Pub Date : 2023-02-14DOI: 10.47743/rdc-2022-1-0003
Blerton Sinani
The emanation of the Covid-19 global pandemic has managed to influence specific legal, political and socio-economic aspects. Public health, public institutions, as well as concepts such as: the rule of law, restriction of certain human rights and socio-economic wellbeing became characteristics of the global pandemic and as such triggered a state of emergency. The pandemic cannot be a justified pretext for an unlimited suspension of democracy. Indeed, restrictions on civil rights and liberties ought to be interim, proportional and transparent. Although the emergency measures taken by governments against the Covid-19 should be provisional, timebound and in congruence with democracy as any contemporary political regime or state governed by the rule of law. This situation once again revealed to us the importance of a constitutional state of emergency guided by public law in its forms and examples of comparative constitutional law regarding events which in 2020 demanded the emergence and function of public institutions in an effort to protect society. The state of emergency is regulated by the Constitution of the Republic of North Macedonia of 1991 in general which gives the government expansive power, such as bypassing the parliament’s power through issuing acts by force of law. It is worth mentioning that in North Macedonia there is no lex specialis or special legislative act that regulates a state of emergency.
{"title":"The impact of the COVID-19 Pandemic on constitutionalism and the state of emergency","authors":"Blerton Sinani","doi":"10.47743/rdc-2022-1-0003","DOIUrl":"https://doi.org/10.47743/rdc-2022-1-0003","url":null,"abstract":"The emanation of the Covid-19 global pandemic has managed to influence specific legal, political and socio-economic aspects. Public health, public institutions, as well as concepts such as: the rule of law, restriction of certain human rights and socio-economic wellbeing became characteristics of the global pandemic and as such triggered a state of emergency. The pandemic cannot be a justified pretext for an unlimited suspension of democracy. Indeed, restrictions on civil rights and liberties ought to be interim, proportional and transparent. Although the emergency measures taken by governments against the Covid-19 should be provisional, timebound and in congruence with democracy as any contemporary political regime or state governed by the rule of law. This situation once again revealed to us the importance of a constitutional state of emergency guided by public law in its forms and examples of comparative constitutional law regarding events which in 2020 demanded the emergence and function of public institutions in an effort to protect society. The state of emergency is regulated by the Constitution of the Republic of North Macedonia of 1991 in general which gives the government expansive power, such as bypassing the parliament’s power through issuing acts by force of law. It is worth mentioning that in North Macedonia there is no lex specialis or special legislative act that regulates a state of emergency.","PeriodicalId":421528,"journal":{"name":"Revista de Drept Constituțional","volume":"121 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115165354","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
New technologies have always challenged the social, economic, legal, and ideological status quo. Constitutional law is no less impacted by such technologically driven transformations, as the state must formulate a legal response to new technologies and their market applications, as well as the state's own use of new technology. In particular, the development of data collection, data mining, and algorithmic analysis by public and private actors present unique challenges to public law at the doctrinal as well as the theoretical level. This collection, aimed at legal scholars and practitioners, describes the constitutional challenges created by the algorithmic society. It offers an important synthesis of the state of play in law and technology studies, addressing the challenges for fundamental rights and democracy, the role of policy and regulation, and the responsibilities of private actors. This title is also available as Open Access on Cambridge Core.
{"title":"Constitutional Challenges in the Algorithmic Society","authors":"Ruxandra Andreea Lăpădat","doi":"10.1017/9781108914857","DOIUrl":"https://doi.org/10.1017/9781108914857","url":null,"abstract":"New technologies have always challenged the social, economic, legal, and ideological status quo. Constitutional law is no less impacted by such technologically driven transformations, as the state must formulate a legal response to new technologies and their market applications, as well as the state's own use of new technology. In particular, the development of data collection, data mining, and algorithmic analysis by public and private actors present unique challenges to public law at the doctrinal as well as the theoretical level. This collection, aimed at legal scholars and practitioners, describes the constitutional challenges created by the algorithmic society. It offers an important synthesis of the state of play in law and technology studies, addressing the challenges for fundamental rights and democracy, the role of policy and regulation, and the responsibilities of private actors. This title is also available as Open Access on Cambridge Core.","PeriodicalId":421528,"journal":{"name":"Revista de Drept Constituțional","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129666422","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.47743/rdc-2023-1-0004
Marian Mădălin Pușcă
Decisions rendered by the Supreme Court in the framework of the mechanism for unification of judicial practice may be subject to the assessment of the Constitutional Court. The intervention of the constitutional court is aimed exclusively at the text of the law criticized in relation to the interpretation offered within the mechanism of unification of judicial practice, without declaring unconstitutional the legal provision itself, with consequences on the rule of law under review, but only by giving a constitutional meaning to the text of the law as interpreted. The present research aims to identify the judgments handed down by the High Court's Criminal Matters Panel that were invalidated by the constitutional review court and to what extent the law under review was or was not amended after the intervention of the constitutional court. At the same time, we consider the following methodological means: literature review, comparative method, research and interpretation.
