Constitutional Provisions Research Articles

Do compulsory mental health patients have a right to receive a second opinion on their treatment under Australian mental health legislation?

We reviewed Australian mental health legislation to determine what obligations it places on psychiatrists to facilitate second opinions for compulsory patients who request them. Only four jurisdictions-Australian Capital Territory, Queensland, Victoria, and Western Australia-have legislated for 'patient-initiated' second opinions. Within these four regimes, there is variation in important aspects of the second opinion process, and there is a general absence of direction given to the second opinion providers. Based on research showing the variability of second opinion provision under New Zealand mental health legislation, we argue that this absence is likely to result in significant variation in the quality and depth of second opinions provided in Australia. We argue that New South Wales, the Northern Territory, South Australia, and Tasmania should consider formal provision for patient-initiated second opinions in their mental health legislation. We believe that such legislation ought to be aware of the barriers patients may face in accessing second opinions, and avoid exacerbating these barriers as Queensland's legislation appears to. Also, we argue that research on current practice in Australia should be conducted to better understand the effects of legislation on second opinions, and to help determine what amounts to best practice.

The significance of the social environment to achieve the efficiency of legal regulation constitutional legal relations

The purpose of the paper is to identify the problems of efficiency of legal regulation of constitutional legal relations, to study the impact of the social environment on the efficiency of legal regulation of constitutional legal relations, and also to make proposals for overcoming the problems of efficiency of legal regulation of constitutional legal relations. The paper examines the importance of the social environment for achieving effectiveness of constitutional and legal norms. The author considers the influence of legal awareness, relationship between political culture and implementation of constitutional and legal norms, and the role of economic factors in this context. The importance of legal awareness as a key factor influencing the implementation of constitutional and legal norms is investigated. According to the conclusions of this study, the formation of an informed and highly developed legal consciousness in the society is a prerequisite for successful implementation and observance of constitutional norms. The importance of political culture as a factor determining the attitude of citizens to the political system and legal norms is investigated. It is concluded that a high political culture contributes to the establishment of stability and trust in constitutional and legal norms, and facilitates their effective implementation. It is determined that economic factors can influence the implementation of constitutional and legal provisions through the impact on socio- economic living conditions. The work points to the need to take into account economic aspects in the formulation and implementation of constitutional and legal provisions to ensure their effectiveness. The social environment, such as legal awareness, political culture and economic factors, is key to the successful implementation of constitutional and legal provisions. The integration of these factors into the formulation and implementation of legal norms is strategically important to achieve the goal of a stable and effective constitutional system.

Acts of Providence: The religious latency surrounding and shaping Marbury v. Madison and the Status-Denkschrift

Franklin D. Roosevelt recommended that “like the Bible, [the Constitution] ought to be read again and again.” Gustav Heinemann portrayed the Grundgesetz as a “great offering,” whose words must become flesh. Nevertheless, does this have any bearing on constitutional adjudication? Although presidents didn’t – and more and more don’t – shy about handling their respective constitutions as bibles, have justices and constitutional scholars proceeded otherwise? Common wisdom may answer yes, they did. The aim of my study is to show that this not quite the case. I pursue it in reference to two, leading liberal democratic constitutional courts, the US Supreme Court and the German Federal Constitutional Court. This happens in three parts: (1) I will engage with court architecture, understood as a testimony to each institution’s articulation for self-justification and self-empowerment; (2) the semantic consecration of constitutional adjudication especially vis-à-vis politics, as it took place in the struggles over what was implied by the innovations pushed forward in the contexts of Marbury v. Madison, on the one hand, and of the German Constitutional Court’s Status-Denkschrift, on the other; (3) and legal-methodological debates on the relationship between the Christian Bible and constitutional provisions that run in parallel and connection to these two landmark events. My findings point out that, in face of how disruptive the differentiation between law and politics was and is, constitutional actors in 19th century United States and 20th century Germany frequently, if not invariably, relied upon religious resources to embed their positions.

