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I·CONnect-Clough Center

2016 Global Review of
Constitutional Law

Richard Albert, David Landau,
Pietro Faraguna and Simon Drugda
Editors

© 2017 I•CONnect
Electronically published by I•CONnect and the Clough Center
for the Study of Constitutional Democracy at Boston College.

www.iconnectblog.com | www.bc.edu/cloughcenter

ISBN: 978-0-692-92516-4

Table of Contents
2 INTRODUCTION
3 A First-of-Its-Kind Resource
in Public Law
4 A Partnership in Support
of Constitutional Democracy
5 About this Book: Origins,
Purpose, and Contents

6 COUNTRY REPORTS
7 Australia 120 Lithuania
12 Austria 125 Malaysia
17 Bangladesh 130 Mexico
22 Belgium 135 Myanmar
27 Brazil 140 Netherlands
32 Bulgaria 145 Nigeria
37 Cameroon 150 Norway
42 Caribbean 155 Pakistan
47 Chile 160 Phillippines
52 Cyprus 165 Poland
57 Czech Republic 170 Romania
62 Finland 175 Singapore
67 France 181 Slovakia
72 Germany 186 Slovenia
77 Hungary 191 South Korea
82 Iceland 196 Spain
87 India 201 Sweden
93 Indonesia 206 Taiwan
98 Ireland 211 Thailand
103 Israel 216 Turkey
108 Italy 221 United Kingdom
114 Kenya 227 Zambia

2016 Global Review of Constitutional Law | 1

IN T RODU CTI ON

2 | I•CONnect-Clough Center

ā&21QHFWKDV IXO¿OOHGLWVPLVVLRQ²WRSURYLGHVXFFLQFWWLPHO\DQGVFKRODUO\FRPPHQWDU\RQFRQVWLWXWLRQDOGHYHORSPHQWVDQGQHZ DFDGHPLFZRUNIURPDURXQGWKHZRUOG²DQGEHHQXVHIXODFRPSOHPHQWWR. for partnering with us in this project. in this case 2016. Since becoming its Director. :HWKDQNKLPIRUVKDULQJRXUYLVLRQRIWKHSRVVLELOLWLHVIRUWKLVDQQXDOYROXPH:HDUHDOVRH[WUDRUGLQDULO\JUDWHIXOWR Michelle Muccini of the Clough Center for marshaling her creativity to design this book from cover to cover. the reports give readers a detailed but relatively brief overview of constitutional developments and cases in individual jurisdictions during the past calendar year. :HDUHJUDWHIXOWRWKH&ORXJK&HQWHUIRUWKH6WXG\RI&RQVWLWXWLRQDO'HPRFUDF\DW%RVWRQ&ROOHJH/DZ6FKRROGLUHFW- ed by Vlad Perju. including not only canonical ones like the Germany. :HKRSHWKHUHSRUWVLQWKLV¿UVWRILWVNLQGYROXPHRIIHUUHDGHUVV\VWHPLFNQRZOHGJHWKDWSUHYLRXVO\KDVEHHQOLPLWHG PDLQO\WRORFDOQHWZRUNVUDWKHUWKDQDEURDGHUUHDGHUVKLS%\PDNLQJWKLVLQIRUPDWLRQDYDLODEOHWRWKHODUJHU¿HOGRI public law in an easily digestible format. we aim to increase the base of knowledge upon which scholars and judges FDQGUDZ:HH[SHFWWRUHSHDWWKHSURMHFWHYHU\\HDUZLWKQHZDQQXDOUHSRUWVDQGZHKRSHRYHUWLPHWKDWFRYHUDJH will grow to an even wider range of countries. A FIRST-OF-ITS-KIND RESOURCE IN PUBLIC LAW Richard Albert & David Landau I·CONnect Founding Co-Editors 2012 marked the birth of I·CONnect. :HWKDQN6LPRQ'UXJGDDQG3LHWUR)DUDJXQDIRUWKHLULQVWUXPHQWDOUROHLQVROLFLWLQJDQGHGLWLQJWKHVHUHSRUWVDQGZH thank our many distinguished country authors for producing a high-quality and useful product. Vlad Perju has transformed the Clough Center into a leading site in the English-speaking world for the study of constitutions and constitutionalism. She has translated our scholarly content into a beautifully innovative format that has exceeded our every expectation. Presented in a standardized format.ā&21IRUSXEOLVKLQJVHYHUDORIWKHVH outstanding contributions in the journal itself. Coverage includes 44 jurisdictions. India and the United . the lead- LQJMRXUQDOLQWKH¿HOGRISXEOLFODZ:HKRSHWKDWLQWKHLQWHUYHQLQJ\HDUVUHDGHUVKDYHIRXQGWKDW.LQJGRPEXWDOVRPXFKOHVVZHOONQRZQRQHVVXFKDV)LQODQG5RPDQLDDQG=DPELD:HKDYHFDUHIXOO\VHOHFWHGDX- WKRUVZKRDUHDFDGHPLFRUMXGLFLDOH[SHUWVIURPWKHLUUHVSHFWLYHMXULVGLFWLRQV²DQGRIWHQWKHUHSRUWVDUHFRDXWKRUHG by both judges and scholars. the blog of the International Journal of Constitutional Law (I·CON). )LQDOO\ZHWKDQN*UiLQQHGH%~UFDDQG-RVHSK:HLOHU&R(GLWRUVLQ&KLHIRI. :HLQYLWHFRPPHQWVDQGLQTXLULHVWRHLWKHURIXVYLDHPDLODWFRQWDFWLFRQQHFW#JPDLOFRP 2016 Global Review of Constitutional Law | 3 .ā&21DVDIRXQWIRUOHDUQLQJLQRXUYDVW DQGUDSLGO\FKDQJLQJ¿HOG This new annual series is the latest innovation at I·CONnect: the annual country reports assembled in this volume embody its core purposes.

More informa- tion about the Center’s activities. for this part- nership with I·CONnect. a trusted friend and collaborator of the Clough Center. we seek to foster original research and thoughtful reflection on the promise and challenges of constitutional government in the United States and around the world. By taking a holistic. The I·CONnect blog. Boston College Law School The Clough Center for the Study of Constitutional Democracy at Boston College is delighted to join I·CONnect in making this outstanding constitutional law resource available to scholars and practitioners around the world. are available at http://www. which assembles national reports of develop- ments in constitutional law in 44 jurisdictions.bc. This volume. and interdisciplinary approach to constitutional democracy. like its parent International Journal of Constitutional Law (I·CON). is a new and important step in expanding the horizon of constitutional practice and shaping research in comparative constitutional studies. including access to the Clough Archive. have established themselves as indispensable references in comparative constitutional law. 4 | I•CONnect-Clough Center . I am deeply grateful to Professor Richard Albert.html. Clough Center for the Study of Constitutional Democracy Professor.edu/centers/ cloughcenter. A PARTNERSHIP IN SUPPORT OF CONSTITUTIONAL DEMOCRACY Vlad Perju Director. The Clough Center’s programs and initiatives aim to reinvigorate and reimagine the study of constitutional democra- cy. The Clough Center regularly welcomes some of the world’s most distinguished scholars of constitutionalism and provides a venue for the exploration of topical matters in constitutional thought. I am also grateful to Michelle Muccini for her marvelous design work of this e-book. global.

This is not always a case-based account and it may examine long-burgeoning constitutional developments that arose prior to 2016. These national reports present an accessible overview of the most notable constitutional events in each jurisdiction. Only a small number of courts regularly publishes translations of their decisions. with commitments from all around the ZRUOG:HDUHLQGHEWHGWRWKHDXWKRUVZKRWROHUDWHGRXUFRQVWDQWSUHVVXUHRQWLPHNHHSLQJDQGDOHYHORIULJLGLW\LQ- YROYHGLQWKHSURFHVV7KH\DUHDIWHUDOOWKHOHDGYRLFHRIWKHSURMHFW:HKRSHWKDWWKLVHERRNZLOOPDUNDVXFFHVVIXO start of a long collaboration. on five continents. often in FROODERUDWLRQZLWKDKLJKFRXUWMXGJH:HKRSHWRUHGXFHWKHGLIILFXOW\RIGRLQJFRPSDUDWLYHZRUNDQGWRIDFLOLWDWHWKH migration of ideas across the community of constitutional interpreters. This e-book would not exist without the enthusiastic encouragement of Marta Cartabia. After this pioneering report. others followed suit. for which each report gives an overview of selected judgments. who supported the idea of this series since the very first national report published in 2016. This e-book collects “year-in-review” reports on developments in the constitutional law in the year 2016 from 44 jurisdictions. Timea Dri- noczki. PURPOSE. international and/or multilateral relations. although there is inevitably also some critical commentary. as well as foreign. The project will generate an exciting and lasting resource as the reports accrue in time. Each report starts with an introduction to the constitution and the high court in a given jurisdiction and then continues with a narrative exposition of up to two significant controversies. The short case notes are divided into sub-sec- tions covering subjects that may include the separation of powers. the number had grown to over 40. The reports were prepared by researchers well versed in their legal system. Authors conclude with observations on the path of the constitutional development in their jurisdiction or sometimes offer a cautious forecast of the future. vice-President of the Italian Constitutional Court. AND CONTENTS Pietro Faraguna and Simon Drugda Global Review Co-Editors The practical importance of comparative constitutional studies around the world is evident. to draw inspiration or test arguments in tackling a consti- tutional problem. :HDUHWKDQNIXOWR. But the accessibility of reliable sources still presents a vexing issue. we thank Richard Albert and David Landau for advice and enriching collaboration. ZKLFKJHQHURXVO\VXSSRUWHGWKLVSURMHFW:HDUHWKDQNIXOWR. rights and freedom.·CONnect and the Clough Center for the Study of Constitutional Democracy at Boston College. National high courts increasingly turn to foreign case law in rendering decisions. This e-book is primarily descriptive and explanatory. Finally. :HZHOFRPHDOOFRPPHQWVDQGVXJJHVWLRQVWRSIDUDJXQD#OXLVVLWDQGVLPRQGUXJGD#JPDLOFRP 2016 Global Review of Constitutional Law | 5 . and we soon had ten national reports on developments in constitutional law for the year 2015. The third section then isolates the year 2016. among them Marek Antoš. and Mihail Vatsov. and it is incredibly time-consuming for scholars or judges unfamil- iar with a jurisdiction to identify important cases.·CON and particularly to Gráinne de Burca and Joseph :HLOHUZKRRIIHUHGXVWKHSRVVLELOLW\RISXEOLVKLQJVRPHRIWKHVHUHSRUWVLQWKHMRXUQDO:HZRXOGDOVROLNHWRWKDQN scholars who helped with the review of some of the reports in this e-book. A few months later. ABOUT THIS BOOK: ORIGINS.

C O U NT RY REPORTS 6 | I•CONnect-Clough Center .

4 The High referendum. broadly based mous decisions are relatively rare. Unani- tary system of government. 3 Constitution ss 75 and 76.5 Final hearings before the High Court The Australian Constitution was created in involve both detailed written submissions 1901 when the colonies established by Brit. High Court of Australia Act 1979 (Cth) s 5. Court has the power to invalidate laws that do not comply with the Constitution. The Court’s as the freedom of political communication. a public dis. including constitutional separation of powers. Certain rights. the validity of the same manner as civil and political rights an Electoral Roll ‘suspension period. 2 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. 51(xxxi). the High Court. 2016 Global Review of Constitutional Law | 7 . Outside of appeal from all federal and state courts. subject THE COURT to removal by a special parliamentary proce- dure. 4 Commonwealth Electoral Act 1918 (Cth) s 354. such the eligibility of two Senators. Rights. common law. These politi. and oral argument.’ and in other jurisdictions. Judges may write their ish settlers came together in a federation. which heard cases concerning provisions are not framed or interpreted in changes to voting methods. Melbourne Law School. 5 Constitution s 72.2 low) confirms that the Court’s approach to interpretation remains firmly tied to the text The High Court of Australia is the final court and structure of the Constitution. Centre for Comparative Constitutional Studies (CCCS). Rights are instead protected by the mon political events in Australia. RQ WKH:HVWPLQVWHU V\VWHP . and the democratic legislative pute between the nation’s two highest Law SURFHVV :KLOH WKH &RQVWLWXWLRQ FRQWDLQV D AUSTRALIA IHZ GLVFUHWH ULJKWVSURWHFWLYH SURYLVLRQV² Officers. including trial by jury and compensation on cal developments informed the work of the just terms for acquisition of property1²KHVH High Court. The Court comprises seven judges. with assistance from CCCS researchers Artemis Kirkinis. constitutional jurisprudence in 2016 on these have been implied into the Constitution by and other matters (outlined in Part IV be. own separate judgments and may join with The Constitution provides for a parliamen. other judges to write joint reasons. the a double dissolution election. who are ap- THE CONSTITUTION AND pointed to serve until the age of 70. the judicial realm. and legal proceedings over elec- toral eligibility and processes. debate over constitutional The High Court also has original jurisdiction change to recognise Australia’s Indigenous in constitutional matters3 (but no capacity to peoples continued.W HVWDEOLVKHV D federal system in which powers are divided between the Commonwealth and six states. but with little consensus issue advisory opinions) and special juris- as to the scope of the proposal to be put to diction to hear electoral disputes. 1 Constitution ss 80. Australia DEVELOPMENTS IN AUSTRALIAN CONSTITUTIONAL LAW Anne Carter and Anna Dziedzic. Kalia /D\FRFN:DOVKDQG0DUFXV5REHUWV INTRODUCTION A distinctive feature of the Australian Con- stitution is that it does not include a Bill of 2016 witnessed several relatively uncom.

the deadline for a double dissolution. and not The other appointment to the Court was Jus- confidence between the two Law Officers. puted Returns. the person who ‘has been convicted and is under office’s close connection to the government sentence. whereby both Houses of Par. Prior while within the Constitution. respectively. all House Senator Bob Day and Senator Rob Culleton. two months short of the man- concerns that it would restrict access to the rejected by the Senate. to this report. Chief Justice prior to the making of the Direction. a person shall be ‘incapable of being chosen UHVHQWV WKH JRYHUQPHQW LQ FRXUW :KLOH WKH as part of the process to resolve deadlocks or of sitting as a senator or a member of the Solicitor-General has traditionally been con- between the two Houses on proposed laws. the House of Repre. there was insufficient time Kiefel. for any creates the potential for tensions between the offence punishable under a law of the Com- two offices. which was en. recommended that the Senate disallow 15 April 2016 and summoned it to sit again appointed to the High Court. As such. 6 Constitution s 57 provides that a double dissolution cannot take place in the six months prior to the end of the House of Representatives’ three year-term. This led to an inqui. prorogued Parliament on working as a legal secretary. Sen. Disputes over Eligibility pute between Australia’s first and second per house) sit for six-year terms. In 2015. the Senate again reject- fessor at Oxford University and practised at ed the Bill and on 9 May 2016. independents continue to hold the balance of Under the Constitution. at an ordinary election. sitting as the Court of Dis- litical office. power in the Senate. Justice Edelman was a Pro- cember 2016. The Solicitor-General’s Role sentatives (lower house) sits for a three-year 2016 witnessed a public and protracted dis- term. Justice Susan between the Solicitor-General. these tensions escalated when the The 44th Parliament of Australia was elected Attorney-General issued a Direction to the in 2013. The Direction duced industrial relations legislation that was retirement from the High Court. judge on the Queensland Supreme Court and be censured for misleading Parliament. provides for certain circumstances in which legal advice to the government and rep- liament are dissolved and all seats vacated. the Parliament has been pro- son resigned. acting on the advice of Kiefel completed her studies part-time while Committee. two new appointments to turned it to the Senate. By contrast. House of Representatives. the latest day in 2016 on which a double dissolution could occur was 11 May 2016. was unusual. Prior to 2016. citing a breakdown in trust and rogued and recalled only 28 times. Section 57 of the to the High Court. WLFH -DPHV (GHOPDQ 2ULJLQDOO\ IURP:HVW- new Solicitor-General was appointed in De- ern Australia. youngest justices ever to be appointed and he two constitutional provisions.DEVELOPMENTS AND In 2016. in late October 2016 Mr Glee. and the Attorney-General. sentatives again considered the Bill and re- November 2016. The House of Repre- datory retirement age of 70. The Liberal-National Coalition held CONTROVERSIES IN 2016 Solicitor-General requiring that all persons a majority of seats in the House of Repre- or bodies seeking an opinion from the So.6 The 13th Chief Justice. the government intro- In 2016. In Australia. who was first appointed to the High Gleeson SC. the Attorney-General. Chief Justice French announced his from the Attorney-General. A once since 1977. This prorogation. election disputes Law Officers. but due to the timing the bench were announced. and so holds a largely po- Senate seats. Before being 2016. Justice Edelman is one of the gineered by the government’s utilisation of tatives and a minority of seats in the Senate. meaning that a group of minor parties and could potentially sit on the Court until 2044. As a result. or subject to be sentenced. At the new sittings. Following the July 2016. and the tions for half of the seats every three years. are vacated. the Attorney-General is a member of Parlia- of Representative seats. As such. whereas Members of the Senate (up. but only half of the In both matters. effective in changed the previous protocol and raised passed by the House of Representatives but January 2017. for the Senate to reconsider the Bill before Court in 2007. reduced majority in the House of Represen- Aged just 43. Section 44 of the Constitution eral is a statutory office-holder who provides tion election. the Senate referred questions ment and Cabinet. After and scope of consultations that had occurred Senate to reschedule the sittings and so the leaving school at the age of 15. The Governor-General. the Federal Court of Australia. the Gover- ERWKWKH:HVWHUQ$XVWUDOLDQ%DUDQGWKH%DU Federal Elections nor-General dissolved both Houses of Parlia- RI(QJODQGDQG:DOHVEHIRUHEHLQJDSSRLQW- Prorogation and Double Dissolution ment.’ These include a sidered to be independent of government. the Solicitor-Gen- Constitution provides for a double dissolu. arose over the eligibility of two Senators: Solicitor-General. she served as a the Direction and that the Attorney-General on Monday 18 April 2016. sentatives but did not command a majority High Court Appointments licitor-General first obtain written consent in the Senate. Mr Justin pass the budget. which reported in November the Prime Minister. dissolution federal election. 8 | I•CONnect-Clough Center . in Solicitor-General’s advice. She is the first woman ry before a Senate Committee into the nature government did not have the numbers in the to serve as Chief Justice of the Court. was appointed as the Court’s ator George Brandis QC. both of whom The 2016 Direction sparked a public dispute of the parliamentary sittings and the need to were sworn in in early 2017. The election held on 2 July 2016 saw HGWRWKH6XSUHPH&RXUWRI:HVWHUQ$XVWUD- 2016 also witnessed a relatively rare double the Coalition returned to government with a lia and then the Federal Court of Australia. with elec.

In relation to process. be settled. procedures. have been the subject of cludes no reference to the Indigenous peo. Australia has no treaty arrangements QRXV SHRSOHV IRU WUHDWLHV :KLOH WUHDWLHV GR proceedings in the High Court. the High Court handed down 53 /RFDO &RXUW RI 1HZ 6RXWK :DOHV EXW WKH judgments covering criminal appeals. but for Indigenous land rights. In 2016. proaches to recognition have emerged. and sub. they are seen ing her to Nauru. nous peoples and to better protect and pro. Express references to bition on racial discrimination. this timeframe dictions. tax- conviction was annulled after the election. Plaintiff M68/2015 v Minister for Immigra- ments for the lease by the Commonwealth of tion and Border Protection [2016] HCA 1 (3 his electoral office at a property in which his Also yet to be settled is the substance of February 2016) family trust held an interest. any constitutional amendment.au/publications/indigenous-law-bulle- tin-824. to work towards recognition. major political parties made commitments of constitutional recognition that acknowl- terest in any agreement with the Public Ser. seeking or- with Indigenous peoples and no substantive not necessarily involve formal amendments ders to prevent the government from return- equality provision in the Constitution itself.and offshore. (which is not legally binding). was extended to permit greater discussions. under which people from the lease agreement with the Common. waters. itations of constitutional recognition. 10 See Indigenous Law Bulletin (2016) vol 8(24). In April 2017. 8 Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples. special edition on Constitutional Recognition http://www. Final Report. This case challenged the lawfulness of Aus- the High Court held that Mr Day was inca. and a person began in 2010 when the leaders of the two ereignty and self-determination and a form who ‘has any direct or indirect pecuniary in. June 2015. Australians proach supplements symbolic constitutional which have included mandatory detention The Australian Constitution currently in. The tralia’s arrangements for dealing with asy- pable of being elected as a Senator because first approach is largely symbolic. tions. Damien Freeman and Julian Leeser. the proposed amendments. 9 Constitution s 128 provides that a constitutional amendment requires the support of a majority of voters in a majority of states at a referendum. including the first of 12 Indigenous-only di- The dispute about Mr Day’s election con. such as a constitutional prohi. Australia’s asylum seeker policies. The second ap. Guinea.unsw. The plaintiff argued that 7 E. and she was transferred to Nauru. ‘The Australian Declaration of Recognition: A new proposal for recognising Indigenous Australians’ (2014).10 stance of. 2016 Global Review of Constitutional Law | 9 . statements with new substantive rights and on. the 50th anniversary of the landmark matters arising under federal and state juris- Culleton was incapable of being elected as 1967 referendum. the Court approaches these issues Parliament to ‘make laws for the people of through the lens of limitations on Common- any race’ (s 51(xxvi)) and a defunct provi.edu. protection ined these policies on a number of occasions. The Australian Constitution is notoriously wealth legislative power and the separation sion that contemplates disqualification from difficult to amend. is to develop proposed amendments which meet the needs and aspirations of Indigenous The plaintiff was a woman from Bangladesh There is a long history of advocacy for peoples and are likely to attract the required whose boat was intercepted in Australian constitutional change to recognise Indige. and a range of civil ber 2016 and in February 2017 held that Mr 2017. Frustrated by the lim. last 15 years and the High Court has exam- ‘aboriginal people’ were removed from the tative Indigenous advisory body. At the time of the elec.g. original text of the Constitution in 1967.ilc. ment for her pregnancy. and reword the detention centres in Nauru and Papua New Constitutional Recognition of Indigenous ‘races’ power in s 51(xxvi). to the text of the Constitution. for recognition there has to-date been little tion he had been convicted of larceny in the consensus on the detail. The focus of this report is the six a Senator. 2016 saw de.monwealth or of a State by imprisonment for The current process for constitutional change as a powerful expression of Indigenous sov- one year or longer’ (s 44(ii)). initially proposed a referendum for May der federal legislation.8 of Rights. velopments around the process for. Two distinct ap. there :KLOHLQ$XVWUDOLDWRUHFHLYHPHGLFDOWUHDW- mote Indigenous rights.9 As such. she commenced states. alogues. voting on the basis of race (s 25) remain. and entrenched Due to the absence of a constitutional Bill provisions that permit the Commonwealth treaty-making powers. A date for the referendum is yet to Legislative Power cerned s 44(v) and arose out of the arrange. edges Indigenous peoples as peoples or na- vice of the Commonwealth…’ (s 44(v)). Al- The dispute about Mr Culleton’s election though there is notional cross-party support MAJOR CASES concerned s 44(ii). repeal the de. the challenge of powers. In 2016. considerable political controversy over the ples of Australia. political leaders had ation. and competition cases un- The High Court heard the matter in Decem. a represen.7 It would lum seekers. their culture and history in the preamble who arrive in Australia by boat without a wealth. judgments that raised constitutional issues. These include offshore pro- of his indirect pecuniary interest arising insert references to Indigenous peoples and cessing arrangements. support at referendum. valid visa and seek asylum are transferred to funct s 25 of the Constitution. Unlike other settler were renewed calls in 2016 among Indige. migration.

She justified by a substantial reason: the orderly % The amendments provided for two held that the separation of judicial power conduct of elections. The major division in the Court’s reason. The case focused first on whether there sioner [2016] HCA 36 (5 September 2016) Cloy-style structured proportionality test in was a head of federal legislative power to This case concerned the validity of provi.au/about/reports-publications/research-statistics/statistics/live-in-australia/immigration-detention. A majority of the Court (French dividual candidates in order of preference. group tickets in order of preference. missioner from amending or updating the a ‘hypothetical exercise of improved legisla- cise of judicial (rather than executive) pow. p 4. By a majority of 6:1. were valid. The other not authorised by a valid Commonwealth Right to vote: Murphy v Electoral Commis. All members of the Court agreed that even if The plaintiffs made three principal argu- Justice Gordon was the sole dissenting judge. The plaintiffs argued this case’. s 51(xix). 10 | I•CONnect-Clough Center . changed the voting requirements for mem- the plaintiff was not detained by the Aus. except in specific circumstances (called before the polling date. this time to amendments to the external affairs power. Australian context. whether the law infringed 1918. constitutional mandate of popular choice. Various judgments contrary to the requirement in s 9 of reasons to justify a law that permits exec. Underpinning the plaintiffs’ This case was a different challenge to elec- make laws with respect to aliens12 and/or case was the argument that technological toral legislation. For instance. the present context. the High Court upheld rectly chosen by the people’. The new law provid- tralian government but rather by the Nauru of the issue of the writs for the election. the Australian gov. that burden was ments: holding that the detention was unlawful. the requirement in ss 7 and 24 of the Con. unless the disqualification was for a ‘sub.[OUPJ(ɈHPYZ (1992) 176 CLR 1.13 On the issue of advances and the availability of resources the Commonwealth Electoral Act 1918 that executive detention. Immigration Detention and Community Statistics (31 December 2016) https:// www. and that this was ‘inapposite in er.gov.) executive power. by numbering at least six party or ZDVQRWHQJDJHG:KLOHWKHUHPDLQLQJWKUHH All judges of the Court rejected the chal. lia.border. for a party or group contravened the re- quirement in s 7 that senators be ‘direct- Following this decision. 12 Constitution. In particular. s 51(xxix).V]LYUTLU[HUK. or ‘be- judges held that the plaintiff was. Electoral Roll during a ‘suspension period’ tive design’. emphasised that limitations on voting prior the Constitution that there be only one utive detention without judicial order. the validity of the legislation. which would produce different voting methods and so were under the Constitution requires exceptional efficiency and certainty. by numbering at least 12 in- of substance. where 380 people. 13 Constitution. which prevented the Electoral Com. French CJ support the legislation authorising her deten. that there were no such exceptional reasons not diminish the constitutional requirement % The method of voting above the line in this case. Most forcefully. ed that an elector could vote either ‘above government. of popular choice. were detained as of December reason. pend the rolls from seven days after the date bers of the Senate. The majority the plaintiffs argued that the law was invalid Right to vote: Day v Australian Elector Offi- held that the detention legislation was sup. six members of the Court rejected a Mc- law. and secondly. detained on Nauru by Austra. ernment resumed transferring asylum seek. ers to Nauru. Justice Kiefel followed the approach plied freedom of political communica- 2016. ly chosen by the people’. sions of the Commonwealth Electoral Act and Bell J considered that proportionality tion. there was a relevant burden. 15 McCloy v New South Wales (2015) 257 CLR 178. 14 Australian Government Department of Immigration and Border Security. two of these judges (Bell and Gageler JJ) CJ and Bell J. Keane J.her detention was unlawful because it was Rights and Freedoms ity of the impugned provisions. four judges held that meant there was no substantial reason to sus. including a burden could be justified by a substantial and was therefore a burden on the im- 45 children.14 that had been developed in the 2015 case of tion. testing would invite the Court to undertake the principle that detention requires an exer. meaning that the Lim principle the line’. ing concerned the test to determine whether % The new ballot paper was misleading. cer (SA) [2016] HCA 20 (13 May 2016) ported by the Commonwealth’s power to stantial reason’. 0F&OR\Y1HZ6RXWK:DOHV15 and applied a proportionality test to determine the valid- 11 *O\2OLUN3PT]4PUPZ[LYMVY0TTPNYH[PVU3VJHS. and Gordon J) held (Previously there had been a requirement to concluded that the detention in this case did that the plaintiffs had not established that the number all of the candidates if voting ‘below not require an exercise of judicial rather than provisions amounted to a ‘burden’ on the the line’. as a matter lenge and held that the impugned provisions low the line’. Gageler J rejected the ‘Lim principle’ after the case in which it that the suspension period was contrary to the use of a ‘structured and prescriptive’ was established11). and to an election were longstanding and so did method. form of proportionality reasoning in the stitution that Members of Parliament be ‘di.

one of the major issues to be Electoral Act. Zines’s The High Court and be heard by a judge alone. companies. in the event of an inconsistency between anti-protest laws. held that the ballot paper was not misleading the entitlements were statutory rights that In terms of the High Court’s constitutional and it correctly stated the requirements of the were inherently liable to variations. 2015) emphasising that there are mechanisms to wealth tax legislation to have an assessment ensure that jury trials are conducted fairly of the existence. 2011) est. In doing so. such the amendments should not be regarded resolved in 2017 is the status of proportion- as an acquisition of property. quantification. ery of taxation liabilities. invalid because it was inconsistent with ment. provisions of Commonwealth taxation leg. the Commonwealth Parliament difficult and likely ineffective. The trial was being con. Cheryl Saunders. and ‘trial on indictment of any offence against [2016] HCA 21 (16 May 2016) this issue will be squarely before the Court any law of the Commonwealth shall be by Section 109 of the Constitution provides that in an upcoming challenge to Tasmania’s jury’. Politics and related companies.17 Finally. as is permitted an authority to deal with the dissolution and Gabrielle Appleby. and recov- and in the public interest. 2016) A majority of six judges of the High Court authority was given absolute discretion to (French CJ dissenting) followed previous determine the property and liabilities of the Megan Davis and Marcia Langton (eds). CONCLUSION application.Q WKLV FDVH WKH :HVWHUQ$XVWUDOLDQ 3DUOLD. with a majority holding that changes in the composition of Parliament. the accused cannot waive The High Court held that the Bell Act was Reform (Melbourne University Press.The High Court unanimously dismissed the former Members of Parliament (MPs). continued debate about constitutional recog- The accused was standing trial for Com. arguing that the repercussions of the constitutional de- can accommodate multiple ways of voting. 6th ed. The the Public Interest (Hart Publishing. because Acquisition of property on just terms: Cun. ment had enacted the Bell Group Companies governments and Indigenous peoples. The Constitution of Aus- eral States. all in liquidation. it is likely that electing Senators. ducted by the Supreme Court of the State of (Finalisation of Matters and Distribution of 1HZ 6RXWK :DOHV $OTXGVL VRXJKW WKDW KLV Proceeds) Act 2015 (‘Bell Act’) to establish Bibliography trial be heard by judge alone. The Court declared the Bell Act invalid in its entirety. The majority rejected the argu. such than on just terms contrary to s 51(xxxi) of provide grounds to challenge the eligibility as an electoral college. Finally. re. the Court amendments. and that the term ‘method’ amendments in the High Court. James Stellios. 2016) trial by jury. The Court further held that s 7 prohibits the of property by the Commonwealth otherwise The Court’s reasoning in the Day case may election of senators by an intermediary. monwealth law will prevail. amended parliamentary entitlements for 16 Criminal Procedure Act 19865:>ZZò 17 Brown v Tasmania is set down for hearing in May 2017. The High Court upheld the of other MPs. 2016 Global Review of Constitutional Law | 11 . ality review. authority to pool property and deal with it at ing. which may potentially lead to the effect of the new law. but that this was not the Constitution. put by the Commonwealth and sev. the amendments amounted to an acquisition velopments of 2016 will continue to be felt. including the monwealth offences relating to supporting prospect of treaties. authority in holding that where Common. and as jurisprudence. the ed from the rights of the Commonwealth the Constitution (Federation Press. 2017 will see Commonwealth and State laws. the Com. The Court held that the purpose ducing their superannuation and travel en- of s 9 is to provide for a uniform method of titlements. The Role of the Solici- XQGHU1HZ6RXWK:DOHVOHJLVODWLRQ16 administration of the property of a group of tor-General: Negotiating Law. In purporting to give power to the tralia: A Contextual Analysis (Hart Publish- Constitution is to preserve the public inter. the political and legal relationships between in armed hostilities. the Bell Act detract. as Australians rethink persons to enter Syria with intent to engage . Following the 2016 decision in Trial by jury: Alqudsi v The Queen [2016] Murphy v Electoral Commissioner there is HCA 24 (15 June 2016) Federal Division of Powers a question mark over the future of propor- Section 80 of the Constitution requires that Bell Group NV (in liq) v Western Australia tionality in Australian constitutional law. making severance of only those parts (12 October 2016) inconsistent with Commonwealth legislation In 2012. Four former MPs challenged the Looking forward to 2017. nition of Indigenous peoples. it presented a package of interrelated provi- ningham v Commonwealth [2016] HCA 39 sions. which in this case required the trial to ‘its absolute discretion’. It’s Our Country: Indigenous Arguments for wealth legislation determines that there is a Meaningful Constitutional Recognition and trial on indictment. judges upheld the clear terms of s 80 while Commissioner for Taxation under Common. that the purpose of s 80 of the islation.

).1 Court is the highest court of appeal within which led to important case law in 2015. it gained formity of administrative acts with regard to the competence to review the procedures of the statutory provisions. Austria DEVELOPMENTS IN AUSTRIAN CONSTITUTIONAL LAW Konrad Lachmayer. 3 See Part V. a Vice-president and 12 ad- stitutional Court can now review the consti- 1 See the new Article 138b Austrian Constitution (Federal Law Gazette I 2014/101). since it had not been possible in between the courts is demonstrated by the the traditional Austrian constitutional frame.5 The Constitutional Court deals with ments. in: András Jakab / Arthur Dyevre / Giulio Itzcovich (eds. 5 Manfred Stelzer. the system of ordinary courts. 6 . 2011) 190-205. it is worth mentioning that the role of abstract and concrete judicial review of stat- the Constitutional Court is changing. The equality Meanwhile. Court.6 possibility to file a constitutional complaint against the statutory provisions applied by The Austrian Constitutional Court consists the ordinary court of first instance. which were clos. The Constitution of the Republic of Austria. of a President. election in December 2016 concluded an though distinguishable from one another in eventful year in politics. Professor of Public and European Law at the Sigmund Freud Univer- sity in Vienna. 4 This part is based on the following paper: Konrad Lachmayer.2 giving parties in civil of the Administrative Court or the Supreme or criminal law cases at ordinary courts the Court at the Constitutional Court. The scope of this access to the trian presidential elections. A Contextual Analysis (Hart Publishing. while the Supreme the parliamentary investigative committee. of the court. Comparative Constitutional Reasoning (CUP. Judge at the Austrian Constitutional Court INTRODUCTION tutionality of the respective provisions at the request of a party and not only at the request The year 2016 was dominated by the Aus. the (rel- atively) clear majority achieved against the The Austrian Constitution provides three Freedom Party candidate in the rescheduled supreme courts which are in theory equal. ‘The Austrian Constitutional Court’. In the end. An individual does not have the possi- court. 2 See the amended Article 139 and 140 Austrian Constitution (Federal Law Gazette I 2013/114). a new kind of legal protection was bility to file a complaint against the decisions introduced in 2013.3 AUSTRIA increased when the Constitutional Court annulled the result of the run-off election THE CONSTITUTION AND (the first time this had happened in Austrian THE COURT4 constitutional history). The drama levels were creased by the Constitutional Court in 2016. Ingrid Siess-Scherz. with the utes and all other constitutional questions. Court´s competences having been extend. The Administrative Court considers the con- ed in the last few years. Constitutional Court was significantly in- er than ever before. In 2014. the Administrative Court and the Supreme Besides these core constitutional develop. Cambridge 2017) 75-114.OLKL[HPSLKPU[LYYLSH[PVUIL[^LLU[OLKPɈLYLU[Z\WYLTLJV\Y[ZPZ]LY`JVTWSL_ 12 | I•CONnect-Clough Center . lack of the provision of a constitution com- work for an individual to file a constitutional plaint (Verfassungsbeschwerde) for individ- complaint against a judgment of an ordinary uals. the Con. their functions: the Constitutional Court.

898 decisions included Vice-president and six members of the Court tions to the CJEU for a preliminary ruling12 184 positive and 233 negative judgments.8 The term of office lasts until procedure. 1.318 re- The appointment of the other six members is Court including the EU’s Charter of Funda. The President. who is moment Austria joined the EU in 1995 and VWHDGLO\:KLOHWKH&RQVWLWXWLRQDO&RXUWGH- bound in his appointments by the propos. the This includes its willingness to refer ques. es in 2016.7 All judges are appointed tutional Court engaged in EU law from the The workload of the Court has increased by the Federal President of Austria. jections (because no constitutional question based on proposals of Parliament (three from mental Rights in the human rights review was concerned) and a further 1.898 cas- als of different bodies. are proposed by the Federal Government. and the recent decision of the Constitutional 338 refusals on formal grounds.9 The current Human Rights (ECHR) is formally part of GXUHHWF.ditional judges.19 These 3.825 decisions each chamber). it decided 3. cessations of the proce- the judges reach the age of 70. has a very open attitude towards EU law.11 cided 694 cases in 1981.13 The European Convention on (regarding legal aid.

2016.03.at. so far. 9 Art.670 asylum cases. 144 Austrian Constitution. especially the Court of Justice of the review of elections or the decision on the still very rare. VfSlg 19.vfgh.10 Currently. It provides legal texts. 4 courts of first instance with regard to human concerning legal aid.at/downloads/vorabentscheidungsvorlagen/Vorlage_VRDspeicherung_G_47-12_EN_4.2013. whereas civil servants in case law of the Constitutional Court which was very small in comparison (3 cases). constitutional responsibility of the highest man Rights (ECtHR). 3.UNSPZO were provided: VfGH 13. the review of the tem (Rechtsinformationssystem).20 which not President is not entitled to vote except in cas. petences of the Constitutional Court.venice.vfgh. 1980s are available in German on the web- clude rulings in financial conflicts with the site of the Austrian Legal Informatics Sys- The Austrian Court system has to be seen federation or state entities. Konrad Lachmayer.OL(\Z[YPHU*VUZ[P[\[PVUHS*V\Y[»ALP[ZJOYPM[M…YkɈLU[SPJOLZ9LJO["4HUMYLK:[LSaLY. U 466/11 et al (2013) Vienna Journal on Inter- national Constitutional Law 105-107. ‘The Austrian Constitutional Court – An Overview’ (2008) 2 ICL-Journal 49-53. case law of the ECtHR.886/1997. it has become a practice that both chambers hold hearings before they propose a candidate. decisive vote. when the President has the have increased over the decades. Christoph Bezemek. U 466/11. The Austrian Consti. see also the Bulletin of Constitutional Case-Law.html. Although under Austrian law hearings are not mandatory.499/2011. G 7/2016 (hunt on private landholdings).vfgh.gv.pdf. E 1477/2015 (assisted suicide). the courts. 7 Art. 15 See Ronald Faber. 138 Austrian Constitution. available at www. 19 See the annual report of the Constitutional Court. VfSlg 17.at/. broad variety of competences. 12 See the recent decision taken by the Constitutional Court on 28 November 2012.gv. violations.15 The but also publishes upcoming oral hearings. 20 www.ris.10.at/vfgh/.coe.vfgh. the The Austrian Constitutional Court has a The Court has its own website. 6 Austrian Constitution. All judgments since the (out of 12) judges at the Court are female. and rank by the constitutional legislator in 1964.21 English in the context of the European justice sys. 16 Art.:LWKUHJDUGWRWKHGLIIHUHQWFRP- 12 members come from the fields of ad.03. there have only been male./>0Y\UVɈLSLJ[PVU"HUKPU[OYLLJHZLZZ\TTHYPLZPU. including 1. 21 www. authorities of the state. In the deliberation process of the Court. 8 .390/1995. VfSlg 14. The political importance of the second chamber is quite minor in Austria. A Contextual Analysis (Hart Publishing. most important competences are the deci. 147 para.OLÄYZ[JOHTILYPZ[OL5H[PVUHS*V\UJPSNationalrat). G 494/2015 (no right to a judicial determination of paternity). The the public administration have to be granted is heavily involved with the ECHR and the average length of proceedings was 143 days. U 1836/11 – available in English at https://www. 17 Art.gv.en.632/2012.pdf.12. 1 Austrian Constitution. ‘The Austrian approach towards European human rights’.int/WebForms/ 2016 Global Review of Constitutional Law | 13 .18 Further competences in.144 ministration. 18 Art. rights violations.2016. legality of administrative ordinances. university professors continue to exercise This formal constitutional framework led to The number of conflict of competence cases their professions.at/verfassungsgerichtshof/verfassungsrichter/brigitte_bierlein. recent judgments and an annual report of the Constitutional Court is still male-dom.vfgh. VfSlg 15.bka.427/2000. 15.g. leave.2016. 10 https://www. gives in- inated. published by the Venice Commission (http://www. lawyers.gv. including those its first female Vice-president. 22 0U[OL*VUZ[P[\[PVUHS*V\Y[W\ISPZOLKVULQ\KNTLU[PU.14 or 78 days in asylum cases. 140 Austrian Constitution.22 EU (CJEU) and the European Court of Hu.4. G-47/12 et al (questions for a preliminary ruling with regard to the data retention directive) – see in English: https://www. ‘A Kelsenian model of constitutional HKQ\KPJH[PVU. sion-making power in competence conflict.gv. Regarding gender diversity.at/downloads/grundrechtecharta_english_u466-11. 13 See VfGH 14.16 the Court. 147 para. VfSlg 14.UNSPZO!=M. VfGH 14 March 2012. 11 VfSlg 14. the review of acts of Parliament17 and the formation on court procedures and answers Since 2003. al.967/2006.OL*VUZ[P[\[PVUVM[OL9LW\ISPJVM Austria. 14 See e. the Constitutional Court has had review of judgments of the administrative frequently asked questions. VfSlg 19.2017. Judges. the translations of Constitutional Court cases are tem. the second chamber is the Federal Council (Bundesrat). Austrian constitutional law since 1958. and these only provides information about the judges es of tie votes. 2011) 197-204.gv. the universities and though it was only elevated to constitutional cases involved the review of human rights solicitors’ practices.863/1997. 15.

The reason is not only to be found in the procedural conditions which the appli. Moreover. This reduction is sig- argued that procedural efficiency is in itself the importance of this new form of constitu. Most of them will be rejected be. This. 30 VfGH 09. 26. again – the (supreme) Administrative Court.02.10. the Constitutional Court is related to asylum Constitutional Court itself had to concretise sion have to be eliminated.2016. linked to the organisational framework of sible content. 03.. nificantly related to the new organisational not a sufficient justification for an exception tional complaint.06. accepted pages/?p=02_02_Bulletins). G 673/2015.28 Thus. by an ordinary court played a crucial role. 23 See Section 62a para.2016. has to be appropriate to eliminate the uncon. statutory provision has to have a comprehen. in 2016.2016. 25 VfGH 25. will review civil and criminal law to a much year 2014 and the possibility to address – ample insolvency proceedings.25 the Court tive grounds. In the last Parliament concretised in the Constitution. it tions in certain areas of law to access to the complaint. does not reduce cerned asylum seekers. framework.10. equal treatment of foreigners.10. G 370/2016 et al. Court declared that the limitation of the in- al complaints with regard to the party which ered in legal literature as a clear example of a volvement of these legal advisors to certain appeals before the ordinary court is uncon. the Constitutional Court has in al Court Act the concept of a constitutional application should not be too narrow. violation of the right to equal treatment and a asylum proceedings violates the principle of stitutional and this has to be opened up to violation of the principle of reasonableness.2016. cause of the strict formal requirements of the 2. however. 14 | I•CONnect-Clough Center . which restricted the access possibility laid down in the relevant pro. See http://icl-journal. A concrete exam- tional Court accept that the urgency of the The concrete case in question concerned the ple of a relevant judgment in asylum relates proceedings of the ordinary court is crucial.30 The Constitutional stated that the restriction of the constitution.643 concerned tions to the access to constitutional justice in Constitutional Court. of asylum seekers to the (supreme) Adminis- vision of the Austrian Constitution to ex. The Con- stitutional Court emphasised that the legal A prominent example of the relevance of The Constitutional Court especially reviews dispute is of existential importance for some the new proceedings involves tenancy law. G 645/2015. duced. tenants. separable link have to be considered and the few years. 14. the new constitutional Constitutional Court with regard to substan. 1 Constitutional Court Act. the Constitutional Court because of the advantageous location of the asylum proceedings.726 con- the case about rental agreements. the Court itself in that regard. G 244/2016.2016. G 95/2016.27 The Constitutional Court.2016.2016. Only in the case of the Austrian The Austrian concept of tenancy law is very Art. 3 ECHR or with regard to arbitrariness Enforcement Regulation26 did the Constitu. The consequence of the new competences WUDWLYH&RXUW:LWKWKHHVWDEOLVKPHQWRIWKH clude a review of certain areas of law. to access to constitutional justice. in the year 2008. other provisions with an in.2016. 28 VfGH 05. G 435/2015 et al. This concept was consid. 29. es with regard to a constitutional amendment against statutory provisions. incoming cases was 3. VWLWXWLRQDOLW\:KLOHWKHUHPDLQLQJSDUWRIWKH to the migration crisis in 2015) but is also tional complaint.23 The expected. rented property. 27 VfGH 02. As the Constitutional Court is bound by the the Austrian Constitutional Court activity.2016.09. 24 See VfGH 14.03. created major formal requirements which On the one hand. primarily Many new constitutional complaints can be the extraordinarily high workload was re- for reasons of procedural efficiency. limitations of the possibility for a higher rent to the concept of so-called legal advisors in In another case.29 asylum cases in the context of Art. 8 ECHR. Constitutional Court declared such excep. complex and includes various particularities. at least to a certain extent: in 2012. the of the Constitutional Court is that the Court administrative court of first instance in the Constitutional Court Act prohibited for ex. the Constitutional Court have to be considered by the complainant. On the other hand. G 254/2016 et al. In the Court reduced the obstacles to access to the social justice and clarified that the tenancy case law of 2016. 29 VfGH 12.2016. the total number of most of the cases to be unconstitutional. legal protection in asylum cases.03. law cannot be considered as unconstitutional complaint after a judgment of first instance tive and formal limitations. G 447-449/2015.2016. G 541/2015. in the asylum proceedings.770 incoming cases out of 4.com/.920 and 1. Based on the stitutional complaint. 26 VfGH 08. the increased number of migrants (related cants have to fulfill before filing a constitu. the to apply which words of a statutory provi. G 72/2016.The Austrian Constitutional Court has gained Although in these cases the Constitutional the governmental justification for reasons of new review functions in recent years.24 In permitted appeals are dismissed on substan. This application cases. particular had to deal with many asylum cas- complaint from parties in ordinary courts it is quite a challenge to file an adequate con. however.06. To conclude the introductory overview of was confronted with the statutory limita.07. G 537/2015 et al. other parties of the court proceedings. many of the asylum seekers. the constitutional complaint has may be noted that a significant case load of Constitutional Court. etc.11. regarding lease cancellations. proceedings greater extent than has so far been the case. The Vienna Journal on International Constitutional Law also regularly provides summaries of judgments of the Austrian Constitutional Court in English.

4 million votes cast. Const. the Court referred to the case The Austrian Constitutional Court annulled relevant Act of Parliament to postpone the law of the ECtHR. The founders of the association finally sition parties32 succeeding in the first round. Blog. Based on Section 12 of the Association crats) did not even reach the run-off ballot. Therefore.863 votes sealed envelopes). The formal rules are intended to been perceived as such. The ed the argument that it is necessary to find self-determined death”. The request clarify this criterion. the most significant in a way that had never occurred before in 15. more generally. even though both the applicant olations into consideration if they could have tutional Court did not declare any provision and the mother assumed that the applicant is had an influence on the election result. the opening of the freedoms. en place on October 2. however. Due to dam. The The applicant was an alleged biological fa- performed by the election board as a colle- dynamics in rights case law is high. ODZIXODVSHFWRIFULPHV:LWKUHJDUGWR$UW ment of the re-vote. 11 ECHR. the Court only takes vi- (3. only 31 The following part is based on Konrad Lachmayer. The Austrian any concerns as for the prohibition of as- formal rules of the Federal Presidential Elec- presidential crisis of 2016.2016. 2016. it is possible to ban unlawful associa- with the political candidates from the oppo- The re-vote in the election should have tak. W I The Court held an extended hearing involv. Parliament amended the and 14 ECHR. by the two candidates. The Court concluded that the tions Act. which had never sisted suicide. separated the two candidates out of a total poned.). filed a constitutional complaint at the Consti- The run-off vote was held on May 22. E 1477/2015) judgment concerned the run-off election for any procedures of the Constitutional Court. i. 2016. The State Police Directorate of Vienna the federal presidency. which prohibits assisted sui- parties (Conservatives and Social Demo- which create the potential for manipulation. 9.iconnectblog. they claimed that Section 78 of idential run-off election: only 30.2016. As the child was born proach when election results are being con- suicide (1. aged envelopes for the postal votes (caused tutional Court with regard to Art. As the parliamentary statute concern- of 4. which potentially prevent violations of the principles of dem- supports assisted suicide. The police authori- run-off vote revealed new political dimen- concrete manipulations. in the Austrian applicant before the birth of the baby and traditionally applies a very restrictive ap- public debate. 494/2015) ballots and the counting of votes must be ates the greatest workload of the Court. the Criminal Code was unconstitutional. banning of the association. The prohibited the establishment of an associa- dential election was annulled by the Austrian Court identified formal violations and reject.03. they characterise the biological father of the child. Three ther who tried to gain judicial determination giate body. G their wording. L. Civil Code. com/2016/12/the-austrian-presidential-crisis. the husband became the legal tested with regard to the violation of these and the third to the prohibition of begging father of the child by presumption of the principles.07. at: http://www. To to be unconstitutional.42002. 11 ECHR. Although in all three cases the Consti. The Austrian presi- The hearing included 90 witnesses. Until then. The first case refers to assisted married another man. of paternity to establish contact with the bers of the board duly invited to take part in trate current themes of discussion both at the child.. No result had ever been so close in a pres- by a production error that led to improperly Moreover. was finally over. aiming at preventing abuse or manipulation The core activity of the Constitutional Court No (automatic) right to a (judicial) deter- must be applied strictly in accordance with involves case law in the context of rights and mination of paternity (VfGH 13. or had a the elections and it was already clear that the preciation to define criminal acts or the un- presidential election ever been annulled. Fundamental rights protection cre. tion called “Last resource – Association for Constitutional Court on July 1. – Association for self-determined death’ 6/2016)31 ing many heads of District Election Boards does not violate constitutional rights (VfGH Politically speaking. 2016. 2016. cide. Int’l J. the re-vote had to be post. in the presence of all mem- judgments from 2016 can be used to illus. Act. ‘The Austrian Presidential Crisis 2016’. Pretty. is therefore lawful ocratic elections. The mother of the child had left the the board meeting. However. 2016 Global Review of Constitutional Law | 15 . human rights (broad political leeway) and CONTROVERSIES IN 2016 ference between the numbers of votes gained how the Court differentiates its case law. Dec.2016. the second to paternity suits (2.DEVELOPMENTS AND overall number of votes which might have how the Court approaches sensitive cases in been affected by the violation and at the dif.). 33 ECtHR 29. maintaining that it is ty assumed a violation of Section 78 of the sions: the candidates of the two traditional only necessary to identify formal violations Criminal Code. a mem- ing the election of the Federal President did The Court dismissed the claim by arguing ber of the Green Party had never won the not consider the possibility of postponing that the legislator has a wide margin of ap- presidential elections in Austria. damaged envelopes would lead to an annul.e. tions. 2016. 32 Candidate supported by the Green Party and candidate nominated by the Freedom Party. the Court looks at the to determine paternity might.33 which does not raise the result primarily due to the violation of elections to December 4. The Constitutional Court Court and. Annulment of the run-off election for the Prohibition of the association ‘Last resource federal presidency (VfGH 1.12. The Constitutional Court recalled that legal provisions on elections MAJOR CASES and does not violate Art. Appl. 2346/02.) in a marriage.

V 41/07.12. thus also including cases. the year 2016 can be considered as of Begging (VfGH 14. and stated that the ordinary courts first have that even silent begging could be prohibit- to clarify if the contact with the biological ed under certain circumstances (involving father would serve the child’s well-being. expected concrete and disruptive effects on only as a second step would the court address community life). 8 ECHR is not applicable. ed by the Constitutional Court. Setting aside the case of the presidential Constitutional Limitations of the Prohibition election.2013.36 The legislator did CONCLUSION not exceed its margin of appreciation.41 and the father was understood as a third per. Since then. Lebbink. 2 of the of begging in different states (Länder). however.2017.3.2010. G 164/2017. Appl. Schneider.39 mocracy will be concerned when it comes to Civil Code.2012. the Court has continued its established child by a court judgment.be promoted by the child itself.2012.03.12. 44 VfGH 2. the Court argued that Art. Nylund. Anayo.2003. 45582/99. Appl.03.2016.2017. 35 See ECtHR 21.2004. case law. G 364/2016. E 70/2017. ordinary courts in civil and criminal law pro- ging in local communities. Appl. Ahrens. The local community had the question of judicial determination of the to prove in each case that such a disruptive paternity. 36 Again with reference to the ECtHR 22. 78028/01 and 78030/01.45 the Civil Code) were justified.12.06.2007. 2 of provision considered the case law of the context of tenancy law.2016. 45 The Constitutional Court already decided on certain questions of tenancy law in 2016 (VfGH 12.1999. even more fundamental questions of tenancy law in 2017. 546/10. engaged in a “prohibition of begging” case.40 ments will be made regarding the authori- The town of Dornbirn (in the state of Vorarl.3.2011.10.6. 06. 45071/09.02. 25.6. tences concerning the constitutional com- tional limitation of begging.2012.9. 8 ECHR and Art. G 673/2015).43 De- son according to Section 188 para.3. Constitutional Court. 15. Although it was “silent” begging (in contrast to aggressive case law. Pini. E 552/2016) a rather typical year for the Constitutional A recurring theme in the case law of the Court. 16 | I•CONnect-Clough Center . 38 VfGH 30. the Court stated. lum cases. 17080/07. Appl. Adebowale. 37 The case law started in 2007: VfGH 05. leged) biological father to interfere with an intact family in any case. EHHQ UHGXFHG :LWK UHJDUG WR KXPDQ ULJKWV ical father tried to establish contact with the ging in public places.10. Appl. 1. Appl. G 155/10. begging). The father tried to challenge this the funding of political parties44 and tax priv- section at the Constitutional Court according In 2016.38 which 34 See ECtHR 15.2014. the constitutional complaints as the state cerned with questions of social justice in the tions (with regard to Section 188 para. 17080/07. quite clear that the applicant was the biologi.9. 40 VfGH 14. G 64/11. B 1208/2012. Moreover.2016. berg) issued an administrative ordinance especially in the context of the extension SOLFDWLRQ :LWK UHIHUHQFH WR WKH (&W+534 that prohibited begging at a local Christmas of Vienna International Airport.23338/09. 43 VfGH 15. but will have to deal with further. G 394/2016. Important judg- to Art.10.06.12. Appl. The Court is still busy with asy- the Constitutional Court annulled a provi. Art. established an absolute prohibition of beg.10. Appl 20578/07. 2. The Court embraced its new compe- Constitutional Court concerns the constitu.2012. The Court re.2012. The Constitutional Court dismissed the ap. 41 VfGH 14.2017. E 552/2016. although the overall case load has sion of the state of Salzburg in 2012. Kautzor. 10 ECHR. 7 and 24 CFR. G 118/11.11. The year 2017 already promises interest- of the father to contact the child because the but that an absolute prohibition of begging ing case law in the context of the principle determination of paternity was not clarified violates Art. The biolog. sation of important infrastructural projects. EGMR 29. 39 VfGH 30. In a leading case.37 Statutory acts plaint against statutory provisions applied by of state parliaments (Landtage) prohibit beg. 42 VfGH 23. ceedings. the ordinary court denied the right of begging. The Constitutional Court dismissed the Constitutional Court will be further con- was applicable. 8 ECHR market. In an important part ferred again to the case law of the ECtHR35 of the judgment. 8 effect was present and this had to be accept- ECHR does not go so far as to allow the (al. has decided various cases on the prohibition electronic cars42 and private schools.2011. 01. Schneider. the Constitutional Court was also ileges for political parties.2017. The Court concluded that Art. but that the Austrian limita. 27110/95. Appl. The Court decided that in respect cal father. the Court of equal treatment regarding e-cigarettes. 22.

and sets out the goal of In Bangladesh. court until the age of sixty-seven. with a wide range of constitutional THE COURT administrative powers over the management of the Supreme Court. the High Court Division and the clusters of separation of powers and rights Appellate Division. the principle of secularism. the Prime These fundamental cores had been subjected Minister who appoints all judges of the Su- to changes many times. 2A). Lecturer at the University of Dhaka INTRODUCTION the value of the rule of law. The High tations (art. the 2016 Global Review of Constitutional Law | 17 . 1972. At times. and Sharowat Shamin. Bangladesh DEVELOPMENTS IN BANGLADESHI CONSTITUTIONAL LAW Ridwanul Hoque. socialism. the Constitution BANGLADESH Court Division declared the 16th constitu. with the high. a few other decisions received mixed reac- tions from civil society. which has two that may broadly be categorized into the divisions. ensuring its Constitution entrenches the principle of functional independence and the authority constitutional supremacy (art. democracy. the year 2016 was a signifi. 8). sits in the Appellate The Constitution of the People’s Republic of Division and is appointed by the President. The Constitution uniquely places the Su- joyment’ of other religions (art. albeit guaranteeing the ‘peaceful en. This and that are called ‘fundamental rights’. This paper reviews three most ry form of responsible government headed significant 2016 decisions in some detail by the Prime Minister. principles which are in effect an index of so- er judiciary playing an active role against cial rights. establishes the sepa- while briefly covering a few other decisions ration of powers that is based on the notion on human rights that might prove impactful of checks and balances. Specifically. and incorporates the and consequential. the President has to act upon the advice December 16. ligion. has entrenched an enforceable bill of rights tional amendment unconstitutional. Bangladesh (‘the Constitution’) was adopted In case of the appointment of associate jus- on November 4. it is the ism. judgment. these principles are nevertheless ever. The paper begins with a basic principles of judicial independence. Importantly. executive or. 7). and decree of the High Court Division (HCD). It contains a set of state policy cant year of judicial activities. and The Constitution establishes a parliamenta- politicians. short introduction to Bangladesh’s Constitu- tion and the Supreme Court and then turns The higher judiciary is composed of the Su- to some remarkable constitutional decisions preme Court of Bangladesh. to be more precise. In practice. how. The preme Court as its guardian. however. social justice. The Chief Justice of Ban- THE CONSTITUTION AND gladesh. The Constitution stands of the Prime Minister and to consult the Su- RQ IRXU µIXQGDPHQWDO¶ SULQFLSOHV²VHFXODU. rights-activists. Professor of Law at the University of Dhaka. preme Court. ‘fundamental’ in the governance of the State. human dignity and human rights. the Constitution Judges have a secure tenure. recognises to enforce the Constitution. and legal/constitutional interpre- the secular identity of the nation. The eleven-member Ap- and freedoms. Curiously. 1972 and came into effect on tices. alongside preme Court including the Chief Justice. serving on the currently recognizes ‘Islam’ as the state re. Declared to be judicially non-en- arbitrary executive decisions. and nationalism. the court remained conservative or reti. pellate Division hears appeals from any or- der. cent on issues like the freedom of religion or lawmaking. forceable.

the Appellate Division re. which can be of the HCD that is now subject to an appeal. throughout torture in police custody for the extraction being the ‘guardian’ of the Constitution. Md. a law restrictive of personal liberty venting arbitrary arrests and custodial torture would be unreasonable within the meaning in the future. Bangladesh (2003) 55 DLR (HCD) 363. died in police custo. and terms of conditions or suspects of crimes and prohibits torture. Masdar Hossain (1999) 52 DLR (AD) 82. Ministry of Finance v. 5 *VNUPaHISLVɈLUJLTLHUZHUVɈLUJLMVY^OPJOHWVSPJLVɉJLYTH`\UKLYHU`SH^HYYLZ[^P[OV\[^HYYHU[ 6 Above note 3. In the context that the President did not think that such a to be involved in any cognizable offence. 2016). the Appellate Division largely ments. Services Trust (BLAST)3 ty when making an arrest. it 2016. The guidelines also require gard to arrests without warrant. means. and reaf- of services of judges in the junior judiciary in The history of this liberty-protective deci. the Appellate Division invalidated 5th. MAJOR CASES 15-point guideline in 2003. 114. upheld the HCD’s guidelines. there remained a tension between the of confessions or for other unlawful gains could not keep quiet in the face of rampant top judiciary and the executive with particu- have been rampant in Bangladesh. 4 BLAST v. Secretary. disciplining. it placed that the government issue regulations for the and substantive safeguards for the arrestees special focus on the constitutional right to control. against the concerned police-officer in case larly controversial: first was the case in which On May 24. Rubel. the court held and the tug-of-war between the top court and in police custody.1 the Appellate Division versity student. a legal rights organization. In a tactical arrest any person without warrant if the po. OLYH ZLWK KXPDQ GLJQLW\ :KHQ GHYHORSLQJ In a rolling review. and interrogation of suspects. Eventually.thedailystar. Rubel’s inability to seek remedies against police Earlier. despite violation of fundamental rights of citizens by lar regard to the Supreme Court’s insistence that the Constitution guarantees procedural law-enforcing agencies. para. The first case is a landmark decision lice custody. and 13th amendments with finality. Section 54 of the Criminal Proce. detention in the magistrates to initiate legal proceedings Two decisions.2 seeking court directives with a view to pre. rive and buttress decisional reasoning when defiance. the HCD declared unlawful the restoration of the old parliamentary process of removal jected the appeal and largely endorsed the guidelines earlier issued by the HCD. sion dates to July 1998 when a young uni. and asked the relevant authorities to comply. life and the notion of due process. which are controversial decisions in a sense termed as Bangladesh’s Miranda-safeguards. Bangladesh Legal Aid and police are now required to disclose identi- the founding constitution of 1972. SCOB= Supreme Court Online Bulletin. It goes without saying that the rationale of of judges. brought a public interest litigation ty can be fulfilled by any other reasonable lower judiciary are not yet over. ry during arrest. the HCD issued a of constitutional rights and principles. Appreciably.6 1 Rooted in the so-called judicial intendance case. we focus on three important de.4 in which friends of the arrest. that if the need to preserve the state securi- the government on the independence of the BLAST. warrant and the discretion and authority of and remedy legal breaches (arts. and have high political implications. and second was the instance when this decision is embroiled in the principle it abruptly dismissed a challenge to Islam’s Arbitrary arrests or detention and the use of of the rule of law. she or he is found to have breached the law. The controversy Following the most shocking death of Rubel the State’s need to suppress it.net/frontpage/rules-lower-court-judges-sc-says-president-misinformed-1329352/. 3 8 SCOB [2016] AD 1 (judgment of May 24. firmed that the right to life includes a right to line with principles of judicial independence. the Appellate Division recommend- death was caused by severe torture while in brutalities and abusive arrests. Moreover. the suspicion of committing crimes. On appeal. and to take the arrestee to a medical doctor in the event of any inju- CONTROVERSIES IN 2016 that court issued a set of guidelines to be fol- lowed by the police and magistrates with re. it relied on comparative decisions and cited law to regulate the conduct and discipline of dure Code of 1898 authorizes the police to Bangladesh’s international obligations to de- officials of the junior judiciary. Before the 16th amendment decision The other two decisions are by the HCD. the government let the court know lice-officer reasonably suspects that person issuing the binding guidelines. 7th.5 of ever-escalating international terrorism and notification was necessary.HCD has jurisdiction to enforce fundamen. ed certain amendments to the proposed by- custody. 18 | I•CONnect-Clough Center . trary arrests and abusive remand of suspects. 2 Details are available at: http://www. 44 & 102). cisions of the Supreme Court from the year the magistrates to remand an arrestee to po- The Court’s judicial review power extends 2016. and Most notable of the guidelines are that the urged for the restoration of core features of Bangladesh v. not only over administrative actions but also by the Appellate Division concerning arbi- over legislations and constitutional amend. Moreover. 8th. prepare a mem- This appeal by the government arose from orandum of arrest. detailed below. its reasoning. The court thought that state religion status. were particu- police custody. 2016. clearly delimit- tal rights through appropriate ‘directions or ing the power of the police to arrest without orders’ as well to enforce legal obligations In this part. the court also revealed a sen- is extending off-and-on the timeframe for dy within hours after his arrest by police on sitization about the disadvantaged citizens’ the government to notify such regulations. inform the relatives or DEVELOPMENTS AND HCD’s judgment of April 2003.

the court on March 28. The other two challenges were WP No. especially the fact that the incumbent gov. whether state religion and sec. certainly did not endorse. L. political. second time in the post-democratic transition several religious groups commenced demon- tional petition challenging Islam as the state era and promised the revival of the lost secu. They also threatened that hold any hearing at all. Bangladesh Rejects 28-Year-Old Challenge to Islam’s Role’. a system that was ab- amendment brought forth another change.It is hoped that the Appellate Division’s doctrine of an unconstitutional constitutional some challenges for the court. religious intolerance began to rise sharply. Available at: http://www.tional provision regarding the removal of the amendment to the Constitution. but it did not LWZLVHWRUHYLWDOL]HWKHLUSHWLWLRQ:KHQWKH tioners as atheists. The time announced for the hearing es by law enforcement agencies. It indeed decid- opted the principle of secularism as a con. challenge to the state religion part of the 8th was another political problem of an acute ing the vice of impunity for torture and abus. Int’l J. Relinquishment of secularism and the Constitution became firmly established. 8 Writ Petition No. Another not as simple as they might appear. of absolute faith in Allah. and Sirajul Islam Chowdhury and others v in 1991. March 28. review’. reasoning that the petitioners lacked a stand. see Hoque. Militancy. unfair to critique the court’s rejection of the Islam’s constitutional status?10 zations. 9989 of 2014.A question remains whether these events a transitioning or divided society. judgment May 5. To what extent was the court religion. On 25 May 2016.influenced the court’s decision. is not that simple and it begs cer- itary regime introduced Islam as the state ested citizen to challenge any gross breach of tain questions.7 Things. The court ing to argue the case. 1834 of 1988 Several secular-minded intellectuals and In- (State Religion Challenge) :KHQWKHSDUW\WKDWOHG%DQJODGHVK¶VLQGH. Bangladesh. The second mil. This argument of the lack of locus standi of Islam under the Constitution. 2016. at: http://www. the to the jurisprudential challenges noted. it decentralized the HCD into six regional curious solution in a Muslim-majority coun- benches. May 27. the surviving petitioners thought as the state religion. terest litigation that allows any public-inter.Asaduzzaman Siddiqui v. nor did it reject. In the late 1970s. summarily dismissed a 28-year-old constitu. They feared dis.com/2016/05/islam-in-bangladesh. of secularism but did not strike out the state Islamist group ‘requested’ the Court to reject lenge goes much deeper into the question of religion clause. In addition guidelines vis-à-vis arrests and detention in amendment in Bangladesh. Bangladesh (par- State’s secular identity. of Parliament’s deliberate choice for such a sent from 1974 to 2014. Bangladesh’s original Constitution provided same time. partially nature. iae. the HCD in a 2 to 1 deci- and lodged in 1988 three challenges against sion invalidated the 16th amendment (2014) the state religion provision. the High Court Division pendence movement came to power for the by extremists. 2016. which too was challenged at the try and given the local political specificities. 1330 of 1988 and WP No. are 15th amendment (2011) revived the principle the case would trigger disturbances. The chal. The HCD showed initial willingness to vis moral. the core of the judicial role discourse vis-à. 2016. it would not be deal with a hard issue such as the legality of eminent citizens and civil society organi. 11 Advocate Asaduzzaman Siddiqui v. did the embracement of political Islam by the As such. The approach. amendment remained undecided. 2016 rather abruptly dismissed the petition Islam’s constitutional status. prudence of abstract ‘public interest judicial liamentary removal of judges)11 crimination against minorities and women. the petition seemingly posed lution of Parliament passed by a two-thirds 7 Maher Sattar and Ellen Barry. Bangladesh’s Independence Constitution ad. the petitioners added a sup. For this. the lawyers too began state religion challenge as somewhat unprin- a movement against the demolition of the cipled and incompatible with its own juris. The challenge to the judicial-de. due to an unfavorable political environment of the petition turned out to be extremely po- despite the country’s transition to democracy litically sensitive. Moreover.nytimes. Ridwanul (2016). article 2A of the Undoubtedly. 2016. ‘In 2 Minutes. Blog. although a detailed judgment has the court skirt its jurisdictional inability to military regimes were challenged by some not yet become available. free to make its own value judgment? Or.ed not to decide the case involving the status notational core. Constitutional Challenge to the State Religion Status of Islam in Bangladesh: Back to Square One?.that restored verbatim an original constitu- Constitution. 9 Anwar Hossain Chowdhury v. 1834 of 1988. the first ing. Bangladesh. 2016 Global Review of Constitutional Law | 19 .strations against the case challenging Islam religion. New York Times. however. and religious disputes in hear the challenge and appointed amici cur.however.html. terrorism. In the wake Supreme Court judges.for the removal of Supreme Court judges by centralization part of the 8th amendment ernment’s opposition introduced Islam to the an order of the President pursuant to a reso- was successful in 1989 and gave birth to the Constitution. The court said that the petitioners lar identity.8 The 8th tutional order is a novel issue.the petition and met with the Chief Justice in ever ‘contested’ national identity as well as plementary challenge to the 15th amendment the morning of the day of the hearing. Const. too.ternet blog writers had already been killed On March 28. In such a background context.appealed to the court as a tool.9 In contrast. condemning the peti- lacked any standing to litigate. because the notion of public in. Writ Petition No. the military regime abandoned secularism and gave a shock and sheer surprise to the legal technical ground of locus standi might have installed into the Constitution the principle community. 1177 of 1988. incorporated through the 8th ularism can go hand in hand under a consti. 10 For a commentary on this decision. Bangladesh (1989) BLD (Special) 1 (decision of the Appellate Division). As the petitioners’ counsels were prepar.iconnectblog. Writ Petition No.com/2016/03/29/world/asia/bangladesh-court-islam-state-religion. there police custody will contribute towards end.

