Constitutional Protection Research Articles

Constitutional protection of the electoral system: Slovak Republic in a comparative perspective.

Constitutional protection of the electoral system: Slovak Republic in a comparative perspective.

Definitive basis for the constitutional protection of passive electoral rights in the Russian Federation

Relevance. The study of issues of protection of fundamental rights and freedoms of man and citizen since the birth of Russian constitutionalism and to this day is one of the key areas in legal science. The essence of constitutional protection of passive electoral rights in Russia belongs to the little-studied aspects of domestic constitutional law. In no small measure, a certain impetus for the present study was the tendentious scale of the loss of the status of candidates during the election campaign of 2021 for the election of deputies to the State Duma of the Federal Assembly of the Russian Federation.The purpose of the study is to update theoretical and practical approaches to the protection of passive electoral rights of Russian citizens, to conceptually clarify the definitive series that collectively affect the effectiveness of constitutional and legal protection of the declared subjective rights.Objectives: to analyze the conceptual foundations and structural components of constitutional protection in general and passive electoral rights in particular, taking into account the provisions of the general theory of law and branch science, legislation, interpretation of constitutional justice bodies.Methodology. Study was based on the dialectical method of cognition, as well as such general scientific and special research methods as: analysis and synthesis, induction and deduction, statistical, formal-logical and comparative-legal methods.The results of the study allowed to form the conceptual basis of the constitutional protection of passive electoral rights in Russia in the paradigm of constitutional and branch science, namely: to present the author's conclusions and generalisations about the interpretation of passive electoral rights of Russian citizens; their constitutional protection; functional orientation of its mechanism.Conclusion. The constitutional protection of passive electoral rights of Russian citizens is a law-supporting mechanism determined by constitutional provisions to prevent violations and eliminate obstacles in the implementation of the constitutional right of citizens to be elected to public authorities.

Limitations of Human Rights in the Conditions of War and Peace: The Constitutional Aspect

The article conducts a doctrinal analysis of the constitutional criteria for restrictions on human rights. The author asks whether the content and scope of these restrictions differ during the martial law period and during peacetime. It also questions whether the constitution allows the state to exceed its constitutional limits during an armed response to the aggressor. It is argued that the introduction of more severe limitations on human rights during martial law must be balanced with the constitutional requirement for the state to act in accordance with the constitution. Otherwise, disproportionate restrictions that nullify the core of constitutional rights could lead to state power exceeding the limits established by the constitution. The main criterion, or basis, for the doctrine of limiting state power by the constitution is the fundamental constitutional rights and freedoms. As the jurisprudence of constitutional courts shows, the core of constitutional rights that are not absolute (absolute rights are very few in modern constitutional systems—the right to dignity, the prohibition of torture, and the right to life) cannot be subject to any limitations, similar to absolute rights. A very important criterion, derived from the constitutions and practices of constitutional jurisdiction bodies of modern states, is that the state, when imposing limitations, cannot violate the essence of a constitutional right, i.e., its core, which is not subject to any legislative limitations for the purpose of constitutional protection of individual freedom and autonomy. It is asserted that the narrowing of the content and scope of existing constitutional human rights and freedoms constitutes their limitation, and limitations are permitted by the Constitution. It is concluded that the rights and freedoms listed in part two of Article 64 of the Constitution of Ukraine, and not subject to limitations, should be limited according to peacetime criteria, meaning they are not subject to extraordinary restrictions during wartime. As for other constitutional rights and freedoms not included in the list in Article 64 of the Constitution of Ukraine, stricter restrictions may be applied by the state if they pursue a legitimate goal and are justified by the need to achieve victory over the enemy.

Faith in the Balance: ASEAN’s Quest for Religious Freedom Amidst Cultural Diversity

Abstract This article examines the challenges ASEAN countries face in safeguarding Freedom of Religion or Belief (FoRB) within diverse cultural contexts. Using a qualitative approach, it first reviews international and regional frameworks to explore how ASEAN nations balance FoRB commitments with national sovereignty, revealing tensions between global standards and regional autonomy. It then compares constitutional protections across ASEAN, identifying themes in shared principles and varied implementations. The analysis identifies concerns hampering FoRB, including state religion designations, conditional protections, and discrepancies between constitutional ideals and practice. Issues like state involvement in religious practices, challenges to pluralism in single-faith societies, and diverse institutional strategies for FoRB oversight underscore the complexities involved. These findings suggest that the effective preservation of FoRB requires a nuanced approach that honours national sovereignty while safeguarding individual liberties.

