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Journal articles on the topic 'Drafting of constitutions'
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1
Fernando, Joseph M., and Ho Hui Ling. "British and Commonwealth legacies in the framing of the Malayan constitution, 1956–1957." Britain and the World 8, no. 2 (September 2015): 181–203. http://dx.doi.org/10.3366/brw.2015.0190.
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The drafting of a constitution is a complex consultative process. No country, including the United States and India, can claim that its constitution was entirely the original creation of its draftsmen. Framers of constitutions are inspired and influenced by a variety of sources from ancient and modern forms of government and laws. The 1957 Malayan federal constitution drafted by the Reid commission was no exception. While it is known that the drafting of the Malayan (now Malaysian) constitution was influenced by Commonwealth constitutions, the extent of this influence has remained unclear. This article reveals through a close scrutiny of the primary constitutional documents that the framing of the Malayan constitution was mainly influenced by three connected yet varied sources of constitutionalism. Their influences can be discerned at two inter-related levels. At the first level, it is clear that the underlying constitutional principles which formed the foundations of the Malayan constitution were largely based on English constitutionalism and principles of Common law. At the second and more visible level, this article reveals that the drafting of the Malayan constitution was largely influenced by two contemporary Commonwealth constitutions which served as the main reference templates for the framing of the articles.
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Abubaker, Habiba. "Empirical Research on Constitutional Drafting Processes Following War or Internal Disturbances in Iraq, Tunisia, Kosovo and Sudan." Max Planck Yearbook of United Nations Law Online 23, no. 1 (December 3, 2020): 314–39. http://dx.doi.org/10.1163/18757413_023001011.
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Constitutional drafting is a complex procedure. Every year, nonetheless, the world witnesses the birth of several constitutions. The drafting of constitutions, however, differs greatly from one to the other; this depends mainly on the state of affairs in each State and the causes behind the need for a new constitution. In post-conflict States, the success of the constitutional drafting process depends on various factors including, inter alia, the inclusiveness of the process; transparency; equal representation in the bodies involved in the drafting; public participation; as well as the role the international community plays. All of these factors have great implications on the success, or failure, of not only the constitutional drafting process, but also on the whole peace-building process in post-conflict societies. In other words, a successful constitutional drafting process must be nationally-led and owned while targeting the root causes of the conflict. While it may be aided by international components, the process must reflect the geo-ideological differences within a State, whether cultural, tribal, ethnic or religious. This article gives an empirical account of the constitutional drafting processes adopted as a consequence of internal conflict in Iraq, Tunisia, Kosovo, and Sudan. The paper discusses the general drafting process; the bodies involved; procedural shortcomings; and any international influence.
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EISENSTADT, TODD A., A. CARL LeVAN, and TOFIGH MABOUDI. "When Talk Trumps Text: The Democratizing Effects of Deliberation during Constitution-Making, 1974–2011." American Political Science Review 109, no. 3 (August 2015): 592–612. http://dx.doi.org/10.1017/s0003055415000222.
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Under what circumstances do new constitutions promote democracy? Between 1974 and 2011, the level of democracy increased in 62 countries following the adoption of a new constitution, but decreased or stayed the same in 70 others. Using data covering all 138 new constitutions in 118 countries during that period, we explain this divergence through empirical tests showing that overall increased participation during the process of making the constitution positively impacts postpromulgation levels of democracy. Then, after disaggregating constitution-making into three stages (drafting, debating, and ratification) we find compelling evidence through robust statistical tests that the degree of citizen participation in the drafting stage has a much greater impact on the resulting regime. This lends support to some core principles of “deliberative” theories of democracy. We conclude that constitutional reformers should focus more on generating public “buy in” at the front end of the constitution-making process, rather than concentrating on ratification and referendums at the “back end” that are unlikely to correct for an “original sin” of limited citizen deliberation during drafting.
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Trlin, Davor. "National Identity in Post-Yugoslav States: Constitutional Relationship Between the Ethnic, Civic and National." Journal of Balkan Studeis 2, no. 1 (January 1, 2022): 83–100. http://dx.doi.org/10.51331/a021.
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This paper treats the issues of identity. It showcases the approaches to the relations among ethnic, civic and national interests in the drafting of constitutions in transitional countries. Tethered to the fundamental principles of good drafting, the paper highlights the balance of constitutional relations in post-Yugoslav countries. Most of these states are heteregenous societies, which makes it harder for the constitution-maker to define the state as civic. The Montenegrin society is established on civic foundations, whereas Macedonian and Bosnian-Herzegovinan constitutions established a constitutional system in which the collective particularities of ethnic groups are manifested largely on the expense of citizens or other collectivities. This paper also deals with the problem of constructing national identity, where ethnic identity is seen as an obstacle.
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VERSTEEG, MILA, and EMILY ZACKIN. "Constitutions Unentrenched: Toward an Alternative Theory of Constitutional Design." American Political Science Review 110, no. 4 (November 2016): 657–74. http://dx.doi.org/10.1017/s0003055416000447.
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T his article highlights a gap between a great deal of constitutional theory and a great deal of the practice of democratic constitution-making. Drawing on data from democratic national and state constitutions, we challenge the consensus among constitutional theorists that a central purpose of constitutionalism is the entrenchment (the fortification against future change) of broad principles. The empirical reality is that the majority of democratic constitutions today are subject to frequent revision, and are therefore ill-equipped to facilitate the entrenchment of their contents. To explore the logic of these unentrenched documents, we identify the historical periods in which different geographic regions moved away from highly entrenched constitutions, and we examine the political contexts of these transformations. We find that, in each context, constitution-makers were attempting to limit the discretion of constitutional interpreters and implementers by drafting highly specific texts and by updating them in response to continually changing circumstances.
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Shattib, Mohammed Saleh. "The Egyptian political system (A comparative study between the constitutional 2012-2014)." Tikrit Journal For Political Science, no. 16 (July 2, 2019): 163. http://dx.doi.org/10.25130/poltic.v0i16.145.
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The research have focused on the ramifications of the" 25 January revolution" on the Egyptian constitution and how the masses in which participated in the revolution aimed a rapid democratic transition through the writing of a new constitution in order to be inevitable document leading to their salvation from authoritarianism and false constitutions that had become outmoded.
Although the Egyptian constitutional experience, From the wording perspective, have many positive aspects; but the process of drafting is requiring consensus about constitution, basically agree on the basic philosophy in which the Constitution is based on, or the purpose of drafting the Constitution itself, at the same time, the goal is absent from the Egyptian experience. Also, the political factions that carried the banner of change after the" 25 January revolution" was not able to answer the following question: What is the purpose of drafting a new constitution to replacing "the 1971 Constitution"?. This situations led to the intensification of division and conflict among factions, in addition, excluded the most important political faction.
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Ruiz Estévez, María. "Comparison between the Polish-Lithuanian Constitution of 3 May 1791 and the Spanish Constitution of 19 March 1812." Studia Iuridica Lublinensia 30, no. 1 (March 31, 2021): 237. http://dx.doi.org/10.17951/sil.2021.30.1.237-250.
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<p>The purpose of this article was to make a brief comparative analysis between the Spanish Constitution of 1812 and the Polish-Lithuanian Constitution of 1791. With this intention, the most characteristic features of each constitutional text were set out, and both the historical and social context prior to its promulgation and the circumstances that led to the drafting of both legal acts were analyzed. The similarities and contrasts of the political models established with both constitutions were observed, as well as the rights and freedoms recognized. Reference was also made to the founding fathers of the Constitutions and the ideological context that influenced them. Finally, the author mentioned the fate of both constitutions that were only in force for a short period of time. The article aimed to present these two legal acts that were a milestone in the constitutional and political history of each nation.</p>
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Meyer Resende, Madalena. "A Holy Alliance between the Catholic Church and Constitution-Makers? The Diffusion of the Clause of Cooperation in Third Wave Democracies." Politics and Religion 11, no. 1 (May 8, 2017): 55–78. http://dx.doi.org/10.1017/s1755048317000311.