net/city/sc-upholds-hc-injunction-eviction-dwellers-210625 (retrieved on April 10. it was challenged on able for Bangladesh.13 How can an origi- of the Appellate Division. the fact that. 20 | I•CONnect-Clough Center . process. In August 1975. be ment but initially kept intact the system of independence are kept intact. restored the court also invalidated the 5th amend. to remove a judge unless there is a positive lemic statement that ‘the poking of the nose judicial activism of this sort provides some 12 Ibid. cannot be struck out by a judicial decision Constitution (‘basic structure’) impervious based on extremely feeble. it lost sight of of Supreme Court judges. abused? In the background history of the removal of the judges. making the judges removable with. it is argued. at pp. merely by an peer-trial process can be installed. the HCD was hearing the case. no set formula clearly lacks. There is. 2016 rule in art. and a lin. Despite the firm footing of the doctrine process. Least attractive was the court’s rebuttal Dhaka (Bangladesh’s homeless community). 70 of the Constitution.14:KLOH moval of judges. Undeniably. er protect the slum dwellers in the long run.. probable abuse of the parliamentary removal from their ghettos for three months. behaviour by any judge. 13 Ibid. independence of the judiciary In effect. power to invali- the judges removable by the President upon for maintaining judicial independence when date an original provision of the Constitution the recommendation of the Supreme Judicial establishing the judges’ removal procedure. 2017). [and] obsolete’ in the Chief Justice and the two most senior judges ing judicial independence are indeed soci. The main Eventually. Both the system of Supreme three years before this verdict. The court took into consideration the the parliamentary model of judicial remov.12 gering period of extra-constitutional regimes installed.majority and only on the ground of proved finding of proved incapacity or misconduct of the Parliament into the removal process misbehavior or incapacity (art 96(2)). and which it had power to assess and pronounce two slum dwellers. Following a petition filed by Ain o posal to remove a judge. an exercise of ‘derivative’ constituent power Salish Kendra. In the meantime. composed of the In contrast. some was incompatible with the notions of judicial representatives. of the concerned judge. a clearly lawful amendment ry is an essential feature of the Bangladeshi incapacity of the concerned judge. It was for an act of of the Judges’ is violative of the doctrine of fore this provision was ever tested. liament and the executive on the one hand cess of judicial removal are constitutional if DQGWKHMXGLFLDU\RQWKHRWKHU:KDWHYHUEH The HCD proceeded with the undisputed there is an objective legal standard to mea. ety-specific and so is the judicial removal nal provision of the Constitution. because of the anti-defection of the argument that they lacked power to the Appellate Division on January 31. even if that is what an amicus curiae termed Council (hereafter SJC). shallow reasons. means and processes of ensur. 14 For details. In doing so. the a law to that effect was in the making when heads of the Judges of the Supreme Court of Constitution itself was thwarted. the 16th amendment decision by rationale for the invalidation of the 16th WKH+&'OHGWRWKHPDUJLQDOL]DWLRQ²LQGHHG Other significant cases: Slum dwellers’ amendment was that it created an opportu. (1975) had done away with this investigate and prove the allegations of mis. Be. originally enacted. which was later affirmed by the 5th cess is what lies at the core of this normative of basic structure in Bangladesh. 96(2) was Dhaka.thedailystar. the HCD engaged in an exercise of choosing ‘think’ the provision might in the future be acted reviving the system of parliamentary which mode of judicial removal is more suit. and the judicial removal pro. Coalition for Urban Poor. the 4th Parliament to detail the legal mechanism to separation of powers and that ‘[t]he rule of amendment. outdated. argument of Mr. the political motive behind a constitutional premise that the independence of the judicia. unconstitutional merely because the judges WKH6-&:KHQWKHWKDPHQGPHQWZDVHQ. visit: http://www. cisions in the protection of slum dwellers in existing political culture in Bangladesh and al. ‘unsuitable. the court amendment (1979). a political choice that 16th amendment as well as in the challenge the principle ground that the removal system belongs to the people through their elected thereof loomed a relationship chasm. The new system made concept. 144-145. the HCD on January 21 It seems that the court took too seriously the unconstitutional. duction of the original form of art. eviction of dwellers from Kalyanpur slum in ercise their minds when deciding on a pro. Bangladesh’. at p. That this was a folly is issued the injunction restraining the govern- possibility of abuse of the restored original clear from the court’s apprehension of the ment from evicting this suffering community constitutional provisions regarding the re. The first military regime extra-con. members invalidate a provision of the Constitution upheld the HCD’s prohibitive injunction on of Parliament would be unable to freely ex. GHILDQFH²RI WKH FRQVWLWXHQW SRZHU RI WKH right to housing & the safe environment nity for Parliament to exert pressure on the founding people of Bangladesh who chose In the old tradition of issuing proactive de- judges. however. the court’s 16th amendment ver- stitutionally amended the judicial removal is a basic structural norm of the Constitution dict is an affront to the separation of pow- clause to introduce a peer-driven removal of Bangladesh. law will certainly get a serious jolt by the system. Amir-Ul Islam. In this case. Judicial Council and the parliamentary pro. arguing that the re-intro. sure and prove allegations of misconduct or amendment. and in fact hanging like a Sword of Damocles over the order of the President. For this purpose. ers. provided that the basics of judicial verbatim after some years of abeyance. to a constitutional amendment. a Sixteenth Amendment [that] [i]n fact […] is out any legal process that is.. Bangladeshi context. 135. between Par- independence and separation of powers. A glimpse of this judicial orders such as this could not earli- the fact that Parliament cannot in fact resolve fallacy can be seen in the court’s own po.

when Supreme Court were quite tough on the need judged in the backdrop of current unstable to move these polluting industries out. It will have to strike a delicate bal- ance between institutional legitimacy and capacity and the higher normativity of the founding constitutional principles. however.com/arcprint/details/83525/2017-03-03. Accordingly. however. and multi-pronged environmental issues. the Bangladeshi higher judiciary dwellers who have no place to call home. Both divisions of the an external volatile environment. a challenging time seems to lie ahead for the court vis-à-vis the issue of legality of an original provision of the Constitution concerning the removal of judges. the court’s decision to not de- an environmental organization. Savar. and constitutionalism. and http://www. And. shape. had the is- sue of their protection in mind. rights of the of default. This instance of judicial activism was surely for the preservation of the environment and public health. and decide the unresolved issues in the future in regard to the principle of judi- cial independence and the process of remov- ing judges. As said. the government in compliance with the court its activism and the role in 2016 seem prag- order cut off utility services to the tanneries. dealt with the extremely complex issue of the constitutionality of Islam’s state religion In another lingering proceeding lodged by status. It first lessened and then waived the amount of fine for the default of the tannery owners. the court re- mained an important institution of constitu- tional politics and governance.thedailystar.15 CONCLUSION As the above judgments of the Bangladeshi Supreme Court in 2016 show. they finally moved to the designated subur- ban industrial zone. the HCD cide such issues as state religion or the prin- on June 16 ordered the relocation of some ciple of secularism was unprincipled. An un- intended consequence. 2017). and 154 tanneries from the City of Dhaka to a arguably reveals its institutional fragility to nearby suburb.theindependentbd.000 workers lost their jobs at least for months. though. and ordered redirecting of such amounts to the welfare and rehabilitation of the workers instead. The industry owners resorted to most hapless sections of the people in soci- PDQ\WDFWLFVWRGHOD\VXFKUHORFDWLRQ:KHQ ety. 15 A report is available at: http://www. It however remains to be seen how the apex court of the country manages to negotiate. 2016 Global Review of Constitutional Law | 21 . the court’s decisions in saddled a heavy compensation in the event the areas of personal liberty. The court. matic and promising. was that some 50. The kind of tension that was seen between the organs of the State is in fact inevitable in a democracy.measure of temporary relief to the slum In 2016.net/city/doe-col- lect-tk-1cr-14-industries-damaging-buriganga-1277317 (retrieved on April 10.

eral state. therefore. the case of the unitary Belgian state into a federal state law of the European Court of Human Rights led to a multiplication of legislative bodies. Hasselt University and Law Clerk at the %HOJLDQ&RQVWLWXWLRQDO&RXUW-XUJHQ*RRVVHQV):23RVWGRFWRUDO5HVHDUFKHUDW*KHQW University and Assistant Professor at Erasmus University Rotterdam. competence conflicts only rep- Constitutional Court and its activities in resent a small portion of the case law (4% 2016. the property rights that can be of interest to an international au. separation of powers. and ethical issues and hot topics. 22 | I•CONnect-Clough Center .sions concerning similar fundamental rights alisation since the 1970s. this contribution presents the Belgian established. criminal matters of Articles 12 and 14 (4%) ing categories: the Belgian Constitution in and the right to private and family life of Ar- Europe and the world.Constitutional Court. The transformation in international treaties. the case law of the Court of Jus- original mission of the Constitutional Court tice of the European Union (CJEU) is also was to supervise the observance of the consti. the communities and the regions. As a result. Finally. the separation of powers and the refugee cri. Therefore. the tax guarantees in Ar- the Constitutional Court for the past year ticles 170 and 172 (8%). namely principle of equality and non-discrimination. Judge at the Belgian Constitutional Court and Full Professor at Ghent University. of Article 16 (5%). followed and Trade Agreement (CETA) between the by review of compliance with the fundamen- European Union and Canada.regularly reflected in the jurisprudence of the tutional division of powers between the fed. Jan Theunis.Rights (ECHR) as interpreted by the ECtHR. Belgium DEVELOPMENTS IN BELGIAN CONSTITUTIONAL LAW Luc Lavrysen. ticle 22 (4%). Associate Professor. tal socioeconomic rights in Article 23 of the liver an overview of the main cases before Constitution (11%). 3K'5HVHDUFKHUDW*KHQW8QLYHUVLW\DQG9LYLDQH0HHUVFKDHUW/HJDO2I¿FHUDWWKH Belgian Constitutional Court INTRODUCTION Now that the division of powers between the federated entities and the federal state is well BELGIUM First. Pieter Cannoot. of the judgments in 2016). the competence of the Court gradually extended to constitutional rights and freedoms. we de. the legality principle in GLHQFH:HGLYLGHWKHFDVHVLQWRWKHIROORZ. it discusses two constitution. the Moreover. The majority of al controversies that were at the center of cases in 2016 concerned infringements of the much political and media attention. flicts between legislative acts. for historical reasons still the most invoked sis as well as the Comprehensive Economic principle before the Court (52%). It is. The Court assumes that the fundamental rights under Title II of the Constitution and those enshrined in international conventions THE CONSTITUTION AND are inextricably linked. (ECtHR) has a considerable influence on the 7KH FUHDWLRQ RI IHGHUDWHG HQWLWLHV²UHJLRQV case law of the Constitutional Court. which DQGFRPPXQLWLHV²HPSRZHUHGWRDGRSWUXOHV considers itself to be bound by the provi- with the same legal effect as acts of Federal sions of the European Convention on Human Parliament resulted in the possibility of con. In the following decades. un- THE COURT avoidable that the provisions under Title II are interpreted in conjunction with the provi- Belgium has embarked on a process of feder. justice and order. Second.

and handled 207 cases in total. Belgium has had a or by the Articles 143 (1).” The contro- er courts must in principle refer a question versy started when a Syrian family asked for 1 Judgment no. followed by the Courts of Appeal (25).577 of 20 October 2016 3 Judgment no. or in the course of the proceedings. be brought within six months of the or declared the question inadmissible. Article 3 ECHR. ble prejudice in the period between the intro. Court of First Instance3 that imposed a co- An action for annulment does not suspend ercive fine related to the obligation to issue the effect of the challenged act. would directly lead to the applicant being related to the “refugee crisis. a humanitarian visa via the Belgian embassy tional Court by an action for annulment or al Court. Several tion of the challenged norm.363 of 14 October 2016 and no. stating DQGLQH[FHSWLRQDOFLUFXPVWDQFHV²RUGHUWKH pretation. concerned actions for annulment. for example. but was faced with a suspension of its de- parliaments (at the request of two-thirds of fringement was found in 36% of these cases. declared itself incompetent ment was followed by two other suspensions a rule. for a preliminary ruling to the Constitution. as the court of law. In other judg. the highest courts tion Service. proceedings sue a visa. 175. The Advocate-General If a party to a dispute invokes the infringe. as the rejection decision was three times al- If an action for annulment is well founded. CALL referred for a preliminary ruling to action for suspension must be brought within the CJEU concerning the request for a hu- three months following the official publica. DEVELOPMENTS AND manitarian visa through an embassy. 176. the Court annulment represented 31% and requests for mined the rule of law. grants the discontinuance campaign attacking the “unworldly judges” the courts with respect to the points of law of the action. A party were referred by the Courts of First Instance able to seek asylum. In another case. The applicants invoked may demand suspension of the challenged (51). the (provisionally) maintaining the effects of the pleted cases and the number of judgments is judge imposed the Secretary of State to is- act (three times) if necessary. State. Such an suspension represented 4% in 2016. given the circumstances. 179. by the various governments. official publication of the challenged act. as well as an appeal of the judgment judgments (out of a total of 52). issuing a visa is a discretionary decision of lenged provisions (29 times in 2016) while ancy between the number of treated and com. cision by the Council for Alien Law Litiga- MPs) and any natural or legal person who whereas no infringement was found on 64 tion (CALL)1 and with the injunction to take has a justifiable interest in the annulment. referred the case back to inhuman or degrading treatment. most judgments were that the Secretary of State refused to comply suspension of the challenged norm pending preliminary rulings (65%) while actions for with the separation of powers and under- a meritorious decision. In 2016.108 of 8 December 2016 2016 Global Review of Constitutional Law | 23 . low. a new decision within 48 hours due to an In 2016. the competent administrative authority. two institutional parties and 72 ments. 110 judg- duction of the action and the judgment of the ments concerned references for preliminary These actions led to severe criticism. denied the request. This judg- the Court. The third time. Therefore. which falls under the authority also referred some questions. by the CALL2 due to insufficient reasoning. on a request for suspension. even though the Court will annul all or part of the chal. Most of the preliminary questions in Beirut for a short stay in Belgium to be a reference for a preliminary ruling.973 of 7 October 2016 2 Judgments no. 16/3438/B of 25 October 2015 4 Judgment no. Conversely. bunals (10). In. The Belgian Immigra- nulment.A case may be brought before the Constitu. there Since October 2016. 172 and 191 are serious motives to believe that a refusal fierce debate about the separation of powers of the Constitution by a legislative act.4 the ordered suspension in three cases. 170. He filed settled by the judgment. other countries and the European Commis- CONTROVERSIES IN 2016 sion joined the case. Theo Francken. advised the CJEU to hold that a EU Member The separation of powers and the ment of its fundamental rights guaranteed State is obliged to issue a visa on humanitari- refugee crisis in Title II “The Belgians and Their Rights” an grounds if. If an action due to joined cases. namely eight of the Secretary of State for Asylum and Mi- An action for annulment may be brought times for the Council of State and on six gration. an appeal in cassation before the Council of annulment appeals inadmissible in four other visional ruling while the case is still pending. Francken firmly refused to issue the the challenged norm from causing irrevoca. 52 judgments visa and to pay the fine. it occurs that the for their alleged judicial activism. To prevent The Constitutional Court ruled six times the visa. the Labour Courts (10) and the Labour Tri. This judgment elicited Francken for annulment is dismissed (on 19 occasions are sometimes terminated by a court order and his party N-VA to launch an advertising in 2016). The Court declared Court gives an interlocutory ruling or a pro. An action for annulment must. Moreover. the judgment shall be binding on that. occasions (58% of the cases). the Court delivered 170 judgments most identical. In 2016. amongst &RXUWWKH&RXUWPD\²DWDSSOLFDQW¶VUHTXHVW rulings and there were two requests for inter. Incidentally. degrading treatment. which prohibits inhuman or legislative act along with the action for an. the Court held that the question does insufficient reasoning regarding the risk of individual applicants brought a case before not need an answer. 176. presidents of occasions for the Court of Cassation. others of the High Council of Justice. This takes place when the Court refers a case of the President of the Francophone Brussels to the CJEU for a preliminary ruling. The discrep.

ers and in a discriminatory way violates the can be found in 29 cases. the ECHR approve the annual budgets but also to set pute while the application of the loop could and EU Law.const-court. which granted Monetary Union is an intergovernmental ticle 34). the Constitutional Court continued of all citizens. However. it also en.strate a proper individualized connection be. References were made to the medium-term budgetary objectives. 62/2016 – Treaty on Stability ministrative authorities. According to the Court. They could only the constitutionality of the so-called “admin- their jurisdiction. none In October 2016. ments entirely at liberty as to how they draw mination of the content of a discretionary up and approve budgets. administrative act. Coordina. In judgments no. Treaty-making Separation of Powers power in Belgium is allocated according to The fact that austerity measures can be im. This legal instrument PHQWV WKH :DOORRQ *RYHUQPHQW FRQFHGHG the right to vote is likewise not sufficient enables the administrative judge to give an which allowed CETA to be signed. the Constitutional Court reviewed exclusively relate to matters falling within and the disputed provisions. Judgment No. Parliament is indeed the only tive judges the possibility to express their to show great openness towards international constitutional body empowered to not only viewpoint regarding the outcome of the dis- and European law. the world was wondering tives established in the fiscal compact would of the applicants had an interest to the degree KRZ WKH 0LQLVWHU3UHVLGHQW RI WKH :DOORRQ lead to the authorities no longer being able required for them to seek the annulment of the Region. because the challenged acts have no direct administrative authority in an interim judg- effect on the right to vote. the the above-mentioned two Flemish admin- agreement between 25 EU Member States Court asserted that “under no circumstances istrative courts a redesigned administrative to reinforce budget discipline of euro area can there be any discriminatory violation of loop for formal and substantive illegalities. they may not violate consti. Nonetheless. trusts certain powers to the EU institutions. for the first time. According to the Court. having Disputes and the High Enforcement Council period of power-play and some minor adjust. European Union and Canada. in particular. The Constitutional Court had political and constitutional structures or of the possibility to rectify the unlawfulness by 5 C-638/16 PPU 6 See English version at http://www.” The dis- to exercise the right to request international and the Flemish Parliaments approving the puted acts.an interest as a citizen or a person who has for the Environment. Ref. After a ary objectives. State and the (Flemish) Council for Permit shared with the federal authorities. to decide on the admissibility of a demand the fundamental values of protection that the ing treatment by withholding a legal action for annulment of various acts of the Federal Constitution affords to any person. the Court ruled in 5 cases that Pact makes provision for detailed targets and of the judiciary.tutional guarantees. established by Article 167 of the Con. was able to postpone to fulfill their constitutional obligations in challenged acts and the annulment appeals the signing of the Comprehensive Economic terms of fundamental social rights (Article were declared inadmissible. Although the Stability principle of impartiality and independence FIT case law. 153/2016 – Administrative the principle in foro interno.be/public/e/2015/2015-103e.be affected directly and unfavorably by istrative loops” of the (federal) Council of ties” such as CETA. the Consti- The 2012 Treaty on Stability.WUHDW\:KHQSDUOLDPHQWDULDQVGRDSSURYHD loop puts pressure on the separation of pow- erences to other sources of international law treaty. the initial DQGWKH:RUOG essential that its protection is in the interest design of the loop provided the administra- In 2016.5 Treaty and implementing its Article 3 (1). administrative judge intervenes in the deter- ruling to the CJEU. governments following the sovereign debt the national identity contained in the basic The judge can now offer the defending party crisis in 2010. Community and Region Govern. the administrative the case law of the CJEU in 19 cases. treaty-making power is measures intended to achieve those budget. the there was no need to refer for a preliminary deficit reduction. Consequently. – Demand for Annulment – Admissibility – The Stability Pact does not merely create an Primacy of EU Law – National Identity inflexible budgetary framework. which is a task of the ad- Judgment No. and Trade Agreement (CETA) between the 23 of the Constitution). the interest of all citizens. according Courts – Administrative Loop – Indepen- no.pdf 24 | I•CONnect-Clough Center . it leaves national parlia. however. dence and impartiality of the judiciary stitution. do not interfere with any protection in that Member State. not sufficient to demon. would be so essential that its protection is in CETA tions asserted that the strict budgetary objec. the ment the possibility to rectify an irregularity MAJOR CASES Court considered whether the challenged in the contested administrative act. on his own. however.6 74/2014 and ments have the power to enter treaties that tween the personal situation of the applicants 152/2015.posed on the basis of the Treaty is. It can not lead to a (rectified) decision with an al- jurisprudence of the ECtHR in 46 cases and enter into such commitments by way of a tered content. however. On 1 December 2016.to the judgment. In the Court’s view. 103/2015. As a result. the Decree of 3 July 2015. Based on the CIL. It aims to acts interfered with any other aspect of the contribute to the timely final adjudication of The Belgian Constitution in Europe democratic rule of law which would be so disputes. in foro exter. A aspect of the democratic rule of law which number of citizens and non-profit organiza. tutional Court dismissed the appeal against tion and Governance in the Economic and which is permitted by the Constitution (Ar. As regards “mixed trea.subjected to torture or inhuman or degrad.

the use of these freedom of choice and considered it justi- of the administrative act. partments. the universal right the public prosecutor can settle a case that independent supervision. Any other ruling would prevent the ples. nal experts and members of the judiciary or King of Belgium. Article 17 ICCPR basis of their sex. The Act identifies the various on one’s surname cannot be regarded as a to the previous loops. en regarding the way in which surnames are over the age of 22 to challenge the paternity the judicial review limited to the formal con. 108/2016 – Police Databases surname would be assigned to the child. the mother’s surname or a father. the Court came to form way. vision gave the father a veto right when de- Article 216bis. agreed on the choice of the child’s surname the paternity of her mother’s husband before or if they do not make a choice. Article 318 of the Civil Code is incompatible patible with Articles 10 and 11 of the Con. ther’s surname. sion d’état). once more. the Constitutional Court ment on appeal. the judge only holds databases. as introduced by the Act of 14 April relevant ECtHR case law. 83/2016 – Criminal Procedure privacy guaranteed by Article 22 of the Con. their interaction with the judiciary and other choice. and in cases of disagreement or the absence of and held that the contested provision is con. Therefore. The Court. The new provision of his mother’s husband more than one year ditions of the settlement was insufficient and enabled parents to choose between the fa. the disputed pro- Judicial Review and Articles 7 and 8 EU Charter of Funda. The lift of this dou- the date of publication of the judgment in the couple. as it is important to establish a child’s stitutional. and provided that the vic. Therefore. their management. surname at birth in a simple. considered as a whole. members representing the Privacy Commis. precedence to the father’s surname in these sufficient measures have been taken to avoid FDVHV²WUDGLWLRQDQGDGHVLUHWRPDNHJUDG- Justice and Order any non-justified interference in the right to XDOSURJUHVV²GRQRWMXVWLI\WKHGLIIHUHQWLDO Judgment No. prehensive legal framework for the various 2016 Global Review of Constitutional Law | 25 . the former King The Act of 18 March 2014 provides a com. the Court opined that the Act does not case law of the ECtHR. the provision is incom. The legislator has to know one’s descent must in principle take is under instruction of an investigating judge been ordered to amend this provision before precedence over the interests of family peace without an effective judicial review of the the end of 2017. after a detailed analysis of the ciding on the child’s surname. Such a composition of the body supervising the ob. of Belgium. ble bar permitted Delphine Boël to challenge official journal. Challenge Paternity – Right to Know One’s case was already pending before the crimi. 2/2016 – Freedom of Choice ticle 22 of the Constitution. Nonetheless. the Court found a violation of the principle of 2011 and modified by the Acts of 11 July Court imposed a restrictive interpretation of equality (Article 10 of the Constitution) and 2011 and 5 February 2016. In contrast in Belgium. 18/2016 – Filiation – Right to settlement also became possible when the servance of the law by the various police de. that in legal proceed- Constitutional Court judged that insofar as offer sufficient guarantees for effective and ings to determine filiation. as long as there was no final judg. The Constitutional data. Judgment No. tion with Article 8 ECHR) insofar as it bars of the judiciary. The Court decided to uphold the legal double-barrelled surname made up of these courts from taking the interests of all parties effects of the unconstitutional provision until two surnames in the order determined by the concerned into account. It noted the legislature’s whether the unlawfulness could be rectified contain in view of administrative or judicial choice to give preference to the parents’ and no longer needs to rule on the content policing. The limits and to bring a paternity suit against her – Privacy – Supervision latter provision was challenged before the supposed biological father. their access and supervision. proposed settlement. passed on to children. the data that they may or must fundamental right. with reference to the tims have been compensated properly. As the settlements the Civil Code to establish the autonomy of situation known as “de facto status” (posses- concerned cases pending before the criminal choice and equality between men and wom. the measures taken to protect privacy fied for Parliament to determine the surname Court rejected all arguments of the applicant and abuse. and legal certainty of family ties. ruled that law enforcement bodies. confirmed. a Article 14 (1) ICCPR. the federal legislature amended been treated as the child of his legal father. guaranteed by Article 151 tween Men and Women a challenge to paternity when the child has of the Constitution. It also stated that if the parents dis. considerably en. As the number of police members Descent nal court or was already judged in the first can exceed the number of independent exter. inter alia. namely concerning the to settle criminal cases out of court. Article 8 ECHR. after he discovered that the man is not his thus violated the same provisions and princi. treatment between the parents solely on the Code – Out of Court Settlement – Insufficient stitution. read in conjunc- fair trial and the principle of independence Regarding a Child’s Surname – Equality be. the father’s the Court of First Instance in excess of both Judgment No. In a lengthy judg. several provisions. swift and uni- there is no longer a violation of the indepen. § 2 of the Criminal Procedure mental Rights. and insofar as it forbids a child (trial) judge in the first instance or appeal. Only one provision was annulled the disputed provision. ment counting 141 pages. the Code. In a controversial case involving the former instance. Ethical Issues and Hot Topics with the right to respect for private life (Ar- stitution in conjunction with the right to a Judgment No. Constitutional Court. However. larged the possibility for public prosecutors partially annulled. The sion. the reasons for giving dence and impartiality of the judge. the conclusion that. Indeed.adopting a new rectified administrative act of databases of the federal and local police The Court first held that the right to pass which the content can be altered. Article 6 (1) ECHR and In 2014.

the necessity of the Act in a democratic society does not depend on its effectiveness. More- over. Belgium became the only country in liminary rulings had an average success rate the world to introduce a criminal provision of 32%. the requirement that the criminalized acts and gestures must have resulted in a se- rious infringement of the dignity of the per- son leaves the courts sufficient indications as to the scope of the contested provision. J. Cannoot and V. Until 2015.com/2016/10/developments-in-belgian-constitutional-law-the-year-2015-in-review 26 | I•CONnect-Clough Center . Theunis. given the fact that the Act re- quires a special intent and a serious infringe- ment of the dignity of specific persons.” CONCLUSION The success rate of appeals before the Con- stitutional Court was quite high in 2016. The cases discussed legality in criminal matters. Int’l J. the Act serves a legitimate aim.8 In crimination – Sexism – Clear Definition – 2016. resulted in a total or partial annulment. Lavrysen. Meerschaert. P. it cannot be considered disproportionate. 72/20167 – Combat of Dis. picture of the Court’s case law.be/public/e/2016/2016-072e.Judgment No.const-court. J. From the Court’s foundation in 1985 until 2015. which is considerably more than the 10% tutional Court for violating the principle of average from the past. provision was challenged before the Consti. L. prohibiting sexism in the public space. October 12. Goossens. the Court annulled the challenged pro- Freedom of Expression visions in 56% of the cases. Indeed. Const. Developments in Belgian Constitutional Law: The Year 2015 in Review. as it allegedly in section IV of course only show a partial did not define the offense of “sexism” in suf. therefore. pre- In 2014. The Court. The Court held that even if the definition of sexism is not sufficiently precise in scope or in con- tent. 2016.iconnectblog. Blog. http://www. Indeed. as equality between men and women is one of the fundamental values of a democratic so- ciety. actions for annulment were success- ful in 28% of the cases in the sense that they 7 See English version http://www. Lastly. the rate was 36% in 2016. The the Court ordered three suspensions (50%). the Act may also have an educational and preventive effect. It alleged- ly also violated the freedom of expression (Article 19 of the Constitution). Last year. measured in terms of its application by the courts and sentences passed. ficiently clear and accurate terms. The Court further acknowledged that the contested Act interfered with a person’s right to freedom of expression. it is inherent to the criminal court’s mission to determine whether particular be- havior falls within the scope of criminal law on a case by case basis.pdf 8 See L. upheld the “Sexism Act. However.

zil. tial line of succession. Tenured Professor of Constitutional Law at the Rio de Janeiro State University. appointed by the Pres- figures from diverse political parties are cur. and to the “Occupy Schools” movement led whereby the Court examines if the appealed by students nationwide. In the economic field. ris. The Brazilian Supreme Federal Court (STF). in Bra- Developments in Brazilian Constitution. and social controversies. turmoil. coupled with the constitutional issues raised in the various fear of impending setbacks to the protection courts can ultimately be brought before the of social rights. Brazil DEVELOPMENTS IN BRAZILIAN CONSTITUTIONAL LAW Luís Roberto Barroso. mostly within justices have life tenure and are subject to ³&DU:DVK2SHUDWLRQ´ mandatory retirement at age 75. and the hemorrhaging of Constitution adopts a hybrid or mixed system public finances. it was nonetheless thrust into the heart of the In politics. and social this inclination has become even more clear. decision violates the Constitution. If. guarding the Constitution. the wide. and by the repercussions of investi. the position as arbiter of national disputes. ident of the Republic and confirmed by the rently under investigation for graft. the Court was called gations into widespread corruption implicat. ing high-profile political actors and leading economic. and Aline Osorio. there was already a tendency toward the BRAZIL al Law in the year 2016 were shaped by judicialization of politics. money absolute majority of the Federal Senate. The fiscal crisis has had a of judicial review. Juliano Zaiden Benvindo. Clerk of the Brazilian Supreme Federal Court and Professor of Constitutional Law at the University Center of Brasília. the speaker of the Lower House was THE CONSTITUTION AND removed from office and later arrested on THE COURT corruption charges. the apex court of the country’s judiciary. The laundering. In the social realm. has the authority to adjudicate on claims spread popular discontent with and cynicism of constitutional violation in a case. in times of crisis deepening economic. which combines aspects major impact on the member states’ econo. impeachment trial against President Rous- seff. upon to intervene in several core political. and the speaker of the Senate has been indicted on charges of em. with a shrinking GDP. Brazil has been facing The STF has primary responsibility for safe- a severe recession. The toward the political class. Throughout the year. Brazil’s 1988 ing unemployment. and other crimes. of both the American and European models. Taking companies. INTRODUCTION It would be naive to assume that the storm would not hit the Supreme Court. political. we went through a traumatic crisis. we derived a concrete and to meet their payrolls and maintain essential diffuse form of review: every judge or court public services. Brazilian Supreme Federal Court Justice. bezzlement and removed from the presiden. many of which have been struggling From America. Extraordi- 2016 Global Review of Constitutional Law | 27 . Hundreds of political comprises 11 justices. mies. Tenured Professor of Constitutional Law at the University of Brasília. gave rise to people’s protests STF through “extraordinary appeals” (RE).

and to decide extra. DEVELOPMENTS AND by some unilateral decisions with substantial Nonetheless. arguing that its role was merely to stitutionality of a statute is discussed in the Court’s justices are commonly identified as mediate the conflict and guarantee procedural abstract (i. which raised doubts as to CONTROVERSIES IN 2016 small fraction of the Court’s decisions (in whether they were politically motivated. Yet. FDVH:KDWLQSULQFLSOHVHHPHGDQDWWLWXGHRI the Head of the Federal Prosecutor’s Office. it did not wade into the discussion of have influenced the impeachment trial. these or panel sessions. such as the direct action of un. without any previous in-cam. one of the justices. House. to taken thus far in the Lower House. First. in Congress based on a claimed breach of cases heard by the STF (in 2016. the Bar Association.nary appeals account for the vast majority of on live TV. then Speaker of the Lower impeachment according to the Constitution. some have agreed with the STF’s before the Supreme Court. we adopted abstract and con. self-restraint. vidualistic manner and with low levels of the merits to be decided by Congress. differently. it established some central procedural petent to try the President of the Republic. the declaratory action tified by the number of unilateral/monocrat. were issued by a single justice. arrest warrant against him (MS 34070). In December al matters. This rules Congress needed to follow (ADPF 378). own opinions during the Court’s sessions. things would have unfolded solely on political grounds. thereby annulling the deliberations on charges of common criminal offenses. For example. fairness. in public plenary sessions that are broadcast this was a politically biased strategy. reached by an aggregative procedure in the STF overstepped the boundaries of its which the justices sequentially read their constitutional role and thereby entered a From Europe. either in plenary to its position of safeguarding the procedural (ADPF). This is most notably exemplified by review other appeals and direct proceed. the Head of the Federal Prosecutor’s of fiscal irresponsibility could be interpreted domly assigned to justices by lot through an Office filed a lawsuit on graft charges against as a crime of malversation. settle federal conflicts. after the constitutional duty to protect the presidential The decision-making process is external and Lower House had already authorized the regime and contributing to a sophisticated aggregative. only 12% of all cases continuously challenged. rejected. direct actions represent a very political impact. the STF only decided to an elected president. the Vice-President. did the STF begin to formulate a statement that represents the majority opinion. all dispute that was inherently political and centrated control. conversely. For example. and did not wade into the merits of the actions may be initiated by the President. the impeachment trial in Congress. despite being of constitutionality (ADC). would be contradicted any political party. though. For whether President Rousseff’s alleged crime The cases brought before the STF are ran. Regard. convenes in plenary sessions (with full atten. Since Three main reactions have emerged dance) twice a week.5% of the rulings). while 88% of the decisions rules. in which the con. some mostly to the procedural rules.1 This is why the behavior. in December 2015 (AC 4070). with ample legal standing (e. Decisions are the constitutional rules of impeachment. a condition for automated system. The “11 islands” are also iden- constitutionality (ADI). allowing for the possibili. The Tribunal ordinarily Eduardo Cunha. Due to its deep political precedent based on the impeachment case of Supreme Court’s Chief Justice presides over impact. thus deviating from its oust him from office in May 2016. the timing of decision-making former President Collor judged in 1992 (MS the trial session at the Senate. ty of bringing direct constitutional lawsuits the seriatim model. Thus. the Tribunal’s own justices. “11 islands”. the players in Congress. and in panel sessions Mr. regardless of a pending case). barred former strong political impact gained momentum in The STF also enjoys broad jurisdiction to President Lula from becoming President 2016. Another controversy arose from the “Car dition requests from foreign States. of the total number of decisions). In 2016. instance.). Cunha was a decisive player in launching therefrom. The increased role of the STF in matters of in a unilateral decision. have argued that if the STF had decided the that the STF washed its hands of the The plenary sessions are presided over by case immediately after charges were filed situation and let the political arena decide. the Court is com. less than 0. lower court judge’s issuance of a preventive 2015. etc. That decision was confirmed by the Court Congress. The justices deliberate and vote LPSHDFKPHQW SURFHGXUH :KLOH IRU VRPH form of coup d’état. of the opinions are later published. view in Brazil. For others.e. in the most prominent cases. generally. some argued excepting the Chief Justice) once a week. cooperation. in March. During the impeachment trial. about 82% era conference among them.g. the Chief Justice. 2016. the STF rightfully left There are multiple instruments of abstract re. no “opinion of the court”. adopting protected by the interna corporis doctrine. Rousseff’s Chief of Staff on grounds that the the Court’s role during the impeachment of ings not necessarily involving constitution. 28 | I•CONnect-Clough Center . for by annulling the deliberations taken so far 1 Only more recently. raised several debates on how it could 21564). and but it was considerably influential on the in March 2016 when the last appeal was the Head of the Federal Prosecutor’s Office course of the impeachment trial. by limiting its consideration (there are two panels of five justices each. members of the National decision was never scrutinized by the Court. in their view. there is Finally. :DVK 2SHUDWLRQ´ LQYROYLQJ VHYHUDO NH\ :KLOH WKH 67) VRPHKRZ FRQILUPHG ing the President’s impeachment process. who operate in a rather indi. who has the power to set against him. and the claim of ic decisions. appointment simply sought to circumvent the then President Dilma Rousseff. the destiny of the Court’s agenda. the STF held fast non-compliance with a fundamental precept were decided collectively.

that defendants in criminal proceedings be- opinion. line of succession to exercise presidential proceeding. measure granted 03/18/2016) Non-Compliance with a Fundamental Pre- was enacted in 1950. some relevant issues remained The rapporteur. vascki also considered that the congressman MAJOR CASES peachment proceedings. The trial impeachment. it was at extraordinary hearing held just two days tion issued hours before by Mr. Senate has the final say on the impeachment issued a preliminary order to remove Senate proceedings. the justice presiding over the “Car involved in such sensitive political matters thorize Rousseff’s impeachment trial before :DVK2SHUDWLRQ´ZKRZDVUHFHQWO\NLOOHGLQ as the fate of the heads of the Executive. of the Lower House. The plenary session to decide the merits of rant against him. also through a unilateral decision. ate are the first and second authorities in the There were many doubts about this sation. Later. six justices voiced the case took place in December of 2015.2 After all. although In March. In the Claim of the procedural rules for the impeachment trial. However. 2 Ran Hirschl. jurisdiction over interna corporis acts and decided 12/07/2016) Compliance with a Fundamental Precept.others. Justice Gilmar Mendes. interim the vice-presidential offices. vascki. that it was the sole responsibility of Con. stating Following Justice Luís Roberto Barroso’s Justice Mendes based his decision on a wire. but it could not help but reveal special impeachment committee that was Prosecutor’s Office to suspend the speaker how the STF had transformed itself in 2016. the majority of the Court reaffirmed tapped private conversation between Presi. Moreover. Eduardo Cunha. in the line of presidential succession. the STF rejected the final appeal the impeachment. the Congress. the 11 Justices gathered to decide a tragic plane crash. As a result. rectly by the STF per the 1988 Constitution.070. an interim ruling issued by a single cept 402. er for obstructing a criminal investigation of what Hirschl calls “the judicialization creasing self-restraint. the Court acted with in. fore the Court should step down from their the precedent set during President Collor’s dent Rousseff and Lula. claims filed by the government and other remove Cunha from speakership. Brazil’s 1988 Constitution provides that the which discussed how the impeachment gress to decide whether President Rousseff speakers of the Lower House and the Sen- proceedings should take place in Congress. Justice Za- parties that attempted to suspend the im. the STF voted unanimously to ap- decision was overturned by the Court the invalidated the previous election of the prove a request by the Head of the Federal next week. it became a prominent example From this trial on. be based on openly-cast votes. Challenged by all sides of the political from his duties as deputy and house speak- spectrum. the Senate. injunction order on a case originating from a Claim of Non. The justices upheld an injunc- of mega-politics”. established by secret ballot. the STF rejected all Defendants in criminal proceedings shall 03/16/2016) claims and studiously avoided the merits of not occupy posts in the presidential line of In March. their opinions in favor of the claim. indicted by the STF. As the trial got underway. in an against him. emphasizing that it lacked succession (ADPF 402. Jus- In December. solely at preventing lower court judge Sérgio ed from his duties if a criminal complaint Moro from issuing a preventive arrest war. when he. 2016 Global Review of Constitutional Law | 29 . as ministers are tried di. was indicted by the Court on graft charges in tioned the congressional voting procedures March and. could not hold office Separation of powers and the scope and validity of the impeach. leaked to the press positions in the line of succession. because the 1988 Constitution authority in the event of a dual (temporary or regulates it only very briefly and Law 1079. Mr. con. To justify the decision to Lower House. and (iii) the examined by the Plenary. “The Judicialization of Mega-Politics and the Rise of Political Courts” (2008) 11 ARPS 93. decided more than seven hours. while the Lower House has Lower House speaker suspended from office President Renan Calheiros from office based only the power to authorize the impeachment (AC 4070. Proceedings in the impeachment trial of ment bid. and Senate in one single year. given that the Constitution unanswered and the political and legal context sidered that Lula’s appointment was aimed provides that the President shall be suspend- had changed a great deal since then. had committed the alleged crime of malver. which lasted President Rousseff (ADPF 378-ED. This trial by the Senate. The decision focused on by the lower court judge. During the session. Annulment of the appointment of minister permanent) vacancy of the presidential and which defines the crimes of malversation and by President Rousseff (MS 34. another justice would further be proportionally composed in accordance tice Mendes’s unilateral decision was never test the boundaries of law and politics with the party leadership. from the post. ousting the House Speaker signified the following rules: (i) every deliberation provided proof of the misuse of the cabinet a serious encroachment on the powers of in impeachment proceedings should appointment to avoid prosecution. if the authori- there was already a Supreme Court precedent Justice suspended former President Lula’s ties in the presidential line of succession are regarding President Collor’s impeachment appointment as Rousseff’s Chief of Staff. they must be removed in 1992. therefore. which allegedly was suspended at a request for further exam- ination of the case. it was argued that. the STF In May. On April 15. (ii) the STF ruled that both the wiretap and its re- special impeachment committee should lease to the press were illegal. Teori Za- best unexpected to have a Supreme Court before the Lower House was to vote to au. decided 05/05/2016) on embezzlement charges (ADPF 402). The motions ques. against him or her is received by the STF.

the Plenary of the Court twice re. however.Based on that majority opinion. lower courts began granting orders for the university administra- 3 See STF. ARE 964246-RG. First. on the Court’s agenda in 2016. overturned the injunction. which certainly granted animals “a peculiar digni- ing overturned the Court’s precedent. which offer intangible cultural heritage. as it not only for women who wish to carry the pregnan. a criminal Moreover. as it produc. and support by the Brazilian Health Surveillance Agency of the criminal justice system. This rul. and right to gen. cy as well as a lack of regulatory approval ruling is necessary to ensure the credibility distribution of contraceptives. the ruling a unilateral decision. autonomy. in which cession. dicted by the Court on charges of misusing affirmed the habeas decision. and (iii) the measure is dispro.292. the STF. he could remain Senate President. issued a preliminary tion of innocence and raised concerns about does indicate that at least some of the Court order to remove Senate President Renan the already overcrowded prisons.306. Based on sever- first appellate ruling (HC 126. avoid the occurrence of abortions by more a miracle cancer cure. antee women’s reproductive rights. although Senator Calheiros should be the crime of abortion in cases of abortion struck down as unconstitutional a law aimed removed from the presidential line of suc. as per Jus. amendment overruling the decision. Although the prison sentence affirmed on appeal can serve the original pre-trial detention did not meet STF has not explicitly recognized that ani- time before all appeals have been exhaust. in would disrupt the guarantee of the presump. since such courts are not allowed constitutes an unsuitable measure by which Health rights litigation was a recurring issue to revisit matters of fact and evidence. who are forced to resort recognized “vaquejada” as part of Brazil’s number of appeals. Justice Barroso stated that the conviction may be enforced provisionally treatment of abortion as a crime also violates Health rights litigation (ADI 5501-MC. However. and shut down the lab. decided clinic who had been arrested for the prac. ADC 43-MC. stated that the enforcement of effective and less harmful measures than of clinical tests proving its safety and effica- criminal sentences after the first appellate criminalization. it has ed and a final decision is issued. such as sexual education. and is making high risks of injury. on the number of abortions practiced in the that authorized the production and distribu- bers of the Court also adopted pragmatic country. The The previous understanding was considered reproductive rights. In May. during the first trimester of pregnancy (HC at acknowledging “vaquejada”. Second. “vaquejada” inflicts needless suffering on In a decision on a writ of habeas corpus. Justice Marco Aurélio. decided 11/29/2016) cowboys on horseback chase a bull across The First Panel of the Court ordered the an arena and attempt to pull it to the ground Rights and freedoms release from pretrial detention of a doctor by twisting and pulling its tail as a rodeo Enforcement of criminal sentences after and employees of a clandestine abortion sport and cultural practice. as well as disproportionately begun. setting a binding legal precedent. The order of habeas animals in violation of the Constitution’s STF held that defendants who have their corpus was granted on two grounds. portional in the narrow sense. despite both a dearth for instance. that this shift Despite not decriminalizing abortion nor teur of the case. prohibition of animal cruelty. decided 10/06/2016) vote. by a close vote of 6-5. Paulo and illegally distributed to patients. tice Luís Roberto Barroso’s opinion. set in was joined by the majority of the members ty” and “the moral right not to be subjected 2009. every effort to approve a constitutional According to Justice Teori Zavascki’s opin. as crimi. lar criminals were seldom arrested) and the es social costs (public health problems and :KHQ WKH XQLYHUVLW\ FXW RII LWV GLVWULEXWLRQ sense of impunity in society. 124. by a 6-3 rights (ADI 4983. to precarious clandestine clinics. physical and ruling sparked angry reactions among prac- by most justices to be an impunity loophole. mutilation. al technical reports. (ANVISA). the Senate resisted binding upon every court. the legal requirements. joined by six other justices.3 Rodeo sport of “vaquejada” and animal the ruling. The dissenting justices argued principle of the presumption of innocence voluntary termination of pregnancy carried that “vaquejada” is a constitutionally protec- prevented anyone from being arrested until out during the first trimester violates several ted cultural practice that does not necessa- an unappealable criminal sentence is issued. deciding Unconstitutionality of the incidence of The Court’s Plenary. titioners and supporters. 30 | I•CONnect-Clough Center . thereafter. psychological integrity. and a backlash has as the Brazilian criminal system is fraught der equality). just after he was in. The “cancer pill” was first de- helps put an end to lawyers’ dilatory tactics cy to term. mals are entitled to fundamental rights. which stated that the constitutional of the First Panel. and death. opinions argued. veloped by a chemist at the University of São but also reduces selectivity (since white-col. as Congress already passed a law that with statutes of limitations and an excessive harms poor women. Two days later. the criminalization of the to cruelty”. fundamental rights of women (such as their rily impose cruel treatment on the bull. even if an appeal to superior courts is still the principle of proportionality since: (i) it decided 05/19/2016) pending. the acy to commit crimes. ion. (ii) it is possible for the State to tion of a compound that is hailed by some as arguments. Other mem. the majority opined that 02/17/2016) tice of the crimes of abortion and conspir. that. The dissenting deaths) that clearly outweigh its benefits. which is now public funds. Shortly justices are ready take a further step to guar- Calheiros from his post. the such extraordinary appeals do not suspend nalization does not have a relevant impact STF examined the constitutionality of a law the enforcement of sentences. and to protect the life of the unborn. the rappor. Justice Luís Roberto Barroso.

tion to provide the pill to hundreds of per. By a 6-4 vote. Although the Tribunal agreed with to pay for them. however. citizen accused of kidnapping and murdering ered that the State has a duty to supply high. Marco Aurélio. sector strikes be extended to public servants. the Congress has failed to pass highlighted some of the STF’s longstanding such a law. CONCLUSION Public servants’ pay cuts during strikes (RE In 2016. leftist political activists during the military cost medicines for patients who are unable regime. as the country has not Fachin. the STF was thrust into the political 693456-RG. gentina’s request to extradite an Argentinian The rapporteur. Naturally. but. against humanity. Supreme Court. international. by a narrow 6-5 vote. They opined that the judi. decided 11/09/2016) that are not listed on the public health sys. one that is pos- matter to be enacted into law by the Legisla. and The 1988 Constitution provides for the right one conclusion is inevitable: the Court has of public servants to strike. the STF’s majority that the public administration should reduce constitutional law field should pay more at- granted an injunction to suspend the effec. The four dissenting justices understood that the pay cuts cannot In September. the Court’s skyrocketing influence has led to by analogy. the majority opinion held tered drugs. responding during 2016. stantial political impact. regardless of their cost. of health rights on frustrating inequities in health service delivery and disrupting pub. rejected Ar- tem and to drugs not approved by ANVISA. the law had still not been passed. moral disagreement. flaws. Justices Barroso and under Brazilian law. however. More- a law for public servants. signed the Convention on the Non-Applica- cial distribution of drugs not covered by the ELOLW\RI6WDWXWRU\/LPLWDWLRQVWR:DU&ULPHV official list exacerbates inequities within the and Crimes Against Humanity. the Court discussed the consti. but the applicant State that those acts were crimes voted against providing access to unregis. The STF. Up to the present over. healthcare system. tention to the developments of the Brazilian tiveness of the law. and thus proposed criteria to make this case the exception. dissented. The Court accepted. Next. and/or multilateral lic policies. Less than strikes. the Plenary decided learned from 2016. decided 10/27/2016) turmoil that has engulfed the country. STF to engineer an optimal design for deci- to popular pressure. the STF has begun to review be unilaterally determined by the public ad- two extraordinary appeals (REs 566471 and ministration. they must depend on a 657718) which generate a broader debate on previous court ruling declaring the illegality the impacts of strong individual litigation of the strike. an agreement lates the constitutional duty to safeguard the to compensate the days off during the strike people’s health and the separation of powers. such as its justices’ unbalanced pow- ers and inability to deliver an “opinion of 2016 Global Review of Constitutional Law | 31 . The Court held that the tivated by the illegal conduct of the State. rather. the Court’s increasing purview has also day. it is that the comparative a month later. however. Much work still remains for the sons with terminal cancer. sibly unparalleled by any other democratic ture. have increas- and ordered that the law dealing with private ingly been subject to its scrutiny. by working extra hours. the Court itself addressed the matter and social rights. In view of the multiplications of strikes the Court”. Almost 30 years after the Constitution period in Brazil’s history. Congress passed a bill tutionality of pay cuts during public servant sion-making. but it left the found itself in a starring role. In 2007. Matters of sub- took effect. legalization of the untested compound vio. Foreign. Mr. In these cases. for instance. consid. the strikers’ salaries unless the strike is mo. until Congress decides to pass more clashes with the political realm. if there is one lesson to be to legalize use of the untested pill. the Court will relations decide whether the courts can compel the Statute of limitation for crimes against hu- State to provide access to high-cost drugs manity (Ext 1362. The other two justices who had that they are subject to statutes of limitation already cast their votes.

Dr. the President.e.upon the SAC. 4 The only instance where the Court exercises a priori judicial review is when ruling on the constitution- HSP[`VMPU[LYUH[PVUHS[YLH[PLZJVUJS\KLKI`[OLL_LJ\[P]LWYPVY[V[OLPYYH[PÄJH[PVU(Y[  32 | I•CONnect-Clough Center .3 UHVSHFWLYHO\²GLGQRWLQFOXGHDFRQVWL- tutional tribunal or any form of extra-parlia. the challenge would fail due to the lack of a seventh vote.non-legislative normative acts is entrusted sation (SCC) and the Supreme Administra. BULGARIA was established under the Constitution of to which Bulgaria is party. of the votes of all judges. such as. seven or more. The new in. Associate Professor at the Political Science Department of WKH8QLYHUVLW\RI6R¿DDQG3URJUDPPH'LUHFWRUDWWKH&HQWUHIRU/LEHUDO6WUDWHJLHVLQ 6R¿D INTRODUCTION adjudicate upon disputes between the main state institutions.with ex nunc binding force.concrete application. for a non-renewable period of the President. the Council 1 A Constitutional Court Act was passed on 16 August 1991 and the Court was constituted on 3 Octo- ber 1991.the constitutional rights and liberties of citi- eration from the Ottoman Empire and the zens against encroachments on the part of the two communist constitutions from 1947 and Legislator and the President. 3 Most of the fundamental rights of citizens are listed in Chapter 2 of the Constitution.The Court exercises a posteriori concentrat- mentary constitutional control. Seizing Subjects i. The constitutional review of such of the judges of the Supreme Court of Cas. and administra- Assembly. In such cases. which was adopted after the constitutional control (judicial review) of fall of the communist regime. All types of rulings of the Court require a majority of more than half. All decisions of trian. despite the fact that a simple majority of the judges supported the challenge. Aus. for example. and at a meeting tive acts. 2 This provision has stirred controversies in cases where judges were split in 6:6 or even in 6:5 votes in favour of a constitutionality challenge. The drafters ed review.decisions of the Court invalidate such acts stitution was modeled after its German.4 Unconstitutionality sively by a specialised tribunal.2 The abstract referral procedure can be trig- The Court has the competence to provide gered by one-fifth of all deputies of the Na- binding interpretations of the Constitution to tional Assembly. The lat- WKUHHIXQGDPHQWDOODZVRIWKHFRXQWU\²LH ter function encompasses the protection of the 1879 Constitution adopted after the lib. Italian and Spanish counterparts. DPhil Candidate in Socio-Legal Studies at the Law Faculty of the University of Oxford. Bulgaria DEVELOPMENTS IN BULGARIAN CONSTITUTIONAL LAW Ivo Gruev. The Court does not Characteristics of the Court have the competence to review acts by the The Court consists of 12 judges who are other branches of the executive apart from appointed. tive Court (SAC). the Court are final and binding on all pub- lic bodies and persons. the President. which is abstract in nature since it of the 1991 constitution almost unanimously concerns the constitutionality of the legisla- decided to introduce a Kelsenian model of tive or presidential act in general and not its centralised judicial review. to rule on the congruence Background and Creation of the Court between domestic law (including the Con- The Bulgarian Constitutional Court (BCC) stitution) and international law and treaties.1 The previous legislation and acts of the President. and to exercise 13 July 1991. minis- nine years. exercised exclu. Daniel Smilov. in equal parts by the National terial orders and regulations.

Although mainly preoccupied with politi. but explicitly prohibits in 2004. tive branch (at present it is part of the judi- of the Court has visibly decreased and now which used to subject the exercise of judicial ciary) by arguing that this would require a stands at around 10 decisions per year. and the Executive. of the responsibilities of the President. nary” Parliament. the Court hindered a number of of the 2000s. which. such as tional Ombudsman. or the Pros. Critics argue that the BCC balances over the majority and the govern. ical process and to the separation of powers.of Ministers. ferent constitutional interests present in Bul. The 1990s were and nationalised by the totalitarian govern. power to the unadulterated and arbitrary will very cumbersome constitutional amendment of the communist party. mentary setting. judicial system. 6 Decision 14/92.6 Council can also challenge the constitution. case number 1/1991. many see the lack of accountability of the mentalised by the parliamentary minority as cal disputes. The Court plaint mechanism or actio popularis and the the previously persecuted Bulgarian ethnic also upheld the limitations of what can be BCC cannot act ex officio. order to amend some essential parts of the an political discourse in the first decade of ed to the restitution of property expropriated Constitution (as the form of government. however. which was established garia’s multiethnic society and thus sent a disabled persons. in The BCC played a key role in the Bulgari. has been widely criticised for its discrimi- the corresponding Supreme Court. Most of them has contributed to this situation. howev- man rights and freedoms. down by the Court on equality grounds. the SCC. Since the beginning the National Assembly. the tarism. very few cases before the There is no individual constitutional com. founded by rehabilitated ambiguous to the issue of opening the files vision of the constitution very broadly and GLVVLGHQWV SXUVXHG D SUR:HVWHUQ DQG DQ. ment. and contributed to the demarcation the binary character of Bulgarian parliamen- 490 times and delivered 363 judgments. These played form: the Court has blocked efforts to make ercised its newly introduced referral right. were struck call new elections for GNA with the purpose the Democratic Forces (UDF). treatment of certain social groups. procedure through a Grand National Assem- Brief Overview of the Court’s History bly (GNA). natory practices against certain minorities in turn. the Office of the Na. sible explanation might lie in the dilution of Until the end of 2016. included in its meaning the positioning of ti-Soviet agenda. Lower courts cannot invoke in assuming the minoritarian position in the restitution. it is necessary to gather qualified marked by the antagonism between the two ment. the most important decisions of Ombudsman filed 26 applications and the governmental attempts to tamper with the the BCC have been in the area of judicial re- Supreme Attorneys Council has not yet ex. the Supreme Attorneys This decision of the Court was followed by a the ground of race and gender. At present. the BCC was seized public. and then dissolve it and garian Socialist Party (BSP) and the Union of ical and public life. BSP attempt. case number 14/92. The ed to retain control over the state apparatus Court’s jurisprudence of the court has been BCC read the “form of government” pro- whilst the UDF. however. It must be noted. In light of the Turkish minority. “positive” or “reversed” discrimination on subjects. 2016 Global Review of Constitutional Law | 33 . the BCC was often instru. may request the BCC to rule on the In its first decision. was included in the list of seizing clear sign of departure from totalitarianism. This helped establish the democratic. Although the Bulgarian government ble norm in concrete cases. for the democratic transition. 5 Decision 4/1992. er. established soon after the end delinquent youth). Since 2015. and for challenging legislation. provision. out against the background of the lingering the prosecutorial office a part of the execu- Since the beginning of the 2000s. groups (such as persons with disabilities and litical party. that the unconstitutionality challenge failed only due to the lack of a 7th vote. Against this binary parlia. number of judgments dedicated to the polit- ality of formal statutes which infringe on hu. A pos- mentary character of the new Bulgarian Re. parlia. centrist political actors. The BCC also upheld a number of laws relat. Many lustration laws which attempt. 6:5 judges voted for the unconstitutionality of the party. the output legal tradition of the authoritarian regime. stitutional rights and liberties. the Bul. The of adopting the suggested amendment. largely untainted by political affiliation and scarce. The Office of the Moreover. the Court managed to remain on other human rights issues has been rather ed with the unconstitutionality of an applica. Parliament. which allows for the privileged adjudication in 2006. the SAC. instance). The jurisprudence of the Court WKHMXULVGLFWLRQRIWKH&RXUW:KHQFRQIURQW. they may notify to defend its independence. Due to concerned freedom of speech and the media. of the communist State Security Agency. ed to ostracise ex-communists from polit. incurred by the emergence of new Most referrals were filed by deputies of Parliament. constitutionality of a highly contested po. of communism to represent the interests of BCC have dealt with such issues. seems to have waned in the 2000s. The Court’s popularity and activism. the fact that UDF and BSP were alternating as well as property rights in the context of ecutor General. the Court delivered a number Prosecutor General as a main problem of the a tool for exerting constitutional checks and of important judgments in the area of con. majorities of at least two-thirds in an “ordi- main political forces in the country. the Court upheld the (such as Roma) and socially vulnerable constitutionality of the norm.5 The judgment played a considered the Bulgarian affirmative action restricted individual access to constitutional crucial role in the reconciliation of the dif. independence of the judiciary. the prosecutorial office as well. According to this procedure.

argumentation. the Court proclaimed that it would cisions. the Court changed its jurisprudence to replace it. ment. the Court was seized 17 times.7 There was ambiguity.2) stipulating VERSIES IN 2016 that the Constitution shall apply directly. would substantially affect the powers of the (admissibility definitions in cases 1/1991 stitutionality decision of the Court. In its jurisprudence (Decision however. how. however. it is important ones are considered below. On the one hand. 7 Decision 12/1992. A situation in which only ered a change of the “form of government”. which were aimed at eradicating the political opposition after the communist coup d’etat. only laws have such competence. The constitutional Since referendums by law cannot be held after the adoption of the new Constitution. An alternative line of sive notion of “form of government”. Parliament and could therefore be consid- and 11/1992). number by Bulgarian standards. such a change. Another constitutional ambiguity is related to dent challenged the decision of Parliament to tion which remained in force after that date. case number 7/1994. However. the BCC declared three of the passed after the entry into force of the 1991 have also expressed the view that all courts six questions for a referendum scheduled by Constitution are subjected to the jurisdiction can and should disapply unconstitutional laws the National Assembly to be unconstitution- of the Court. This raises questions with regard to the three questions deemed to be unconsti- not exercise constitutionality control in such the status and applicability of legislation for tutional was the reduction of the number of cases and that the ordinary judiciary could the period between its entry into force (or the MPs in the National Assembly from 240 to disapply such unconstitutional legislation in entry into force of the 1991 Constitution in 120. often fails to al. provision seems to suggest two possible in. the ex nunc binding force of the Court’s de. however. ing force. This. that only the National Assembly had the an amendment of an already existing norm In Bulgaria. semi-presidential. In this case. The BCC argued that such a reduction concrete cases with inter partes binding force the case of pre-existing laws) and the uncon.OLYLMVYLTHU`JVU]PJ[ZVM[OL7LVWSL»Z*V\Y[^LYLUL]LYNYHU[LKVɉJPHSL_VULYH[PVUMYVT[OLPY trumped-up crimes. has been a matter of academic debate. In recognition of this un. The referendum was a popular initiative had no jurisdiction over pre-existing legisla. presidential. on questions within the competence of the terpretations in such cases. stirred legal un. case number 8/2016 (filed graph 3 of the Transitional and Concluding seems to imply that ordinary courts might by the President) Provisions to the Constitution. The Presi- with regard to its jurisdiction over legisla. years of the Court’s existence concerned the unclear whether ordinary courts can disapply judicial review of legislation adopted before unconstitutional laws with inter partes bind.This practice of the Court constituted a problem with regard to state acts in application of such expired laws. 34 | I•CONnect-Clough Center . JDWKHUHG  VLJQDWXUHV²DQ HQRUPRXV July 1991. This. In the communist regime within the three-year and the BCC invalidated the one intended its jurisprudence on judicial independence. ever. In the unconstitutional. would be that such Bulgarian constitutional doctrine. however. hold the referendum. erga omnes binding force within three years particularly problematic. Several BCC judges In this case. tives among the state powers. this notion more broadly by including con- of its review powers would also encompass osition and held that an unconstitutionality crete features of the current form of govern- pre-existing laws (admissibility definition in finding restores the original norm. The Constitutional Court found that it had no temporal jurisdiction over the law which created [OL7LVWSL»Z*V\Y[ZPUJLP[ZTHUKH[LL_WPYLKPU . would competence to repeal such legislation with is declared unconstitutional can prove to be require a Grand National Assembly (GNA). Art In 2016. the Court found nuls this legislation. proclaiming that the scope 22/1995). GNA.DEVELOPMENTS AND CONTRO. the Court went as far as to include the num- ber of MPs within this definition. stores the validity of the original norm in its In its decision. the BCC has started to interpret on the matter. The most important of Initially. an unconstitutionality ruling would create cept of “form of government” traditionally sembly to address the constitutionality of a a lacuna in the legal order by virtue of the refers to whether the republic is parliamen- number of controversial laws inherited from fact that the legislator repealed the old norm tary. The so called “People’s Court” is notorious for its arbitrary mass trials. An unresolved constitutional controversy MAJOR DECISIONS stems from a provision (Art 5. however. Moreover. which an. The controversy was thus re. such as the exact balance of preroga- case 31/1995). the BCC used a very expan- tence to define whether a persisting law was pre-amendment form. ^OPJOOV^L]LY^LYLUL]LYVɉJPHSS`YLWLHSLKI`[OLUL^KLTVJYH[PJYLNPTL(MHTV\ZJHZLJVUJLYUZ[OL]LYKPJ[ZVM[OLYL]VS\[PVUHY`[YPI\UHSJYLH[LKI` the communist regime after it took power in 1944. The most A constitutional controversy from the first BCC can invalidate legislation. however. the con- certainty and the failure of the National As. the challenged referendum could not This regulation. The Statute on the Normative Acts Decision 9/2016. solved by the BCC. etc. the CC opted for the former prop. happen in practice due to the lack of explicit which was started by a TV talk show and tion which was no longer in force after 13 procedural regulation. It 150 of the Constitution states that only the delivered a total of 10 judgments. period. it could be argued that an unconstitutionality lead to the reduction of the number of MPs. certainty in light of the potential scenario of ruling of the amendment automatically re- regular courts not ascertaining their compe. The Court ascertained that it in concrete cases. Political System and Separation of Powers the creation of the Court. According to para.

For the fendant in the A. directors of police should be directly elect. The closure of the bank ultimately led to the ment had the right to introduce such a reform. law. according to which only the the Constitution required that such decisions cutor’s Office. speaking. Office.ruled a relatively central element of a health. Bulgaria case. The Court explained that ECtHR’s serious medical conditions. others v. all citizens would opposite finding was related to the fact that Decision 6/2016 from 14 June 2016. in its role as de- number 1/2016 by their standard healthcare insurance.Following a similar logic. mechanism. Bulgaria case where the ECtHR ried out and although its turnout failed to pass islature. Mainly because of that. when exercising its detention Prosecutors and the bank syndics (officials needed to be taken only through the passage authority. As to other aspects of the tion. they deferred to the judgment of the leg. while in fact. juvenile insolvent. A referen. of law. which would con. Shareholders and the owners of healthcare reform. The judges agreed that the Parlia. The organisers of the referendum bit. Rights and Freedoms dated a question on whether the regional lated their rights and the principle of the rule Decision 11/2016 from 4 October 2016. and others v. which authorises juvenile detentions. The BCC rejected these claims by stating SAC challenged the procedural lack of an insofar as direct election has the capacity to that the declaration of a bank in insolvency appeal mechanism against juvenile detention affect the balance of powers and therefore is a very specialised procedure in which the orders. ered ordinary administrative acts. case 9/2015. they would either have to enter had argued mistakenly that detentions could FULVLV LQ WKH FRXQWU\ VLQFH ²WKH  a waiting list or pay an additional amount of not be judicially appealed.ture. Although the challenged on the three other questions which were up. 8 See decision 8/2016. however. which are FLVLRQZKLFK²DVDUJXHGE\WKHFKDOOHQJHUV islator. the fourth biggest bank in the country. challenges before the ordinary courts. however. The dy was implied in the constitutional order on voting. This case stemmed from the biggest banking second tier. the BCC declined to pro- had been explored. This constituted a possible violation requires a GNA. number 6/2015 by the Prosecution as individual adminis- In the area of healthcare rights. the BCC invali. A. the Prose- bankruptcy. the regular courts. possibility of electronic voting. the bankruptcy of the Corporate Commercial money in order to gain immediate access to constitutional order implicitly allowed such Bank. Notwithstanding this stitute a violation of the constitutional status Decision 3/2016 from 8 March 2016. strictly it would force the Parliament to disrespect cretion of political and expert bodies. the Court ruled that such reme- acter of the electoral system and mandatory care reform proposed by the government. On the one hand. a judicial body was involved in its own lawful decisions. In support of its application. 9 ECtHR. the BCC has trative acts which are challengeable before The referendum was ultimately carried out been traditionally deferential to the legisla. 2016 Global Review of Constitutional Law | 35 . the Court again showed a detention acts of the Prosecutor are consid- the bank were not entitled to appeal this de. tect the rights of the owners and shareholders the BCC held that another referendum on the in this controversial judgment on the basis of The BCC proclaimed that the Prosecutor’s same issue would undermine the principle of the extraordinary character of the situation. supposed to cover the most common and most tutional. that it was for the This decision raises several concerns with elections.9 tronic voting once the technical possibilities grounds. Also. the directors is a prerogative of the Executive. norm did not explicitly mention an appeal held by the BCC. the judges over. All in all. is considered part of the judiciary appointed by public bodies to be in charge of of parliamentary legislation and not by an ad. resignation of the government and pre-term The BCC found. At the same time. In this case. the detention process. which requires judicial Court held that its power to review decisions control to be exercised over the legality of The third invalidated question related to the of specialised bodies is limited in such cas. The judges held that the appointment of In a concrete referral from 28 April 2016. however. The contested terly attacked the BCC and the President for of public medical services. and Others v. The challengers’ claims of lack of held Bulgaria in violation of the ECHR for the legal threshold for binding referendums. case number 7/2016 ed. and although the judges saw flaws in the the SAC invoked the judgment in the A and dum on this question had already been car. the Court qualified detention orders of the legislature. any detention. belonged to the judiciary so that. The of the Constitution. IURPWKH6XSUHPH&RXUWRI&DVVDWLRQ²YLR. Bulgaria. which implied greater deference to the dis. 51776/08. interests of depositors are paramount. norm was thus declared not to be unconsti- trying to “obstruct the will of the people”.3 of the Constitu- challenge the decision to declare the bank inalienable rights. These dealt with the char. case have instant access to services as guaranteed the Bulgarian Government.reform aimed at introducing two distinct tiers the grounds mentioned above. In this case. healthcare. case finding. no. 29 November 2011. of arms principle were also rejected on these judicially appeal juvenile detention orders.considerable deference to the will of the leg. legal certainty and thus the rule of law. Under the first tier. the BCC was asked Minister of Healthcare to define the services regard to the legal regime of juvenile deten- to assess the constitutionality of the law on under the two tiers.8 individually challengeable under Art 120. es. and thus exempted from additional judicial the insolvent bank) are entitled to judicially ministrative normative act because they affect scrutiny under article 30. legal protection and violation of the equality not providing a legal remedy for detainees to the Parliament deliberated to introduce elec. The Court argued that tion in Bulgaria.