Публично-правовая ответственность: оценка современных взглядов в контексте утверждающегося в конституционной практике инновационного подхода

The postulation of the modern state as legal at the same time means the ability of a citizen to make public legal claims to the government as a whole and its power institutions. In relation to modern Russia, the problem of legally correct (responsible) behavior of the state and the entire system of public authorities in relations with citizens is fundamentally new. For a long time, the prevailing ideology of immunity of the state and other powerful public legal structures from responsibility turns out to be very «tenacious» in relation to new state-legal realities. Accordingly, the problem of responsibility of the state and public authorities for the violation of fundamental human and civil rights and freedoms in the specialized literature is considered mainly in the context of positive legal (political) responsibility outside of protective and coercive tools. It is obvious that overcoming views rooted in theory and practice predetermines the formation of a well-established mechanism of legal responsibility of public authorities in the state legal system as the most important guarantee of constitutional and legal protection (and protection) of fundamental rights and freedoms, countering corrupt behavior of public law officials, and the formation of trust in government institutions in society among the broadest segments of the population. The study of the problem of public liability in this sense is indeed one of the priorities of modern legal science, is a kind of its response to the challenges of the developing constitutional practice of modern Russia.

Pretrial Failures in Ensuring the Merit of Cases: Critical Analysis and Innovative Reconstruction

Determining a suspect has serious implications for human rights because it has the potential to limit human freedom through arrest and detention. However, the pre-trial mechanism which should function to test whether the suspect's determination is valid or not is often ineffective because it is formal administrative in nature, moreover strengthened by Article 2 paragraph (2) PERMA No. 4 of 2016. This research uses doctrinal legal research methods to analyze legal theories and norms governing pretrial and evidence. The aim of this research is to explain the legal basis for pretrial judges' authority to examine formal aspects, analyze the implications of their weaknesses, and determine the conceptualization of assessing material aspects in pretrial to overcome these weaknesses. This research found that the formal administrative approach was caused by the use of civil procedural law in pretrial as regulated in Article 101 of the Criminal Procedure Code and reaffirmed in Article 2 paragraphs (2) and (4) PERMA No. 4 of 2016, so that pre-trials tend to only seek formal truth and are unable to prevent prosecution based on inadequate evidence. Therefore, it is proposed to expand the authority of pre-trial judges so that they can examine the substance of the evidence used in determining a suspect, including ensuring that the determination of a suspect is not based on hearsay evidence, ensure that the determination of the suspect is not based on witnesses who cannot be sworn in, ensure that there is evidence that is decisive in determining the suspect, and ensure that the testimony of witnesses or suspects is obtained without pressure or violence. This reform is expected to strengthen the implementation of Article 28D of the 1945 Constitution and increase protection of human rights by ensuring that the determination of suspects is based on valid and reliable evidence.

Gene family rearrangements and transcriptional priming drive the evolution of vegetative desiccation tolerance in Selaginella.

Extreme dryness is lethal for nearly all plants, excluding the so-called resurrection plants, which evolved vegetative desiccation tolerance (VDT) by recruiting genes common in most plants. To better understand the evolution of VDT, we generated chromosome-level assemblies and improved genome annotations of two Selaginella species with contrasting abilities to survive desiccation. We identified genomic features and critical mechanisms associated with VDT through sister-group comparative genomics integrating multi-omics data. Our findings indicate that Selaginella evolved VDT through the expansion of some stress protection-related gene families and the contraction of senescence-related genes. Comparative analyses revealed that desiccation-tolerant Selaginella species employ a combination of constitutive and inducible protection mechanisms to survive desiccation. We show that transcriptional priming of stress tolerance-related genes and accumulation of flavonoids in unstressed plants are hallmarks of VDT in Selaginella. During water loss, the resurrection Selaginella induces phospholipids and glutathione metabolism, responses that are missing in the desiccation-sensitive species. Additionally, gene regulatory network analyses indicate the suppression of growth processes as a major component of VDT. This study presents novel perspectives on how gene dosage impacts crucial protective mechanisms and the regulation of central processes to survive extreme dehydration.