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AbstractWhat explains the adoption of the regime of cooperation between church and the state in the democratic constitutions of Spain and Poland, while Portugal maintained a regime of strict separation in the United States and French tradition? The explanation could be that a consensual constitution-making process resulted in a constitutional formula accommodating religion and guaranteeing religious freedoms. Alternatively, the constitutional regime of cooperation could result from the diffusion of international norms to national constitutions, in this case, the cosmopolitan law of the church. The article process-traces the constitution drafting processes and finds that the emergence of a constitutional consensus among secularist and constitutional drafters in Spain and Poland was based on the Vatican Council II doctrine and facilitated by the intervention of the Catholic hierarchies. In Portugal, the violent context of the revolution excluded the church, and the constitutional regime of strict separation between church and state was adopted.
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WARREN, MICHAEL. "A Case Study in Federalism - the United States and Michigan Constitutions: Not Double Vision, Double Constitutions." Michigan Academician 47, no. 2 (January 1, 2021): 202–19. http://dx.doi.org/10.7245/0026-2005-47.2.202.
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ABSTRACT Each citizen in America lives under two Constitutions - the United States, federal Constitution which applies to all citizens, and the constitution of the state in which the citizen lives. Often overlooked and basically unknown, the state constitutions play a vital role in governance and preserving our unalienable rights. Perhaps the best way to understand each constitution is to compare and contrast them. Accordingly, as a case study, this article examines the age, length, predecessors, drafting process, conventions, ratification process, and amendment procedures of the State of Michigan Constitution of 1963 and the U.S. Constitution. Furthermore, this article examines how each of these constitutions addresses the separation of powers, legislature, executive, judiciary, local government, transportation, education, finance, taxation, and the protection of unalienable rights. Armed with this understanding, we will be better informed citizens, and more ably equipped to participate in self-governance and protect the unalienable rights of the citizenry. Note: At times this article quotes constitutional text which refers to “he” or “him.” The grammatical convention at the time was to make masculine all generic gender references. That this article quotes the text does not equate to an endorsement of the convention nor did the drafters intend that only men could serve as public officials.
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Kunesh, Patrice H. "On the Drafting of Tribal Constitutions." Journal of American Ethnic History 27, no. 4 (July 1, 2008): 115–16. http://dx.doi.org/10.2307/27501857.
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Kenny, David. "The Virtues of Unprincipled Constitutional Compromises: Church and State in the Irish Constitution." European Constitutional Law Review 16, no. 3 (September 2020): 417–39. http://dx.doi.org/10.1017/s1574019620000218.
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Constitution making – Disagreement – Principled constitutionalism versus unprincipled bargaining – Pragmatism – Church and state – Separation of religion and law – Maintaining religious peace – Drafting of the Irish Constitution of 1937 – Placating Irish Catholicism – Accommodation of protestant religious minority – Balancing religious freedom and religiosity – Balancing fundamental rights and religious influence – Flexibility and adaptability – Pragmatic assessment of constitutions and constitution making
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Tadros, Mariz. "Negotiating Women in Egypt's Post-Mubarak Constitutions (2012–2014)." Politics & Gender 16, no. 1 (March 13, 2019): 145–73. http://dx.doi.org/10.1017/s1743923x18001046.
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This paper presents a comparative “gender audit” of Egypt's two constitutions (2012, 2014) developed after a people's uprising in 2011 and 2013 led to the ousting of two presidents (Mubarak and Morsi respectively). Egypt's two constitutions are particularly compelling for the study of gender politics in transitional constitutionalism because while the number of women participating in the constitution writing process was very similar, the gendered outcomes were starkly different. While the political opportunity for mobilizing around women's rights was enhanced in the aftermath of Mubarak's demise, the capitalization of these opportunities by organized political forces with an anti-feminist agenda undermined the prospects of en-gendering the first post-Mubarak constitution. In contrast, the constitution of 2014, developed under severely circumscribed political space inhibiting women's mobilization, witnessed the exercise of women's constitutional agency to redress the containment of women's rights under the previous constitution and en-gender many elements of it, though the extent of its enforceability remains obscure. This paper draws on primary and secondary data to analyse, through a gender lens, the processes and outcomes involved in constitution drafting along three axes:context and political opportunity structures; coalitional politics, and political and ideological struggles.
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El-Shahed, Karim Mahmoud. "Drafting the Egyptian Constitution: a Comparative Analysis Between the Drafting Committees of the 2012 and 2014 Constitutions." A&C - Revista de Direito Administrativo & Constitucional 20, no. 79 (March 29, 2020): 13. http://dx.doi.org/10.21056/aec.v20i79.1308.
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Suharno, Suharno, Amir Junaidi, and Muhammad Aziz Zaelani. "Embodying The Meaning Of The Guardian Of The Constitution In The Role Of The Constitutional Court Of Reducing Constitutions Indicated By Policy Corruption." International Journal of Educational Research & Social Sciences 2, no. 3 (June 29, 2021): 592–99. http://dx.doi.org/10.51601/ijersc.v2i3.88.
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Purpose of this study was to answer two problems: (i) how is the guardian of the constitution embodied through the function of the Constitutional Court; and (ii) how the Constitutional Court as the guardian of the constitution reduces constitutions that are indicated by the policy corruption. Policy corruption is an invisible and covert element that able to threaten the synergy of the legal system and the public interest. The form of policy corruption is realized in the form of a law. Efforts that can be made to reduce the policy corruption are to implement the tight control over the media, which in this case is relevant to the function of the Constitutional Court. This studywas classified as doctrinal research with primary and secondary legal materials. Comparative approach and case approach were used to answer the legal issues. The results showed that: First, the guardian of the constitution through the function of the Constitutional Court through the optimization of the Constitutional Court Judges as the agent of constitution, strengthening the execution of the Constitutional Court decisions and collaborative steps with other state institutions in enforcing the constitutional guardianship. Second, the Constitutional Court as the guardian of the constitution in reducing laws indicated by the policy corruption is manifested in the form of a Constitutional Court decision that can be retroactive to recover the impact of legal losses that are indicated by the policy corruption, the decision of Constitutional Courtis justified by ultra vires to anticipate the chain of constitutions that indications of policy corruption, the decision of Constitutional Courtis strengthened in terms of its execution and the Court can examine or test the Constitution Drafting (bill/ RUU) (a priori review) as a preventive measure to prevent the enactment of laws that indicate policy corruption.
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Crăciun-Chivereanu, Claudia-Elena. "The Constitutional Importation and the Political Modernization of the Romanian State." Studia Universitatis Babeș-Bolyai Studia Europaea 68, no. 1 (June 30, 2023): 247–82. http://dx.doi.org/10.24193/subbeuropaea.2023.1.08.
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"This article has as its starting point the genesis of Romanian constitutionalism. Developed according to the Belgian model, the Constitution of 1866 allowed the birth of a democratic system of government and consolidated the autonomy of Romania, in the context where, after the abdication of Prince Alexandru Ioan Cuza, there was an inherent need for governmental stability. However, the decision to adopt a prestigious constitutional model was guided by the idea of international legitimacy. The predominantly liberal character of the Belgian Constitution of 1831 influenced the process of drafting fundamental laws in several European states, not only in Romania (Greece, Italy, Prussia, etc.). The constitutional import process is inevitable, but extremely difficult and rarely impossible. The inevitability of this process stems from the fact that overarching constitutional ideas and mechanisms are generally limited. This type of transfer occurs when constituent assemblies face a particular problem and choose to focus on already functioning constitutions. Keywords: constitutional import; the Belgian Constitution of 1831; the Romanian Constitution of 1866; foreign prince; modernization and political independence; modern liberal constitutionalism. "
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Cassola, Adèle, Amy Raub, and Jody Heymann. "Do constitutions guarantee equal rights across socioeconomic status? A half century of change in the world's constitutions." Journal of International and Comparative Social Policy 32, no. 3 (October 2016): 235–63. http://dx.doi.org/10.1080/21699763.2016.1237373.
