International Journal of Human Rights and Constitutional Studies (15 papers in press)
Reviewing the chain remand practices and freedom of rights in Malaysia
by Ifa Sirrhu Samsudin, Ramalinggam Rajamanickam, Rohaida Nordin
Abstract: Remand for investigation is the process of detaining a person who has been arrested and gathering evidence before the accused been charged. Remand will have a tremendous impact on the routine of the individual, which denies their liberty. Thus, the purpose of this study is to explore constitutional issues relevant to chain-remand practices and whether it upholds the principles deemed necessary under freedom of rights in Malaysia. The method conducted by the author is pure legal research by way of a qualitative approach. Qualitative approaches involve the use of critical and content analysis. This is because the authors critically evaluate the texts and materials obtained from the library study. Besides, content analysis will be used in the textbooks, articles, and cases decided upon considering various aspects. It can be concluded from the analysis of the provisions under section 117 Criminal Procedure Code and other remand laws, which relevant, there is evidence of infringements of the key principle assurance under Article 5 of the Federal Constitution of Malaysia. It can be recommended for the legislature to formulate laws on handling chain remand practices more effective and just.
Keywords: chain remand; pre-trial detention; Article 5 Federal Constitution; liberty; a not absolute right; criminal justice; Malaysia.
Overview of resolution of international conflicts
by B.B. Prasad
Abstract: International conflicts or disputes are resolved through various ways. Adoption of particular means of resolution depends upon what is nature and causes of international conflicts. The techniques or means of resolution of international conflicts may be diplomatic modes, arbitration, mediation and conciliation, International Court of Justice (ICJ), organs of United Nation, compulsive means (short of war), economic warfare, nuclear warfare, International Criminal Court and implementation of human right. Diplomatic modes are adopted, where there is no involvement of 3rd parties for resolution of international conflict. Sometimes, ICJ and International Criminal Court adjudicates the matter of international conflicts. The means of short of war, economic warfare and nuclear warfare are used, where the parties of international disputes fails to resolve their dispute peacefully. These three means are expensive and; used when other means of resolution are not likely to be suitable.
Keywords: international conflicts; background; reasons; techniques; mechanism; objectives; modes of international conflicts resolution.
Poverty alleviation and plight of migrant workers: socio-legal issues in the pandemic phase
by Zubair Ahmed Khan
Abstract: Poverty construes an inequitable condition where the magnitude of deprivation is serious subject-matter. It has been considered as greatest violation of human rights as well. It is important to understand that how so far existing poverty alleviation programs are equipped enough to do the social justice considering rise of destitution and unemployment in the present pandemic phase. The issue of situational poverty is another subject-matter of contemplation due to inter-migration/reverse migration and continuous lockdown. The paper will explore different dimensions of socio-economic justice against poverty. It is important to understand the role of policymakers as to how poverty reduction schemes will be successful despite having
institutional gaps and lack of operationalisation. It is matter of contemplation as
to how the decentralisation in institutions and social entrepreneurship will help
in tackling the issue of poverty and different plights of migrant workers.
Keywords: poverty; migrant workers; social security; social protection floor; SPF.
The right for freedom uniting in political parties: experience of Ukraine and the Federal Republic of Germany
by Olha I. Kosilova, Mykhailo H. Kravchenko, Ivan P. Fedirko
Abstract: The article contains the analysis devoted to the study of the right for freedom uniting in political parties for Ukraine and Germany. The purpose of the article is to study international standards, borders of ensuring and grounds for interference in the exercise of the right for freedom uniting in political parties in Ukraine and Germany. In undertaking the study of research, it had been used a wide range of scientific and special juridical methods of scientific cognition, including: comparative-legal, formal-legal methods; method of terminological analysis and formal-logic method, methods of modelling and forecasting. As a result of the conducted research, it has been stated that the legal regulation of the right for freedom uniting into political parties in Ukraine generally complies with international and European standards. The peculiarity of the German party legislation as compared to the Ukrainian one on absence of restrictions for civil servants, as well as for military personnel on the right to be a member of a political party, has been revealed.
Keywords: human rights; freedom of association; guaranteeing the right; realisation of the right; Ukraine; Germany.