Animals as Subjects of Rights: Brazil's Constitutional Blueprint

In most countries, animals typically lack constitutional protection and rely solely on animal welfare statutes. Currently, only eleven countries globally have a constitutional provision dedicated to the protection of animals. Among these countries, Brazil stands out as the sole nation where the constitutional provision is directly applicable and supported by an extensive standing regime that enables diverse actors to invoke this protection in manifold judicial proceedings. This legal framework has fostered the development of innovative legal doctrines and advocacy initiatives over the past few decades. Consequently, while the concept of animals as legal persons or rights holders remains an aspirational goal in much of the Western world, in Brazil, animals are already recognized as subjects of rights. Despite that, the international awareness of the Brazilian experience remains limited due to most of the related literature being published in Portuguese. In face of the growing momentum of the animal constitutionalism movement worldwide, this article seeks to shed light on how a constitutional mandate has facilitated the establishment of animals as legal subjects deserving recognition in the legal system.

Legal Quagmire of Arbitrary Arrests and Detention in Tanzania: Analysis of The Law and Practice

This study is on the prevailing arbitrary arrest and detention in Tanzania. While there is a possibility of a person committing a criminal offence, his right to be protected under the law remains intact and thereby he should not be subjected to arbitrary arrest and detention, torture, and inhuman or any degrading punishment. These protections are afforded in myriad legal instruments both at global, regional and domestic levels. However, in Tanzania, the act of arresting a person has been associated with a variety of disturbing forms of conduct, torture, inhuman and degrading treatments during the time of arrest and hence leading to arbitrary arrest and detention contrary to the clear constitutional protections accorded to the suspects by the law. There is perceived insufficiency prevailing in the existing laws on arrest and detention in Tanzania which attribute to the violation of basic and fundamental human rights during arrest and detention in Tanzania. The insufficiencies include the laws giving overwhelming powers to arresting authorities, giving multiple authorities powers to arrest and detain, increased practices of arbitrary arrest and detention and overwhelming powers given to the DPP. On the other side, the study revealed that the perceived insufficiencies in the laws on arrest and detention in protecting human rights against abuse during arrest and detention have led to multiple legal effects or consequences such as delays in the prosecution of cases, denial of justice to the accused and victim of crime, denial of the constitutional right to bail, forum shopping by the prosecution, retracted and repudiated confessions and trial within trials

Weaving peace from knowledge in Colombia

Peacebuilding has been an intense task that Colombian society has undertaken after decades of armed conflict with multiple difficulties and limitations. These efforts have been directed towards the configuration of dialogue scenarios for social, political, economic and cultural transformation. Groups with special constitutional protection are key actors in this type of process not only because of their legal relevance, but because they are bearers of essential capacities and knowledge. The objective of this article is to describe the way in which knowledge management contributes to peacebuilding from groups with special protection under a human rights approach. It corresponds to a study based on the interpretive paradigm and the qualitative approach of exploratory level. Content analysis was used as a method, which allowed the approach of various documentary sources of interest from a matrix that facilitated the systematization and analysis of the information. The results are organized into three sections: generalities of knowledge management, context of armed conflict and peacebuilding in coherence with knowledge management, and groups with special constitutional protection and knowledge management for peacebuilding. These sections show that groups with special protection due to their experiences and resistance are bearers of relevant knowledge useful for peacebuilding under situated and contextualized logics, and that this knowledge is managed in a collective and participatory manner for the strengthening of community processes and the construction of other realities. Therefore, it constitutes a dialectical and complementary triad that deserves to be studied in depth in the contexts of armed conflict and post-conflict.

A Study of Constitutional Protections Against Custodial Violence – A Critical Analysis

The destruction of India's democracy occurs when a police officer tortures someone while they are in their custody. It is the greatest irony that the nation is currently fighting valiantly to eradicate a crime like "Custodial Violence" yet Mahatma Gandhi was the foremost leader who adhered to the ideal of non-violence in achieving India's freedom. The state has a responsibility to defend society from attack. One has no choice but to be tortured by those who uphold the law and the rule of law. Custodial death is not in accordance with the procedure established by law, at the same time, it is the deprivation of the right to life. Custodial death is the outcome of the brutal action or negligence of the police. It results in an unnatural death. Such a dangerous issue that is threatening the very basic right to life remained unexplored, and no major research has been undertaken to examine the problem from a state-level perspective. Thus, there is depth and intensive literature on the topic. The literature helps to give a comprehensive picture of efforts taken by the judiciary as well as the state government to combat the custodial violence. It deeply analyses the constitutional protections of an Accused and it is concluded by saying numerous suggestions for combating the custodial violence crimes. Therefore, the present study is mainly focused on critical analysis of the adequacy of existing laws relating to prevention of custodial violence. The study also incorporates practical aspects of custodial violence based on the statistics given by the State Human Rights Commission of Tamil Nadu.

