Special Constitutional Status Research Articles

Исполнимость решений Конституционного Суда Российской Федерации как индикатор эффективности конституционного правосудия. Часть II

Issues of enforceability of court decisions are among the so-called “eternal” problems that require constant attention from both the legislator and law enforcers. This circumstance is largely due to the very nature of the judiciary and its decisions, the presence of special legal mechanisms for the execution of these acts, as well as the importance of the political will of specific subjects of relevant relations to implement the requirements formulated in court decisions. It is obvious that the significance of these factors increases markedly with an increase in the level of the court that makes the appropriate decision. As a result, the greatest difficulty with execution is observed precisely in relation to decisions of higher judicial instances. Meanwhile, due to the special constitutional status of these bodies, it is their practice of implementing decisions that have a significant impact on the national legal order and the legal system itself. Given the broad, complex nature of the relevant issues, the authors offer its analysis in the framework of a publication consisting of two parts, which are two relatively independent articles. This article focuses on the analysis of the socio-political and legal characteristics of the institute for the execution of decisions of the Constitutional Court of the Russian Federation (hereinafter referred to as the Constitutional Court of the Russian Federation), including in relation to the self-execution of these acts. Issues related to legislative, law enforcement, doctrinal characteristics of the existing mechanisms for the implementation of decisions of the Constitutional Court of the Russian Federation at the federal and sub federal levels, the need to improve them deserve independent attention.

Explaining the Role of Domestic Factors in Shaping Foreign Policies: India and Pakistan in Comparative Perspective (2014-2020)

Since 2014, India's domestic and foreign policies have reflected violent religious fanaticism and hyper-nationalism. If elected to power, Modi often stated that India would pursue a tough stance against Pakistan and would put Indian Occupied Kashmir (IOK) directly under the control of the Indian central government. This did not paint a positive picture. Since 2014, India's primary goal in foreign policy has remained to encircle Pakistan on all of its borders and isolate it from the rest of the world. Nearly all of the world's superpowers and the Muslim nations have encouraged diplomatic relations with India. India strategically employs all of the regional nations and global powers it has close ties to fight Pakistan. Without any regional or international pressure, it unilaterally changed the special constitutional status of Indian-occupied Kashmir. The reactionary foreign policy of Pakistan, on the other hand, did not rely on pre-emptive measures to fight India's foreign policy, which is primarily built on plotting against Pakistan. India consistently takes advantage of Pakistan's weak and nebulous international policies. This study aims to give a detailed analysis of the elements, in particular the internal or domestic ones that were responsible for influencing foreign policy decision-making in India and Pakistan between 2014 and 2020. Using Allison’s models of foreign policy has identified the factors accountable for Pakistan's unproductive and responsive external policy in contrast to India's proactive and forceful external strategy. One of the crucial findings that this study identified is that the democratic system and political continuity in India are the significant elements providing a strong base for effective policy making and building strong institutions as compared to Pakistan where the absence of both these elements are contributing to institutional crisis as well as weak and passive decision making.

Constructing Muslim Identity in a Secular State: The Strategic Role of Two Singapore Islamic Organizations

In Singapore, Islamic identity matters mainly because Muslims and Malays have special constitutional status. However, state policies seem to contradict the status while the community is still dealing with the problem of backwardness in educational and economic development. This article examines the profile and strategic role of two Islamic organizations, MUIS (Majlis Ugama Islam Singapura, the Islamic Religious Council of Singapore) and Pergas (Persatuan Ulama dan Guru-Guru Agama Islam Singapura, Singapore Islamic Scholars, and Religious Teachers Association), in accommodating the expression and reconstructing Singaporean Muslim identity. Through intensive library research and using an interdisciplinary approach from social constructivist and fiqh of minorities’ perspectives, this article found that both have played a very important role in the expression and construction of Singaporean Muslim identity. There have been dynamic contestation and cooperation between the state policies towards the Muslim community. However, the global effect of Islamist extremism and terrorism has united them in terms of religious thought, attitude, and the formulation of the ideal Singaporean Muslim identity. The changing process of their stances toward the government’s policies was effective due to the function of fiqh of minorities in contextualizing Islamic teachings in the context of Singapore as a secular state.