Such license is issued by the dict. however. the challenge Decision 5/2016 from 12 May 2016. Therefore. However. ad. since only sion period. it upheld the norm but nullified the pre- gard to the separation of powers doctrine but claim legal counseling expenses simply due clusion provision. the Office challenged ileged legal persons and state institutions to the constitutionality of the seven-day preclu- the detriment of private citizens. information. the BCC did not in the courts. ity of the criminal liability of the applicants concerned. the restriction of their The BCC. Such license rejection would bar voked concrete constitutional rights.P. notwithstanding the fact that legal counselors that these provisions treated accused persons are not paid on an ad hoc basis but within an as convicted criminals and were thus in vi- employment contract. otherwise the concerned person would be discussed above) the Court advocated for a igant. The Office of the Om. The contested judicial review of juvenile detention and the number 8/2015 norm ordered that civil servants be suspend- constitutional conformity of its legal regula. Later in 2016. Instead. number 2/2016 DSSHDO:KLOVWWKH%&&VHHPVSRVLWLYHDERXW Several months later. The Court agreed with tention acts of the Prosecutor are not admin. 19 January 2017. Bulgaria. Therefore. three years. which work if accused of criminal malpractice. curity. private citizens in such a short time. National Information Security Commission lation of both the constitutionally guaranteed cedures in a case almost identical to A and (NISC). later in party of a judicial trial to compensate the le. it referred to the sweeping clause of a gener- case number 3/2016 fied information and would thus effectively al violation of the rule of law principle. gal representation expenses of the winning lit. tradespersons. document were involved in criminal pro. According to the contested norms. in formation. On 21 June 2016. In January regulated the eligibility criteria for obtaining latter were also excluded from the social se- 2017. Therefore.10 There also seems to be a tained by civil servants as a condition for cence. the year (in decision 10/2016 on case 3/2016.The Office of the Prosecutor thus seems Moreover. license had to be denied by the NISC if the the SAC’s arguments and declared the norm istrative acts and thus cannot be challenged applicants in the procedure of issuing this unconstitutional. both as part of tial treatment of private and legal persons President’s argument that the seven-day pre- the judiciary and as a regular administrative by claiming that the latter would be put at clusion period was disproportionate. state barred from holding a position related to narrow interpretation of the rule of law princi- institutions. norms stipulated that the issuance of such a without a verdict. olation of the constitutional presumption of budsman argued that this arrangement priv. imate aim of the protection of national se- 10 ECtHR. 72936/14. no. would be less likely to claim such expenses and benefit from the challenged provision. disproportionate given that even convicted tion and the Ministry of Justice. the ECtHR once again found Bulgaria a license to access and deal with classified curity system until the delivery of the ver- in violation of the ECHR for the lack of ap. also creates legal uncertainty for individuals to their separate contractual relationship confronting detention orders in light of the with the counselor. engage with the alleged violation of the in- ceedings. Moreover. military or public service. This not only raises concerns with re. I. a disadvantage if they were not allowed to fore. a State agency. The latter. The correctly reject such challenges. case lack of an explicitly regulated procedure for failed. the constitutionality of two norms. the Court justified the differen. case to be challenged by the SAC. Bulgaria. exercising jobs dealing with classified in. The SAC judges held this norm in vio- peal mechanisms in juvenile detention pro. regular courts seem to continue to in. They argued that such treatment was striking divergence between the BCC’s posi. proclaimed that this access to sensitive classified information principle should be interpreted narrowly in was found to be proportionate to the legit- order to prevent its use as a sweeping clause. The President’s Office argued ing clause in constitutionality challenges. since no verdict on the guilt or the former would regularly have employed innocence of the accused could be expected legal counselors. The Court held that the opening of a criminal The Ombudsman thus claimed a violation of investigation manifested sufficient probabil- the rule of law principle. rejection to be appealed within seven days. and must be ob. the Court agreed with the to act in a twofold capacity. There- body. a similar provision was the presence of sufficient guarantees for the Decision 7/2016 from 21 June 2016. right to work and the presumption of inno- others v. such as certain jobs related to the criminals were allowed to deliver paid work clear contradiction to the BCC’s ruling. innocence. the concerned person from accessing classi. v. The challenged while civil servants were denied this right mitted in both ECtHR cases that juvenile de. However. and legal persons classified information for a period of one to ple in order to discourage its use as a sweep- could claim expenses for legal counselors. Decision 10/2016 from 29 September 2016. the President challenged ed from their occupation and prohibited to tion. The law allowed for the In a somewhat contradictory fashion. 36 | I•CONnect-Clough Center . the Office of the Ombudsman prevent her from exercising a job which re- challenged a law which ordered the losing quires such access.

and sit-in strikes which THE CONSTITUTIONAL SYSTEM were initiated by Common Law Lawyers CAMEROON and Teachers’ Trade Unions which has par. British rule that lasted until independence in 1961.1 casual observer of the Cameroonian political scene. Government Press. of Cameroon. the the country. The was confirmed at the Congress of Berlin in present crisis is no surprise to even the most 1884–1885. Germany established which has resulted in many deaths. On 4 March 1916. In fact. Faculty of Law. 1938) and SG Ardener. However. South Africa INTRODUCTION present constitutional crisis and the final part will reflect on how the present challenges The most significant constitutional event in can be overcome. demonstrations. GXULQJ WKH )LUVW :RUOG :DU E\ D FRPELQHG al reforms. Although Cameroon is a German creation. The in Cameroon in 1996 hardly provided any second period is marked by the French and foundation for constitutionalism to take root. Cameroon in 2016 was the peaceful protests. Germany practically lost its control over spects reflects the history of the country. Professor of Law. tutional history can be said to have gone es of fragmentation which have only been through three main periods. The third period covers all develop- This report mainly focuses on the political ments that have taken place since independ- and constitutional crisis that exploded in ence and the reunification of the British and 2016. Cameroon’s consti- stability belies deep-seated centrifugal forc. its last stronghold on the territory at Mora fell vide a background constitutional history of on 20 February 1916. University of Pretoria. The &DPHURRQGXULQJWKH)LUVW:RUOG:DUZKHQ second part of this report will briefly pro. the third part will highlight the two victors finally initialled an agreement 1 See generally. injuries. The of democratisation’ that swept through Af. 1883–1887 (Buea. Cameroon DEVELOPMENTS IN CAMEROONIAN CONSTITUTIONAL LAW Charles Manga Fombad. a colony in Cameroon in July 1884 and this and the detention of numerous citizens. kept dormant by repressive authoritarian governmental structures and systems which The first period is that of the German protec- successfully defied the so-called ‘third wave torate that lasted from 1884 until 1916. Eye-Witnesses to the Annexation of Cameroon. it alysed all official activities in the two An. the 1996 Constitution which operates today in Cameroon is a paradox that in many re. it French administered portions of the country is necessary to briefly look at the complex to form what is now known as the Republic constitutional history of Cameroon. In fact. German period ended when their military ULFDLQWKHV:KLOVWDOPRVWDOO$IULFDQ forces in Cameroon were finally defeated countries underwent substantial constitution. is the Portuguese who are considered to be glophone regions of Cameroon since Octo. Cameroon’s apparent political Generally speaking. the first Europeans who arrived on the coun- ber 2016 and led to a military intervention try’s coast in the 1500s. Germans in the Cameroons 1884–1914: A Case Study in Modern Imperialism (New Haven. HR Rudin. Institute for International and Comparative Law in Africa. the token reforms that took place British and French expeditionary force. 2016 Global Review of Constitutional Law | 37 . to understand this crisis. Yale University Press. 1968).

generals. and authorise public expenditure. and can However. this is largely pendence on 1 October 1960. The division of Cameroon to amend the 1960 Constitution by an annex. with the French taking almost tiating position of the Southern Cameroons for human rights. 2008) 179–199. eroons voted in favour of remaining with and replaced it with ‘Republic of Came- Nigeria whilst Southern Cameroons voted roon’.2 There are a number of factors sis for the establishment of two distinct and WLRQV¶ :KDW EHFDPH WKH )HGHUDO &RQVWLWX. the introduction of bicameralism. This marked the end with a Senate to act as a second chamber to Southern and Northern Cameroons in which of the highly centralised federal system of the National Assembly. Ethnicity. the nego. under which the President larly its constitutional law.OL9LZVS\[PVUVM(MYPJHU*VUÅPJ[Z (OSSREA & James Currey. Ahidjo was African constitutions. is significantly com- the people of both territories were given government that bore a resemblance to a promised by the fact that these bodies are the option of gaining independence by ei. promoting constitutionalism by enhancing government and other political elites. than token concessions and only felt obliged underlying philosophy of the original 1972 tions Covenant. that was officially known as the ‘United Re. this was seen by many Anglophone Second. Al- become independent on 1 January 1960. Republic of Cameroon’s Constitution of 4 cratic state system. it was a highly centralised the normally limited powers of the legisla- The British sector consisted of two narrow system in which most of the powers were re. and Konrad Adenauer Stiftung. often conflicting cultural. ing principles. symbolic vestiges of the 1961 reunification what it terms ‘judicial power’. that attest to this. the Came. ‘Post 1990 Constitutional Reforms in Africa: A Preliminary Assessment of the Prospects for Constitutional Governance and Constitutionalism’. abolished and replaced with a unitary system democratic and accountable governance. the 1996 Constitution in Article 119 of the Treaty of Versailles and under no pressure to make anything more did nothing more than reinforce much of the under Articles 22 and 23 of the League of Na. prefects. has culture.provincial governors. After the plebiscite in Southern Cameroons. This was confirmed representatives was quite weak. which had already gained inde. the federal system was have been largely ineffective in promoting of Southern Cameroons and Northern Cam. on the African continent by revising its 1972 essentially of government nominees.judicial review. was reinforced while eration. roon Government reluctantly followed the and in any case can hardly operate effec- tively loose and decentralised federation in post–1990 wave of constitutional renewals tively because it is supposed to be composed which they hoped to protect their language. which they administered as an in. ineffective because of the President’s unlim- ited powers to appoint and dismiss judges. political. for a perception of a design to eliminate An. glophone peculiarities were sown. 2 See. appellation ‘United Republic of Cameroon’ tent of legislation. and respect unequal parts. Human Rights and Constitutionalism in Africa (Kenyan Section of the International Commission of Jurists.newly enacted laws. and dismiss at his pleasure the Prime Min- tegral part of its Nigerian colony. John Fru Ndi. The seeds of the President was strengthened. in Kenyan Section of the International Commission of Jurists. 38 | I•CONnect-Clough Center . it article 47 of the 1961 Federal Constitution though there were many innovations. with ex- Northern Cameroons and Southern Cam. had extensive powers. ure called ‘transitional and special disposi. phone identity within the country were rein. Charles Manga Fombad. for the first time. ed Nations. democracy. The expectation was mainly powers of abstract review. although the amended Constitution in favour of re-uniting with the Republic of Cameroonians as removing one of the last purported to introduce.of parastatals. He can also approve or veto tober 1960 and the French Government also forced when on 2 June 1972 a new Consti. The dominance non-contiguous strips of territory (called tained by the federal government.tensive powers that enable him to appoint eroons). Northern Cam. declare a state of emer- announced that French Cameroon would tution was introduced. of the two distinct communities. plebiscites were organised in public of Cameroon’. these became necessary to determine the future which prohibited this. that it would provide a solid foundation for only entertain matters referred to it by the mitted to reunification with an already in. and legal tion of the Federal Republic of Cameroon traditions that have had and continue to have a was nothing more than a law revising the First. Constitution in 1996. However. . IHGHUDWLRQRQO\LQQDPH:KHQLQWKH largely subservient to the executive and have ther staying with Nigeria or re-uniting with President by Law No 84/001 abolished the little power to initiate or influence the con- the Republic of Cameroon. the pre-1996 highly centralised auto- profound effect on the country today. and the heads Nigeria would become independent on 1 Oc. 2008) 121–156. For eroons. March 1960 and provided for a two state fed. Nairobi. a party formed by which is supposed to have some powers of tional arrangement with President Ahidjo of an Anglophone. After pressure brought to bear by the Social The contemplated Constitutional Council. Democratic Front (SDF). particu. based on a rela. After the ister and cabinet members. in AG Nhema and PT Zeleza. for example. and without regard to gency. Charles Manga Fombad. Oxford. since they were now fully com. has never been established the Republic of Cameroon. Cameroon. its leaders tried to negotiate a new constitu. Under the supervision of the Unit. Unlike most post-1990 four-fifths of the territory. and legal and educational systems. ture were further curtailed. British Government announced in 1958 that The threats to the elimination of the Anglo.that formally partitioned Cameroon into two dependent Republic of Cameroon. ‘Cameroon’s Constitutional Conundrum: Reconciling Unity with Diversity’. Constitution as well as many of its underly- between Britain and France provided the ba.example. judges. good governance.

useful for their resources out to be its most enduring contradiction. Many Parties and the State’ (1992) 22 African Insight 165. The elevation of looms large and goes deep. has turned a mere appendage. ‘The Post-Ahidjo Era in Cameroon: Continuity and Change’ (1996) 10 Journal of Third World Studies 268-302. whilst acknowledging gross irregularities in the persistence of Anglophone “particular- the presidential elections. if at all. have since reunification in 1961 been of “de-identification” of Anglophones from cision-making process (Kofele-Kale. The Political Economy of Cameroon (1986). and Political Power: A Post-mortem of Ahidjo’s Cameroon’ in M Shatzberg & I Zartman (eds. the regional as compared to the other eight since 1961.) Pathways to Accumulation in Cameroon (1993).1986). around what is seen as a deliberate policy and inconsequential roles in the national de- face.’ in R Joseph (ed. evoking memories of the Nigerian has the power to determine their powers and JORSKRQH6RXWK:HVWUHJLRQZKLFKLQPDQ\ civil war) and “les ennémis dans la maison” can dissolve them and dismiss their officials respects is not only the country’s breadbas.to confidently assert himself. A their separate and distinct heritage and “per. The uneasy co-existence of the Anglo- felt Ni Fru Ndi. and A Mbembe. suspicious of Francophone domination. Cameroon and Chad in Historical Contemporary Perspectives (1988). 2016 Global Review of Constitutional Law | 39 .).the military. reinforced a shock to Anglophones that having agreed er to posit that Cameroon is “two different the long-standing Anglophone feelings that to join a bilingual union in which inherited countries in one”. ket in terms of agricultural produce but is the mands for federalism has consistently been main source of the country’s oil wealth. The Case for Southern Cameroons (1990). JF Bayart. ‘The English-Language Press and the “Anglophone Problem” in Cameroon: Group Identity.`VOº*VUÅPJ[PUN5HYYH[P]LZVM(UNSVWOVUL7YV[LZ[HUK[OL7VSP[PJZVM0KLU[P[`PU*HTLYVVU» 1V\YUHSVM*VU[LTWVYHY`(MYPJHU Studies 249. Restoration Autoritaire et Déliquescence de L’Etat’ in P Geschière & P Konings (eds.Biafrans.Thus. Not only does he have ic underdevelopment of their two provinces cause this has been marked by derogatory the right to decide when. 5 In his book. position of our diversities”.phones have been consistently under-repre- and a deliberate government policy of ab. had won. Both President Ahidjo and his succes. This dismissed as evidence of lack of patriotism Cameroon’s bilingual and bi-cultural nature. 48. sor. and sented in ministerial as well as senior and sorption and assimilation combined with the educational life to conform to French mod. 7 :LLNLULYHSS`+. but the obscure language used glophone communities’ grievances under French”. suppressed and they are being compelled to for some sort of de-concentration of powers adopt the dominant Francophone way of life. language and play second fiddle to Francophones.) Gaullist Africa: Cameroon under Ahmadou Ahidjo (1968). 8 Azevedo (ed.fact. especially be- dent of the Republic. they are destined to colonial differences in language and insti- modating the diverse ethnic. and parastatals. Many tutions were to be respected and creative- cultural groups. Thus. no matter their merits. what he terms as the “collection and juxta. Culture and the Politics of Nostalgia’. VJ Ngoh. at p. A Mukong (ed. J Takougang. Many Parties and the State’ (1992) 22 African Insight 165.middle level positions in the administration. one of its greatest sources of pride. and local authorities will be created.Third.7 and their de- when he deems it proper. Regionalism.3 The first is economic. Crise de Légitimité. sation” has made it hard for an Anglophone sions entirely at the discretion of the Presi.(the enemies within the house).). “bilingualism in authorities.[OUPJ(TIP[PVUHUK+PɈLYLUJL»  (MYPJHU(ɈHPYZ 6 See. the loss of the very limited regional The Anglophone community.6 through the creation of regional and local Most analysis summarises the so-called An. ‘Cameroon: A Country <UP[LKI`. ‘Epilogue. but also The case is particularly poignant for the An. ‘The Neutralisation of Anglophone Cameroon. 1961-1966: An Historical Analysis’ (1999) accessible at O[[W!ÄUKHY[PJSLZJVTWHY[PJSLZTPFXHPZF HPFU WYPU[.4 Finally. the cynical aphorism. cising” all aspects of social. “national unity and integration”. with the possibility and Cameroonians. Les Camerounais Occidentaux: La Minorité dans un état Bicommunitaire (1972). still proceeded to isms” as an obstacle to national unity and Analysts may well debate the extent of these declare Biya the winner in an election which development.Various studies have shown that Anglo- perception of Anglophone marginalisation sona” through a careful process of “Galli. but not for its people. To many of them. who make up autonomy in 1972 has been followed by the about 20 percent of the total population and The second contentious issue centers relegation of Anglophone leaders to inferior occupy about 9 percent of the total land sur. Kofele-Kale ‘Ethnicity. Paul Biya (who has been in power since an Anglophone to the essentially honorific the straw that broke the camel’s back came 1982) in resolutely pursuing their policies of position of Prime Minister in 1992 has been in 1992 when a skeptical Supreme Court. a form of decentralisation analysts agree that Anglophones have had ly integrated into a new collective national was provided which essentially concentrates a pretty hard time being both Anglophones experience. more than anything else. three main themes. E Lyombe. economic. O[[W!ÄUKHY[PJSLZJVTWHY[PJSLZTPFXHHPFU  print 4 J Derrick. Biya has firmly rejected grievances but their existence is a palpable many. P Konings & B Nyamjoh. ‘The Origin of the Marginalization of Former Southern Cameroonians (Anglophones). references to them as “les Biafrais” (that is. FB Nyamnjoh. ‘The Anglophone Problem in Cameroon’ (1997) 35 Journal of Modern African Studies. an Anglophone.8 Frustrated by the intran- 3 See generally. their way of life has now been powers in the centre.5 It has come as phones and Francophones has led one writ- This. including international observers. The intensity of this “de-culturali- leaves the implementation of these provi. on the very critical issue of accom. ‘Cameroon: One Party.). Anglophones point to the relative econom. J Derrick “Cameroon: One Party. have seen seen as a ploy to neutralise the popular SDF. has led to a feeling that the two regions are and a smokescreen for secession. elimination of Anglophone particularities els. J Benjamin. Communal Liberalism (1987) 26-30.

and was the party that initiated federation have now been brushed aside by tion has been to send in more armed troops the street protests of the 1990s which forced emerging radical factions such as the Amba. the two regions. The protests started in mid-October 2016 sure groups have sprang up since the First President Biya. the 1996 constitutional amendment process. of the complex nature of the problem. In his any other group. In a docu- Southern Cameroons Restoration Movement He reiterated his determination to defend the ment prepared by the SDF. Many of those arrested the Confederation of Anglophone Teachers’ are now being tried by a military tribunal Trade Unions and the Teachers’ Association An opportunity was missed to lay this long for treason and a myriad of other offences of Cameroon. cluding parliamentarians. They also complain that com- problem existed. iv) 28 of the 30 IHPSPɈZ . The international media has all schools in the two Anglophone regions. ii) 54 of the 89 lawyers (60. demonstrations were violently suppressed generalised hardship in which most analysts resulting in the deaths of many demonstra- TIONAL CRISIS OF 2016 agree Anglophones have suffered more than tors and the detention of many more. against the unarmed protesters.9 This was fol- ment. not only because allege that many of the lecturers and heads the constitutional and political crisis that of the perception that it was imposed. It is against this background of years of cause of the general strike and demonstra. and was only prepared to petitive public examinations to gain admis. the Southern Cameroons Liberation lost their lives. was to immediately deploy troops all over tive asymmetrical decentralisation of pow- the two regions and in many places street ers which recognises and protects the spe- 9 A ‘Position statement of the SDF members of the National Assembly of Anglophone extraction. in- ism. now nipulated and exploited extremist rioters’. but of departments in the two universities in the started in Cameroon was predictable. such as the Cam. In spite also because it is technically an inferior doc- region were Francophones. links within and from the two regions were the two Anglophone regions to teach subjects ary 1999. and is lation came out in support because most of the light of post-1990 constitutional devel- less liberal and progressive. that an Anglophone the language.10 or training in the common law. and in ument to the one it purports to amend. for a return to the tinued into 2017 and the government’s reac- the country.7%) in the legal department in the South West Region are Francophones. which most of the strikers tion. in French to children who do not understand in dismissive fashion. Anglophone community. Even the limited form of decentralisation that it espouses has By December 2016. were promoted by the ‘acts of a group of ma- whom they allege have little or no knowledge eroon Anglophone Movement (CAM). pretended when the lawyers in the two Anglophone All Anglophone Conference (AAC 1) was that there is no ‘Anglophone problem’. Many have the government to reintroduce multi-party- zonia. an alarming number of pres. even secession. three observations can be of adequate consultation.sigence of the regime and galvanised by the THE POLITICAL AND CONSTITU. which advocate outright secession by and transferred to detention centres outside lowed a few weeks later by a strike led by use of arms if necessary. have been arrested of the judiciary was laid bare. as in the past. There was lack the senior administrative positions in the two opments in Africa. The other popu. President Paul Biya. The protests have con- 1990s has been the main opposition party in National Council (SCNC). iii) 20 of the 50 magistrates (40%) working in the Buea bench and legal department are Francophones. daily activities in the First. and most of their leaders. They also It is clear from the preceding discussion that a controversial document. for the first time admitted. which since the (SCARM). a return to a two-state federation or hardly been implemented with any convic- Anglophone regions had come to a halt be. made. frustration that the Anglophone communities tions demanding a return to the two-state will not solve the deep-seated problems that LQ WKH 1RUWK :HVW DQG 6RXWK :HVW UHJLRQV federation. been barred from reporting on the violence The teachers complain that French speaking :LWK ULVLQJ DJLWDWLRQ LQ WKH $QJORSKRQH and in January 2017 telephone and internet and trained teachers had been deployed into community. the 1996 Constitution remains gain admission into these schools. LOOKING BEYOND THE CRISIS say that it was promoted by a handful of hot- sion into professional schools in the country AND CONSTITUTIONALISM IN heads and vandals. albeit blocked. and regions started a protest action against the held in Buea in 1993. in Janu.2%) are Francophones trained in the civil law. especially of the regions were held by Francophones. and demonstrators are now advocating for. The government’s response Anglophones face in Cameroon. are poorly translated from French to English CAMEROON and make it difficult for Anglophones to On the whole. This has led to the closure of festering Anglophone problem to rest during against the state. the extent of Francophone domination )URQW DQG WKH )UHH:HVW &DPHURRQ 0RYH. traditional 31 December New Year speech. Moderate demands argued that the strikes and demonstrations domination of the judiciary by Francophones pursued by some of them.’ signed by 15 members of the SDF in Yaoundé on 16 5V]LTILYWYV]PKLK[OLMVSSV^PUNL]PKLUJLVM^OH[P[YLMLYYLK[VHZ[OLÅVVKPUNVM[OL*VTTVUSH^Z`Z[LTI`THNPZ[YH[LZ[YHPULKPU[OL*P]PSSH^ system: i) 58 of the 148 magistrates (39. and the Southern Cameroons unity of the country. An effec- took to the streets in October 2016.

HWWVPU[LK[V[OL[^VYLNPVUZHYL-YHUJVWOVULZVM[OLTHNPZ[YH[LZ.

the Southern Cameroons National Council. Some of these pro-secession groups. and the Ambazonia Movement.9%) magistrates working in the legal department of the North West Region are Francophones.^VYRPUNPU[OL5VY[O>LZ[9LNPVUHYL-YHUJVWOVULZHUK 64 of the 97 (65. are gaining supporters and becoming more militant by the day. 10 . 40 | I•CONnect-Clough Center .OLJVU[PU\V\ZYLM\ZHSHNHPUZ[HSSSVNPJ[VYLJVNUPZL[OLZVJHSSLK(UNVWOVULWYVISLTHUK[OLÄYTILSPLMI`[OLY\SPUNJSPX\L[OH[[OL`JHU\ZLMVYJL to suppress the demonstrations is driving many moderate Anglophones into the extremist camp of those who think the only way to solve the problem is by secession. such as the Southern Cameroons Youth League.

A fundamental aspect of the bi-cul- This will. established by the Federal Character Es- The bi-cultural character of the country is tablishment Act No 34 of 1996 implements not only a historical fact but a daily real. stitution until it failed to be ratified. the two inherited cultures based on dynamic sation design can address these problems. policies. Second. It is more of a politi. 13. One of the entrenched interest in preserving a ‘divide critical features of such a framework is the and rule’ policy. teristic of Canada. backed by the Federal Character Commis- sion (FCC). signed decentralisation framework offers the turning into a ‘new Boko Haram. a leaf can appointments to public posts must comply 11 See. who had worked as a governor in ing Canadians…and English speaking Ca.’ An even closer example best way to deal with the Cameroonian crisis the current crisis is an excellent illustration to emulate is the Nigerian ‘federal character’ than the militarily imposed peace sought by of a defective decentralisation design that principle. present predicament needs an urgent solu- tion at the heart of which is a new credible In the light of the above. at best.12 Solving Cameroon’s diversity of the country. government continues to deny that there is a Act proposed to recognise. genocides and public service institutions fairly reflect the the restless tides of refugees and displaced linguistic. all institutions. ‘that A constitutionally entrenched ‘regional char- problem. minister. tionally entrenched and legally enforceable peace. inter alia. The Three Waves of Globalization: A History of a Developing Global Consciousness (Fernwood Publishing and Zed Books 2003). it is contended decentralised framework in which all citi. A respected former Francophone ognise ‘that the existence of French-speak. exclusion and marginalisation.’11 Finally.cial interests of the Anglophone community be borrowed from the Canadian experience with the bi-cultural character of the coun- seems to be the only way forward. constitutional entrenchment and protection of a bi-cultural principle which recognises It can be argued that a credible decentrali. This provision also proposed to rec. equity. and geographic persons demonstrate’. whether perceived or actual. the Boko Haram insurgency in the northern part of Cameroon and Nigeria is a reminder of the dangers of exclusion and marginalisation. however. Ultimately. There is the litical crisis in Cameroon in a peaceful and need to make the Anglophone community sustainable manner that addresses the per- feel Anglophone and Cameroonian.html (accessed in February 2017). tribution of public posts and socio-economic ‘the creation of effective strategies to han. need a fundamental re. There is ception of Anglophone marginalisation and no longer any sense in pretending that there exclusion from the benefits of the nations’ is no Anglophone problem. There is thus need for a constitu- order but can. A national commission must be estab- the resort to violent suppression of unarmed that had been agitating for secession from lished under the Constitution to supervise demonstrators in order to impose the will of the rest of Canada signed the Meech Lake the implementation and enforcement of this the ruling elites will certainly restore some Agreement. In fact. humanity’s most pressing challenges. In doing this. where the French-speaking Quebec province try. religious. ethnic cleansing. ethnic. as re. which could have paved the way principle.cameroon-info. that the only way to resolve the present po- zens of the country have a stake. practices. the real risk of anger and frustra. This body also ensures that appointments to cent wars. This Federal Executive body Cameroon has reached a critical cross-road. Nor can it be resources and accommodate the secessionist simplified further as an Anglophone versus threats is to design an asymmetrical decen- Francophone problem. as in many conflict situations. ‘Cameroun – Opinion: Le problème Anglophone pourrait devenir le noveau Boko Haram. infrastructures among the various federating dle the reality of human diversity is one of units of the Federal Republic of Nigeria. and enforces the federal character principle ity that cannot be ignored or wished away. As the number of unarmed demon. Section framework that recognises and protects the strators killed by the army increases and the 2(1)(b) of this Constitutional Amendment two distinct cultures on an equitable basis. has warned of this nadians…constitute a fundamental charac. and prevent nepotism and any feelings of increase. Quebec constitutes within Canada a distinct acter principle’ is needed to ensure equity tion forcing people to resort to terrorism will society’. which was first constitutionally the ruling political elites. tural principle must be a requirement that vision of the present obsolete and dysfunc. 12 In. laws.’ http://www. which ensures fairness and equity in the dis- As Robert Robertson rightly points out. 2016 Global Review of Constitutional Law | 41 .net/ article/cameroun-opinion-le-probleme-anglophone-pourrait-devenir-le-nouveau-boko-haram-278841. and tional Constitution. a carefully de- the Anglophone regions. has done nothing more than hand over abso. only provide an uneasy for a major amendment to the Canadian con. David Abouem à Tchoyi. tralised system which recognises the two cal problem created by the ruling elites with distinct cultures in the country. entrenched in the 1979 constitution and is lute power to a small clique.

more successful in im- liament2 and called a general election before plementing reform of its constitution by se- it was constitutionally due (one year early in curing the successful passage of legislation the case of Jamaica and 10 months early in to limit the maximum number of terms of the case of St. the convention is that the Governor General must act in accordance with the advice of the Prime Minis- ter. 6 http://antiguaobserver. both been proposed and rejected in the Grenada Prime Ministers badly misjudged the mood referendum). 5 http://nowgrenada. of the seven Constitution (Amendment) Bills witnessing the orderly transfer of power in attracted the two-thirds majority of voters Jamaica and St Lucia. In both cases. it is the Governor General as the Queen’s representative who dissolves Parliament.com/2016/11/results-grenada-constitution-referendum/ accessed 15 February 2017. in the pro.php accessed 15 February 2017 and http://www. for example. See.lc/past-results/election-night-results-2016 accessed 15 February 2017. Kitts was. 1 Samuel Huntington. However. not one of the seven Bills managed tively. pellate court. Barbados and Guy- ana celebrated the 50th anniversary of their 2016 also witnessed one of the most signif. including outcomes of elections. section 31(1) Constitution Jamaica. 42 | I•CONnect-Clough Center .5 elections in February and May 2016. enhance the integrity of the electoral are often held up as a vital sign of the re. tail below. Commonwealth Caribbean DEVELOPMENTS IN CARIBBEAN CONSTITUTIONAL LAW Derek O’Brien. however.3 Elsewhere in the region. carefully laying the groundwork for this ref- cess. to replace the Judicial Committee of to attain independence.com/government-keeping-its-term-limit-promise/ accessed 15 February 2017. the Privy Council (JCPC). however. not one test’ for democracy.com/general/2016/results/resultsummary. peacefully surrender. formally.electoral.gov. Britain. Lucia). 3 See http://jamaica-elections. The Government of St them to recommend the dissolution of Par. presumably because office that a Prime Minister can serve to two they reckoned that this was their best chance (one less than the number of terms that had of securing electoral victory. attainment of independence from the former icant constitutional referendums to be held colonial power. Indeed. remain in Grenada were asked to vote on seven strong for the reasons discussed in more de- separate Constitution (Amendment) Bills. which had been ing power to their successors and. The Third Wave: Democratization in the Late Twentieth Century (University of Oklahoma Press. following general that was needed to amend the Constitution. the Government of Grenada. 2 Though.com/#Bills accessed 15 February 2017. the respective Prime to secure even a simple majority of the vot- Ministers exercised the discretion vested in ers in the referendum. satisfying Huffington’s ‘two-turnover erendum for many years beforehand. the Caribbean Court of Justice COMMONWEALTH CARIBBEAN bago became the first countries in the region (CCJ).6 of their voters as they were both swept from power by the opposition. Oxford Brookes University INTRODUCTION which sought variously to: limit the num- ber of terms of office a Prime Minister can Elections in the Commonwealth Caribbean serve. process. 4 For further information about the Bills see http://grenadaconstitutionreform. respec. 1991).4 In an outcome ments across the region have respected the that surprised many in the region. successive govern. and vest gion’s commitment to democracy. Constitutional links in the region since independence as voters to Britain within the region. guarantee gender equality.1 2016 was no exception. In the 50 ultimate legal sovereignty in a regional ap- odd years since Jamaica and Trinidad and To.

See D O’Brien. Antigua and Barbuda. it was of appeal to the CCJ and the criminalisation an amendment of the Constitution to replace hoped. which would have given effect to Holness of the Jamaica Labour Party. tion to replace the Queen to coincide with DSSRLQWPHQWIRUWKH&&-¶VVXSSRUWHUV:KHQ place the JCPC with the CCJ without the need the 50th anniversary of Barbados’s indepen- it was originally conceived.html accessed 15 February 2017. 13 R Crilly. publicanism. if the Government is to secure the two-thirds endum that was widely believed to have been majority it needs in both Houses of Parlia- COURT rigged. ‘Barbados Wants to Ditch the Queen on the 50th Anniversary of its Independence’ The Independent. 16 T Brooks-Pollock. greater public education on the issue. 11 http://today.bbc. enough to convince the voters in stead of the Crown. the approval of a major- which is the final appellate court for the ma- the Government of St Lucia recently sought ity of Jamaica’s citizens in a referendum. through Parliament since this is exactly what homosexuality: Orozco v AG Belize18 and only one Government has managed to secure the PNP had themselves promised to do Tomlinson v State of Belize and Tomlinson v the support of a majority of voters in a refer. being of homosexuality (discussed further below). these arguments were not. This is a major dis- able the amendment of the Constitution to re. arguably. ‘Jamaica Unveils Plans to Ditch Queen as Head of State’ The Telegraph (16 April 2016).11 while require.19 endum for constitutional reform. Judgment 10 June 2016 (unreported). 668 of 2010. 14 See http://www. http://www. region’s citizens by making it cheaper and VERSIES IN 2016 Though the Constitutional reform Commis- more convenient to bring an appeal before sion of Grenada originally recommended a local court rather than a court located 4000 Apart from the issue of abolishing the right asking voters in the referendum to support miles away in London. 17 (n4).16 but that date that the CCJ would serve as the final appel- passed without the necessary legislation be- late court for the entire region. St Kitts and Nevis. State of Trinidad and Tobago. gion in 2016.7 whether to abandon constitutional monarchy to support a Constitution (Amendment) Bill in favour of a non-executive presidential re- which would have entitled public officials to As noted above. enable the judges of the CCJ. jurisdiction of the CCJ to this year to allow for entrenched’ provisions and will. the support of the opposition. Claim No. and the CCJ. for example.9 Since independence.the current session of Parliament to amend ported the amendment. the JCPC. Law and the Political Environment in Guyana. in addition.The new Prime Minister of Jamaica. but even this relatively Grenada to support a Constitution Amend. for ex- voters in the referendum. 1984) 61. The Bahamas. citizens of the communities in which they the other main constitutional controversy in the recommendation was not accepted by served.17 the appellate jurisdiction of the CCJ. 18 In the Supreme Court of Belize. the Queen with a non-executive President. 2016 Global Review of Constitutional Law | 43 . 10 See RW James and HA Lutchman. 15 Constitution of Jamaica. St Vincent and The Grenadines and. and succeeded in obtaining an order of the which is the final appellate court for four Eastern Caribbean Court of Appeal correcting In Barbados. 8 (n5). Jamaica. but would also. 12 See judgment of Eastern Caribbean Supreme Court of Appeal In the Matter of the Attorney General’s Reference SLUHCVAP2012/0018.12 dence in November 2016. just over 40% of those voting sup. it was intended for a referendum on the issue.uk/ news/world/americas/barbados-wants-to-ditch-the-queen-on-the-50th-anniversary-of-its-independence-a6772571. 9 These include. This would not only increase access to justice for the DEVELOPMENTS AND CONTRO- ing enacted by Parliament. Constitutional Law Systems of the Commonwealth Caribbean (Hart Publishing 2014) 219.caricom. but two Constitutional Courts.when taking office back in 2011. has vowed to introduce legislation in event. involved challenge to laws governing jurisdiction of the CCJ. will not be enough in and of itself. Party announced plans to introduce legisla- Dominica and Guyana.uk/news/world-latin-america-16449969 accessed 15 February 2017.org/2016/08/31/antigua-and-barbuda-ccj-referendum-set-for-next-year/ accessed 15 February 2017. in addition to Grenada. Instead voters were asked constitutional jurisprudence. (Institute of Development Studies University of Guyana. 26 May 2013. section 49(3). swear allegiance to the state of Grenada in- however. Andrew modest reform was rejected by a majority of ment Bill.14 Howev.THE CONSTITUTION AND THE the Government of Guyana in 1980 in a refer. and that was er. though vital 7 See.independent.15 jority of countries in the region. Judgment 10 August 2016 (unreported). In the ample. Antigua and Barbuda postponed a planned removing the Queen will involve an amend- The Commonwealth Caribbean is in the referendum on whether to ratify the appellate ment of one of the Constitution’s ‘specially highly unusual position of having not one. the ruling Democratic Labour FRXQWULHV LQ WKH UHJLRQ²%DUEDGRV %HOL]H a draftsman’s error in the Constitution to en. therefore.8 This is a major blow the Constitution by replacing the Queen MAJOR CASES for the CCJ since several other countries in with a non-executive President as the head the region require the support of a majority of state. D Simmons. 19 Caribbean Court of Justice CCJ Application No.co. OA 2 of 2013. touching upon rights and free- their Constitution to give effect to its appellate ple’s National Party (PNP) as the Bill passes doms. ‘The Caribbean Court of Justice’ (2005) 29 Nova Law Review 169.co.13 In this he can reasonably expect Two of the most significant cases in the re- of voters in a referendum in order to amend to enjoy the support of the opposition Peo.10 It is notable that the Government of ment. to develop a distinctively Caribbean the region in 2016 concerned the question of the Government. OA 1 of 2013 and CCJ Application No.

such as the which requires: ‘us to acknowledge the value ly. and work of all individuals as members of so- fied the retention of section 53. regionally. which regional NGO campaigning on behalf of In searching for the meaning of human dig. Bills of Rights and Decolonization: The Emergence of Domestic Human Rights Instruments in Britain’s Overseas Territories (Oxford Uni- versity Press.22 which held that ropean Court of Human Rights (ECtHR). In On behalf of the Claimant. to the constitutionality of s.’ protection of public health or morality. the Constitution. The claimant was thus tion 16(3). whether was unconstitutional because it was a palpa- that the recognition of equal constitutional the limitations of these rights provided for by ble invasion of the right of gay men to dignity status for homosexuals could lead. which involved a challenge behalf of the defendants that because the his human dignity.N. Doc. which made ‘carnal inter. of the Constitutional Court of South Africa Rights (ECHR).’ The in the region’s constitutions were modelled ant had standing to bring these proceedings. either in themselves or in their effect pursu- The constitutional significance of the case isfied that on the basis of the evidence pre. On behalf of the Defendant. Court in Law v Canada (Minister of Em- apparent. worse still. U. the proceedings. to include sexual orientation. from time to time. had held in Toonen v Australia that the word LGBT rights. and internationally. lated the Claimant’s right to equal protection on both sides that it included intercourse be. these included: perpetually at risk of being prosecuted and. The stage was thus set for a con. 23 [1999] (1) SA 6. Sexual Orientation decisions. nation pursuant to s16. the Court was. to the legalisation of ‘gay marriage. ciety. invoked the decision of the United Nations al Commission of Jurists and UNIBAM. and. finally.How homosexuality is treated by the law Churches.21 Dudgeon opened up the man dignity pursuant to section 3 of the which. Since. sat. all individuals and groups within society. the Court also had no hesitation person or animal’ a criminal offence liable pursuant to section 20(1) of the Constitu. justi. is harmed ‘when individuals and groups are are repugnant to international human rights marginalized. following the judgment of the Eu. support of this expansion of the protected the Commonwealth Lawyers Association. locally. the Bills of Rights to be found decided were as follows: whether the claim. ignored or devalued. his right to privacy pursuant to Lesbian Equality v Minister of Justice.’ Referring to the of the law pursuant to section 6(1). however. 21 See C Parkinson. icate discrimination against homosexuals.’ Finding itself in agreement with these Criminal Law. judgment of the ECtHR in Dudgeon on the be subject to laws that were discriminatory self-same issue. vio- ‘against the order of nature’. 44 | I•CONnect-Clough Center . it was agreed Constitution ‘has been or is likely to be con. On the issue of standing it was argued on violated the Claimant’s right to recognition of co v AG Belize. Though there tion. in holding that section 53 violated the right to ten years imprisonment. ant to section 16(1). 22 [1999] 1 SCR 497. nity under section 3 (c) of the Constitution. the Court had regard to the is an issue which has aroused huge contro. eventual. stitutional showdown between various local definition offered by the Canadian Supreme versy across the region ever since it became and international NGOs determined to erad. held that the common law offence of sodomy to constitutional challenge and. 488/1992. in National Coalition for Gay and possibility that local laws which criminal. the Court concluded that section 53 The first case which I will consider is Oroz. therefore. though rare. with one exception (Trinidad The principal issues in the case that fell to be hanced ‘when laws recognise the full pace of and Tobago). 24 Communication No. section 9(2) of the Constitution. In the case of the latter.53 of the Belize Claimant had never been prosecuted for an Criminal Code.23 had ised homosexuality could equally be liable section 14(1) and his right to non-discrimi. ployment and Immigration.24 Since and the Belize Evangelical Association of freedoms set out elsewhere in Chapter II of Belize had acceded to the ICCPR two years 20 (App No 7525/76) (1982) 4 EHRR 149. the Court the Human Dignity Trust. the Belize Church of England was central to the fundamental rights and CPR) included ‘sexual orientation’. offence under section 53 he did not possess Following the decision of the ECtHR in course against the order of nature with any the necessary standing to bring the claim Dudgeon. CCPR/C/50/D/448/1992. travened in relation to him. which requires that those who seek a WRSULYDF\:KLOHVHFWLRQPD\EHJHQGHU was no known statutory or clear judicial constitutional remedy must show that one neutral on its face. 2007). were still brought one of the protected categories under sec- were given leave to join in the proceedings. and not to tween consenting adult males. as highlighted by the interested parties that section 53. had the requisite standing to bring categories under section 16(3). but is en- norms. Court also had regard to the jurisprudence on the European Convention on Human whether section 53 violated his right to hu. in and religious organisations in Belize equally human dignity means that ‘an individual or Dudgeon v UK. it was discriminatory in its definition of the terms ‘carnal intercourse’ or of the provisions of sections 3 to 19 of the effect upon homosexuals and. ‘sex’ in Articles 2 and 26 of the International these included: the Roman Catholic Church which the Court regarded as a concept which Covenant of Civil and Political Rights (IC- of Belize. therefore. is sented to the Court that prosecutions under the Court extended the meaning of ‘sex’.20 that laws which criminalise determined to maintain the criminalisation group feels self-respect and self-worth’: this homosexual acts between consenting adults of homosexuality. a Human Rights Council (UNHRC). Constitution. the Internation.

privacy sequence of these savings clauses. have been terms. The im. Sec- should the proscribed conduct be rendered shall be held to be inconsistent with any tion 5 of the Immigration Act of Belize pro- unregulated. contended that his rights under Ar- From the perspective of legal principle. of the Constitution of Jamaica. such such savings clauses. ‘skilled’ Community na- permits the limitation by the State of the first judgment of a national court at any level tionals have the right to seek employment in rights it guarantees if the limitation can be anywhere in the region to recognise that the another Member State. Barbados and the Bahamas. travention of any of these provisions. an alternative In determining whether or not the existence as section 53. Section 8 of the Immigration Act In concluding that section 53 violated the The decision in Orozoco could not. of national law ‘as factual elements of state 25 [94].’ By Article 7 RTC.’ in section 134(1). which provided for laws Bahamas. discrimina- of public morality. Since no evidence had been of the provisions of this Chapter. of Trinidad and Tobago is in almost identical claimant’s rights dignity. the Constitution of Belize groundbreaking. an Community and Common market (CAR- ‘tacitly embraced the interpretation rendered lize Supreme Court in Orozco would appear ICOM) and the Caribbean Single Market by the UNHCR’. This right is ampli- shown to be for the purpose of some legit. but also because of the Heads of Government of CARICOM.26 the proceeds of prostitution or homosexual behaviour. and Economy. the Court determined that this was the constitution. Barbados or the of prostitutes or homosexuals. For example. exercising its however interpreted. and hibits entry to ‘any prostitute or homosexual presented as to the likelihood of such harm. ho- and non-discrimination. following four principles derived from the stitution. in the con. a State’s treaty obligations necessarily con- sensual acts between adults in private. However. ious religious organisations with regard to laws. the CCJ was guided by the bring them into conformity with this Con. criminalisation of homosexuality is repug. However. morality. There must be Nothing contained in any law in force violated by the Immigration Acts of Belize demonstrated that some harm will be caused immediately before the appointed day and Trinidad and Tobago. for up to six months.25 fairly unremarkable. clauses that immunise pre-independence be prohibited. In a compendium of decisions of Constitu.’ ant mounted a challenge to immigrations stitutes a breach of that obligation: much laws in Belize and Trinidad and Tobago in depends on whether and how the legislation. from constitutional challenge on The claimant. in which ca- resentative of the majority of the Christian the grounds that such laws violate the fun. fied by a 2007 Decision of the Conference imate aim. the Claim. 53 to exclude consensual private sexual acts Immigration. equality. Second. which is typ. the ical of such clauses. the Defendants decriminalisation of homosexuality. in tional Courts and international human rights original jurisdiction to interpret and apply construing domestic legislation. while the Court constitutions in the region include savings tion on the grounds of nationality only shall accepted that the views expressed by the var. Since the Court was persuaded that the judgment flies in the face of widespread which grants CARICOM nationals an auto- the existence of section 53 was damaging opposition across the entire region to the matic right to enter another Member State the fight against HIV/AIDS. text of the Commonwealth Caribbean it is Like the ECHR. respectively. limited by the fact that several able persons. nothing done under the authority of any or any person who may be living or receiv- the limitations imposed by section 53 could such law shall be held to be done in con. is applied. 26 Similar clauses are to be found in the Constitutions of Trinidad and Tobago.subsequent to Toonen it was presumed that it ise homosexuality. subject to the rights of were obliged to fall back on the argument pact of the judgment elsewhere in the region Member States to refuse entry to ‘undesir- that section 53 was justified in the interest is. v State of Trinidad and Tobago. the judgment of the Be. as a con. 2016 Global Review of Constitutional Law | 45 . ing or may have been living on or receiving not be justified. Trinidad and Tobago. to continue in force subject to means of challenging laws that discriminate of such laws breached the States’ obligations ‘such modifications as may be necessary to against homosexuals was essayed by the under the RTC. prohibiting entry to ‘prostitutes. tional is engaged in establishing the meaning human rights norms of laws that criminal. an LGTB activist. however. provides that: ticles 7 and 46 together with his right under Court held that it could not act upon the the 2007 Conference Decision were being prevailing majority views. entation. an interna- tribunals regarding the incompatibility with the Revised Treaty of Chaguaramas (RTC). sexuality. proceedings before the CCJ. pacity he regularly travelled throughout the community ‘and perhaps the population of damental rights and freedoms guaranteed by Caribbean region seeking to eliminate stig- Belize’. not only because it is the By Article 46 RTC. Claimant in the second case to consider. there is no general rule that the en- between adults by adding the following sen. section 26(8) ma and discrimination based on sexual ori- not enough in itself to justify the limitation.’ This meant reading down section jurisprudence of international tribunals. mosexuals or persons living on the earnings to apply the modifications clause to be found ca. however. In Tomlinson v State of Belize and Tomlinson actment of legislation which conflicts with tence: ‘This section shall not apply to con. which is the governing treaty of the Caribbe. such as public health or public nant to human right norms. such as laws that criminalise homo- the immorality of homosexuality were rep. Sexual Orientation First. the Court proceeded delivered by the Supreme Courts of Jamai. Notwithstanding the existence of existing at the time of independence.

26 guarantees equality before the law. under the RTC. regard must be had inter alia to ‘any It is disappointing that the CCJ effectively provision’ of the RTC and ‘community in. condoned the existence of laws which. forthcoming 2017). tively mandate discrimination on the basis of homosexuality. of Trinidad and Tobago’s international obli- sofar it was conceded by the Government’s gations as well as its domestic constitution- lawyers that section 8 of the Immigration al obligations will be welcomed by LGBT Act classified homosexuals as prohibited campaigners in the region as a further step persons and. on struments issued under the RTC’. must also be taken into account. which does not bar entry immunise existing laws against constitution- ed by evidence of administrative practice in to homosexuals. while an international tribunal will possible. These included the United Nations It is also present in the failure of the Gov- This was always going to be a heavy burden Human Rights Covenant and the American ernment of Grenada to secure the necessary for the Claimant to discharge since he had Declaration of the Rights and Duties of Man.29 literal interpretation of section 5 of the Immi. lawyers. In all these circumstances al challenge even if they violate the funda- Belize. the State’s treaty obligations. idad and Tobago. The domestic region.28 The ing in perpetuity the system of government cepted the Government’s contention that a preamble to the Constitution of Trinidad and inherited from the former colonial power. and was support. but ac- 2007 Conference Decision. This meant that other relevant aspects and there was a sacrosanct rule that in com. been able to demonstrate that he had been stitutions purport to guarantee. Tobago statutory provisions should. 27 Salomon v Commissioners of Customs and Excise [1967] 2 QB 116. This is present in the con- it may itself. the position was slightly different in. by Article 2 prohibits discrimination based lonial legacy included in the independence on sexual orientation and which by Article Constitution with the intention of preserv- So far as Belize was concerned. the CCJ ac. the bur. such as administrative acts mon law jurisdictions such as Trinidad and constitutional events that have taken place in of the State. Even the laws which criminalise homosex- gration Act should be avoided and that section ed on the dignity of the human persons. If there is one theme which links the various of State practice. Xenophon Contiades an Alkmene Fotiadou (eds) The Foundations and Traditions of Constitutional Amendment (Hart Publishing. certaining the meaning of any provision of an Act. ‘Formal Amendment Rules and Constitutional Endurance: the Strange Case of the Commonwealth Caribbean’ in Richard Albert. 46 | I•CONnect-Clough Center . not only permit. 28 Toonen (n24). as well as the ICCPR.27 In this respect status as sovereign independent states with mestic courts on the meaning of its own laws there were a host of human rights materials their colonial past. The inclusion of on a number of occasion and had never been of every person. on its face prohibited along their arduous journey towards achiev- the Claimant’s entry. Interpretation Act.’ In the CCJ’s view. Some fifty Such an interpretation was also in accordance prejudiced in respect of the enjoyment of his odd years after independence. In addition. while uality that were the subject of constitutional 5 should instead be interpreted as targeting section 4 of the Constitution guarantees the challenge in Orozco were based on a Crim- not homosexuals generally. which provides that in as. therefore. the CCJ’s ac- So far as Trinidad and Tobago was con. the region’s with Belize’s obligations under s64(1) of the right to free movement to the extent required struggle against colonialism continues. However. this was the most policy of the Immigration Division of Trin. which such an impossibly high threshold was a co- denied entry because of his homosexuality. elsewhere in the region owes much to the proceeds of prostitution or homosexual be. which was not to refuse entry to per. Tobago also affirms that the country is found. be interpreted as compliant with former British colonies to reconcile their give considerable deference to views of do.practice’ in order to check whether these courts of Trinidad and Tobago had never CONCLUSION factual elements constitute a breach by the pronounced on the meaning of section 8(1) State. Fourth. in the CCJ’s ing equal rights for gays and lesbians in the view this was not definitive. The survival of such laws or may have been living on or receiving the for his private and family life. such as the their face at least. However. the State’s obligation lies upon the Claimant. in appropriate circumstances. which would support the domestic courts of troversy surrounding the replacement of the select the interpretation that it considers most Trinidad and Tobago to take a more liberal Queen as head of state by a non-executive in conformity with the law. and the right of the individual to respect Honduras) in 1888. region’s independence constitutions which plausible interpretation. approach to the interpretation of section 8 President and in the controversy surrounding den of proving that the legislation breaches than the one conceded by the Government’s the replacement of the JCPC with the CCJ. if at all the region in 2016 it is the struggle of these Third. the CCJ had regard to the actual practice and saving clauses included in a number of the haviour. but rather those right of the individual to equality before the inal Code introduced in Belize (then British persons who ‘may be living on or receiving law. the CCJ concluded that the Claimant had not mental rights and freedoms which these con- sons based solely on their sexual orientation. 29 See D O’Brien. two-thirds majority in a referendum required entered both Belize and Trinidad and Tobago both of which recognise the human dignity to amend its Constitution. knowledgment that such laws were in breach cerned.

on the future of the CC. After in a politically complex context. That Although this is not the place to comment amendment gave the CC important new ju. Universidad del Desarrollo – P.3 in the numerous topics that are part of this 1 Lydia B Tiede.1 that there Bachelet has consequently initiated a con- was a shift from a judicial career profile to an stitution-making process that will not come academic profile of the justices. we focus on cases that were cases as examples that illustrate the fact that politically salient or were landmark cases the CC is becoming an increasingly conse- from a doctrinal perspective. Sergio Verdugo. Instead. specific cases. but also because of the impact SOLFDWLRQ²RQ FRQVWLWXWLRQDO JURXQGV²RI D those decisions produce among legislators. al replacement since 2011. the reader should be dicial review powers and changed the CC’s aware that the CC is currently functioning justices’ appointment mechanisms. and we ig. Even though we cannot fully demonstrate cial empowerment. quential actor. 2016 Global Review of Constitutional Law | 47 . that the CC’s power has increased because of the 2005 constitutional amendment. we also use the selected CHILE sions. New York University Nicolás Enteiche. ‘Judicial Behavior on the Chilean Constitutional Tribunal’ (2011) 8 Journal of Empirical Legal Studies 856. we focus on the main dialogue” to reaffirm the CC’s authority in aspects of the majority decisions. and the power nore dissenting opinions and concurrences. lected cases of 2016. Justice of the Chilean Constitutional Court – Universidad del Desarrollo. people has been demanding a constitution- scholars have noticed that the CC’s dissent. Evidence from the Chilean Constitution- al Tribunal’ [2015] European Political Science Review 1. ‘El Tribunal Constitucional Chileno Y La Reforma de 2005. Universidad del Desarrollo – JSD candidate. and President ing opinion rate has increased. legal provision in a concrete case. that has situated the CC this claim by only examining a selection of as a key actor in the Chilean constitutional 2016 cases. stitution as a reaction to the CC’s decisions. and which in. interpreting the Constitution. Its influence is not only ex- volved the CC’s constitutional review power plained by the importance of its decisions in to strike down legislation. of the legislative branch to reform the Con- The selected cases that we show in this re. we show examples that support system. and we ex- plore one case that illustrates how the CC un- The relevant literature typically assumes derstands the “constitutional dialogue” idea. or deny the ap. 3 Royce Carroll and Lydia Tiede. INTRODUCTION It is thus uncontroversial to say that the CC has notably increased its influence in the past This report aims to introduce the Chilean few years. 2 Diego Pardow and Sergio Verdugo.2 and that the WR DQ HQG GXULQJ KHU DGPLQLVWUDWLRQ :LWK- CC became less deferential to the legislator. ‘The Political Determinants of Judicial Dissent. A group of the implementation of these modifications. port are examples of a broader trend of judi. Constitutional Court (Tribunal Constitucio- nal de Chile – hereinafter. the “CC”) and Although the main purpose of this report is to identify the landmark cases it decided in to introduce the CC and to describe these se- :HGRQRWUHIHUWRDOOWKH&&¶VGHFL. the CC’s consequential character. Universidad Católica de Chile. Chile DEVELOPMENTS IN CHILEAN CONSTITUTIONAL LAW Iván Aróstica. Because importing to Chile the idea of “constitutional we need to be brief. Un Enroque Entre Jueces de Carrera Y Académicos’ (2015) XXVIII Revista de Derecho (Valdivia) 123.

see the explanation by Iván Aróstica. and particularly about its power to declare the inapplicability of legal provisions. failing in its function. Contribución Del Tribunal Constitucional a La Institucionalización Democrática. Sergio Verdugo. on average. 7 Druscilla L Scribner. If the CC declares that the legal provision should be used. RI  7KH  &RQVWLWXWLRQ²HQDFWHG The 1981-2005 CC played a modest role in Among the new powers. See. 76. for example. About the 1970 CC. the CC’s pre. Scholars found that the Supreme Court formalism and deferential attitude prevented it from developing a relevant jurisprudence. two judges. The CC could also many of the 1980 Constitution’s institutional CC’s justices’ appointment mechanisms review legislation in an ex-ante procedure arrangements. The CC was not authorized to review leg- was intended to put an end to the transition ibilidad resolutions when the claim has a islative norms after their promulgation.. 48 | I•CONnect-Clough Center . ‘The Politics of Judicial Review in Chile in the Era of Democratic Transition. Regarding the CC. and added an abstract power to eliminate In addition to a few ancillary powers. 6 See. 727-731. ferred the Supreme Court’s ex-post judicial the CC with a new institutional design. which allowed the Court to deny the after the 2005 constitutional reform.6 Also. ‘Models of Democracy and Models of Constitutionalism: The Case of Chile’s Constitutional Court. so judges could still use and apply the political agreement between President La. ‘Distributing Political Power: The Constitutional Tribunal in Post-Authoritarian Chile’ in Diana Kapiszewski. the CC decisions regarding the implementation of a competitive plebiscite and the establishment of the Electoral Court. the 2005 have been put into question. the CC decided interbranch specific legislative provisions when the CC &RQVWLWXWLRQJDYHWKH&&DQH[DQWH² conflicts that helped to define the President’s justices achieve a supermajority of eight RU SUHYHQWLYH²MXGLFLDO UHYLHZ SRZHU RYHU regulatory powers. The to democracy by eliminating the so-called procedural or formal flaw that prevents the CC could review legislation when the Presi- “authoritarian enclaves. ‘La Jurisdic- ción Constitucional: Funcionamiento de La Acción O Recurso de Inaplicabilidad. who THE CONSTITUTION AND THE provides a list of “organic” matters. The Supreme Court’s decisions in this matter lacked formal precedential ef- The 2005 reform was the result of a broad In 2016.” such as the pow. ‘Inaplicabilidad por inconstitucionalidad: reciente jurisprudencia del tribunal constitucional chile- no’ (2008) Estudios en homenaje a Héctor Fix-Zamudio. the powers that the original 1980 Constitu- The CC closed its doors after the events tion established. term. 1990-2001’ (2003) 10 Democratization 70. Between view power is rarely used. ceived as a deferential court. Within the inaplicabilidad. or a fourth of the members of the House existence of non-elected Senators. the Sen- ers of the National Security Council and the 91 decisions were inaplicabilidad cases. 10 An examination of this topic is provided by Marisol Peña. nearly 18 decisions practitioners broadly use the inaplicabilidad Court had a weak ex-post judicial review per year. vol 38 (second edition (2008). for instance. It ilidad resolutions. [OLJHZLNVLZIHJR[V[OLJV\Y[^OLYL[OLJHZLPUP[PH[LKHUK[OH[JV\Y[PZVISPNLK[VZVS]L[OLJHZL^P[OV\[\ZPUN[OLZWLJPÄJSLNHSWYV]PZPVU[OH[[OL** ruled unconstitutional. (out of ten) judicial votes. At the same time. The CC could also review administra. Javier Couso. 1533– 1534.8 This number changed drastically mechanism. dismissed 103 cases by enacting inadmisib- unconstitutional legal provision in other cas- gos’s administration and the opposition. through a reform to the 1925 Constitution in- the deadline to submit the case to the CC was tended to establish an arbiter who could pro- only for thirty days after the official gazette Following the 2005 reform. and it was con. Gordon Silverstein. Eugenio Valenzuela. See. the CC kept tect the legislative powers of the President. and Robert A Kagan (eds). The President appoints three judges to COURT tions such as the Congress and the Electoral the CC. Gastón Gómez.constitution-making debate. high judicial supermajority. The Irony of a Wrong Electoral Prediction’ (2017) 15 International Journal of Constitutional Law.tribunalconstitucional. and ate. Consequential Courts. the CC released an average of the ex-post abstract review power requires a pieces of legislation that conflicted with the 109 decisions per year. and was granted new ones. the reform trans- GXULQJ WKH 3LQRFKHW UHJLPH²UHHVWDEOLVKHG the constitutional system. generally now serve for a non-renewable nine-year associated with the regulation of key institu. or the Senate submitted a petition to the CC reform was also an opportunity to modify ventive (ex-ante) judicial power and the before its promulgation. but three judges.7 Between 1981 and 2005. Crónica de Un Fracaso’ (2003) 3 Foro Constitucional Iberoamericano. 5 Javier Couso. each House of the Congress appoints Court. 11 The PUHWSPJHIPSPKHKJSHPTJHUILÄSLKI`WYP]H[LWHY[PLZ[OH[HYLPU]VS]LKPUHUV[OLYQ\KPJPHSWYVJLK\YLVMHU`V[OLYJV\Y[VYI`HU`Q\KNL[OH[PZOLHYPUNH case where she is supposed to apply a legal provision that could be contrary to the Constitution.cl/estadisticas [accessed in March 2017]. the Supreme the CC ruled. ‘Birth and Decay of the Chilean Constitutional Tribunal (1970–1973). reform changed the appointment mecha- LVODWLYHELOOZDV³RUJDQLF´²WKH&RQVWLWXWLRQ nisms and the tenure of the justices. for a total of ten CC judges. the sequences.10 :KLOH OHJDO legislation. arguably because applicability (inaplicabilidad) of specific 2005 and 2014.9 were exceptional rulings with important con. Cuadernos del Tribunal Constitucional 1977). see Enrique Silva C. 9 There was a relative scholarly consensus regarding the Supreme Court’s performance in using the inaplicabilidad. The CC enacts inadmis- es. 8 We took all the statistics quoted here and below from http://www.4 (Diario Oficial) published the regulation. and the Supreme Court appoints The Chilean CC was first created in 1970 tive regulations enacted by the President. 58 out of the dent.5 although there review power (inaplicabilidad) to the CC. 1970-2010’ (2011) 89 Texas Law Review 1517. Judicial Roles in Global Perspective (Cambridge University Press 2013). CC from processing the case. either House of the Congress. the CC’s jurisdiction consists of reviewing whether an application of the contested legal provision violates the Constitution or not. The 2005 there was only one ruling about an ex-post 4 About the creation of the CC. El Tribunal Constitucional de Chile (1971-1973). the CC released 91 decisions and fect. 20–26. when the subject matter of the specific leg. vol 30 (Tribunal Constitucional 2003). the ex-post abstract judicial re- power. for in- stance. ‘San- ciones Y Restricciones Administrativas En Un Entorno de Leyes Compendiosas’ (2016) 9 Derecho Público Iberoamericano 13.11 Constitution.

posed a duty to release information regard- That ruling rejected the claim. quired to give the information to the Chilean administrative regulator (SERNAPESCA). The rest of the ployees and groups of employees to directly ing the company’s use of antibiotics in their docket consisted of rulings regarding ex-an. the company was re- against a legislative bill. None. and one claim negotiation only within the representation of the specific statute. ployees’ labor freedom (Article 19.allowed SERNAPESCA to give the infor- each others’ powers of interpretation.but the company disagreed with the rule that CC and the Supreme Court have respected lective labor bargaining violated the em. this rationale was the prohibition for em. bargain the terms of their contracts with em. the unions’ monopoly over col. two cases ployers. the respective union. Nº formation publicly. It is important to take into account that the Per the CC. Nº 16) mation to other parties or even share the in- theless. “Salmones Multiexport” recently released a statement declaring that . VDOPRQV²WKH6XSUHPH&RXUWKDVQRW\HWUH- te review of organic laws (29). Under of conflicts of jurisdiction. we should keep in mind that the CC and freedom of association (Article 15. forcing them to engage in the labor leased a final decision on this case.abstract judicial review claim (STC 2800).

Nº 16). The only way to overrule ers to negotiate separately. The most con- Supreme Court not to apply a rule that im XXVIII). legally allowed. troversial rule that the CC struck down using 12 This is relevant. the Congress always has the course. nated (Article 19. in the sense that the Congress can gotiations should proceed without violating this dialogue. Nº 19). because the derogation of these kinds of legal rules requires an examination of their compatibility with the Constitution. a group supermajority. Nº 2).” (STC 2907. The following case is an example of last word. and the right not to be discrimi. in the decision.tribunalconstitucional. that legislators can reform the tion to be amended. The CC stated that labor negoti- or to reinforce an existing statute. Nº 15) tiexport S. claim. using its ex-ante power of judicial cisions. which aims to Bachelet’s project on constitutional grounds. contained in the A salmon company called “Salmones Mul. the CC is the only court that can execute this power. consideration and labor (Article 19. However. The CC declared that the challenged legal the Constitution (leyes preconstituciona. and struck down specific provisions as a key reason for legislators to initiate a bill According to the CC: “Even though the Tri- of the bill. the cle 8 in a similar way. Sometimes the consequences of the its of Article 8 (STC 634/2007. discussing (Boletín 8805-07).in Chile requires a legislative supermajority case involved a labor reform promoted by ministrations. those ne- branch. of dialogue between the CC and the legislative stitutionality. and explicitly invoked CC included normative justifications for its the idea of “constitutional dialogue” to claim The “Labor Reform” case (STC 3016) ex-ante judicial review power. Pres- Constitution. 2153/2013.of past CC decisions that recognize the lim- The CC. The CC has not only influenced legislators’ form the Constitution as a reaction to a set actions within the cases that motivate its de.the CC’s interpretation is by reforming the freedoms of association (Article 19. However. The CC elaborated the ident Bachelet presented the legislative bill Constitution when they achieve the pertinent idea of “constitutional dialogue” by quoting and. because in the past some scholars argued that any court could recognize that a legal rule enacted before the Constitution was derogat- ed by the Constitution. during the legislative debates. parency and publicity. and that there is no such thing a legislative bill that Congress is currently of legislators from the opposition opposed as a neutral constitution. It pointed out that its constitutional interpretation can be The “Labor Reform” case is arguably the that the CC exercised that power in several RYHUUXOHG E\ FRQVWLWXWLRQDO UHIRUP²ZKLFK most politically salient case of 2016. creating a bunal has a relevant say in matters of con- ating between employers and unions are. which the CC considers as a negative provisions should be inapplicable to the case les). and 2379/2013).Constitution impose against rules of trans- DEVELOPMENTS AND CONTRO. vision. employees from bargaining with their corre. including the legal provisions that sponding employer directly.” asked the CC to order the Constitution.12 liberty that protects individual employees’ because of the limits that Article 8 of the autonomy. The project intended to re- legislative project.property rights protected its secrecy. reform the Constitution to incorporate what the constitutional right of individual work- it believes right. The reform aimed at 1970 constitutional amendment to the 1925 depending on the chapter of the Constitu- strengthening the powers of the unions.cl/wp/wp-content/uploads/Conclu- ZPVULZ001VYUHKHKL9LÅL_P.A. EHFDXVH²XQGHU %DFKHOHW¶V ELOO²WKH argued that the information had a commer- the CC is the only court with the power to mere existence of a union would prevent the cial value and that the company’s industrial declare the unconstitutionality of a legal pro. The occasions under different presidential ad. the CC invoked prior decisions that interpreted Arti- VERSIES IN 2016 It is worth noticing that. President Bachelet. partially accepted the legislators’ CC’s decisions go beyond the case and serve 2246/2012. that the power dates from the of 3/5 or 2/3 of both chambers of Congress. See the CC’s statement here: http://www. review. In its decision. The rule also vi- were promulgated before the enactment of olated the right to create a union (Article 19. reform the Constitution by recognizing and This group of legislators asked the CC to de- The CC as a key actor of constitutional including an explicit right to access public clare the unconstitutionality of parts of the dialogue (STC 2907) information. 1990/2012.

