International Journal of Human Rights and Constitutional Studies (17 papers in press)
Direct democracy and its role in revision of constitution comparative cases of Belgium, Switzerland and Germany how history defines the
declaration of the will of people through direct democracy
by Etleva Paplekaj
Abstract: Democracy is a relationship between rulers and the governed ones, the process of constitutional change itself is a relationship between rulers and the governed ones. Constitutional changes are or should be in the service of the constitutional order, in the service of democracy, in the service of the rule of law, in the service of the people. Under the word democracy, under the slogan for the people/with the people have been made constitutional changes that do not represent the people, that do not represent the values that a nation holds/grips, changes that are not legitimate, that represented hidden political interests.
Keywords: Democracy; direct democracy; revision of constitution; referendum; constitutional referendum.
Bearding the lion in his den: mapping sustainability in educational sector during Covid-19 pandemic
by Kanwal Deepinder Pal Singh, Vinayak Jhamb
Abstract: Amidst threat, fear and anxiety of the pandemic COVID-19 multifarious issues permeating through not so permeable boundaries of States have unified the concerns and the respective responses. The pandemic has curbed all sorts of community movement and this has caused a direct effect on the schools and colleges across the globe. These educational centres have been completely shut down owing to contain the spread of this highly contagious virus. However, the academic sessions have been incessantly affected and the classes as well as final examinations have shifted to online mode. Now, the present research intends to decipher the contours of the 4th Sustainable Development Goal, 'quality education'. In these tough times, online mode of education has replaced the conventional set up and the researchers intend to analyse the sanctity of online education and its sustainability in the long run responses.
Keywords: sustainability; education; online methods of teaching; pandemic.
The convergence of art, social media, and the defence of terrorism. A review of the Spanish prosecution of annoying political dissidents
by David Martín-Herrera
Abstract: Recently, the Commissioner for Human Rights of the Council of Europe sent a note to the Spanish Government expressing her concern about the increase in criminal sentences against artists and social media activists. This missive arrives at a time when the debate on freedom of expression has reached a more forceful tone regarding the constitutionally enforceable limits to artistic expression and the social media. In the last decade, the dilemma has revolved around the persecution of expressive behaviours related to the justification of terrorism, incitement to hatred and the honour of the institutions. This article analyses the bases of the special margin of appreciation granted to expressive criminal behaviours in Spain, the guidelines that enabled the rules and the treatment by the courts when no real risk exists. The data will be contrasted with recent European jurisprudence and balanced according to the test of necessary measures in a democratic society.
Keywords: terrorism; hate speech; censorship; freedom of speech; proportionality; chilling effect.
The (extra) constitutionality of election postponement in Ethiopia amidst COVID-19 pandemic
by Marew Abebe Salemot
Abstract: Election postponement in Ethiopia, due to the COVID-19 pandemic, has raised critical constitutional questions that have never been really thought before in the countrys constitutional law jurisprudence. This is because the state of emergency measure in Ethiopia, to contain the spread of COVID-19, was in conflict with constitutional deadlines for elections. The constitutional lacuna is complicated by the absence of explicit constitutional provisions that indisputably govern election postponement. Finally, the House of Federation (HoF), Upper House of Ethiopia which is empowered to interpret the Constitution, postponed the planned election indefinitely under the aegis of constitutional interpretation. The decision undoubtedly contradicts the Ethiopian Constitution since the HoF provided superficial analysis and fallacious reasoning and failed to meaningfully grapple with the serious constitutional issues.
Keywords: COVID-19; election deferral; Ethiopia; constitution; interpretation; second chamber.
Womens employment in Gilgit-Baltistan: a contested terrain
by Rabia Ali, Iffat Bashir
Abstract: This paper aims to explore the attitudes of men towards womens employment in Gilgit-Baltistan in Pakistan. Data was collected through a survey from men belonging to different backgrounds and experiences including professionals working in NGOs, government officers, businessmen, and university students. The data illustrates that despite high literacy rates for women and an increase in labour participation of women in Gilgit city, men do not favour womens work, especially in male-dominated professions. Interestingly though men disapproved of their own sisters/wives/relatives working along with men in certain professions yet they readily accepted the idea of having women colleagues at work. Nevertheless, womens work in private spaces and their contribution to familial responsibilities were acknowledged. Womens employment was believed to involve challenges and barriers including harassment, low wages, and slow promotions. The outcomes of womens work were perceived to be positive and to be leading towards better health conditions and empowerment.
Keywords: women; workplace; attitude; family; conflict; Gilgit-Pakistan.
Protection of rights of vulnerable refugee groups: an ethnographic approach and the challenges for their integration in Greek society
by Eleftheria Banti
Abstract: Human rights play a critical role in the maintenance of a balanced society and public order. Particularly, the exercise and preservation of human rights protects also vulnerable groups such as refugee women and children. This ethnographic research explores the maintenance or the violation of women and unaccompanied minors rights in Greek society. The policies are also indicated and the strategies that the Greek government applies to protect them. This study also examines refugee and asylum-seeking women, girls, and children from another point of view, going through their daily lives in the host country. The enforcement or infringement of their rights in education, in a basic standard of life, in mental health and health care, as well as in legal support are the main sections that are elaborated. Certainly, this research takes into account the broader sociopolitical context in Greece and specific Arabic countries and focuses on the refugees integration.