Containing Contagion in a Garrison State

Containing Contagion in a Garrison State

INDIAN MILITARY DOCTRINE AND ITS IMPACT ON SOUTH ASIA’S STRATEGIC STABILITY

India’s aggressive military doctrine exploits the questionable space for a limited war under a nuclear overhang. This doctrine is designed to dilute, if not fully compromise, the notion of nuclear deterrence. Indian military high command has often boasted about waging a conventional war against Pakistan. India’s unilateral decision to repeal Kashmir’s special constitutional status has further exacerbated the volatility of the hitherto conflict-prone environment in South Asia. India’s doctrine manifests in the offensive deployment of S-400 missile systems along Pakistan’s border, further supplemented by the positioning of Dassault Rafale fighter jets. While it might temporarily alter the region’s strategic stability equation, Pakistan must rebalance this shift in its strategic stability. There is a need to review the notion of strategic stability as it applies to the region’s nuclear balance of power. This paper analyses India’s aggressive military doctrine fuelling its desire to wage a limited conventional war against Pakistan, examines the effects of growing military asymmetry, evaluates the impact of the short but swift military action in February 2019, and finally endeavours to determine the stabilizing impact of the nuclear deterrent on South Asia’s strategic stability. Bibliography Entry Ali, Muhammad, and Syed Mussawar Hussain Bukhari. 2022. "Indian Military Doctrine and Its Impact on South Asia’s Strategic Stability." Margalla Papers 26 (1): 74-84.

Recent Challenges on States Reorganization: Reorganization of Jammu and Kashmir

After India’s liberation from the British rule, India was partitioned to form two nations: India and Pakistan, there were several princely states existing under the rule of royals. Jammu and Kashmir was one such state, under the rule of the Hindu ruler, Raja Hari Singh. All princely states were given the option to join either of the two nations: India or Pakistan. After pressure from Pakistan and the support from India, he chose to sign “Instrument of Accession” with the Indian government. The Indian government gave special constitutional status to the state under article 370. However, on August 5, 2019, article 370 and 35A have been revoked, dissolving their special status.

PRECARIOUS LIVES PRECARIOUS GEOGRAPHIES: REPRESENTATION OF BIOPOLITICS, VIOLENCE AND NECROPOLITICS IN CONTEMPORARY PAKISTANI ANGLOPHONE FICTION

This article examines the ways in which Pakistani writers—Jamil Ahmad’s The Wandering Falcon and Fatima Bhutto’s The Shadow of the Crescent Moon—rebut violence and politics of life and death in the tribal areas of Pakistan against the backdrop of effects of wars in the neighbouring Afghanistan. Even though violence varies between and within countries, Pakistan and its tribal areas have long been seen as the epicentre to execute or take refuge by those who have been involved in the acts of violence and extremism in the region. This tribal region due to its special constitutional status has been considered as safe haven for people fighting against their own state and in the region; first against the Soviet and later the Unites States-led war against terrorism which affected the life of people living in the region. Through the examination of literary texts, I argue that life in the tribal areas of Pakistan was managed through indigenous structures which maintained discipline for centuries before the region was exposed to foreign occupations and wars in the neighbouring Afghanistan; as a result of foreign occupations (Soviet and war on terror) in the neighbouring areas the strategies of domination, subjugation and occupation also changed. Using the theoretical framework of violence and politics of life and death developed by Michael Foucault, Achille Mbembe, Giorgio Agamben, Zygmunt Baumann and others, this article highlights the shift from ‘making live and letting die’ to ‘let live and make die’ in the tribal region between Pakistan and Afghanistan. It is qualitative research with a specific focus on violence in the selected texts in the context of tribal areas. The similar effects in other parts of the country can be explored through future studies. Keywords: Biopolitics, Necropolitics, Violence, Tribal Areas of Pakistan, Effects of Wars