*.

Notice that the CC’s statement was not a formal judicial decision but a special document enacted by the CC and authored by the unanimity of the CC.)U.*WKM [accessed in April 2017]. 2016 Global Review of Constitutional Law | 49 .

The SVS penalized the infrac- idea is consistent with the Congress’ legis.14 One of these (Santiago’s 16th Civil Court). would result in a severe decision from the corresponding civil judge to get the fine reversed and later submitted 13 One of us has promoted it in: Sergio Verdugo. but evaluated the verely punishes with jail all impaired drivers state’s power to punish. the application of an alternative punishment tions that supposedly took place (that is part dad case. Nº 2) and the and punished many infractions and crimes was not to evaluate Mr. In the CC’s decision native punishment for at least a year. petition by rejecting the challenge against MAJOR CASES most of the rules except that of Article 196 The CC declared the inapplicability of the ter. confirms Penal de San Antonio) found that Mr.” a statute that se. and unfair punishment. a company that was operating an Court of Appeals (Corte de Apelaciones de (the SVS). taken together. Ambiente de la Región del Libertador Gen- The “Cascadas” case (STC 2922) eral Bernardo O’Higgins) sanctioned Col- During the process before the Valparaíso’s According to the Chilean financial regulator hue S. Rojas. fine in an objective way. along with the next one. Rojas’ behavior or right to a fair and rational administrative pro- with severity. was guilty peals followed the CC’s ruling and allowed the power of administrative agencies to pe- of crashing and killing the victim after disre. it is justifiable. and refused to take a medical application of constitutional standards in A Chilean environmental agency (the so- exam to determine if he was under the influ. the CC did not criticize the new legis. as a result. To postpone a fine. Rojas not to fulfill its punishment in nalize private actors. of the civil judge’s jurisdiction. attracted the attention of the media. The CC and. Rojas prison.The idea of constitutional dialogue has been punishment for Mr. lative penalization in abstract terms. this is the first spend at least a year in prison. un- Law in 2014. as it did not establish suffi- who died because of a car crash by an im.. The questioned legal provision is to Mr. Rojas’s dure. This severity triggered a number of stead. 14 During the Valparaíso Court of Appeals process. Rojas. prose.A. that was declared inapplicable to sanction landmark ruling.” Moreover. The rule cutors and criminal judges have investigated important to point out that the case’s issue infringed equality (Article 19. high-profile financial scandal that took place infractions against environmental regula- tition to the CC and challenged a set of rules in Chile in 2014. the constitu. in practice allowing to push for bipartisan approval of the Emilia ed the CC to reaffirm that impaired drivers the agency to establish an unreasonable. The decision was politically incorrect. and reaffirms the interpretative driver has spent a year in jail. on for a year. Colhue filed an administrative petition that. The case is still pending a tions. Rojas. Under the Emilia Law. The CC did not question legal viola- The “Emilia Law” case was an inaplicabili. This this rule. One of the discussing). which is to help the constitutionality of the possible application (under the influence of alcohol) who crash individual to be reincorporated to society. Rojas’s defender filed a pe. The CC decided to partially grant Mr. deviates from the goal of the cannot address that issue). for five Valparaíso). judge has not yet released a final decision). SXQLVKPHQWV²HJ D MXGLFLDO DXWKRUL]DWLRQ tions using a rule that allows the agency to lative practices (in this case. should be treated severely. criminal law cases. The Valparaíso Court decided the case in January 2017. businessmen involved filed a legal action authority of the CC over the Constitution and against the agency and. The criminal court (the Tribunal Oral en lo This case. public cient standards to calculate the amount of the paired driver. According to shares to acquire the control of a group of time that a court explicitly invokes it. against the Emilia Law. the businessmen involved. the “Cascadas case” dealt with a organic waste management center. Thus. brought the case to the CC. and it proportionality. The argued that said rule violated the principle of name of the statute is due to Emilia Silva. the Valparaíso’s Court of Ap. kill or injure a person. all of which expect. Nº 3).13 and other cases in the past also driver who crashes and kills the victim should pyramid scheme to illicitly trade companies’ connect to this idea. Mr. Mr. called Comisión de Evaluación del Medio ence of alcohol. and the CC part of the “Emilia Law. rules (Article 196 ter) stated that an impaired clared that a group of people used a form of ademics. within that proce- the consequential character of the CC itself. Consequently. However. the case did not help the victim. 50 | I•CONnect-Clough Center . garding a “stop signal. Mr. In. From a legal perspective. a consistent jurisprudence that aims to limit the defendant in the criminal case. avoided informing contributed to a better understanding of the The “Colhue 2” case (STC 2946) the authorities. ‘La Discusión Democrática Sobre La Revisión Judicial de Las Leyes. the CC signaled its doctrine in a that person fulfills the general requirements. The SVS de- discussed before among some Chilean ac. However. Her death was publicly used opinion and politicians. the legal issue was whether a person decides that there were legal violations (that due process and proportionality allegations should be prevented from pursuing an alter. and to make him stay in pris. the defender asked the Court to void the criminal court’s decision (recurso de nulidad). WR OHDYH SULVRQ GXULQJ GD\WLPH²VKRXOG EH establish a fine that could get to 30% of the tional reform that the Congress is currently postponed and cannot be applied before the value of the irregular operation. The CC declared that that provision was rule allowing the agency to establish such The “Emilia Law” case (STC 2983) disproportionate and unequal. of the rule that establishes the fine. all pertinent benefits or alternative corporations. even if that judge would not be able to use the rule (STC 2983). Diseño Institucional Y Modelos Consti- tucionales’ (2013) 40 Revista Chilena de Derecho 181. If the civil judge attention. cedure (Article 19. sometimes under high media to judge the severity of the punishment.

If the rules regulating CONCLUSION the procedure were declared unconstitutional by the CC. In this report. the constitu- precision. an increasingly consequential actor in the Chilean constitutional system. The first case The CC declared that the challenged legal shows how the CC can affect an important provision did not sufficiently describe the be. In the three cases.legislative reform in a politically complex havior to be penalized by the administrative scenario while the second is an example agency. Thus. The challenged legal provisions and orders not to apply them rule violated the due process elements of to the specific case. and provides asked the CC to declare that the rules gov. Although the Rancagua Court of Appeals has not yet released a final decision on this case. some specific criteria regarding the tipicidad erning the administrative procedure that led and proportionality principles. Ac- the illegal behavior and the penalty with cording to the CC’s doctrine. to the fine be inapplicable because they vio- lated the Constitution. Nº 3) using its ius puniendi (the power to punish) that requires legislative statutes to describe in a way that violates the Constitution. The CC’s inappli- administrative and judicial actions were re. a maximum. cability decision is important because it con- jected. then the Rancagua Court of Ap. the agency could use its power to establish fines in an unpredictable In the other three cases. during the appeal process. the distinction between criminal law and administrative law is not relevant.the case to the corresponding court. Tipicidad is a state tries to punish an individual (or a firm) constitutional requirement (Article 19. legislative practices) reaffirms the CC’s in- Moreover.tional limits of the ius puniendi do not only ly avoid committing an infraction. but the CC has ing fines. This lack of precision allowed the of “constitutional dialogue” in its Chilean agency to qualify as an infraction a behav. The Constitution’s purpose is to protect individuals against the state’s power to punish (potestas puniendi or ius puniendi) and. and how that idea (which includes ior Colhue could not predict that was illegal. Both the to justify its final decision. we have shown five selected peals would not be able to use those rules to cases that illustrate how the CC is becoming decide the case against Colhue. the CC challenges and disproportionate way. its jurisdiction would be limited by the CC’s ruling because it would not be able to use the legal provision declared inapplicable 2016 Global Review of Constitutional Law | 51 . so that individuals can effective.constitutional dialogue is probably the most ing a criterion for calculating the amount of interesting case for scholars working on PRQH\ WR EH SDLG²WKH UXOH RQO\ FRQWDLQHG comparative constitutional law.version. Colhue appealed to the Rancagua’s firms that administrative regulations should Court of Appeals (Corte de Apelaciones de follow the requirements that the Constitution Rancagua) and. establishes for criminal law. the challenged rule authorized the terpretative authority.also against administrative agencies impos- ment for criminal statutes. extended this requirement for administrative regulations that aim to penalize individuals with fines. Tipicidad operate against the state in criminal cases but is traditionally considered to be a require. the tipicidad and proportionality. The case regarding agency to establish a fine without provid. in this regard.

Paraskeva. 6 Kombos. has the same status and protection as judges litical compromise between the Greek and of the Supreme Court itself. 2015). University of Cyprus. Cyprus DEVELOPMENTS IN CYPRIOT CONSTITUTIONAL LAW Constantinos Kombos.1. Polyviou. Kombos. 2015). 173-238. The classic distinction the content of constitutional norms on the between “Constitution” and “constitutional 1 A. 1980). 3 P. procedure. THE CONSTITUTION AND The year 2016 was no exception. 2013). tion of constitutional provisions enabling the taneously reflective of and respondive to the dismissal of an independent officer of the structural uneasiness2 in our constitutional Republic. 1969).1.6 The retort to law cult balancing exercise given the broadness of necessity remains the underlying theme of and the potential force of the law of necessi- much constitutional adjudication concerning ty that has nonetheless been placed within a both the functioning of State organs and the constitutional State rather than outside. 7 See Kombos. 5 See The A-G of the Republic v. 1998). Cyprus: Constitutionalism and Crisis Government (Universi- ty of Pennsylvania Press. for guarding constitutional law as it is formulat- example. The New Commonwealth and Its Constitutions (London. Law Department. as a device to enable the creation ed under the law of necessity. 2015). and content of. Polyviou. Polyviou. 4 On the historical aspect see S. The Court for a time examined the applica- Cypriot constitutional law1 has been simul. C. therefore. It is useful to first undertake a brief exegesis ment of the administrative court. supra n. 216-228. Tornaritis. P. 2nd ed. Cyprus and Its Constitutional and Other Problems (Nicosia. A Study in Constitutional Survival (Nicosia. the Court examined issues relating to Republic of Cyprus. De Smith.C. of Cypriot constitutional law is to realize the The Supreme Court has offered scholars deep and continuous presence of the Rule of some paramount examples of the application Law and the judicial commitment in safe- of the law of necessity over the years. the Deputy Attorney-General. Turkish Cypriot communities. Cyprus: The Tragedy and the Challenge (Washington. cation of the law of necessity when it comes stitutional adjudication in Cyprus. Cyprus. The Su. Stevens. pp. That is a diffi- of constitutional organs. The Doc- trine of Necessity in Constitutional Law (Sakkoulas. C. 52 | I•CONnect-Clough Center . C.: American Hellenic Institute. to State organs. INTRODUCTION right to privacy and separation of powers. Loizou. Cypriot Constitutional Law: Fundamental Rights and Freedoms (Nomiki Vivliothiki. 5-26. must be considered in terms unique to the The key to understanding this idiosyncrasy anomalous situation that emerged after 1964. supra n. Cyprus on the Edge. 1975). D. The Constitution of the Republic of Cyprus (Nicosia. the Supreme Court has provided a leeway for This report argues that issues of constitution- CYPRUS the continuing existence of a functional State al law remain directly connected to the appli- on the basis of the law of necessity. p. Mustafa Ibrahim [1964] CLR 195. Polyviou. See P. 6. supra n. who arrangements after the collapse3 of the po. pp. 284.A..7 content of constitutional norms. Ibrahim: The Doc- trine of Necessity and the Republic of Cyprus (Nicosia. At the same of the development of the legal order of the time.5 Con. THE COURT preme Court has revisited such fundamental structural issues as the form of the establish. S. pp. 2 Described by De Smith as being conceived “by a constitutionalist and a mathematician in nightmarish dialogue”: S. 1964). La justice constitutionnelle à Chypre (Economica. Papasavvas.4 Since 1964. Kyriakides. Associate Professor of Public Law. 2001).

” in A. vetoed by the required separate Turkish-Cy. and a existential dilemma was created. The but in Annex III there is a list of 48 articles ish-Cypriot judges. they include every article the form of a rigid bi-communalism that un. Krispi and A. thus rendering the executive. the Supreme Con. 284. It created an independent State. ing of competences was accompanied by an detailed. 341. To priot majority in the House of Representa.11 taking any decision whatsoever. The dead- The Constitution of the Republic of Cyprus derpins the vast majority of the provisions lock led President Makarios to propose 13 was at one time the source of problems that of the Constitution ranging from the actual amendments to the Constitution that were paralyzed the State. composed of two since the majority rule could not apply. by the House of Representatives in the ab- nance at all levels and in every instance.1. tional amendment impossible and excluded sion in the case of Cyprus. the amendment process visions) Law 1964 (Law 33/64). pp. 1. the constitutional arrangements”10 that take eternal clauses. foreign judges and a vast majority of Turk- ensure that the status quo remains intact. 81- 113. Greek Cypriots. Constantinides. ber Court. human right. The Cypriot Problem in Evolution (Athens: Sakkoulas 2010). formed independent State were wholly de. as a corol- bolic status. tection from discriminatory taxation of the The decision in Mustafa Ibrahim then had as en extraordinary powers of intervention in minority.J. Mustafa Ibrahim [1964] CLR 195. sence of Turkish-Cypriots members. De Smith. constitutional amendment was alteration of the composition formula. which was three members. to the High Court entrusted with the appel. p.14 Their merg- Constitution-making process was a lengthy. 1964). are essentially sustained the Constitution since 1964. that of property). 12 Emphasis added. supra n. division of competences to the structure of rejected by Turkey. pp. The right of self-determination 133(1)) that would cast the deciding vote. 14 See articles 133-165 Constitution. Kombos. the formation of the independent was severely restricted. presiding non-Cypriot judge with two votes lary: to follow the letter of the Constitution in cases of deadlock (article 153(1)). or to resort to the only constitutional alter- The Cypriot Constitution was designed to native that would enable the functioning of serve as a compromise between the two com. led to the intro- trenched in a manner and scale that would reached when the State budget was in effect duction of legislation (Law 33/64) adopted ensure their effective participation in gover. Stavsky. embedded in bi-communalism. 54-66. paralysis. and Great Britain) were giv. See Tor- naritis. possible through a separate community 2/3 new Supreme Court was to consist of only tected bi-communalism and an encumbered majority in the House of Representatives Cypriot judges. the Supreme Court. dangerous for where the rights of the minority were en. 2016 Global Review of Constitutional Law | 53 . 9 M.A. frontation between the two communities. An fundamental functional attributes: its sym. “The Judiciary in Federal Systems. the three interested States tives for reasons other than the intended pro- (Greece. The New Commonwealth and Its Constitutions (London. formed: the Constitution became a tool to ministration of Justice (Miscellaneous Pro- paralyze the State. and a presiding non-Cypriot (article legislative. A perfect constitutional storm had its backdrop the constitutionality of the Ad- case of an arrant constitutional anomaly. of the people and in the physical absence stitutional Court was to be composed of the Turkish-Cypriots withdrew from the of the legally responsible entity. This development. After a period of tension and armed con- cided by Greece and Turkey in the absence In terms of the judiciary. supra n. The result of the permanency of the system that the three for. The apogee of the difficulties was the survival of the Republic. a Turkish Cypriot. From the very beginning. Stevens. and judicial branch incapable of Kingdom). only article 23 relates to a fundamental light of the law of necessity for a full picture. a Turkish Cypriot. p. and permanent Constitution Specifically. since there could be lation merged two constitutionally provided State was designed with a dangerous under. Cyprus faced the danger of constitutional reached. This pathology late jurisdiction over civil and criminal mat. political decision-making process of the is. attain this objective. resorting to the people’s pouvoir constituent removed from the Constitution one of its ters (articles 155 and 156). pp.”9 yet “a communal distrust permeates visions. 11 C. rigid. eign guarantor States were tasked to ensure. and there was always the Court and High Court) into a new five-mem- functionality (or lack of it). The emerg- and more importantly the right to exercise The same institutional “logic” also applied ing cul-de-sac finally made any constitu- primary constitutive power found no expres. Note that the amendment proposals were just invitation to negotiation and were not a unilateral act of imposed amendment.law” is especially relevant to Cyprus because Constitution “attempted to ensure that both that cannot be amended (out of 199 in to- the 1960 Constitution must be read in the communities would participate fully in the tal. The that has two principles at its epicenter: pro. for appellate courts (Supreme Constitutional estimation about the stability of its nature and ty rule excluded. 67-73. 13 The A-G of the Republic v. no recourse to the people with the majori. at that moment the colonial power (United Cypriot. of a crucial bulk. given the withdrawal of the system of multiple checks and balances to pursuant to article 182 of the Constitution. These pro- The law of necessity offers the pillar that has land. 10 S.13 The legis- Moreover. Turkey.8 The process of decolo. the Republic of the State until a political compromise was munities.12 nization and the transfer of power to a newly the State. 356. a Greek government. “The Doctrine of State Necessity in Pakistan” (1983) 16 Cornell Int’l L. 8 Tornaritis.

supra n. 19 The conduct suspect of corruption was found by an independent criminal investigator.” unavoidable need or exceptional threat to al defects.22 The pendent officer of the Republic. The application for the dismissal need. 17 Application by Attorney-General for the Dismissal of Deputy Attorney-General. the legality of such measures is subject whether a procedure for dismissal followed in a press conference. used as a measure of last constitutional resort that it was the Attorney-General who acted preme Constitutional Court invoked in the and as such only in extreme circumstances.HaL[[LVU 23 Application by Attorney-General for the Dismissal of Deputy Attorney-General. Therefore. fore the Court by the Attorney-General. yet the de. Application 1/2016. but intense scrutiny. Namely. Note that these provisions refer to the High Court that was substituted. Attorney-General (2003) 3 CLR 115. by the new Supreme Court through The Administration of Justice (Miscellaneous Provisions) Law 1964 (Law 33/64). in his to judicial scrutiny. a declaration of a state had been applied in at least one case in the VERSIES IN 2016 of emergency provided for in article 183 of past. which with the situation. the broader findings converged on sity is present every time that the Supreme tutional protection identical to that afforded the following points: the Constitution did Court exercises its jurisdiction and can be to judges of the High Court was brought be- not expect a constitutional crisis that could further inherent in the nature of a case. 19/9/2006) where the Court applied Procedural Regulation no. obliged to give a ruling and absence of the regulation. Constitution.20 al- endangered the existence of the State. for a constitutional crisis that was unprece- In their separate concurring opinions. idence. 22 Procedural Regulation regarding the jurisdiction of the Supreme Council of 20/5/2015W\ISPZOLKPU[OL6ɉJPHS. pp. thus though there was a procedural regulation for lacking any provisions to effectively deal DEVELOPMENTS AND CONTRO. and the burden of proof criminal or administrative law burden of remarks.21 The Court issued a procedural regu- the Constitution would not have sufficed to lation just after the application for dismissal The Supreme Court for the first time ex- address the problematic situation. 24 Ibid.15 In an attempt to summarize the three take place. Application by Andreas Tryfwn- os. as was the Supreme Constitutional Court. which amined the application of the constitutional ployment of the law of necessity was a prod. was also to regulate all pending applications provisions enabling the dismissal of an inde- uct of the imposed and rigid Constitution. which had been impossible to function measures adopted are proportionate to the of the key term “misconduct” and decide on since 1964. This saga provided the background to justify the establishment of the new court.1. in a corrupt manner. The discrepancies and the Greek and the Turkish judge of the sity include: the existence of an urgent and were not deemed to be substantive procedur- Supreme Constitutional Court as members. Mustafa Ibrahim [1964] CLR 195. namely the the law of necessity was thereby integral to Court held that retroactivity in this instance Deputy Attorney-General. prerequisites for such a procedure. the law of necessity was of affected. 18 Articles 112 & 153. the dismissal of lower court judges. 24th September 2015. 16 For full analysis see Kombos. dismissal of a public official enjoying consti- opinions. 21 There was a previous instance where a judge of the Industrial Disputes Tribunal had been dismissed (Case Kamenou. The Deputy. for the dismissal of public officials. the Second.The three Greek Cypriot members of the Su. 201-2. therefore. the Court had to provide a definition cil. he made accusations to the effect public office and it means “behavior that is 15 The A-G of the Republic v.19 of necessity. and the Court could have regulated Supreme Court. Application 1/2015. The Court held that misconduct in- inal investigation into alleged corruption.3 of 2003 that related to the dismissal proceedings against judges of the lower courts.24 It became apparent that the law of necessity the existence of the State that can be objec- applied to reformulate the relevant Coun- tively established. against the Deputy Attorney-General. 20 (WYL]PV\ZHWWSPJH[PVU^HZÄSLKI`HUPUKP]PK\HSHNHPUZ[[OL[OLU([[VYUL`.LULYHSHUK^HZKPZTPZZLKI`[OL:\WYLTL*V\Y[VUWYVJLK\YHSNYV\UKZ UHTLS`LYYVULV\ZÄSPUNVM[OLHWWSPJH[PVUHUKSHJRVMHZWLJPÄJWYVJLK\YHSYLN\SH[PVU!Papasavvas v. and the Court the matter in an ad hoc manner even in the this case required that a “judge of the High was.23 It also held that Court may be dismissed on the ground of could not deny exercise of its jurisdiction. no other alternative. without producing ev- Ibrahim judgment the doctrine of necessity The doctrine demands a narrow judicial ap. 54 | I•CONnect-Clough Center .17 Such an official the Constitution. the deployed measures are temporary the burden of proof and the required legal from office was filed by the Attorney-Gen- and apply for as long as the emergency ex. the dented in Cyprus. proach. be fatal to the process. judges highlighted the extant emergency in It is within this context that any analysis of Cyprus and the threat to the survival of the constitutional developments in Cyprus must It was the first time that an application for the State. 27th May 2015 (intermediate decision).16 the lack of compliance of the filed applica- misconduct” by a special composition of “a tion with the now established procedure in Council consisting of the President of the The decision in Ibrahim had established terms of relevant documentation could not Supreme Constitutional Court as Chairman that the requirements for the law of neces. Application 1/2015. pp.18 The provisions relevant to an intra-constitutional nature. dismissed the initiation of a crim- is placed on the side invoking the doctrine proof. implied in article 179 that was for the benefit of the Deputy Attor- enjoys the status and constitutional protec- designates the Constitution as the supreme ney-General since his legal rights were not tion identical to that afforded to judges of the source of law. 30th January 2017. the doctrine is to be cludes actions outside the exercise of the Moreover. considering that the law of neces. 151-72. eral against the Deputy after his statements ists.

The only available and whether the Supreme and Administra. and binding EU law obli. in the form mediate dismissal of the Deputy office. therefore the use of the primary vidual who filed an application for the dis. trade. and business and terest. so reprehensible that is. The procedure is disciplinary in under article 146 of the Constitution for the on all matters under article 61 of the Consti- nature and not within the realm of criminal Supreme Constitutional Court. Needless to say. un. accountable. The be on the person filing the application and jurisdiction on the basis of the law of necessi. of secondary legislation issued by the execu- subsequently and in separate criminal pro.32 the House of The regulations do not require Presidential decision in 2016 in a case of a private indi. The Adminis.26 B ut the latter Court caused concerns: whether is diffused and implied in the Constitution. legislation must be compatible with law.27 cerning a challenge to primary and second. (/DZV  ǿ. tive Courts are compatible. as to make ter dictum that the President of the Republic to the Supreme Court for a review pursuant the person who is accountable for this. sion also impacts the rationale of the law of sentatives rejected regulations. The Court gations necessitated the establishment of the tive branch. acted in a totally inappropriate manner that is suspect because there were arguably other amounted to misconduct under article 153 of solutions available to a backlog. executive branch rather than in the legisla- mediate dismissal from office. The reason was that the nature of the the discretion available to the Court. The Court able to continue to perform the duties of his tion so that the Attorney-General is legally considered the case in relation to the princi- office or creates reasonable doubts to others.contest of power or competence between the ary legislation regulating Sunday trading House of Representatives and the President.31 In the first case. As an aside. therefore. tive.course in any matter relating to a conflict or the Supreme Court. The deci. fairness and for the public in. there was also a Supreme Court hours. The Supreme Court also considered two 139 of the Constitution relating to the re- tence that is now a matter of appeal before of separation of powers cases in 2016 con. which limits trative Court held that the law of necessity tive. It held continues to apply. as to the suitability of and 28 of the Constitution that guarantee the the person to exercise the duties of the office MAJOR CASES right to practice any profession or to carry with honesty. The Court.”25 The burden of proof was found to The Supreme Court exercised administrative the principle of equality. a criminal court found him guilty Separation of Powers Sundays. as such pertained exclusively to the execu- to the principle of proportionality. and necessity. found the concluded the Deputy Attorney-General new Court. therefore the element of mens rea does tablishment of the Administrative Court. Supreme Court held that although the legis- the criterion for establishing misconduct was ty and through Law 33/64 that was preserved lature has the exclusive authority to legislate objective. action applicable in individualized cases and result of intense judicial scrutiny and subject istration of justice. the House of Repre- the Constitution. But the heavy workload regulated activity was akin to administrative that any finding of misconduct must be the of the Supreme Court. Immediately afterward. on any occupation. that its content has its center of gravity in the sanction in the event of approval was an im.so bad. the new specialized court is constitutional. The Court ordered an im.29 the principle of separation of powers that not apply. respectively. member’s Bill33 that amended existing legis.procedure that is a reference for examination missal of the Attorney-General from office lation on the matter of Sunday trading hours of constitutionality under article 140 of the on the basis of the newly introduced proce. tution. could have standing to file such an applica.30 The Court focused on the nature of the mat- Third. whether the law of necessity ceased to exist. to article 140 of the Constitution. this reasoning Law unconstitutional. ter regulated by the relevant Law and found miss the application. the Court could only approve or dis. until the es. ple of separation of powers and articles 25 objectively judging. delays in the admin. Representatives passed into law a private signature. which enabled the opening of shops on ceedings. The President made use of article of corruption and imposed a custodial sen.

  ǿ.

  ǿ.

 Constitution was not a constitutionally avail- dural regulation of 2015.28 The Court held DQG ǿ.

the Supreme Court had ruled on the matter as the Constitution does not provide for pri. The Court stated in obi. 33 Law on the Regulation of the Shops (amending) (no. 29 8th Amendment of the Constitution (Law 130(I)/2015). Application 1/2016. The effect of the Law was able option. 27 Case Number 9208/15. 31 President of the Republic v. 26 Ibid. 30 Charalambides et al. Case 1695/2015. 28 Application by Andreas Tryfwnos.4) of 2015. Application 1/2015. Republic (Case 1814/12). The President separation of powers. 8th February 2017. 28th March 2016. 30th January 2017. 24th September 2015 (decision on the merits). v. less they could satisfy requirements on the in Reference 1/2015 and found that the leg- vate applications and any interpretation to basis of location. The argument was that since that the applicant did not have locus standi that shops remained closed on Sundays un. 2016 Global Review of Constitutional Law | 55 .). of actio popularis. 8th October 2016 (Administrative Court). House of Representatives. and islature acted in breach of the principle of that effect would amount to an introduction type of commercial activity. the size of a shop. Reference 01/2015. House of Representatives. of the Republic referred the Law in question the legislature was preempted from rejecting 25 Application by Attorney-General for the Dismissal of Deputy Attorney-General. then as a corollary. 3rd December 2015. 32 President of the Republic v. Erotokritou et al.

In 2016. ly as regards the definition of the content of ted after the deadline of the thirty days that fundamental rights. The right to privacy is protected in Cy. constitutional law remains either directly or ings for exercising the profession of real indirectly the product of a constitutionally estate agent without a license. primarily concerned general application of prus under article 15 of the Constitution and the Constitution in economically “neutral” article 8 of the ECHR. including pay cuts and the lature rejects. The outcome is that the issue of Sunday trad. bail-in for all unsecured deposits in the two main Cypriot commercial banks. Put differently. subject to the qualification that Cypriot prosecuting authority in criminal proceed. the Court rejected the applica. The case concerned issues. the long tradition of openness and “catholic- Nonetheless. the Supreme Court examined tence and the executive can only intervene numerous issues directly related to the eco- through secondary legislation that the legis. ity”36 of the Cypriot legal system especial- tion by the President because it was submit. Human Rights constitutional adjudication in Cyprus seems The Supreme Court further examined a to have returned to normality with the Court criminal appeal involving the right to priva. in violation abnormal context due to the doctrine of ne- of /DZ ǿ.35 thus confirming on the matter of shopping hours on Sundays.secondary legislation in which the will of the :KDW LV LQWHUHVWLQJ LQ WKLV FDVH LV WKDW WKH executive on the same matter. This return to normality is. nomic crisis. howev- an alleged entrapment of the accused by the er. Before 2016. CONCLUSION ing remains to date without regulation given the fact that the legislature has no compe. having to examine constitutional matters that cy. Court reached the preceding conclusions af- the legislature was preempted from interfer.37 the Constitution requires in article 139 (4). ter discussing in detail numerous decisions ing with the exercise of the executive power from other jurisdictions.

39647/98 ˁʸˀ 40461/98.R. 8th July 2016. 34 A representative of the cessity.12.ac. The framework for consti- purchasing an apartment. tutional adjudication has been defined. Saun- ders v. The Court held that such actions did not amount to entrapment given the fact that the criminal offense was already adequately proved by the maintenance of a professional establish- ment that advertised the offering of services of real estate agency. remains to be seen how the Courts will react.\YVWL¹Hamlyn Lecture 27/11/2013.uk/hrlc/documents/specialevents/laws-lj-speech-hamlyn-lecture-2013. gave a false name. 195. sequently revealed that he was there to in- vestigate complaints against the accused for violation of the relevant legislation. cerning the principle of separation of powers sentative indicated that he was interested in in the year 2017. 56 | I•CONnect-Clough Center . p.nottingham. The right to privacy includes professional premises but is limited by the public interest to prevent crime pro- vided that any such action is proportionate. and only sub. Niemietz v.pdf.R. 897. Appl. The Supreme Court will an employee approached him and asked if soon deliver judgment in 12 references con- he could offer him assistance. R. The repre. Kombos. pp. Loosely (2001) 4 All E. No. Gammon (Hong Kong) Ltd v. Portugal (1998) 4 BHRC 533.10. Berriman Properties et al. available at http://www. 35 Eight decisions of the ECtHR and English Courts as well as two references to academic writings: Teixeira de Castro v. But adherence to the rule of law and prosecuting authority was standing outside the strict interpretation of the conditions gov- the offices of the accused and looking at erning the application of the law of necessity window advertisements of properties when remain important. Edwards and oth- ers v. 36 +LÄULKHZ¸[OLJHWHJP[`[VKYH^MYVTKPɈLYLU[ZV\YJLZ¹I`3VYK1\Z[PJL3H^Z¸. 2.1992.G. 27. 347. The Impact of EU Law on Cypriot Public Law (Sakkoulas. 2015). Germany.R. 13710/88. 33-46. A.2004.ʬhe Statue of Liberty (1968) 2 All E. (1984) 1 All E. v.. Criminal Appeal 127/14. 16.OL*VTTVU3H^HUK. and it did not disclose his identity. 34 Cyprus Real Estate Agents Association v. 37 C. The UK. Application No. United Kingdom [1997] 23 EHRR 313. 1-6.

It also reviews WKH ¿UVW FRQVWLWXWLRQDO FRXUW DV D VROH VSH. Czech Republic DEVELOPMENTS IN CZECH CONSTITUTIONAL LAW Martin Kopa. ØZ[H]UxZV\KǕLZRVZSV]LUZRtYLW\ISPR`HQLOVVZ\K`] letech 1920-1948 (Constitutional Court of the Czechoslovak Republic and its fortunes in years 1920- 1948)=`KH]H[LSZ[]xHUHRSHKH[LSZ[]x(SLúǕLUȓRH]HPSHISLH[<ZV\KJa¸*VUZ[P[\[PVUHSJV\Y[VM the Czechoslovak republic and its fortunes in years 1920-1948” (Usoud. when the Federal Constitutional just the case-law of the Court that mattered. But it did not There were controversies of constitution. Both Austrians and Czechs like to argue WKDW WKHLU FRQVWLWXWLRQDO FRXUW ZDV WKH ¿UVW Does the Court have the power to annul one.cz. scholars are not in total agreement on this stitution of 29 February 1920 which. Maxim Tomoszek.usoud. which than the Czechoslovak one. Czechs were constitutional statutes? Constitutional ¿UVWRQSDSHU. Sadly. There- fore. Olomouc. Both cases concerned the Lisbon Treaty. which came into force on 1 Janu- draft bill to constitutionally acknowledge ary 1993. Assistant Professor at the Law Faculty of Palacký University. Both constitutional tutional Court had been interrupted during scholars and the general public impatiently the Nazi occupation of our country and sub- DZDLWHGVHYHUDORIWKH&RXUW¶VGHFLVLRQV:H VHTXHQWFRPPXQLVWUHJLPH:HKDGWRZDLW analyze four of them below. Assistant Professor at the Law Faculty of Palacký University. sub-statutory regulations. it came as no surprise that it included a THE CONSTITUTION AND THE strong constitutional court. al relevance which became points of wide it was clear that Czechs and Slovaks would SXEOLF GHEDWH :H FKRVH RQH RI WKHP IRU “get divorced” peacefully.cz/ en/constitutional-court-of-the-czechoslovak-republic-and-its-fortunes-in-years-1920-1948/ accessed 8 January 2017. 1920 Czechoslovak Constitution in terms of values and constitutional traditions. petence concerns treaties before their rat- tution? There is a dispute on the correct an. L¿FDWLRQ 7KH &RXUW KDG DQ RSSRUWXQLW\ WR swer to this question between Austria and exercise this competence twice in the past. Both are right in a way. last long because. 2015) http://www. Olo- PRXFDQG=GHQČNýHUYtQHN-XQLRU/HFWXUHUDQG'RFWRUDO5HVHDUFKHUDWWKH/DZ)DFXOW\ of Palacký University INTRODUCTION ¿UVWFRQVWLWXWLRQLQWKHZRUOGHVWDEOLVKHGD constitutional court in the meaning speci- Last year was constitutionally rich in the ¿HGDERYH%XWWKH$XVWULDQ&RQVWLWXWLRQDO CZECH REPUBLIC Czech Republic.WZDVWKH&]HFKRVORYDN&RQ. of 1 October 1920 started working earlier al Court (hereinafter “the Court”). as the 1 See English excerpts from Tomáš Langášek. The process of gradual Court founded by the Austrian Constitution replacement of Justices of the Constitution. COURT The Court has the power to review the con- :KHUH LQ WKH ZRUOG KDYH WKH\ HVWDEOLVKHG stitutionality of statutes. But it was not until 1992. the work of the Czechoslovak Consti- ed by President Zeman. Court started working again. at the end of that year. is regarded as a follow-up to the the people’s right to bear arms. was completed and thus all current Justices have been appoint. The Czech Con- further analysis in part III of this report: a stitution. The Court’s third cialized judicial institution to review laws important review-of-constitutionality com- vis-à-vis their conformity with the consti.1 lasted for several years. countries of the former Czechoslovakia. 2016 Global Review of Constitutional Law | 57 .

For- form of constitutional transition since the ing the provisions contained in the Consti.topic. In 2016. of Prime Minister Rusnok against a count- al amendments. The Court observed.OLJV\Y[VM[OLÄYZ[PUZ[HUJLHUK[OLHWWLSSH[LJV\Y[ZVMHYJVUJS\KLK[OH[[OLZ[H[LPZSPHISLMVYZWLLJOTHKLI`[OL7YLZPKLU[PUOPZVɉJPHSJHWHJP[`. In the Court’s This change was criticized by many consti- concerned the executive.” yet. the Government is the highest body of the This case led to many questions concerning sions of ordinary courts and return the case executive power. The current Presi- One more controversy we would like to the Constitution entrusted the Court with dent “stretches” his competences in con- PHQWLRQ EULHÀ\ FRQFHUQV RXU 0LQLVWHU RI necessary competences. calling him “a gentleman. that troversies linked to the way the presidential One certainly cannot argue that there was this statute did not satisfy the necessary cri. The absolute majority of them erally applicable rule of law. And it enacted stitution was amended. rather typical parliamentary form of gov. the Court.e. Petr Pithart was right. a constitutional one. But in 2012. in our constitutional system. who needs to appeal to mation of the President.cz/archiv_textu_detail. He happens to be a constitutional actor. More than 60 deputies came the self-governing regions against unlawful QRW¿WWKHH[SHFWDWLRQVUHODWHGWRDGLUHFWO\ up with a draft bill to re-criminalize defa- interferences of the state with its right to elected President.” In these cases. the Court found hand and Parliament and Government on the 20th century. making it a key tradiction with their meaning and purpose Finance Andrej Babiš. counts on the Court to be an effective pro. And luckily. The absolute majority of the Court’s work fact that the Czech Republic is a parliamen- covers decision-making on individual con.2 Given the Government and the President. including not “exploded. to resolve certain elector. does the President. this “statute” amounted to a one-time tutional lawyers as non-systemic and desta- argue that the executive has been in the “rupture” in the Constitution. This. it keeps ties. the stitutional complaints.pithart.5. etc. simply put. 58 | I•CONnect-Clough Center . creates tensions (similar to so-called co- amation case because he said publicly that over. however. For that reason. enced by Poland and Hungary. had to annul it. ÚS 27/09 of 10. On average. former President of the Parliament’s Senate the President. The Constitution itself says that Adolf Hitler. 3 .). ant President’s actions within the executive PHQWV:KRVKRXOGEHOLDEOHLQVXFKFDVHV power must be countersigned by the Prime the President himself or the state?3 There In addition to these oft-used competences. the dissolution of the House. introducing direct a constitutional statute by which it shortened election of the President. the Court strong legitimacy deriving from the people President became a defendant in a civil def- receives 4.OL case is pending before the Supreme Court. voters and to achieve political goals set by tion whether this draft bill goes against our al matters.!:LT[L_PU[OL)LKYVJR+PYLJ[. circumvent. This resulted 2 7L[Y7P[OHY[¸:LT[L_WVSVüLUûKVamRSHKȽ7ȱxTm]VSIHWYLaPKLU[HHQLQxYPaPRH]ȏLZRtTWYVZ[ȱLKx. the other. The presidency of Miloš Zeman proves tector of constitutionality.g. It was an ad DV ORQJ DV LW UHWDLQV WKH FRQ¿GHQFH RI WKH fessorship. e. And both it has suffered lately. The Parliament did not intend to follow members of the Parliament’s Senate) used GHÀHFWLQJWKHGHPRFUDWLFEDFNVOLGHH[SHUL- the constitutionally foreseen mechanism on to elect the President. More. election was carried out in the Parliament. whose task is Petr Pithart once wrote that the direct elec- demonstrated this “off-stage transition. a change. The Court had to address ernment with the slightly stronger role of er-majority in the Parliament which led to this issue only once so far. no constitutional controversy to speak of teria to qualify as a statute. the Constitution has ¿IWKHOHFWRUDOSHULRGRIWKH+RXVHRI'HSX. not setting a gen- in 2016. It is the classic dilemma of what to The Constitution originally established a LQ VHYHUDO SROLWLFDO FRQÀLFWV DSSRLQWPHQW do in case of unconstitutional constitution. no persuasive constitutional reason for such CONTROVERSIES IN 2016 WLHVGLVDJUHHGDQG¿OHGDFRQVWLWXWLRQDOFRP. it derogated a statute which was. 9. providing the President with Just to name some of the controversies. tary republic. the 15-member Court had managed to habitation known from other constitutional the late Ferdinand Peroutka. in Parliament. Pl. bilizing for the constitutional system. One might even view. One might ques- self-government. constitutional traditions in the protection of of the President. That is why most import- the liability of the President for false state- to them for a new decision. houses of the Parliament (i.000 of them every year. Minister or a member of the Government was another controversy closely related to the Court has several others.cz. Despite the “scratches” hoc constitutional statute on shortening the Parliament’s House of Deputies. 20 February 2012) http://www. tion of the President is like “semtex” put in VKDSLQJUROHVRINH\H[HFXWLYHSOD\HUV²WKH the bedrock of our Constitution. it was most likely a result of con- plaint. The Czech Constitution free speech or not.pp?id=518 accessed 27 January 2017. Many of the controversies For these reasons. wrote an article admiring a constitutional violation in nearly 200 cases. or to decide on the impeachment electoral agenda.” re- to protect constitutionality. the Court had to annul deci. mer Prime Minister of Czechoslovakia and 2012 changes concerning the position of tution appropriate for the situation at hand. In the 0HOþiN 3UHVLGHQWWDLORUHGWR¿W9iFODY+DYHO7KH his Government’s failure in a vote of con- case (judgment no. one of the most decide nearly the same number of cases in systems) between the President on the one prominent Czech writers and publicists of the past two years.SLJ[PVUVM[OL President and Its Dangers in Czech Setting)” (Pithart. executive used to be fully dependent on the ¿GHQFH UHMHFWLRQ WR DSSRLQW SURIHVVRUV 2009). The Government can only exist nominated by their universities for pro- its form. to protect designated by him. Since there was DEVELOPMENTS AND LWVDFWXDOWHUPRIRI¿FH%XWRQHRIWKHGHSX. the Con.

security ognize its own version of the “right to bear reasoning to the protection of human dignity.multimillionaire. VWDQFHVXI¿FLHQWO\VHWLQVXEFRQVWLWXWLRQDO vincing. But the Court’s reasoning is not con- in the Constitutional Act on State’s Secu. But the of the major business corporations.g. In these two. their chronological order. Classic criminal law took the possibility to adopt a child away hibits active politicians from owning media concepts of self-defense and emergency for those who entered registered partnership. 2016) vide any foundations for future cases con- have a gun permit to act and protect them. Conditions and details are IV. In accordance with the social need” to introduce such a constitu. 5 AKLUȓRǕLY]xULRHUK4HY[PU2VWH¸*aLJO*VUZ[P[\[PVUHS*V\Y[!*aLJO3H^-VYIPKKPUN9LNPZ[LYLK7HY[ULYZ[V(KVW[*OPSKYLUPZ<UJVUZ[P[\[PVUHS)\[0Z the Judgment *Really* Good News for LGBTQ?” (Int’l J. the Court re.” In the Court’s view. class citizens. health. arms. tion of the Prague Municipal Court for the ent adoption). etc. 2016 Global Review of Constitutional Law | 59 . As we wrote elsewhere. Blog. Constitution? viewed the constitutionality of an enacted life in the case-law of the European Court law. persons living in a registered partnership. children properly. It probably did not intend to pro- more effective for the ordinary citizens who of 14. lives in a registered partnership. tradiction with the understanding of family 2nd Amendment to the U. It accepts that stable relationships of same- on State’s Security? There are no other Discussion of the selected cases follows in sex couples fall within the notion of “family constitutional rights in this act whatsoever. to the EU’s intentions to limit gun rights. And he owns several of The problem with this draft bill is that it The crux of the case was that the Civil Code the most prominent Czech media and one does not seem to be legally necessary. sov.usoud. For these reasons. their companies are the Ministry of Interior intends to address. dict. life. It not eligible for state subsidies). the Ministry of Interior would like the Par. Or of a right. foster care. construct. The law terest (labeled as “Lex Babiš”) which pro. sub-constitutional law already allows what Act explicitly precluded that such a person 3DUOLDPHQWSDVVHGDODZRQFRQÀLFWVRILQ. they habitation emulating the biological parental come up with such a piece of legislation. in our opinion. trench the right to possess and bear arms to stitutional traditions. in sub. And one particular 2016 controversy for further way or the other. law violated the right to human dignity. There is no “pressing protect the country. adoption. ÚS 7/15 case-law. and property. left out. from the enjoyment tion or not. draft bill is consistent with European con. One implied registered partners’ inferiority. The allows adoption by a single person.iconnectblog. the Czech Republic may become this line of argumentation was unexpectedly tect lives. The Court surprisingly twisted the part in securing domestic order. the Court worked with the rity reading: The Citizens of the Czech Re. Pl. It is already.).” The Court made no attempt to make a Ministry of Interior noted that in the wake distinction of the case from the Strasbourg of terrorist attacks in Europe. and limits their ability to engage in business SURYLGH VXI¿FLHQW UHJXODWLRQ IRU WKH FDVHV The Court came to the conclusion that the activities (for example. not vision precluded the adoption of a child to necessarily carried out by security forces.S. are the most relevant from the comparative ties (e. And why have it in the Constitutional Act on individual constitutional complaints. 29 July 2016) http://www. we are The Ministry observed that the possibility annulment of Section 13 (2) of the Act on afraid that the judgment is actually more of a RI¿QLVKLQJDWHUURULVWDWWDFNLVPXFKORZHU Registered Partnership (“the Act”). loss for the LGBTQ community than a win. cerning LGBTQ rights (such as second-par- selves and fellow citizens against terror. criticism.” This U-turn was probably motivated by the ereignty and democratic foundations of the &RXUW¶VFRQVHUYDWLYHGH¿QLWLRQRIIDPLO\. And it made them de facto “second that it might be an easy attempt by the In.com/2016/07/czech-constitutional-court- czech-law-forbidding-registered-partners-to-adopt-children-is-unconstitutional-but-is-the-judgment-really-good-news-for-lgbtq accessed 27 January 2017. Initially. 6. Const L. even an inability to take care of analysis – the idea to constitutionally en. In 2016. Two of them are plenary passages of the judgment are in sharp con- a new constitutional right resembling the judgments. the draft bill remains in right to private and family life in conjunction public have a right to obtain. the family is not a social set by a statute. there should be a new provision tionally protected right. and to take WKH¿UVW(8FRXQWU\WRFRQVWLWXWLRQDOO\UHF. MAJOR CASES the Court’s view.” DVSHFL¿FJURXSRISHRSOHZKRPHUHO\HQWHU such a regulation conforms to the constitu. 4 The full text of the judgment in English is available here: http://www. held in the judgment that the Act excluded often-raised question even in 2017 whether ment in a pretty peaceful “heart of Europe. Nevertheless. law. liament to legislate. It is primarily a biological one .Q Czech Republic. we chose terior Minister to gain political points. And despite heavy with the prohibition of discrimination.QWKLVSDUWRIWKHUHSRUWZHEULHÀ\GLVFXVV covering only the cohabitation of parents This draft bill left many startled. it is much LGBTQ Rights (judgment no. The remaining two are judgments of Human Rights (hereinafter “ECtHR”).5 we endorse the ver- draft bill. It is not easy IRXUPDMRUFDVHVRIWKH&RXUW:HFKRVH with their children. These :K\ DPHQG RXU FRQVWLWXWLRQDO RUGHU ZLWK point of view. In this judgment. This pro. then? Some argue that it might be a reaction registered partnership.cz/en/decisions/20160614-pl-us-715-civil-partnership-as-preclusion-to-individ- ual-adoption-of-a-child/.4 the Court granted the mo. But bear arms and ammunition in order to pro. and protection of territorial integrity. we do not think that this apparently. It will be an :K\ DGRSW VXFK D FRQVWLWXWLRQDO DPHQG. and other forms of co- to grasp what led the Ministry of Interior to these four because. the law From all the possible options. possess and the legislative process. if there is an active and timely defense.

IV. 2. Freedom of Expression of Judges and er hand, expressions of judges concerning thorities should not take account of only the
Their Political Activities (case no. I. ÚS administration and organization of the judi- GLSORPDV RU WKH FHUWL¿FDWHV RI RQH¶V HGXFD-
2617/15 of 5. 9. 2016) ciary enjoy a high level of protection. In this tion they should also consider their practical
The applicant is a judge. He owns a cottage particular case, the Court concluded that the experience. In addition, the Court observed
in a little village. There were municipal elec- applicant failed to observe his duty of discre- that Jagiellonian is the no. 1 law school in
tions, and he entered the pre-election cam- WLRQ,QWKHOHDÀHWVKHH[SOLFLWO\VWDWHGWKDW Poland. And generally, Polish legal educa-
paign. He personally made and distributed KHZDVDMXGJHDQGVSHFL¿FDOO\VXSSRUWHGD tion, including the development of clinical
OHDÀHWVGHVFULELQJKLVSHUVRQDOYLHZRQWKH political party. He strongly entered the pub- legal education there, serves as a “golden
elections, the political parties taking part in lic debate by publishing an article in local standard” for legal education in Europe.
them, and their individual candidates. After media which was linked to his judicial posi-
the elections, he wrote an article in a local tion. Therefore, he actively, openly, and ex- The Court found the perspective of CBA
magazine to address the election results and cessively entered the political competition. to be too narrow. Despite not having been
possible coalition alternatives. He also spec- The Court considered that wrong. It found formally admitted to the Czech Bar, the ap-
ulated who could become the village’s may- no violation of the applicant’s freedom of plicant had practiced law for many years.
or. The President of the Prague Municipal expression. His law degree was a high-quality one. The
Court, where the applicant served as a judge, Court added that it was the business of a le-
¿OHG D GLVFLSOLQDU\ DFWLRQ DJDLQVW KLP$QG IV. 3. Admission of Legal Trainees with gal trainee’s supervisor, whom she hires as
the Disciplinary Chamber of the Supreme Foreign Legal Education to the Bar (case a trainee. It is the Bar exam where a trainee
Administrative Court found that he had en- no. II. ÚS 443/16 of 25. 10. 2016) must prove his knowledge and skills. There-
dangered judicial dignity and abused his The applicant obtained his law degree from fore it was not proportionate to reject the ap-
judicial position to pursue his private inter- Jagiellonian University in Krakow. But he plicant’s registration. The Court found that
ests. But the Disciplinary Chamber did not wanted to practice law in the Czech Repub- the rejection did not meet the criterion of ne-
impose any disciplinary sanction. lic. He requested the Czech Bar Associa- cessity as the second stage of proportionali-
tion (hereinafter “CBA”) to register him in ty assessment. There was one option which
7KHDSSOLFDQW¿OHGDFRQVWLWXWLRQDOFRPSODLQW the register of legal trainees. But the CBA ZRXOG IXO¿OO WKH DLP SXUVXHG E\ WKH &%$
against this decision. He argued that his free- declined to do so. Czech law provides that (safeguarding the quality of legal services),
dom of expression had been breached. The graduates of foreign law schools may be reg- and at the same time, it would be less restric-
Court made it clear that judges do enjoy the istered if 1) their law degree is recognized tive to the applicant’s right: to register him
freedom of expression, but it referred to the as equivalent to the Czech one by the Minis- and let him practice under the supervision of
case-law of ECtHR to stress that judges have try of Education, and 2) the contents and the an attorney-trainer, who would be responsi-
special duties of loyalty and discretion. They scope of their law degree corresponds to a ble for everything the trainee does.
are necessary prerequisites for the proper Czech law degree. In the CBA’s view, the ap-
and effective functioning of the independent plicant did not satisfy the second condition, IV. 4. The Right to Privacy and Access to
and impartial judiciary which enjoys public because he only knew Polish law. Information in Communist Secret Service
trust. Archives (case no. Pl. ÚS 3/14 of 20. 12.
The applicant sued CBA. He requested the 2016)
The Court observed that the duty of discre- Court to order CBA to register him. But even It is an important part of the transition to
tion is important because of our historical the ordinary courts thought that he had no democracy to allow the public access to the
experience with the communist regime. It is right to be registered. Courts did not agree documents produced by law enforcement of
vital for the judges to stay as far away from with the applicant that his right to be admitted the former totalitarian regime. In the Czech
the political competition as possible. Judges to the Czech Bar results from EU law. They Republic, this access is granted by Act on
should comment on politics with restraint. It argued that the case-law of the Court of Jus- Archives (hereinafter “Archive Law”). It
is always necessary to determine whether the tice of the EU (hereinafter “ECJ”) provides provides that, unlike other archive docu-
judge’s expression contradicted the values of member states with a large room to maneuver ments, the access to archives of totalitarian
a democratic legal order. Or whether it vi- in recognition of foreign law degrees. police cannot be prevented by the people
olated the public trust in the independence whose personal data are contained in those
and impartiality of the judiciary. Judges must 7KH DSSOLFDQW ¿OHG D FRQVWLWXWLRQDO FRP- materials. One such person sued the Czech
abide by these rules even in private life. But plaint. The Court ruled in his favor. It found Republic for compensation of immaterial
VSHFL¿F FLUFXPVWDQFHV RI WKHLU H[SUHVVLRQ a violation of the freedom to choose an occu- harm caused by granting access to archive
matter. One needs to be stricter if a judge pation. It is not only theoretical knowledge materials to a journalist. The case arrived
VSHFL¿FDOO\ SRLQWV RXW WKDW KH RU VKH LV D RIWKHODZ²ODZRQWKHERRNV²WKDWFRXQWV before the Supreme Court, which came to a
judge. The same applies if the expression is Lawyers also need to possess practical ex- conclusion that the relevant provision of Ar-
made to a group of people who know that the perience and skills. In the Court’s interpre- chive Law is a disproportionate limitation to
person talking to them is a judge. On the oth- tation of the ECJ’s case-law, domestic au- privacy. And it referred the case to the Court.

60 | I•CONnect-Clough Center

The Court decided that the law at hand was CONCLUSION
fully compatible with the Constitution. Ac-
FRUGLQJ WR WKH &RXUW WKHUH LV D VLJQL¿FDQW The two mentioned cases reviewing the con-
difference between granting access to per- stitutionality of legislation serve as evidence
sonal data contained in archive documents of the growing importance of ordinary courts
DQG WKHLU SXEOLFDWLRQ :KHQ WKH ODZ JUDQWV in judicial review. Both cases were referred
public access to the archive documents, it to the Court by other courts. In 2015 and
does not automatically allow their publica- 2016 combined, ordinary courts asked the
tion. Even repeated individual access by dif- Court to review the constitutionality of ap-
ferent people to archive documents is not the plied law in 20 cases, many of which have
same as their publication since it represents not been decided yet.
DVLJQL¿FDQWO\OHVVHUOLPLWDWLRQRIWKHULJKWWR
privacy of persons whose personal data are In all four discussed cases, the Court has
at stake. According to the Court, this differ- protected the constituent values of the Czech
ence was clear also in the case decided by 5HSXEOLF²HTXDOLW\IUHHGRPDQGGHPRFUD-
the Supreme Court, where the publication of F\$OOIRXUFDVHVDOVRKDYHVLJQL¿FDQWRYHU-
the information gathered in the archives was lap with other situations, especially based
stopped after the affected person refused to on more general considerations made by the
give their consent to it. Mere access of the Court.
journalist to the archive documents could not
cause defamation since the information was Considering the latest developments in Po-
not made public and thus could not affect the land and Hungary, we appreciate that the
reputation of the affected person. Court retained its independence and a mod-
erate level of activism, preserving its posi-
The decision of the Court is very important tion as the most important safeguard of de-
for drawing a clear line between individual mocracy and the rule of law in the Czech
access to information and their publication. Republic. Even though many acts of the
In this way, the public is guaranteed “the current president Miloš Zeman were very
right to know” without automatic destruction controversial, the timely and balanced ap-
of one’s reputation. This principle is appli- pointment of judges of the Court was one of
cable in several areas besides archives, like his most positive achievements.
freedom of information, investigative jour-
nalism, and others.

Seven judges concurred with the majority
reasoning, stating that the unlimited access
to archives of the Communist Secret Service,
although in the form of individual requests,
would be a disproportionate limitation of
privacy. However, according to the minority
opinion, there is a special provision in Act
on Access to Archives of the Communist Se-
cret Service which is applicable and grants
at least a moderate level of protection to in-
dividuals whose personal information is con-
tained in the archives.

2016 Global Review of Constitutional Law | 61

Finland
DEVELOPMENTS IN FINNISH CONSTITUTIONAL LAW
Laura Kirvesniemi, Ph.D. student, University of Helsinki; Milka Sormunen, Ph.D. student,
University of Helsinki; and Tuomas Ojanen, Professor of Constitutional Law, University
of Helsinki

INTRODUCTION Administrative Court. The necessity to take
notice of the Constitutional Law Committee
The year 2016 was unprecedented, even alongside the Courts owes to the existence
tumultuous, in terms of constitutional law of a pluralist system of constitutional re-
and human rights in Finland. Several rea- view in which the primary role is played by
VRQV±LPPLJUDWLRQZLWKWKHÀRRGRIDV\OXP abstract ex ante review of legislation by the
applications,1 the country’s economic prob- Committee whereas concrete ex post review
lems and problems related to the quality of by the Courts assumes a secondary role.
FINLAND
law-making and the desire by the sitting
Government to catch up with the ‘reform THE CONSTITUTION AND THE
debt’ as much as possible in the current PLURALIST MODEL OF CON-
HOHFWRUDO WHUP²FRDOHVFHG WR H[SODLQ FRQ-
STITUTIONAL REVIEW WITH A
stitutional turbulence during 2016.
LIMITED ROLE FOR COURTS
In addition, some legislative proposals by
the Government deliberately tested the ex- The Constitution of Finland (Act No.
treme limits of the Constitution and human 731/1999)3 entered into force on 1 March
ULJKWV WUHDWLHV SDUWLFXODUO\ LQ WKH ¿HOG RI 2000. The contemporary state of Finnish
asylum legislation, where the Government constitutionalism is characterized by multi-
wanted to diminish Finland’s (alleged) ap- faceted interplay and tension between con-
peal to asylum seekers. Such a ‘race-to-the- stitutional tradition revolving around legis-
bottom’ is in contrast to an earlier approach lative supremacy and the understanding of
by the Finnish legislature that has even democracy as majority rule, on the one hand,
involved efforts to bend the domestic im- and tendencies towards rights-based review
plementation of EU law to secure the effec- of legislation and commitments to European-
tive protection of fundamental and human ization and internationalism, on the other.4
rights.2
For a long time, courts had a marginal role
This report provides an overview of practice on the Finnish scene of constitutionalism,
by the Constitutional Law Committee of including the prohibition of judicial review
Parliament and the case law of the highest of the Acts of Parliament for their compati-
courts: the Supreme Court and the Supreme bility with the Constitution. Such traditional
features have increasingly been challenged
1
A total of 5,657 persons (2015: 32,476) applied for asylum in Finland in 2016. However, appeals against
negative asylum decisions by the Immigration Service started really pending before courts – the Ad-
ministrative Court of Helsinki and the Supreme Administrative Court – in 2016. For statistics regarding
asylum applications, see O[[W!^^^TPNYPÄMVYF[OLFTLKPHI\SSL[PUZWYLZZFYLSLHZLZWYLZZFYLSLHZLZ
ÄUUPZOFPTTPNYH[PVUFZLY]PJLFZFZ[H[PZ[PJZFMVYFFYLJVYKFU\TILYFVMFKLJPZPVUZF.
2
Tuomas Ojanen, ‘The European Arrest Warrant in the Midnight Sun. The Implementation and Appli-
cation of the EAW in Finland.’ In: Guild E, Marin L (eds) Still Not Resolved? Constitutional Issues of the
European Arrest Warrant, (2009), Wolf Legal Publishers, 143.
3
<UVɉJPHS[YHUZSH[PVUVM[OL*VUZ[P[\[PVUVM-PUSHUKPUJS\KPUNHTLUKTLU[Z\W[VH]HPSHISL
in English at O[[WZ!^^^ÄUSL_ÄÄSHRPRHHUUVRZL[ LU WKM
4
Juha Lavapuro, Tuomas Ojanen and Martin Scheinin, ‘Rights-Based Constitutionalism in Finland and
the Development of Pluralist Constitutional Review’ [2011] 9 Intl J Cons L 505.

62 | I•CONnect-Clough Center

since the late 1980s by the incorporation of mine the proper legislative procedure of a In this model, the ex ante constitutional re-
the European Convention on Human Rights given legislative proposal, i.e. whether the view by the Committee is still supposed to
(ECHR) in 1990, the accession to the Euro- proposal may be enacted in accordance with remain the primary form of review, whereas
pean Union (EU) in 1995, as well as sever- the ordinary legislative procedure through a judicial review under Section 106 is designed
al constitutional reforms between 1995 and majority of the votes cast or whether it should to plug loopholes left in the abstract ex ante
2011, most notably the reform of the domes- EHHQDFWHGWKURXJKDTXDOL¿HGSURFHGXUHIRU review of the constitutionality of Government
tic system for the protection of constitutional FRQVWLWXWLRQDO HQDFWPHQWV GXH WR LWV FRQÀLFW bills, inasmuch as unforeseen constitution-
rights in 1995.5 As a result of the reform, the with the Constitution. As the attempt is to al problems would arise in applying the law
catalogue of fundamental rights in Chapter 2 avoid the use of exceptive enactments and by the courts in particular cases. Therefore,
of the Constitution is comprehensive, setting to guarantee the effective protection of fun- the Opinions of the Committee are of great
out a range of economic, social, cultural and damental and human rights, the Committee VLJQL¿FDQFH IRU WKH SXUSRVHV RI WKLV UHSRUW
‘third-generation’ rights alongside more tra- often demands changes to legislative propos- alongside the case law of the courts.
ditional civil and political rights. Rights are als so as to achieve harmony with the Consti-
granted to everyone, with an exception only tution and human rights obligations binding DEVELOPMENTS AND
with regard to freedom of movement (Sect. 9) upon Finland.
and certain electoral rights (Sect. 14). The do- CONTROVERSIES IN 2016
mestic standard of rights protection is intend- Up until the entry into force of the current
ed to ascend to a high level as international Constitution in 2000, courts were not allowed During year 2016, the Government gave to
human rights treaties are ‘only’ supposed to to review the constitutionality of parliamen- Parliament several bills that aroused spirit-
set out the minimum standard of protection. tary legislation although the Constitutional ed constitutional and political debate in Par-
This doctrinal premise has even compro- Law Committee had well earlier started em- liament, the media and civil society.8 Some
mised the maximal implementation of certain phasizing the obligation of courts and author- bills pertaining to asylum and immigration
EU legal measures in the 2000s.6 ities to interpret legislation in harmony with legislation even tested deliberately the lim-
the Constitution and human rights treaties.7 its of constitutional law and human rights as
The constitutional tradition emphasizing the Moreover, international human rights treaties the Government expressly wanted to dimin-
sovereignty of Parliament resulted already and EU membership empowered all courts to ish the country’s appeal for asylum seekers
GXULQJWKH¿UVWGHFDGHVDIWHU)LQODQG¶VLQGH- review the harmony of Finnish law, including by its bills. Beyond immigration, other out-
pendency in 1917 in abstract ex ante constitu- the Constitution in the case of EU law, with standing themes before the Constitutional
tional review of legislation by a political body human rights and EU law. Law Committee were legislative proposals
consisting of members of Parliament, the or other matters pertaining to security,9 retro-
Constitutional Law Committee. Currently, Hence, the time was ripe to abandon the pro- gression of economic and social rights,10 as
the mandate of the Committee is prescribed hibition of constitutional review by courts in well as privacy and data protection rights.11
by Section 74 of the Constitution as follows: 2000 by enacting Section 106 of the Constitu-
‘The Constitutional Law Committee shall is- tion that obliges courts to give primacy to the The outcome was that several bills ran into
sue statements on the constitutionality of leg- &RQVWLWXWLRQLQFDVHVLQZKLFKWKHFRXUW¿QGV FRQVWLWXWLRQDOGLI¿FXOWLHVEHIRUHWKH&RQVWL-
islative proposals and other matters brought the application of an Act of Parliament to be in tutional Law Committee. The Committee
for its consideration, as well as on their re- evident FRQÀLFWZLWKWKH&RQVWLWXWLRQ6HFWLRQ presented various critical constitutional re-
lation to international human rights treaties.’ 106 is not intended to tilt the constitutional marks on several bills and, in a smaller num-
scale from the Constitutional Law Committee ber of cases, required changes to be made to
In 2016, the Committee issued 67 Opinions towards courts. Instead, Section 106 amounts achieve harmony between the Constitution
on legislative proposals or other matters, to a form of weak judicial review that com- and human rights obligations and the bill to
including proposals for EU measures. The bines the abstract ex ante constitutional re- be considered in accordance with the ordi-
Opinions by the Committee are regarded as view of legislation by the Committee with the nary legislative procedure. The Commit-
de facto binding and they essentially deter- concrete ex post judicial review by the courts. tee also criticised on various occasions the
quality of drafting, the lack of fundamental
5
Tuomas Ojanen, ‘From Constitutional Periphery Toward the Center-Transformation of Judicial Review in Finland’ [2009] Nordisk tidsskrift for mennesker-
ettigheter 194. For an early account, see Martin Scheinin, Ihmisoikeudet Suomen oikeudessa (Human Rights in Finnish Law) (Suomalainen Lakimiesyhdistys
1991).
6
Tuomas Ojanen, ‘The European Arrest Warrant in the Midnight Sun. The Implementation and Application of the EAW in Finland’ in Guild E, Marin L (eds), Still
Not Resolved? Constitutional Issues of the European Arrest Warrant (Wolf Legal Publishers 2009).
7
See e.g. Constitutional Law Committee Opinion 2/1990.
8
O[[W!^^^ÄUUPZOUL^ZÄWVSP[PJZÄUUPZONV]LYUTLU[ZHPK[VÅHNYHU[S`KPZYLNHYK[OLJVUZ[P[\[PVUZLYPV\ZHSSLNH[PVUZI`JOHUJLSSVYVMQ\Z[PJL.
9
E.g. Constitutional Law Committee Opinions 20/2016, 22/2016 and 37/2016.
10
Constitutional Law Committee Opinions 58/2016 and 59/2016.
11
Constitutional Law Committee Opinions 13/2016, 28/2016, 29/2016, 33/3016 and 34/2016.