The changes of Constitution of Peoples Republic of China of 1982 as a tool to implement the leaders' political agenda
by Etleva Paplekaj
Abstract: The dynamics of constitutional change in the Peoples Republic of China is characterised by the political vision for economic development, the vision for economic prosperity and the objective of turning China into a country with a super-economic power. The characteristic of constitutional changes had nothing to do with the rules and the principle of separation of powers, with the concept of constitutionalism or democracy. The changes of the Constitution of People's Republic of China of 1982 over the years have had their role in democracy in the country, in politics through the 'active un-democratic role' of the political leaders to undertake constitutional changes forced by international factor. A country that legitimates in its Constitution dictatorship, centralisation of powers even the changes in its constitution is led by a political agenda rather than by the principles of constitutionalism. The Constitution of the People's Republic of China and the constitutional changes are related not to the implementation of the principles of constitutionalism, but to the political agenda of dictatorial rule.
Keywords: constitution; amendment; dictatorship; constitutionalism; centralism; China.
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.
Freedom of artistic expression in the ambit of Article 19, with special reference to communal disharmony
by Letishiya Chaturvedi, Poorna Dixit
Abstract: This paper focuses on the escalating disapproval that various governmental and non-governmental personalities and organisations have been showing towards the presentation of unconventional opinions and works. The garb of 'hurting religious sentiments' is being excessively used against the freedom of artistic expression, and the right of every individual in the country is being violated. Indian social fabric of multiculturalism, and the constitutional tool of secularism to uphold it, has also been tapped into. The journey of the Indian Courts from holding a liberal stance to being very rigid has also been covered under the judicial analysis, and the growing infringement of this fundamental right has been noted. The paper finally suggests that fundamentalist groups need to be tamed and the authorities need to acknowledge that artists cannot be deprived of primarily their cardinal right of expression and secondarily, their right to livelihood arising from the creation of their art.
Keywords: unconventional; freedom; artistic expression; multiculturalism; secularism; liberal stance; fundamentalist group; cardinal right; right to livelihood.
Mishandling the issue of gender dysphoria in India - an analysis of the transgender persons (Protection of Rights) Act, 2019
by Manini Syali, Vinayak Jhamb
Abstract: The Constitution of India through its equality clause, as established under Article 14, attempted to ensure an egalitarian society. This aspiration of the Constitutional framers, however, is difficult to attain, given the regressive societal values. One discriminated class of population which has faced years of oppression are the transgender. To remedy this situation the Government of India in the year 2019, introduced the Transgender Persons Act, in furtherance of the Supreme Court rulings NALSA v Union of India and Navtej Singh Johar v Union of India. The Act is being seen as a milestone in the direction of emancipation of the transgender community. It, however, has also been subjected to criticism, mainly because it has also accorded certain arbitrary powers to government officials. In the present paper an attempt will, thus, be made by the authors to analyse both positive and negative aspects of the act and to suggest a way out for the prevailing loopholes.
Keywords: LGBTQ+; privacy; arbitrariness; equality; gender; human rights; non-binary; supreme court; police; writ petitions; the third gender; India.
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.
From catastrophic migration to life-long displacement and repatriation: an overview of existing afghan refugees in Pakistan
by Sana Ali
Abstract: After two world wars, the Soviet-Afghan war is one of the most pre-eminent political occurrences of the 19th century. Critics consider this invasion a part of Neocolonialism leading to the displacement of millions of Afghans for decades. Despite the 1990s Convention on Migrants Rights extended basic human rights provision to all, Afghan refugees are facing an explicit infringement of their fundamental human rights in the host country Pakistan. The current article also tends to highlight the Afghan refugees crisis as a cutting-edge issue. They are confronting poor health conditions, educational deprivation, unemployment, forcible repatriation, and visa crises. Although along-with UNCHR, the Government of Pakistan is taking substantial steps to improve Refugees conditions, they are still facing several considerable issues. These difficulties are mainly endangering Afghan immigrants survival in Pakistan; however, there are minimal investigations to scrutinise the reasons behind existing predicaments and their solutions. Therefore, the authors recommend empirical inquiries concerning the refugee crisis (health, unemployment, repatriation, and visa restriction and education) to ensure fundamental rights provision and a better future for the worlds most extensively displaced settlers in Pakistan.
Keywords: Soviet-Afghan War; refugee crisis; human rights; Afghan immigrants; living standard; UNCHR.
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.