CONJUNCTURES OF DEMOCRACY EROSION

The paper aims to examine and understand the recent developments in Brazilian democracy in a sociological perspective. It offers an analysis of the conjunctural preconditions for the recent rise of authoritarian populism, presenting ways in which Brazil can be viewed as paradigm of democratic erosion and/or resilience. The article describes the foundational premises that made the development of contemporary democracies possible, and it proceeds from this description to explain how features common to authoritarian populist movements in Brazil and elsewhere are detrimental to these premises. It is argued that democracies are likely to thrive when welfare provisions and access to human rights are open to increasing sectors of the population, generating an inclusionary citizenship effect. The political polarization regarding the Brazilian welfare system and the discourse against international human rights, culminated in the weakening of the Brazilian welfare net and setbacks in the recognition of human rights by courts. These processes preceded, and were aggravated by, the rise of authoritarian populism in Brazil, generating an exclusionary view of citizenship that tended to intensify social conflict, with increasing militarization at both governmental and social levels. Arguably, the absence of warfare or an imminent warfare threat in the most recent democratic transition in Brazil reduced the capacity of welfare and constitutional human rights provisions to limit the influence of the military on democracy. While the efforts to build up the welfare system and protect human rights are still ongoing, the militarization element remains latent, posing a constant threat to democratic consolidation in Brazil.

RECONCILING CONSTITUTIONAL RULES AND INTERNATIONAL LAWS: A DOCTRINAL STUDY ON THE INNOVATIVE ROLE OF CONSTITUTIONAL RECONCILIATION IN IRAQ AND EGYPT

This research employs a doctrinal study methodology to investigate the conflict between constitutional rules and international rules,emphasizing the emerging jurisdiction of constitutional reconciliation. Through case studies in Iraq and Egypt, the study seeks to identify crucial criteria for addressing conflicts within the legal framework. A systematic analysis of legal principles, precedents, and existing literature provides a comprehensive understanding of the intricate dynamics involved in resolving conflicts between constitutional provisions and international rules. The research delves into nuanced conflicts arising in the absence of specified applicable laws in constitutional provisions, particularly where international treaties intersect with or deviate from domestic legislation. It aims to elucidate the mechanisms employed by domestic judges, utilizing constitutional reconciliation, when confronted with conflicts between provisions in domestic law and those in treaties. The central inquiry focuses on determining the prevailing legal framework—domestic law or international treaty—with constitutional reconciliation emerging as a novel jurisdiction to rectify such conflicts. In addressing the conflict between constitutional rules and international rules, the study aims to develop an effective resolution mechanism, underscoring the importance of constitutional reconciliation to harmonize international law with domestic legal frameworks. Grounded in a comprehensive understanding of international law regarding the authority of constitutional judges, the analytical method is complemented by the doctrinal study. By integrating the jurisdiction of constitutional reconciliation into the methodology and employing Iraq and Egypt as case studies, this research contributes to a nuanced comprehension of how constitutional judges can navigate and harmonize the interplay between domestic and international legal frameworks. This approach ensures the preservation of both sets of rules without compromising either, advancing our understanding of the complexities involved in addressing conflicts between constitutional and international rules through the innovative lens of constitutional reconciliation.

Open is not enough: design considerations for a networked data commons

Recently, researchers within the Networked Learning (NL) community have tried to (re)claim NL’s roots in critical pedagogy and (re)assert its commitment to social justice (Networked Learning Editorial Collective, 2021; 2021a). However, despite these avowed intentions, NL has also been criticised from within for “fail[ing] to take account of emancipatory struggles and political imperatives in society more broadly” (Networked Learning Editorial Collective, 2021a, p. 328). The suggestion is made to put NL “to work … to allow the concept of NL itself to become ‘networked’: to make connections, to interrelate, to transform, mutate, and hybridise in response to the pressing issues of our time” (Networked Learning Editorial Collective, 2021a, p. 359). In this paper, we take concepts from NL and put them “to work” in relation to the design of an informal digital learning environment – that is, a digital environment that lies outside of formal education provision, but that is intended to be a place where knowledge can be shared and circulated and where people encounter knowledge in ways that enable them to think, understand or act differently. The work was carried out in the context of a project aiming to develop design principles for an internet-based platform through people would be able to openly access, learn about and share publicly available data, using Scotland’s waste and re-use data as a case study. In this context, we plug NL into a theoretical and methodological design assemblage that connects concepts of openness, data literacy, (de)coloniality, and participatory design into new formations that we hope will allow these concepts to mutate and hybridise into something closer to the social justice ideals that NL claims.