2016 Global Review of Constitutional Law | 63

14 E. Concerning protection under stirred up public debate over the quality of status. The gal protection. The Committee noted that austerity measures asylum seeker be automatically offered le- tutional problems had been presented to the PD\ EH MXVWL¿HG LQ WLPHV RI HFRQRPLF GLV. 16 Government Bill 2/2016. and it is questionable whether amend- posed that an unemployed immigrant would. legislative amendments and many of the liament on law-making by the Government improvements proposed by the Committee in February 2017.rights impact assessments12 and the consti. exceptionally weighty reasons existed. the Committee did not deem cred. The Aliens Act of 2004 (Act No. amendments were based on the Government ways. criticism about the quality of law-making. In its Opinion WHULDIRUIDPLO\UHXQL¿FDWLRQZHUHWLJKWHQHG migration policy. 18 Government Bill 43/2016.pdf/3e555cc4-ab01-46af-9cd4-138b2ac5bad0. However.19 legitimate aim for weakening the rights of el of integration assistance would have been DV\OXPVHHNHUVRUWKHVRFLDOEHQH¿WVRUVR. the Government bill was withdrawn. cri. lower than assistance provided for other un.g.14 He also revealed that in some tress. it was pro.g. action plan on asylum policy. aims of which include stopping the ‘uncon. Constitutional Law Committee Opinion 55/2016. thermore.considerable retrogression that the amend- tance. that referring to time constraints and polit. justify limiting equality before the law. 64 | I•CONnect-Clough Center . 17 Government Bill 32/2016. persons in a vulnerable position. the Committee found that creating by broadening the application of the require. the aim. that the maximum duration be shortened. the Chancellor of Justice the grounds of their origin. Constitutional Law Committee Opinions 34/2016 and 43/2016.istrative Court ination as well as the right to basic subsis. too. UHFHLYHUV RI VXEVLGLDU\ SURWHFWLRQ²ZDV UH. The Government promised to address mittee. last resort nature of detention be underlined. would consequently be treated differently on especially that of unaccompanied minor asy- In December. assistance. PeVL 43/2016 and PeVL were conducted.e. the Committee considered the new interim measure. especially Law Committee – discriminatory nature of seekers to the extent that the tightening of the crite- unemployed immigrants’ integration assis.18 This amend- WXWLRQDOO\GHIHFWLYHMXVWL¿FDWLRQIRUWKHELOOV LQLWVHOIEHLQFRQÀLFWZLWKWKHSURKLELWLRQRI ment affects especially children and other For instance. the central ments to legal protection amount to such a instead of receiving unemployment assis. originally.of the amendments with human rights obli- Opinion of 55/2016 by the Constitutional tee – weakening legal protection of asylum gations still remains questionable. garding designated residence of children. The conditions for deciding how many times a LFDO SUHVVXUH DV MXVWL¿FDWLRQV IRU VFUDSSLQJ means were thus not suitable for achieving day the person has to report be added and the the principles of good law-making is illegit. 19 Government Bill 133/2016. a parallel system for immigrants would not ment for means of support. gal aid. the Committee stressed that the discrimination (Sect.cations and the Government’s tightened im- protected by the Constitution.13 employed persons. moved. the Committee required in its Opin- drafting by estimating that an unusually high ion 24/2016 that an unaccompanied minor number of legislative proposals with consti.tive Court adjudicated an exceptionally high 12 E. 15 Government action plan on asylum policy (8 December 2015). the aim of providing savings aid for asylum seekers. imate. Fourthly. The Committee considered the additional category guaranteeing protection proposal from the point of view of the prin. the Supreme Administra- 55/2016. was weakened in many In Government Bill 169/2016. designated residence. Unemployed immigrants that improved asylum seekers’ legal status. 13 E. a aim of trying to make Finland less attractive However.17 Third. even for children. the ment that the resources of ministries had be. tribute to the integration of immigrants. 301/2004) ULDIRUIDPLO\UHXQL¿FDWLRQLVFRQFHUQHG/H- tance was amended several times in 2016. Following the Opinion of the Com. the Chancellor of Justice stated that lowering basic subsistence would con. both was weakened in several ways. The Committee proposed several changes cial security of immigrants. the compatibility of some 48/2016 of the Constitutional Law Commit. cases his recommendations for addressing for the public sector could not in this case be provided in the asylum interview only if the constitutional problems had been ig. it was proposed that legal Parliament. protection under the law Due to the increased number of asylum appli- tence in the event of unemployment.16 Second. ible the suggestion of the Government bill Committee required in its Opinion 48/2016 come scarce. be entitled to an integration assistance WUROOHGÀRZRIDV\OXPVHHNHUVLQWRRXUFRXQ. immigration lum seekers. Fur. which Sect 6 expressly prohibits.g. the problems of law-making and the Prime The case raised considerable attention and Even though the Committee accepted the Minister presented an announcement to Par. for those who do not qualify as refugees or Immigration matters in the Supreme Admin- ciple of equality and prohibition of discrim. for asylum seekers was not a constitutionally proposal to be discriminatory since the lev. Opinions 24/2016.PHQWV DUH LQ FRQÀLFW ZLWK WKH &RQVWLWXWLRQ amounting to 90 percent of unemployment WU\¶ )LUVWO\ KXPDQLWDULDQ SURWHFWLRQ²DQ and human rights. available in English at O[[W!]HS[PVUL\]VZ[VÄKVJ\TLU[Z/HSSP[\RZLUF turvapaikkapoliittinen_toimenpideohjelma_08122015+EN. O[[W!^^^OLSZPURP[PTLZÄÄUSHUKÄUSHUKUL^ZKVTLZ[PJJOHUJLSSVYVMQ\Z[PJLNV]LYUTLU[ZKYHM[IPSSZILZL[^P[OJVUZ[P[\[PVUHSWYVISLTZO[TS. Re- QRUHG :KLOH FRQFXUULQJ ZLWK WKH *RYHUQ. was introduced. the law. i. 6 of the Constitution).

istrative sector of the Ministry of Agriculture tent that of non-EU citizens) on the borders There was a possibility of X being returned and Forestry. protection of personal data concluded that particularly vulnerable per. munication 22/2016 on the proposal for a the Court assessed whether Z had secure The Committee noted that the Government Regulation of the European Parliament and means of support. Hungary was primarily responsible for would face a real risk of being subjected to In its Opinion 2/2016 on Government Com- examining the asylum application. munication 1/2016 on the proposal for a Reg- compared the case law of the Court of Justice olence. of the EU. where he had been registered. Sami livelihoods such as reindeer herding.17 of the Constitution. ulation of the European Parliament and of of the EU (CJEU)21 and the European Court the Council amending the Schengen borders of Human Rights (ECtHR)22 to national case MAJOR CASES code. of Fundamental Rights of the EU (EUCFR). which Forest Enterprise is operating in the admin. The Committee found to problems in reception conditions. Sami land rights (Art 8). mittee pointed out in its Opinion 1/2016 that considered problematic. the Com- ghanistan without having his asylum appli. the Court could not ex. which are required for ELOO²XQOLNHDSUHYLRXV*RYHUQPHQWELOORQ of the Council (smart borders) and Opinion issuing a residence permit unless otherwise WKHVDPHLVVXH²FRQWDLQHGQHLWKHUDVHFWLRQ 33/2016 on the Government Communica- provided. Sami rights are not mentioned in the govern. The Court relied on the Family Re. the Court dividual threat’25 and to the case law of the non-discrimination. According to Section OHDGLQJWRDEDQRIHWKQLFSUR¿OLQJ&KHFNV In KHO:2016:81. there were substantial grounds for believing cy and referred in this context to the Charter According to Regulation 604/2013 (Dublin that the applicant. ment bill even though the proposal affects of discrimination (Art 20 and 21 EUCFR) the rights of the Sami. if returned to Baghdad. III). privacy and EUCFR found that the principle of non-refoulement CJEU26LQWHUSUHWLQJWKH4XDOL¿FDWLRQ'LUHF. as an indig. should be conducted based on an individual clude the possibility that an Iranian asylum enous people. treatment of EU citizens (and to a certain ex- Hungary considered to be a safe country. of the Constitutional Law Committee – tion Service. have the right to maintain and risk assessment. The Constitutional Law Com.number of immigration matters. State that the proposal fundamentally changes arrived in Hungary through Serbia. The court serious harm as a result of indiscriminate vi. Border checks as such were not from Hungary to Serbia and further to Af. The Court concluded that several proposals for EU measures on priva- to Hungary. (&W+5RQWKHGH¿QLWLRQRIµDVHULRXVDQGLQ. 28/2016 and 33/2016 referred several cases back to the Immigra. The Constitutional Law Committee reviewed prevented the transfer of an asylum seeker tive (2011/95/EU).20 The Court on Iraq24 and referred to the case law of the Opinions 2/2016.on the Sami domicile area nor a prohibition tion 30/2016 on the European Commission XQL¿FDWLRQ 'LUHFWLYH (&. X had 234/2016) was fully amended in 2016. seeker’s apostasy from Islam could cause develop their own language and culture. the Sami. The court Committee – State Forest Enterprise and ily life (Art 7).tion 17 guarantees the practice of traditional In its Opinion 28/2016 on Government Com- scribed in the Aliens Act. as well as freedom of movement and sons cannot be transferred to Hungary due Act on State Forest Enterprise (Act No. mittee noted the importance of prohibition cation examined. Sec- a need for international protection as pre. the Committee noted that the proposal law in other EU member states concerning had an impact on certain rights protected in transfers to Hungary under Dublin III and Opinion 1/2016 of the Constitutional Law the EUCFR: the respect for private and fam- to recent country information. In KHO:2016:155. of residence (Art 45). In KHO:2016:53. However.

6ZHUKMVYLPNUVɉJLZVYPTTPNYH[PVUH\[OVYP[PLZPU[OL<2[OL<:HUK:^LKLU 25 J. 26 C-465/07 Elgafaji [2009]. v Sweden App no 66523/10 (ECtHR. future case law of the CJEU. DQG WKH of retrogression of the Sami culture. 24 9LWVY[ZI`[OL<5/*9O\THUYPNO[Z5. 22 Halimi v Austria and Italy App no 53852/11 (ECtHR 18 June 2013). The enactment of attention should be paid to CJEU cases Dig- Court assessed whether the applicant. and that proposal for a Regulation of the European case law of the CJEU. C-358/14 Mimoun Khachab [2016]. 27 C-293/12 Digital Rights Ireland [2014]. the nary legislative procedure.STP][OL<UP[LK2PUNKVTApp nos 8319/07 and 11449/07 (ECtHR. 27 June 2013). the Committee concluded that the Act fere with the right to privacy and protection evidence of stable and regular resources must can be passed in accordance with the ordi. v Sweden App no 68519/10 (ECtHR.M. Mohammed Hussein v Netherlands and Italy App no 27725/10 (ECtHR 2 April 2013). 23 August 2016). 2016 Global Review of Constitutional Law | 65 .23 The Court noted that international human rights obligations sup. C-362/14 Schrems [2015]. 3 April 2014). be applied narrowly. C-285/12 Diakité [2014].rights.A. Mohammadi v Austria App no 71932/12 (ECtHR 3 July 2014). C-695/15 PPU-Mirza [2016]. In the Committee’s view. DXWKRUL]DWLRQ RI IDPLO\ UHXQL¿FDWLRQ LV WKH port the inclusion of such provisions. indicate that need for safeguards is all the The Court reviewed several country reports greater where personal data is subjected to 20 Immigration matters were the largest type of matter in the Supreme Administrative Court (38% out of all incoming matters). In KHO:2016:194. et al v Sweden App no 59166/12 (ECtHR. 28 June 2011). How. should receive subsidiary protec. 21 C-394/12 Shamso Abdullahi v Bundesasylamt [2013]. A. 23 C-356/11 and C-357/11 O et al [2012]. S. :\ÄHUK. These cases tion instead of being returned to Baghdad. a Sun.the new Act was criticised for violating Sami ital Rights Ireland and Schrems27 as well as ni Muslim.A.K. Parliament and of the Council (Eurodac). the Committee noted that both systems inter- general rule and the State’s power to require ever. of personal data. Tarakhel v Switzerland App no 29217/12 (ECtHR 4 November 2014).

The tion. it was proposed court decisions in individual cases. The proposal has raised a great deal tion of human rights and fundamental rights been imposed on C’s pension income above of debate which will probably amplify when In KKO:2016:20. The Court stat. national security. In the Supreme Court’s opinion. mental and human rights.000 euros. In LQFUHDVLQJ¿QHOHYHOVZHUHSUHVHQWHG sion cannot be covered comprehensively by October 2016. and that imposing a higher tax rate RQWKRVHZLWKKLJKLQFRPHFDQEHMXVWL¿HG KKO:2016:24 and KKO:2016:25 – Legality in particular in times of economic hardship. of non-medical male circumcision The provisions of Tax Income Act were thus Finland does not have legislation on QRWLQHYLGHQWFRQÀLFWZLWKWKH&RQVWLWXWLRQ. 21/2004) and therefore had been based on the opinion of the Finnish ZHUHLQHYLGHQWFRQÀLFWZLWK6HFWLRQRIWKH Security Intelligence Service.Court requested the Court of Justice of the tion. A surtax of 6 percent had made. Constitutional turbulence will most like- tral question is related to registering of bio. C submitted that WKHRWKHUZRUNLQJJURXSVZLOO¿QLVKWKHLUUH- sidered whether the applicant was entitled to the applied provisions of the Tax Income spective work during spring 2017. The Committee found KHO:2016:180 – Primacy of the Constitu. the Supreme Court con.In KHO:2016:180. In 2016. Instead.OL:\WYLTL*V\Y[Z\ITP[[LK[OYLLYLX\LZ[Z 28 66 | I•CONnect-Clough Center . non-medical male circumcision. as the Committee process would be required. Ministry of Justice gave its report on the WKDW OHYHOV RI GD\ ¿QHV DQG VXPPDU\ SHQDO thorough evaluation in a legislative drafting necessity to amend the provisions on the se- fees be increased. taking also into FUHF\ RI FRQ¿GHQWLDO FRPPXQLFDWLRQV ODLG noted. and conse. Currently. interferes with the right to property. tionally interesting times ahead. the working group stitution) between an Act of Parliament and proposed a constitutional amendment to be KKO:2016:20 – Compensation for a viola. However.under EU law and the Finnish Non-Discrim- quently A had been deported. ZDVDQHYLGHQWFRQÀLFW 6HFWRIWKH&RQ.EU (ECJ) to give a preliminary ruling on the ministrative Court should have familiarised applicability of EU law on non-discrimina- itself with the grounds of the opinion. The Committee held that the most cen. the working group of the In Government Bill 1/2016. down in the Constitution for the purpose of The aim of the amendment was to increase allowing legislation on civil and military in- revenues of the State.the provisions had a legitimate aim. had been violated. ordinary legislation such limitations to the damental rights system were not presented tive Court assessed whether the Charter of VHFUHF\RIFRQ¿GHQWLDOFRPPXQLFDWLRQVWKDW even though they would have been required. was not applicable in the case. the ECtHR on the interpretation of article 13 The Supreme Administrative Court noted of the ECHR and concluded that A’s human that that provisions regarding the surtax on rights. legislation governing non-medical male cir. telligence.Act (Act No.45. several PHWULFLGHQWL¿HUV emanating from international conventions working groups appointed by the Govern- binding on Finland or from the case law of ment are preparing legislation regarding Opinion 9/2016 of the Constitutional Law the ECtHR. the grounds of Constitution on equality before the law. in particular the right to an effective pension income were at least partly based on remedy. their legal and parliamentary oversight. civil and military intelligence. account possible penal sanctions. the Supreme Administra. In his appeal. the Supreme Court attempted to draw guidelines UHJDUGLQJWKHDVVHVVPHQWRIWKHMXVWL¿FDWLRQ 0U[OL:\WYLTL(KTPUPZ[YH[P]L*V\Y[Z\ITP[[LKÄ]LYLX\LZ[ZMVYWYLSPTPUHY`Y\SPUNZ.hibition of discrimination on grounds of age mit application had been rejected. Fundamental Rights of the European Union would authorize to obtain civil and military especially from the perspective of criminal (EUCFR) was applicable and whether there intelligence on serious threats necessary for law.28 The ECJ found that EU law. A’s residence per. cumcision in Finland nor explicit guidelines ly continue during 2017. stability. including Committee±QRDFFHSWDEOHMXVWL¿FDWLRQVIRU the question of non-medical male circumci. 1535/1992) violated the pro. the Court found that Court held that A should receive compensa. Hence. The Supreme person’s age. Constitu- compensation due to violations of his funda. The Supreme Court noted that the Ad. including Supreme Court referred to the case law of the EUCFR. The working group assessed that WKDW DFFHSWDEOH MXVWL¿FDWLRQV IRU LQFUHDVLQJ tion and applicability of the EUCFR the Constitution does not allow to enact by ¿QHOHYHOVIURPWKHSRLQWRIYLHZRIWKHIXQ. namely tion for the violation of his fundamental and funding of welfare services and economic human rights. This. CONCLUSION VLJQL¿FDQW ULVN RI XQODZIXO DFFHVV WR WKDW ed that it was unfortunate that there is no data.automatic processing and where there is a of male child circumcision.the Constitution. The decisions ination Act (Act No. The ZKLFKKDGEHHQWUHDWHGDVFODVVL¿HGLQIRUPD.

From an organic in order to avoid the scandal of partisan in- viewpoint. One-third of them are appointed the years in order to control the activities every three years. the Preamble to by four authorities: the President of the Re. the right to question the value of the consisting of the Preamble to the Constitu- law. The Conseil consists of the former Presi- vember 2015. is the former to introduce crucial changes regarding the Minister of Foreign Affairs. the Charter for the public. the Prime Minister and the Presidents Environment. In the 113 rulings it handed dents of the Republic and nine appointed down. despite a socialist the President of the Conseil.Q 0DUFK  WKUHH QHZ PHPEHUV were appointed to the Conseil. Nefeli Lefkopoulou. the Constitution of 1946. the President of the National Assembly. and three by the President of the Senate. among whom is of a Parliament that was. It is neither in the spirit of the parlia. Professor of Public Law at Sciences Po Law School. According to Michel De. and Guillaume Tusseau. From a substantive viewpoint.D. serving non-renewable terms of dictional techniques it has developed over nine years. Eirini Tsoumani. Droit constitutionnel et institutions politiques (4th ed Le Seuil 2016) 2016 Global Review of Constitutional Law | 67 . three by divided. members. to legislation. way the Constitution was made binding on public authorities. tion. the (more famous) 71-44 DC rulings. nor in the French tradition. that is to say the will of Parliament. one third of its members were validations. Laurent Fabius. Member of the Institut universitaire de France INTRODUCTION other assignments were given. Since the 70-39 DC and mentary system.”1 the continuing application of the state of emergency that has been in force since No. see O Duhamel and G Tusseau. it has to give judges. French statute-centred (légicentriste) context tionnel manifests the will to subordinate the is that of reviewing the constitutionality of law. “The creation of the Conseil constitu. and several unwritten “fun- of the Houses of Parliament. To this Conseil damental principles acknowledged in the 1 For a general overview. highly by the President of the Republic. The project has therefore devised a spe. Member of the Conseil constitutionnel. The Par- liament’s commissions are allowed to veto THE CONSTITUTION AND a nomination with a supermajority of three- THE COURT ¿IWKV . the Conseil made use of all the juris. Three. Candidate at Sciences Po Law School. and 2016 was an important year for the French the litigation related to contested elections. Ph. including the review of Parliament’s standing orders. The standard of constitutional re- the superior rule laid down by the Constitu. view is not limited to the constitutional text tion. Ph. 7KH&RQVHLO¶VPRVWVLJQL¿FDQWIXQFWLRQLQWKH bré. France DEVELOPMENTS IN FRENCH CONSTITUTIONAL LAW Corinne Luquiens. the Declaration of the Rights of Man cial institution that can only be set in motion and of the Citizen (1789). The Constitution thus created a FRANCE renewed.D. among whom The drafters of the 1958 Constitution meant its President. Candidate at Sciences Po Law School. the weapon against the deviation of the parlia- new bench had to face the consequences of mentary system. Conseil constitutionnel. strictly understood. are appointed majority in the National Assembly. that is to say to give every grown into a wider “constitutionality block” litigant.

quashes a statute when the balance between latter is cancelled for the future. The constitutionality of organic acts and of ry. Two main constitutional controversies Although commonly said to be satisfacto- emerged from the case law of 2016. and ob. the standing orders of the two Houses of Indeed. them. and the Con- jectives having constitutional value (eg the constitutional concerns results in an irratio. As a consequence. and opinions). contributes to alleviate possible accusations DEVELOPMENTS AND ERWK FLYLO DQG SROLWLFDO ³¿UVW JHQHUDWLRQ´ of ‘gouvernement des juges’ (government by CONTROVERSIES IN 2016 rights and social “second generation” rights the judges). This general attitude of self-restraint thoughts. seil is allowed to postpone the effects of the ¿JKW DJDLQVW WD[ HYDVLRQ WKH SURWHFWLRQ RI nal or disproportionate curtailment of one of derogation it pronounces. to set aside a LQFOXGLQJD¿UVWRQHDWWKHYHU\HQGRI. on the 7KH ¿UVW LV UHODWHG WR WKH IRXU UXOLQJV ¿YH Parliament are mandatorily controlled by the request of ordinary litigants. and the pluralism of ideas. ordinary judges are allowed. the public order.” principles. this system has remained problematic.laws of the Republic. have been constitutionalised.

constitutionnalité²43&. Moreover. This changed in 2008. 60 dep. in application trol. due to their nature and enjoyed this prerogative. Until the constitutional stitutionnel. can only do so before it is constitutionalism. Conseil before they come into force. political actors. statute that does not comply with an inter- issued in connection with the state of emer- ordinary statutes may be referred to the Con. when involving imminent danger resulting from of the National Assembly. its constitutionality can never of an Act of 3rd of April 1955. which enjoys a monopoly to portant because of the pressure this situa- amendment of 2008. whereas the Conseil con- gency. the President of the this control. and the President the “priority preliminary ruling on the issue serious breaches of public order or in cir- of the Senate were the only authorities who of constitutionality” (question prioritaire de cumstances which. the state. promulgated and only at the request of a few a measure of exception that can be decided tutional authorities could require this con. only consti. These decisions are evidently im- seil constitutionnel. this facultative ex ante quash a statute for its incompatibility with tion places on French society. in situations Republic. and review was the only procedure to assess the the Constitution. Once a statute has escaped by the Council of Ministers. the Prime Minister. From 1958 to 1974. the President be questioned. In 1974. The state of emergency is validity of a statute. Other. national norm.

question is not devoid of any seriousness. Due to the controls the content of the text. and J Bonnet. a meeting of the Council of Min- the case of a partial invalidity. Its initial implementation is limit- require constitutional review. As a consequence. After come into force. the provisions the Conseil constitutionnel (or. In it has never been declared constitutional by ber 2015. if that is the isters the same night decided that the state of that can be severed from the unconstitutional case. It enables the Minister of the Interior merous saisines. 603 QPC decisions had been full effects of the state of emergency. legislator’s jurisdiction nor grant too much conditions are met. It also Once the question has been transferred. handed down. it can be promulgated and the unconstitutionality of a statute needs to or detain someone under house arrest. The Conseil con. the to the Conseil constitutionnel. none Constitutionnel a general or particular dis. Contentieux constitutionnel français (4th edn Presses universitaires de France 2016). In this case of ex post review. The As a consequence. Consequently. “If. it is through applications 2 G Drago. as it antedates the current Con- that the procedure following which the text ZKLFKDFWVDVDVHFRQG¿OWHUIRUWKHGHPDQG stitution. ZDV HVWDEOLVKHG seriousness. legislative provision infringes the rights and statute. forbid the Conseil has one month. cision. it mostly the derogation of the pre-existing norm. If and should remain in force until the 15th of tence and does not encroach on the organic WKH MXGJH LV VDWLV¿HG WKDW WKHVH FXPXODWLYH July. 68 | I•CONnect-Clough Center . see eg 2010-14/22 QPC ruling). during proceedings in prog- disaster. and mostly Conseil has three months to decide follow- broad political consensus between the ma- that human rights are respected. ones can be promulgated. that the circumstances have changed. the 1955 Act could not be referred has been adopted is the correct one. P-Y Gahdoun.2 In the latter ing a truly adversarial procedure and after jority and the opposition on the necessity case. matter may be referred by the Conseil d’Etat or prohibit circulation in some places. to hand down its de. If it is declared unconsti. it is claimed that a ed to 12 days. constitutionnel” (article 61-1 of the Consti- thorize administrative searches and seizures. 2017. which can be or by the Cour de Cassation to the Conseil public meetings or close public places. and that the 6LQFH WKHQ LW KDV EHHQ H[WHQGHG ¿YH WLPHV trols that Parliament respects its own compe. emergency should immediately be applied. they immediately trans- discretionary power to other legal actors. 54 DC ruling). have the character of public uties and 60 senators were also entitled to Concretely. the and its local representatives (préfets) to limit oped constitutional justice. au- shortened to eight days. The litigant who wants to invoke EDQVRPHRQHIURPHQWHULQJVSHFL¿HGDUHDV is constitutional. the Conseil has been adamant that “the a public oral hearing. prove that the statute applies to the suit. as of 1 to implement and extend without delay the Constitution does not confer on the Conseil January 2017. a declaration of unconstitutionality results in vember 2015 were referred to the Conseil. in totality or in part. D Rousseau. It can be extended only by a right to the opposition resulted in more nu. Droit du conten- tieux constitutionnel (11th edn LGDJ 2016). and considerably devel. In these cases. If the Conseil concludes that the text tution). and IHU WKH ¿OH WR WKH UHOHYDQW 6XSUHPH &RXUW Obviously. of the acts extending it adopted since No- cretion identical to that of Parliament” (74. it cannot. that the terrorist attacks of the 13th of Novem- tutional. freedoms guaranteed by the Constitution. Granting this ress before a court of law.

even at night and in sion did not appear in the initial governmen- decisions is adamant that “the Constitution a private residence. raised by persons subject to policing of meetings and public places. should be YHPEHUEHIRUHWKH¿UVWDFWSURORQJLQJ provision that would have implied a prac- regarded as a restriction of freedom but not as the state of emergency had created new guar. searches were submitted to no condition and to be normative. the Conseil considered vation of some data (2016-600 QPC ruling). and the tween the protection of public order. But a huge workload immediately.” whose conduct constituted a threat may also Conseil what he could or would not oppose Several fundamental rights were alleged to be copied. It also stated that their the Senate. daytime. the balance be. It was position is required to remain at home is set of its provisions regarding delay of conser.for priority preliminary ruling on the issue of al. the Conseil allowed UHJDUGLQJ¿QDQFLDOGHOLQTXHQF\7KLVSURYL- under the state of emergency. its du. should be suitable. not achieved a reasonable balance between the safeguard of public order and the right to The validity of several provisions was tested The 2015-527 QPC ruling related to house privacy. according to antees to protect rights and freedoms. The 2016-535 QPC ruling addresses the F\WKH¿JKWDJDLQVWFRUUXSWLRQDQGWKHPRG- constitutionality. As far as the maximum period of time cordingly. and not merely declaratory. Conseil also insisted that such measures. and data having no link with the person Prime Minister was able to obtain before the ed to all persons resident in the Republic. should be un. 11ff. Conseil decided that since administrative which a statute needs to lay down rules and der the supervision of the Judicial Authority. it is remarkable how the the respect for the rights and freedoms grant. be imperilled by the state of emergency. The latter’s referral only tar- ously threatened by terrorism. by four of the six authorities that are allowed sary. 60 senators. the Conseil insisted that the order no guarantee was granted. duration should not be excessive. The legislator amended the law ac. The Conseil has been seized those matters. ingly. as far as they were justi. Each of the administrative searches. 32ff. which again censored some ty (eg par. From the viewpoint public order offences and. gard to the imminent danger that led to the geted article 23 of the statute. tal bill. In the ed the jurisdiction of the Tribunal of Paris infringed by some of the measures enforced 2016-536 QPC ruling. ¿HGRQWKHJURXQGRIHPHUJHQF\RULILWDS. created by the Conseil in 1999 (99-421 DC at 12 hours per day. which can be declaration of a state of emergency. But the new version was referred or legislative accessibility and intelligibili- during which an individual placed in such a to the Conseil. It admitted that the administrative cially as this tribunal could hardly face such longs to it to ensure that a balance is struck authority could access all computer data. The ernisation of economic life. This measure was equivalent to a sei. that the Conseil was asked to rule on placed under the monitoring of the admin.3 islator may establish a regime to govern the peared impossible to carry them out during . against the objective of constitutional value arrest. 146). 60 deputies. This long ruling trial pursuant to article 61-1 of the Constitu. the prevention of copying them was considered unconstitu. tional. the legislator had during the process of adoption of the statute. and the guar. of judicial politics. neces. The similarly imposed the principle according to article 66 of the Constitution. zure. The Conseil a deprivation of freedom which. the Conseil quashed it. and 109ff).4 Accord- to think that her behaviour may represent a immediately after the terrorist attacks of No. dealt with a statute that addressed a wide ar- tion. Prime minister. It was introduced during the debate does not exclude the possibility that the leg. tical contradiction (par. ruling) in order to improve the quality of that this measure. istrative courts. 3ff. This is why between. it be. aspirational or hortatory (2005-512 DC rul- placing a person under house arrest. tween the safeguard of public order and the LQJ. on the one hand. However. gave cause for them.W UDLVHG VHYHUDO SUDFWLFDO GLI¿FXOWLHV HVSH- state of emergency […] in this context. which can only be decided The last decision to be mentioned was also legislative drafting. and proportionate with the grounds that to activate ex ante review: The President of The Conseil tried to strike a fair balance be. ray of topics. on the other hand. obvi. the Conseil proprio motu quashed a threat for public security and order. by a member of the Legislation Committee. In this respect. which extend- antees of individual freedoms. having re. which has been a major against someone if there are serious grounds related to administrative searches conducted problem for more than 25 years.

the Conseil decided Article 134 of the contested law. the conditions governing its applica. are devoid of any nor- cease when the state of emergency ends. much used. which are the monitoring of the administrative courts. this limited to conferring on the ordinary general charged with ensuring that such a measure would have no effect on the validity of the assembly of a limited company the power to is suitable. the 3 See http://www. Under these reservations. such measures could not be prolonged with.fr/14/amendements/3623/CION_LOIS/CL330. deals with the statute relating to transparen. The second important controversy that de. necessary and proportionate to penal procedures that had begun before its entrust a manager with oversight of techno- the goal pursued. be declared unconstitutional” (par. the Conseil decided to revive tion. right to protect private life was not respected. Finally. De la sécurité juridique (1991). which Ensuring that no abuses were committed the house arrest was considered constitution. serves attention in 2016 is related to Decision out being renewed. http://www.asp.asp. 2016-741 DC of 8 December 2016. Sécurité juridique et complexité du droit (2006).:KLOH WKLV ODVW SULQFLSOH KDG QRW EHHQ ration. home arrest should decisions (2016-567/568 QPC ruling). Rapport public. and the supplementary obligations with Although it decided to derogate immediate. in order to protect the public order.fr/14/cr-cloi/15-16/c1516086. 4 Conseil d’Etat. logical advancements. and mative scope. it by considering that “The provisions of which it may be associated should be under ly the questioned norm.assemblee-nationale. that. Therefore. Rapport public. Etude annuelle:PTWSPÄJH[PVU et qualité du droit (2016) 2016 Global Review of Constitutional Law | 69 . 99).assemblee-nationale. this Article should in case the legislator decides its extension. during the parliamentary procedure.

3ff. ones resulting from an Act of 2013. was brought to the attention of the Conseil trolled the respect of freedom of enterprise some were declared unconstitutional: “By constitutionnel once again after the Decision by underlying that “The legislator is free to issuing offences regarding the infringement no. FDQFHOOHGDSURYLVLRQWKDWGLGQRWGH¿QHSUH- amendments that had no connection. The Conseil consolidated the under its consideration. nor regarding the right of property Nazi regime. tions in different ways. the content of which has the challenged provisions of the Transport ing from Article 4 of the 1789 Declaration. separation of powers. by country. especially because they resulted from make public the economic and tax indica. rights are concerned. upon obligations. 28. 82. both as far as mental and administrative authorities. 88). Various provisions related to the not violated. 2. Other relevant rulings of 2016 include the the two houses of Parliament (par. “the obligation of certain companies to to the quashed one. allows all of the operators in the tions (par. matter of the law providing for the different the Article 24bis of the Act of 29 July 1881 der the legislature’s power of assessment. the objection al- ed to (eg par. the contested second part of Article L. 139). QRWEHHQGH¿QHGE\WKHODZEXWE\WKHRI¿FH Code were found to be in conformity with to limitations associated with constitutional of each parliamentary assembly. 60). it MAJOR CASES way the said provisions needed to be inter. 50. see similarly par. 104. shared proportionate way in terms of the objective tools it has developed since 1958 to ensure by the parliamentary assemblies. the Conseil con. with the original content of the bill. this time UHTXLUHPHQWV RU ZKLFK DUH MXVWL¿HG E\ WKH ture infringed upon the principle of the legal. 41). no manifest (par. provid. the Constitution. No manifest or irrational disproportion was on the principle of equality before the crimi- ment rules. nor from departing ment of 8 August 1945 was not punishable.). to be in conformity with the Constitution. creation of penal offenses were criticised for eral interest the legislator had in view and being too imprecise. disproportion was found because of the gen.” As the cancelled provisions are similar to older Rights and Freedoms The respect of several substantive constitu. 38. and the Conseil moreover decided to make use of legislative procedure. and 122 to 135). DQG FRQVHTXHQWO\ TXDOL¿HG DV ³ULGHUV´ HJ market or exercising these activities. and 91). provided that this does not ity of offences and penalties” (par. the latter 1. sought” (par. Similarly. itary Tribunal annexed to the London Agree- nature of those belonging to the Parliament. In the present case. In general. but only grants it the competence to decide from equality in the public interest. In Decision 2015-512 QPC. as result. complete it or affect its scope. 2015-468/469/472 QPC. Neverthe. the Conseil ute. see also par. or for violating the prin. repeats that: “The constitutionality of a law preted in order to preserve the autonomy of already enacted may be examined upon re. 15. 120. since the negation of crimes against ticle 61 of the Constitution does not grant principle of equality was respected: “The humanity other than those mentioned in Ar- the Constitutional Council general powers principle of equality does not prevent the ticle 6 of the Statute of the International Mil- of assessment and judgement of the same legislature from regulating different situa. On the contrary. tionnel to make use of most of the procedural Representatives and public powers. falls on the Constitutional Council to ensure Neither was it regarding freedom of con. In the latter.Conseil quashed several provisions for hav. 54 crimes against humanity perpetrated by the ty between the infraction and the penalties and 60). the plaintiff ar- tional “proportionality control. 140). 103). the freedom of expression is incurred” (par. Criminal Prosecution of Negationism tional principles was also guaranteed by the are simultaneously declared unconstitutional Does Not Violate the Constitution Conseil within the framework of its tradi. govern. If it is necessary to in treatment is directly related to the subject incrimination of negationism by declaring LQÀLFW SHQDOWLHV UHODWHG WR DQ LQIUDFWLRQ XQ. According to this kind of Although several among them were immune leging a violation of freedom of enterprise self-restrained reasoning. but only after clarifying the (85-187 DC ruling). the objective pursued” (par. Taxi-drivers’ Freedom of Enterprise the appropriateness of the means it resort. following four: and 29). ciple of the legality of offenses and penalties. and fundamental cause it might infringe on the principle of it was not able to review the constitutional. This 10 of the Transport Code was found to be in result in harm that is disproportionate to consequently led the Conseil to quash other 70 | I•CONnect-Clough Center . The ularly their competitors. 25. subject the freedom of enterprise. In Decision 2015-516 QPC. Regarding this provision. Such an obligation infringes on public. tract and the stability of contracts (par. viewing the legislative provisions that mod. perceived when the Conseil ensured that the nal law. it treatment” (par. 9. 52ff). separation of powers.3121- public interest. 93 ff.” Regarding gued that the contested provisions infringed SHQDOWLHVLPSRVHGRQ¿UPVIRUYLRODWLQJSD\. from this defect (see eg par. the primacy of the Grundnorm. The Conseil rejected ity of statutes after they were promulgated this argument. the legisla. partic- par. even tors corresponding to their activity country cisely enough the offense of false accusa- indirect. a technique it had devised at the time when tion. 36). (par. to identify essential As a representative example of “catch all” validity of a provision regarding the creation elements of their industrial and commercial contemporary legislation under the Fifth Re- of a digital repository to ensure information strategies. provisions that were intrinsically connected ing been irregularly introduced into the stat. ify it. the quality of legisla- territorial collectivities was questioned be. the Conseil reiterated that “Ar. It equally held that by prohibiting denying that there is no manifest disproportionali. less. this statute led the Conseil constitu- for citizens on the relations between Interest the freedom of enterprise in a manifestly dis. 107. as well as on the freedoms of expression on the constitutionality of the contested laws ed that in both cases the resulting difference and opinion.

its 2014-453/454 QPC and 2015-462 QPC rulings. the Conseil declared the application to be in conformity with the Constitution and formulated two interpretative reserva- tions. and referring to the constitutional REMHFWLYH RI ¿JKWLQJ WD[ HYDVLRQ WKH MXGJH reached the conclusion that the contested cu- mulating is constitutional. The judge proceeded only to a reservation of in- terpretation specifying that a criminal pen- alty for tax evasion cannot be applied to a WD[SD\HUZKRKDVQRWEHHQGH¿QLWLYHO\EHHQ found liable for tax. In Decision 2016-738 DC. By providing that the exercise of the tional Council stated that the proportionality activity of taxi driver is incompatible with principle implies that the overall amount of the exercise of the activity of the driver of the cumulative penalties may not. the Council point. Second. and 2016-556 QPC. The limitations FLO VSHFL¿HG WKDW WKH JUDYLW\ RI WKH RIIHQVH to the freedom of enterprise determined by might be determined by the amount of the WKH OHJLVODWRU ZHUH MXVWL¿HG QHLWKHU E\ WKH fraud or the nature and the circumstances of objective pursued nor by any other general the taxpayer’s actions. However. nalists’ sources may be limited only if two istrative sanctions to penal ones in order to cumulative conditions are met: the infringe- verify whether provisions applicable to the PHQW PXVW EH MXVWL¿HG E\ DQ RYHUULGLQJ same persons and facts. which not be regarded as incompatible with that of PRGL¿HG WKH FXUUHQW UHJLPH IRU WKH SURWHF- the driver of a chauffeur-driven vehicle since tion of the secret of journalists’ sources. The Coun- 2016 Global Review of Constitutional Law | 71 . The Conseil emphasized that the secret of jour- Constitutional Council compared admin. the legislator in. Regarding the combined application of the contested provisions of ar- ticles 1729 and 1741 of the General Taxation Code. The saga of the ne bis in idem principle. First. and the search for perpetrators. Ne Bis in Idem (I-II-III) quirements. must be strictly necessary and proportionate tutional. the Conseil can- ed out that the activity of taxi driver should celled Article 4 of the contested law. the safe- 2016-546 QPC. under any a chauffeur-driven vehicle. ¿HVLW$FFRUGLQJWRWKH&RQVHLOWKHOHJLVOD- ed by compulsory health insurance schemes tor had not ensured a balanced conciliation to ensure the transport service for patients. exceed the maximum tariff WHQGHGWR¿JKWDJDLQVWWKHIUDXGLQWKHVHFWRU for any of the penalties imposed. the principle of the necessity of offenses and penalties requires that pe- nal sanctions apply only to the most serious cases of fraudulent concealment.violation of the Constitution. the secrecy of correspondence. the Constitu- interest. Freedom of the Press public highway. al- the two activities are carried out by means lowing such secrecy to be breached in case of vehicles comprising distinctive signs and an overriding reason of public interest justi- only light sanitary vehicles may be accredit. but divergent in public interest and the measures in question the quantum of the penalties. life. circumstances. were consti. By applying the criteria set out in to the aim pursued by the legislature. of the transport of patients and ensure the full exploitation of parking authorizations on the 4. in particular the right to private A series of three decisions 2016-545 QPC. between freedom of expression and commu- nication and several other constitutional re- 3. The Conseil held that the sanctions provided by the contested provision are both adequate in light of the offenses they punish and proportionate. form guarding of the fundamental interests of the part of the long-running constitutional law nation.

reaction to more and more subtly differen- pressed by such considerations. the FCC has taken a more that again is straining the resources of the activist stance towards matters of European Court. If judges take their case law seriously. Basic infor- mation on the Court in English. the institutional costs were particularly PDQ\²ZLOOWHOOXVZKHWKHUWKHFHQWULVWFRQ. has further increased the need and the opportunities for constitutional review. massive legalisation of politics. this project has also induced a COURT: TRENDS AND CHAL. In So far. visible in the CETA case. espe- become associated with the fuzzy notion of cially in the area of fundamental rights law. can be found on the Court’s website.de/EN/Homepage/home_node. is also a consequence of some of tax law frequently involve convoluted stat- the Court’s successes in the past. since the Court’s domestic caseload GERMANY has not decreased. which has shaped post-war politics in Senate of the Court had to decide overnight Germany for almost seven decades now.html. THE CONSTITUTION AND THE However. One example is the 2016 decision on 1 The Federal Constitutional Court is one of the most well-researched courts in the world. 2016.4. Senior Research Fellow at the Institute for Staatswissenschaft and Legal Philoso- phy at Albert-Ludwigs-Universität Freiburg and Emile Noël Fellow at NYU School of Law INTRODUCTION and international integration. it is tion against the approval of the Treaty by the an open question whether the constitutional German representative in the Council of the moments staged in Karlsruhe will continue European Union (see sub IV. matters and check multidimensional norma- coming the “reluctant hegemon” of Europe WLYHSURJUDPV²DWLPHFRQVXPLQJHQWHUSULVH (The Economist). observers and judges agree that the law proliferates. however. statutory less. to be of societal “integration” or whether the juridical taming of politics that has earned $GGLWLRQDOO\ WKH GRFWULQDO HGL¿FH WKDW WKH the Court its high reputation in the past will Court has built over the past 65 years.). a description of the various types of proceedings. utes. in LENGES1 turn. As elsewhere. Germany DEVELOPMENTS IN GERMAN CONSTITUTIONAL LAW Christoph Möllers. Populism is at the al role has strained the FCC’s resources. will on an application for a preliminary injunc- hold. parallel to Germany’s be.OLVɉJPHS statistics for 2016 are not available yet. http://www. In view of these developments. voice to the global constitutional discourse. stitutional doctrine is famous as an attempt to pre-empt and mediate the inherent irratio- nalities and injustices of democratic power. tiated constitutional requirements. This pressure. Professor of Public Law and Legal Philosophy at Humboldt-Universität ]X %HUOLQ DQG 3HUPDQHQW )HOORZ DW WKH . after almost a decade of protracted crises. a history of the Court and the annual statistics. the judges seem more or less unim. This outreach has opened up an inward-looking constitu- In 2016. where the Second sensus. they must dive deeply into highly technical Over the years.QVWLWXWH IRU$GYDQFHG 6WXG\ DQG7KRPDV:LV- chmeyer. is “elitism” that populist movements all over LQFUHDVLQJO\GLI¿FXOWWRVXVWDLQ*HUPDQFRQ- the globe pretend to attack so violently. &RXUWWRGD\LQ¿HOGVOLNHODZHQIRUFHPHQWRU however. In gates and 2017 – a big election year in Ger. taking up the new glob- German institutions began to show signs of stress and exhaustion. constitutionalism still reigned su. which. But.bundesverfassungsgericht. Cases brought before the FCC is under pressure too. tional doctrine and has added an important preme in Germany. 72 | I•CONnect-Clough Center . including a documentation of current and past cases. Neverthe.

preliminary ruling to the CJEU. that both courts have a point. The fact that it left the bridging the gap between its new global role argument about the preliminary injunction interpretation of the facts to an independent and its domestic responsibilities as well as was mostly concerned with the ESM. there were indications that the true normative complexity. the decision of the ECB into their complaint. sentially political decision that still kept the plaint in the main proceedings by including form of a central bank action. not for a well-meaning legislator to act constitu. TFEU. the majority referred the case for a was never really solved in the case. by and large.9 the Court had to establish a manifest ment surveillance. As the FCC is.. Instead. in which it held both but only “evident” ones that create a “struc- ute and developed in over 360 paragraphs measures. and ESM cerned. after the deci- underlying this and other judgements is cer. on the constitutionality of the OMT In its reference to the CJEU.. the Court had to ies) against federal legislation on the intro. But any- For the report we have chosen from 2016’s ESM and the Fiscal Treaty to be constitu. The 2016 couple of days after the Court had given a of European law through European organs.2 In this decision.8 To formally terminate Court noted that its own interpretation of the procedure. The CJEU. and the Fiscal Treaty were barely mentioned. on a dispute between supreme federal bod. decision again partly quashed the new stat. Cases that are fully translated program was not covered by the mandate of state can be made responsible for the action into English on the Court’s website are not WKH(&%)RUWKH¿UVWWLPHLQWKHKLVWRU\RI of an independent EU organ? This puzzle included in the report. the German Court had now to European law was not able to substitute the Probably the most debated case of the past react to the decision of the CJEU. takes. 123 and 125 evaluate a statute that was already drafted in duction of the European Stabilization Mech.5 tural shift” within the European competence even more precise requirements for govern. the plaintiffs extended their com.4 the Court. states through the ECB in Art. Only a standard. intention of the ECB’s action was different . relatively comprehensive and clear review the current challenges for the FCC include The Court accepted this and while the oral of the ECB’s action. the CJEU did not share the Ger. In order to conciliate these starkly contra- man concerns and decided that the decision GLFWLQJ SRVLWLRQV LQ WKLV ¿QDO GHFLVLRQ WKH CONTROVERSIES IN 2016 of the ECB was legal. the real challenge for the German Court major decisions those that demonstrate how tional.the investigative powers of the Bundeskrim. (%&. performed a So. it had to year was the FCC’s judgment from June 21.QWKH&RXUWGHFODUHGLQD¿UVWGHFLVLRQ from classical monetary politics. SURKLELWLRQ RI GLUHFW PRQHWDU\ ¿QDQFLQJ RI inalamt. Now. according to its own a very elaborate way in order to comply with anism (ESM) and the Fiscal Treaty. The rationalizing impetus in a famous press conference (“whatever it violation of the ECB. check according to a weaker standard if the 2016. to be constitutional. In but no violation at all. way. it was confronted with an tainly laudable.3 However.”). interpretation of the CJEU.7 As general- DEVELOPMENTS AND ly expected. gree of informality in German constitutional DFFXVWRPHGWRDIXOOÀHGJHGUHYLHZRIDQHV- tionally. Mario Draghi announced the OMT program order. As far as the German Court is con- with its more recent role as an evaluator of about the legitimacy of the ECB. the Court has to bank would function as a lender of last resort opinion that did not only see no manifest. the FCC had CJEU had rendered a meaningful indepen- Programme of the European Central Bank developed two legal arguments to explain its dent review of the legality of ECB action. Even if the ECB acted with- the Court is currently approaching these justices declared their opinion that the OMT out a mandate. procedure. which part of the German challenges. preliminary decision.6 In a second decision. six of the eight was procedural. promising to the markets that the sion of the CJEU. It seems fair to say into a casuistry that makes it impossible even a step that is not untypical for the high de. the expertocratic agency does not seem too un- balancing its traditional doctrinal approach oral argument in the main case was a battle usual. apart from the larger political context. not entitled to review all violations various previous FCC judgements. be careful not to let its jurisprudence develop in order to stabilize the common currency.

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Order of 17 April 2013. 2 BvR 1390 et al. Judgment of 18 March 2014. Second. 2 BvQ 17/13. 8 CJEU. 4 . OMT-Vorlage. 5 FCC. In the summer of 2012 at the economic politics being undermined by the To square the circle.OPZJVUJLYUZ[^VWVSP[PJHSS`PTWVY[HU[JHZLZ![OLQ\KNLTLU[VM(WYPS)]9  HUK)]9 7V^LYZVM[OL-LKLYHS*YPTPUHS6ɉJL which can be found here. BVerfGE 126. the Judgment of 6 December 2016. which can be found here. 7 FCC. the Court interpret. 1 BvR 966/09 and 1 BvR 1140/09. WKH&-(8¶VGHFLVLRQLQDYHU\VSHFL¿FZD\ and MPs raised constitutional complaints ed the OMT program as a violation of the an interpretation that can also be read as a and Organstreit proceedings (proceedings 2 Judgement of 20 April 2016. 366. First. Order of 6 July 2010. 1 BvR 2821/11. even if this review came to a different re- ment ends the longest case saga in the histo- it saw the distinction between monetary and sult than the FCC’s assessment (para. 2 BvR 2661/06. Judgement of 16 June 2015. ry of the Court. Honeywell. 2 BvR 2728/13 et al. 286. the FCC interpreted height of the Euro crisis. 1 BvR 321/12 and 1 BvR 1456/12 (Phase-out of nuclear energy and the right to property).. 2016 Global Review of Constitutional Law | 73 . BVerfGE 135. on the phase-out of nuclear energy and the right to property. Order of 14 January 2014. 3 Similarly. and the Judgment of 6 December 2016. BVerfGE 134. 161). C-62/14. a group of citizens ECB’s decision.. 6 FCC. 317. 9 FCC.:LWKWKLVMXGJ- doubts regarding the OMT Program. 1 BvR 2821/11. ESM-Vertrag. 1 BvR 321/12 and 1 BvR 1456/12.

74 | I•CONnect-Clough Center . the constitu- established the so-called “Committee of In.underneath their robes creative spirits hide. tion demands that copyright laws and their quiry into NSA Activities. the right to collect evidence. which grants inquiry committees versial issue in contemporary art: sampling. Rather. made it possible for children to initiate court groups and members of the Committee chal. proceedings in order to determine “legal pa- lenged the refusal citing Article 44 of the The case at hand concerns a highly contro. not the least because cases on art ty. Rüstungsexport. In other words.S. including all mutual rights and obligations.” which under German doctrine is derived refused to comply arguing that such a disclo. So. especially considering that the citation of an original sample is considered Decision of 13 October 2016.S. copyright law needs to strike a balance be- FL¿FLQWHUHVWVRIWKH&RPPLWWHHLQUHFHLYLQJ tween the property interests of the produc- MAJOR CASES the selector lists were outweighed by the HUV DQG WKH FRQÀLFWLQJ IXQGDPHQWDO ULJKWV potential implications of the collection for of subsequent users (para. and national security. 3 of the Basic Law explicitly parents is widely recognized as one aspect of documentation of all search terms (so-called recognizes the right to artistic freedom. and other jurisdic.).English press release available here. to be an important means for the “‘aesthet- The rights of the parliamentary committee mittee with detailed information on the co. security is not generally off-limits for par. To this end. 185. it read the decision which had recognized limits of the two-second rhythm sequence from the origi- ECB’s own description of the OMT program ULJKWRILQTXLU\LQWKH¿HOGRIIRUHLJQSROLF\ nal song and used this “sample” as a loop for as conditions for the legality of the program. The concept of a national security of cultural communities’ … and as such an Domestic separation of powers cases can exception will ring familiar to constitutional essential element of an experimentally syn- KDYH LPSRUWDQW LQWHUQDWLRQDO UDPL¿FDWLRQV lawyers from the U. The album featured a composition ternity. WLRQVRIWKH(&%:HZLOOVHHLIWKHVHVWDQ.” Some are only concerned with “bi- 10 Judgment of 21 October 2014. In 1977. gence activities by the German Federal Intel. BVerfGE 137. 1 in conjunction with Ar- VXUHZRXOGYLRODWHWKHH[SHFWDWLRQVRIFRQ¿. In the concrete case. The FCC took the CJEU’s factual The Second Senate ruled that the application called “Metall auf Metall. The Court Separation of Powers: Global and local national security and for the U. cases in. 1 BvR 3309/13 Security Agency (NSA) violate constitution. of Kraftwerk because the free use exception seq. further accentuating a 2014 later. – On the right to determine parentage al rights.” The primary pur.law give judges the opportunity to prove that from Article 2 sec.10 In the 2016 decision. ticle 1 sec. the German Bundestag skeptical in this regard.” Twenty years description of the ECB’s program as norma. the spe.Rights and Freedoms English press release available here. a legal Basic Law. is necessary. Kraftwerk then sued the com- e. a new song.volving the arts are relatively rare. the FCC had and would seriously undermine transatlantic eloquent prose on the importance of art and obliged the legislature to pass regulation that intelligence cooperation. 1 BvR 1585/13 ligence Service (BND) and the U. or FHLYHGIURPWKH16$LQRUGHUWR¿OWHUWUDI¿F case reported here with more than the usual of the so-called “general right of personali- at German Internet hubs. The Fed- SUHYHQW VWDWHV IURP UH¿QDQFLQJ WKHPVHOYHV right in light of the Government’s interest eral Court of Justice (FCJ) decided in favour directly through the program (paras. SRVHRIWKH&RPPLWWHHZDV²DQGVWLOOLV²WR investigate whether the joint signal intelli. the electronic music band Kraft. The Government excitement. government Usually. 2 BvE 2/15 – Government had already provided the Com. although The right of an individual to know his or her ed the Federal Government to hand over a Article 5 sec. terest is of constitutional relevance because mercial sampling. 82). was unfounded. thesizing process of creation” (para. these spirits are then transformed in Persönlichkeitsrecht). This in.-German then elaborated that in hip hop the direct challenges relationship.warning. national security belongs to the Govern- dards will be used some day by the European ment’s “functional” sphere of competence. National – Sampling and the right to artistic freedom Judgment of 19 April 2016. tistic freedom of the claimants.g. Many German scholars remain highly PXVLFJHQUHGH¿QHVLWVHOIWKURXJKDHVWKHWLF Snowden revelations. This reading creates something like vices and intelligence cooperation.For German constitutional judges. ternity. 2 BvE 5/11. 1 of the Basic Law (Allgemeines dentiality on behalf of the U. In 2007. In the aftermath of the tions. strategies involving copying.S. If a as shown by this case.Judgement of 31 May 2016.S. with regard to the safeguards that should the Court again evaluated the Committee’s poser and the production company.” Through such proceedings. a balancing test its legal analysis with the observation that English press release available here. Two parliamentary artistic freedom. It started liamentary inquiries. 99). a German hip hop producer took a tive requirements. German copyright law gave no right to com- a substantial constitutional standard for ac. the Court stressed that national FCJ’s decision had violated the right to ar- German European constitutional law. father-child relationship can be established. 163 et to effectively organize the intelligence ser. the general right to private life (Article 8 of “selector lists”).one can assume that the FCC approached the the European Charter of Human Rights). which the BND had re. application must take this into account. werk released its sixth album Trans Europa But children do not always seek “legal pa- Express. the Committee request. The First Senate of the FCC ruled that the courts or if they will remain just a piece of However. ic re-formulation of the collective memory investigating NSA spying operation.

267 <353. the distinction between foreign di- 11 Case 2/15 on the Request for an opinion submitted by the European Commission pursuant to Article 218(11) TFEU. Moreover. even though a The claimants argued that several parts of providing a genetic sample suitable for such different legislative decision might also be CETA did not fall within the scope of the a test. Howev. 2 sec. members of the child’s existing legal fami. OMT. Judgement of 21 June 2016. the Court of Justice interpretation was mandated by its constitu. 1 deal.. Lissabon.000 applicants joined forc- wide “margin of appreciation” when weigh.QSDUWLFXODUWKH the EU-Canada Comprehensive Economic junction leaves much room for interpreta- “right to respect for one’s private and inti. tional “right of personality. German er. however. the Basic Law) (paras. 2 sec. the (Article 79 sec.html. held that the constitu. BVerfG 123. 1 sec. 55–58). Art. 2 BvR 1368/16 and thus violate the “constitutional identity” who was born out of wedlock in 1950. In an unusual move. The core of the argu. 12 On this type of proceedings see http://www. The petitioners urged the in such a situation. 72). 2 BvR 2728/13 et al. 1 and sarily establishing a legal bond to this per. doctrinal construct that the Court had ini. BVerfGE 134. 59.constitutionality of EU acts by means of Republic of Germany” as a pre-condition for fected in his right to informational self-de. URSHDQ8QLRQLWDOVRDI¿UPVVHYHUDOSRLQWV stbestimmung) (Art. 13 See Judgment of 30 June 2009.es to challenge Germany’s participation in The lengthy opinion on the preliminary in- LQJWKHFRQÀLFWLQJFODLPV. 6 sec.RORJLFDOSDWHUQLW\´LHWKH\ZDQWWR¿QGRXW his right to physical integrity (Art. Relations resentative institutions in the Member States ly ties. 2 sec. the Court declined to issue the OLJKW RI WKH PDQ\ FRQÀLFWLQJ IXQGDPHQWDO constitutional complaint in the history of the preliminary injunction.11 it ordered a public hearing on the question But opponents of the trade deals also take whether a preliminary injunction should be The FCC. this provision only grants such a right for voters can claim that the competences of the the father. International and/or Multilateral hollow out the political process and the rep- want to give up their existing (legal) fami.. small group cannot be forced by legal means proceedings vis-à-vis the putative biological to consent to a genetic parentage test or to father is not impermissible. 2 of the Basic Law) not only guarantees for- son. In what was promoted as the “biggest deliberation. such a claim can be ly have a right to family life protected under mal participation in an election but meaning- based on § 1598a of the Civil Code.recourse to national courts. the democratically elected German parliament existing legal family vis-à-vis the other two legislature’s decision not to provide the must not be undermined (ultra vires control) members of that family.the Bundestag pursued the same objectives. The legal battle over multilateral trade agree. 2 BvR 2728/13 et al. turned to the FCC and argued that such an In the European Union. Addi- tionally. 1 sec. 3 and Article 20 secs. Honeywell. 286 <304>.12 emphasizes the importance of external trade tects both the mother and the potential bio. The complainant in the present case. was et al. 1 in conjunction ment is that the individual right to vote (Arti. eign and foreign economic policy as well 53–54). tion on how the case will be decided on the mate sphere” (Recht auf Achtung der Privat. the legislature has a Court. 2016 Global Review of Constitutional Law | 75 . Having failed to con. 2 of the constitutional principle of democracy who is their biological father without neces. competences of the European Union. it is already clear from und Intimsphäre) derived from Art.fassungsbeschwerde). cally unaccountable institutions – so-called who suspect that their legal family is not GLVSXWH VHWWOHPHQW ERGLHV²ZKLFK ZRXOG their real family. will soon decide on the division of powers The Court acted swiftly. WKHJOREDOLQÀXHQFHRI*HUPDQ\DQGWKH(X- termination (Recht auf informationelle Selb. Finally. People outside this means for determining parentage in isolated or hollowed out (identity control). relations the broad discretion of the Federal logical father from disclosing information on The claimants relied on a now well-known *RYHUQPHQW LQ WKH ¿HOGV RI (XURSHDQ IRU- sexual relationships against their will (paras. 1 GG are affected (paras. 1 of the Basic Law) and in cle 38 of the Basic Law) in conjunction with namely. which pro. a man whose biological tially invented to let citizens challenge the as the “reliability on the part of the Federal paternity is determined against his will is af. BVerfGE 126.and Trade Agreement (CETA) and thus ul. 63). Order of 14 January 2014. In German civil law.13 In other words. Nevertheless.bundesverfassungsgericht. the mother or the child within an In such a complex normative situation. that are crucial for the plaintiffs’ challenge. 37>. Order of 6 July 2010. 2 BvE 2/08 et al. CETA would empower democrati- This legal situation is unsatisfying for those English press release available here. including the issued. Decision of 13 October 2016. (Applications for a Preliminary Injunc. a preliminary injunction in order to prevent Civil Code should be interpreted broadly as fore the FCC the Council of the European Union from au- to give a claim also towards the “putative bi.an individual constitutional complaint (Ver. with Art. para. but not legal father”. In a parallel Organstreit proceeding. but who do not necessarily Foreign.timately the ability of the EU to close the merits. tion) – The EU – Canada Comprehensive Court to take immediate action and to issue vince the civil courts that § 1598a of the Economic and Trade Agreement (CETA) be. ful representation. of the Basic Law.” between the Union and the Member States. 366 <392 para.. rights claims at stake. thorizing the signing of CETA and its provi- ological. After a day of debate and a night of tional complaint was unfounded because in FCC. compatible with the Basic Law (para. sional application. 400>. 1 of the Basic the parliamentary group of the Left Party in WLRQDOFKDOOHQJHVVHULRXVO\:KLOHWKH&RXUW Law has to be taken into account. the decision that the FCC takes the constitu- in conjunction with Art. 148.de/EN/Verfahren/Wichtige-Verfahrensarten/Organstreitverfahren/organstreitver- fahren_node. the claimant ments is currently fought on many grounds.” over 200.

ac. was ment (no EU competence for the latter. Görgülü then.rect investment and foreign portfolio invest. or derogat legi priori” (a later law supersedes tion. the Court explained. D SULRU FRQÀLFWLQJ ODZ.

the Treaty Override Görgülü the rule that not only the Conven. Order of 14 October 2004. Technically a case from 2015 (the decision ber of the Federal Court of Finance. Treaty. the European Charter of Human CONCLUSION the ability of Germany. the two countries had agreed on of the Court’s previous decisions.14 Elevated means that all German ing and politically important decisions. and Borders: A Retrospective the FCC if the enactment of the Income Tax to international law” (Grundsatz der Völker. 36 decision addresses one of the central ques. tion but international treaty law in general volumes. and between 2000 and 2014. its beginnings. both violation of the principle of legality (Article as a matter of institutional capacity and of 5. – Treaty Override before the FCC. 53). because the Constitution cording to the Court. to lead substantial oral ar- the following years. Article emphasizes: “Democratic power is always Forgotten Revolution? (Hart & Nomos 59 sec. including the Basic Law.’” German Law Act would not only be a unilateral breach of rechtsfreundlichkeit) does not translate into Journal 17 (2016). This is only a modest increase. pp. allUXOHVRILQWHUQDWLRQDOODZ:KLOHWKHSULQ. The Court added that while tutional Court 1951–2001 (OUP 2015). Tax Act from 2003 directly contravened the the Basic Law is strongly committed to in. a violation gued judgments remains astonishing. 907–922. These stan. In order to 2016). as the FCC made clear. derived from WKH&RXUWSXEOLVKHGYROXPHVRILWVRI¿FLDO only in February 2016). collection. ciple enjoys constitutional rank. 14). the ability of the FCC. BVerfGE 111. the law. 76 | I•CONnect-Clough Center . In pretation was based on a serious misreading this treaty. debated since the 1970s. 3 Basic Law) and can be challenged political legitimacy. which is not up for judicial re-inven- 14 FCC. 53). and Future (OUP 2016). an elevated rank amongst German statuto. who referred the case to the FCC. 2 of the of additional limits to EU competences in issue of constitutionality? Basic Law the protection of human rights as several areas covered by CETA (paras. % Klaus Ferdinand Gärditz: “Territoriality. 54– one of the central values of German constitu- 58) and. volving the now defunct 1985 Double Taxa. tus of international treaties equals the status % Justin Collings: Democracy’s guardians. Basic Law itself has created a differentiated they are subject to the principle “lex posteri. balanced with the principles of democracy East Germany and Its Impact on Uni- mediately clear how the Federal Court of Fi. and consequently of 5LJKWV²DQ LQWHUQDWLRQDO WUHDW\²HQMR\HG the EU. +RZ FDQ WKH FRQ. However. tionalism (para. Görgülü. Present. How the standards will ry law. a different matter. BvL 1/12 20 sec. it is not im. 2016 was a year with many legally wide-rang- eral trade projects. system. democratic accountability of all institutions swer was Görgülü (para. in all. balance its commitment to international law ties enjoy the same rank as federal statutory with the idea of democratic government. In this seminal created by CETA (paras. The FCC REFERENCES measures to avoid double taxation. Germany’s international obligations but also an absolute constitutional obligation to obey % Dieter Grimm: Constitutionalism: Past. the an. The Court ¿HG*HUPDQ\¶V&RQVWLWXWLRQDO/DZ7KH nance could arrive at this conclusion. most importantly. The Federal Court of Finance asked ternational law. the referring cham. and parliamentary discontinuity. A tions of international law: when and how can supersedes federal statutory law and that the historical perspective may teach us that the states in dualist systems disobey internation. Decision of 15 December 2016. monly read as stating that international trea. in line Maybe wrongly so: between 1985 and 1999 dates from December 15 but was published with many German scholars. the existence ÀLFW EHWZHHQ WZR VWDWXWRU\ ODZV ULVH WR WKH itself recognizes in Article 1 sec. 307. 2 sentence 1 of the Basic Law is com. the FCC had decided that. Yet the English press release available here. Accord. the need to ensure For the Federal Court of Finance. And as a part of federal statutory law. English press release available here. ¿UVWUHSHDWHGWKDWDVDUXOHWKHGRPHVWLFVWD- ing to the German Federal Court of Finance. must be inter. to participate in ambitious multilat. 59). this inter- tion Treaty between Germany and Turkey. the normality of the Federal Republic since The case originated from a legal dispute in. Now. it must be % Stephan Jaggi: The 1989 Revolution in From a doctrinal point of view. cally contested questions has been a part of tutional principles” (para. 2 BvR 1481/04. GDUGV ZLOO PRVW FHUWDLQO\ EH ÀHVKHG RXW LQ despite the generally dualist approach of the WKH¿QDOGHFLVLRQDQGFRXOGVHULRXVO\LPSHGH Basic Law. a later of federal statutory law (Article 59 sec. 2 of A history of the German Federal Consti- statutory amendment to the German Income the Basic Law). on the ‘Refugee Crisis. a relatively be one of the more interesting questions in preted in light of the Convention and of the small institution. All relate to the CJEU’s Singapore decision will law. According to the FCC. of this obligation is at the same time also a danger of an institutional overstretch. para. seems to become more and more acute. judgments of the European Court of Human guments and to deliver many thoroughly ar- Rights. 59–65). 59). case from 2004. temporary power” (para. the principle of “openness Democracy. violate the German Basic Law. parliament may deviate from international presence of the Court in virtually all politi- al treaties? treaties only to protect “fundamental consti.

From March 2013. existing actio popularis. but with the reform. Judicial significantly modified the competencies referral as it existed before 2012 stayed in of the Constitutional Court and the role force. Court. with the entering 2016 Global Review of Constitutional Law | 77 . we would like to for everyone to turn to the Constitutional give a short overview of the most important Court without personal interest claiming decisions of the Court in 2016 and give that law. the Government and a one- Court regarding economic and financial fourth minority of the MPs (from 2010 constitutionality issues. Assistant Professor at Eötvös Loránd University OVERVIEW Finally. an amendment raised the number of judges from 11 to 15 without any justifiable The Hungarian Constitutional Court (Court. Constitution in 2010 and 2011 stayed in force concerning the government coalition Originally. the president entitled to initiate the abstract ex-post facto became elected by the Parliament for the review procedure of the Constitutional duration of the whole term of his office. pressing need. Changes implemented they state that an applicable piece of law is already by the amendments to the former unconstitutional. CC) finished 355 cases in 2016. The president of the the latter would need the cooperation of Court was formerly elected by the judges for all parliamentary opposition groups) were three years. Assistant Professor at Eötvös Loránd University. Only one- HUNGARY fourth of them resulted in a decision on the Among several changes. a legal provision or regulation some information about the political and was contrary to a constitutional provision legal background where the Court operates. Moreover. Fruzsina Gárdos- Orosz. the Fundamental merits. Senior Research Fellow at the Hungarian Academy of Sciences Centre for Social Sciences. and Zoltán Pozsár-Szentmiklósy. Hungary DEVELOPMENTS IN HUNGARIAN CONSTITUTIONAL LAW Eszter Bodnár. which means that judges in pending of the different institutions in initiating cases turn to the Constitutional Court in case constitutional review. complaint mechanisms was to protect against personal injuries caused by ordinary courts and provide a possibility for constitutional THE CONSTITUTION AND THE review also in cases where the complainant CONSTITUTIONAL COURT cannot turn to the ordinary court. and only a fragment ended with an Law introduced three types of constitutional annulment of the unconstitutional legal act complaints and abolished the formerly or court decision. the Constitutional Court may supervise the The Hungarian Fundamental Law effective constitutionality of legal provisions when from 1 January 2012 and Act CLI of applied in certain judicial cases and lead to 2011 on the Constitutional Court have an unconstitutional court decision. (abstract ex-post facto review). :H DOVR SRLQW RXW WKH PRVW important controversies that characterize this year’s The solemn aim of the new constitutional case law and seek some conclusions. besides the ombudsman (who gaining fundamental influence in nominating initiated almost all procedures of this kind judges and limiting the competence of the after 2012). The system of actio popularis meant that it was a legal possibility In this year-in-review.