{"title":"The constitutionality of decisions delivered by the Full Court on Points of Law","authors":"Marian Mădălin Pușcă","doi":"10.47743/rdc-2023-1-0004","DOIUrl":"https://doi.org/10.47743/rdc-2023-1-0004","url":null,"abstract":"Decisions rendered by the Supreme Court in the framework of the mechanism for unification of judicial practice may be subject to the assessment of the Constitutional Court. The intervention of the constitutional court is aimed exclusively at the text of the law criticized in relation to the interpretation offered within the mechanism of unification of judicial practice, without declaring unconstitutional the legal provision itself, with consequences on the rule of law under review, but only by giving a constitutional meaning to the text of the law as interpreted. The present research aims to identify the judgments handed down by the High Court's Criminal Matters Panel that were invalidated by the constitutional review court and to what extent the law under review was or was not amended after the intervention of the constitutional court. At the same time, we consider the following methodological means: literature review, comparative method, research and interpretation.","PeriodicalId":421528,"journal":{"name":"Revista de Drept Constituțional","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122288433","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.47743/rdc-2021-2-0001
Vijaylaxmi Sharma, Prabhpreet Singh
According to the principle of separation of powers, there shall be division of power into legislative, executive and judicial branches, in order to protect political freedom. The power of these three bodies shall be restricted to their own specific boundaries and thus, no overlap is allowed. The onset of the 21 st century has witnessed the problem of draconian legislations in most of the nations. Lots of questions are asked by citizens of such nations regarding the right to equality, freedom of speech and expression and the right to dissent. The interference of judiciary has become the essence of time to protect individual liberty and ensure the rule of law. Constitutionalism is one such principle which protects constitutional values by restricting the power of the state. The power of legislature is limited by the judiciary, which tests the validity of laws on touchstone of constitution. In some circumstances, the judiciary also breaches the compartment of separation of powers and lays down guidelines in form of laws which originally is the function of the legislature. This paper discusses such circumstances where it has become vital for the judiciary to keep a balance between the separation of powers and the principle of checks and balances. Also, such practices ensure constitutionalism in the nations.
{"title":"A comparative study of separation of powers – an aspect of constitutionalism","authors":"Vijaylaxmi Sharma, Prabhpreet Singh","doi":"10.47743/rdc-2021-2-0001","DOIUrl":"https://doi.org/10.47743/rdc-2021-2-0001","url":null,"abstract":"According to the principle of separation of powers, there shall be division of power into legislative, executive and judicial branches, in order to protect political freedom. The power of these three bodies shall be restricted to their own specific boundaries and thus, no overlap is allowed. The onset of the 21 st century has witnessed the problem of draconian legislations in most of the nations. Lots of questions are asked by citizens of such nations regarding the right to equality, freedom of speech and expression and the right to dissent. The interference of judiciary has become the essence of time to protect individual liberty and ensure the rule of law. Constitutionalism is one such principle which protects constitutional values by restricting the power of the state. The power of legislature is limited by the judiciary, which tests the validity of laws on touchstone of constitution. In some circumstances, the judiciary also breaches the compartment of separation of powers and lays down guidelines in form of laws which originally is the function of the legislature. This paper discusses such circumstances where it has become vital for the judiciary to keep a balance between the separation of powers and the principle of checks and balances. Also, such practices ensure constitutionalism in the nations.","PeriodicalId":421528,"journal":{"name":"Revista de Drept Constituțional","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122881625","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.47743/rdc-2017-1-0001
Codrin Timu
The German constitution protection law represents the entirety of legal norms, which aim towards the protection of the free democratic fundamental order of Germany and towards the existence and security of the federation or of a land. The article represents a short introduction to this law domain and details its fundaments and its actual regulation. As early as 1952 the Federal Constitutional Court of Germany defined the expression “free democratic fundamental order of Germany” as being one of the main objects of protection and defense of the German offices for the protection of the constitution. Handling with this subject has a specific importance, because Germany (as well) is one democratic state that adopted in the constitution a “democratic anti-extremist ideology”. The principle of militant democracy (wehrhafte Demokratie) was adopted by the constitutional legislator as a solution to the “democratic dilemma” of the 1920s, when the constitutionalists of the time asked themselves, if a democracy should have the right to dissolve itself through a democratic procedure. In this way, Germany created after the Second World War the offices for the protection of the constitution.