The Changes of the Basic Rights in the Current Constitution of China

The current Constitution of the People’s Republic of China is the 1982 Constitution, which is the fourth constitution after the founding of the People’s Republic of China. The provisions of the current Constitution on the fundamental rights of citizens are generally similar to those of the first Constitution of 1954, but are more specific, while the freedom of movement provided for in the 1954 Constitution is deleted. The 1975 Constitution and the 1978 Constitution are the second and third Constitutions, respectively. Because of their special historical period, the provisions on fundamental rights in these two constitutions are retrogressive and failing. The historical background of the revision of the Constitution, the possibility of realizing rights and the level of social development are the main reasons for determining the provisions of the basic rights of citizens in the 1982 Constitution. In 2004, the current Constitution was amended to include “the State respects and protects human rights,” which establishes the constitutional obligation of the State to guarantee human rights. In practice, there is still ongoing debate over how the State’s guarantee obligations are implemented and whether citizens can file lawsuits if they believe that their fundamental rights have been violated. In recent years, the recordation review has partially realized the supervision of legislation that may infringe on citizens’ basic rights by reviewing the constitutionality and legality of laws and regulations, but citizens have not been able to directly protect their rights through litigation. The changes in the basic rights of citizens in terms of constitutional provisions and legal guarantees over the past 40 years are the result of the development of the rule of law in China. In order to more effectively solve the problem of constitutional rights from text to reality, it is also necessary to further develop the constitutional review system.

Russian Public Assembly Law: Constitutional Evolution 1993–2023

The current Public Assembly Law in the Russian Federation, which regulates the implementation of the constitutional right to freedom of peaceful assembly in Russia, has been developed and formed over the course of the past three decades, following the ratification of the Russian Constitution in 1993. The Public Assembly Law can be described as an important institute of public law as well as a sub-branch of the constitutional law of Russia, which combines constitutional provisions, relevant norms of the federal and regional laws and case law of the Russian Constitutional Court regarding the implementation of the Freedom of Peaceful Assembly. The modern Public Assembly Law has high importance for the development of a democratic society and for the rule of law. The author investigates the constitutional adjudication of the Russian Constitutional Court from 1993–2023, focusing in particular on its eleven judgments concerning the implementation of Article 31 of the Russian Constitution, which defines the constitutional standards of the Freedom of Peaceful Assembly. The author also examines several prominent cases of the Russian Constitutional Court, referred to as decisions with positive content, which are crucial for obtaining a systemic overview of the current problems of the Public Assembly Law in the Russian Federation.

Ideology and the Constitution: Freedom of National Development of Peoples

The paper examines the provisions of the first Constitution of the USSR, approved in its final version on January 31, 1924, from the point of view of Marxist‑Leninist ideology. The author concludes that the basic law found the necessary balance between centralization, republican autonomy, and the principles of socialist federalism. Many provisions of the document can be called ideological. On the one hand, the law‑maker of the first Soviet years blames the camp of capitalist countries for national hostility or colonial slavery, chauvinism or imperialist atrocities. On the other hand, the Soviet government, which was international in its class nature, was supposed to be entrusted with the high mission of uniting fraternal peoples and restoring the national economy by the forces of a single socialist family under the banner of the proletarian dictatorship. The state aimed to unite the workers of various political and economic systems around the globe under the auspices of the world socialist Soviets. Numerous research publications of prominent Bolsheviks on the problems of the national question, based on the fundamental works by K. Marx, F. Engels, K. Kautsky, acted as the theoretical basis for the declarative provisions of the first Constitution of the USSR. Based on the protocol documents of the Central Committee of the Russian Communist Party (b), the author notes the significant role of Stalin’s personal administrative hobby in the development of historical and legal events. Nevertheless, the General Secretary of the party did not dare to go against the principles of democratic centralism or the International supported by Vladimir Lenin. The development of the terminology of the nation and the advantages of various ways of voluntary unification of peoples, the comparison of models of cultural‑national or regional autonomizations in the works of the Bolsheviks play a great role.