Aplicación del principio de precaución para amparar los derechos a la salud y a un ambiente sano: análisis de la Sentencia T-1077 de 2012 de la Corte Constitucional

This paper studies the Constitutional Court of Colombia decision T-1077/2012, one of the most important precedents of constitutional protection of the Right to health through the precautionary principle. The objective proposed by the authors is to study the conditions of invocability of the precautionary principle that were considered in the sentence. Based on the precedent of this case, the Court created a line of interpretation that transcended to other fields, by extending its application in a reinforced manner. The methodology used was a systematic review, through a meta-analysis of the case decision, as well as a documentary analysis of the specialized literature. The paper concludes that this case became a reference for the future application of the precautionary principle in public health. The Court moves away from the classical conception of the principle to prevent strictly environmental risks, reformulating its constitutional protection to the field of the right to health, in a context of scientific uncertainty.

Constitutional Guarantees of Intellectual Property Protection in the Context of Digital Transformation: Ukrainian Experience

The purposes of this research are to determine the legal status of intellectual property in the context of digital transformation; to analyse the role of innovative digital technologies in the legal regulation of intellectual property issues; to provide a detailed description of the measures of constitutional protection of intellectual property in the context of digital transformation in Ukraine; to systematize knowledge about constitutional guarantees of intellectual property protection; to determine the role of specialised courts in ensuring intellectual property protection; to provide specific proposals for the development of the legal framework for intellectual property protection. An important aspect of the current study is an in-depth analysis of the challenges and threats of digital transformation to intellectual property. In order to achieve this purpose, the following methods were used: the general philosophical method, the method of system analysis, synthesis, the dialectical method and the formal logical method, the method of deduction and induction. These methods have been used to formulate scientifically significant and practical conclusions on proposals for improving intellectual property legislation in line with the challenges and threats of digital transformation, as well as to provide interim conclusions in accordance with the research purpose.

Gender Equality Through Abortion Rights: Exploring the Constitutional Framework and Social Justice

This paper examines the legal protection of the right to abortion under the U.S. constitutional framework and its impact on women's equality. The study traces the historical and jurisprudential development of the right to abortion and examines the impact of restricting this right on women's education, employment, and overall social justice. This is achieved through the analysis of relevant legal documents. The findings indicate that the protection of the right to abortion is crucial for the assurance of women's autonomy in matters of reproduction, and has a substantial influence on their educational and economic prospects. The paper concludes that the constitutional protection of abortion is a crucial step in achieving gender equality and social justice. It is incumbent upon governments and courts to promote gender equality and social justice by introducing legislation to protect the right to abortion and by creating social security systems. The following section will examine the aforementioned topic in greater detail.

Comparative Study of Essential Religious Practices under Secularism in India, France, and the USA

This paper compares and contrasts the idea of fundamental religious practices under secularism in France, India, and the US, examining how each nation strikes a balance between religious liberty and official impartiality. A positive secularism approach exists in India, where the state interacts with religion to guarantee equality while courts decide what "essential religious practices" are worthy of constitutional protection. France adheres to a more rigorous form of secularism called laïcité, which emphasizes a clear separation between religion and state, frequently limiting religious expression in the sake of maintaining governmental neutrality, particularly with regard to Islam. Under the First Amendment, the United States employs a separationist approach that guarantees both the free exercise of religion and its non-establishment. However, there are obstacles in balancing religious liberty with public policy and anti-discrimination laws. The study comes to the conclusion that although all three nations strive to maintain secularism, there are differences in how different historical, cultural, and legal settings are interpreted, making it difficult to accommodate religious practices.

Understanding Constitutional Principles for the Advancement of Digital Rights in Palestine

Abstract Information and Communication Technologies raise new legal issues, risks and implications regarding the rights and legal protection of individuals in cyberspace. Constitutions generally protect basic rights and freedoms. Departing from the importance of constitutional protection concerning basic rights and freedoms, this article aims at assessing the constitutional and legal status of digital rights in Palestine, while considering the political and legal challenges. It studies the concept of digital rights and their protection in the Palestinian Basic Law, as constitutional norms. The article finally analyses the available constitutional remedies to address implications of the new and emerging needs to protect human rights in the cyberspace. The article argues that the existing constitutional principles should be understood broadly from a human-rights-centred approach to address risks and implications of technologies on human rights.