Keywords: vulnerable groups; refugee children; refugee women; unaccompanied girls; rights implementation; violation of rights; accommodation centres; integration.
Forced marriage in the USA: international law and the US policy
by Nitu Kumari
Abstract: Forced marriage has no single or universal definition. Forced marriage is marriage when one or both parties enter into marriage without their free and full consent or the consent of one or both parties were taken by physical or emotional pressure, duress and threat. Article 16 of Universal Declaration of Human Rights (UDHR) and Article 23 of the International Covenant on Civil and Political Rights (ICCPR) also underlined and stated that consent is an essential notion of marriage, and marriage shall be entered only with free and full consent of intending parties (UDHR, 1948; ICCPR, 1966). Forced marriage is not an issue that only exists in one country or region. It is present almost across the world. In the USA, the laws related to marriage are individually governed by each state. Every state has its own policies on marriage, and in this condition, the issue of forced marriage was not equally noted, and forced marriage became a burning issue in the USA.
Keywords: forced marriage; cultural conflict; universal declaration of human rights; UDHR; USA; marriage law; international law.
The rights of the juvenile in Pakistan
by Afrasiab Ahmed Rana
Abstract: The protection of the rights of the children is a great concern of the modern legal systems. In Pakistan the rights of the juvenile offenders have been protected by two enactments, the Juvenile Justice System ordinance 2000 and the Juvenile Justice System Act 2018 in order to meet the requirements of the United Nations Convention on the Rights of Children, 1989. This paper aims to cover all the rights available to a juvenile offender in Pakistan by analysing and comparing the rights available to the juveniles in the JJSA with the other prevailing laws and the JJSO. The JJSA is an attempt to update the legal rights available to the juveniles up to the international standards and the UNCRC. This paper is an attempt to discuss the rights available to the juveniles in Pakistan and suggests some improvements.
Keywords: juvenile; juvenile justice; rights of the juvenile; juvenile justice system act; UNCRC; bail to the juvenile.
Human rights as an issue in international politics: charting its history to present times
by Koyel Basu
Abstract: Human rights, a significant issue in international politics has not received due attention until recently. Post-1945 world order made promises to keep citizens' rights secured but the COVID-19 pandemic exposed and deepened the already existent fissures in society. There is a humanitarian crisis across nations where egalitarian measures are few and far between. In South Asia, India and Pakistan are two important nations that witness rampant human rights violations, which aggravated in this pandemic. One country experiences civil-military rule desperate to flaunt its democratic credentials and the other, its bete noire, is carrying on its exclusionary policies in the garb of tackling the crisis as it has unleashed its authoritarian measures despite being the largest democracy in the world. Both countries have failed its citizens.
Keywords: civil and political rights; international politics; COVID-19 pandemic; democracy; fundamental freedoms; mass murders and misery; security and sustenance; the right to have rights; freedom of speech.
The new constitutional provision for the protection of decent living and its implementation in criminal sanctions in Greece
by Styliani Christoforidou
Abstract: After the constitutional amendment of 2019, a new constitutional provision (Art. 21 Para 1b Gr. Const.) provides the states obligation to protect decent living. This provision belongs systematically to the field of social welfare rights, and its purpose is to enhance the protection of socio-economic rights. This paper argues that the same provision can also apply to the criminal system, mainly during the sentencing. Article 21 Para 1b Gr. Const. in conjunction with the human dignity principle (Article 2 Para 1 Gr. Const.) can enhance the rights of the sentenced in two ways: setting the constitutional limit of decent living protection during sentencing with non-custodial sentences and enhancing the right of judicial protection of those that serve custodial sentences under conditions that violate Article 3 ECHR.
Keywords: prison; detention conditions; human dignity; decent living; alternative sanctions; Greece.
China's financial rise and human rights dilemma
by Melda Belkıs Küpeli, Murat Koç, Fatih Koç
Abstract: The rise of China has been one of the core subjects of the 21st century since such a transition in the status quo threatens to change the balance of power in the world. This phenomenon became a mainstream to a point in which expectations on Chinese growth started to evolve into predictions on the possibility of new world order. Whether China poses a threat to the international system or not, one thing seems clear: China has its unique characteristics when it comes to its domestic and foreign policy. China as an oppressive state towards its nation and as an assertive neighbour within the region that requires careful foreign policies. Taking various debates over Chinas growth and its extraordinary qualities into account, this research targets to combine different debates over China to constitute a framework for Sino-Turkish foreign policy.
Keywords: China; financial rise; human rights violations; Sino-Turkish foreign policy.