Disposition of health-care workers toward hospital patients during the COVID-19 pandemic in Nigeria

During the second wave of the COVID-19 pandemic, the World Health Organization declared health-care workers “the last line of defense against the COVID-19 pandemic.” Against this backdrop, this study investigated the state, responses, and attitudes of health-care workers toward hospital patients during the pandemic in Nigeria, alongside the attitudes of patients and the responsibilities of Nigerian social workers in ensuring adequate patient care. Employing a descriptive research design, the study sampled 17 respondents from Enugu State and utilized a qualitative research approach with an in-depth interview guide for data collection. The findings revealed that Nigerian healthcare workers exhibited a negative attitude toward hospital patients during the pandemic. Factors contributing to this negative attitude include fear of contracting the virus due to inadequate personal protective equipment, lack of incentives, insufficient hazard allowances, and inadequate hospital facilities. The death rate of patients with complications unrelated to COVID-19 was high because patients avoided hospital care even when critically ill due to fear of contracting the virus. Consequently, there was an increase in self-medication and reliance on alternative medicine among patients. Social workers played a significant role by advocating for improved hospital care and welfare for patients. They engaged in dialogue with hospital management to secure better attention and treatment for patients and advocated for adequate welfare provision for health-care workers. Social workers undertook educational initiatives to raise awareness among patients about the dangers of alternative medicine, self-medication, and the imperativeness of complying with the stipulated COVID-19 preventive protocol. In conclusion, this study recommends policy reforms aimed at enhancing budgetary allocations to the health-care sector and institutionalizing the social work profession in Nigeria through constitutional provisions.

Building a Robust Federalism in India: Constitutional Provisions, Practical Challenges, and Pathways to Overcome

This study explores the intricacies of India's federalism, examining both the actual challenges encountered in implementing the system and the legal structure that establishes and governs it. The Indian Constitution aims to establish a balance of authority and responsibility between the central and state governments. It combines unique characteristics of unitary government with federal government. This study looks at the key constitutional provisions and amendments that specify the organizational structure of the federal government, including the division of legislative power, budgetary relationships, and administrative processes. Federalism cannot actually be implemented in India due to significant barriers, despite a constitution designed to maintain a careful balance. Administrative inefficiencies, political tensions, and economic disparities sometimes lead to strained relations between centers and states. This essay looks at these problems, highlighting instances of conflict and cooperation between different levels of government. This study aims to understand the evolution of Indian federalism by a critical analysis of case laws, policy decisions, and intergovernmental discussions. The paper also covers the effects of regionalism, coalition politics, and economic liberalization on the federal framework. The study aims to provide a comprehensive understanding of the practical aspects of constitutional federalism and the necessary modifications to enhance its efficacy by means of an examination of these characteristics. The findings underscore the necessity of continuous deliberation and adaptation to ensure that India's federalism is resilient and responsive to the aspirations of its diverse citizenry.

Revolutions and Law

Two broad thematic perspectives can be distinguished in the literature that broaches the revolutions–law nexus. One considers how actors’ relations to, and usages of, legal statutes and constitutional provisions affect the dynamics of revolutionary conjunctures (law in revolutions). The other examines how the dynamics and modalities of revolutionary processes affect the content of law and the configuration of the legal order (revolutions in law). Subsumed to the law in revolutions perspective are five main topics: the use of constitutional provisions as instruments of revolutionary subversion, legally framed defensive strategies, constitutional devolutions, legitimation problems, and the courts’ stances. The revolutions in law perspective encompasses reflections on the status of law in revolutionary paradigms, the impacts of revolutionary events as acts of foundation, shifting conceptions of constituent power, and the issue of continuities coexisting with ruptures. Cutting across these two perspectives are challenges and pitfalls that studies of revolutions and law can hardly ignore: the reification of analytical and descriptive categories, the confusion of normative and positive standpoints, and the reliance on unconditional claims. Studies overcome these challenges when they document and analyze the processes whereby actors engage law as they make decisions and pursue courses of action.