'Vesting' Uses in UVA Rotunda Founding Era Collection, 1776-1789

“The executive Power shall be in a President of the United States of America.” The Executive Clause is one of three originalist pillars for the unitary executive theory, that as a strict separation of powers, the president possesses executive powers like removal, exclusive from congressional limitations (i.e., they are indefeasible). Many originalists generally tend to assume that “vest” means a formalist approach to separation of powers, rather than more functional Madisonian check-and-balances. Unitary judges and scholars, however, have not provided historical evidence that “vest” had such an original public meaning. This spreadsheet is part of Vesting (forthcoming, Stanford Law Review 2022), an article offering a close textual reading of the word “vesting” and an examination of its context, with the first survey of the available dictionaries from the era and the word’s usage in early colonial charters and American constitutions, the Convention, and ratification debates. The bottom line is that, in this era, the word “vest” did not connote exclusivity, indefeasibility, or a special constitutional status for official power. At best, the meaning of “vested” was unclear, and more likely, its ordinary meaning was a simple grant of powers without signifying the impermissibility of legislative checks and balances. This survey of the word vest (vested, vesting, etc.) in the Framers’ writings in the University of Virginia's Founding Era Collection (the papers of Washington, Adams, Hamilton, Madison, Jay, and Jefferson, and the Ratification debates) from 1776 to 1789 produces approximately 1,000 different uses. Most of the uses refer to by itself as a grant of power, but approximately 10% modify the word with words like fully, solely, exclusively, completely, or absolutely, or with references to plenipotentiary or power (or similar modfiers), specifying a more robust kind of power. Conversely, approximately 1% of the uses added words like limited or partial vesting and the like, specifying a weaker kind of vesting. These uses suggest that the word vest by itself did not signify complete or unconditional power, but it needed to be supplemented. This survey indicates a range of usage, from “fully vested” to simply to “partly vested,” and uses like fully vested appeared frequently in the context of military authority, diplomatic authority, and legislative powers over taxation and commerical regulation, suggesting that some kinds of traditional executive power and legislative power might be more complete, but not all kinds of such powers. This study of “vesting” in eighteenth-century constitutions and databases of Framers’ writings so that the “all” in the Legislative Clause may be more legally meaningful and potentially more support for the non-delegation doctrine, but the absence of or similar words from Article II weakens the unitary executive theory of indefeasible executive power. Founding Era Collection site: https://rotunda.upress.virginia.edu/founders/default.xqy?keys=FGEA-info-search

International Law within the Palestinian Legal System: A Call to Grant Human Rights Treaties a Special Constitutional Status (القانون الدولي في النظام القانوني الفلسطيني: دعوة لمنح معاهدات حقوق الإنسان وضع دستوري خاص [بالإنجليزية)

The hierarchy of international treaties in each state’s domestic system has to be deduced from its case law, constitution or other indicators. Some constitutions accord international treaties the same constitutional power as ordinary laws, and others give international treaties an infra-constitutional but supra-national status; more progressive constitutions, meanwhile, distinguish HRT from other international treaties, and give the former primacy by elevating them over ordinary law and giving them a constitutional status. Very few constitutions however make conventional international law superior to the constitution. Finally some constitutions, such as Palestine’s, may not address the position of international law within their domestic system at all. This article proposes that Palestinian political and legal decision-makers should grant IHR treaties a special constitutional status. It first determines the hierarchical status that general international treaties have within the current Palestinian legal system and then outlines the comparative experiences of states that do and do not accord IHR treaties a constitutional status. It concludes by presenting political and legal arguments that have been advanced in support of its initial proposal.

Sovereignty and First Amendment rights of higher education institutions: An affirmative and institutional approach

ABSTRACT This article offers an analysis of how, and to what extent, public institutions of higher learning, as agents of one sovereign, could assert free speech rights against the federal government, another sovereign. This work expands the First Amendment and government speech discourse by contributing a novel examination of Supreme Court precedent and the Court’s language addressing the expressive activities of universities under academic freedom. This work also situates itself theoretically in the Madisonian conception of the First Amendment Free Speech Clause, and makes the case that public universities should be recognized as institutions that occupy a special constitutional status within the doctrine. The article’s significance is underscored by the fact that the current political climate raises the specter of increased regulation and policing of the expressive activities of universities.

The US War on Terror in Afghanistan and its Impact on FATA in Pakistan

The US counterattack on Afghanistan in October 2001 changed in the overall security structure of the region. The Taliban and Al Qaeda fighters escaped the US bombing of the Tora Bora in Afghanistan and crossed into the FATA region of Pakistan. Pakistan’s military operations against these militants in the FATA provided a boost to the latter’s cause and almost the entire FATA experienced a sort of Talibanization. The US war in Afghanistan had its spillover effect in FATA. Terrorist activities unleashed in the entire Pakistan and turmoil in Afghanistan added fuel to this situation. FATA’s special constitutional status was adding to the woes of Pakistan and subsequently FATA was merged with the province of Khyber Pakhtunkhwa (KP). This paper analyzes the impact of the US war in Afghanistan on the FATA region of Pakistan.

International Law within the Palestinian Legal System: A Call for Granting Human Rights Treaties a Special Constitutional Status

The hierarchical status of international treaties within the domestic system of states varies from one state to another depending on each state’s approach and understanding of international law. While most states do not differentiate between the constitutional hierarchical status of international human rights treaties and other types of international law treaties, some progressive states accord human rights treaties a special constitutional status. While the legal system in Palestine does not establish the constitutional hierarchy of international treaties within Palestine, the Palestinian Supreme Constitutional Court (SCC) dueled upon the issue recently. This article provides a critical review of the SCC’s decisions while advancing the argument that international human rights treaties should be accorded a special constitutional status within the Palestinian legal system.