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For those disadvantaged by bias and barriers based on socioeconomic status (SES), constitutions can provide a defense against discrimination and a foundation for greater equality in social, economic, and political life. In light of the near-global commitment to a multi-dimensional poverty reduction agenda and the increased inclusion of marginalized groups in constitution-drafting processes, this article examines how 193 constitutions address SES and how this has changed over time. The majority of constitutions guarantee equal access to primary education across SES (59%) and prohibit discrimination on this basis (58%). Fewer guarantee access to healthcare (20%), equal rights in employment (15%), eligibility for legislative office (4%), and voting rights (4%) across SES. Constitutions adopted after 1990 are considerably more likely to protect equal rights across SES than older ones. However, 25% of constitutions – including 17% of those adopted since 1990 – restrict political participation based on socioeconomic characteristics.
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Lerner, Hanna, and Amir Lupovici. "Constitution-making and International Relations Theories." International Studies Perspectives 20, no. 4 (July 19, 2019): 412–34. http://dx.doi.org/10.1093/isp/ekz007.
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Abstract Constitution-making has become an intrinsic component of international politics, nevertheless, international relations scholars largely refrain from theorizing it tending to view formal constitutional drafting as a domestic project. The article proposes an understanding of constitution-making as an international (in addition to national) political phenomenon. We develop a new and comprehensive classification of international influences on constitution-making. We also demonstrate how the empirical study of constitution-making can illuminate overlooked areas of research and challenge existing international relations theories. Our focus here is on the study of international norms. We present three theoretical insights concerning the emergence of international norms, their dissemination, and the role of epistemic communities in facilitating their expansion. We conclude by highlighting how the interaction between international and domestic factors in the crafting of constitutions further challenges the disciplinary distinction between domestic and international politics.
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Lerner, Hanna. "Permissive Constitutions, Democracy, and Religious Freedom in India, Indonesia, Israel, and Turkey." World Politics 65, no. 4 (October 2013): 609–55. http://dx.doi.org/10.1017/s0043887113000208.
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The article addresses the question of what role formal constitutions play in mitigating intense conflicts over the religious character of the state. In contrast to common views in constitutional and political scholarship, it demonstrates that the ideal of liberal constitutionalism is not compatible with the political reality and types of conflicts that characterize religiously divided societies. Analyzing four processes of constitution drafting in which issues of religious law and religious identity were at the heart of the debate—India, Indonesia, Israel, and Turkey—it argues that under deep disagreement over the state's religious character, the drafters adopt either a permissive or a restrictive constitutional approach. While the former implies strategies of constitutional ambiguity, ambivalence, and avoidance in order to allow the political system greater flexibility in future decision making on religion-state relations, the latter approach uses repressive constitutional constraints designed to limit the range of possibilities available to future decision makers. The article further explores the long-term consequences of the two approaches and argues that (1) permissive constitutional arrangements, more than restrictive arrangements, are likely to promote the democratic functioning of future governments; and that (2) permissive constitutional arrangements may facilitate greater freedom of religion, but they are also likely to lead to greater restrictions on freedom from religion, compared with restrictive constitutions.
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Frame, Alex. "Lawyers and the Making of Constitutions: Making Constitutions in the South Pacific: Architects and Excavators." Victoria University of Wellington Law Review 33, no. 3-4 (December 1, 2002): 699–718. http://dx.doi.org/10.26686/vuwlr.v33i3-4.5831.
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The author discusses the nature of constitutions from the view of two perspectives: that of the "architects", who take a downward-facing approach to constitution drafting by using robust rights that stand the test of time; and the "excavators", who take a bottom-up approach by taking existing rights enshrined in law and society and codifying them into a written constitution. The architects' perspective is useful as it provides a good framework in which customary usage can develop, whereas the excavators' historical approach is similar to the application of common law precedents in the courts. The author argues that, given time and stability, both perspectives should ideally lead to the same place. The paper concludes with the author's legal advice to the Cook Islands regarding the formation of a constitution of their own.
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Рудман, Марк Наумович, and Артур Разимович Туриянов. "FORMATION OF A PARLIAMENTARY MODEL OF CONSTITUTIONAL CONTROL IN THE BASIC LAWS OF THE USSR OF 1924 AND 1936." Rule-of-law state: theory and practice 18, no. 4(70) (January 19, 2023): 12–22. http://dx.doi.org/10.33184/pravgos-2022.4.2.
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The article studies the features of fixing the legal mechanism of constitutional control in the first two constitutions of the USSR. The analysis is based on the study ofthe approaches taken by wellknown legal scholars during the drafting of these constitutional acts, as well as the views of modern Russian constitutionalists on the essence and national specificity of the implementation ofthe ideas of constitutional control as an integral part of thesystem of constitutional governance. On the basis of a comparative legal analysis, the article reveals the evolution of the mechanism of constitutional control from judicial control in the Constitution of the USSR of 1924 to formal parliamentary control in the Constitution of the USSR of 1936. While recognizing the importance of the institution of constitutional controlas a necessary element of constitutional governance, the authors conclude that the single-party political regime in the USSR had a destructive effecton the very idea of constitutional governance. Despite attempts to create Soviet constitutionalism as a universal way of involving society in social construction, the influence of party power negated the meaning ofthe Soviet Constitution. The formalization of the content of constitutionalism and federalism under the Soviet state regime contributed to a complete loss ofthe importance of constitutional justice in the USSR of the pre-war period.
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Ollick, Stephan F. H. "Taking Embodiment Seriously: Constitutional Law, the Economy and the Forms of Underdeterminacy." Max Planck Yearbook of United Nations Law Online 23, no. 1 (December 3, 2020): 290–313. http://dx.doi.org/10.1163/18757413_023001010.
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Economic policy does not require a constitutional grounding. However, many constitutions expressly dedicate articles and chapters to the national economy while others produce comparable effects by indirectly privileging particular economic arrangements. The constitutions of the US, the People’s Republic of China and the Philippines and the Basic Law of Hong Kong can plausibly be invoked to justify State approaches to economic ordering. However, each of them essentially underdetermines the economic fundamentals of the polity, not merely by deferring their concretization to governments and judiciaries, but by eschewing to commit the State to an identifiable level of involvement. Underdeterminacy can result from a variety of structural features, such as omissions, the use of contested concepts, the dilution of overarching economic alignments through countervailing constitutional provisions or limitations by ordinary legislation and the assortment of amorphous constitutional repertoires that give free rein to policy. The fact that even constitutions that were in their drafting informed not least by economic considerations fail to set the basic parameters of the economic arena queries the extent to which they can be said to embody any such underpinnings. It further questions the significance of constitutions and formal institutions in the formation of liberal market economies in particular and emphasizes the role of experience.
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Negretto, Gabriel. "Constitution-making and liberal democracy: The role of citizens and representative elites." International Journal of Constitutional Law 18, no. 1 (January 2020): 206–32. http://dx.doi.org/10.1093/icon/moaa003.
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Abstract This article discusses the impact of citizen participation and elite cooperation in constitution-making on the deepening of an already existing electoral democracy. It argues that while direct citizen involvement in the drafting of constitutions may be desirable on normative grounds or necessary for pragmatic reasons, only cooperation among a plurality of elected political representatives at the constitution-making stage is likely to improve the liberal dimension of democracy after the enactment of the new constitution. Inclusive constitutional agreements at the level of representative elites not only establish legal limits on state action but may also provide opposition parties and citizens alike with the means to make institutional constraints on executive power and civil liberties effective. This effect is usually observed during the early years of life of the new constitution, when the balance of power among the political forces that created the constitution tends to remain stable. I find preliminary support for this argument analyzing aggregate data and selected case studies from all episodes of democratic constitution-making in the world between 1900 and 2015.
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Siimets-Gross, Hesi. "Duty of Loyalty to the State or the ‘Polish Section’ in the 1937 Estonian Constitution." Miscellanea Historico-Iuridica 20, no. 2 (2021): 113–28. http://dx.doi.org/10.15290/mhi.2021.20.02.08.