Understanding Reproductive Rights of Women as Human Rights

Reproductive rights" are ultimately the rights of persons to decide whether to reproduce or not and have reproductive health. This shall include an individual's right to plan a family, use contraceptives, terminate a pregnancy, and get access to reproductive health services without unreasonable restrictions. The notion that women has the right to make their own choices & reproductive health decisions should be reflected not only in individual wants but also incorporated in the legal system. Human rights bodies have characterized restrictive abortion laws as a form of discrimination against women. India has made progress in the area of reproductive rights and legal abortion, which is backed up by constitutional provisions, legislative frameworks, and judicial wisdom

The quest of fiscal autonomy for judicial independence: the case of the Nigerian judiciary and its challenges

ABSTRACT The executive arm of the government in Nigeria has been underfunding the judiciary due to its lack of fiscal (financial) autonomy. However, despite the Nigerian judiciary being granted fiscal self-autonomy by the court in 2014, it continues to fall short of one of the main criteria for judicial independence due to inadequate budgetary support. Thus, the article examines the judiciary’s independence and its challenges from poor funding. It employs a qualitative methodology and desk research sources to examine several provisions of the Nigerian constitution, analyze the practicalities of fiscal autonomy from a comparative perspective between Nigeria and other countries, and determine the inadequate funding of the Nigerian judiciary by placing its percentage of budgetary allocation against the nation’s total annual budget over the years. The article suggests the need for implementation structures of fiscal autonomy involving a time frame of budgetary allocation directly to the judiciary to assure its independence and efficient funding for the provision of court services.

A Second Violation of the Sharia Provision: Egypt’s SCC’s Ruling of 12 May 2013, in the Case No. 37/xxxiii (Annotated and Translated)

Abstract In mid-2013, Egypt’s Supreme Constitutional Court found a statutory provision in force at the time of the decision to be in violation of the constitutional provision declaring the principles of Islamic sharia the chief source of legislation (Article 2). It was the second time since the provision was originally introduced in the Constitution in 1971 and later amended in 1980. It had only happened once before, in 2006. In the ruling considered here, the Court confirmed its conventional construction of Article 2, and declared that in the case at hand the legislator had simply overstepped its boundaries by restricting the exercise of the grandparents’ visitation rights to the case of the absence of parents. In the eyes of the Court, the legislator was entitled to regulate grandparents’ visitation rights, but in doing so it did not properly align its intervention with the overall objectives of sharia (maqāṣid). The ruling was issued in a relatively peaceful phase that followed a fierce and prolonged confrontation between the Court and Islamists the previous year.

Legislation strengthening Maternal and Perinatal Death Surveillance and Response systems.

Historically, countries have primarily relied on policy rather than legislation to implement Maternal and Perinatal Death Surveillance and Response systems (MPDSR). However, evidence shows significant disparities in how MPDSR is implemented among different countries. In this article, we argue for the importance of establishing MPDSR systems mandated by law and aligned with the country's constitutional provisions, regional and international human rights obligations, and public health commitments. We highlight how a "no blame" approach can be regulated to provide a balance between confidentiality of the system and access to justice and remedies.

New Constitution in Nepal: Fundamental Freedoms and Educational Rights Provisions, and Implications for Dalits’ Schooling

ABSTRACT When Nepal promulgated a new constitution in 2015, discourse around the ‘New Nepal’, post-monarchical rule, was powerful; the new constitution was perceived as a landmark text to provide a clear vision for New Nepal’s overall development. The poor state of Dalits’ human rights and educational realities were widely cited as critical issues requiring attention and expedited intervention during the constitution-writing process. Almost a decade later, however, no outstanding progress is evident regarding the overall development of the historically marginalized Dalits. This paper aims to interrogate the perpetuation of the dominant ideology, as the basis for the marginalization of people lacking power, in the new constitution’s fundamental and educational provisions by exploring its marginalizing semantic elements. We selected these semantic elements or linguistic categories through reading the new constitution. Our analyses expect to unfold the link between Dalits’ poor state of human rights and educational experiences and the provisions of the new constitution. This study helps expose the roots of inequality, exclusion, and social injustice by appraising policies of public interest in situations where human rights violations, illiteracy, and poverty have distressed the lives of marginalized people, as well as encouraging research on the problems faced by extremely vulnerable population like Dalits, who are not only marginalized in their place of birth but also in the diaspora.