{"title":"Introduction to the German constitution protection law (VERFASSUNGSSCHUTZRECHT)","authors":"Codrin Timu","doi":"10.47743/rdc-2017-1-0001","DOIUrl":"https://doi.org/10.47743/rdc-2017-1-0001","url":null,"abstract":"The German constitution protection law represents the entirety of legal norms, which \u0000aim towards the protection of the free democratic fundamental order of \u0000Germany and towards the existence and security of the federation or of a land. \u0000The article represents a short introduction to this law domain and details its \u0000fundaments and its actual regulation. As early as 1952 the Federal \u0000Constitutional Court of Germany defined the expression “free democratic \u0000fundamental order of Germany” as being one of the main objects of protection \u0000and defense of the German offices for the protection of the constitution. \u0000Handling with this subject has a specific importance, because Germany (as well) \u0000is one democratic state that adopted in the constitution a “democratic \u0000anti-extremist ideology”. The principle of militant democracy (wehrhafte \u0000Demokratie) was adopted by the constitutional legislator as a solution to the \u0000“democratic dilemma” of the 1920s, when the constitutionalists of the time \u0000asked themselves, if a democracy should have the right to dissolve itself \u0000through a democratic procedure. In this way, Germany created after the Second \u0000World War the offices for the protection of the constitution.","PeriodicalId":421528,"journal":{"name":"Revista de Drept Constituțional","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127966164","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.47743/rdc-2022-2-0004
Nabila Akter
{"title":"CONSTITUTIONALIZATION OF INTERNATIONAL LAW: A COMPARATIVE ANALYSIS BETWEEN BANGLADESH AND INDIA","authors":"Nabila Akter","doi":"10.47743/rdc-2022-2-0004","DOIUrl":"https://doi.org/10.47743/rdc-2022-2-0004","url":null,"abstract":"","PeriodicalId":421528,"journal":{"name":"Revista de Drept Constituțional","volume":"69 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128163504","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.47743/rdc-2022-1-0005
Ingrid A. Muller
{"title":"Brief comparative analysis on the constitutionality of non-voluntary arbitration","authors":"Ingrid A. Muller","doi":"10.47743/rdc-2022-1-0005","DOIUrl":"https://doi.org/10.47743/rdc-2022-1-0005","url":null,"abstract":"","PeriodicalId":421528,"journal":{"name":"Revista de Drept Constituțional","volume":"82 1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124268494","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.47743/rdc-2016-2-0002
Codrin Timu, Martin Ibler
“The rule of law and the federal state, as well as the protection of the fundamental rights could forbid the fusion of certain offices or the delegation of these offices with functions that are incompatible with their constitutional position“1. In this manner the Federal Constitutional Court of Germany mentions the separation between police and the offices for the protection of the constitution. After the terrorist attacks in the USA, Spain, France, Belgium and Germany, the teamwork between the state offices has kept on intensifying. The discussion (debate) about the legal framework of the separation principle continued however to exist. In a time, where the security of the citizens steals away the space of the fundamental rights, to treat this subject is of the utmost importance2, in order not to allow the recurrence of the mistakes of the Weimar Republic. The article deals with the legal framework of the German separation between police and the offices for the protection of the constitution and gives an answer to the question if this principle has a constitutional status.