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There is a common comparison between the constitutions of the authoritarian regimes of Poland (1935) and Estonia (1937). The ideological model of the 1937 Estonian Constitution, especially in the section on loyalty to the state, was the 1935 Polish Constitution; for this reason, this section was also called the ‘Polish Section’. Compared to the first, 1920 Estonian Constitution, the 1937 Constitution was much more restrictive of basic rights, in particular through its general orientation and attitude. It was precisely in this that the so-called “loyalty to the state” section (§ 8) played a special role, affecting the whole chapter by its very nature, because it could, in its wording – and according to the example of Poland – constitute a general border clause on fundamental rights and freedoms. This article analyses specifically the ‘loyalty to the state’ section but first a short overview about historical background will be given. Secondly, the drafting of the section 8 of the Estonian Constitutions in the committees’ will be described and analysed, and thirdly, the discussions in the National Assembly will be summarized.
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Yakimova, E. M. "Constitutional Rights in the Sphere of Entrepreneurial Activity and Peculiarities of Holders of Such Constitutional Rights." Actual Problems of Russian Law, no. 1 (January 1, 2019): 66–72. http://dx.doi.org/10.17803/1994-1471.2019.98.1.066-072.
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Constitutions of the majority of countries of the world contain a detailed catalogue of human and civil rights and freedoms that tends to expand. At the same time, the essence of economic rights is defined in the regulation of the rights of the “second” generation and is associated with the recognition of property rights and the right to carry out activities aimed at obtaining income. In the process of drafting modern constitutions, States only specify the rights in question. The constitutional right to the free use of one’s abilities and property for entrepreneurial and other economic activities not prohibited by law is considered in this article as a basic, but not the only right in the sphere of entrepreneurial activity. A special feature of the implementation of the right under consideration is its special range of holders of the right in question. It is concluded that the construction of Article 34 of the Constitution of the Russian Federation has a two-component structure (denotes two types of activity: entrepreneurial and other economic activities). Such a design determines the definition of the range of holders of the right under consideration: the range of holders of the right depends on whether the issue involves only entrepreneurial or any other economic activities.
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DUYAR, Mehmet. "Anayasa Yapım Sürecinde Muhalefet Olgusunun Meclis Tutanakları Üzerinden Değerlendirilmesi: 1921, 1924 ve 1961 Anayasaları Örneği." International Journal of Social Sciences 8, no. 33 (January 12, 2024): 121–36. http://dx.doi.org/10.52096/usbd.8.33.09.
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Constitutions are texts that regulate the organs of the state, their functioning and the fundamental rights and freedoms of individuals vis-à-vis the state. Both these texts themselves and their drafting processes are of particular importance. Especially in constitution-making processes where citizens are indirectly involved in the process through their representatives, the existence and impact of the opposition phenomenon shows the democratic quality of the constitution. In this context, this study aims to examine the phenomenon of opposition in the Turkish constitution-making processes in the 1921 and later periods through parliamentary minutes. According to the results of the analysis conducted from a qualitative perspective with an interpretivist approach, it is determined that there was a functioning and qualified opposition phenomenon in the 1921 and 1924 constitution-making processes, while this determination is controversial in the 1961 constitution-making process. Key Words: Constitution making, political opposition, parliamentary debates.
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El-Farahaty, Hanem, and Abdelhamid Elewa. "A Corpus-Based Analysis of Deontic Modality of Obligation and Prohibition in Arabic/English Constitutions." Estudios de Traducción 10 (December 1, 2020): 107–36. http://dx.doi.org/10.5209/estr.68334.
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It is argued that legal language should be formal, precise and clear to avoid ambiguity and/or misunderstanding. As rights and duties are communicated through modals, clarity and precision in drafting and translating them is crucial. Otherwise, there is a possibility of conveying loose messages in the source text or different and/or inconsistent messages in the target text. However, the drafting of Arabic modal expressions does not follow clear guidelines, and their translation differs from one translator to another. This paper investigates how deontic modality of obligation and prohibition is used in The Leeds Annotated Parallel Corpus of Arabic-English Constitutions in comparison to The Leeds Monolingual Corpus of English Constitutions. More specifically, the paper presents a classification of these modal expressions and investigates the different lexical variants expressed in a Corpus of Arabic Constitutions. The paper uses corpus-based tools to analyse the different lexical forms used for deontic modality of obligation and prohibition in Arabic and how they are rendered into English. Results of such analysis are compared to a non-translated Corpus of English Constitutions to find out whether the deontic meaning of the modals is comparable to the set of deontic modals used in the constitutions originally drafted in English. The corpus-based analysis gave a detailed classification of a variety of modal expressions used in the Arabic Corpus. It also showed that the translation of deontic modals of obligation and prohibition from Arabic into English is influenced by the source text lexical variations; however, the corpus techniques employed in the study managed to capture some comparable modals in both corpora.
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Mujuzi, Jamil Ddamulira. "The Trial of Civilians Before Courts Martial in Uganda: Analysing the Jurisprudence of Ugandan Courts in the Light of the Drafting History of Articles 129(1)(d) and 120(a) of the Constitution." Potchefstroom Electronic Law Journal 25 (April 5, 2022): 1–32. http://dx.doi.org/10.17159/1727-3781/2022/v25ia12023.
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Unlike in the constitutions of other African countries such as Botswana and Lesotho, where the relationship between the High Court and courts martial is stipulated, the Ugandan Constitution 1995 (the Constitution) does not deal with this relationship. The Constitution is also silent on the question of whether courts martial have jurisdiction over civilians. The Uganda Peoples' Defence Forces Act (the UPDF Act) creates different types of courts martial with varying jurisdictions (section 197). The Act also provides (section 119) for the circumstance in which the General Court Martial has jurisdiction over civilians and appeals against the decisions of the General Court Martial lie to the Court Martial Appeal Court, which is the final appellate court except in cases where the offender is sentenced to death or life imprisonment. According to Regulation 20(2) of the UPDF (Court Martial Appeal Court) Regulations, in case an offender is sentenced to death or life imprisonment and his/her sentence is upheld by the Court Martial Appeal Court, he/she has a right to appeal to the Court of Appeal. Since 2003, Ugandan courts have grappled with the issues of whether courts martial are courts of judicature within the meaning of article 129(1) of the Constitution or organs of the UPDF and, therefore, part of the Executive under article 210 of the Constitution and whether courts martial have jurisdiction over civilians. Judges of the Supreme Court Constitutional Court and Court of Appeal have often disagreed on these issues. In this article the author relies on the drafting history of Articles 129 and 210 to argue that courts have erred by holding that courts martial are not courts of judicature under article 129(d) of the Constitution; and that courts martial are subordinate to the High Court. The author also relies on the drafting history of the Constitution and on international human rights law to argue that courts martial in Uganda should not have jurisdiction over civilians because they lack the necessary independence and impartiality and were established for the single purpose of enforcing military discipline.
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Al-Deen, Najm Al-Deen Muhyi, and Renjibar Jameel Sheekho. "Problematic of the constitution drafting and its application in culturally diverse and politically transformed societies (Iraq after 2003 as a model)." International and Political Journal 54 (May 21, 2023): 235–63. http://dx.doi.org/10.31272/ipj.54.10.
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The task of drafting a constitution in multi-cultural societies, that are witnessing major political transformations, is one of the issues that raises many problems in this transitional phase of their political life, especially if these constitutions are unable to objectively express the reality of their societies in a desired change, reform, and development. Iraq (the subject of our research) is one of these countries that suffer from such a problem after the change it witnessed in 2003.
The research is an attempt to diagnose the nature, causes, dimensions, and effects of this problem and its repercussions on the overall political and societal life in Iraq. To achieve this goal, we have raised a few questions regarding the re-constitutionalizing political life and institutionalizing politics. In other words, the governance of the ruling system. Hence, this research also acquires its theoretical (scientific) and realistic (objective) importance. It seeks to filter the constitutional text from its formal and theoretical templates, by comparing this text to reality and showing the outcome of this process.