Parliamentary republic in Ukraine: prospects and obstacles

The scope of this paper concentrates on the possibility of optimizing the system of state power in Ukraine in order to overcome power dualism. It is proved that the existing parliamentary-presidential model is the cause of competition and conflicts between the presidential and parliamentary-government centers of power. The contradictions between them can be eliminated if the president, prime minister and parliamentary majority belong to the same political force. However, a reliable guarantee of the stability of power can only be the removal of the objective premises of rivalry. Such prerequisites are, first of all, the conflict of legitimacy (both parliament and the president are elected in general elections) and the possibility of double influence on the executive vertical. At the same time, the political culture of Ukrainian society, public opinion is relevant and the crisis situation in the state necessitates not only a strong and consolidated, but also a highly personified power. Consequently, the Chancellor's Republic is the most acceptable for Ukraine of democratic parliamentary forms of government. It is characterized primarily by the special constitutional status of the head of government and the executive branch (prime minister) as the leader of the political force that won the parliamentary elections. When the general election of the head of state is canceled, the prime minister actually combines presidential and parliamentary legitimacy. By single-handedly leading the executive branch of the government, such a “strong” prime minister will make impossible the situation of power dualism. However, the transition to chancellor rule, in addition to the relevant constitutional amendments, will also require reform of the electoral law and the party system. In any case, the main goal of transforming the system of power in Ukraine should be the elimination of managerial dualism while ensuring a clear system of checks and balances in the spirit of European standards of democracy.

The Influence Of Magna Carta Libertatum In The Development Of The Principle Of Rule Of Law

Abstract The concept of Rule of Law is the cornerstone of the proper functioning of the judicial system in any modern democratic society. It is a basic concept of defined rights and liberties to all persons, which offers protection from arbitrary prosecution and incarceration. This principle was firstly stipulated by the instrument of Magna Carta and it is considered as a key principle for good governance in any modern democratic society. The development of the rule of law principle is personified through the independence of the Judiciary as a third branch of government. The contemporary democratic societies are faced with many challenges upon which in order to protect their values of the democratic system, often limit the rights and liberties of persons. It is the role of the courts and the judicial system to stop these injustices and protect the individual from any form of liberty deprivation and rights limitations. Before the promulgation of the Magna Carta in 1215, the rule of law was perceived as a divine justice, distributed solely by the monarch or the king or in this case - King John of England. Magna Carta doesn't have iconic status only in the British Society, which is perceived as an instrument with special constitutional status and cited by many judges, lawyers and politicians, but in any modern democratic states as well. The author in this article examines the development of the concept of Rule of Law in the modern democratic societies under the influence of the Magna Carta, and how it is perceived as a guarantee of fair trial and trial by jury of any persecuted persons whether the severity of their crimes.

RELIGION AND POLITICS IN UGANDA: THE CASE OF BUSOGA, 1900–1962

IN THIS PAPER, we shall consider the extent to which the religious factor has influenced the recruitment of chiefs and political figures in Busoga. The principal suggestion is that with the early entrenchment of a Protestant chiefly establishment at Bugembe and the consequently dominant role of Protestant chiefs in the allocation of resources in Busoga, religious conflicts did not assume serious political proportions. Catholic and Muslim interests, after early demands for a share in resources, were faced with a fait accompli and found it politically expedient to seek patron-client relationships with the politically dominant chiefly Protestant establishment at Bugembe rather than attempt to overturn it. Whereas in other parts of Uganda religion has been considered to be a critical variable in political conflicts,' this was certainly not the case in Busoga. Under colonial rule, once it was clear to the Catholic and Muslim interests that they had lost out to the Protestants, local politics thenceforward mainly centred on the constitutional nature of Busoga's relations with the Protectorate Government, the chiefly groups' concern with a loss of privileges they thought they were traditionally entitled to, and their desire for Busoga to have special constitutional status in an independent Uganda.2 On the eve of independence one of the major issues was the status of Kyabazingaship (traditional headship of Busoga district) and who its incument should be-Sir William Wilberforce Nadiope or Henry Muloki, and local politics at this time too transcended purely religious cleavages. In this paper we shall consider the role of religion in chief-making in the early days of colonial rule and how the patterns of recruitment ultimately led to the assumption of power by the Protestant groups. Then we shall see how, through time, the religious factor receded into the background and other issues became dominant.