Fundamental Law declares in Article R (3) in this regard as a very restrictive one as mentioned “court-packing” and the modified that the provisions of the Fundamental Law to the control of legislation especially in ways of the election of the members and shall be interpreted in accordance with their comparison to the former solutions.). for the first time Hungarian to the state budget. custom duties. duties and towards a more deferential understanding citizens without residency in Hungary could contributions. in reality. From 2010 to 2013. At the same time. Constitutional Court has started to take this CONTROVERSIES IN 2016 provision seriously as we will see in Decision The changes mentioned in Part II have led 22/2016 (XII. the president. religion. requirement expresses that residents have effect. due to the above. plus due to the competence purposes. This process voters will be at home on election day or go decisions of the CC as well. with the Avowal of National Faith restrictions. it should be regarded together became more difficult as the initiatives for of the Fundamental Law are repealed. The change in the composition treatment did not violate the right to free these acts in cases of violation of the above- has led to a change in the understanding of elections (Article XXIII of Fundamental mentioned rights. cases. and with the achievements of DEVELOPMENTS AND much of its actual relevance compared to the our historical constitution. In our examined on the merits by the Constitutional dissenting opinions questioned the relevance opinion. mentioning when it comes to the Hungarian residing in Hungary but who are abroad on the freedom of thought. the answer of the alliance of the governing accept political proposals formulated as parties to a CC decision. To summarize. Also. Interpretation democracy’s impact on political competition assess the constitutionality of acts related of the CC has changed significantly In 2014. The The new regulation can still be qualified of legislation. launched in constitutional complaint order to its European and international which is a disadvantage for non-resident procedures.into force of the Fourth Amendment to the Although the new provisions in the constitutional interpretation of fundamental Fundamental Law. the residence law on a certain tax imposed with retroactive the legislative majority in sensitive cases. As a result of a constitutional amendment to a change in understanding the protection in November 2010. 2 The Constitutional Court of Hungary. 78 | I•CONnect-Clough Center . which gives non- the constitutional review of the problematic only has the relation to former case law resident voters only one vote for party lists pieces of legislation became more frequent changed significantly in recent years but also (while resident voters can vote both for in procedures attached to concrete judicial the relation of the Hungarian constitutional single member candidates and party lists). procedures to initiate the review of a piece is ruled by the Fundamental Law. The easier method of voting was these constitutional complaints meant a reservations in the majority opinion with therefore considered by the Court to be severe restriction on the number of cases regard to the law of the European Union and a form of compensation for them. which annulled a legislative acts and show deference for According to the Court. It is also a major dilemma of 2016 the Chief Public Prosecutor can also submit the Constitutional Court provide for several how the interpretation of the constitution a proposal for a review of constitutionality. the two-thirds Sovereignty. a serious limitation of the competences of the Constitutional of the constitution and the protection of MAJOR CASES FRQVWLWXWLRQDOLW\ GLIIHUHQWO\ :H H[SODLQ Court was introduced. central taxes. the control of the legislation closing and miscellaneous provisions where The other argument was that although the and the government (strictly cooperating with it is declared that Constitutional Court possibility of voting by post seems to be an each other in this parliamentary democracy) decisions issued prior to the entry into force advantage. the Head of the Curia and Fundamental Law on the competencies of rights. In Decision 3086/2016 (IV. The cases below will show Law) and the right to non-discrimination Constitutional Court’s competences was that the majority of the Court is willing to (Article XV). not only participate in parliamentary elections and conditions for local taxes exclusively in the institutional challenges or the changes vote by postal voting. 5. Opinion on the Fourth Amendment to the Fundamental Law of Hungary [CDL- AD(2013)012] 83. the Court may only annul judicial body. the Constitutional Court may Part IV with the 2016 cases. or with rights related to Hungarian result of this. the period before 2010.2 of ECtHR decisions in the domestic principle of effective citizenship: that while 1 European Commission for Democracy through Law (Venice Commission). According to this the result of this different understanding in Decisions on elections and direct amendment. the new system. the Constitutional Court has lost (Preamble). In 2016. ’Statistics’ <http://hunconcourt.hu/constitutional-court/statistics> accessed 14 February 2017. and central of constitutionality. partly as a election day. the protection of personal data. the CC held that this difference in citizenship. the actual composition of the 26. this raises serious concerns as to the Court.1 As a result of is accelerated by the Fundamental Law’s to an embassy or a consulate to cast a vote. The high non-admissibility of counterparts. conscience and Constitutional Court but also. democracy or the rule of law a more intensive connection to the political majority having the competence to adopt are understood differently from earlier community so it can be expected that those constitutional amendments overruled other concepts developed by the CC. In 2016 the CC made voters. The restriction of the constitutionality.) below. postal connection with the rights to life and human in the competence of the Court are worth voting is not allowed to Hungarian citizens dignity. Not with the electoral system.

) and Decision 17/2016 but cannot review the constitutionality of (X.). Any other (not-for-profit advertisements with a public CC on constitutional principles and on problem that might emerge during the event purpose). According to the CC. (IX. So it upheld information about the exercise of executive The freedom of assembly is regulated in the decision of the Curia that decided that a power. or if the circulation of traffic cannot to broadcast ‘public service advertisements’ in concrete cases. the interpretation of the be secured by another route.) by stating that the media has a right evaluate the evidence and finally to decide courts.ensuring an advantage for the non-resident risk of a crime) can result in the dispersing Curia found that the advertisements of the voters. 5  AVS[mU 7VaZmY:aLU[TPRS}Z` º( 2‚YPH ]tNatZL H IL[LSLWx[tZP R]}[mY}S Za}S} UtWZaH]HamZP RtYKtZYȮS 6YZamNN`ȾStZP OH[mZR€Y Ha L\Y}WHP QVN OVTmS`mIHU» (2016) Jogesetek Magyarázata 1-2. in this case. press organs challenging the Curia’s decision approving hypothetical grounds (assuming that it initiated the examination of the judgments the referendum question. balancing between the conflicting rights question can hardly be regarded as a purely In Decision 3264/2016 (XII.4 According to would be dangerous and would violate of ordinary courts as these declared that the CC. the law brought the resident voters of the event. the CC upheld its position that the subject of the referendum approved by On the contrary. this reporter cannot add an opinion to the news. the CC affirmed the press organs violated the law by challenge the decision of the Curia because that there is an unconstitutional omission and publishing photographs of police officers as simple voters their fundamental rights prescribed that the Parliament implement in action without their prior permission. However. As in these cases. in the news report because this adjective conflicting rights. freedom of assembly in order to regulate the the protection of informational rights it can only examine the formal procedure of cases when the freedom of assembly and the In two consecutive decisions [Decision the Parliament (which was constitutional) right to privacy are in collision. 29. 14. However.3 18. 20. Such photographs can Hungarian legislative issue. It is worth adding 3 Eszter Bodnár. (VII.)] should be was unconstitutional. (VII. In the two similar also rejected the constitutional complaints it that forbade a demonstration based on constitutional complaints. 4 Decisions 3130/2016. in the concrete case. Government on campaigning to encourage into a relatively disadvantageous position. to of the representative state institutions or (X. 28.). Moreover. Their interpretations were According to the very liberal regulation. 20. 2016 Global Review of Constitutional Law | 79 . the CC of the police and the court supervising police officers concerned. the CC pointed out that the in line with many constitutional scholars that of demonstrations and resolve the collision conditions for publishing such photographs. The CC resettlement of non-Hungarian citizens district). In ZHUHQRWDIIHFWHGE\WKHGHFLVLRQ:HDUJXH safeguards to ensure the peaceful character its reasoning. primarily by restricting [Decision 28/2014. so it provides due information Increasing restrictions on political unless it makes clear that this is not a fact about contemporary events as public communication rights but an opinion of someone. in Decision 14/2016 photographs showing police actions shall the National Election Commission and the (VII.). (VI. the Hungary by an act adopted in 1989 as a huge political party cannot be tagged as “far-right” courts failed to balance properly between the step in the democratic transition process.). the CC annulled the decisions be published without prior permission of the Supreme Court (Curia).)]. held that the police voters to participate in the above-mentioned acted lawfully and constitutionally when it migration quota referendum initiated by the In Decision 3130/2016 (VI. not in accordance with the constitutional ex-ante ban on assembly is possible only requirements. Among other constitutional problems. The Hungarian Media Act states that a press was in conflict with human dignity. an constitutes an opinion and not a fact. non-codified reason to enact a Government were illegal.). 16/2016 (X. The Curia held CC upheld the resolution of Parliament prior restraint on a demonstration in front of that public service advertisements were just that ordered a national referendum on the home of the prime minister (the reason a means to circumvent the strict campaign the question ‘Do you want the European was the assumed violation of the privacy regulation and to ensure an illegal advantage Union to be able to mandate the obligatory of the inhabitants in the neighbouring for the Government in the campaign. 18.5 held this provision is not against the right usually be published if the publishing is to free expression and freedom of the press not arbitrary. the CC emphasized in two cases: if according to the police it It would seem that the CC expanded the that while ordinary courts are in the seriously endangers the proper functioning freedom of the press in Decision 19/2016 position to examine the state of affairs. the CC is unavoidable. into Hungary even without the approval an unconstitutional omission. 29. the CC. ‘All Voters are Equal but…Two Case Studies on the Voting Rights of Hungarians Living Abroad’ (2016) ICL 4. taken into consideration by the ordinary does not allow voting on questions that do not courts. However. the decision of the CC was far too deferential of the freedom of assembly with other as declared by the CC in a previous case because the question asked on the referendum fundamental rights.). the used a new. 3150/2016. The CC also argued that there was annulled this important Curia decision. meaning that of the Parliament?’ The Court held that the Parliament should amend the act on the Wrestling with other state institutions for according to the Constitutional Court Act. 29. 3151/2016. however. In Decision 13/2016 (VII. the scope of constitutional rights must be (like the violation of rights of others or the the CC annulled a Curia decision where the taken into consideration. the petitioners had no standing to others’ rights).). The Fundamental Law the first more. the freedom of the belong to the competence of the parliament. 22. 22.

data regarding the functioning provisions have no punitive or burdening The economic crisis of 2008 and especially of the companies owned by the National effect. The CC declared that the system details or as a whole. the CC found the a proportionality test.6 interests from other competitors present actual violation of their property rights only on the market. Due to the fact that the it examined the unconstitutionality of the funds are public funds and are performing examined regulation contained limitations legislative act regulating basically two public tasks. The constitutional dilemma in a later stage.) examined the claims. (VII. The loss its position developed already in 2014 and into consideration the source of their assets was caused by systemic irregularities in 2015. claiming that the act in and void and whether unilateral amendments freedom of public information. 6.). and their activity. the CC could have been quite similar to the case of of 2015 on the stability of the capital market.9 The Constitutional 6 i]H)HSVNOº(TLNR…S€UI€a[L[tZTȾ]tZaL[L!IxY}PTtYSLNLStZHR€aZaLYLWSȮRRLSRHWJZVSH[VZR€aStZLRZaHIHKZmNHRHWJZmU»-\UKHTLU[\T 7 Decisions 3103/2016. The case was initiated by the therefore rejected. companies owned by examined the constitutionality of the Act Novel constitutional ideas. 3222/2016.). 24. to the conditions for exercising the freedom Hungarian forint resulted in a significantly making process and therefore secret for of information. the CC further declined to overturn which stipulated certain restrictions on a punitive or more burdening effect. 1. declared that funds used by the foundations the amendment to the Act on the National Some financial institutions claimed that the established and companies owned by the Bank of Hungary: the president here did measures implemented by the act were not National Bank of Hungary are public funds. The constitutionality of publishing photographs companies in order to protect their business institutions are to be compensated for this alike is far from ending. Legislative 30 years while information regarding the law was found constitutional.).8 According to the decisions on the right to information show the complainants (equal treatment. (XI. In 2016. in constitutional interest. Overall the question limited the fundamental rights of to contracts are unfair. taking in the reimbursement program. In its Decision 34/2014 (XI. According to the argued in this 2016 case that the examined concerning foreign currency loan contracts. 6.) the CC by the Constitutional Court continuously. the retroactive effect of the worsened situation of debtors. The CC finally declared that the of the access to reimbursement in many questions: whether exchange rate margins challenged provisions were unconstitutional. right Post Office. (V. highly in the public interest.). 8 Act XXXVIII of 2014 on the Resolution of Questions Relating to the Uniformity Decision of the Curia Regarding Consumer Loan Agreements of Financial Institutions. therefore the information regarding for capital market investors. unconventional the National Bank are indirectly owned by on the special reimbursement program open constitutional measures and new doctrinal the state.12. 14. Concerning the foundations big brokerage companies could take part complaint procedures. 3167/2016.that the ongoing discussion of the ordinary on the publicity of data regarding the business gratia remedy for the loss investors were to courts and the CC on the legality and the activity of the Hungarian Post Office and its be offered by all financial institutions. 2. Those investors solutions were born in foreign currency loan- their activity is by definition data of public who lost property due to the bankruptcy of related decisions. The case was initiated the new provisions was unconstitutional. of reimbursement established by the law is restrictive effect on the fundamental rights of an ex gratia nature based on equity. the rules did not attain that the CC is often up to fight against the to property. the rule of law and the right to the level of unconstitutionality either in the restrictive interpretation of ordinary courts fair trial). but the CC declared expenditure shall be qualified as information simply that the retroactive introduction of the constitutionality of the related. The Constitutional Court to fair trial. the rule of law and the legal president of Hungary as an ex-ante review. acts aiming to help the situation and functioning of the foundations established related judicial decisions were reviewed by the National Bank were deemed similarly. (V. 14.). the CC enhanced established by the National Bank. dozens of constitutional complaints in foreign currency loan contracts are null as there was no legitimate aim to limit the were submitted. 20. In Decision 23/2016 (XII. the petitioner judges claimed that the amendment to the Act on the Hungarian interest. In Decision 2/2015 retroactive effect of certain provisions of regulation reasonable and based on public (II. by the president of Hungary (the head of the According to CC case law. in this decision also rejected the constitutional certainty were breached in credit crunch The new regulation introduced a limitation complaints of financial institutions as the ex related legislation. The act did have a or ready to challenge government attempts.). 9 See also Act XL on the Rules of Settlement Provided for in Act XXXVIII of 2014 on the Resolution of Questions Relating to the Uniformity Decision of 80 | I•CONnect-Clough Center .). In other aspects. 3098/2016. not object to the limitation of the public proportionate concerning the limitation of therefore the information regarding their access to these data. but only when it has in 2016. 3272/2016. which in question. problematic provisions as well.7 amendment.). always unconstitutional. 24. As they are only of a clarifying nature the rapid exchange rate depreciation of the Bank were considered part of a decision. The CC the decisions of ordinary courts in cases public information. aspects. According to the CC. (XII. the CC declared that their brokerage activities. The constitutional complaints were the principle of separation of powers. a piece of state) as an ex-ante review of the amendment legislation with retroactive effect is not In several constitutional complaint decisions to the Act on the National Bank of Hungary. according to the Act CXXIV In Decision 8/2016 (IV. the right Constitutional Court. The petition claimed their right to property. but the restriction itself could Selectivity in the protection of the rule of law constitutes no ground for such right-based not be considered unconstitutional under Decision 7/2016 (IV.

11 The Constitutional Court. not active in initiating ex-post facto review the extraordinary emergency solutions were of legislation. 10 According to statistics of the Constitutional Court.mIVYº(SHW[€Y]tU`¶ZHYRHSH[VZ[€Y]tU`¶[€Y[tUL[PHSRV[TmU`»PU)V}JÍKmT»-LRL[L)HSmaZLKZIl me semblait que j’étais moi-même ce dont parlait l’ouvrage – Liber Amicorum Endre Ferenczy7H[YVJPUP\T¶":aLU[LAVS[mUº(OPZ[VYPamS}HSRV[TmU`VamZWYVIStTmP¶H[€Y[tUL[PHSRV[TmU` tZH:aLU[2VYVUHHa‚Q(SHW[€Y]tU`ILU»2€aQVNP:aLTSL 12 Zoltán Szente. Alkotmánybíróság. in 2015 630 motions were submitted to the Constitutional Court in the same subject and 1. The CC emphasized that the of participatory democracy is underlined. In Decision 22/2016 (XII. based on the principles of equality and participation is made possible in the form collegiality. As to its relevance as a balancing factor The constitutional identity of Hungary the constitutional identity. constitutional questions. historical constitution not defined so far in the positive constitutional law in effect The CC established that the EU provides might have a new. Judges. Retroactive effect exercise of competence shall not violate of a piece of legislation is rarely found Hungary’s sovereignty. but protection of constitutional identity should many decisions justify restrictions on actual take the form of a constitutional dialogue democratic participation. The role identity.). view. but on the other hand freedom exercised competences.hu/dokumentumok/statisztika/2015 accessed 14 February 2017. second. has never been further points in 2016. If the Fundamental Law is amendable to the European Union’s Council Decision only up until it does not interfere with (EU) 2015/1601 of 22 September 2015 on the historical constitution as a basis. 2016 Global Review of Constitutional Law | 81 . All claims were rejected. another the major competencies of the Constitutional 2016 with regard to the various constitutional fundamental right.Court rejected all judicial referrals. The country’s interpretation of the Fundamental Law historical constitution as an element of had been requested from the Court by the the unamendable identity also poses new ombudsman. the inviolable to governmental powers. the sovereignty of Court to question the constitutionality of complaints. stronger position at least adequate protection for fundamental rights. relevant decisions were carefully designed not to impose undesirable constraints on The Court set two main limitations in the the legislature. On the other hand. State institutions are although the CC itself acknowledged that historical constitution. Later. As we explained. effect and furthermore did not allow for a constitution claiming that the Fundamental constitutional justice is puzzling in 2016 as fair trial. however. First. it certainly loses defined as making reservations to EU law core of the constitution. implemented with each of a popular vote when it can have no legal other’s mutual respect.10 Hungary or its identity based on the country’s government actions. but other fundamental rights. therefore. Furthermore. As explained in the motion.300 constitutional complaints with essentially identical texts were submitted in the same period. cannot set aside the protection of fundamental CONCLUSION rights. 700 foreign currency loan cases were active on 31 December 2015. as a tool of the constitutional interpretation. remain the problematic from the rule of law point of The curiosity of the case is that this is the key actors in initiating important petitions. the migration. The Constitutional the Curia Regarding Consumer Loan Agreements of Financial Institutions and on other related provisions. 5. They imposed an unreasonable burden first time that the CC has ruled explicitly raising fundamental questions together with on financial institutions with retroactive on the relation of EU law and the domestic the individual complaints. and it must grant that the joint exercise of competences would not result in violating The above cases showed that the CC human dignity or the essential content of decided important matters in 2016. Financial support is given in the Constitutional Court concluded a great examination of whether the joint exercise important cases. Constitutional complaints remain currency loan crises legislation in 2015 and EU would violate human dignity. 11 :JO^LP[aLY. it shall not unconstitutional although the CC alludes to lead to the violation of its constitutional the rule of law in many decisions.12 There are considerable context of the question on the legal acts of improvements with regard to the right to the Union that extend beyond the jointly information. questions in the Hungarian constitutional the concrete constitutional issue was related order. the joint of the press is limited. ‘The political orientation of the members of the Hungarian constitutional court between 2010 and 2014’ (2016) 1 Constitutional Studies 1. Law has ultimate supremacy in fundamental to the evaluation of doctrinal development. the defined as such formerly. ‘Statisztika’ http://alkotmanybirosag. but the circumstances are number of decisions on the subject of foreign of powers by way of the institutions of the not clear. Court established its competence for the consequence.

In 1999. In 1959. amendment based on the constitutional draft- 1920 and 1944). The constitution of elected. So changed. DQGVWLOOUHPDLQV²DUHSUHVHQWDWLYHGHPRFUD- cided that a republic would be founded once cy with an elected head of state that holds a it became possible to end the association largely ceremonial role. but expressly 2016 was a tumultuous one in Iceland. an amendment to simplify the have taken place since the first undisputed. a Constitutional Council Iceland has. In spite of the important electoral system was amended once again changes to the constitutional system. The current Constitution of Iceland dates 7KURXJKRXW WKLV WLPH . the Prime Minister resigned after republic. the rules on eligibility to will seminal court cases decided in 2016. which hit the country severely. the electoral sys- tem was amended once again. at the founding of the Republic were those tary elections to take place in the fall were directly related to the head of state and the announced. Dean of the School of Law. but this draft has of 2008. re. not been adopted either. These events will be dis. that the Con- begun in 2011 is still underway although it is stitution has remained unchanged from 1944. Reykijavik University Anna Lísa Ingólfsdóttir INTRODUCTION with Denmark after 1943. the tional continuity. How. the electoral system was drastically This will also be discussed further below. parties had representatives elect. unclear to what extent changes will be made. the events of the year mostly played those directly following the dissolution with out in elections and on TV. a new president was mode of government. a completely revised chapter on hu- Iceland’s constitutional history from the late man rights was adopted and the fiscal con- 19th century is characterized by constitu. it was de. That project was abandoned in the a government was no easy task and the year 50s. in 1984. Consequently. trol of Parliament was clarified. in 1968. tional committees were at work from 1944 ed to Parliament. Constitu- October 7. Iceland DEVELOPMENTS IN ICELANDIC CONSTITUTIONAL LAW Ragnhildur Helgadóttir. In 2011. 1983 but was not adopted) and then again in 2009. In 1995. however. the year constitution for the republic. In the parliamentary elections on 1944 was viewed as provisional. and parliamen. A constitutional committee was set. ad- ly Icelandic Constitution of 1874. Al- thing (the Icelandic Parliament) was made THE CONSTITUTION AND THE unicameral and the distinction between the COURTS executive and judicial powers made clearer.FHODQG KDV EHHQ² from 1944 (no. In the Danish monarch and the founding of the early April. the constitutional drafting process This does not mean. charged with drafting a From a constitutional perspective. the only changes a scandal concerning his off-shore property made to the constitution of the monarchy ICELAND broke on national television. vote were altered. in spite of the financial crisis drafted a new Constitution. to be taken up again in the early 1970s ended without one. In June. ing that took place in 2011-2013. forbidden to make any amendments except ever. which and in 2013. which meant that forming onwards. a parliamentary sys- 82 | I•CONnect-Clough Center . amendment procedure entered into force. mained a stable democratic state. not in courts. To some extent. In 1942. 33/1944). in 1991. (a new Constitution draft was introduced in cussed in more detail below. only three opted in order to make it easier to pass any Constitutions have entered into force (1874.

ruv. HYHU KDG DQ\ LQÀXHQFH RQ 0U *XQQODXJV.which provides that executive acts become Large parts of the public viewed this as lution of Parliament is permissible under valid when counter-signed by a Minister. A new election tively low. Parliament or not. 2009.tem of government and independent courts. WULVDVDFRQÀLFWRILQWHUHVW4 In Icelandic constitutional law.QFHVWDEOLVKHGLQDWD[KDYHQ2QH whose chairman stated in the media that In spite of the limited role of the head of of the main issues of his career as Prime Min- the dissolution order from the President had state. the Prime Minister was increasingly isolat. had refused to dissolve Parliament.arisen. ‘Iceland gets tough with foreign creditors of failed banks’ Bloomberg.html. In a press conference President shall entrust his authority to Min- acts as well as executive decisions. the day before Prime Minister while keeping his position as the President could not dissolve Parliament a law entered into force that would have re- Chairman of the party.uk/news/world/europe/panama- papers-icelands-prime-minister-walks-out-of-interview-over-tax-questions-a6967091. 14 of the Con- tutional review is thus vested in all courts. able constitutional uncertainty arose. 1.com/news/articles/2013-05-09/iceland-gets-tough-with-foreign-creditors-of-failed-banks accessed 17 April 2017.visir. the exercise judicial review of parliamentary solution of Parliament. the President stated that isters. irrespective of whether the ownership the President of the Republic may dissolve However.uk/ news/2016/04/04/icelands-prime-minister-walks-out-of-interview-over-tax-haven-qu/ and http://www.is (Reykjavik.co. however. The second question was whether the Parliament liament. indeed. All courts President and (allegedly) requested the dis. and according to art.7 unless the Prime Minister agreed. but that he. that by the President.g. On dissolution.OVYHYLUZLU º1\KPJPHS*VU[YVSV]LY(S[OPUNP!(S[LYLK)HSHUJLVM7V^LYZPU[OL*VUZ[P[\[PVUHS:`Z[LT»:[Q}YUTmSVNZ[Q}YUZûZSH 2 :LLMVYJSHYPÄJH[PVU>PRPWLKPHº7HUHTH7HWLYZ»O[[WZ!LU^PRPWLKPHVYN^PRP7HUHTHF7HWLYZHJJLZZLK(WYPSHUK3\RL/HYKPUNº>OH[HYL[OL Panama Papers? A guide to history’s biggest data leak’ The Guardian (London 5 April 2016) https://www. ‘Féllst ekki á ósk Sigmundar Davíðs um þingrof’ ruv. It thus seems that the protagonists President could independently evaluate a re- The main constitutional event of 2016 began in this drama disagree on whether the Prime quest for the dissolution of Parliament. There are eight district April 5th. 5 Freyr Gígja Gunnarsson. the theory for much of the who was then Prime Minister of Iceland. 5 April 2016) http://www. stitution. the Prime Minister met with the their mandate until Election Day. thus in effect making the ¿FHRIWKH3ULPH0LQLVWHUVWDWLQJWKDWWKHKH electorate the arbiter of the scandal that had Presidential Authority and the Dissolution of had in fact not requested dissolution of Par. courts and one Supreme Court.solve Parliament. son’s politics. after their meeting. when and a course of events in which consider. 13 of the Constitution. It is clear. nouncement of the dissolution.telegraph.is (Reykjavik. 7 Ibid. :LQWULV. executive acts.2 Sigmundur Davíð Gunnlaugsson.youtube. Ministers are accountable for all Courts in Iceland have been relatively active tion of Parliament. refuse to from the Swedish and Icelandic state broad- the option of dissolving Parliament with his sign such an order on April 5. Be- with the publication of the so-called Panama Minister indeed requested the dissolution of cause of the largely ceremonial role played Papers.com/watch?v=Zx7c8huezqY For English-language commentary. 2016 Global Review of Constitutional Law | 83 .is/frett/fellst-ekki-a-osk-sigmundar- davids-um-thingrof accessed 2 April 2017. inter alia bours) in finding laws unconstitutional. http://www. according to art.com/news/2016/apr/03/what-you-need- to-know-about-the-panama-papers accessed 17 April 2017. the President.co. convene not later than 10 weeks after its a new Court of Appeals will come into ex. Þingræði á Íslandi: Samtíð og saga (Forlagið 2011). casters when asked about a company called coalition partner (the Independence party). ‘Sigmundur Davíð segir forsetann hafa sagt ósatt’ visir. Gunnlaugsson’s Pro. the Prime Minister had requested a dissolu. a short press release came from the of. faith. This is TXLUHGKLPWRGHFODUHWKHRZQHUVKLSRI:LQ- based mostly on art. 5 April 2016) http://www.6 Mr.8 There was therefore no doubt that wife) for $1 on Dec. Althing shall The court system is (until Jan.com (10 May 2013) https://www. 4 See the full interview at https://www.is/g/2016160409279/sigmundur- david-segir-forsetann-hafa-sagt-osatt accessed 17 April 2017. Members of Althing shall retain istence) two-tiered. Althing (the Parliament). 31. the disso.whether the President could step in and dis- CONTROVERSIES IN 2016 ence. bloomberg. But the President did.g. 6 Nanna Elísa Jakobsdóttir.would take place unless both the Prime Min- became clear that he had sold his half of the gressive Party decided in a party meeting ister and the President agreed on that de- company to his co-owner (the woman now his that very same day that he would resign as cision. The ensuing scandal led to must take place within 45 days from the an- the largest protests in the history of Iceland. D FRQÀLFW RI LQWHUHVW DQG D EUHDFK RI JRRG art. public trust in institutions is rela.independent. Brian Bremner and Omar Valdimarsson.20th century had been that this was not the walked out of a TV interview with journalists ed politically and that he had not discussed case. it had been argued in theory at least ister had been the treatment of foreign credi- been intended as a threat to get the coalition from 2009 that no dissolution of Parliament tors after the financial crisis of 2008.3 It later to stick together. see e. It provides that The question that remained was whether the 1 :LL9HNUOPSK\Y/LSNHK}[[PYº:[H[\Z7YLZLUZ¶1\KPJPHS9L]PL^PU0JLSHUK» 5VYKPZR. (compared to most of their European neigh. 8 Ragnhildur Helgadóttir. the question arose Shortly after the President’s press confer.1 because he wanted to discuss this with the The constitutional question concerning the other party in the coalition government.theguardian. 2016. 19 of the Constitution. Consti.PKZZRYPM[MVY4LUULZRLYL[[PNOL[LYHUK)Q€YN. 3 See e. However.5 GLVVROXWLRQRI3DUOLDPHQWZDVWZRIROG¿UVW DEVELOPMENTS AND as the crisis was brewing. 2018. 24 of the Constitution.

12 The third coalition party.is (Reykjavik 5 April 2016) http://stundin. it must be noted that the provisional emergency use of presidential powers. the President clearly thought that stitution and wanted to use the draft that the sive work that has taken place in the past few the Prime Minister’s request was arguably a Constitutional Council presented in 2011 at years.SLJ[PVU! -PUHS YLZ\S[Z» O[[W!PJLSHUKYL]PL^JVTUL^ZPJLSHUKZWHYSPHTLU[HY`LSLJ[PVUÄUHSYLZ\S[Z accessed 17 April 2017. They also mention that it constitutional act) will thus be applicable to clusive and innovative process. 12  0JLSHUK YL]PL^ º0JLSHUK»Z 7HYSPHTLU[HY` . believes such was her opinion already on April 5. That can hardly be recon.’14 However. 5 April 2016) http://ruv.is/english/ accessed 17 April 2017. cussed thoroughly in public before being of the Republic may not be held accountable pletely new one.President had been within the boundaries on the draft’ in a referendum in the fall of Finally.15 in order to facilitate building on the consti- The Fate of the Constitutional Draft of 2011 tutional drafting of the last few years. proved enacting a new Constitution ‘based other travaux preparatoires need to be clear.com/Stjornarskrarfelagid/videos/1317088394968676/. will be continued on the basis of the exten- However. 14 :QmSMZ[¤óPZÅVRR\YPUUº:[Q}YUZRPW\UHY¶VNLM[PYSP[ZULMUKSHUKZM\UKHYmS`R[\U#O[[W!_KPZ^WJVU[LU[\WSVHKZ:[Q. The cabinet will invite all political misuse of the possibility of dissolving Par. a Constitutional Council was tasked The party Bright Future wants to use the run its course on April 30.10 The open question that took power in January 2017 fundamentally to the Constitution that will be submitted to remains in Icelandic constitutional law is disagree on how to go about the changes. 9 ÍZSH\N2HYLU1}OHUUZK}[[PYº-VYZL[PHSKYLPOHMUHó[PSS€N\MVYZ¤[PZYmóOLYYH\TôPUNYVM»stundin. it is stated academics were more hesitant to accept the it in some ways and update it.18 for executive acts’. apríl’ ruv. and not only an ty. for improvement. as it is stated clearly in ly considered and that it is not desirable ‘to is important for the amendments to be dis- the Constitution’s art.is (Reykjavik. One of the authors in 2013. ocratically elected Parliament as leverage to in the 2016 elections can be divided up in increase his chances of success in negotiat. Parliament no later than 2019. the party believes that there Finally. that the work of revising the Constitution constitutionality of the President’s action. The different standpoints of political parties separation of power. as he stated at the press conference representatives to a parliamentary com- that it wasn’t possible to use the presiden. The draft was discussed in Parliament time to familiarize itself with the new Con- dissolving Parliament when requested to do but not adopted before the general elections stitution. WKDW LW LV QHFHVVDU\ WR ¿QLVK WKH UHYLVLRQ RI This was based on the assessment that these Before the elections that were held in Octo. 2017. 11 that ‘The President overthrow the Constitution and get a com.13 say on important issues and to sharpen the attempting to use the dissolution of a dem. parties represented in Parliament to appoint liament.9 er hand parties that championed a new Con. 13 See e.11 Voters ap.facebook. 10 Freyr Gígja Gunnarsson. They want to strengthen di- were the extraordinary circumstances of a ber 2016. 11 Stjórnlagaráð. ‘Lygileg atburðarrás 5.is/frett/forseti-aldrei- hafnad-tillogu-forsaetisradherra-um/ accessed 15 April 2017. If these events signal a ciled with predictability and legal certain- more powerful presidency. the Constitution. will In 2011. Viðreisn. The Independence Party believes that every GHUWDNH VXFK HYDOXDWLRQV² DFFRXQWDEOH IRU change to the Constitution should be careful. The regular by Parliament to draft a new Constitution draft of the Constitutional Council but act amendment process (two Parliaments with for Iceland. provided for a special amendment process idential powers should be updated. discussed in Parliament. and on the oth.g.17 KRZ WR KROG D 3UHVLGHQW²VLQFH KH FDQ XQ. The coalition agreement also notes that it his or her decisions. that should be a provision on referendum in the amendment enacted by Act 91/2013. two: on one hand the parties that wanted to In the coalition agreement between these ing how to endure a political scandal. ‘The Constitutional Council – General information’ http://stjornlagarad. the videos made by Stjórnarskrárfélagið https://www. in which anti-revisionist parties of this article (RH) stated in the media that gained a majority in Parliament. NGOs and others tried to put the rect democracy so that the public can have a very isolated and arguably distraught PM constitutional revision back on the agenda. which question will be immensely important.16 so by the Prime Minister. It handed a draft Constitution on objective and well-founded suggestions a general election in between must adopt a to Parliament later that year after a quite in. It is interesting to note that the parties who mittee. Other hold onto the current Constitution but amend three parties from January 2017. which will work with specialists in cy in a tug-of-war between the leaders of formed the coalition government which constitutional law and agree on amendments political parties. is necessary that the explanatory report and any amendments discussed in 2019. they think that the nation should get of his role when he refused to sign an order 2012. Constitution and that provisions on the pres. least as a starting point.is/frett/lygileg-atburdaras-5-april accessed 2 April 2017.

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59/1992 on the matters of people with disabilities. obligations towards persons with disabilities they were repeatedly asked to leave and had ment and found it clear that by signing this that were legally imposed on the city. The Supreme road administration could continue the con- the Interior Minister was competent to make Court also noted clearly that the UN conven. the Minister had obligated the city of Reykjavik was acquitted. the rules governing agreements such as that that the road construction had been lawful ident Edict no. ed in 2010. 13 and 14 of the Icelandic (CRPD). so that she incorporated by Act no. but this list included affairs concerning placed any further obligations on the city public order and to ensure that the public transportation. 2016 ents’ house every other week. Hrd. 40/1991 on municipal social services. All of the tive acts. 19 with rules thereon. First of all. 80/2016 of December 1. 59/1992 duty to do what was necessary to preserve ed. The Supreme Court had also found (in previ- state of Iceland to announce the closing of ous cases) that the actions of the police had There are two noteworthy aspects to the WKH ODQGLQJ ¿HOG +RZHYHU LW IRXQG WKH UH.hard-line dualism that characterized Icelan. (art. 67 of the Constitution and week at a home for people with serious dis. the Court states clearly that the CRPD the Constitution). been in accordance with the principle of pro- quest that zoning rules be revised to be un. Hrd.MAJOR CASES number of hours of help in the house. of them sued against the Icelandic state for the Ministers are responsible for all execu. 2016 125/2000) to interpret domestic law in light an arrest. The city of Reykjavik refused that request. the city of Reykjavik had WKHDXWKRUV¿QGLWPRUHOLNHO\WKDWWKLVFRP.of international obligations but that is not ing peacefully was a violation of freedom of ties who received payments from the city GRQHKHUHWRDGHJUHHVXI¿FLHQWWRUHTXLUHWKH expression. 268/2016 of June 9. had not been incorporated into Icelandic law It was undisputed that the people arrested and could therefore not increase the city’s had not obeyed police instructions when The Supreme Court interpreted the agree. the plaintiff that the CRPD had indeed been eral help and a supporting family. The Supreme Court found Cabinet Act no. A few the Ministers execute his powers. 19 of the such an agreement but the Supreme Court on the Rights of Persons with Disabilities Police Act. ing inter alia the state to close one landing 1 of art. The therefore tried to prevent the construction. as to trump older laws. such an agreement in the name of the Icelan. cussed this argument and stated that art. 5 of the ECHR. requested that the payment be increased so the international obligations that Iceland is ital city of Reykjavik and the state of Iceland that she could live in her apartment full time. this.’ In light of and centred on whether the state was obligat. of the Police Act was a rule of conduct. 100-108/2016 of December 8. which states that the public shall noted that arts. the Court held that than those listed in these rules. MXVWL¿DEOH terpret article 76 of the Constitution in light of the state’s obligations under the CRPD. However. The plaintiff executing of this Act ‘shall be informed by In this case. 71/2013. and thus agreed to pay inter alia for a certain ment was added to refute the argument by that a violation of that rule was punishable. in which all matters made with S. 59/1992. sions of Act no. Therefore. guaranteed by D ODYD ¿HOG FDOOHG *iOJDKUDXQ 7KH\ ZHUH of Interior did not have the authority to make certain acts19 as well as the UN Convention condemned for violation of art. 2016 Global Review of Constitutional Law | 85 . it seems likely that the Supreme Court HGWRFORVHRQHODQGLQJ¿HOGLQWKHGRPHVWLF was just clarifying that this reference was in- airport in Reykjavik. But this is not clear. It The plaintiffs argued that art. the Interior In this case. art. 40/1991 nor Act no. the plaintiff argued that by re.g. 73 of the Constitution) and of Reykjavik which enabled her to receive city to enable S to live independently. the dispute was between the cap. S. provisions of the administrational law. bound by. The Court also cited art. portionality. and that The Supreme Court stated that the city’s de. especially the CRPD. cision was a refusal to provide the plaintiff compensation for unlawful arrest. the city had contravened several in interpretation but was not incorporated so Reykjavik had signed an agreement requir. obey police instructions when the police are Constitution provide that the President lets maintaining law and order in public. the Court’s refusal to in. 1 states that the Hrd. It held that neither the provi. 74 of full service in her own home because of her ondly. and that arresting people protest- The plaintiff. In 2013. 115/2011 and art. tended to lead to the Convention being used Minister and representatives of the city of fusing. arrest and placement in a prison cell was a meant that she had to spend every other This may herald a step back towards the violation of art. and art. As amend- Separation of Powers could live in her own apartment in her par. 4 of Pres. the state argued that the Minister of people with disabilities. Act no. 71 of the Constitution (protecting ¿HOG RI WKH GRPHVWLF DLUSRUW DQG WR UHYLVH the right to privacy and family life). 19 of the Police Rights and Freedoms is traditional in Icelandic law (see e. In an agreement done in accordance dic court decisions before 1990. case. 19 Act no. 1 of the with services beyond what was required by cases were alike. 76 of the Constitution (guaranteeing certain A group of people were arrested in 2013 social rights) and interfered with the rights for protesting the building of a new road in In the case. Sec. agreement. (legal) and that the police had therefore the assigned to the Ministry of Interior are list. 2013 zoning rules for the airport. that Act’s art. 3 of art. is a woman with disabili. para. Act did not provide clear authorisation for Hrd. The Supreme Court dis- abilities. struction. freedom of assembly (para. tion on the rights of persons with disabilities dic government. gen. They also argued that their GLVDELOLW\²EXWRQO\HYHU\RWKHUZHHN7KLV has not been incorporated into Icelandic law.

66 of DI¿UPHG ZLWK DGGLWLRQDO FRPPHQWV. have custody of the child is not an expulsion tiffs. stated that return of a child to those that It was therefore lawful to arrest the plain. The lower court (whose opinion was within the meaning of para. 2 of art.as evidenced by a number of earlier cases.

The Supreme Court noted that the child protection agency had provided a statement from Norwegian authorities stating that it had been unlawful to leave Norway with the boy and keep him elsewhere. remains on Act no. The arrests dent is arguably more unclear than before as were therefore held to be lawful and the state the traditional view of a strictly ceremonial was acquitted. and that the provision did that the authorisation for arresting people in therefore not prevent returning a child with this case was not art. 80/2016 of December 1. which states inter alia that no Icelandic citizen shall be expelled from the state. ducted Children. 88/2008 of criminal proceedings. The boy’s mother and grand. The Supreme Court 86 | I•CONnect-Clough Center . International and/or Multilateral tempt by an embattled Prime Minister to get Relations an order to dissolve Parliament. 19 of the Police Act. Icelandic citizenship based on the Act. 1 of art. 160/1995 on the Recognition and to be seen. 707/2016 of November 9. 2 of art. 66 of the Icelandic Constitution. 2016 See above. The outcome regarding constitutional chang- es and the continuation of the amendment Hrd. 5 of ECHR had constitutional law in 2016. Other cases discussed here were Enforcement of Foreign Decisions on the clearly in accordance with earlier case-law Custody of Children and the Return of Ab. and theories. It held that it was not the Icelandic ju- diciary’s role to re-evaluate that verdict. not been violated. The Nor. Hrd. but para. It noted that the freedoms of assembly and expression could be limited It is interesting that the role of the Presi- by law to maintain public order. 2016 process started in 2010 is quite uncertain. QRWHG the Constitution. CONCLUSIONS The Supreme Court thus held that the arrest It is too early to determine what the most had been in proportionality and that art. $GLVWULFWFRXUW¶VUXOLQJRQGHYROYLQJD¿YH Arguably the most important Constitutional year-old Icelandic boy to the Norwegian Court case of the year was the case concern- child protection agency was appealed to the ing assistance for independent living. 90 in Act no. The Supreme Court also noted that the Norwegian agency had custody over the boy according to the custody decision in Norway and Norwegian law. in the summer of 2016 after the mother had either for the protection of rights which are lost custody of the boy in Norway. The Supreme Court. decision does not seem unduly progressive mother had taken the boy illegally to Iceland but whether it actually is a step backwards. guaranteed both in domestic and internation- wegian child protection agency requested al law or more generally for international that the boy be returned to that country based law in the Icelandic legal system. The mother and the grandmother argued that re- turning the child would violate para. etc. head-of-state role took a beating in the rel- atively dramatic events concerning the at- Foreign. 67 important developments were in Icelandic of the Constitution and art.

distinct from other forms of judicial review stitution. Constitution. came into effect on 26 January 1950. 13 Sudhir Krishnaswamy. and contains Fundamental Duties. 5 Part IVA. It has expanded the scope of ciable. Part II.1 The Supreme Court age or destroy standard establishes a high has recognized that the Preamble may be threshold of constitutional injury for the used to interpret ambiguous areas of the Court to intervene. “Constitutional Durability” http://www. clude a whole range of social rights from the 1 Parliament of India Archives.”13 and it is chiefly thanks to this de- The Preamble to the Constitution is a brief velopment that the Constitution of India en- introductory statement that sets out the dures. it INDIA is the longest constitution in the world. extensive doctrine of constitutional judicial review. O[[W!WHYSPHTLU[VÄUKPHUPJPUSZKLIH[LZMHJ[ZO[T 2 Keshavanand Bharti v.10 Municipalities. 4 Ibid. damental rights.11 and the adoption. 12 Part IXB.4 enumerates the Fundamental Rights in tremely progressive in the protection of fun- Part III of the Constitution which are justi. Consisting of a Preamble.3 Citizen. The dam- on 13 December 1946. 448 Co-operative Societies. It is based on the Objective Reso. India DEVELOPMENTS IN INDIAN CONSTITUTIONAL LAW Jayna Kothari. The Indian Supreme Court has been ex- ship. 6 Part V. 2016 Global Review of Constitutional Law | 87 . 3 Part I of the Constitution of India. The THE CONSTITUTION AND THE Constitution defines fundamental rights of COURT the citizens. The use of basic structure review is guiding purpose and principles of the Con. 9 Part X. 1950. and sets the basic structure doctrine as a “novel and out directive principles to the state. 11 Part IXA. powers. The State of Kerala. (1973) 4 SCC 225.india-seminar.htm. and 5 Appendices. 8 Part VIII. that the Court came to exercise. 7 Part VI.5 It also sets forth the machinery of the Union The Indian Constitution was adopted by (Centre). prescribes their duties. 10 Part IX. 12 Schedules.2 The Constitution defines the Union of India and its Territory.6 the States. sets forth the Directive Principles of Article 21’s right to life over the years to in- State Policy in Part IV which are non-justi. estab- lishes the structure.7 the Union Territories. and The Indian Supreme Court has developed duties of government institutions. Executive Director of the Centre for Law and Policy Research.9 The Constitution includes 1949.8 a Constituent Assembly on 26 November and Tribal Areas.com/2010/615/615_ sudhir_krishnaswamy. Researcher at the Centre for Law and Policy Research INTRODUCTION ciable. and Ashwini Tallur. procedures. It assesses lution which was drafted and moved in the whether a state action “damages or destroys” Constituent Assembly by Jawaharlal Nehru basic features of the Constitution. provisions on local governing machinery and has undergone 101 amendments since like the Panchayats.12 Articles.

S. however.14 the right to Commission along with the 99th Consti. and it remains to food. or PIL as it is re. a process by tweaking the new Memorandum five-judge constitutional bench of the Su- 14 Olga Tellis & Others v. did recognize oped a unique form of litigation called pub. 18 Occupational Health & Safety Assn. and a few journalists who had been Act (NJAC Act).16 the right to tutional Amendment Act “unconstitutional cancies in the High Courts.15 the right to education. In response to these criminal November 2016. had been appointed by a collegium the Union government for reconsideration.24 the Constitution.21 Instead. A collegium. v.22 Following this. This olive branch could have paved the way ferred to.19 On October 16. 88 | I•CONnect-Clough Center . One of the biggest constitutional debates of names selected were from the subordinate 2016 concerned the appointment of judges. The 99th amendment to the Consti- executive was now bound to appoint these fundamental rights guaranteed by the Con- tution in 2014. 16 Unnikrishnan J. on current evidence. as many believe. Swamy challenged the con- Judges of the higher judiciary. ment of judges in the face of escalating va- health. v. Swamy in the challenge. system. Union of India (W. Dr. Union of India and an important instrument for the protection of gium system with greater transparency and Others [(2016) 7 SCC 221] fundamental rights in the country.13/2015) (2016) 5 SCC 1.(C) No. The State the executive finally cleared the names of 34 of Tamil Nadu filed several criminal defama- judges after much public wrangling. 1996 SCC (4) 37.Directive Principles. arguing that adversely affected the independence of the tion of a MoP. to dilute the sections 499-500 of the Code inhibit the judiciary and affected the basic structure of primacy of the judiciary in the appointment freedom of expression. clean environment. Union of India and Others. Swamy. the lack of transparency in the Collegium MAJOR CASES lic interest litigation. 2015. 23 Article 32 allows the Petitioner to move the Supreme Court to enforce her Fundamental Rights. 24 Criminal proceedings against the petitions had been stayed pending the constitutional challenge. 21 Sudhir Krishnaswamy. namely High gium returned the names of 43 candidates stitutionality of sections 499 and 500 of the Court judges and judges of the Supreme for an appointment to various high courts to IPC under Article 32 of the Constitution of Court. charged with criminal defamation joined the NJAC Act was challenged in the Su- preme Court. stitution.OLJVSSLNP\TZ`Z[LTL]VS]LKHM[LY[OYLLSHUKTHYRQ\KNTLU[ZVM[OL:\WYLTL*V\Y[RUV^UHZ[OL¸[OYLLQ\KNLZJHZLZ¹![OLÄYZ[ZLJVUKHUK[OL[OPYK judges cases. Moreover. 17 People’s Union for Civil Liberties v. the approach the Supreme Court to enforce her Court.P. in Penal Code. consisting of the Chief Justice of India and 4 other senior-most SC judges. It was contended that the Act The Union Government delayed the prepara. executive/public participation.20 The Court.” thereby restoring the Collegium be seen if this conflict is resolved in 2017. IUHHGRPV:HUHYLHZDIHZRIWKHPRVWLP- FHVVFRXUWVWKHPVHOYHVWRVHHNUHOLHI:KLOH portant cases here. made recommendations for persons to be appointed as SC and HC judges. But it has not yet appointed them. judiciary who. to the President. Bombay Municipal Corporation. public interest litigation. the Dr. 20 . introduced the Na- judges. State of Andhra Pradesh and Others (1993) 1 SCC 645. Politicians Rahul Gandhi. 24 November 2016). Subramanian Swamy. “The People’s Court” (India Today. Khehar in favor for the executive. relaxing the rules of system and as a step towards improving the standing to allow any public-spirited person appointment of judges asked the government A bulk of the decisions of the Supreme Court or organization to litigate matters that bear to submit a draft Memorandum of Procedure in 2016 concerned fundamental rights and on groups of people who are unable to ac.18 The Court also devel. India. (MoP) for a reform. (2014) 3 SCC 547. decide :KLOH WKHUH DUH FLYLO UHPHGLHV IRU GHIDPD- which led to a constitutional crisis and a fewer cases and are less likely to strike down tion in India. which were considered preme Court headed by Justice J.17 adequate housing. currently faces backlash it is still for genuine institutional reform of the Colle. Arvind tional Judicial Appointments Commission which affirms that the confrontation between Kejriwal. The right to life now declared the National Judicial Appointments government has been stalling the appoint- includes the right to livelihood. the Supreme Court Colle. 19 Supreme Court Advocates-on-Record Association and Another v.P. the not justiciable before. complaints. 1985 SCC (3) 545. made DEVELOPMENTS AND stalled pending appointments of 77 judges to allegations of corruption against the Chief WKHKLJKHUFRXUWVIRURYHUQLQHPRQWKV:KHQ CONTROVERSIES IN 2016 Minister of Tamil Nadu in 2014. Subramanian Swamy v. The constitutionality of the executive and the judiciary subsists. and the right to a and void. however. 15 Paschim Banga Khet Mazdoor Samity v. Union of India. all 34 tion suits against Dr. 2007 (12) SCC 135. State of West Bengal.23 which allows any person to directly of the senior-most judges of the Supreme Under the applicable procedural rules. Dr. appointed from the Bar. 22 Ibid. a prominent lead- government did not approve any MoP and er of the Bharatiya Janata Party (BJP). defamation is also a criminal face-off between the executive and the judi- legislative/executive action than advocates offense under Sections 499 and 500 of the ciary.

2016 Global Review of Constitutional Law | 89 . The Court held that in a case where two Anthem is played or sung. the Supreme Court held that directions. consisting of Jus. Before the National Anthem is played restrictions that can be imposed by the State The Court emphasized the balance of funda. (1) (a) All citizens shall have the right to freedom of speech and expression. advocat. 1971. dignity. which supports the value of human dignity. :KDWZDVDOVRFRQWURYHUVLDOZDVWKDWWKH6X- tion of Human Rights 1948 and the ICCPR HUQPHQWHPSOR\HHZKR¿OHGDSHWLWLRQXQGHU preme Court went on to hold that these di- which both protect the right to free speech Article 32 to the Supreme Court. [Writ Petition(s)(Civil) No(s). or sung in a cinema hall on the screen. not be printed on any object. Union of India reason shall not be played or displayed. the entry and exit doors shall remain tegrity of India. defamation or incitement tion. duty-bound to show respect to the Anthem. decency or morality or in relation to exist in concord and not in watertight isola. On the other hand. The Court relied referring to the Canadian Supreme Court sung in impermissible circumstances. After the National contempt of court. passed an Interpreting the right to freedom of speech interim order detailing several controversial :KLOH WKHUH LV QR GRXEW WKDW UHVSHFW WR WKH and expression. 2002 (5) SA 401 (stating that law of defamation seeks to protect the legitimate interest individuals have in their reputation. and whether en- 25 Article 19. recognized that the freedom of speech may which is the symbol of constitutional patrio- be restricted to protect reputation. 28 (2011) 52 ECtHR 36. Some of the di. but that it needs to be balanced with the protection of free speech). National Anthem. played in a manner and such places that are O\ WZLFH FODUL¿HG VR WKDW LQGLYLGXDOV ZLWK and reputation are constituents of the right WDQWDPRXQWWRGLVUHVSHFW:KDWLVPRUHWKH disabilities need not stand while the National to life. tice Dipak Mishra and Justice Roy.26 the South African decision Khumalo Anthem when sung. as any other right. Bench also gave unprecedented directions $QWKHP ZDV SOD\HG 7KLV FODUL¿FDWLRQ ZDV to citizens on what they should do when the sought because this judgment was being im- The Court concluded that although freedom National Anthem is played. The petition Flag and to instill in citizens the feeling of EDVLF ULJKW WR OLIH DQG GLJQLW\ VSHFL¿FDOO\ claimed that the National Anthem was often patriotism and nationalism. the National Anthem. public cannot be preferred to another. c. the right which be opened. the security of the State. that upon clause (a) of Article 51A of the Consti- decision Hill v. However. be included as a part of a variety show. problematic. The Supreme Court Bench. Church of Scientology of To. better promotes public interest must be up. 27 [2002] ZACC 12. in the interests of the “sovereignty and in. and never dis.27 and on Karako v. right to freedom of speech and expression. That it should not and playing of the National Anthem in all and may be subject to reasonable restric. d. proportional. necessary respect was not accorded to the tution and held that it is the sacred obligation ronto. It has been subject to substantial that Sections 499 and 500 of the Indian a.” Fundamental Rights clash. 26 [1995] 2 SCR 1130 (holding that a good reputation is closely related to the innate worthiness and dignity of an individual and an attribute that must.” He relied on the Universal Declara. The SC further ing respect to the National Anthem under IRUWKHPRWKHUODQGDUHUHÀHFWHGE\VKRZLQJ built on comparative case law to understand the provisions of the Prevention of Insults respect to the National Anthem and National the concept of reputation as a part of the to National Honour Act. observing that no right is abso. mental rights. The Bench held that there shall be National Anthem should be showed. term “defamation” and the concept of “repu. The abridged version of the National Justice Dipak Mishra of the Supreme Court Anthem made by anyone for whatever ¿UVW PDGH D FRPSUHKHQVLYH DQDO\VLV RI WKH Shyam Narayan Chouksey v. Hungary28 and it is the duty of every person to show grafted in the Constitution and that they are where the European Court of Human Rights respect to the National Anthem. played. the notwithstanding the expansive and sweeping no commercial exploitation or dramatization mandatory screening of the National Flag ambit of freedom of speech it is not absolute of the National Anthem. such limitation is constitutional if it is the National Flag on the screen. just as much as freedom of expression. Penal Code could not be called unreasonable ¿OPVWDUWVDQGDOOSUHVHQWLQWKHKDOODUH vides the right to freedom of speech and for they are neither vague nor excessive nor obliged to stand up to show respect to expression to every citizen of the country. it shall be with defamation amounted to a violation of the rights. Holomissa. plemented with such fervor in cinema halls of speech and expression is inviolable. 855/2016] tation. or being recited. arbitrary. All cinema halls in India shall play the criticism whether the Supreme Court can National Anthem before the feature force feelings of patriotism. be protected). It held that if a law limits constitutional played in cinema halls. This judgment was subsequent- the Court held that the right to honor. it is rections read as follows: that persons unable to stand were seriously subject to reasonable restrictions and held threatened. tism and inherent national quality. The petitioner in this case was a retired gov.Article 19(1) (a) of the Constitution25 pro. of every citizen to abide by the ideals en- v. lute. :KHQ WKH 1DWLRQDO $QWKHP VKDOO EH To decide whether the criminal offenses of held. this right is subject to reasonable b. in line with is previous decisions. the doors can to an offense. shall FLQHPD KDOOV EHIRUH HYHU\ ¿OP LV KXJHO\ tions. rections were issued so that love and respect and the right to reputation. because they disturbance which could disrespect the order. Fundamental Rights are equal and one closed so that no one can create any friendly relations with foreign States.

The Su- addition to banning the over-the-count. The Court 6FKHPHV :KLOH WKH 6XSUHPH &RXUW LQ WKH in the future. The Union medical expenses they incur towards the Maharashtra.00. treatment to acid attack victims. considering the expenses Devika Biswas v. in a school. Union of India [AIR 2016 was set up to address the deaths caused by already incurred by the victims’ family. provided a Status Report on the progress made by the “Anita Jha Committee” that In the instant case. to provide and would also enable them to rights and en- more compensation to the victim in the case titlements under the law relating to persons In response to these directions. and reconstructive in other States where none of the procedures from the Supreme Court that would help se. includ. The petition also reported on many were taken to Delhi that they received ade. by a single government be responsible for their entire surgeon where 53 women were operated on Parivartan Kendra v. Union of India governments provide a minimum amount of tim secure medical treatment but will also and Ors. It focused on compensation and held disability list. who fell to the increased compensation. Chanchal and Sonam. and Rajasthan.obtaining employment. laid down by the government were followed. camp and to initiate departmental and crim- attacks. compensation. the Supreme each direction given in Ramakant Rai and control for the supply and distribution of Court also directed all States to take steps the details of the utilization of funds under acid.30 in which it had prescribed detailed Rs.consequences that acid attack victims face. directed the Union government during the present case acknowledged that there was hearings to report on the implementation of no proper implementation of regulations or In an important direction. The State govern. DOVRDVNHGWR¿OHDI¿GDYLWVWKDWH[SODLQHGWKH pensation of Rs. Bihar ac- Court directed that Chanchal be paid com. and the tremendous tions in the States of Kerala.and her sister be petition after a mass sterilization camp in and that it had issued show-cause notices to 29 [(2014) 4 SCC 427].'HYLND%LVZDVZDVDQDFWLYLVWZKR¿OHGWKLV cepted the failure of the sterilization camp pensation of Rs. in stressing the plight of acid attack victims do not recur in any part of the country and that to justify the need for enhanced compensa.forced display of the National Flag and the paid compensation of Rs. ated on atop school desks by the surgeon. The various State governments were that Laxmi mandated only a minimum com. the SC 4405] the sterilization camp in Bilaspur. had also directed that State of compensation will not only help the vic. 3. It also sought that acid attacks be pensation. food.as was effectively pointed out by the Court.Ramakant Rai (I) and Anr. It tried to highlight the social stigma women. it did not issue further guidelines in this to include acid attack victims’ names on the the Family Planning Indemnity Scheme. There was no provision of victim to a brutal acid attack. The women were oper- This decision was passed in a public interest physical injury but also considering the vic. with disabilities.preme Court stated that such enhancement The Supreme Court relied on the case of er sale of acid. and dignity for b. extant situation in their States. the judges referred to tion. or even were not given adequate treatment after the a. This recognizes the life-long 2013. cure justice. This compen. seeking compensation and redress for two lives because of the acid attack. It was only after they States to not refuse but provide full effects. the person is a victim of an acid attack including the setting up of a committee to in- velopment of a rehabilitation scheme and an VRWKDWVKHPD\JHWEHQH¿WVRIVFKHPHV vestigate the facts relating to this sterilization increase in compensation to victims of acid for reconstructive surgeries and com. 3 Lakhs as compensation to each acid motivate the State to strictly implement the guidelines and procedures to be adhered to attack victim under Victim Compensation guidelines so that acid attacks are prevented in the conduct of sterilizations.000/. surgeries. 2012. The PIL highlighted the conduct of directions given by the Supreme Court in a WKDWYLFWLPVIDFHWKHGLI¿FXOW\WKH\KDYHLQ mass sterilization in highly unsanitary condi- previous decision on compensation for vic. tims of acid attacks in Laxmi v. tim’s inability to lead and enjoy wholesome used just a single set of gloves with the aid ra. State government and further that the State carried out on January 7. the Supreme of running water. inal proceedings against those involved. however.3 Lakhs. Union of India treatment and rehabilitation. matter with all private hospitals in their the permanent nature of sterilization or its side tal due to their caste. 30 (2009) 16 SCC 565. The camp was Anthem is required for the same. that would inform the women of acid attack and were ill-treated at the hospi. 10.by the the Araria District of Bihar.000/. Chattisgarh of acid attack as per the guidelines. +RVSLWDOV VKRXOG LVVXH FHUWL¿FDWHV WKDW Devika Biswas asked for a series of directions all acid attack survivors. of India. The two sisters Court passed a few general directions: pre-operative and post-operative care. who OLWLJDWLRQ¿OHGE\DQ1*23DULYDUWDQ.HQG. including the de. Madhya Pradesh. regard. ment has the discretion. v. 90 | I•CONnect-Clough Center .29 in which the Supreme Court. State governments should take up the counseling. and without the facility Dalit sisters. in lifelong treatment of their injuries.additional compensation will be paid to the Allowing the petition. other sterilization camps that had taken place quate treatment. within the period of just two hours from 8 pm [(2016) 3 SCC 571] sation was awarded not only regarding the to 10 pm.00. She included as an offense within the Scheduled also prayed that the government guidelines be Castes and Scheduled Tribes (Prevention of This judgment of the Court was progressive scrupulously adhered to so that such incidents Atrocities) Act. The PIL sought directions ing medicines. 1989. Chattisgarh. In addition of only a torch-light.

c. v. Unless violations d. Strengthening of the Primary Health comes solely under the purview of the State rights. the Supreme Court in its judgment on the number of persons sterilized as lamented the lack of a health policy in the The Court held that the concerned steriliza. Limited and Ors Care centers across India and efforts to Government. ization should be treated as a subject under that the proposed patient has been ex- dures were being followed and Kerala and the competence of the Union Government is plained the contents of the checklist and Maharashtra did not submit any substantial a fair argument since the federal executive has understood its contents as well. the Court’s ob. ning (which it undoubtedly is) there is the exercise of reproductive rights would in. :KLOHWKHVHQWLPHQWRIWKH&RXUWWKDWVWHULO. Preparation of an annual report. go forced sterilization merely to achieve for population control and family plan. tion to the six-monthly reports required. and Goa. it claimed simply not permissible and appears to be plains the impact and consequences of that these were performed under informed a case of passing the buck. well as the number of deaths or compli- country. which procedure. g. portant public health violations. The and others to compel persons to under- If the sterilization program is intended Court also relied on Suchita Srivastava v. has more effective powers. tion procedures endanger the right to life cations arising out of the sterilization It disagreed with the Ministry of Health and under Article 21 of the Constitution. reports. It relied on C. altogether. The Court pointed out that En. they will to be published by the State Quality As- never be given priority. Maharashtra. Finally. and of the State List and ignore Entry 20A of from any form of coercion. the Court Kerala regarding the sterilization camps the Concurrent List. The Union of India proposed phas. Maharashtra.E.the relevant persons in charge of the camp. ¿[HGE\6WDWHVDOORZLQJKHDOWKZRUNHUV al covenants to which India is a party.C. as sterilization would not be a public health change of mind. Rajasthan. The Court expressed its displeasure with no earthly reason why the Union of In. which could address these concerns. and internation.32 which has in. Subhash Chandra Bose. Rajas. a Public Health issue and making it the b. Chandigarh Administration33 in holding that these targets. The need to ensure that informal or for- over which the Union has superior powers of the Constitution as well as the Directive mal targets towards sterilization are not of legislation:31 Principles of State Policy. have phased out sterilization of reproductive rights are not treated as im. well as of a trained counselor certifying than stated that standard operating proce. as well as issue is of serious concern. This is the directions in RamakantRai that ex- deny the conduct of sterilizations. the sterilization procedure along with consent and after review of cases by the signatures by the concerned doctor as State Quality Assurance Committee. Population control also referred to a decision of the Committee DQGVSHFL¿FDOO\GLUHFWHGWKH&KLHI-XV- and family planning has been and is a on the Elimination of Discrimination Against tices of these States to initiate a suo national campaign over the last so many :RPHQ &('$:. 6XI¿FLHQWWLPHRIDERXWDQKRXUQHHGVWR ing out sterilization camps over the next servation that reproductive treatments such be given to a patient to accommodate a three years and submitted that Tamil Nadu. )DPLO\:HOIDUH¶VSRVLWLRQWKDW3XEOLF+HDOWK included the right to health and reproductive e. ensure that sterilization camps are dis- try 20A of the Concurrent List pertains to terpreted the “right to health” as an aspect continued as early as possible. Sikkim. “Population Control and Family Planning” of social justice informed by both Article 21 f.S. surance Committees containing details Finally. clude the right to make a choice regarding the inadequate responses of Madhya dia should refer to and rely on Entry 6 sterilization by informed consent and free Pradesh. A checklist should be prepared under :KLOHWKH6WDWHRI0DGK\D3UDGHVKGLGQRW concern of the State Government. in addi- Chattisgarh.

That the Ministry of Health and Family gender equity. Hungary. It is for The Court issued the following directions: h.S. 33 (2009)9 SCC 1. a. 31 [AIR 2016 SC 4405] para 69.LQA. http://www. v.org/womenwatch/daw/cedaw/protocol/deci- sions-views/Decision%204-2004%20-%20English. Thirty-sixth session.adversely against them and directed the States of control and family planning program affects women’s physical and mental health. A. CEDAW/C/36/D/4/2004. 34 Ms. Bihar and Chattisgarh to speedily and (of which sterilization procedure is an and infringes the right of women to decide HI¿FLHQWO\ FRQFOXGH WKHLU LQYHVWLJDWLRQ integral part) must rest squarely on the on the number and spacing of their children. S.. v.. motu public interest petition to consid- decades. Therefore. To announce a National Health Policy this reason that the Union of India has at the earliest.34 ex. 32 (1992)1 SCC 441. ing it and has spent huge amounts over :HOIDUH VKRXOG GLVSOD\ RQ LWV ZHEVLWH D the years in encouraging it. It is rather full list of approved doctors and their par- unfortunate that the Union of India is ticulars in each State. keeping in mind issues of been taking so much interest in promot. the responsibility for SRXQGLQJ WKH &('$: &RQYHQWLRQ DQG er the allegations that had been made the success or failure of the population held: Compulsory sterilization.pdf. 7-25 August 2006. District and Union now treating the sterilization program as Territory. shoulders of the Union of India. Hungary. 2016 Global Review of Constitutional Law | 91 .un. into the sterilization tragedies.

It gave fundamental rights such as the freedom of speech a very narrow interpretation. Their steadfast protection of judi- cial autonomy indicates that courts tend to preach accountability without practicing it. and rehabilitation of acid attack survivors. One could question whether the Supreme Court interprets rights consistently. even though this attracted severe criticism for a lack of transparency.CONCLUSION The Supreme Court seemed to speak in different voices in the year 2016. treatment. 92 | I•CONnect-Clough Center . But some benches of the Court penned broad and expansive directions on the reproduc- tive rights of women and rights to com- pensation. It is also important to note that the judicia- ry has vehemently protected its autonomy. The perceived threat to the independence of the judiciary seems to eclipse the need for a change and participation in the judicial appointment process.

2014. Blog. review is not uniformly given to a single ing the Court would play a critical role to Court. Basuki Tjahja Purnama. 2016 Global Review of Constitutional Law | 93 .3 Some arrangement means that the right of judicial constitutional stakeholders have been hop. and the Regional Elections Law. he faced an opposition majority in THE CONSTITUTION AND THE the legislature bent on obstructing him. Purnama is backed by President Joko Widodo’s ruling party. 2 For a detailed analysis of Jokowi’s political consolidation. 2017. the Supreme Court and the Consti- balance the power of the presidency. Prabowo Subianto. available at http://www. “Indonesia’s Constitutional Conundrum: The Weak Presidency. Vo. HU:KHQ3UHVLGHQW-RNRZLFDPHWRSRZHU in 2014. institutions. 4. Anies Baswedan successfully took down President Jokowi’s key ally. Jokowi has consolidated his power in the arenas of elite The Indonesian 1945 Constitution divided contestation. tion from the interventionist court to a now seemingly constrained and tamed court. The Jakarta governorship is widely seen as a litmus test for winning the presidency. and the result would put President Jokowi in the defensive position.1 In COURT INDONESIA the middle of 2016. 4 For a detailed analysis of the evolution of the Indonesian Constitutional Court.com/2014/09/indonesias-constitutional-conundrum-the-weak-presidency-the-strong-op- position-and-the-regional-elections-law/. The Court has the RIWKH¿UVWJHQHUDWLRQ&RXUW.” Int’l J. iconnectblog. VSHFLDOL]HGFRXUWWKDWKDVWKH¿QDOZRUG the Court has retreated from the boldness on constitutional issues. But the tutional Court each share different judicial Court has gone through periods of transi. pact of the Court’s jurisprudence. “The Rise and Fall of Heroic Chief Justices: Constitutional Politics and Judicial Leadership in Indonesia. This of an “uncontested” presidency. L. however. the Strong Op- position.” 25 Washington International Law Journal 489 (June 2016). 3 In the recent Jakarta Governor Election. 297-320 (2016). The Constitution maintains the vers to convince two principal opposition Supreme Court has the authority to review parties to switch allegiance. who narrowly lost to Widodo in the 2014 presidential election and is expected to challenge him again in the 2019 presidential election. which took place on April 19. “Jokowi and the New Developmentalism. review authority. ordinances and regulations made under any statutes. Oct. But the Constitution also equips the :LWKDSDUOLDPHQWDU\PDMRULW\WKH-RNRZL Constitutional Court with authority to con- administration has entered into the arena duct reviews of statutory legislation.” These “second-rate critical point in history as President Joko judges” had the effect of reducing the im- ³-RNRZL´:LGRGRKDVFRQVROLGDWHGKLVSRZ.” Bulletin of Indonesian Economic Studies.2 Jokowi’s coalition now holds the judiciary into the Supreme Court and some 67 percent of parliamentary seats after the Constitutional Court as two separate he successfully made some political maneu. No. please see Eve Warburton. Baswedan is supported by a retired general. Const. Indonesia DEVELOPMENTS IN INDONESIAN CONSTITUTIONAL LAW 6WHIDQXV+HQGULDQWR$I¿OLDWHG6FKRODUDW%RVWRQ&ROOHJHDQG)ULW]6LUHJDU$I¿OLDWHG Scholar at Indonesia Jentera School of Law INTRODUCTION became common to refer to the Indonesian Constitutional Court as composed only of The Indonesia Constitutional Court is at a “second-rate judges. 52. 3.4 The Indonesian Constitutional Court is a Under the chairmanship of Arief Hidayat. please see Stefanus Hendrianto.QWKHSHULRG power to review laws for their constitution- DIWHUWKH¿UVWGHFDGHRIWKH&RQVWLWXWLRQDOLW 1 Stefanus Hendrianto.