Revocation of special status of the State of Jammu and Kashmir; a new dimension to asymmetrical federalism in India
by Shruti Bitoliya
Abstract: The focus of this paper is upon the unequal measures which are practiced in relation to the federalism in India, in reference to the recent revocation of the special status of the State of Jammu and Kashmir. The literature regarding the asymmetry in federal structure revolves around the question whether the arrangement is a slippery terrain which may lead to separatist and secessionist ideology among the people domiciled in that State. The text of Article 370 under the Constitution of India was as a 'temporary provision' has been changed by the way of Constitutional Order No. 272 and 273, which has effectively revoked the special constitutional status granted to the state. The paper will also look in the details of the question of the Constitutionality and method adopted for the said revocation. Conceptual issues are- the causes and consequences of asymmetric federalism and the reasons as to why the state was granted a special constitutional position.
Keywords: revocation of special status; asymmetrical federalism; Jammu and Kashmir; Article 370 of Indian constitution; constitutional orders; India.
The right of custody of minor: a comparative study of Shariah and Pakistani legal system
by Afrasiab Ahmed Rana
Abstract: In Islamic law, custody (hazanat) is looking after a person who is unable to look after himself, i.e., a person of unsound mind or a minor but in Pakistani statutory provisions do not define the concept. However, from judicial dicta, one can infer that guardianship of person' be equitant to the term custody, and it is possession of person of ward for purpose of protection, either actual or constructive. This paper aims to compare the right of custody of minor in Shariah and legal system of Pakistan as poses certain recommendations to bring the Guardian and Wards Act, 1890 in line with Islamic law of custody of minor. This paper will compare, differentiate and resolves the conceptual clashes between the Guardian and Ward Act, 1890 under legal system of Pakistan and Shariah prospective of the right of custody of minor.
Keywords: guardianship; custody; hadanah; minor; visitation; wishes of the minor; qualifications of custodian.
Online education - issues and challenges in digital equality matters
by Avinash Bhagwan Awaghade
Abstract: Access to education based on equality is ongoing objectives of developing countries like India. The focus of this article is on conceptual understanding of online education issues and challenges in digital equality matter. It has been discussing the existing gap between the marginalised peoples and socially advanced peoples. In the system of imparting education, it is expected to be student-centric approach in earning and learning knowledge and wisdom of survival professional skills. In the context of digitalisation of education, internet access is the most influencing factor in digital equality matters. The purpose and objective of this article are to understand conceptual issues and challenges in online education. The analytical discussion will be made by non-empirical methods of research and conclusion will be made by an armchair method in line of objectives and purpose of understanding of issues and challenges of digital equality in online education.
Keywords: digital equality; education; human rights; information and technology; constitution.
'Smart cities' and citizenship
by Deepak Kumar
Abstract: The Smart Cities Mission in India was launched on 25 June 2015 to develop 100 'smart cities'. Harnessing technology to improve the quality of life of people in such cities is the core idea of the mission. This urban governance mechanism has inherent implications for citizenship as a membership right assuming those having membership of such cities enjoying a host of citizenship rights for example access to basic services at the cost of those excluded. In this context, the paper attempts to explore the Smart Cities Mission in India, emerging scholarship on smart cities and citizenship, and the notion of citizenship as membership rights for delineating the implication of the mission on citizenship rights of the deprived sections.
Keywords: citizenship; smart cities; membership; citizen participation.
The constitution comes second: how the Constitutional Court of Kosovo disregards the supremacy of the constitution
by Jeton Hasani
Abstract: This article examines the Kosovo Constitutional Courts controversial practice of overlooking the Kosovo Constitutions normative supremacy in its jurisprudence. While all constitutional organs can participate in ensuring constitutional supremacy, the role of a Constitutional Court in this regard is unsurpassed as the final interpreter of a constitutions meaning. That said, rather than carefully following the Kosovo Constitution, the Kosovo Constitutional Court frequently relies on other legal sources to reach a decision, although they might directly contradict the Constitution. These sources include ordinary legislation, foreign legal experience, Venice Commission materials, and ECtHRs case-law (not on Kosovo). Often, this practice results in diminished human rights protection, as evidenced best in the Etem Arifi case.
Keywords: Kosovo Constitutional Court; constitutional supremacy; normative hierarchy; constitutional interpretation; comparative constitutional law; human rights; judicial review; Kosovo.
Controlling state power in Vietnam after Doi moi (1986): an increasing challenge and perspective
by Giao Cong Vu, Cu Thanh Vu
Abstract: Controlling state power - a prerequisite in every democracy - assures 'we the people' fundamental principles and prevents power abuse from public officials. Due to the characteristic of the political regime, this issue has not captured Vietnam and other socialist countries attention. In the past, since the severe abuse of power threatened socialism, the Communist Party of Vietnam (CPV) and the State strived continuously to control state power from the Doi moi era (1986). This article analyses the premise triggering the escalating abuse of power for corruption in Vietnam since the Doi moi era. It then reveals the CPV and the state's achievements and limits in establishing controlling state power mechanisms over the last 30 years. From the ground, the paper suggests some initiatives to enhance the efficiency in controlling state power in Vietnam in the future.
Keywords: state power; control of state power; Doi moi era; Vietnam.