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Kindyuk, Boris, Mykhailo Kelman, Vasyl Patlachuk, and Olexander Patlachuk. "History and Socio-Political Conditions of Preparation of the Polish Constitutions from 1919 to 1997." Universum Historiae et Archeologiae 2, no. 2 (October 11, 2020): 176. http://dx.doi.org/10.15421/26190212.
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The purpose of article deals with the study of history of preparation and the reasons for the adoption of the Polish Constitutions in the period from 1919 to 1997 years. Research methods: dialectical, chronological, comparative, system-structural. Main results. The article shows that the history of the preparation of the Polish Constitutions in the period from 1919 to 1997 years occurred under the conditions of constant changes of socio-political factors, which was reflected in the state system, political, economic and social relations, rights and freedoms of the population. It is proved that the history of Polish constitutionalism has evolved in a complex vector from the insignificant in volume and scientific level of the Little Constitution of 1919, which was adopted in conditions of armed confrontation with Soviet Russia, to the 1997 Constitution, which complies with European standards. The influence of the historical personality of Marshal Jozef Pilsudski was investigated, who became the sponsor of the rebirth of independent Poland on the history of the preparation and adoption of the Polish Constitutions of 1919, 1921 years and the Constitution of 1935 in which the President of the country was given dictatorial powers during the period of war. It is shown that the Constitution of 1952, which was written according to Soviet models and based on instructions received from Moscow, had to consolidate in Poland a socialist model in which the Polish United Workers Party had a leading role in society. It is shown that the collapse of the Soviet Union led to the elimination of the communist system in Poland, the rise to power of democratic forces, which resulted the adoption Constitution 1997. The peculiarity of the Constitutional process was the fact that for the first time in the history of Poland on 25th May 1997 a referendum was held regarding its adoption. The Constitution 1997 was adopted in the context of a transition from command-administrative to a democratic system of government, so its content is marked by a democratic nature that ensured the creation of private ownership of all means of production and free trade. The historical reasons of the drafting of the Polish Constitutions have undergone a complex dynamic, which is connected with political changes in the country, which is reflected in the content of the ideas, doctrinal views and Basic Laws. The practical significance of the study lies in the use of Polish historical experience in the development of event scenarios in Ukraine in order to prevent errors in modern state-making. Originality. A comprehensive study of the history of Polish constitutionalism, taking into account socio-political reasons. Article type: descriptive.
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Milosavljevic, Boris. "Drafting the constitution of the Kingdom of Serbs, Croats and Slovenes (1920)." Balcanica, no. 50 (2019): 225–44. http://dx.doi.org/10.2298/balc1950225m.
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The Kingdom of Serbs, Croats and Slovenes was internationally recognized during the Paris Peace Conference in 1919-20. Even though there was neither a provisional nor a permanent constitution of the newly-formed state, factually there was a state as well as a system of governance, represented by supreme bodies, the King and the Parliament. Many draft constitutions were prepared by different political parties and notable individuals. We shall focus on the official Draft Constitution prepared during the premiership of Stojan Protic. He appointed the Drafting Committee as a governmental (multi-ethnic) advisory team of prominent legal experts from different parts of the new state consisting of Professors Slobodan Jovanovic (President), Kosta Kumanudi and Lazar Markovic (Serbia), Professor Ladislav Polic (Croatia) and Dr Bogumil Vosnjak (Slovenia). After two months of work, the Committee submitted its draft to the Prime Minister. The leading Serbian legal scholar and president of the committee, Slobodan Jovanovic (1869-1958), was well-acquainted with the details of Austro-Hungarian and German legal traditions. Since he was an active participant and witness of the events that led to the creation of the new state, while also being an objective and critical historian, it is important to shed light on his firsthand account of the emergence of the state of Serbs, Croats and Slovenes.
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Byelov, D. M., Y. M. Bysaga, and V. V. Berch. "Amendments to the constitution: general theoretical aspect." Analytical and Comparative Jurisprudence, no. 5 (November 17, 2023): 682–86. http://dx.doi.org/10.24144/2788-6018.2023.05.121.
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It suggests that improving the process of drafting constitutions and implementing constitutional support is critical to world-building efforts in the twenty-first century. We live in the days of constitutions; more than half of the nearly two hundred existing national constitutions have either been reformed or drawn up in the last thirty years. Every year, about twenty constitutional reforms are carried out and new higher laws are adopted, most of which are part of the peace-building process in countries torn by war or as a result of economic or social crises.
It was noted that the main dilemma of Ukrainian constitutionalism of the transitional period was expressed in the conflict between the principles of Soviet legitimacy (the so-called «Soviet democracy») and plebiscite presidential power. However, this conflict has not received a final solution until today. It is most clearly manifested in the opposition of various political forces to the Constitution and finds expression in changes to it. This phenomenon is by no means completely new in history.
Analysis of the changes to the Constitution makes it possible to draw conclusions about the general direction of these initiatives. Thus, among them there are no proposals related to the constitutional regulation of property relations and the social sphere in general (for example, land law), an extremely small number of changes related to territorial organization, organization on the new basis of local administration and self-government, administrative and judicial reform (problems of democratization of the legal system and ensuring the rights of the individual), that is, precisely those fundamental issues that form the basis of legal modernization.
In conclusion, one should be deeply aware of all responsibility for the strategy, implementation and consequences of the political reform aimed at updating the Constitution in accordance with new realities, balancing power relations in the state, and consolidating society. This large and multifaceted work can be considered successful only when it brings real positive changes to our lives, has a beneficial effect on all spheres and in all dimensions - from the nation, the state to a specific person and a specific family. It should be assumed that changes of such a scale and depth objectively introduce elements of instability and disagreements into society and the political situation. Therefore, they must be balanced, accurately and responsibly calculated and implemented in the shortest possible time, without disturbing the general atmosphere in the state, the rhythm of its economic life. For these reasons, it is no less important that such campaigns are carried out as rarely as possible.
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Haycox, Stephen. "On the Drafting of Tribal Constitutions by Felix S. Cohen David E. Wilkins." Oregon Historical Quarterly 111, no. 1 (2010): 112–14. http://dx.doi.org/10.1353/ohq.2010.0082.
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Demetrashvili, Sophio, and Jikia Mariam. "Inclusiveness of creation process of constitution in Georgia." Constitutional and legal academic studies, no. 1 (November 10, 2022): 47–53. http://dx.doi.org/10.24144/2663-5399.2022.1.05.
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It is very difficult and practically impossible to create the best and most complete constitution. The Constitution is a document created by humans and not by the gods, and just like its creators, this document itself cannot be perfect. There are undemocratically adopted constitutions in the world, but there are no authoritarian constitutions adopted democratically. However, the conditions for drafting and adopting the Constitution can have a great impact on the content of the Constitution.
Constitution is a legal act or set of legal acts adopted by a supreme body of state power or through a referendum, has the highest legal force and regulates the foundations of the organization of society and the state, the basic principles of the relationship between the individual and the state. Both the concept of the Constitution and the history of its development clearly show its special importance in the preservation and development of the state and society.
The aim of the presented article is to review the process of creation of Constitution in Georgia, to study the main specifics and obstacles during the process and to analyze the results which has a direct influence on Political, Economic and Social development of State.
The main methodology used during the research is desk research using historical and legal analysis of the given situation in1990s in Georgia, the challenges that Georgia has after the independence and the main basis and fundamentals for further development of Georgian Constitutionalism.
Based on research study, authors have identified the main issues that were left out from the content of constitution, that are not only important for democratic states, but has the main influence on creation of democratic governance in country. One of the mentioned issues is the defining of Territorial Structure, which is of vital importance for Georgia. The final part of the article is concentrated on the steps that should be taken for the discussion of issues concerning territorial structure, including the different ethnic groups in the debate for solving current left out, but important issues within the constitution.
