed restrictions or a total ban on the freedom of assembly. A total of five different restrictions to this right were announced during this period, from a total ban on organizing and participating in assemblies to allowing assemblies in limited groups (150, 50, 5 and 2 persons). The restrictions were introduced each time by an ordinance, a legal act of a lower rank than the law. The government, wrongly, justified the authority to introduce such restrictions with the provisions of the act on preventing and combating infections and infectious diseases among people. In this paper, the author demonstrates that the ban on the organization of and participation in assemblies was introduced without a proper legal basis – by means of an ordinance instead of a statute – and contrary to the provisions of Article 57 and Article 31(3) of the Polish Constitution. The author also points out that as a result of the defective regulation, citizens have the right to refuse to accept criminal fines imposed by the police, pursuant to Article 54 of the Petty Offence Code, during assemblies. In the author’s opinion, no circumstances, not even extraordinary ones, can justify the failure of authorities to observe the provisions of the Polish Constitution. Such a failure leads to a violation of the principle of individual trust in the state, legal certainty and security, and consequently the clause of a democratic legal state.

Treaty rigidity and domestic democracy: Functions of and constitutional limits to democratic self-binding

AbstractInternational treaties create a layer of law that is particularly hard to change: While modern treaties entail significant constraints on domestic law-making, amendments require a new consensus of state parties. This creates a conflict with a core aspect of democratic constitutions: the power of new majorities to revise the laws made by their predecessors. In particular, several obligations of international economic law, namely regulatory stability promises in investment protection treaties, but also criminalization requirements under the UN drug control conventions face critique for overly diminishing domestic policy space. How can democratic constitutions deal with those tensions? One approach that is common in some countries accepts a power to legislate in violation of treaty obligations. But denying treaties the quality as real law in the domestic sphere risks to undermine the benefits of the instrument without truly solving the democracy concerns. Instead, democratic constitutions can be read to entail certain standards for engaging in treaties, namely (i) procedure-related duties to include denunciation clauses and political reform mechanisms in the treaty, and (ii) the need to establish a substantive justification for treaty constraints on future domestic law-making by legitimate aims of international constitutionalism or co-operation.

Trump’s Peace Plan

Since the 1960s, the US foreign policy has been characterized by relative stability in interaction with the dynamics of the Palestinian conflict. Well-established American institutions, legal, constitutional and political restrictions, and various groups of interests and pressure, especially the Jewish lobby, research centers, media, and American public opinion, which mostly support the Israeli point of view, are the important factors in developing and defining the foreign policy of the United States. One more factor relates to international and regional shifts. As the Palestinian-Israeli conflict was going on, and since the signing of the Oslo Accords in the early 1990s, the first issue among the priorities of successive US administrations in the Middle East until regional developments imposed other priorities as a result of the events of September 2001, and the subsequent occupation of Iraq in 2003. The emergence of Al Qaeda, the turmoil of the Middle East region and the disturbance of its political, social and religious structure coincided with the emergence of the so-called Arab revolutions of 2011 and extremist jihadist organizations such as the Islamic State in Iraq and the Levant. Therefore, the role of Trump administration was determined by developments within the US on the one hand, and by the interaction of events in the Middle East region on the other hand.

The Constitutional Limits of Anti-Trafficking Norms in the Commonwealth Caribbean

Trafficking in persons is a crime and a human rights violation that affects most states across the globe, including those in the Commonwealth Caribbean. There- fore, in the last twenty years, governments have rushed to enact anti-trafficking laws with a level of alacrity the international community has never seen before. While the enactment of these laws is both necessary and desirable, some have pushed the limits of what is constitutionally permissible in a free and democrat- ic society. This article demonstrates that some of the prosecution provisions of anti-trafficking norms enacted by Caribbean governments have encroached or threaten to encroach upon the constitutional rights of accused persons. It concludes that unconstitutional provisions of regional anti-trafficking laws need to be addressed by regional governments as a matter of urgency, as they can potentially be challenged by traffickers with the result being that, if successfully challenged, traffickers may escape liability for crimes they have committed on mere technicalities.