” (Meeting with Jokowi. 2017. in which he allegedly accepted US$200. the lawmakers amended the law and reduced the term of Chief Justice to two years and six months. this case brought down Regardless of the nature of the meeting. gation in the Court against the President. Basuki Hariman. and aims to Justice Patrialis Akbar. On CONTROVERSIES IN 2016 addition to the authority over statutory re. obviously the Chief Justice did not make a constitutional justice Patrialis Akbar. 2017http://www. art 24C (1) 8 Constitution of Republic of Indonesia 1945.com/news/2017/01/27/ kpk-names-mk-justice-patrialis-akbar-suspect-in-bribery-case.html. See Law No. three appointed by the appointment was quite problematic from immediately to “pressure” the Court. The Court’s abstract YL]PL^KVLZUV[HPT[VHKKYLZZ[OLPUQ\Y`Z\ɈLYLKI`[OLJSHPTHU["YH[OLYP[^V\SKVUS`WYVUV\UJLVU[OLJVUZ[P[\[PVUHSP[`VM[OLJOHSSLUNLKZ[H[\[L0UJVU- [YHZ[HJVUJYL[LYL]PL^HPTZ[VYLZVS]L[OLPUQ\Y`Z\ɈLYLKI`[OLJSHPTHU[^P[OHJVUJYL[LYLTLK` 6 Undang – Undang No. has Amnesty case.9 As explained earlier. There was speculation that his appointment ^HZILJH\ZLVM[OLJVSS\ZPVUIL[^LLU7YLZPKLU[@\KOV`VUVHUKOPZPUSH^/H[[H9HQHZH[OL[OLU*VVYKPUH[PUN4PUPZ[LYVM. But in 2011.JVUVTPJ(ɈHPYZ(RIHY^HZH TLTILYVM[OL5H[PVUHS4HUKH[L7HY[`7(5JOHPYLKI`4Y9HQHZH:VTL5.6Z[OLUÄSLKHQ\KPJPHSYL]PL^PU[OL(KTPUPZ[YH[P]L*V\Y[WL[P[PVU[VJOHSSLUNL the appointment of Akbar on the ground that the appointment process was not transparent. his visit was intended MAJOR CASES justices retire at age 70. to review a motion The businessman. see also “KPK names MK justice Patrialis Akbar suspect in the bribery case. most judges of the with the authority to resolve disputes over the Anti-Corruption Commission arrested current Court are “second-rate judges. is found unconstitutional. Accessed April 15. Currently. 2017. Chief MXVWLFHVRQO\VHUYHIRU¿YH\HDUVEXWFDQEH either.thejakartapost. February 27.000 (RP 266 million) from YLHZLQWKHWHUP7KH¿UVWFRQWURYHU- party. to decide Patrialis Akbar as he had allegedly received major controversies have supported this the legality of the dissolution of a political bribes of US$20. art 51 7 Constitution of Republic of Indonesia 1945. Mochtar is serving life imprisonment 12 “Beef importer Basuki reportedly confesses to bribing Constitutional Court aide.” Two the power of state institutions.6 If a law election mechanism. Justice Arief Hidayat denied that the meet- UHDSSRLQWHGIRUDQRWKHU¿YH\HDUV$OVR ing was to discuss the tax amnesty cases. President and three appointed by the Supreme Court. mostly because of his poor the hearing process of the judicial review of Perwakilan Rakyat. and. The tax amnesty policy is the for impeachment of the President. and he ended his career as a criminal. sy was in a series of litigation in the Tax general elections. Article 4 (3) of the Constitutional Court Law 2003 provided that the Chief Justice and his deputy shall serve for a three-year term.5 The associate justices will elect the chief wise decision by attending a meeting with The Constitutional Court Law also allows justice and his deputy through an internal the President while there was pending liti- an individual to request a review. 8 of 2011 on the Amendment of the Constitu- tional Court Law 10 “Temui Jokowi.” The Jakarta Post. the Court’s reputation was seriously damaged when the then Chief Justice Akil Mochtar was arrested for accepting a bribe to rule on a regional election dispute.12 Indeed.com/news/2016/09/01/150944/temui-jokowi-hakim-mk-klaim-tak-bahas- gugatan-tax-amnesty 11 In 2013. in another major blow to view.html 13 President Susilo Bambang Yudhoyono appointed Patrialis Akbar as an associate Justice in August 2013. hereinafter the “DPR”) record as the Minister of Justice. http://www. In of Associate Justice Patrialis Akbar. Hakim MK Klaim Tak Bahas Gugatan Tax Amnesty.” His challenge. In response to this legal of government: three justices are appointed the exemplar of a “second-rate judge. 2017. art 24C (3) 9 Initially. January 25. 24 of 2003 on the Constitutional Court). the Court will either nullify the law or order the parliament DEVELOPMENTS AND The second controversy was the arrest or the executive to make amendments.”The Jakarta Post.000 to an aide of pet project of President Jokowi. After People Representative Council (Dewan the beginning. September 1. January 27. but can be re-elected for the second term. the Animal and Husbandry Law II case for constitutionality of the Tax Amnesty Law pointment power among the three branches beef importers. to resolve disputes over the results of a prominent beef importing businessman. The Constitution provides equal ap.com/news/2017/01/27/beef-importer-basuki-reportedly-confesses-to-bribing-constitutional-court-aide. the Jokowi administration moved by the President.suara.13 During the Tax Amnesty Law had begun. would help to sway the judicial review of In July 2016. The Chief Justice for an audience and conveyed a report to the and Deputy Chief Justice. only The Animal Health and Husbandry Law II President about the international sympo- serve for a term of two years and six months case (Decision No. 24 of 2003 tentang Mahkamah Konstitusi (Law No.7 admitted giving US$20. The Court has nine justices that have equal tant assured Hariman that Patrialis Akbar authority to decide all the important deci. however. http://www. 129/PUU-XIII/2015) sium on the Asian Constitutional Court. the Constitution also equips the Court the reputation of the Constitutional Court.8 his four-year tenure as an associate justice. the Chief Justice Claims No Discussion on the Tax Amnesty case) Suara.ality in the absence of a concrete dispute.000 5 The Court only has authority to review a constitutional question in an abstract way and not to resolve a concrete constitutional case.thejakartapost. The Administrative Court quashed Akbar’s appointment on the IHZPZ[OH[P[KPKUV[M\SÄSS[YHUZWHYLU[HUKW\ISPJWHY[PJPWH[VY`WYPUJPWSLHZYLX\PYLKI`(Y[PJSL VM[OL*VUZ[P[\[PVUHS*V\Y[3H^5L]LY[OLSLZZ[OL/PNO Administrative Court reversed the decision by the District Administrative Court 94 | I•CONnect-Clough Center . 2016.com. Jokowi “summoned” Chief Justice Arief There is a term limit imposed in which the Akbar did not show any stellar performance Hidayat to the Presidential Palace.11 As explained earlier.10 there is a mandatory age limit in which the According to Hidayat. some NGOs challenged the sions. in which the assis- improve tax compliance in Indonesia. Patrialis Akbar is before the Court.

which reinstated the provision 2004. to participate in the tional rights of mentally disabled persons country” is the manifestation of imprudent 2017 Aceh Province Governor Election. persons. Regardless of what happened behind electoral process. to participate in the general election. a major player in the The Court reached the decision unanimous. lines and institutions for psychiatric analysis case and the second instance. 41 of 2014. the Court under the chairmanship vote. Head of Regency. The Court of the potential voters is a violation of con- decided that Law No. 135/PUU- This case is the sequel of the Animal Health cision. the ability to cast a vote. the Court opined that amnesty. however. Persons case (Decision No. the government enacted Law No. ant. It was suspected that ly. Law No. The petitioner challenged the con. Aceh Province. but the Court rejected Puteh’s claim. is an ex-convict. 11 of 2006 concerning Aceh it was interpreted in the Court’s understand- there is urgent domestic demand in which Government is “conditionally unconstitu. RIDWOHDVW¿YH\HDUVH[FHSWIRUWUHDVRQ individuals who are experiencing mental the Parliament had revised the zone system or political crimes that have been granted disorders or memory disorders would lose requirement. sion in this case. The Court. It was not clear how much The Voting Rights for Mentally Disabled LQÀXHQFH$NEDUKDGWRVZD\WKH&RXUW¶VGH.15 In vote. Puteh began serving his ten-year that allows animals imported to Indonesia sentence. Article 67 (2) (g) of disordered persons. of Governor. The Court held that not all of the Animal and Husbandry Law I case. veter. the country as a whole.14 On August made the ruling and Akbar only had one In the second major case that related to the 25. the there is a difference between the object of tutionality of the Aceh Governance Law to Court considered that the absence of guide- QRUPVWKDWKDYHEHHQUHYLHZHGLQWKH¿UVW the Court. of the statutory regulation that governs the did not announce the decision until Feb- beef import industry. the Court decided two that the phrase. and Mayor The crux of the matter is the Law allowed stipulates that mentally disabled or disor- import of beef and cattle from disease-free The Abdullah Puteh case (Decision No. and consumers of animal products. The Court granted a decision for the claim. Constitutional Court Decision No 137/PUU-VII/2009 (the Animal Health and Husbandry Law I case) 14 In 2004. the Court dealt with the of Mohammad Mahfud issued a decision the scenes. ruary 7. the Law did not explain how to assess the stitutionality of the Law and argued that the back with a run in the 2017 Aceh Governor distinction between mentally disabled or zone system would violate the constitutional Election. regardless of the disease status in PUU-XIV/2016) §3a). But later. The Court considered rights of farmers. ception for former convicts who openly and which removes the ability for someone to honestly inform the public that he or she cast a vote. and Justice Patrialis Akbar casted out his that Puteh can participate in the 2017 Aceh WKHEULEHVZHUHJLYHQDVDQDWWHPSWWRLQÀX. See the 15 Constitutional Court Decision 069/PUU-II/2004 2016 Global Review of Constitutional Law | 95 . 2010. Some NGOs representing mentally disabled art 59(2) of the Law was unconstitutional. public that he was an ex-convict. as permanent impairment of mental health. that the imple. Puteh then challenged the consti. YRWHIRUWKH¿QDOGHOLEHUDWLRQPHHWLQJRQ *RYHUQRU(OHFWLRQDVORQJDVKHQRWL¿HVWKH ence Court decision in the judicial review November 21. 8 of 2015 on the Election 2009 on Animal Health and Husbandry. LQJWKDWPHQWDOO\GLVRUGHUHGLVQRWGH¿QHG the Government needs to import from other tional” as long as it does not provide an ex. who has been sentenced to that the prohibition violates the constitu- animals from “a country or a zone within a 10 years imprisonment. “a zone within a country” in major cases related to the electoral process. Having distinction between mentally disabled and DFRXQWU\WKDWDOUHDG\IXO¿OOVWKHKHDOWK stayed in the political wilderness for more mentally disordered persons. prohibited candidates for governor/deputy not equipped to evaluate the capacity of governor who had been sentenced for a mentally disabled or disordered persons as The Court considered that after the issuance crime punishable by a term of imprisonment potential voters. . standard. 51/ dered persons have no right to vote (Art 57 zones. countries. 18 of tainted the legitimacy of the Court’s deci. 41 of 2014 is “condi. 2017. The Court held that Article 67 (2) (g) Article 57 (3) (a) is unconstitutional unless mentation of a zone system is allowed when of Law No. Law No. Moreover. 2016. Nevertheless. Thus. MI-2 helicopters for Aceh Province. They and dangerous policy because the disease argue that there are different categories of may spread into the area from unsafe parts 'XULQJKLV¿UVWWHUPDVWKH*RYHUQRURI mentally disabled or disordered individuals of the country. Nevertheless. than a decade. VWLWXWLRQDOULJKWV7KH&RXUW¿QDOO\KHOGWKDW tionally unconstitutional”. the arrest of Patrialis Akbar has issue of voting rights for mentally disabled on the judicial review of Law No. The Court ruling means beef import business. The fact of the matter is nine Justices XIII/2015) and Husbandry Law I case.from Basuki Hariman. Puteh was planning a come. Puteh was charged with DQGHDFKFDWHJRU\KDVLWVGH¿QLWLRQZKLFK corruption concerning the purchase of two does not always lead to incapacity to cast a In 2014. traders in livestock. Puteh was out on parole The Court ruled that indeed there is a to come from a country or a zone within before the full sentence was served. Puteh challenged the constitutionality of the Anti-Corruption Law that was used to charge him. 11 of 2006 on Aceh Governance that the General Election Commission is inarians.QWKH¿UVWLQVWDQFHWKH&RXUWDOORZHG persons challenged the law and argued The Court considered that the import of live Abdullah Puteh. The Court declared In the last term.

crimes while the honest taxpayers that have property through marital relationship with mon good. pany no longer has a monopoly in supplying submitted to the tax amnesty program shall electricity to end-users. the couple over the electricity industry. the government enacted a criminal investigation. The petitioner argued that the Tax which property acquired during a marriage previous two cases. there has been a Marriage Law does not explicitly recognize tionally unconstitutional” if it is construed growing suspicion that the Jokowi admin. She also In the third case. a foreigner can acquire electricity industry is essential for the com. with the private enterprises eliminated state control committed by tax evaders. The claimant further argued that the The claimant married a Japanese citizen the Electricity II case. Furthermore.The Electricity III case (Decision No. In the tax amnesty program as evidence for the East Jakarta District Court to revoke 2009. The District Court granted new electricity law which resurrected the the petition and ruled that the claimant has privatization of policy. This case involved a challenge against the /DZ:KLOHWKHSURKLELWLRQRQO\DSSOLHGWR pet project of President Jokowi: the Tax foreigners. Therefore. 11 of 2016 on Tax Amnesty 20 Law No. The claimants contested the petitioner’s argument to eliminate the No. Under the 2009 The Court unanimously rejected the peti. But the developer refused to provide declared the entire Law Number 20 of 2002 tion Commission to use all the data from DFHUWL¿FDWHRIRZQHUVKLSDQGSHWLWLRQHG on Electricity to be unconstitutional. WKH7D[$PQHVW\/DZ:KLOHWKHUHLVQR nuptial agreement. Amnesty Law is discriminatory because the becomes joint property (harta bersama).20 the Court stated that the control over the tax evaders are being rewarded for their tax In other words. 001-021-022/PUU-I/2003 17 Constitutional Court Decision No. The Court argued all the data that were agreement based on Indonesian civil law. the Law (the joint property clause). mutual consent of both parties. Court ruled that the tax amnesty law only challenged Article 29 (1) of the Marriage sidered that the 2009 Electricity Law did provides immunity to tax related crimes.167KH&RXUWWKHQUHDI¿UPHGWKH EHHQIXO¿OOLQJWKHLUWD[REOLJDWLRQVGLGQRW an Indonesian citizen. 1 of 1974. the Attor.19 The claimant is an NGO nesian citizen who married to a foreigner to deal with the privatization of the electric. This decision does not the decisions under pressure. which stipulates. ja PLN) and an employee of the State providing electricity to the entire people. the State Electricity Com. Article 35 96 | I•CONnect-Clough Center . ty of both Article 36 (1) of the Basic Agrar- involvement in providing electricity. to Build (Hak Guna Bangunan). 2012. 58/PUU-XIV/2016).” The Court declared that the provision is “condi. As mentioned earlier. Therefore. tainted the (OHFWULFLW\:RUNHUV8QLRQ Serikat Peker. and therefore it The Tax Amnesty Law I case (Decision No.17 tax amnesty program could undermine the but retained her Indonesian citizenship. 1 of 1974 LW\LQGXVWU\7KH&RXUWKDGGH¿QHGWKHUROH Union (Serikat Perjuangan Rakyat Indo. the purchase. the Court con. the full amount of payment in September the chairmanship of Jimly Asshiddiqie. called the Indonesian People’s Struggle because the Marriage Law No. But there are many that the involvement of private enterprises istration “pressured” the Court to support couples that might wish to draw up a post- will eliminate the principle of “state-con. it indirectly applied to an Indo- This is the third case in which the Court had Amnesty Law. 30 of 2009 involvement of private enterprises. In the Electricity I case. the may enter into a prenuptial agreement. 149/PUU-VIII/2009 18 In the Tax Amnesty Law II case (Decision No. those data shall not be used as evidence in ian Law and Article 35 of the Marriage a criminal investigation. 69/PUU-XIII/2015) the constitutionality of Law No. the Court unanimously dismissed the case and held that it’s ruling in the Tax Amnesty I case should be applied to this case 19 Law No. under Law prevents the Tax Authority. 111/ such as electricity. however. the role of the state in controlling and legitimacy of the Court’s decision. the meeting PUU-XIII/2015) change the landscape of the electricity between Chief Justice Hidayat and Presi- 7KHFDVHZDV¿OHGE\WKH+HDGRI6WDWH LQGXVWU\LQ. Electricity Company (Perusahaan Listrik but at the same time it did not concur with The Prenuptial Agreement case (Decision Negara – PLN). imposed a joint property arrangement in of the state in providing electricity through nesia). QH\*HQHUDO¶V2I¿FHDQGWKH$QWL&RUUXS. and it opens up for be protected or otherwise nobody would be The claimant challenged the constitutionali- Independent Power Producers (IPPs) for interested in participating in it. nonetheless. in a case trolled” in an important sector of industry substantial evidence that the Court reached where a couple did not sign a prenuptial 16 Constitutional Court Decision No. For instance. but Law. tion.QGRQHVLD7KH&RXUWUHDI¿UPHG dent Jokowi has. as stipu- should be controlled by the state instead of 57/PUU-XIV/2016)18 lated in Article 36 (1) of the Basic Agrarian private sectors. no legal capacity to enter into a purchase Electricity Law. the Court. “at the time of or not explicitly rule that the involvement of it never provides immunity to other offences before the marriage took place. The crux of the matter was a prohibition for on Electricity by arguing that electricity is a foreigner to own property under the Right part of the common good. a postnuptial agreement. The criminal justice system in Indonesia as the petitioner purchased an apartment and paid In the Electricity I case. however. authority of the State Electricity Company receive any appreciation from the govern- (PLN) to control the electricity industry in ment.

As we write this report. the Court declared that the Marriage Law should be interpreted in light of the recognition of postnuptial agreements. one can see a pattern of how the executive and legislature ignored some RIWKHGHFLVLRQVIURPWKH¿UVWJHQHUDWLRQ Court. The Court. Then. but at the same time it moved to declare some challenged pro- visions “conditionally unconstitutional. The Court rejected the claim against the Basic Agrarian Law and the joint property clause in the Marriage Law. they passed new laws that reinstated the policies that were being struck down by the Court.” Overall. President Jokowi has appointed academ- ic-cum-activist Saldi Isra as a new Associate -XVWLFHRIWKH&RQVWLWXWLRQDO&RXUW:LWKKLV long track record as an anti-corruption ac- tivist and stellar academic credentials. In other words.agreement but later decide that they want to KDYHVRPH¿QDQFLDODUUDQJHPHQWLQSODFH after they accumulate some wealth. Arief Hidayat has to face re-election as the Chief Justice. however. Nevertheless. and after the marriage took place. the Court had to review some cases that dealt with the reinstatement of the govern- ment’s policies. :KHWKHUKHZLOOEHUHPDLQVWREHVHHQ 2016 Global Review of Constitutional Law | 97 . took a compromise approach by acknowledging that the government has tried to follow the Court’s directive. the lim- itation for husband and wife to enter into a postnuptial agreement is a violation of the freedom of contract. The Court then declared that Article 29 (1) is “conditionally unconstitutional” unless it was interpret- ed that a marital agreement can be made before. In the last term. and the public will wait on whether all of the constitutional court justices still trust him as the Chief Justice. the Court under the chairmanship of Arief Hidayat has become a less inter- ventionist court. Saldi Isra might be a bold and autonomous judge. during. the Court chose to review the prenuptial clause. In 2017. In the Court’s opinion. CONCLUSION Having reviewed some major cases in the last term.

3. Ireland DEVELOPMENTS IN IRISH CONSTITUTIONAL LAW Dr. 3. question were primarily civil and political tutional agenda with the establishment of in nature but also included a right to educa- a citizen’s assembly chaired by a Supreme tion as well as Directive Principles of Social Court judge to consider the issue. the judicial appointments system. however. spicuously Catholic influences than its 1922 predecessor. The rights in moved further up the political and consti. In terms of the politics in Ireland which remained undeter. Dissatis. making of hard political choices. including a religious Preamble1 The background tension between the judicia. Eoin Carolan. ry and the government that has been evident as well as an acknowledgment of the special for a number of years came to the fore with position of the Catholic Church (the latter has a public dispute over potential changes to since been removed). The current Constitution in Ireland was ad- al significant developments. it is relevant to note that the express protection of the right to life of the unborn in Article 40. of Church and State and the extent to which per columnist. each of which opted in 1937 as a successor to the 1922 raises important questions for constitutional “Free State” Constitution. ing a list of fundamental rights with a spe- al regime on abortion ought to be amended cific power of judicial review. It has been suggested. was not in the original text but was inserted by referendum in 1983. 1 For discussion. Criticised Policy. tion. at 215-216. The Constitution of Ireland: Perspectives and Prospects (Bloomsbury 2012). 98 | I•CONnect-Clough Center . and prohibitions on divorce and blasphemy. in his previous existence as a newspa. had consistently criticised the it does not reflect Catholic teaching”. re- ernment of a new “independent” minister spect for individual rights and the separation who. the latter of which were stated to be by many as an attempt to delay or avoid the non-cognisable by the courts. the 1937 Constitution (like the 1922 mined at the start of 2017. the assem- bly is due to make its recommendations in The Constitution also contained more con- 2017. The year saw sever. “National Identity as a Constitutional Issue: The Case of the Preamble to the Irish Constitution” in Eoin Carolan (ed). courts. context of developments in 2016 on abor- cal patronage. text) departed significantly from the legal V\VWHP¶V:HVWPLQVWHUWUDGLWLRQVE\FRPELQ- IRELAND The question of whether the constitution. stated with one leading commentator argu- posals was exacerbated by concerns over the ing that “[w]hat is more remarkable … is the manner and tone of their presentation – a extent to which that document also reflected position not helped by the arrival into gov.2 In the system as one based on cronyism and politi. that the nature and impact of these faction on the part of the judges (and many Catholic influences may be commonly over- commentators) about the content of the pro. 2 Hogan (n 1). see Mark Tushnet. Associate Professor. University College Dublin INTRODUCTION THE CONSTITUTION AND THE COURT 2016 was very much a year of transition in Irish constitutional law. secular … values of liberal democracy.

Const. The main provision relevant to this pending appeals were transferred to the new and is due to report its recommendations on debate is Article 40. In practice. and 190.iconnectblog. 2016 includes several independents who had referendum in October 2013 with the Court tion will feature prominently in the Court’s publicly expressed support for a change in of Appeal established in October 2014. A number of cases per year but that these will spective. from 2013 stipulate that the Supreme Court has lowing a referendum in 1983. 9 [Details of the meetings held (including written and video materials) are available at https://www. by its laws to defend clusive jurisdiction to invalidate legislation nature of cases being dealt with by the Su. As with that body. 2016 Global Review of Constitutional Law | 99 . with due regard express purpose of assisting it in clearing the on marriage equality. the Supreme Court had In practice.000 public submissions8. as distinct from the health.com/2014/12/the-ongoing-uncertainty-over-irish-law-on-the-unborn. Given the tion may also be the subject of an oral hear. and Health Service Executive.7 From the political per- the establishment of a Court of Appeal. form. Furthermore. error correction and the principled develop. as courts” identified in 1937 as having the ex. 3. preme Court in the future. while the Court retains eral high-profile incidents. this has meant that a prospective of the mother. and that risk could only be to combine the dual appellate functions of appellant must now make a formal written avoided by the termination of her pregnancy. available at: http://www. backlog. a significant factor seems to have constitutional amendment to allow for the involve complex or significant questions of been that the minority government elected in establishment of such a court was ratified by law. including one cades. about the Irish constitutional position on WKH&RXUWRI$SSHDO:KLOHDSRUWLRQRIWKHVH received over 13. The government therefore announced that dicated that the Court received 558 appeals in it would organise a “citizen’s assembly” to SIES RIGHTS AND FREEDOMS 2013. that appears to suspicion has been expressed that the assem- have been almost accomplished. established by the previous government to “The State acknowledges the right to pointed (bringing the Court to nine) for the address demands for constitutional reform life of the unborn and. Initial experience with this new leave in Ireland. and another where a court order was sought substantially more appeals annually than mined on the basis of the first criterion of to allow the withdrawal of somatic support any of its counterparts in common law ju.citizensassembly.5 This gives some indica. that there will guarantees in its laws to respect. The applica- ment of the law across all areas. available at https://www. be a significant change in the number and far as practicable.4 The 2006 report recommended that the Court will deal with a much smaller dead for three weeks. the decision whether ly requesting but not being given an abortion. :KLOHWKHLVVXHKDVORQJEHHQFRQWURYHUVLDO significant growth in the volume and com. L. the Court of Appeal where it is satisfied that the in its 1992 decision in AG v.rte.The Supreme Court was one of two “superior The likelihood is. 605 in 2012. “John Hearne and the Plan for a Constitutional Court” 18. 10 Eoin Carolan. amendments introduced by referendum in This was inserted into the Constitution fol- gation was initiated in the High Court. At the time of the referendum. 30. Int’l J. “Ireland’s Constitutional Convention: Beyond the Hype about Citizen-led Constitutional Change” (2015) 13 (3) Int J Const Law 733.10 the to the equal right to life of the mother. as contrary to the Constitution. Blog. caseload. 2016. the assembly has met on a number of cant issue in 2016 was the ongoing debate had accumulated prior to the establishment of occasions in both public and private sessions. 8 Citizens’ Assembly receives more than 13. the constitutional position. 99 voters and one Supreme Court judge (as In terms of public profile.P. abortion. 3: Court. Dec. 5 Courts Service. the most signifi- tion of the extent of the appellate backlog that chair). the Supreme Court retained a sizeable this issue in mid-2017. the figures in. ing. 4 Report of the Working Group on a Court of Appeal (Courts Service 2006). stage suggests that. Comprising a representative sample of Abortion in the same period. The current where it could be appealed as a matter of appellate jurisdiction over a decision of the position. application for leave to appeal. CONSTITUTIONAL CONTROVER. The constitutional this meant that almost all constitutional liti. 2014.000 submissions on abortion. X. tial risk to the life. found that the Court received and processed or not to grant leave will primarily be deter. A 2006 report the interest of justice”. By the close of 2016. in the interests of jus. The Ongoing Uncertainty over Irish Law on “The Unborn”: A Comment on the Matter of P. bly provides a useful mechanism for govern- 3 Gerard Hogan. 7 Eoin Carolan.ie/news/2016/1222/840774-as- sembly/. “general public importance”. As a result. December 22. and. matters. ly permissible if there is a real and substan- but should have general jurisdiction over all tice. therefore. it is necessary that there be an appeal.ie/en/Meetings/. and vindicate that right”. It is expected that constitutional litiga. This suggests for a pregnant woman who had been brain risdictions.6 is that the decision was taken in 1937 that the Supreme decision involves a matter of general public termination of a pregnancy is constitutional- Court should not be a constitutional court3 importance or that. as declared by the Supreme Court right to the Supreme Court. the result was a substantial increase a broad residual discretion to admit cases “in woman who died from sepsis after reported- in the workload of the Court.9 A similar body was number with two additional judges being ap.1 (2011) DULJ 75. the current debate followed sev- plexity of litigation in Ireland in recent de. respectively. 6 [1992] 1 IR 1. 202. Annual Report 2013 at 33. and 499 in 2011 with it consider the possibility of constitutional re- disposing of 249.

it seems inevitable that there (finally) have to address this ambiguity un.12 This was a chal. 3 was simply appointment is unsatisfactory”.OHJDO¿JXUHV The prospect that the Supreme Court may preme Court). the judiciary expressed support for depending on the recommendations of the tions for any potential constitutional amend.QXQGHUVWDQGLQJWKHRULJLQV²DQGSRWHQWLDO expectedly increased in 2016 with the deci. this will clearly have implica. In posed amendments to Article 40. there has been a concern about into account the rights of the unborn child of appointments system and.M.R. If the Supreme Court agrees. 3. UHÀHFWV D JHQHUDO FRQVHQVXV WKDW WKHUH DUH between the former Chief Justice and Taoi- knowledged in Article 40. the lack of any mech- any controversial recommendations that may tion to take an appeal directly from the High anism to discipline judges short of their re- emerge. in the selection by government of candidates there may be internal disagreement while the Supreme Court has been asked to make IRU MXGLFLDO RI¿FH DQ DVVRFLDWHG SHUFHSWLRQ also providing some distance between it and use of its exceptional “leapfrog” jurisdic. 28 September 2016. obiter dicta. An Bord Uchtála [1980] IR 32. Nonetheless. This is a more complex al scholar has suggested in a newspaper ar. If so. referred to the previous issues have been discussed in political cir. 2016). some of the rights protected by the Constitu. and the absence of sembly does mean that the issue will remain be that the question of the wider constitu. potentially. that “polit- cerned with abortion policy per se. see the blogposts by Laura Cahillane at http://constitutionproject. WR UDQN FDQGLGDWHV IRU RI¿FH DQG WR GHVLJ- question than might first appear because of ticle that the removal of Article 40. 3.14 Commonly cit.11 It is unclear. Finn v.R. completely withdraw constitutional protec- tion might apply before birth. 15 For background to some of these issues. academic deleted. Judicial Appointments Review Committee quences for abortion legislation and policy argued that “the present system of judicial :KLOHWKHSXEOLFGHEDWHKDVODUJHO\EHHQFRQ. Judicial Independence ations should be borne in mind. “Abortion on Demand the Legal Outcome of Repeal of the 8th Amendment”. one leading constitution. AG [1974] I. Minister cism. Humphreys J. 3 by nate one as “outstanding”.ment to delay addressing an issue on which Reflecting the importance of this judgment. the introduction of a judicial council and DVVHPEO\²RI D IXUWKHU UHIHUHQGXP RQ SUR. Both holding of an arguably unnecessary referen- issue. DQGOHJDO²LQ FRQVWLWXWLRQDO LPSOLFDWLRQV²RI WKLV FULWL- sion of the High Court in IRM v. 284. it may moval by the Oireachtas. some²SHUKDSV YHU\ VLJQLILFDQW²FRQVH. at 312. Judicial Appointments Advisory Committee LFDOFDSLWDOWREHJDLQHGIURPFRQÀLFWZLWKDQ “elite” or “out of touch” judiciary. whether the 1983 referendum was however. Furthermore. This ance in the media of details about a meeting additional rights beyond the right to life ac. 3 being that the Constitution would continue to have a submission to a consultation process. 3. 3. therefore. in which it was The other major area of controversy relat- argued that the Minister was required to take ed to proposals for a reform of the judicial First of all. ical allegiance should have no bearing on discourse in 2016 also considered the possi. it raises the possibility for reform of the appointments system. prior to the 1983 referendum. v. limitations to the current constitutional and seach at which the question of judges’ pen- he expressed the view that these rights are statutory frameworks that regulate appoint. the existence of the as. in the event that Article 40. AG [1983] I. ZLOOEHIXUWKHUFRQWURYHUVLHV²ERWKSROLWLFDO . In particular. 100 | I•CONnect-Clough Center . McGee v. The Politics of Judicial Selection in Ireland (Four Courts Press. the Oireachtas (parliament).dum to reduce judges’ pay and the appear- dicta to hold that the unborn child enjoys cles for an extended period of time. Irish Times. 11 G. new advisory board should have the power to Article 40.sions was raised were regarded as evidence extensive given the insertion into the Con ments and accountability.ie/. The the prospective deportee. the held in the short to medium term. pre-1983 position but would most logically education and representation of the judiciary es had suggested. any formal body to represent the judiciary. that at least be regarded as a decision by the People “to was “a much needed reform”. 12 [2016] IEHC 478. tion from the unborn”. at 69. Several judg. 13 Gerry Whyte.13 Despite agreement on the need for change. lenge to a deportation order. a number of background consider- for Justice and Equality. DSSRLQWPHQWV WR MXGLFLDO RI¿FH´ WKDW DQ\ ble content and implications of any change On the other hand. and the appeal have attracted criticism from political and in I. and that a judicial uncertainty over the constitutional position referendum would not return the law to its council with responsibility for discipline. 3. for the political approach to the judiciary. the new government’s moves to in- declaratory of the underlying constitutional :LWKWKH&LWL]HQ¶V$VVHPEO\GXHWRUHSRUWWR troduce changes to the appointment process position or brought about some change in it. to be heard (possibly by the Su.R.15 high on the public and political agenda for tional position will be definitively addressed  7KHUH LV DOVR FOHDUO\ D SRVVLELOLW\² in 2017. Court.RIDSHUFHSWLRQRQWKHSDUWRI¿JXUHVLQWKH stitution in 2015 of a specific constitutional ed concerns include the limited role of the previous government that there may be polit- provision directed to the rights of children. ment. 154 at 160. 3. In addressing this the establishment of a judicial council. of political patronage. 3. 14 Jennifer Carroll MacNeill. In 2014.

and of the courts in re- There also appears to be a degree of consen. Minister for Fi- sociation of Judges of Ireland. it should be principle that control of national debt and ernment) and the Independent Alliance.18 This was a challenge to the issuing 2011 to represent members of the judiciary. alternatively. The lack This was rejected by the Supreme Court. known as the As. main opposition party has also produced its probably that in Collins v. stitution and on the Federalist Papers. would have been deemed inappropriate even 1. It has been sug. was found in own draft legislation (which largely received nance. these developments seem to have likely in the medium term. it also cannot be assumed the AJI was the development. Given its crisis. it denoted a broader principle of legal- be appointed (and disciplined) in the future. Most nota. ferring a statutory power on the Minister to VSHFL¿FDOO\WKDWDQ\QHZDSSRLQWPHQWERG\ found change in the relationship between issue debt without imposing either a statuto- have a lay majority and a lay chairperson. it does However.seem strained in a way that appears with- ciary. in budgetary matters. this appears to “must [also] be consistent itself with the dic- be an issue where some form of change is tates of the Constitution. the Court proceeded to hold that There are two aspects of this controversy VHHP FOHDU²DQG OLNHO\ XQKHOSIXO²WKDW UH. The government effectively insolvent banks in 2010 as part ment on the AJI website at the time that: has outlined general principles but no draft of the response to Ireland’s severe banking legislation has yet been published.sy that merits attention is the more general VSHFL¿FEUHDFKDOOHJHGZDVWKDWWKH'iLOKDG gested that one of his key demands in gov. will be is unclear.a decade ago are new dynamics in Ireland’s WUROSRLQWRQ¿QDQFLDOPDWWHUVLVWKDWWKHDS- litical circles and an apparent response from constitutional structures which raise long. Substantial reliance was placed per columnist who had previously criticised in this regard on Article 1. however.16 government.\YVWL¹ . “[t]he Constitution’s main con- This prompted criticism from legal and po. He claimed on one occasion that it was out precedent since independence.and the relative authority of both legal and vided for ‘by law’”.ie/ (accessed March 31.question of whether this episode – following abdicated its constitutional function by con- ernment has been reform of the process and. ity which meant that a law formally enacted As with the law on abortion. 17 :LL4Y1\Z[PJL6»+VUULSS¸:VTL9LÅLJ[PVUZVU[OL0UKLWLUKLUJLVM[OL1\KPJPHY`PU0YLSHUKPUZ[*LU[\Y`. 7KLUGWKHJRYHUQPHQWWKDWWRRNRI¿FHDIWHU sus that a judicial council would be useful the 2016 general election is a minority co. The government MAJOR CASES been perceived by the judiciary themselves is committed to reform. on from others – is a signal of more pro. ister to express strong criticism of the judi. a representative body. he has continued as Min. tive branch. Rather. In- LV WKH VSHFL¿F TXHVWLRQ RI KRZ MXGJHV ZLOO es are being formulated at a time of unusual stead. subject matter. SDUWVKDVLGHQWL¿HGWKLVDVDSULRULW\DQGWKH 7KHPRVWVLJQL¿FDQWGHFLVLRQRIWKH\HDUZDV bly. propriation and therefore expenditure of all the Chief Justice who warned in a speech term issues around judicial independence monies is required by Article 11 to be pro- against “inaccurate discussion and misrep. political actors.17:KLOHWKHSUHFLVHHIIHFWRI this change is a matter of speculation. the proceedings were con- ernment that occurred in March 2011. a more positive response from legal circles). the fact that there is broad political and judi. a require- addition. the many parties in which are Fine :KLOHWKHMXGLFLDU\KDYHEHHQYRFDOLQPDN. ry “debt ceiling” or. The ERUQHLQPLQGWKDWLWZDV¿UVWUHFRPPHQGHG expenditure must be vested in the legisla- ODWWHU¶VPRVWKLJKSUR¿OH¿JXUHLVDQHZVSD. However. a commitment to reform (if not the policies SRZHUVDQGVSHFL¿FDOO\WKHUHVSHFWLYHUROHV from the perspective of many members currently proposed) may survive a change of of the government and the Dáil (lower house) of the judiciary. and on another that a of trust on both sides and the willingness to Court pointed out that the Irish Constitution declaration of judicial interests was required engage in a degree of public criticisms that contained no equivalent provision to Article in case judges might “forget their oaths”. existence of a general separation of powers Gael (the largest party in the previous gov. viewing them. The plaintiff’s core argument asserted the alition.enough to enact any legislation.YPUP[`*VSSLNL3H^9L]PL^ 18 [2016] IESC 73.cial support for some kind of change means novel issues relating to the separation of tween the judiciary and the executive. statutory basis for the act in question. 4XLWHZKDWWKH¿QDOGHWDLOVRIWKHVHUHIRUPV billion by the Minister for Finance to two cal environment was illustrated by the state.but this seems less of a priority at present. of long-term promissory notes worth €30 That this was a direct response to the politi. The process on many occasions.by a special committee in 2000. In the judicial and political arms of the state.8 of the US Con- “cronyism” in the judicial appointments The second aspect of this year’s controver.Second. The background to the foundation of minority status. however. and the order and 16 http://aji. the phrase “by law” required more than a WKDWDUHFRQVWLWXWLRQDOO\VLJQL¿FDQW7KH¿UVW forms with important long-term consequenc. The obstructing reform. VWLWXWLRQDOO\ VLJQL¿FDQW EHFDXVH WKH\ UDLVHG RIDSHUFHLYHGGLI¿FXOWUHODWLRQVKLSEH. turbulence in this relationship. one of its constituent as an attack upon their position. over the WKDWWKHJRYHUQPHQWZLOOVWD\LQRI¿FHORQJ Aside from the obvious importance of the months that followed the change of gov. 2016 Global Review of Constitutional Law | 101 .8. 2014).Relations between the two sides certainly ment to obtain legislative approval. resentation of the position of the Judiciary”.ing the case for the council.

known. The requirement of Article 10. natural resources. it outlined a 19 King v. then effect. Instead. The legal issue here accordance with law” appear frequently in was whether mussel seed were a “natural re. that the therefore. It is noticeable. However. CONCLUSION ral resources to be managed “by law”. more substantive principle of legality which cluded that the Dáil here had not abdicated LWVSHFL¿FDOO\FRQQHFWHGWRGHPRFUDWLFUHSUH- its function because the legislation. managed or regulated. 102 | I•CONnect-Clough Center . pass broader principles of democratic ac- culture concerned a dispute over access by countability. 2016 was a year of change – but &RXUW GLG QRW FRQ¿QH LWVHOI WR ¿QGLQJ WKDW also of continued uncertainty about the form this exchange of letters did not constitute that change will ultimately take. but if it did.UHODQGWRPXV. AG [1981] I. therefore. in particular. tatives of the People who are account- ing circumstances. leased. The Court concluded that Article 10 did apply. Legislation is normally example. a minister or other body was required to take place in public (Article SHUPLWWHGWRSURYLGHXQOLPLWHG¿QDQFLDO 15. the Constitution man- it clearly would not follow from this dates that if State property. however. with it. in particular case that such was constitutionally per. source” within the meaning of Article 10 of the Constitution. Indeed it is unlikely the property of the State must be the that the Oireachtas would concede such subject of a decision by the represen- wide ranging power in other less press. In constitutional terms. to any commercial entity. on judicial appointments. 223. for the permitted pursuant to a voisinage agreement legislature’s traditionally submissive rela- based on an exchange of letters between the tionship to government. missible.8). This Article requires natu. This meant that: sion. The Court con. then that decision should be made in public by representa- This suggests that. “law” in a formal sense. while not sentation and accountability: imposing a debt ceiling. support for the possibility that the Court may be developing a substantive conception of Support for this interpretation of Collins can legality which extends beyond the right of arguably be found in the other major deci. for able to them. contained other con- straints on the Minister’s powers. and and that this arrangement did not comply on the scope of a possible legality principle.structure it contemplates”. both Collins and Barlow provide involvement. is to be sold. long-term implications for the separation of sel seed beds in Irish waters. Minister for Agri. it does regard Article 11’s ref. That is particularly relevant government departments in Belfast so given that references to “by law” or “in and Dublin in 1965. In or object. On abortion. This had been powers in Ireland and. If this is the case. important though that would be. it may have ¿VKHUPHQEDVHGLQ1RUWKHUQ.3 of the it cautioned that the Act was defensible as Constitution for regulation “by law” is “a permissible constitutional response to an not merely a formal procedural provi- exceptional situation”. Barlow v. erence to “by law” as importing a broad- er “legality” requirement that any formal Aside from providing clarity on some of the PHDVXUHV UHODWLQJ WR ¿QDQFLDO PDWWHUV PXVW more rarely-litigated Articles of the Con- provide for an adequate degree of legislative stitution. and. an individual to know the law19 to encom- sion of 2016. it means that It cannot therefore be considered to be a the Constitution requires that the regu- template for broader Ministerial power lation of natural resources stated to be on other occasions. and without limitation in time ity of public knowledge and debate.R. while the Court did not tives who are accountable to the People endorse the general principle advanced by who can accordingly make their views the plaintiff. which carries with it the possibil- support. the constitutional text.

Assistant Professor. Visiting Doctoral Researcher. In 1992. ulations in Judea and Samarea). known as the “constitutional revolution”. Research Fellow. and Basic Law: Freedom of Israel (27 March 2016) Occupation. and the complex relation style. stitutional judicial review in Israel has been al Basic Laws that regulate the governmental harshly contested. The HCJ United Miz. The HCJ is highly accessible to all incomplete constitution. decade now. Hebrew University Faculty of Law. re- This review presents key developments in sulted in the HCJ becoming the central in- ISRAEL the jurisprudence of the Israeli High Court of stitution in the development of constitutional Justice (HCJ) in 2016. These developments protection of human rights. UHÀHFWSDUWRIWKHPXOWLIDFHWHGORQJVWDQGLQJ role of the HCJ in constitutional challenges Therefore. This joint legislative-judicial change.that constitute a partially en. Nadiv Mordechay. Yaniv Roznai. maintaining broad indi- decision in the early years of independence vidual standing in administrative and consti- not to complete the constitutional design at tutional petitions (also from protected pop- the time of the establishment of the State. NYU school of Law. HCJ 4374/15 The Movement for Quality damental rights. constitutional laws are enacted through or- SDWLRQDQGUHFXUULQJDUPHGFRQÀLFWVXQLTXH dinary legislation procedures. prolonged belligerent occu. Israel is also particularly unique due between religion and state. one of the most prominent of the trenched bill of rights. of Government v. to the inverse ratio between the thin written constitution and the constitutional role of its court. Separation of Powers the Knesset enacted two Basic Laws on fun.Basic Law: Human Digni. Israel DEVELOPMENTS IN ISRAELI CONSTITUTIONAL LAW Justice Uzi Vogelman. Justice of the Israeli Supreme Court. due to the original types of petitions. the Israeli constitutional law story of the State of Israel which involve com. The Prime Minister of ty and Liberty. yet its emergency laws. For over a but rather to leave it as an incremental enter. judicial review to primary legislation. Basic Laws are enacted by CONTROVERSIES IN 2016 the Knesset (Parliament). which holds both legislative and constituent powers. in the British rules of citizenship. Undergraduate Student. and the HCJ also has a respectable tradition of judicial protec- DEVELOPMENTS AND tion over the unwritten common-law rights and freedoms. year. the existence and scope of con- prise. an administrative “outline” dicial review. addressed the constitutionality of the“- rahi Bank case asserted the authority of ju. comparable to the “Marbury” decided by the Israeli government regard- ing gas reservoirs found in Israeli economic 2016 Global Review of Constitutional Law | 103 . The Israeli constitution includes sever. The HCJ hears petitions about Knes- THE CONSTITUTION AND THE set legislation and administrative decisions COURT DV WKH ¿UVW LQVWDQFH DQG LWV FRQVWLWXWLRQDO review model is very close to an “abstract” Israel’s constitutional model is based on an review. Hebrew University Faculty of Law INTRODUCTION model. is rather unique as it applies American-style plicated dilemmas concerning minorities. Gas Outline”. The Interdisciplinary Center (IDC) Herzliya. structure and institutions. This case. Radzyner Law School. Tehilla Schwartz.

Section 52 of the Antitrust thority. from the stability clause. Communications Minister. who held that the stability clause does not restrict the Knesset’s legislative power.Minister was authorized to function as a First. the HCJ deliberated whether the is. The quotas. especially when the case its authority in order to optimally preserve on questions of delegation and granting an is subject to political dispute and when the the state’s proprietary rights to the natural exemption from antitrust law in the energy government wishes to restrict the discretion gas. Howev- gas deal that was presented in the “outline” that the clause was prescribed ultra vires and er. and Vogelman against the dissenting opinion of Justice Sohl- berg. and Labor Minister and Regional Development Minister. several major issues were analyzed: Third. Hayut. including Noble Energy. . it was decided to cancel sector through a government contract. the justices of an unconducive situation to democracy. the Gas Outline due to the stability clause. in their alternate opinion. It was ruled that the scope of this As the public’s trustee for the state’s assets. for the energy companies from antitrust law. such that it became the majority opinion. After reading the opinions of the justices of the panel and seeking to reach a compromise. the HCJ was discretion. without applying judicial intervention in Second. During the HCJ’s hear. was void due to it being contrary to the basic the validity of the entire Outline. The majority of the bench (4-1) held an orderly and transparent process. Prof. the other matters that were addressed. Netanyahu was simultaneously Israel’s prime minister. in effect reorganized the entire energy sector. the Gas Outline included a “Stability sues addressed in the Outline needed to be minister. that the “aggregate effect” of the Outline decided to contract with a series of energy tion and by opposing legislative initiatives amounted to a substance requiring primary companies. The reluctance of the cabinet to enact it as prima. confronted with the need to determine the discretion does not extend to the decision the government is obligated to exercise limits of executive authority. David Gilo. and the constitutional convention. which of its successors. Deputy President Rubinstein. For a review see Rachel Frid de Vries. Accordingly. while 7KLV MXGJPHQW ZKLFK ZDV KLJK SUR¿OH DQG ernment’s plan involved a broad exemption suspending the declaration of voidness for a well covered by the media. the government by agreeing not to make changes in legisla. the Prime ticular. Aside from Justice Joubran. 3 At a certain point. 18 J. con- latory environment for a period of a decade Deputy President Rubinstein determined curring). subject to Deputy Pres- Clause” according to which the government regulated by primary legislation. to pro. it was GHQWHGO\YDVWHFRQRPLFVLJQL¿FDQFHDQGWKH position regarding the Outline. the Israeli Prime Minister. had engaged sev. Justice Meltzer’s substantive dissenting opinion was that the Prime Minister was not authorized to serve as a minister. was not contingent ernment into a single contract with the gas tion on restricting the cabinet’s independent upon being anchored by primary legislation. timeframes given to the public to express its net positions was technically legal. and to rule not to exercise it. 2 The majority opinion consisted of Deputy President Rubinstein and Justices Joubran. the required conditions in which the Section ground of the appointment of Prime Minis- troduced the government’s arguments on the can be applied and whether it was exercised ter Netanyahu to several ministerial depart- importance of the Outline. stating that it would with the authority to exempt a restrictive ment grants the prime minister the authority VLJQL¿FDQWO\KXUWWKHFRPSHWLWLYHQHVVRIWKH practice from the provisions of the Antitrust to hold the position of a minister in addition natural gas market. The Prime DQGHVSHFLDOO\RYHUWKH¿UVWTXDUWHURI addressed legal exemption for an agreement Minister of Israel (13 April 2016) The General Director of the Antitrust Au. administrative law principle of the prohibi. but rather limits the government’s discretion. The HCJ deliberated 1HWDQ\DKXWHVWL¿HGEHIRUHWKHSDQHODQGLQ. Justices Joubran and Hendel concurring. the majority opinion (3-2) decided that included many legal and regulatory aspects.2 eral departments of the Israeli legal system Since the Gas Outline was contracted in a ever since the discovery of the gas reserves monopolistic regulatory climate. who elaborated on the missing fac- challenge to the Prime Minister’s multiple The constitutionality of the Outline.DFDELQHWGHFLVLRQZRXOGVXI¿FH'LVVHQWLQJ and Meltzer.QD¿YHMXVWLFHSDQHOWKH+&-GHEDWHGWKH of that nature. ments after the 2015 election. as distinct all of which were concentrated by the gov. the HCJ HCJ 3132/15 “Yesh Atid” v. as dis. Stability Shaken? Israeli High Court of Justice Strikes Down the Stabilization Clause in the Israeli Government’s Gas Plan. and consequently necessitated duce natural gas out of the reservoirs. Based on constitutional interpretation. LQ¿HOGVVXFKDVWD[HVDQWLWUXVWDQGH[SRUW legislation. WKHEHQFKGLGQRW¿QGDQ\ÀDZLQWKHH[HU- majority denied the petition and held that ry legislation. a fundamental section of the gov. the decision was served a “validity 1 A summary is available here. 4 President Naor. tual background to serve as a foundation for functions. or whether ident Rubinstein’s opinion (Justices Hendel guarantees the gas companies a stable regu. companies.territory in 2009. The HCJ discussed the author. foreign minister. WORLD INVESTMENT & TRADE 332 (2017).3 Faced with a in a reasonable manner. Justice Meltzer presented an alternate position according to which he concurred with Deputy President Rubinstein’s opinion regard- ing the “validity notice”. The petition was ings. In par. as long as the government maintains its ability to rescind its “administrative promise”. For that reason. Industry. Economy. was H[HUFLVLQJ 6HFWLRQ  DQG WKH LQVXI¿FLHQW the Prime Minister’s holding of these cabi- VSHFL¿FDOO\ KLJKOLJKWHG GXH WR LWV XQSUHFH. resigned in pro. Law (1988) vests the Minister of Finance question of whether Basic Law: The Govern- test of the Gas Outline. year to allow for an alternative regulation. and Trade minis- ters. cise of Section 52 of the Antitrust Law. according to constitutional interpretation ity of the cabinet and its discretion.1 In 2015. Law on grounds of “foreign policy and se- to being a Prime Minister. as it is authorized to do. Benjamin ¿OHGE\DQRSSRVLWLRQSDUW\DJDLQVWWKHEDFN- curity considerations”.4 However. 104 | I•CONnect-Clough Center . the HCJ determined that whereas tinguished from its economic feasibility.

Sarah Verstraelen. the principle of parliamentary independence President Naor scrutinized the case under which is crucial to a properly functioning Article 7(a) of Basic Law: The Knesset. a rapid om. 6 See Susan Hattis Rolef. and thus infringes as candidates to the 20th Knesset election.fective impeachment of the former Electric. The court ac- refusal of the Minister of Energy’s request to the “foundational principles of our system” quitted Olmert from one bribery offence. also known as the “Holyland nibus government bill presented to the Knes.The Arrangements Law: Issues and International Comparisons (The Knesset Research and Information Center.).8 The majority (8-1) Legislative Process and Regulatory Inde. Judicial Review of the Legislative Process. concerned three major public cor- set each year alongside the Budget Law. support Government v. merging the Electricity Regulatory Adminis. and following which the bill was mod- WUDWLRQDQGWKH(OHFWULFLW\$XWKRULW\WRIXO¿OO L¿HG7KHUHIRUHWKHOHJLVODWLYHLQIULQJHPHQW Political Appointments and Corruption the governmental policy regarding the Gas did not meet the “severe and substantial” CA 4456/14 Kellner v. See Suzie Navot. Case”. 2004). 0RVW VLJQL¿FDQW IRU XV LV WKH IDFW WKDW WKH assembled outside the Knesset’s Economic idation of Knesset legislation with “a per. this argument was upheld the remaining indictments (among eventually rejected.PTLHUK1\KPJPHS9L]PL^!. 8 See generally Mordechai Kremnitzer. 13 of In this ruling. 46-48 [2004] (Isr. MAJOR CASES democratic regime. This ruling. them.leading the court’s opinion. 39(2) ISR. It has been titioner did not establish substantial factual VHQWHQFHG KLP WR LPSULVRQPHQW²D ¿UVW LQ the consistent ruling of the HCJ that legis.).6 Another claim by the petitioners was that ruption affairs involving bribery between merging the two regulatory agencies is an ef. 183 (2006).notice”. Militant Democracy 157 (Eleven Internation- al Publishing.7 They a personal legislation. 948-page judgment delved into many cen- cize the Coalition’s decision to legislate the started her reasoning with an important tral and general legal issues in criminal law. The State of Israel Outline.PTL 0U[LYZLU[PH"9VZHSPUK+P_VUHUK:HT\LS0ZZHJOHYVɈLiving to Fight Another Day: Judicial Deferral in Defense of Democracy. lating under the Arrangements Law does not amount.concluded that the legislation at hand did not Rubinstein (dissenting) held that the banning cess of a reform in the electricity sector: pass “as is” as legislative deliberations took decision should be upheld as is. The HCJ ruled that Banning Political nominees month period the situation remained as it holding the legislation outside the Commit. Industry and Trade titles to oth. tral Election Committee’s decision to ban ister for Regional Development and Minister sized that it prevents effective discourse and Haneen (Hanin) Zoabi and Baruch Marzel of Economy. Uri Lupolianski :KLOH oppose the Arrangements Law as the appro. striking down legislation. in itself. to which Justice addressing each of the appeals. Knesset Speaker 59(1) PD 577 [2004] (Isr. Rev. among them the former Prime Minister of ter should be invalidated due to constitution. Poultry Farmers Ass’n v. L. after examining the legislative process. the case could be appealed again. 683 (2016).OL0ZYHLSP*HZL. . in András Sajó (ed. HCJ 4885/03 Isr. The court empha.parliamentary scrutiny.process and outcome were deemed valid. Israel’s history. 16). EA 1095/15 The Central Elections Com- was.ɈLJ[ZVM1\KPJPHS+LJPZPVUZPU. bribery and obstruction of justice) and The HCJ rejected the petition. (para.bill was indeed legislated “as is”. Zoabi (10 December 2015) In December 2016. and the former May- al defects in the legislative process. bill in an Ad-hoc Select Committee that was statement regarding the possibility of inval. +PZX\HSPÄJH[PVUVM3PZ[ZHUK7HY[PLZ!. it Jewish democratic state. 7 Landmark court judgments seem to endorse that judicial review of the legislation might apply in cases of inappropriate legislative procedure whenever [OLYLPZHÅH^[OH[JVUZ[P[\[LZHZLYPV\Z]PVSH[PVUVM[OL¸M\UKHTLU[HSWYPUJPWSLZVM[OLSLNPZSH[P]LWYVJLZZ¹See HCJ 5131/03 Litzman v. The Knesset (17 August SURFHVV´ZKLFKMXVWL¿HVDQQXOPHQW+RZHY.ity Commissioner by the Act. 2 January 2006).5 tee – the “natural habitat” for the legislation mittee for the 20th Knesset v Haneen – due to the Chairman’s position was “inap.LTWVYHS. er members of his coalition. Ehud Olmert. or denying Israel’s existence as a 2016) er. Justice Esther Hayut. and therefore Israel.).Vogelman and President Naor concurred. 2016 Global Review of Constitutional Law | 105 . to an independent cause for 5 See Ittai Bar-Siman-Tov. the HCJ rejected the Cen- Prime Minister Netanyahu passed his Min. L. Gov’t of Isr. Background Paper . the court’s priate legal framework for reform. Nevertheless. Deputy President This petition addressed the legislative pro.grounds to prove that this is the case. judgment upheld. whereby if at the end of an eight. but legislate the reform “as is”. of terror. Dirk Van- OL\SL)LH[YP_=HUSLYILYNOLLKZ. the conviction of Affairs Committee to avoid the Chairman’s sonal motive” that “may be infringing with former Prime-Minister Olmert.Justice Hayut’s judgment). in part. 59(2) PD 14.LTWLYPUN[OL. it would opinion decided that Zoabi and Marzel’s pendence have declared that this was a “severe and speech and conduct did not cross the thresh- HCJ 8612/15 The Movement for Quality substantial defect at the root of the legislative old of evidence to prove incitement.ɈLJ[ZVM1\KPJPHS9L]PL^ in Patricia Popelier.OL. UHDOHVWDWHHQWUHSUHQHXUVDQGSXEOLFRI¿FLDOV The petitioners claimed that the reform chap. or of Jerusalem. REV.place. 2016 Wis. The reform was passed as part of the threshold for judicial intervention and both (29 December 2015) “Economic Arrangements Law”. propriate and unacceptable” (at para. and criti. The court stressed that which determines the standards for banning if the petitioners would have proved that the candidates and parties. mainly because the pe. following the ruling.

the HCJ ruled that it can tutional as it violates human dignity for an LVWHURI. There- fore. The Military Commander of IDF Forces in the West Bank (1 December 2015). were as Mandelblit’s involvement in the “Harpaz the effectiveness and proportionality of the committed while holding the position of the Affair”. EH UHVROYHG WKURXJK D FRQÀLFW RI LQWHUHVW improper purpose and violates international ing the position held at the time of his past statement. The Military Commander of IDF Forces in the West Bank (23 March 2016). the two positions. which is governed by Regu. The current precedents on this issue. vision by legal and medical agents. which quested by the Minister of Justice. and the President Elyakim Rubinstein. 1945. 106 | I•CONnect-Clough Center . v. law as it constitutes a form of inhuman and RIIHQVHV 7KHUHIRUH QRWZLWKVWDQGLQJ GLI¿. Jus- of Interior. Nevertheless. In a lengthy opinion by Deputy should be annulled. considering there is no v. prisoners is allowed in democratic countries. 13 HCJ 1125/16 Meri v. Dr. GOC Home Front (22 December 2015). the law instructs General.preme Court Justices have expressed doubts conditions that aim to ensure protection of mittee that nominates prospective Attorney regarding the legality and effectiveness of the prisoner’s dignity. Similarly. as well as the precedents’ validity Minister of Interior during the late 1980s.QD¿YH-XVWLFHSDQHOWKH+&-XQDQLPRXVO\ and the offense. Only in Israel. The main debate considered human nor degrading. Although President Naor decided not to set security”. The Writing on the Wall: Rethinking the International Law of Occupation 163 fn.the preservation in Mendelblit’s appointment process. The HCJ also denied the claims that Mandel. 118 (2017). the distinction between pu. The Prime Minister of and the cabinet decisions.HCJ 232/16 The Movement for Quality and in accordance with Administrative Law reopen the discussion on this method. as well tice Mazuz in the Meri case13 questioned include bribery and breach of trust. otherwise disproportional. In re. exceed the margin of reasonableness (Jus.g. considering near-past developments in inter- This petition was denied shortly after the de. home demolitions was accelerated.11 In of Government v. arguing that it is unconsti- the end of the 1980s and the position of Min. XQGHUWKH3ULPH0LQLVWHU¶V2I¿FHQHFHVVLWDW- ment of Deri as the Minister of Economy and ed a waiting period prior to his appointment HCJ 5304/15 Israeli Medical Association Industry. Justice Hendel Against the backdrop of the current wave The HCJ unanimously rejected the petition- (Dissenting) held that the decision to appoint of terrorism in Israel since 2015.under HCJ found that the professional-public com. HCJ 1630/16 Masudi et al. Avichai Mandelblit as the Attorney punishment. WKDW WKH DFW UHTXLUHV VXI¿FLHQW HYLGHQFH RI The HCJ denied the petition against the ap.12 Justice Vogelman opined Israel (08 May 2016) were established against the appointment. did not justify judicial intervention. it does notHuman Rights and National Security a panel of three Supreme Court Justices.10 well-being. HCJ 6745/15 Abu Hashiah v. Israel’s March 2016) the connection between the house residents ODZLVH[FHSWLRQDO:KHQHYHUIRUFHIHHGLQJ . several Su. and with strict super- Generals carried out their role meticulously home demolitions in petitions brought be. and some have raised the need to security is only a secondary purpose. and is pointment of MK Aryeh Deri as the Minister recommended and not three as originally re. the use of ers’ arguments and upheld the law as both Deri as Minister of Interior is extremely un. The grounds that the Cedar case. The Military Commander of IDF Forces in the West Bank (15 October 2015). including the fact that only one nominee was involvement of the suspect’s family. the law’s dominant despite allegedly administrative law defects an extended panel in order to re-evaluate the purpose is humanitarian . 10 See e. Deri resigned from this position following his refus- al to use his statutory authority under the Antitrust Law prior to the “Gas Outline” approval in the cabinet. Nevertheless. of the practice. degrading treatment. a growing number of petitions are national law. he surveyed HCJ engaged again with the constitutionality the international and comparative law and HCJ 43/16 “OMETZ” (Citizens for Prop. HCJ 8154/15 Daud Abu Jamal v. the HCJ held that the law allowing 9 HCJ 3095/15 The Movement for Quality of Government v. Deri’s criminal offences. ing prisoners on a hunger strike is neither in- Israel) v. method. David Kretzmer. The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories 145-163 (2002). 11 These were non-binding individual opinions. blit’s previous position as Cabinet Secretary national law and Israeli constitutional law. As This petition challenged the force-feeding link between the crimes Deri committed at IRUWKHSRVVLEOHFRQÀLFWRILQWHUHVWEHWZHHQ prisoners law. denied the petition against the appointment of nitive sanctions and deterrents and collective the exclusive consideration is the prisoner’s Adv. nial of an earlier petition against the appoint. Aeyal Gross. and therefore the appointment sponse. The Military Commander of IDF Forces in the West Bank (31 March 2016). The Knesset (11 September 2016) GLGQRWVXI¿FLHQWO\SURYHDGLUHFWDQGFOHDU such waiting period prescribed by law. National fore them. 12 HCJ 5839/15 Cedar v.9 The HCJ held that the petitioners as Attorney General. The court ruled that the threshold the court to also consider “severe harm to justifying intervention had not been crossed. The Government of Israel (01 ulations. The Home Demolitions Controversy tices Joubran and Danziger). of the hunger striking prisoner’s life. relied on precedents holding that force-feed- er Administration and Social Justice in lation 119 of The Defence (Emergency) Reg.QWHULRUVSHFL¿FDOO\DVLGHIURPLWEH. being submitted against the practice. See also Justice Mazuz opinions in HCJ 7220/15 Aliwah v. The Prime Minister of Israel (13 August 2015). The case was heard by culties raised by this appointment. constitutional and in compliance with inter- reasonable. Commander of IDF Forces in the West Bank (1 December 2015).

in which should be interpreted as referring to those it was decided that an employee could not whose conversion was conducted in a recog- Human Rights and Economic policy automatically be forced to end her employ. matter how contentious. 2016 Global Review of Constitutional Law | 107 . its response to the petition that the Law of tutional and stated that there are no grounds Return of 1950 applied only to those who to intervene in the intermediate rules. and that the ratio infring.The petitioners were foreign nationals who demolitions. and that tablished standards. as it infringes upon the Freedom of further addressed in the Knesset and public by private ultra-Orthodox rabbinical courts Occupation. Harv. J.5m NIS (§4(1)) and setting a ra.12. permitted the policy of home ing the executives. rior refused to recognize these conversions. How Should a Court Deal with a Primary Question That the Legislature Seeks to Avoid? The Israeli Controversy over Who is a Jew as an Illustration. voicing claims the question of constitutionality to the HCJ.16 The National Labor Court left VXI¿FHIRUWKH/DZODFNVDWH[WXDOEDVLVDQG lic agenda for many years.g. it does so in on political. thus remains crucial. One cannot overstate the importance of the KLJKHVWSDLGHPSOR\HHVLQ¿QDQFLDOFRPSD. for the Law of Return. The Association the right to equality.VUDHODQGE\WKHRI¿FLDO VSHFL¿FDOO\WKHLQWHUPHGLDWHSHULRGWKDWZDV system overseen by the Chief Rabbinate. Consequent.its merits. Minister of Interior (2004) it was decided that the Law of Return applies to a non-Jew who while residing lawfully in Israel underwent conversion. President Naor noted that the +&-QXOOL¿HGWKHVWDELOLW\FODXVHLQWKH*DV lenging the constitutionality of the set ratio retirement age is a matter that should be Outline. handed down by Pres- passes the tripartite constitutional test set out following the Weinberger case. military and religious issues no of Banks in Israel and the Israel Insurance compliance with the proportionality tests. 17 Previous HCJ rulings have dealt with tangent questions: In HCJ 1031/93 Psaro (Goldstein) v. 16 NLA 209/10 Weinberger v. Law of Return according to which only con- 7KH VDODU\ RI H[HFXWLYH RI¿FLDOV LQ WUDGHG sidering the individual retirement case on YHUVLRQ WKURXJK WKH RI¿FLDO V\VWHP ZRXOG ¿QDQFLDOFRRSHUDWLRQVKDVEHHQRQWKHSXE.The decision of the HCJ acknowledged that affair which does not arrive to the court’s tio of 1:35 between the highest and lowest the mandatory retirement age infringes upon scrutiny.12). It allowed the ers argued that the legislation was not for a HCJ 7625/06 Ragachuva v. The impact of the HCJ on Is- ¿QDQFLDOLQVWLWXWLRQV dox rabbinical courts. The Ministry re-appointment of Aryeh Deri as the Minis- proper purpose. J. and actually masks the in 2016. §4 CONCLUSION ly. 39 VAND. con.Religion and State ing several cabinet positions. (2 December 2016). Israeli Judiciary. ruled that the ratio and cap are consti.15 and allows an employer to force 14 For a review of the case from an International law perspective. cial companies. and gave a “validi- of Competition and the property rights of the ty notice” to the Prime Minister for hold- corporation and its executives. 1233 (2006). essentially capping the salary of the potential discrimination. The question necessitated before the HCJ was whether the Law of Return. the Association petitioned before the HCJ. The HCJ. Int’l L. the “Executive Salary Act” was passed is unconstitutional. raeli constitutional law. The Knesset (29 September 2016) the employer must exercise discretion. 15 §3 to the Law allows women to voluntarily retire at the age of sixty-two. deliberated ident Naor. Force-Feeding Prisoners on a Hunger Strike: Israel as a Case Study in International Law. An interpretation of the Israel v. and specif- HCJ 9134/12 Gavish v. which sets the mandatory re- tirement age at sixty-seven.Nevertheless. and the court actively adjudicates paid employees (§2(b)).claimed that even following Weinberger. See e. There is hardly any public nies to 2. The Ministry of Inte. holding the position voiced by the State in tices. in an extended panel of seven Jus. The Ministry of Interior (1995) and HCJ 5070/95 Na’am- at-Movement of Working Women and Volunteers (2002) it was decided that a conversion need not be approved by the Chief Rabbinate for the purpose of the Law of Return and the civil registration. see Jesse Lempel. and FRQYHUWHGZKLOHLQ. for both men and women.force-feeding of hunger-striking prisoners the retirement. in Israel or abroad. as well as on society. and approved the law which es disproportionately on their rights while resided in Israel as tourists and were later UHGXFHVWKHVDODULHVRIKLJKRI¿FLDOVLQ¿QDQ- constituting unlawful discrimination of the converted to Judaism by private ultra-Ortho. recognized conversions to Judaism and cap. chal. applies to those who have com- This ruling denied a petition challenging the pleted an orthodox conversion in Israel not constitutionality of §4 to the Retirement Age WKURXJKWKHRI¿FLDOV\VWHP17 Law of 2004. Freedom of Contract. TRANS. In HCJ 2597/99 Rodriguez-Tushboim v. Gidon Sapir. set by the Act. L. since the main goal is harm. In 2016 alone. The Knesset (21 ically Article 4(b). ZRXOGQRWIXO¿OOLWVSXUSRVH against the increasingly high salaries and and Gavish ¿OOHG WKDW JDS 7KH SHWLWLRQHUV the weak supervisory system. The petition.of Interior (31 March 2016) ter of Interior. Freedom debate. which includes the term April 2016) “converted”. however. Bar Ilan University (6. The petition was submitted The majority opinion. held that the term “converted” in Basic Law: Human Dignity and Liberty. nized Jewish community according to its es- HCJ 4406/16 The Association of Banks in ment upon reaching retirement age.14 before the National Labor Court.