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Cozzi, Nina. "The Drafting of the Post-War Constitutions in France and Italy. Differences and Similarities." Rechtsgeschichte - Legal History 2023, no. 31 (2023): 275–77. http://dx.doi.org/10.12946/rg31/275-277.
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Orozco Pulido, Jesús Manuel. "Drafting a Constitution Is Not Drafting a Statute: An Analysis of the Mexican Constitution and Hyper-Amending Pathologies from the Legislative Drafting Perspective." Mexican Law Review 13, no. 1 (July 2, 2020): 203. http://dx.doi.org/10.22201/iij.24485306e.2020.1.14814.
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This note critically examines the way the Mexican Constitution has changed since it was originally written, due to a large number of amend¬ments. Through 239 decrees of constitutional reforms, which represent 732 modifications to constitutional articles, the current constitutional text is not the same document that arose from the Mexican Revolution. This vertiginous chan¬ge is analyzed from the perspective of theoretical and practical notions of legis¬lative drafting in common law countries. A huge number of reforms demons¬trates a constitution’s volatility, and the way reforms are written has a direct impact on whether or not it is observed. In fact, a proper process of redaction in legislative drafting can provide ideas for improving the quality of legislation. Reforming the constitution, as has been done by Mexican constituent powers, can overload the fundamental text with specific rules, rather than principles. An excessive use of words, an arbitrary use of subdivisions and an excessive num¬ber of transitory norms are common elements of constitutional amendments. Some specific traits of those amendments are analyzed in order to propose ways to improve the efficacy of the constitution through a better legislative drafting process for reforms. All of this in order to reach a better level of comprehension of the normative purpose of amendments by their final recipients: citizens and institutions.
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Tribe, Laurence. "Soundings and Silences." Michigan Law Review Online, no. 115 (2016): 26. http://dx.doi.org/10.36644/mlr.online.115.soundings.
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My work over the years has included both studying existing constitutions, particularly that of the United States, and assisting others with the drafting of new constitutions—from the Marshall Islands to the Czech Republic to South Africa. Among the things I noticed was that those undertakings, although distinct, were related—and related most significantly in the way that formative decisions about what to say and what not to say in a new constitution have bearing on later decisions about how to interpret what a constitution says or fails to say. My decision to pay special attention to the various roles of silence in the distinct but related projects of constitution-making and constitution-interpreting was underscored by an observation a law student of mine (Louis Fisher, J.D. 2016) once made about how he had been struck by the “presence of absence” in Berlin’s modern urban landscape. My student was moved by the way Berlin harnessed the “power of negative space in framing the public memory of World War II, from skeletal monuments outlining former churches to negative-space sculptures of murdered Jewish families.” I was born in Shanghai to Russian Jewish refugees, many of whose closest relatives had perished in the pogroms of Russia or had been silenced in the ultimate sense at the hands of the Nazis. That made this image of absence particularly vivid and meaningful to me. As I look back at where I came from and what I’ve done over the course of my professional life, it strikes me that attempting to organize and give structure to the study of legal silence has been a primary purpose of much of what I have written and taught over the past half-century. In recent years, I decided to focus more systematically on that attempt in an advanced seminar I have been teaching at Harvard Law School and, to a lesser degree, in courses I have taught as a University Professor to Harvard College undergraduates. This paper is an outgrowth of that effort—an outline of how I hope to pursue it in the years that remain, and how I hope others will pursue it as well.
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Tribe, Laurence. "Soundings and Silences." Michigan Law Review Online, no. 115 (2016): 26. http://dx.doi.org/10.36644/mlr.online.115.soundings.
Full textAbstract:
My work over the years has included both studying existing constitutions, particularly that of the United States, and assisting others with the drafting of new constitutions—from the Marshall Islands to the Czech Republic to South Africa. Among the things I noticed was that those undertakings, although distinct, were related—and related most significantly in the way that formative decisions about what to say and what not to say in a new constitution have bearing on later decisions about how to interpret what a constitution says or fails to say. My decision to pay special attention to the various roles of silence in the distinct but related projects of constitution-making and constitution-interpreting was underscored by an observation a law student of mine (Louis Fisher, J.D. 2016) once made about how he had been struck by the “presence of absence” in Berlin’s modern urban landscape. My student was moved by the way Berlin harnessed the “power of negative space in framing the public memory of World War II, from skeletal monuments outlining former churches to negative-space sculptures of murdered Jewish families.” I was born in Shanghai to Russian Jewish refugees, many of whose closest relatives had perished in the pogroms of Russia or had been silenced in the ultimate sense at the hands of the Nazis. That made this image of absence particularly vivid and meaningful to me. As I look back at where I came from and what I’ve done over the course of my professional life, it strikes me that attempting to organize and give structure to the study of legal silence has been a primary purpose of much of what I have written and taught over the past half-century. In recent years, I decided to focus more systematically on that attempt in an advanced seminar I have been teaching at Harvard Law School and, to a lesser degree, in courses I have taught as a University Professor to Harvard College undergraduates. This paper is an outgrowth of that effort—an outline of how I hope to pursue it in the years that remain, and how I hope others will pursue it as well.
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Buda Dhuli, Brikena. "Organization of the Albanian Judicial System." Interdisciplinary Journal of Research and Development 8, no. 1 (July 15, 2021): 10. http://dx.doi.org/10.56345/ijrdv8n102.
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All the countries of the former communist bloc, after the fall of totalitarian regimes in the early 1990s, established new governments oriented towards democratic reforms, following the model of countries with high standard democracies, which put the focus on the individual and his freedoms and rights. A distinctive feature of these new democracies in relation to their socio-political tradition was the drafting of liberal constitutions in which state power is distributed among different institutions to achieve a separation of powers, where a functional component of any government is the separation of the judiciary by the executive. The Constitution of the Republic of Albania clearly reflects the intention of the people for the construction of the rule of law, ie a state where the rule of law shall prevail and where everyone is equal before the law. The Constitution, based on the state-building philosophy, accepts the principle of separation of powers . By sanctioning this principle in the given Constitution, the powers in the Republic of Albania are separated and exercised by different state bodies in such a way that no power can exceed its competencies, without being subject to control and counteraction by other powers. Based on the principle of separation of powers, the judicial function is exercised only by the courts. This is the reason why the exercise of judicial function by other powers shall be prohibited, since it violates the independence of the judiciary.
Received: 5 June 2021 / Accepted: 10 July 2021 / Published: 15 July 2021
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Kupisz, Dariusz. "Marszałek izby poselskiej w sejmie Rzeczypospolitej XVI–XVIII w." Przegląd Sejmowy 6(167) (2021): 171–94. http://dx.doi.org/10.31268/ps.2021.78.
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The jurisdiction and tasks of the marshals (speakers) of the Old-Polish Sejm Chamber of Deputies were shaped in practice and thus were not regulated by law for many decades. The literature on the subject has always stressed that the ‘director’ of the Chamber of Deputies had to reckon with the will of his colleagues, that he did not have too many prerogatives, and the role he played during parliamentary debates resulted primarily from his personal qualities and social position. This article, however, deals with customary powers and prerogatives of the Sejm marshal, and those which in the eighteenth century began to be described in parliamentary constitutions. It is also an attempt to synthetically summarise the research conducted thus far into the ways of electing the marshal of the Sejm and the role he played in the Sejm from the sixteenth to the eighteenth century. It involved not only presiding over the sessions of the Chamber of Deputies and did not end with the closing of the Sejm session, but also included important activities after the session had finished, related to the drafting of the constitutions, and managing the election of the next marshal, which was no less important at the beginning of the next Sejm.
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Dörmann, Knut. "The First and Second Sessions of the Preparatory Commission for the International Criminal Court." Yearbook of International Humanitarian Law 2 (December 1999): 283–306. http://dx.doi.org/10.1017/s1389135900000465.