Pitchfork bifurcations in simple hyperelastic orthotropic arterial models and their constitutive implications

This paper is concerned with the response of orthotropic hyperelastic incompressible materials in the homogeneous deformation of simple tension. The problem of out-of-plane simple tension of a cuboid reinforced with two in-plane families of mechanically equivalent initially straight fibres is considered. For this deformation, the material characterisation test where the normal in-plane stresses are equal is examined. Analytical results are obtained for the special case of orthonormal fibres that is where the fibres are initially perpendicular to one another in the undeformed state. It is shown that in this case, there are two distinct solution branches namely the symmetric solution in which the in-plane stretches are equal and an asymmetric solution where this is not the case. The results are illustrated for two specific strain energy densities one of which has been used to model the mechanical response of arteries. For these two models, the asymmetric solution is shown to be energetically favourable at a sufficiently large critical out-of-plane stretch. For small enough out-of-plane stretch, for weakly anisotropic materials, the symmetric solution branch is unique and stable while beyond this critical stretch, this solution is unstable and a pitchfork bifurcation into two stable asymmetric branches is demonstrated. For slight departures from orthonormality of the fibres, a numerical approach is used for one of these models to demonstrate that the response undergoes a significant change. A constitutive restriction is suggested that eliminates the general non-uniqueness demonstrated in this work.

Tax My Ride: Taxing Commuters in Our National Economy

Located on the scenic St. Croix River, Hudson, Wisconsin is just a half-hour drive from the major metropolitan area of Minneapolis and St. Paul - "the Twin Cities" of Minnesota. Hudson is, therefore, a popular "bedroom" community for Twin Cities' workers. Those commuters, the Wisconsin residents who work in Minnesota, face taxation by two sovereign states: They are taxed by the state of Wisconsin on the basis of their residency in Wisconsin, and they face taxation by Minnesota on the income that was "sourced" or earned, in Minnesota. It is well-settled that both states are entitled to tax at least some portion of our Wisconsin commuters' incomes. What is less settled is the constitutional limit of the "double" taxation that can occur when two states claim to be the source of income, a situation that is happening with increasing frequency in our increasingly mobile, and telecommuting, population. If, for example, a Wisconsin resident worked for a Minnesota employer, but occasionally worked from home, both Wisconsin and Minnesota could claim to be the source of the income. If both states claim to be the source of the income, the commuter will be taxed twice on that portion of her income, a result that doubtless seems markedly unfair to our commuter. The question this article explores is becoming increasingly pressing. Demographic and work place trends, along with increasingly aggressive state revenue collection practices, combine to predict that the question of fair apportionment of individual taxation will only grow in importance.The article begins with a comparison of state taxation of individual and business income. Part II proceeds to explore the relevant constitutional norms: the dormant Commerce Clause and the Privileges and Immunities Clauses of both Article IV and the 14th Amendment. Part III synthesizes these Constitutional norms and their application to commuters. Part IV concludes with a discussion of the growing importance of this question and the avenues for possible resolution.

Traditional Administration and its Impact on Democratic Governance in Africa “The Nigerian Experience”

Democratic governance is undoubtedly adjudged to be the most acceptable instrument through which people can be better served and administered for sustainable development. Even though traditional institution has been the indigenous governance instrument long before the advent of modern democracy, it is a framework that survived and believed to have tremendous impacts on the modern democratic process and governance in Nigeria. This paper therefore examines the relationship inherent between the traditional institutions and the modern democratic process of governance in Africa with particular reference to Nigeria. The research is a survey type which relies on available literature on governance, close observations and discussion with intellectuals and experts on governance generally. The paper finds a close relationship between the traditional administration and the democratic governance processes in Nigeria. This relationship by way of impacts on democratisation process is seen in the following ways; despotic disposition to leadership, personalisation of the instruments of governance, apparent disregard for constitutional limitations of tenure, masculinisation of leadership, class domination and promotion of political hegemony. The paper concludes that there is a dominance of such traditional administration values among Nigerian politicians and leaders. The paper recommends a systemic restructuring, systematic but aggressive mass reorientation and sensitisation about the true democratic culture and value as against the old order, promotion of equal opportunities for all, mass literacy campaign against despotism and personalisation of instruments of governance, promotion of transparency and accountability amongst others, for good governance and sustainable development.

Incentive pay for policy‐makers?

AbstractWe study how to efficiently motivate policy‐makers to solve political multitask problems. Political multitask problems typically have some outcomes that are difficult to measure. Moreover, there are conflicts among citizens about optimal policies and policy‐makers have the power to tax the citizens to invest in better outcomes for some tasks. We develop a political agency model with two tasks and only one measurable outcome. In such an environment, policy‐makers choose socially inefficient public good levels and expropriate minorities. A judicious combination of constitutional limits on taxation and incentive pay for policy‐makers is second‐best. Incentive pay is conditional on the public good level.