THE PRINCIPLE OF NEMO TENETUR SE DETEGERE IN THE AGE OF DATA

The objective of the present article is to examine the manner in which the Italian criminal justice system protects the nemo tenetur se detegere principle in the digital era, with a view to providing an insight into this approach for an international audience. In doing so, the article will also consider the experience of other legal systems and the jurisprudence of the courts. In Italy, the nemo tenetur is a right that has its origins in the constitutional protection of the right of defense and the presumption of innocence. There is considerable debate surrounding the extent to which the right should be safeguarded. While the majority of scholarship advocates for the broadest possible extension of the right, this view is not universally accepted: the Cassation court has recently adopted a more lenient approach to the protection of the privilege against self-incrimination, which may permit the use of the suspect's refusal to cooperate as grounds for adverse consequences. The issue arises in instances where law enforcement officials require evidence stored on a laptop or mobile phone that cannot be retrieved without a password, or without the potential for irreparable data loss. Questions arise. Does the obligation to disclose one’s password constitute a form of self-incrimination or a violation of the right to remain silent? Would granting police the power to compel passwords cross a linecenturies old against forcing a person to speak to build the case against them? What are the differences between traditional passwords and biometrical authentication, and what difference does this make for the privilege against self-incrimination?

On the Constitutional Protection of Carbon Emission Right as the Right of Development

Since the development of the second human rights, the right to development, as the third human rights advocated by developing countries, has become popular. Under the two-carbon target, some scholars say that the carbon emission right is the right to development, and it is a basic human right for developing countries. To be sure, with the total amount of carbon emissions fixed, both the speed and level of development are closely related to the amount of carbon emissions allocated. But now double carbon joint agreement distribution unclear terms, developed countries and developing countries demand for carbon emissions and carbon neutral ability difference is bigger, the corresponding management of carbon emissions is more policies and regulations, the lack of host rules of supply, constitutional guarantee, has affected the double carbon under the goal of national development and construction. Therefore, as the right to development of carbon emissions protection should be in the constitution respect and safeguard human rights and the principle and the principle of rule of law as the guidance, establish a sound legal system of carbon emissions, reasonable balance production development and double carbon target relationship, concrete refinement to implement the limit of carbon emissions related laws and regulations, realize the constitutionality of the legal order.

Confronting our failures: Tensions in remedying systemic discrimination in Canada

This article examines the complexities of providing remedies for systemic discrimination in light of evolving understandings of equality and justice. Despite constitutional and statutory protections affirming the right to live free from discrimination, there remains a significant gap between recognizing systemic discrimination and implementing effective remedies. The 2021 case of Canada (Attorney General) v. First Nations Child and Family Caring Society of Canada serves as a focal point to highlight the shortcomings of the current remedial framework, which often prioritizes corrective over transformative justice, reflecting a formal rather than substantive approach to equality. In this case, the Canadian Human Rights Tribunal found that Canada’s inequitable funding of First Nations child welfare services was discriminatory on the grounds of race and national or ethnic origin. It ordered Canada to compensate every child impacted, while simultaneously imposing systemic remedies such as reforming federal funding policies. By exploring the Tribunal’s decision to uphold both individual and systemic remedies, the paper argues for a more integrated approach that moves beyond the dichotomy of individual versus systemic discrimination. It advocates for co-designed remedies informed by the perspectives of affected communities, calling for a shift in how systemic discrimination is addressed within Canada’s legal framework.

THE TRAGEDY OF FELIX FRANKFURTER: FROM CIVIL LIBERTIES AND CIVIL RIGHTS ACTIVIST TO REACTIONARY JUSTICE

This article reconsiders the life and record of Supreme Court Justice Felix Frankfurter. Frankfurter was smart, hardworking, and talented, serving as a great activist lawyer and important law professor in his early career. When nominated to the court, there were high hopes he would follow Holmes and Brandeis in leading a progressive Court that would protect civil liberties and minority rights. However, it was not to be. On the Court Frankfurter became increasingly conservative and ultimately reactionary. In his opinions, he upheld persecution and discrimination of religious and racial minorities, occasionally hindered racial justice and civil liberties efforts, and opposed due process in criminal trials and fairness in elections. Arrogant and dismissive, he constantly fought with his brethren, alienating almost all of them. In the end Frankfurter was far too often on the wrong side of history, liberty and the law, and even legal ethics. The tragedy of Frankfurter is that he abandoned the constitutional rights and protections that he supported from his graduation from law school until he donned his robes. He could have been a great justice. Sadly, he was not.