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The adoption of the Statute of the International Criminal Court in July 1998 in Rome was the culmination of years of effort by the international community. Under Article 126, the Statute will enter into force once it is ratified by 60 states. As many states will have to enact national legislation or even change their constitutions before ratification to comply with the obligations of the Statute, the required number of ratifications will probably not be reached in the short term.Besides, a number of tasks still remain to be undertaken by states, as indicated in the Statute itself, namely, drafting of a document called ‘Elements of Crimes’ (EOC), drafting of the Rules of Procedure and Evidence (RPE) and reaching agreement on the definition of the crime of aggression. Therefore, the UN General Assembly has mandated a Preparatory Commission (PrepCom) to prepare draft texts of the RPE and EOC and proposals for a provision on aggression, including its definition, elements and the conditions under which the International Criminal Court (ICC) shall exercise its jurisdiction with respect to this crime. The drafts of the EOC and RPE must be finalized by 30 June 2000, when they should be formally adopted. The definition of aggression does not have to be agreed on until the first review conference seven years after the entry into force of the Statute. In addition to these tasks, which this article will describe in greater detail, the PrepCom will work on a relationship agreement between the Court and the United Nations, basic principles governing a headquarters agreement and financial regulations and rules.
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Melançon, Dominique. "Aperçu du statut des Territoires du Nord-Ouest et du Yukon en droit constitutionnel canadien." Les Cahiers de droit 29, no. 3 (April 12, 2005): 599–636. http://dx.doi.org/10.7202/042902ar.
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The 1987 Constitutional Accord between the prime minister and the ten provincial premiers has caused discontent amongst the Northwest Territories and Yukon governments. They object to various elements in the Accord which do not confer on them rights identical to those of the provinces, to other elements which are likely to affect their future political evolution and to the fact that the Accord was concluded without their participation. By challenging the Accord before the courts, they have drawn national attention to their status within Confederation. Furthermore, some progress in the status of the Territories was made by the signing of a boundary and constitutional agreement by the Constitutional Assembly of the Western Region and that of Nunavut in Iqaluit on January 15, 1987 for purposes of dividing the Northwest territories. Although the agreement could not be ratified by referendum, it contains the basic principles for guiding the drafting of respective constitutions for the two new entities that will be created. Within the framework of recent events, the author first presents the main stages in the evolution of governmental organization in the Territories and then goes on to analyse their present legal status. This study makes it possible to see if recent evolution will cause the territorial governments increasingly to resemble provincial governments. Nonetheless, in many ways they still remain in a state of dependency vis-à-vis federal authorities. In conclusion, the author observes that the evolution of the Territories with regard to legislative and executive powers and bodies does not mean that they will necessarily obtain provincial status. Their accession to greater political autonomy could possibly become a reality by the implementation of original solutions, distinct from those of southern Canada and better adapted to the specific needs of the North and its important native population.
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Khaled Abdulrahman, Aveen. "الصياغة الدستورية و أثرها على تفسيرات المحكمة الأتحادية العليا في العراق." Journal of duhok university 23, no. 2 (December 19, 2020): 169–86. http://dx.doi.org/10.26682/hjuod.2020.23.2.10.
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The constitutional drafting stage is one of the stages in writing the constitution, which is a process of transferring ideas and principles from their philosophical-intellectual framework to a linguistic framework through a set of expressive words and methods or to make them implement valid, and through fit drafting that able to reach the truth. there are many methods of constitutional drafting, between hard drafting which is specified to the obligation and judgment, and the soft drafting which is not specified that leaves the interpreter for discretionary authority to interpret according to the circumstances and facts, as well as there is ambiguous drafting in which the intention of the legislator cannot be easily known and the fluctuating drafting in which the constitutional drafter handles to fix the same topic, but in different formulations, which leads to ambiguity of the intention of the legislator, and the drafter of the Iraqi constitution in 2005 relied on more than one method in drafting the texts of the constitution, and we show how some of these formulations had a negative impact on the decisions of the Iraqi Federal Supreme Court when exercising its jurisdiction in interpreting the constitution until some of them generated a political and legal controversy at the same time.
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Denny, Denny, and Hari Sutra Disemadi. "Cryptocurrencies as Digital Payment Media: Opportunities and Challenges." Law and Justice 7, no. 2 (February 9, 2023): 128–42. http://dx.doi.org/10.23917/laj.v7i2.743.
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Cryptocurrency is a centralised network currency system that can connect users without intermediaries or third parties such as banks or governments. Countries globally have different attitudes in drafting regulations regarding cryptocurrencies; some accept, reject, or are neutral. The application of cryptocurrency as a payment medium has not yet been regulated in Indonesian legal jurisdiction. However, cryptocurrencies have various opportunities that can positively impact the country's economy. Indonesia must face various challenges in implementing cryptocurrency as payment. This study examines the opportunities and challenges of implementing cryptocurrency as a payment medium by using a responsive legal theory review. The study was carried out using doctrinal research methods. Indonesia's cryptocurrencies currently do not have a lex specialist (particular regulation). However, the application of cryptocurrency as a payment medium can increase e-commerce transactions, have a payment system with high confidentiality and security, and fast, precise, and low-cost transactions. The challenges that must be implemented are developing institutions and legal constitutions that regulate cryptocurrencies as a payment medium, developing blockchain systems and their application in cellular technology.
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Odendaal, Andre. "Providing the Context for the Debate on the “Human” Imagined in the Drafting of the ANC’S Constitutional Guidelines in Lusaka, 1985–89." Afrika Focus 36, no. 1 (June 2023): 11–40. http://dx.doi.org/10.1163/2031-356x-20230102.
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Abstract This article attempts to provide an historical context for current debates on South Africa’s 1996 constitution. It argues that the template for the new Constitution was forged by the anc in Lusaka, Zambia between 1985 and 1989, well before the ‘unbannings’ of February 1990 which are generally assumed to have been the starting point of the constitution-making process. The author outlines how the organisation and its allies wove constitutionalism in as one of the distinct threads of an enormously complex, multifaceted and sometimes contradictory process of struggle and constitutional planning that finally pushed the regime into a corner and led to the unbannings of 1990. Besides re-periodising the constitution-making narrative, the article stresses the African ‘essence’ of this struggle and the importance of African agency and ideas in forging the constitutional foundations for the future. Multiple levels of intergenerational experience, thinking and nuance are not catered for in often sloganised debates about the Constitution’s origins. This will require scholars interested in the decolonial project to self-interrogate sometimes mechanistic assumptions about the “inherited” Western underpinnings of the Constitution, it concludes.
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Lafitsky, Vladimir. "“Crimea Acts” of 1954: International Legal Principles." Russian Law Journal 8, no. 4 (November 24, 2020): 4–29. http://dx.doi.org/10.17589/2309-8678-2020-8-4-4-29.
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Crimea was transferred to Ukraine by Russia in February 1954 in violation of not only of the constitutions of the USSR, Russia (RSFSR), and Ukraine (Ukrainian SSR) in force at that time, but also of the principles of international law. This thesis is substantiated by a detailed analysis of the legal acts that formalized the transfer of Crimea to Ukraine; by research into the historical context of their adoption; by an assessment of whether these acts conform to international legal standards; and by the testimony of the author of the present article, who consulted on draft Union Treaty in 1990–1991, in drafting laws of the Republic Crimea in 1994–1995, and in presenting the legal position of the Russian Federation on Crimea in the Venice Commission of the Council of Europe in March 2014. The author expands upon the legal position of Russia on Crimea and addresses existing conflicts in legislation of the Russian Federation as the legal continuer of the USSR and the RSFSR; applies the international legal means for protecting the interests and the will of the people of Crimea and to prevent further escalation of the confrontation between Russia and Ukraine.
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Sigalet, Geoffrey Thomas. "Dialogue and distrust: John Hart Ely and the Canadian Charter." International Journal of Constitutional Law 19, no. 2 (April 1, 2021): 569–85. http://dx.doi.org/10.1093/icon/moab046.
