The function of the constitution and the fundamental rights order, orientation of the constitutional amendment

2021 ◽  
Vol 27 (3) ◽  
pp. 329-376
Author(s):  
Kwang Seok CHEON
2020 ◽  
Vol V (I) ◽  
pp. 46-54
Author(s):  
Husnul Amin ◽  
Shafiq Qurban ◽  
Maryam Siddiqa

This research concerns the constitutional development in Pakistan with a specific reference to 21st Amendment to the Constitution of Pakistan. It is widely perceived among scholarly and semi-scholarly circles that the tendency of militarys direct intervention in politics; toppling democratically elected government has been declined for the last many decades across the world. According to the new trends, military interferes in the state affairs through indirect means. One of the indirect means includes abusive constitutionalism that involves constitutional amendment and constitutional replacement as mechanisms for constitutional change. The paper explores whether 21st Amendment to Constitution of Pakistan was an abusive constitutionalism that really empowered military to get a strong hold on key policy making areas of national interest during the democratic rule. The research concludes that the 21st Amendment was an abusive constitutionalism as it curtailed civil liberties and fundamental rights of the citizens and hence undermined democracy in Pakistan.


2017 ◽  
Vol 18 (1) ◽  
pp. 65-72
Author(s):  
Marcelo Ferreira Ribas

O presente artigo visa abordar a questão da efetividade dos Direitos Sociais a partir da análise da Emenda Constitucional nº 90/2015, que inseriu o transporte no rol dos Direitos Sociais da Constituição Federal. Para tanto, adota-se a metodologia de abordagem dedutiva, posto partir da análise doutrinária do direito material para compreender seus desdobramentos fáticos e, no desenvolvimento da pesquisa, emprega-se a técnica de documentação indireta, mediante o recurso à bibliografia de juristas que discorrem sobre o tema. Depreende-se que o reconhecimento do direito ao transporte como Direito Social apresenta-se como oportunidade para refletir acerca do conceito e da natureza jurídica dos Direitos Sociais e de seu lugar no ordenamento jurídico. Como Direitos Fundamentais, os Direitos Sociais privilegiam a igualdade material na sociedade e, para tanto, demandam prestações por parte do Estado em benefício da população carente. Juridicamente eficazes, a eficácia social ou efetividade encontra óbice na teoria da reserva do possível, por meio da qual o Estado alega insuficiência de recursos a serem dispendidos para a concretização desses direitos. Além disso, há também o poder de disposição do Estado para geri-los discricionariamente, por meio do qual age, por vezes, desconsiderando as expectativas da sociedade. Ao final, propõe-se o aprimoramento dos instrumentos que garantam a participação popular na gestão democrática do orçamento público e na tomada de decisões, em vista da superação dos problemas relativos à efetividade dos Direitos Sociais e, consequentemente, da distância existente entre a norma e a realidade.Palavras-chave: Transporte. Direitos Sociais. Reserva do Possível. Discricionariedade.AbstractThis article aims to approach the issue of the effectiveness of social rights from the analysis of Constitutional Amendment 90/2015, which inserted the transportation in the roll of social rights of the Federal Constitution. For that, the methodology of deductive approach is adopted, based on a doctrinal analysis of the material law to understand its unfolding events and, during the research development,the technique of indirect documentation is used, through the use of the jurists’ bibliography who discourse about the subject. It seems that the recognition of the right to transportation as a social right presents itself as an opportunity to reflect on the concept and legal nature of social rights and their place in the legal system. As fundamental rights, the social rights privilege the material equality in the society and, therefore, demand State provisions in benefit of the poor population. Legally effective, the social effectiveness or effectiveness finds obstacle in the reserve of the possible theory, whereby the State claims insufficient resources to be spent for the realization of these rights. In addition, there is also the State’s power to dispose of it at its own discretion, by means of which it sometimes acts in disregard of the society expectations. In the end, it is proposed to improve the instruments that guarantee popular participation in the democratic management of the public budget and in decisionmaking, in order to overcome the problems related to the effectiveness of social rights and, consequently, the distance between the norm and the reality. Keywords: Transportation. Social Rights. Reserve of the Possible. Discretion.