RENUNCIATION OF INHERITANCE BY KOSOVAR WOMEN: DESIRE OR INJUSTICE? A CASE LAW PERSPECTIVE

Background: The right to inherit is one of the rights guaranteed by the Constitution and legal provisions. Every citizen is entitled to this privilege without exception. Even though this right is protected by the Constitution, barely 23% of women in Kosovo are officially registered as heirs. When women exercise their right to refuse inheritance, they mostly give up that privilege in favour of male heirs. Unquestionably, customary law impacts this choice. Influenced by religious and customary rights that stipulate that men are entitled to inherit, women prefer to give up their claim to inherit, which accounts for the low percentage of female heirs. Despite the fact that the right of inheritance is regulated by law under the principle of equality, the real situation shows something else. This article will analyse inheritance law and the influence of customary law, which has led many women to forfeit their rights. This issue discriminates against Kosovar women, denying them their rightful inheritance. These analyses will determine whether customary law or other factors have impacted Kosovar women's unequal inheritance rights compared to men. Ultimately, it raises the question: are these women victims of injustice, or have they freely decided to give up their inheritance? Methods: In this paper, several methods were employed to reach a conclusion, including analytical, comparative, historical and normative approaches. The analytical method was used to examine the phenomenon of women renouncing their inheritance rights and the judicial decisions where women have given up their right of inheritance. The normative method examined the legal provisions that directly regulated the right to renounce the inheritance. The historical method played a crucial role in illustrating the evolution of inheritance rights and its influence on women's contemporary perspectives. Finally, the comparative method facilitated a comparison of the legal regulation of inheritance rights in Kosovo with those in other countries in the region. Results and Conclusions: In legal terms, the right of inheritance treats all heirs equally, regardless of gender, but in practice, a very low percentage of women inherit, mostly giving this right to male heirs. Many factors have influenced this result, such as the influence of customary law and religious law, but also the low number of employed women. After analysing this matter, it was seen that the main solution is to raise awareness among women that all heirs are equal, regardless of gender, ensuring the law is applied fairly to all heirs. To address the reduction of women renouncing their inheritance, several legal changes are recommended. One such change is requiring the declaration of renunciation of inheritance to be made before a notary and registered in court to determine legal deadlines. Additionally, the reasons for renouncing inheritance should be explicitly stated within the set timeframe. A more radical measure that would ensure that women do not renounce their rightful inheritance according to the law, and in this way, they would be free from the influences of society, is to change the law by removing the right to renounce the inheritance. Thus, all legal heirs would be forced to accept the inheritance due to them by law.

Challenges regarding TVET training programs in the SA automotive industry

ABSTRACT This paper reports on research undertaken to understand the contribution of formal Technical Vocational Education and Training (hereafter TVET) to company-level growth and transformation in the automotive sector in South Africa. The findings of this article are part of a larger research project conducted in South Africa and five other developing countries, namely, Bangladesh, Cambodia, Ethiopia, Laos, and Vietnam, to explore the contribution of TVET programs to inclusive industrial transformation and growth in the manufacturing sectors. It argues that formal TVET training does not drive workplace changes in technology, work organisation, and product change in the automotive sector. This paper challenges the current formal TVET provision policy in South Africa to recognise other forms of training provision, such as non-formal, and informal on-the-job training, in addition to company-level factors critical in shaping the skills system if we are to understand the extent to which skills enhance growth and transformation.

PROTECTION OF THE RULE OF LAW AS A CONSTITUTIONAL PRINCIPLE AND INDIVIDUAL RIGHT BY THE CONSTITUTIONAL COURT OF KOSOVO

This article examines the case law of the Constitutional Court of Kosovo and explains how this court protects the rule of law, as a fundamental constitutional principle and as a human right. The example of Kosovo is intriguing because of the peculiar historical, political and legal backdrop against which the Constitution was drafted, and the constitutional adjudication that has taken place. Methodologically, this analysis is based on a review of the landmark cases when the Constitutional Court of Kosovo reasoned its decisions with reference to the specific constitutional provisions that enshrine the principle of the rule of law. The paper highlights that the Constitutional Court of Kosovo refers to the rule of law as a general normative framework for adjudicating cases of abstract constitutional review, as well as for deciding cases submitted by individuals – mostly in conjunction with the right to a fair and impartial trial. By scrutinizing the cases of Kosovo, this analysis highlights the role of constitutional courts in ensuring that general constitutional principles, such as the rule of law, are justiciable and have practical effect for human rights of individuals.