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Abstract John Hart Ely’s process theory of judicial review has had an influence on constitutions across the globe. This article explores and evaluates Ely’s influence on the drafting and development of the 1982 Canadian Charter of Rights and Freedoms. The article first outlines the rudimentary elements of Ely’s theory of judicial review, then how Ely’s explicit influence on the development of the Charter has mostly been limited to the context of Section 15 equality rights. But Ely’s influence has been more extensive in the way scholars have sought to understand the Charter. The third section of this article shows how Ely has had an impact on Patrick Monahan’s theory of judicial review under the Charter, and in Rosalind Dixon’s process theory of dialogue. The article concludes by arguing that although Ely’s concerns remain relevant in the Canadian context, there are two reasons to be skeptical of using Ely’s theory to understand Charter rights: the first reason is that the Charter features substantive rights that do not seem to be reducible to protections for participation in the political process; the second reason is that process-based dialogue theory appears to be insufficiently distrusting of courts.
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George, Anita. "Not so sweet refrain: sugar-sweetened beverage taxes, industry opposition and harnessing the lessons learned from tobacco control legal challenges." Health Economics, Policy and Law 14, no. 4 (May 21, 2018): 509–35. http://dx.doi.org/10.1017/s1744133118000178.
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AbstractAs a growing number of countries implement, or announce plans to introduce, a sugar-sweetened beverage (SSB) tax, this paper explores the public health rationale for such a tax and provides an overview of the international normative and policy instruments supporting the introduction of fiscal measures on sugary drinks. After examining parallels between the legal arguments raised by the food and beverage industry in opposition to SSB taxes and those raised by the tobacco industry in response to tobacco control measures, this paper draws four key lessons that will assist countries to design effective and robust SSB tax measures and counter food and beverage industry opposition: regulatory distinctions in tax coverage should be based on bona fide, evidence-based reasoning; evidence-based measures need to be tailored to a country’s public health objectives as part of a comprehensive strategy to address unhealthy diet consumption; procedural requirements and due process should be observed in the drafting and implementation of the measure; and regulatory space exists within domestic constitutions, laws and international trade and investment agreements recognising the sovereign right of states to regulate in the interests of public health.
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Abdulatteef, Samer Muayed, and Safaa Mohammed Abed. "Legal regulation of the Iraqi National Intelligence Service (A comparative analytical study)." International and Political Journal 54 (May 18, 2023): 31–57. http://dx.doi.org/10.31272/ipj.54.2.
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This research attempts to study some of the laws of the intelligence agencies in certain countries in terms of organizing and supervising these agencies, as these agencies play an important and fundamental role in protecting national security and supporting the rule of law. Its direct objective is to collect, analyze and disseminate information that helps policy makers take the necessary measures to protect national security, which includes the protection of individuals and their private rights.
This research deals with the problem of weak legislative drafting of the Iraqi Intelligence Law of 2013 in many aspects, the most important of which is its extreme brevity and linking it to other laws of a civil nature.
The research adopted a comparative analytical methodology that examined the constitutions of the Federal Republic of Germany, the Arab Republic of Egypt and the Republic of Iraq, with an analysis and comparison of intelligence laws in those countries.
The research is divided into two main chapters in addition to the introduction and conclusion. The first chapter is titled The Concept of Intelligence, while the second one is titled Legal Provisions for the Intelligence Service.
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Mohamed Afify, Ayman, Sam Dalla, and Hamoud Tannar. "Legal Adaptation for the Syrian Constitutional Committee Formed Based on UN Security Council Resolution 2245." Access to Justice in Eastern Europe 7, no. 1 (December 1, 2023): 1–21. http://dx.doi.org/10.33327/ajee-18-7.1-r000101.
Full textAbstract:
Background: Presumably, constitution-making is a national process reflecting the state’s sovereignty and people's will. The severity of the conflict in Syria and its danger led the international community to intervene, and in 2015, the Security Council issued Resolution 2254 to settle the conflict. This resolution, in item 4, called for the start of the drafting process of a new Constitution for Syria; hereby, the Constitutional Committee was formed in Geneva in 2019 with the agreement of the conflict parties, the government and the opposition, and the consent of the international community represented by the United Nations. This research discusses the extent to which the intervention of the United Nations in the Syrian Constitutional Committee's formation and work in Geneva affects the principle of the Constitution's nationalism and state sovereignty. The research also discusses the legitimacy of the powers granted to this committee, whether in drafting a new constitution for the Syrian state or amending the current 2012 Constitution, and whether they conflict with the national sovereignty principle in considering the constitutional law principles. Methods: We relied on the analytical method to study the legal adaptation of the Syrian Constitutional Committee formed based on Security Council Resolution 2254. The impact of the United Nations intervention in the Syrian Constitutional Committee and whether it conflicts with the principle of national sovereignty depends on clarifying the role played by the United Nations in forming the committee and its ability to impose binding decisions on it. Achieving this objective requires analysing the powers of the Constitutional Committee in light of the principles and rules of constitutional law. This entails determining whether the committee possesses the full authority of the original constituent power to establish a new constitution for the state without referring to the people or if its jurisdiction is limited to drafting. Through this analytical method, we shall know whether the formation of the Constitutional Committee and the jurisdiction granted contradicts the principle of national sovereignty, which assumes that the Constitution is a national industry. Results and Conclusions: The formation of the Syrian Constitutional Committee, authorised by the United Nations through the Security Council Resolution 2254, does not detract from Syrian national sovereignty nor conflict with the principle of constitutional nationalism. Firstly, the formation of the constituent authority responsible for establishing the Constitution is not a legal issue but rather derives its existence from reality, and this applies to the Syrian Constitutional Committee, which derived its existence from the Syrian reality conflict and with the agreement of its parties, government and opposition. Therefore, one cannot say that the formation of this committee is illegitimate or inconsistent with the principles of constitutional law, given the absence of a legal framework governing the mechanism for forming the constituent authority, whether in Syrian constitutional law or comparative constitutional law. The Constitution is a result of the circumstances and situations that have accompanied its emergence and determined the method of its establishment. Secondly, the Constitutional Committee is not a full constituent authority because it does not have the power to approve a new constitution or an amendment to the current Constitution in its sole discretion. It might adapt as a technical consensus committee whose role is limited to formulating proposals that require popular consent. Thirdly, It is arguable that Security Council Resolution 2254 and the decision to form the Syrian Constitutional Committee constitute the legal framework from which this committee derives its legitimacy and work. Therefore, we can say that the issue of forming the Syrian Constitutional Committee and its work has become a legal issue governed by an international legal framework, marking a departure from its previous extrajudicial status under national constitutional law.
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Sadovskaya, Lubov M. "The Evolution of Parliamentarism in Africa in the Context of Social Transformation and the Formation of a Multipolar World." Asia and Africa Today, no. 8 (2023): 42. http://dx.doi.org/10.31857/s032150750027154-1.
Full textAbstract:
The article is devoted to the study of parliaments’ role in the state structure of African countries and their place in the system of powers’ separation. It is noted that, for historical reasons, the presidential rather than parliamentary form of government prevails in many countries. In the mass consciousness, the function of the president is still associated with the role of the leader. But the constitutions of African states have been changed compared to those that existed in the 1950–1980s. They have significantly expanded the powers of representative authorities. But they are not always and not fully implemented in practice. The personalization of power also weakens the prestige of legislative assemblies. There are also other causes hindering the development of parliamentarism, which are discussed in detail in this article. Along with such causes, the positive shifts towards the strengthening parliaments’ role on the continent are analyzed. The situation is improving, especially in South Africa, where the level of executive control is quite strong. Parliamentary sessions and budget voting are regularly held in most African countries. The analysis of new constitutional legislative and regulatory acts makes it possible to detect a formal increase in the powers of parliament in drafting laws. The paper examines the Pan-African Parliament’s activities in the structures of the African Union. The causes that prevent the Parliament from becoming a full-fledged legislative body are examined. Attention is paid to the prospects for strengthening Russian-African cooperation, which received a new impetus after the Second International Parliamentary Conference “Russia – Africa” held in Moscow in March 2023. This forum confirmed the political solidarity of African countries with Russia in the context of the formation of a just multipolar world. It outlined the vector of future inter-parliamentary cooperation between African countries and Russia.