2019 ◽  
Vol 7 (1) ◽  
pp. 181-198
Author(s):  
Sardar Mala Aziz

   This paper focuses on the notion that constitutional rules are not all equal in terms of the values ​​they express; some even are of great value compared to other rules. Moreover, there is a kind of substantive hierarchy among constitutional rules. So that the rules relating to the type of governance system in the state and its political, economic, and social philosophy, as well as rules related to fundamental rights and freedoms which they have a higher value compare to other constitutional rules, which encouraged the constitutional legislator while creating the constitution to stipulate that it is not possible to amend the constitutional provisions of a higher value. Consequently, the competent authority to amend the constitution needs to respect these rules and avoid taking any action that would jeopardize these constitutional rules and undermine the wisdom of their existence. Since they are considered as peremptory constitutional rules and thus constitute a true reflection of the idea of public constitutional order. In addition to these legislative protections, these peremptory constitutional rules enjoy judicial protection by the constitutional Judges, who reviews the constitutionality of constitutional amendment laws, and also what is practiced of functions through special constitutional complaint called " Lawsuit to guarantee rights " which is intended to protect the rights and freedoms of individuals against all who tends to jeopardize and misuse it.


Author(s):  
Florian Matthey-Prakash

Chapter 2 recounts the developments around adjudication of fundamental rights and directive principles that climaxed with the inclusion of Article 21A in the constitutional text. By examining the historical background of the Eighty-Ninth Constitutional Amendment, the chapter then tries to find some answers concerning its doctrinal and practical significance.Surprisingly, the chapter concludes, there was very little of a ‘vision’ of what the purpose of Article 21A would be. Still, the fundamental right to elementary education is now part of the constitutional text, and the fact that there is one explicitly justiciable socio-economic right might have a significance that goes beyond mere symbolism. Whatever the motivation for including Article 21A in the constitutional text may have been (even if the intention was only to symbolically declare that the State takes the matter of elementary education seriously, or to appease groups calling for State action), the provision is now part of the constitutional text, and the judiciary is called upon to adjudicate on it when it is approached.


2007 ◽  
Vol 3 (1) ◽  
pp. 25-67 ◽  
Author(s):  
Anneli Albi

Minimal constitutional amendment at accession forced constitutional courts in new member states to make great efforts to avoid conflicts with EC and EU law – The importance of expanding the equation of ‘co-operative constitutionalism’ beyond judicial actors, by involving political institutions – The case of constitutional amendment in Estonia and Latvia – The concern over fundamental rights protection versus EC market regulation in Hungary, Estonia and the Czech Republic – Co-operative constitutionalism beyond judicial dialogues.


2016 ◽  
Vol 22 (4) ◽  
pp. 367-379 ◽  
Author(s):  
Régine Debrosse ◽  
Megan E. Cooper ◽  
Donald M. Taylor ◽  
Roxane de la Sablonnière ◽  
Jonathan Crush

2019 ◽  
Vol 1 (1) ◽  
pp. 31
Author(s):  
Fernando Ledesma Perez ◽  
Maria Caycho Avalos ◽  
Juana Cruz Montero ◽  
Andrea Ayala Sandoval

Citizenship is the exercise of the fundamental rights of people in spaces of participation, opinion and commitments, which can not be violated by any health condition in which the individual is. This research aims to interpret the process of construction of citizenship in hospitalized children, was developed through the qualitative approach, ethnomethodological method, synchronous design, with a sample of three students hospitalized in a health institute specializing in childhood, was used Observation technique and a semi-structured interview guide were obtained as results that hospitalized children carry out their citizenship construction in an incipient way, through the communication interaction they make with other people in the environment where they grow up.


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