Algorithmic Policing Technologies in Canada

Canadian law enforcement agencies are applying algorithmic technologies to identify individuals at the regional, provincial, and federal levels. These technologies connect templated facial images to an array of informational fragments that are collected from databases scattered between the public and private sectors. While that is the case, these surveillance technologies continue to be authorized under SCC jurisprudence, as opposed to legislation enacted by Parliament. Algorithmic technologies collate and analyze disparate information from public and private databases to identify patterns, which are then used to generate formulas to ‘predict’ future trends. Kate Robertson and colleagues explain that implementation of APTs by Canadian police services holds serious deleterious potential for the Charter rights of Canadians, with consequences that disproportionately affect people of colour. Be that as it may, the most malevolent consequence of applying APTs may be their application of generalized formulas to generate recommendations used to intercept individuals based on biased and inaccurate information. Although not authorized by statute, surveillance technologies continue to be permissible under common law authorities. Richard Jochelson explains the inappropriate nature of this approach, arguing in the alternative that the court’s traditional role calls for application of the Oakes test to determine if state surveillant practices fall within its constitutional limits. Considering APT’s serious implications for Charter protected rights, this paper calls on legislators to implement dedicated legislation to govern the use of surveillant technologies in law enforcement, with a particular focus on regulating the use of APTs. Failure to do so risks an unprecedented expansion of prejudicial policing practices, which may act to crystallize the existing biases in law enforcement practices into objective ‘scientific’ outputs that may hold serious deleterious potential for Canada’s most vulnerable populations.

Constitutional Limits on the Imposition and Revocation of Probation, Parole, and Supervised Release After Haymond

Constitutional Limits on the Imposition and Revocation of Probation, Parole, and Supervised Release After Haymond

Editors’ Introduction

Editors’ Introduction

Vinculação hermenêutica: da mutação constitucional ao garantismo

In order to analyze the integration between Law, Economics and the divergence that arises from this relationship: the existence of different evolutionary times between them, we start with a specific case judged by the STF (constitutional limitation of interest, article 192, §3, of the Brazilian Constitution) that shows how the adoption of legal theories of interpretation and application of Law are influenced by ideological and economic conceptions. Based on these assumptions, the research analyzes Ferdinand Lassalle's observation about the disparity between social reality and the Law, reaching even the integrative theories of the Constitution, which bring about social discrepancy, accepting, therefore, a constant mutability, which it becomes political, influenced, as in the case analyzed, by economic power. Based on the deductive method, we identified the inadmissibility of this in view of the hermeneutic link imposed on the interpreter in the face of a political-legal command placed in the national system, which is why we point out in Luigi Ferrajoli's guaranteeism as a path, a priori, more suitable for the Brazilian interpreter. The work was developed through direct bibliographic and jurisprudential research.

The new constitutional provision for the protection of decent living and its implementation in criminal sanctions in Greece

After the constitutional amendment of 2019, a new constitutional provision (Art. 21 Para 1b Gr. Const.) provides the state's obligation to protect decent living. This provision belongs systematically to the field of social welfare rights, and its purpose is to enhance the protection of socio-economic rights. This paper argues that the same provision can also apply to the criminal system, mainly during the sentencing. Article 21 Para 1b Gr. Const. in conjunction with the human dignity principle (Article 2 Para 1 Gr. Const.) can enhance the rights of the sentenced in two ways: setting the constitutional limit of decent living protection during sentencing with non-custodial sentences and enhancing the right of judicial protection of those that serve custodial sentences under conditions that violate Article 3 ECHR.

Switzerland: The Government as Legislator in Direct Democracy – a New Boost for the Upgrade of Constitutional Jurisdiction at the Federal Level?

In Switzerland, it was mainly the Governments on the federal and the regional level that enacted the measures to fight the COVID-19 pandemic in the form of ordinances. Consequently, the formal legislation by the Parliaments and the People suffered a considerable loss of importance. Inspired by the far-reaching judicial review through the Federal Tribunal regarding to ordinances released by the Cantons, the question of extending constitutional jurisdiction at the federal level moved into the focus of legal policy. The analysis of the first leading decisions by the Federal Tribunal and some cantonal courts concerning the enactment of ordinances shows, on the one hand, that the constitutional limits continued to have their effect during the pandemic. On the other hand, however, functional weaknesses became apparent, as judicial protection could hardly be obtained in time for structural reasons.