{"title":"The german separation between police and the offices for the protection of the Constitution. Legal framework","authors":"Codrin Timu, Martin Ibler","doi":"10.47743/rdc-2016-2-0002","DOIUrl":"https://doi.org/10.47743/rdc-2016-2-0002","url":null,"abstract":"“The rule of law and the federal state, as well as the protection of the fundamental \u0000rights could forbid the fusion of certain offices or the delegation of these offices \u0000with functions that are incompatible with their constitutional position“1. In this \u0000manner the Federal Constitutional Court of Germany mentions the separation \u0000between police and the offices for the protection of the constitution. After the \u0000terrorist attacks in the USA, Spain, France, Belgium and Germany, the \u0000teamwork between the state offices has kept on intensifying. The discussion \u0000(debate) about the legal framework of the separation principle continued \u0000however to exist. In a time, where the security of the citizens steals away the \u0000space of the fundamental rights, to treat this subject is of the utmost \u0000importance2, in order not to allow the recurrence of the mistakes of the Weimar \u0000Republic. The article deals with the legal framework of the German separation \u0000between police and the offices for the protection of the constitution and gives \u0000an answer to the question if this principle has a constitutional status.","PeriodicalId":421528,"journal":{"name":"Revista de Drept Constituțional","volume":"65 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125968046","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.47743/rdc-2016-4-0002
Slobodan Milačić
La démocratie se trouve face à un défi historique, avec l'évolution accélérée du monde. Si la démocratie est un système éminemment politique et si le politique implique, conformément aux postulats fondateurs, l'autonomie de la volonté des hommes, des citoyens (volonté prépondérante ou «surdéterminante»), on peut affirmer que les hommes sont dans une certaine mesure responsables pour l'éclipse dans laquelle se trouve le politique, dans sa version démocratique. Ainsi, la démocratie a permis que ses Sujets deviennent, dans une bonne mesure, des objets du marché. Dans cette perspective, il n'est pas sans raison d'affirmer que la démocratie est devenue son propre ennemi...
{"title":"Les ennemies de la democratie. Elements pour une problematique systemique","authors":"Slobodan Milačić","doi":"10.47743/rdc-2016-4-0002","DOIUrl":"https://doi.org/10.47743/rdc-2016-4-0002","url":null,"abstract":"La démocratie se trouve face à un défi historique, avec l'évolution accélérée du monde. \u0000Si la démocratie est un système éminemment politique et si le politique \u0000implique, conformément aux postulats fondateurs, l'autonomie de la volonté \u0000des hommes, des citoyens (volonté prépondérante ou «surdéterminante»), on \u0000peut affirmer que les hommes sont dans une certaine mesure responsables \u0000pour l'éclipse dans laquelle se trouve le politique, dans sa version démocratique. \u0000Ainsi, la démocratie a permis que ses Sujets deviennent, dans une bonne \u0000mesure, des objets du marché. Dans cette perspective, il n'est pas sans raison \u0000d'affirmer que la démocratie est devenue son propre ennemi...","PeriodicalId":421528,"journal":{"name":"Revista de Drept Constituțional","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128472208","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.47743/rdc-2019-2-0001
Mădălina Dinu
The existence of a fair trial implies the granting of guarantees to the litigant in order to ensure compliance with the principle enshrined, first and foremost, at the constitutional level, but also in the Civil Procedure Code, in the Universal Declaration of Human Rights, the International Covenant on civil and political rights. The fair trial involves, on the one hand, the right of the litigant to a (independent and impartial) court, and on the other hand, the resolution of the case in an optimal and predictable time. In order to respect the optimal and predictable time frame for solving a civil case, the legislator has established a series of obligations, terms and penalties in case of non-compliance by the participants in the trial, but also by the court invested in solving the case.
{"title":"Theoretical and practical aspects regarding solving civil cases in an optimal and predictable time","authors":"Mădălina Dinu","doi":"10.47743/rdc-2019-2-0001","DOIUrl":"https://doi.org/10.47743/rdc-2019-2-0001","url":null,"abstract":"The existence of a fair trial implies the granting of guarantees to the litigant in order to \u0000ensure compliance with the principle enshrined, first and foremost, at the \u0000constitutional level, but also in the Civil Procedure Code, in the Universal \u0000Declaration of Human Rights, the International Covenant on civil and political \u0000rights. The fair trial involves, on the one hand, the right of the litigant to a \u0000(independent and impartial) court, and on the other hand, the resolution of the \u0000case in an optimal and predictable time. In order to respect the optimal and \u0000predictable time frame for solving a civil case, the legislator has established a \u0000series of obligations, terms and penalties in case of non-compliance by the \u0000participants in the trial, but also by the court invested in solving the case.","PeriodicalId":421528,"journal":{"name":"Revista de Drept Constituțional","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128525343","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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