256 of 2016.2016. fully-fledged democratic state. showing at the same time constitutional institutions. 108 | I•CONnect-Clough Center . The ICC was under the section entitled “Guarantees of the just marginally involved in these two highly Constitution”. The ICC is part of the safeguards of procedures and at the same time expand na.2 as it possesses higher rank than the report provides an overview of landmark ordinary legislation. the important ruling on Court to be equipped with the regulation that 1 C Cost no. Catholic University of the Sacred Heart. It was adopted by a high level of compliance to the principle of the popularly elected Constituent Assembly openness towards supranational and interna. with quently announced on 25. In the meantime. It took a long time for the referendum. Italy DEVELOPMENTS IN ITALIAN CONSTITUTIONAL LAW Pietro Faraguna. a new tution.1. relatively broad political and electoral con- ing the Regions within national lawmaking sensus.1 Second. that led Italy out of the constitutional tran- tional law. the Constitution provided only a that a consumers’ association had no standing regulatory sketch of the Institution’s main to directly challenge the acts summoning the tasks and duties. Moreover. Constitutional provi- judgements adopted by the ICC in 2016. the THE CONSTITUTION AND THE report contains a narrative exposition of two COURT particularly important controversies from 2016 (section III). Milano. and a firm stance in upholding the sition from the pre-war fascist regime to a complex substantive and institutional bal. In these decisions. 2 Albert Venn Dicey.12. Diletta Tega. Vice-President of the Italian Constitutional Court INTRODUCTION the law for the election of the Chamber of deputies. constitution.10. University of Bologna. the constitutional referendum that called upon the Court to rule However. entered into force Italian Constitutional Court (ICC) actively on the 1st January1948. the The Italian Constitution.2016. This reform was one of the most impacting institutional was rejected in a constitutional referendum innovations of the 1948 Republican Consti- held on 4. Flexible and Rigid Constitution (Clarendon Press 1901) 124–213. the 1948 rigid Constitution. First. Its establishment tional legislative competences. provides the basic engaged as the supranational dimension of provisions regulating fundamental rights and constitutional law. a special procedure for constitutional amendment is It may be worth mentioning that in 2016 a provided by the Constitution in order to en- far-reaching constitutional reform law was sure that any amendment to it is the outcome passed by the Parliament to transform its of a meditated decision to be adopted with a second house (Senato) into a body represent.2017). It is a rigid ance of the Italian Constitution. The sions may not be amended or derogated by last section draws some conclusions. Michele Massa. was delayed to 2017 (and subse- tion to the Italian Constitutional system. ITALY a particular emphasis on the system of con- stitutional justice (section II). 4. ordinary legislation. Its nature and function were immedi- electoral law concerning the first house of ately revealed by the collocation of consti- the Parliament (Camera dei deputati) had tutional provisions regulating its functioning already been passed (in 2015). LUISS University of Rome. and coordinated by Marta Cartabia. controversial topics. In section IV. which was initially scheduled for This report firstly provides a brief introduc. Secondly.

Five of them are elected by the inherently contradictory. The ICC is composed of fif.the Parliament was in charge of adopting. appointed through three differ. or if it does not in. which they are presiding.&&PD\ Only eight years after the entry into force not consider their merits if referring judges strike down interpretation as unconstitution- of the Republican Constitution. if they do not explain why the resolu- first judgment. Referrals are inadmissible and the ICC does :LWKLQWHUSUHWDWLYHMXGJHPHQWWKH. to settle controversies arising between the Parliament. tion of the matter is relevant in the case over Another access to the judicial review of the teen judges. eventually able to function and to deliver its (e. YROYHDQDFWKDYLQJWKHIRUFHRIODZ. five are appointed by the Presi.g. the ICC was fail in exercising their role as gatekeepers al while keeping parliamentary texts integer. if the question is ICC is the direct method of judicial review ent channels.

6 role in triggering the Court’s jurisdiction. This may limited to the activity of ICC and domestic own legislative competence as guaranteed happen also with a legislative vacuum.:KHQ Regions and the State. and a Region can appeal directly preme Court. a description of constitutional former are entitled to contest national legis. the official bulletin. as no dissenting organ or public administration from the day 2001. The term is lenged law loses effect retrospectively: the became the larger part of the workload since not renewable nor extensible. and the question of constitutionality affects a ceeding). The ICC is an law can no longer be applied by any judicial the reform of regionalism that occurred in essentially collegial organ. they seem to develop sense. gional law. a relatively Court declares a law unconstitutional. of a referred question regarding the consti. where the Court is a mixed system. it only declares the referred European Court of Human Rights (ECtHR) they may refer a question of constitutionality question “unfounded” but does not prevent have been assigned with increasingly im- only if their doubt on the constitutionality of other judges from raising the same question portant tasks that need to be coordinated the given act is “not manifestly unfounded” (even at a different stage of the same pro. Paradoxically. Council of State. adjudication in Italy would be only partial if lative acts alleged to be prejudicial to their compatible with the Constitution. tice of the European Union (CJEU) and the judges are called to play the role of filters. In the dualistic perspective that tradi- by the Constitution. Additionally. nor the same referring judge from Tasks and functions of the three Courts do norm to be applied in the case at bar. “Il Procedimento per la Dichiarazione di Illegittimità Costituzionale”. 5 Vezio Crisafulli. Nonetheless. fect only a portion of a law that is deemed in. the dent of the Republic. leaving no room for political dis. The direct review has played an increasingly long term for constitutionally relevant of. crucial role to interpretation and the related has. after publication of the Court’s decision in cisions are taken collectively. and Court of tutionality of a legal provision. or concurring opinions are admitted and de.4 This may only hap. over time. exclusive authority an indirect one. of reviewing legislation. and fices in the Italian legal system. given their essential the Court may substantively modulate the a composite constitutional system. CEDAM 1970) 41. This also precludes the A direct access to the Court is also provid- application of the unconstitutional provision ed within the category of cases arising from The access to the ICC is characterized by to past events. 3 Piero Calamandrei. General Theory of Law and State (The Lawbook Exchange. Ltd 1945) 268–69. the tionality may only be raised by judges with. “negative legislator”. These decisions confer a In particular. the “general” system of access to the Court is tion that is far from the Kelsenian idea of the ICC bears. the acterizing the Italian judicial review system. Opere giuridiche. A Composite European Constitution (Europa Law Pub 2007) 2016 Global Review of Constitutional Law | 109 . conflicts of attributions. tionally praised the Italian legal system. In this raising a different question. however. and five are elected by the Court reaches a decision on the merits Government can appeal directly against a re- members of the three superior tribunals (Su. tative judgements. affected the Italian constitu- distinction between provisions and norms. The latter is entitled to question was referred. Lezioni di diritto costituzionale: 1 (2 edizione. it issues a against a national law or a law enacted by Auditors). access is generally considered the one char- technical expertise. The Court’s declaration is de. Regions finitive and generally applicable in that its called to settle disputes among State bodies. important role among the Court’s tasks. Even though the incidental guarantee a high level of independence and accoglimento) or rejects the challenge (pro. Eligibility criteria are designed to decision that either sustains (pronuncia di another Region. Italy’s membership in the EU stitutional adjudication. vol III (Morano 1956) 372. where questions of constitu. and the central Government have a direct effect is not limited to the case in which the These cases are decided by defining which access to the Court. In these cases. In the former cases. pen when the judicial addition is imposed in ICC needs to cope with the authority of oth- in the framework of a controversy where only one admissible direction from the Con. as tional challenge. Additionally. for a nine-year term of office. the Court of Jus- needs to be applied. with national constitutional adjudication. effects of its decision by adopting interpre- have been depicted as “gatekeepers”3 of con. 4 Hans Kelsen. On the other hand. In particular. thus organs. contest regional legislative acts alleged to be incompatible with the Constitution while the A declaration of unconstitutionality may af. 6 Leonard FM Besselink. Each judge is appointed nuncia di rigetto). effect of these decisions is that the chal. referring FUHWLRQ :KHQ WKH &RXUW UHMHFWV D FRQVWLWX. not overlap. the calling the Court to exercise a creative func. in principle. On the one hand. er judicial bodies endowed with the power of the legislative act deemed unconstitutional stitution.5 tional system in a very significant manner. body is entitled a certain power. adjudication. common judges.

8 the ICC has actively the afforded compensation is enough in ev.01. and the possibility of disapplying staff. ishment may be inflicted except by virtue visions had no direct effect and ought to be quently. and C-418/13 9HɈHLSH4HZJVSVHUK6[OLYZ]4PUPZ[LYVKLSS»0Z[Y\aPVULKLSS»<UP]LYZP[nLKLSSH9PJLYJH and Comune di Napoli [2015] EU:C:2015:26. liability). 107. 12 C Cost no. than in respect of those affecting friendly national constitutional courts on an ing. According to the CJEU. Following this rul. with a ruling published on In the CJEU’s view. 8 Since C Cost nos. courts should verify by themselves if that 2016. eral provisions on the maximum duration of was the case and. the same offence and and institutional values underpinning the “networking facilitator”.:<50*. The next section focuses on these de. 10 C Cost no. C-61/13. it also what grudgingly). Conse. It is also an example of alleged crimes constituted. ‘Il Cammino Comunitario Della Corte’ [1977] Giurisprudenza Costituzionale 2406. In a few controversial cases. examples were given for both attitudes. The CJEU also add- ongoing “European Journey”7 that experi. this sequence of events is a penalties) nor Article 7 ECHR (no punish- stitutional law and rights. fixed-term employment contracts in schools mestic provisions regulating the maximum and on compensation for past temporary extension of the limitation period in order to DEVELOPMENTS AND staff. Based upon the rath.13 the CJEU held er broad phrasing of Article 325 TFEU. the ICC12 voiced widespread under the relevant provisions of the Italian the CJEU had called for an ex post facto concerns of lower courts and joined one of Criminal Code. 11 *V\UJPS+PYLJ[P]L *. On Italian Constitution against some rulings of the other hand. The ICC enforced significant instance of cooperation amongst ment without law) with regard to pending international law and the ECHR. as well as courts and with the legislator (albeit some. 14 Legge 13 luglio 2015. Paolo G Carrozza. not infringe Article 49 of the EU Charter of lified”. some courts perceived a complex work of the extensive use of temporary em- inal offences for VAT evasion in Italy. and proportionality of criminal offences and engaged the supranational dimension of con- ery specific case. Italian Constitutional Justice in Global Context (OUP USA 2016). poignant The so-called Taricco case. the extension of the lim- garding EU law and the CJEU. ings reached their conclusion.HUK*. and before the constitutional proceed. decided on ute of limitation as a procedural institution.VM1\UL JVUJLYUPUN[OL-YHTL^VYR(NYLLTLU[VUÄ_LK[LYT^VYRJVUJS\KLKI`*. nor provide for longer periods in reluctant approach. 25(II) of the Italian Constitution (“No pun- law. if need be. These constitutional problem concerning Article ployment in schools. with at least two facets: of national law.14 the Parliament passed sev. 15 Vittoria Barsotti. 110 | I•CONnect-Clough Center . 187 conclud. Therefore.15 were punishable by the same penalties. the CJEU to clarify the scope of the directive. Although it may be disputed whether Fundamental Rights (principles of legality In the last ten years. of a lengthy dispute concerning the compat- Taricco judgment. 24 of 2017. 348 and 349 of 2007. which had been modified by increase of criminal liability.2016. as authorized by Italian offences are often perpetrated through elab. the CJEU considered the stat- the ECtHR9 and ICJ. the Italian Court trans. as. criminal proceedings. pending the completion of selection CJEU held that national time limitations (it is the temporal dimension of criminal procedures for the recruitment of tenured should neither prevent effective and dissua. C-62/13. 9 C Cost no. the EU law. judgment no. In its 2015 never become subject to limitation. EU financial interests.17 the Grand Chamber of ibility with an EU directive on fixed-term the CJEU faced a question concerning crim.16 is another case of preliminary itation period and its immediate application reference to the CJEU. 26. this would CONTROVERSIES IN 2016 resulting abuse had been subsequently “nul. On the one hand. re- 23. the limitation period is part and parcel of the :LWKLWVMascolo judgment. 17 Case C-105/14 Taricco and Others (2015) EU:C:2015:363. disapply the do- velopments. allow the effective prosecution of the alleged ed that EU law had been violated. with remarkably less are not prohibited when the offences have Judgment no. investigations require a long time of a law in force at the time the offence enforced through the constitutional scrutiny and prosecution may become time-barred was committed”). In Italy. (Riforma del sistema nazionale di istruzione e formazione e delega per il riordino delle disposizioni legislative vigenti). in yet another HG²VRPHZKDW XQH[SHFWHGO\²WKDW QDWLRQDO enced some significant developments during school reform. to compensation for any damage suffered respect of frauds affecting national financial formed itself into one of the most European because of such renewal. interests.The ICC’s mind-set toward this phenomenon contracts could not be allowed indefinitely cases of serious fraud affecting EU financial has dramatically changed over time. 207 of 2013. 16 C Cost no.10 Last year.7B D61 L155/43. according them in requesting a preliminary ruling from the legislator with a significant reduction of to a well-established Italian legal tradition. From a and that fixed-term employees were entitled interests”. C-63/13. 238 of 2014. 264 of 2012.. Marta Cartabia. the limitation period.2017. 187 is (for now) the epilogue irenic and harmonic overtones. 13 Joined Cases C-22/13. but that the crimes.11 Considering that the relevant EU pro- orate organizations and operations. the renewal of fixed-term employment sive penalties “in a significant number of the relevant provisions was not only unfore- 7 Paolo Barile.11. the substantive discipline of criminal offences that. n. at the time when upheld the complex balance of substantive the ICC operating in its style and capacity of they were committed. and Andrea Simoncini.

tutional as long as it did not include more mandatory. plication from the President of the Council uxorioSDUWQHUVDPRQJWKHEHQH¿FLDULHVRI sist of an infringement on the supreme prin. in which it was requested former partner of the biological parent.seen and unforeseeable but also subject to WKRXJKWKHGHFLVLRQKDGDVLJQL¿FDQWLQGLUHFW Constitution of the exclusion from certain exceedingly vague conditions.code that could offer adequate protection to brought by an association of atheists which utory prohibition on such usage. denomination.g. tion. The provisions at issue entitled spous- Therefore. and Articles Region. thus extending the parental leave right In its preliminary reference.PDLQWDLQ D VLJQL¿FDQW UHODWLRQVKLS ZLWK WKH Religion ed reproduction. since the pursuit of safety. sensitive issue and dismissed the applica. Regional Laws order claimed that the law was unconsti- The ICC asked whether the disapplication is In this case.DQ\VLJQL¿FDQWUHODWLRQVKLSRIWKHFKLOGZLWK able discretion. due to the axiological issues third persons. the matter was considered primarily In this case. as MAJOR CASES18 PRGL¿HG LQ  YLRODWHG WKH &RQVWLWXWLRQ -XGJPHQW1RRI6FLHQWL¿F5H. In these cases.OL0**WYV]PKLZZVTLVɉJPHSM\SS[L_[[YHUZSH[PVUZVMP[ZKLJPZPVUZ. Article 333 of the had sought an order requiring the President ECtHR case law. and In this case. The Government can be held of the Public Prosecutor. The referral into greater account the national principles. which in its turn asked the CJEU to take Judgment No. %HQH¿WVLQ0RUH8[RULR&RKDELWDWLRQ LQYROYHG LQ WKH XQMXVWL¿DEOH LQWHUUXSWLRQ RI fore. who could possibly accountable for it as a political matter before Judgment No. Neverthe. surrounding it. the Court considered a direct ap. judicial author- The ICC concluded that the decision wheth. incompatible LPSDFWLQWKH¿HOGRIIUHHGRPRIUHOLJLRQ VRFLDOVHFXULW\EHQH¿WVRIQRQPDUULHGSDUW- with the certainty required in criminal law. holding that “the choice made by the ruption (imposed by one or both parents) of ligious organisation. modifying regional principles for planning SDUWQHUIURPEHQH¿FLDULHVDVXQFRQVWLWXWLRQ- facilities for religious services.RIWKHFKLOGVXFKDVDQ\XQMXVWL¿DEOHLQWHU- ment (similar to a concordat) with it as a re. of Ministers questioning the constitutional. In fact. exceeded the legislative competences of the and marriage are not fully equivalent.unreasonable in the case at hand to exclude 49 and 53 of the Nice Charter). which- ready to take a bold stance: activating the a formalized pact between the State and the ever is their marital status. as disabled persons have the stitutional principles. with- The Court settled a dispute between the to rule that embryos that were destined to be in a same-sex couple. Relying on the interest at issue. There. so-called counter limits (limits to sovereign. 213 of 2016: Health-Care be requested to act by the subject that was Parliament. public order. that it is not amenable for re. even when its effect would con. the ICC makes alleged that the legislation violated the equal UHFRJQLWLRQWRWKHP7KH&RXUWDI¿UPHG some effort to frame national constitutional religious freedom of all religious creeds and that even though more uxorio cohabitation concerns within EU legal categories (e. distinctions based on the relative size of the leave rights. was no pan-European consensus on such a behaviors that are detrimental to the interest tiations with a view to concluding an agree.OLZL[YHUZSH[PVUZHYLH]HPSHISLH[[OL0**VɉJPHS^LIZP[L!O[[W!^^^JVY[LJVZ[P[\aPV- 18 UHSLP[HJ[PVU1\KNTLU[KV. peaceful coexistence is allocated exclusively the contested provisions of the civil code to the State under the Constitution. the referring Court alleged that vide urgently. 52 of 2016: Constitutional In this case the Court heard a referral order whether it mirrors the interest of minors to Guarantees and Political Discretion on concerning the 2004 law on medically assist. the Court considered a referral DVLJQL¿FDQWUHODWLRQVKLSZLWKWKHPLQRU7KH under the separation of powers perspective. questions were addressed at the Rights and Freedoms es and close relatives of severely disabled ICC. ners. the ICC shows itself denomination or the presence or absence of same needs and right to health care.Judgment No. it is referencing to Article 4 TEU. sures on a case-by-case basis at the initiative tive discretion. Much will depend on the systems as exceeding regional competences. since the referring judge the Court of Cassation concerning a de. where affected by disease) could be used for failed to consider a provision of the civil cision by the latter upholding an appeal VFLHQWL¿FUHVHDUFKQRWZLWKVWDQGLQJWKHVWDW. The claimant al.OLMVSSV^PUNZ\TTHYPLZYLS`VUVɉJPHS[YHUZSH[PVUZ^OLYLH]HPSHISL 2016 Global Review of Constitutional Law | 111 . but not before the courts.ities are entitled to adopt any suitable mea- er to start negotiations is reserved to execu. 225 of 2016: The Rights of interdict the effects of the Taricco judgment es of worship to install video surveillance Children in the Separation of Same-Sex on national courts. order questioning the compatibility with the ICC found that there was no legislative vac- . the Court noted that there civil code allowed taking into consideration of the Council of Ministers to launch nego. tions of the contested provisions that made WKHIRUPHUIURPWKHEHQH¿FLDULHVRISDUHQWDO less.the right to parental leave. The Court also struck down ty limitations acceptable due to EU law) to provisions requiring newly-constructed plac. The Court struck down those por. contested legislation is one of such consider. as long as they did not allow the referring Separation of Powers search on Embryos Court to evaluate on a case-by-case basis Judgment No. The ICC struck ciples of the national constitutional identity ity of portions of a Lombardy regional law down the omission of the more uxorio of a Member State. by emphatically invoking supreme con. view by this Court”. The ICC dismissed the President of the Council of Ministers and destroyed (as they would not be implanted. case as unfounded. regulating parent-child relationships. 63 of 2016: “Anti-Mosques” people with parental leave. Couples answer that the CJEU has been asked to pro.

and that the legal position of the former cerning the punishment of the illegitimate rial elements) than under the ECHR (which partner may be adequately protected through XVHRIQRQSXEOLF¿QDQFLDOLQIRUPDWLRQZLWK only considers material elements). ralistic fact. tional several provisions of the civil code. Italian law must base its insofar as they did not allow the parents. The Court these legal arrangements. albeit considered with reference In this case. ruled the legislation unconstitutional insofar judge failed to consider. 7.uum. which the referring both criminal and administrative sanctions. 286 of 2016: In the Mother’s All the questions were found inadmissible with reference to the same historical-natu- (Sur)name for various reasons: most notably because. Article 4). allegedly in violation of the ne bis in idem as it did not provide that the applicability of principle (ECHR Protocol no. the ICC declared unconstitu. the ne bis in idem principle must be assessed Judgment No. event. causal link). in breach of the ECHR (if a formally admin. although a double line of punishment may be to all of its constituent elements (conduct. by LVWUDWLYHVDQFWLRQLVVXEVWDQWLDOO\DIÀLFWLYH.

and has no mutual consent. This may include keeping ishment in National Law and the ECHR the child’s constitutional right to his or her both criminal and administrative sanctions In this case the Court considered several own personal identity and the constitution. the ICC relied on cal and regional bodies when they are found Article 8 (right to respect for one’s private Judgement 193 of 2016: Lex Mitior JXLOW\ DOWKRXJK QRW GH¿QLWLYHO\ RI FHUWDLQ and family life) and Article 14 (non-dis. Referral Orders on the 2012 law providing al right to equal dignity between parents vestigation and punishment procedures. IRUWKHVXVSHQVLRQRIRI¿FLDOVHOHFWHGLQOR- and spouses. assessment on the idem factum. to attribute to their children it is for the legislator to settle the issue by scope for idem ius. and on the rel. in the crimination) of the ECHR. The Court held LQWR DFFRXQW WKH IXO¿OOPHQW RI REOLJDWLRQV Judgment No. The Court heard a referral order concerning offences (and also prohibiting them. 275 of 2016: Concept of Pun- that the voided legal provisions violated under EU law. Moreover. at the moment of birth the maternal as well making the appropriate choices. while unifying or coordinating existing in. also taking as the paternal last name. administrative sanctions for the violation of VDPHFDVHVWRUXQIRURI¿FH.

Therefore.before 2012.IXQFWLRQV³WRIXO¿OOVXFKIXQFWLRQVZLWKGLV- sively in accordance with criteria eventually tive sanctions. existing provisions related to the attribution VDQFWLRQV DQG RQ WKH VSHFL¿F QRUPV JRY. of an agreement between the parents. Many questions were raised. Para. Italy. as some of them might fall be. the effects of the questioned norms ICC’s decision. the question should focus on single rather. 7 January 2014). The question was whether the Consti. in barring ac- Relations Judgment No. they are precautionary measures. that recent. App.aimed at preventing illegality in public ad- of the paternal last name remain applicable HUQLQJ WKHP LQ RUGHU WR DVVHVV WKHLU DIÀLF. measures may also take into account previ- Foreign. yond the scope of constitutional and ECHR the Italian Constitution). However.7KLVDOVRDS- evant case law of the ECtHR. 200 of 2016: Ne Bis in Idem FHVVWR DQGSHUPDQHQFHLQ. The question is un. general norms applicable to all administra.cipline and honor” (Article 54.ed. As a result of the tution and the ECHR require the subsequent the ICC.case law (analyzed in detail by the ICC). in the absence principle may apply to administrative sanc. International and/or Multilateral ous offences and convictions.no. only the father’s name is in violation of the WHUWKH\KDGEHHQGH¿QLWLYHO\DSSOLHGWRWKH and all were found inadmissible or unfound- ECHR (Cusan and Fazzo v. of compatible with the principle of parity. but only af. the maternal last name after the paternal last also over res judicata. parents may agree to add and more lenient law (lex mitior) to prevail cannot be constructed as a “punishment”. 2. Some points are particularly relevant: for 77/07.ministration19 and at enforcing the constitu- in expectation of a legislative intervention WLYHFKDUDFWHUQRW²DVZDVWKHFDVH²RQWKH tional duty of citizens entrusted with public destined to regulate the matter comprehen. the tions. party. these guarantees. labor law: their unusual severity had been plies when the offences where committed ly declared that the obligation to transmit mitigated by a subsequent law.neither under Italian constitutional law nor name to their child’s name at the moment of founded: while in the abstract the lex mitior under Article 7 of ECHR and the ECtHR birth or adoption.

communicated on 5. con. 112 | I•CONnect-Clough Center .20 narrower in Italy. lodged on 10. Silvio Berlusconi against Italy.7. with the result that the In Judgment n.9. the Court heard criteria for establishing whether the fact is two referral orders. 2 DQDO\VLVLVHVSHFLDOO\VLJQL¿FDQWDVLWGZHOOV One of the most problematic frontiers with In this case the Court heard a referral order on issues which will be considered in the up- the ECHR concerns the different notions of concerning a provision of the Code of Crim.&& Judgement 102 of 2016: Ne Bis in Idem no. law (which considers both legal and mate- 19 See also C Cost no 236 of 2015. broader at Strasbourg. A of the ne bis in idem principle to the same number of questions stemmed from this very legal fact as regards its constituent elements VLJQL¿FDQWGLYHUJHQFH (idem ius).2016. from criminal and tax the same are more restrictive under Italian divisions of the Court of cassation.coming Strasbourg judgment on the (partial- “criminal matter” adopted by each system: inal Procedure which limits the applicability ly similar) Berlusconi case. 58428/13.RI¿FH7KH. rather than to the same historical fact (idem factum). 1 no. 102 of 2016. 20 Application no.2013.

2016 Global Review of Constitutional Law | 113 . John Henry Merryman. the ICC openly embraced a distinct position from the one of the CJEU. “The Italian Style II: Law” (1966) 18 Stan- ford Law Review 396. in particular. many of the reported judg. ry Merryman’s series of articles on the “Ital.24 Consequently. öffentliches Recht und Völkerrecht. The Heidelberg Journal of Internation- matically developed in its case law in 2016. The Constitution- highest level of compliance with EU law and al Relevance of the ECHR in Domestic with the ECHR. In particular. ‘Con- Court has not missed the opportunity of re. “The Italian Style I: Doctrine” (1965) 18 Stanford Law Review 39.com/abstract=2498966> Court’s mindset towards the globalization 4) Diletta Tega. “The Italian Style III: Interpretation” (1966) 18 Stanford Law Review 583. 2) 0DUWD&DUWDELDµ2I%ULGJHVDQG:DOOV sumed a characterizing stance of active par. This attitude Constitutional Reasoning (Cambridge towards supranational and international “re. University Press Forthcoming) <https:// lationality”22 is a recent development of the ssrn. Only the future will tell if this invitation to cooperate will be taken up by the CJEU. 1) Vittoria Barsotti. The “Italian Style” of Constitutional ticipation in the so-called judicial dialogue. some distinctive features of the national le- gal order might become elements for com- mon values in a system fostering pluralism. Marta Cartabia and Andrea Simoncini. Comparative Italian constitutional tradition. when it and European Law: An Italian Per- came to the core values of the constitutional spective (Intersentia 2013) identity of Italy. Context (OUP USA 2016) tude in the European constitutional space as. 21 John Henry Merryman. 23 See Section IV. 22 Barsotti and others (n 15) 235. C of this report. By submitting a reference for preliminary ruling. Journal of Public Law 37 gagement has been a collaborative one. stitutional Reasoning in the Italian maining true to its own interpretation of the Constitutional Court’. al Law/Zeitschrift für ausländisches On the one hand. the 3) Tania Groppi and Irene Spigno. the attitude of the ICC toward supranational and international law should be evaluated and considered by taking into account this complex and articulated picture in its entirety. the ICC stays Italian Constitutional Justice in Global true to this peculiarity. see further in Section III of this report.23 On the other hand. the Europeanization) of of cooperation and hubris’ (2017) 2 constitutional adjudication. ‘The Italian way: a blend (and. its atti. ian style”21 in comparative law. John Henry Merryman. 24 of 2017.CONCLUSION REFERENCES Fifty years after the publication of John Hen. Paolo G Carozza. which was dra. 24 C Cost no. the opportunity arose for further col- laboration with the CJEU. ments rely on the European courts’ case law forthcoming and make a proactive effort to ensure the 5) Giorgio Repetto (ed). Adjudication’ (2016) 8 The Italian Even though the general trend of the ICC en. As to the present.

7 Such as repeal of its section 2A. “Deciding Not to Decide: Deferral in Constitutional Design” 9 International Journal of Constitutional Law (2011). 18. consequently provided an impetus for ur- mination in 2017. J Pub.hrw.g. body and courts. Kenya has subject of sustained “abusive constitution- been a field of remarkable constitutional de. (1998). 14.htm (last visited 31 April 2016). 15. alism. Others will be subject to final deter. when it enacted for it. 8 See Rok Ajulu “Kenya’s 1997 Elections: Making Sense of the Transition Process” 14 (1) New Eng.10 These for one. 23. This review reports these de. Report of the Independent Review Commission.4 and courts have then electoral body. 5 See generally David Landau. 114 | I•CONnect-Clough Center . with The Independence Constitution had been a some spill over to the year 2017.8 substantive failure by the tution in the last six years. Kenya resorted to ad hoc constitutional re- refinement.”5 It had been amended several times velopment since 2010. Orange Democratic velopments by flagging the important ones. so several consti.1 Drafters of view processes in the form of constitutional the 2010 Kenyan Constitution “decided not amendments and attempted constitutional to decide”2 various points. or 63.php?id=5995. erful opposition group. 2 The phrase is extracted from Rosalind Dixon and Tom Ginsburg. whereas most of engaged in massive enactment of legislation these reforms were directed at the electoral to give effect to various parts of the Consti. of the then Constitution that paved way for multi-party democracy in 1991. Electoral Commission of been involved in interpreting statutes and Kenya (ECK). 21. Constitutional Implementation in Kenya: Challenges and Prospects (2011). and implementation. the fruitions of such ad hoc measures were ment should enact legislation to implement not a reliable and sufficient framework for the Constitution.pdf accessed 20 April 2017. 4 A list of legislation enacted in 2016 is available at http://kenyalaw. processes culminated in the Constitution of 1 See Ben Sihanya. “Constitution Building Processes and Democratization Kenya” avail- able at http://www. 2009.org/Archives/images/Constitution_Building_Processes_and_Democ- ratization-Kenya. Director of the Centre for Jurisprudence & Constitutional Studies at Kabarak Law School INTRODUCTION THE CONSTITUTION AND THE COURT(S) This brief review considers significant con- stitutional events in Kenya in 2016. covered in the review. articles 9. except gent constitutional reform processes. Kenya DEVELOPMENTS IN KENYAN CONSTITUTIONAL LAW Duncan Munabi O’kubasu. when it was felt that tutional articles end with a clause that Parlia. and as such are not. before 1992.katibainstitute. 6 See Yash Ghai and Jill Cotrell.3 Kenya’s Parliament has democracy.org/reports/2002/kenya2/Kenya1202-01. embroiled in constitutional interpretation. it of a propensity to act as a tool of control dependence one.org/kl/index. “Abusive Constitutionalism”47 UC Davis Law Review 189 (2013). 3 See e. revisions7 until 2008. to conduct free and fair elec- executive action under the authority of the tions coupled with a refusal by the then pow- Constitution. 10 Government of Kenya. The country has since been or an incubator of democracy. In particular. to present its grievance to court some of which started before 2016 but were over the 2007 general elections9 exposed the a subject of settlement (judicial or otherwise) ineffectiveness of the ad hoc measures and in 2016. Movement.6 After 1992. Pol. 9 /\THU9PNO[Z>H[JO¸2LU`H»Z<UÄUPZOLK+LTVJYHJ`¹H]HPSHISLH[ https://www. which has worked to deprive KENYA self a new Constitution replacing the 1963 In.

and national security. the protests through the security forces and tions and (b) request for advisory opinions Supplemental to the dispute was a claim by WKHSUHVLGHQWGHFOLQHGDW¿UVWWRFHGHWRWKH at the instance of the national government.12 Ordinarily. 163. 2010 art. Court of Ap. does have appellate jurisdiction to hear and The opposition insisted and promised more ulation including human rights. the succession of the Supreme Court judges.co. 12 See Constitution of Kenya. Rev.Kenya 2010 that sought not just to reform state organ or county government on a mat. through a parliamentary initiative involving specialized court to address constitution. the a novel point of law. 15 Constitution of Kenya. “We will not allow destructive protests. and following increased violence. al interpretation.g. and destruction of property.” by the Court of Appeal can be reviewed or oversee their substitution.ke/news/2016/05/cord-vows-continue- monday-protests-iebc/ accessed 20 April 2017. 2016 Global Review of Constitutional Law | 115 . Kenya does not have a RI$SSHDO FHUWL¿HV D PDWWHU WR EH RI JHQHU. 16 Ibid.13 This jurisdiction is exercised either by sion. 11 See e. deaths.VVDFN+DVVDQ²YDFDWHVRI¿FH19 The and appellate jurisdiction. the Secretary of the Judicial Service Commis- sion.11 in cases of interpretation of the Constitu. 2010. 20 Nancy Agutu. and Petition No 386 of 2015. institutions.21 as South Africa and Germany have. and who then continued in ser- JRYHUQPHQW UHVSRQGHG ¿UVW E\ VXSSUHVVLQJ risdiction to determine (a) presidential elec. Karuti Kanyinga and James D.standardmedia.” May 22.one purely political and another case a single judge or by an even number of judg. Afr. The political one concerned the tenure es (more than three) if the dispute concerns letters to some judges on the basis that they of commissioners of the electoral body. http://www. duly appointed and were in service under the FRPPLVVLRQHUV²DQGPRUHVRLWVWKHQFKDLU preme Court. K. Other High Court sta. determine appeals from the Court of Appeal protests. DOSXEOLF LPSRUWDQFHWKRXJKDFHUWL¿FDWLRQ major political parties a process was set up to al matters called a “Constitutional Court. “CORD vows to continue Monday protests against IEBC.ke/news/2016/06/10/we-will-not-al- low-destructive-protests-uhuru-tells-raila_c1367112 21 Francis Gachuri¸0. 14 Ibid. Raila Odinga. opposition demands requiring that the con- the judiciary and the electoral body but other ter that concerns a county government. issued retirement based. The High Court at Nairobi under the new Constitution.14 A decision from the were about to get to 70 years which was the Independent Electoral and Boundaries Com- High Court can be appealed against to the constitutional timeline for judges appointed mission (IEBC). public finance. should retire. The Judicial Service Commission. SUR¿OHGDVWKH³5HWLUHPHQW$JH&DVHV´7KH to make interpretations and determinations subject matter started around 2015 but be- on the Constitution. 244 of 2014. “Why we are holding mass protests against IEBC. All the set aside.the-star.17 Thus. the most pronounced controver- Employment and Labor Relations Court. 18 Standard Team. 13 Constitution of Kenya. It was principally a judicial dis- CONTROVERSIES IN 2016 to (a) determine questions of violations of pute on when the judges of Superior Court rights and also (b) interpret the Constitu. It has original ju. land. but that authority can only sy in 2016 was perhaps one that surrounded Environment and Land Court.18 The opposition circulat- constitutional matters. It started when opposition Court of Appeal. Long. FRXUWZLWKWKH¿QDODXWKRULW\RQFRQVWLWXWLRQ. the tion and in cases in which it or the Court commissioners resigned on their own and Regarding courts.” available at https://www. Okiya Okoiti Omtatah. Lady Justice Kalpana Rawal v.co.16 It VWLWXWLRQDO SURFHGXUHV EH IROORZHG ¿UVW20 (if not every) aspects of Kenya’s public reg. Others included Petition No 495 of 2014. the Judicial Service Commission.ke/news/iebc-commission- LYZHNYLL[VSLH]LVɉJLVUULNV[PH[LKZL[[SLTLU[. (2012). The Judicial Service Commis- 7KHUHZHUHWZRVLJQL¿FDQWFRQWURYHUVLHVLQ tion.However.22 The main conten- against IEBC setting out their grievances in Nairobi is purely administrative. the constitutional agency responsible 2016. St. be exercised if a matter falls within its juris- peal and Supreme Court) have the authority diction. 2010 art. tion was about the lawful period of service against the electoral body and called upon of Superior Court judges who were already Kenyans to attend (weekly) protests until the At the apex of the judicial system is the Su. the Judiciary and The Attor- ney General. the lead petition being Philip general elections.” The Star available at http://www. The judges re- leaders called for the resignation of IEBC in Kenya has a division designated to hear DFWHGE\ ¿OLQJ D QXPEHU RI 3HWLWLRQVDW WKH commissioners that presided over the 2013 and determine petitions on human rights and High Court. the Supreme Court is the superior courts in Kenya (the High Court. vice under the Constitution of Kenya.15 The Court has both original repealed Constitution (the Constitution of $KPHG.ke/article/2000201969/raila-odinga-why-we-are-holding-mass-protests-against-iebc (accessed 20 April 2017). Tunoi & Another v. Kenya 1969). 22 Petition No. Chapter 10. “The Political Economy of Reforms in Kenya: The Post-2007 Election Violence and a New Constitution. the High DEVELOPMENTS AND came a subject of Supreme Court determina- Court has the explicit original jurisdiction tion in 2016.capitalfm. 19 Judie Kaberia. 162.)*JVTTPZZPVULYZHNYLL[VSLH]LVɉJLVUULNV[PH[LKZL[[SLTLU[¹https://citizentv. 17 Art. Uhuru tells Raila.” 55 (1) 35. for the hiring of judges. 163. Justice Leonard Njagi v. The Judicial Service ed an article titled The Kenyan People’s Case WLRQVFDQKHDUDQ\SHWLWLRQ²WKHDUUDQJHPHQW Commission & Another.co.co. 2016.

24 Para 399. the then Deputy Chief Jus. let alone to grant the 23 R. Chief PHQWDJHRIMXGJHVLQRI¿FHRQWKHHI. “Mutunga fast tracks Rawal retirement case. Judicial Service Commission & 3 others [2016] eKLR (Per JB Ojwang).ke/news/Mutunga-wades-into-Rawal-retirement-case/1056- 3225372-format-xhtml-nt1pdoz/index. as well as other judges of MXGJHVLQRI¿FHRQWKHHIIHFWLYHGDWHLV be heard. 28 Richard Munguti. Meoli. 27 Kamau Muthoni. and the Judicial was breaching their legitimate expectations. human rights.31 The effect of upholding the prelim.29 ples that undergird the Constitution. the High Court Justice Rawal. Kariuki. 25 Justice Kalpana H.co. There were. and the retirement age of Supreme Court directed that the application Chief Justice.” varied the orders that Appeals involving interpretation and appli- was aggrieved by the decision of the High had been given by Justice Njoki Ndungu and cation of the Constitution and which had a &RXUWDVRWKHUMXGJHVZHUH6KH¿OHGDQDS. and at another level it is di- Constitution as read with Section 9 of preliminary objections.30 vertically between the national and county scribed by section 62(1) of the former Five judges of the Supreme Court heard the governments.24 be after the departure of the Chief Justice. Mwongo. ministrative powers.27 -XVWLFH 'U :LOO\ 0XWXQJD UHWLUHG DQG WKH fective date was seventy or seventy-four The appeal to the Supreme Court had been Rawal case having had the effect of “re- years as such mandate belonged to the ¿OHG MXVW D IHZ GD\V EHIRUH WKH WKHQ &KLHI moving” justices Rawal and Tunoi. The process of hiring a new the Judiciary. “Supreme Court moves to save Rawal and Tunoi hours after Court of Appeal sends them home. Kalpana Rawal. J. a private citizen. Rawal v. the Supreme Court. Judicial Service Commission & 3 others [2016] eKLR. Justice Ndungu. seventy years. C.standardmedia. who had been enjoined by the High Court as . Kiage. dismissed. exercising his “ad. the JSC had no man. 26 The decision is available at http://kenyalaw.” http://www. there was no coram to tirement notices is the responsibility of ki Ndungu had. The Constitution of Kenya embodies a rich High Court did not err in holding that WLRQWRKHDUWKHDSSHDOWKDWZDVWREH¿OHGDW symmetry of separation of powers at many the Constitution did not preserve and the Supreme Court and whose subject matter levels. Okiya Omtata. both of -XGLFLDU\LQWKH¿UVWLQVWDQFHLVVXLQJUH. with an application for a stay.” available at https://www. executive. J. such as and determined by seven judges.org/caselaw/cases/view/122357/ acceded on 23 April 2017. Even within the the Sixth Schedule to the Constitution. the Supreme Court. 70 years. below. and the majority up. W. Makhandia. M’inoti. Kariuki. against Ojwang and Ndungu JJSC. available at http://kenyalaw. of the Petitioners.ke/news/ end-of-the-road-the-for-rawal-tunoi-as-jobs-are-advertised/1950946-3251578-1185j5a/index.nation.gave directions that the application be heard far-reaching impact on the text and princi- peal in the Court of Appeal.co.25 It was separation of powers. The application for stay Because of succession at the Supreme Court. who allowed it and after the decision in the Rawal case.html accessed on 23 April 2017. Ouko. the petition was heard by sitions of Deputy Chief Justice and judge of ¿YHMXGJHV23 Dismissing it. 29 Ibid. at a date that would the Supreme Court. took time. inter parties.org/caselaw/cases/ view/123000/ accessed on 23 April 2017. (Per Justices.32 held in summary that: WLFH¿OHGDQRWLFHRIDSSHDOFRQWHPSRUDQH- ously.-XVWLFH:LOO\0XWXQJDUHWLUHG-XVWLFH1MR.A). Rawal & 2 others v. It fails and is hereby The orders were set aside. 32 Abiud Ochieng.28 KRZHYHU PDQ\ RWKHU VLJQL¿FDQW FDVHV WKDW The Chief Justice in turn. in granting stay orders at the hear any case. Mohammed & Odek. J. the that the Supreme Court did not have jurisdic. C.stayed the decisions of the Court of Appeal. at the tional rights and legitimate expectations Supreme Court. inary objection was that the Supreme Court legislature. J.Q WKH ¿QDO DQDO\VLV ZH KDYH UHDFKHG DSDUW\¿OHGDSUHOLPLQDU\REMHFWLRQDUJXLQJ Separation of Powers the conclusion that on the whole. ed and that the Judicial Service Commission cannot succeed. the retirement age of all judges is to entertain the appeal. “End of the road the for Rawal. Jj. 31 Mutunga. and the Judges of the Court :KHQ WKH DSSOLFDWLRQV ZHUH VFKHGXOHG IRU eign relations.the decision of the Court of Appeal. J. Some of these are highlighted of Appeal held: a hearing. powers (and functions) are di- and that with effect from the effective ZDVFRQÀLFWHGDQGGLGQRWKDYHMXULVGLFWLRQ vided between the national assembly and the date.the judges that their rights were being violat. and for- also dismissed.was heard by a single judge of the Supreme there were hardly any cases that were heard date in determining whether the retire.26 Service Commission advertised for the po- At the High Court. staying MAJOR CASES there was no violation of the constitu. power is divided save the retirement age of judges pre. the appeal orders that had been previously granted. the Judicature Act and Section 31 of held it. were heard in the High Court and Court of The Deputy Chief Justice. Ong’udi.co.ke/article/2000203232/supreme-court-moves-to-save-rawal-and-tunoi-hours-after-court-of-appeal-sends-them-home ac- cessed on 23 April 2017. For these reasons. vided horizontally between the judiciary.” (Daily Nation. Tunoi as jobs are advertised. 15 June 2017) available at http://mobile. H. Korir. At the one hand.nation. 116 | I•CONnect-Clough Center . which was heard on a priority basis.html. Pj. and legislature. Wanjala and Ibrahim JJSC.Court. 30 Kalpana H.the applications were aiming to preserve.

vate property. 2016 Global Review of Constitutional Law | 117 .”41 about the powers of the President to appoint There have been legion disputes between na. levels of government resolved through independence of the Judicial Service Com- D FOHDU SURFHVV HVWDEOLVKHG VSHFL¿FDOO\ mission and the judiciary.org/caselaw/cases/view/120392/ accessed 31 March 2017 .Act by requiring that the Commission sub. the court. determined that: VRXJKW²LQ YDLQ²WKH &RPPLVVLRQHU RI national and county governments.37 This case Commission Act. the bill sought to amend ciety & 2 Others [2016] eKLR. the said amendments vio- blies.by the “fact that the amendments only affect the government to occupy and reside in a cable resolution through processes such the Chief Justice and the Deputy Chief Jus.39 This case was 166(1) of the Constitution.and the High Court who are appointed in a dwellings. socio-economic rights under the 2010 Con- to health. members of Mi- for the purpose by legislation. Attorney General lated the letter and the spirit of Article thus also 47 county assemblies.”38 section 30(3) of the Judicial Service Act In 2011. 34 Ibid. Regarding the Judicial Service Airports Authority v. VLJQL¿FDQWZDVRQHWKDWIRXQGLWVZD\WRWKH WKHPRVWVLJQL¿FDQWZDVInternational Legal ry enactments. some of which have been a subject laneous Amendment) Act 2015 that sought to determined by the High Court. 36 Available at http://kenyalaw. Citing the Inter-Governmen. 38 Ibid para. 35 Constitution of Kenya. First Schedule. the Airports Authority placed a no- compelled the Judicial Service Com. President for appointment of the Chief The devolved government is also divided tionship between the judiciary and the exec. through the Ministry ly sought to amend the provisions of section the tension between the right to housing as of Health. Para 307.by the enactment of the Statute Law (Miscel. 37 Ibid. and of Law Society of Kenya v. the judi. 40 Para 19. or Lands to issue them title deeds to the portion between county governments.org/caselaw/cases/view/122379/ accessed 31 March 2017.33 Some other disputes have been on the rela. Rights and Freedoms tional government and county governments tice. 39 http://kenyalaw. which collateral Sometime around 1992.34 Kenya currently has 47 counties. to procure certain medical equip. has been “To the extent that the amendments to of the appellant’s land that they occupied. The Court had to decide on out the country. schools. Mitu-Bell Welfare So- Health & 9 others [2016] eKLR. which lished their businesses on the property and with any disputes arising between the heard the case. Chapter 8. Most pointedly. legion petitions involving over the exercise of powers (as well as priv.35 & Another [2016] eKLR. 41 Ibid.42 The appeal was about division of functions between the it to prescribe timelines for transmission of concerned justiciability and enforceability of national and county governments in relation names to the President after recommenda.”40 The High Court. the case expressed national government. The residents then put up their slum court system. As a result.org/caselaw/cases/view/123600/ accessed 31 March 2017 43 Ibid. The most of judicial determination in 2016.the Chief Justice and the Deputy Chief Jus. Justice and the Deputy Chief Justice into county executives and county assem. 42 http://kenyalaw. tice in the local daily newspapers giving the mission to submit three names to the occupants and residents seven days to va- 33 Constitution of Kenya. It arose out of a decision by the tion by the Commission and most important. Ministry of Act 2011.36 One of make minor amendments to various statuto. Proceedings in that case were provoked In the year 2016.senate (both of which make up Parliament). It had been contended ture in the appeal was the interpretation of the interest of county governments and ob. property belonging to Kenya Airports Au- as arbitration rather than an adversarial tice but not the Judges of the Court of Appeal thority. 65. the scope of the power of the High Court to served that: ciary was going to be perceived by the public grant appropriate relief as per Article 23 of as an appendage of the executive and more the Constitution in cases involving the im- “the constitutional and legislative intent importantly that the said amendments would plementation of rights and fundamental free- was to have all disputes between the two achieve a collateral purpose of limiting the doms. including the Judicial Service Court of Appeal from the High Court: Kenya Consultancy Group & another v.43 established. to the position of the Chief Justice and the can trump private property rights. a process purpose was claimed to have been evidenced tu-Bell Welfare Society were relocated by that emphasizes consultation and ami. stitution. violations of human rights were heard and ileges). A key fea- GLVPLVVHGWKHSHWLWLRQWKDWKDGEHHQ¿OHGLQ Deputy Chief Justice.mits names of three persons for appointment the extent to which socio-economic rights tal Relations Act 2012. a separate dis.30(3) of the Judicial Service Commission a socio-economic right and the right to pri- ment to be used in health facilities through. XWLYH0RVWVLJQL¿FDQWLQWKLVUHJDUGZDVWKDW respectively.that by allowing such amendments. and churches and estab- pute resolution mechanism for dealing similar manner. Chapter 11. in that case.

51 These include: the 60 days. seemingly. en. Several amend- oppressive. since its adoption in 2010. Respect for human rights.org/caselaw/cases/view/130653/ accessed on 31 March 2017. 7KHSHWLWLRQHUVUHDFWHGE\¿OLQJDFDVHLQWKH ers. The Constitution has not been amended olition without a relocation option is illegal. however. 45 Ibid.OLHTLUKTLU[IPSSZ^LYLW\ISPZOLKPU[OLVɉJPHS. In dismissing the applica. such waiver must always be express. http://kenyalaw.” tutional developments. ment bills that sought to change that came petitioners. 50 Constitutional Petition 426 of 2016.54 and Con- with a decision by a state organ concerning XQOHVV LW LV VDWLV¿HG WKDW WKH LPPXQLW\ stitution of Kenya Amendment Bill 2016. The respondents and interested par. The constitutional nity from jurisdiction of Diplomatic and statutory provisions on fair administra.52 the Amendment Bill programs to the petitioners. 46 Kenya Airports Authority v. 54 O[[W!^^^RLU`HSH^VYNRSÄSLHKTPUWKMKV^USVHKZIPSSZ*VUZ[P[\[PVUVM2LU`HF(TLUKTLU[F)PSS5VVMWKM accessed on 31 March 2017. and Pamoja Trust to analyze the foreign missions/embassies. law in Kenya provides that the immu. The petitioners. the Court held that it would be: Bill seeking to amend Article 143 of the the Court of Appeal.individuals. agents and of persons enjoying immu Kenya has been through interesting consti- 47 tive action must be adhered to. para 114. ber of county governments from 47 to 46 informal and slum settlements. Act and indeed the Constitution if it de. curiae.”49 that sought to change the process of dealing gressive realization of socio-economic rights with electoral disputes. international organizations. and Multilateral nity under article 37 thereof may be occupied. tion. 49 Ibid. that any forceful eviction and or dem.org/caselaw/cases/view/130653/ accessed on 31 March 2017. million signatures. International.org/caselaw/cases/view/123600/ accessed 31 March 2017 47 Ibid.45 al organizations. forcible ³$UWLFOH  RI WKH ¿UVW VFKHGXOH RI WKH failing to gather the required threshold of a or otherwise. observe that “in any eviction. any buildings.” collapsed after ever.OL*VUZ[P[\[PVUVM2LU`HF(TLUKTLU[F)PSSF5VF VMWKM accessed on 31 March 2017. the allocation of available resources for pro.cate portions of the suit property that they Foreign. Republic of Kenya All War Heroes & Oth. tions but also because the Deputy President stitution. 55 O[[W!^^^RLU`HSH^VYNRSÄSLHKTPUWKMKV^USVHKZIPSSZ. the petitioners sued 97 respondents and unsuccessful attempts of the Parliament and High Court. 118 | I•CONnect-Clough Center . and violates the rights of the ties included former heads of states and gov. termed “Okoa Kenya. which allowed the ap. The dissolution of commissioners of the electoral body was 44 Ibid.”46 The CoA did. Attorney General & Others [2017] demolished or removed and all activity was eKLR.53 Constitution of Kenya Amendment The state appealed against the decision in tion. http://kenyalaw. or erections thereon were to be ers v. though decided in January 2017. foreign embassies and diplomatic in the year 2016 both from the National ZDV WR SURYLGH E\ ZD\ RI DI¿GDYLW ZLWKLQ missions. Also. 53 O[[W!^^^RLU`HSH^VYNRSÄSLHKTPUWKMKV^USVHKZIPSSZ*VUZ[P[\[PVUVM2LU`HFF(TTLUKTLU[F)PSSFWKM accessed on 31 March 2017. policies and programs for the pro. CONCLUSION tion should be observed. 51 . Constitution of Kenya Amendment Bill (No vision of shelter and access to housing for FRXQWHUHGGLI¿FXOWLHVLQVHUYLQJVRPHRIWKH 2) 2016 that proposed to reduce the num- the marginalized groups such as residents of respondents. 48 Constitutional Petition 426 of 2016. opment in Kenya concerned. and dignity in carrying out the evic. Constitution in order to extend the presiden- peal arguing in part that “Under the political “Flouting international law and the pro. The state was ed Embassy. has been waived.44 The notice also stated that upon Relations waived by the sending state and that expiry of the notice period. how. tial immunities to the Deputy President not question doctrine and noting the provisions visions of the Privileges and Immunities only because she performs sovereign func- of Article 20(2) and 20 (5) (c) of the Con.48 In the The other noteworthy constitutional devel- Republic of Kenya All War Heroes & Oth. and sought an order from the by reorganizing Nairobi County under the further to furnish copies of such policies and Court to the Ministry of Foreign Affairs to national government. http://kenyalaw. lomatic Relations having the force of fairness. that the respondent (state) ernments. adequate and reasonable notice Articles of Vienna Convention on Dip. and former heads of state of functions assigned to the county govern- and governments. an important case of the year 2016. other relevant help them effect service of the summons to (No 1) 2016. ments. The case also attracted six amicus tion. that sought to empower the state agencies. among them the United Stat.parties.OLF*VUZ[P[\[PVUVM2LU`HF(TLUKTLU[FF5VF)PSSFWKM accessed on 31 March 2017. Senate to increase the timelines for transfer and comment on the policies and programs. inter named over 70 intended and or interested political fractions to amend the Constitu- alia. internation.550RVWVLJQL¿FDQWO\ solely on the basis that it would have reached The Court further added: a popular initiative to amend the Constitu- a different conclusion. Mitu-Bell Welfare Society & 2 Others [2016] eKLR.”50 installations.HaL[[L 52 O[[W!^^^RLU`HSH^VYNRSÄSLHKTPUWKMKV^USVHKZIPSSZ. and Assembly and Senate. and the High Court held. should be given. was Other Constitutional Development to terminate in the area. a trial court should rarely interfere crees or issues summonses in this case symbolizes Kenya’s sovereignty.

perhaps the happening that absorbed the na- tion and its resolution without an amendment to the Constitution demonstrated that (a) the Constitution is not the cause of institutional LQHI¿FDF\ LQ .HQ\D DQG E.

The foregoing notwithstanding. not to condemn such parties to pay costs of a peti- tion in the event they lose and this policy has further encouraged judicial review. The Supreme Court succession for its part demonstrated – all through – that the Court as an institution was weak to the extent that it played to pre- dictions that it would be divided 3:2. DPHQGLQJ WKH Constitution is not the panacea for political grievances and controversies. 2016 Global Review of Constitutional Law | 119 .” creating an ugly impression that the Court was not impartial. through jurisprudence. Court deci- sions on challenged parliamentary legisla- tion as well as claims by individuals alleging human rights abuse evidences that the in- stitution of judicial review has the potential to succeed in Kenya under the new Consti- tution. The 2010 Constitution bestowed on the citizens a duty to defend it and much legislation enacted by the Parliament has been a subject to judicial review because of individual initiatives. The Court has devel- oped a policy. based on fairly known inter-judge “friendships.

taking into account the constitutionally established geopolitical 1 . year. the of Lithuania. and Vaidas Lubauskas. the past year was steadfast can serve as an illustration of such possible in terms of the variety and complexity of engagement by courts.1 the field of public relations and publicity of the Court’s activities. the limitation on the amount of (DVWHUQ3DUWQHUVKLSFRXQWULHV²*HRUJLDWKH a maternity allowance payable to mothers 5HSXEOLF RI 0ROGRYD DQG 8NUDLQH²E\ before and after childbirth. For instance. courts not only administer provisions of the systematised official justice but. etc. Constitutional Court of the Republic of Lithuania INTRODUCTION orientation of the State of Lithuania. and Secretary General.UNSPZOHYLH]HPSHISLVUP[ZVɉJPHS^LIZP[LO[[W!^^^ lrkt. In 2016.2 to be held from 11 to 14 September liability without giving the accused person 2017 in Vilnius. Lithuania DEVELOPMENTS IN LITHUANIAN CONSTITUTIONAL LAW 'U'DLQLXVäDOLPDV3URIHVVRU/DZ)DFXOW\RI9LOQLXV8QLYHUVLW\DQG3UHVLGHQW &RQVWLWXWLRQDO&RXUWRIWKH5HSXEOLFRI/LWKXDQLD'U. within their Lithuania and the texts of other publications competence. The activity of the Constitutional Court in the For the Constitutional Court of the Republic field of international cooperation in 2016 of Lithuania. a criminal act. obligations of the state. The year an ad hoc investigation commission of the 2016 was notable for positive changes in Seimas. the Constitutional Court also of the Republic of Lithuania) who fail to strongly advocated in favour of the individual perform their duties. the intensive preparation by the to adjudicate on such issues as the dismissal Constitutional Court for the 4th Congress of criminal proceedings after the expiry of RI WKH :RUOG &RQIHUHQFH RQ &RQVWLWXWLRQDO a statutory limitation period for criminal Justice. the temporary providing assistance to these countries in removal from office of a municipal mayor or their processes of creating a state under the deputy mayor suspected of having committed rule of law.L_[ZVM[OLHJ[ZVM[OL*VUZ[P[\[PVUHS*V\Y[PU. 2 -VYTVYLPUMVYTH[PVUWSLHZLJVUZ\S[[OLVɉJPHS^LIZP[LVM[OL*VUNYLZZO[[W!^^^^JJQS[ en. Head of the Division of Legal Research. i. Constitutional Court of the Republic of Lithuania. the payment of remuneration to members of the Seimas (the Parliament In 2016. 120 | I•CONnect-Clough Center . the As was noted in one of the decisions Constitutional Court was the first among adopted by the Constitutional Court last Lithuanian courts to launch the live Internet year. Two key points LITHUANIA follow from this activity of the preceding constitutional matters brought before it. the approval given by constitutional complaint and its introduction the Seimas for a questionable conclusion of into the constitutional legal order. inter alia. under the Constitution of the Republic broadcasting of its public hearings. the constitutional objectives that had previously been produced only in a pursued under the foreign policy of the printed format were made available on the Republic of Lithuania and international official website of the Constitutional Court.e. in the same manner as other state constitutional doctrine of the Republic of institutions. the Constitutional Court had. and its cooperation with the the possibility of removing doubts regarding constitutional courts of the European Union’s his/her guilt. may implement.lt/en/court-acts/rulings-conclusions-decisions/171/y2016.QJULGD'DQơOLHQơ/HFWXUHU Law Faculty of Vilnius University.

THE CONSTITUTION AND THE President of the Republic, the Government, The so-called Paksas case is a prominent
and all courts. The Lithuanian legal system example of such incompatibility.
COURT
does not provide for the institution of the
individual constitutional complaint, which This case was initiated in the European
The Constitution of the Republic of
would enable individuals to directly apply Court of Human Rights (ECtHR) after the
Lithuania was adopted by referendum on
to the Constitutional Court. However, Constitutional Court had adopted the ruling
25 October 1992. This marked a new future
legislative actions have recently been taken of 25 May 2004, in which it was held that,
of the constitutional development of an
(i.e. relevant constitutional amendments under the Constitution, a person who, inter
independent democratic state of Lithuania.
have been registered) in the Seimas in alia, grossly violated the Constitution and
The Constitution, as the highest-ranking
order to introduce individual constitutional breached the oath and, as a result of this, was
act and a social contract, is based on
complaints. removed under the impeachment procedure
universal and unquestionable values, such
from office could never again stand in
as sovereignty belonging to the Nation,
Currently, the Constitutional Court elections for an office requiring a person
democracy, the recognition of inalienable
is also a full member of international to take an oath to the State of Lithuania. A
human rights and freedoms and respect for
RUJDQLVDWLRQV²WKH :RUOG &RQIHUHQFH RQ person who was directly affected by the said
them, respect for law and the rule of law, the
Constitutional Justice and the Conference &RQVWLWXWLRQDO &RXUW¶V GHFLVLRQ²5RODQGDV
limitation of the scope of state powers, the
RI (XURSHDQ &RQVWLWXWLRQDO &RXUWV² Paksas, a former President of the Republic of
duty of state institutions to serve the people
uniting constitutional justice institutions. /LWKXDQLD²DSSOLHGWRWKH(&W+5LQGHIHQFH
and their responsibility to society, civic
From the very beginning of its activity, of his right to stand in elections. Having
consciousness, justice, and the striving for
the Constitutional Court has been actively considered the application, in its judgment
a harmonious civil society and a state under
cooperating with the constitutional courts of of 6 January 2011,4 the ECtHR ruled that the
the rule of law.
QHLJKERULQJ FRXQWULHV²/DWYLD DQG 3RODQG permanent and irreversible disqualification
Over the last few years, the Constitutional from standing in parliamentary elections
For the first time in the history of the State
Court has considerably strengthened the was disproportionate and that, in having
of Lithuania, the Constitution of 1992 also
cooperation with the constitutional courts of established such a disqualification,
consolidated the institute of constitutional
the European Union’s Eastern Partnership Lithuania had violated Article 3 of Protocol
judicial review. The Constitution stipulates
FRXQWULHV²*HRUJLD WKH 5HSXEOLF RI No 1 of the Convention for the Protection of
that, in Lithuania, constitutional control is
Moldova, and Ukraine. The Constitutional Human Rights and Fundamental Freedoms
carried out by the Constitutional Court, which
Court also maintains cooperation ties with (hereinafter referred to as the Convention),
consists of nine justices, each appointed
the European Commission for Democracy which, as mentioned in the judgment of
for a single nine-year term of office. The
through Law (Venice Commission), which the ECtHR, consolidates the fundamental
Constitutional Court, which was formed
have become especially evident in the principle of an effective political democracy
and began its activities in 1993, ensures the
context of the upcoming 4th Congress of the and implies the subjective rights to vote
supremacy of the Constitution within the legal
:RUOG&RQIHUHQFHRQ&RQVWLWXWLRQDO-XVWLFH and to stand for election. In the judgment
system, as well as administers constitutional
of the ECtHR, it is acknowledged that the
justice, by deciding whether the laws and
right at issue is not absolute and that certain
other legal acts adopted by the Seimas are
in conformity with the Constitution, and DEVELOPMENTS AND limitations of this right are permissible,
but that these limitations may not be of a
whether the acts adopted by the President CONTROVERSIES IN 2016
permanent character.
of the Republic or the Government are in
compliance with the Constitution and laws. According to the official constitutional
The Constitutional Court and the ECtHR
Under the Constitution, in performing this doctrine developed by the Constitutional
assessed the situation regarding one’s
function, the Constitutional Court has the Court of the Republic of Lithuania, respect
ineligibility to stand in parliamentary elections
exclusive powers to interpret the Constitution for international law is an inseparable part
from different positions: in its rulings, the
by revealing its meaning and the content of of the constitutional principle of a state
Constitutional Court emphasised allegiance
its provisions. under the rule of law. However, due to the
to the State of Lithuania, loyalty, and (in)
fact that the Constitution and international
eligibility to take up a responsible office once a
According to the Constitution, the right to law are inherently autonomous and have
VHULRXVWUDQVJUHVVLRQKDVEHHQFRPPLWWHG²D
apply to the Constitutional Court is vested superiority in their respective spheres, certain
gross violation of the Constitution and a
in the Seimas in corpore, not less than incompatibilities between international legal
breach of an oath taken to the state; while
1/5 of all the members of the Seimas, the norms and constitutional norms may arise.3
the ECtHR interpreted the same situation
3
+HPUP\ZùHSPTHZº;OL6WLUULZZVM[OL*VUZ[P[\[PVU[V0U[LYUH[PVUHS3H^HZHU,SLTLU[VM[OL7YPUJPWSLVM[OL9\SLVM3H^»0U[LYUH[PVUHS*VUMLYLUJL
‘Constitutional Court of the Republic of Slovenia – 25 Years’, Bled, June 2016) http://www.us-rs.si/media/zbornik.25.let.pdf.
4
Paksas v Lithuania App no 34932/04 (ECtHR, 6 January 2011).

2016 Global Review of Constitutional Law | 121

more through the right of the electorate – the The Seimas has repeatedly attempted to LPSHDFKPHQW DV UHYHDOHG LQ WKH RI¿FLDO
FLWL]HQVRIWKHVWDWHFRQFHUQHG²WRGHWHUPLQH implement the aforementioned judgment of constitutional doctrine, under which two
and decide whom they would like to see as the ECtHR in a constitutional way, i.e. by LQGHSHQGHQWLQVWLWXWLRQVRIVWDWHSRZHU²WKH
their representatives, as well as through the adopting the amendments of the Constitution, 6HLPDV DQG WKH &RQVWLWXWLRQDO &RXUW²KDYH
disclosure and interpretation of the concept of which would lead to the elimination of the powers in impeachment proceedings; under
the electoral right. incompatibility between the provisions of the Constitution, each of these institutions
the Constitution and the Convention, but in impeachment proceedings is assigned
After the delivery of the said judgment of the none of its attempts have been successful. VSHFL¿F SRZHUV FRUUHVSRQGLQJ WR WKHLU
ECtHR, measures were taken in Lithuania respective functions. If such proposal were
to implement it. The Seimas adopted MAJOR CASES implemented, the Seimas would interfere
amendments to the Law on Elections to the with the competence assigned to an institution
Seimas, under which, a person who grossly Separation of Powers of judicial power – the Constitutional Court
violated the Constitution and breached the The Constitutional Court has held more – in impeachment proceedings and take
oath could stand in parliamentary elections than once that, after the Constitution has the powers granted to the Constitutional
after a five-year period following his/ directly established the powers of particular Court. Moreover, by means of the proposals
her removal from the office held. Such institutions of state power, no state institution (among other things, to regulate the legal
provisions amending the law were evidently may take over such powers from another consequences of constitutional liability by
incompatible with the doctrinal provisions state institution, or transfer or waive them, means of a resolution of the Seimas) as set
formulated in the Constitutional Court’s and that such powers may not be amended or out in the conclusion of the Commission, an
ruling of 25 May 2004. Thus, it is no restricted by means of a law; otherwise the attempt was made to interpret the provisions
wonder that the Constitutional Court, in its principle of the separation of powers, which of the Constitution in a way different from
ruling of 5 September 2012, recognised that is consolidated in the Constitution, would that provided by the Constitutional Court
such amendments were in conflict with the be violated. The Constitutional Court had to in its acts, thus denying the powers of this
Constitution. The Constitutional Court held recall the said doctrinal provision in its ruling FRXUW WR RI¿FLDOO\ LQWHUSUHW WKH &RQVWLWXWLRQ
that, in itself, the judgment of the ECtHR of 22 December 2016. This case dealt with and interfering with the constitutional
may not serve as a constitutional basis the issue of the approval given by the Seimas competence of this court (as an institution of
for the reinterpretation (correction) of the for the questionable proposals of an ad hoc judicial power) to administer constitutional
official constitutional doctrine, and that the Investigation Commission of the Seimas justice.
renouncing of international obligations in (hereinafter referred to as the Commission)
the sphere of human rights would not be a for the Restoration of the Civil and Political Therefore, this resolution of the Seimas,
constitutionally justified option. This led to Rights of President Rolandas Paksas. The whereby the Seimas had approved
another important conclusion, namely that Constitutional Court set out the principled the conclusion of the aforementioned
the Republic of Lithuania is obliged to adopt provision that the Seimas may not approve Commission, was ruled by the Constitutional
relevant amendment(s) to the Constitution. a conclusion of any possible content made &RXUW WR EH LQ FRQÀLFW ZLWK inter alia, the
by an ad hoc investigation commission of constitutional principle of the separation of
In 2016, the Constitutional Court had to return the Seimas, inter alia; any such proposals powers.
to this issue by assessing the constitutionality formulated therein that would be incompatible
of the resolution of the Seimas whereby with, among other things, the requirements Rights and Freedoms
the Seimas had approved the conclusion stemming from the constitutional principle of The vast part of the constitutional justice
of the ad hoc Investigation Commission of the separation of powers. cases considered in 2016 comprised cases
the Seimas for the Restoration of the Civil VLJQL¿FDQW IRU SURWHFWLQJ DQG HQVXULQJ WKH
and Political Rights of President Rolandas One of the proposals set out in the conclusion constitutional rights and freedoms of persons
Paksas.5 Having found the resolution of the of the Commission was to supplement the (the right to fair proceedings, the right to
Seimas to be in conflict with the Constitution, provisions of the Statute of the Seimas freely choose a job or business, the right to
the Constitutional Court reiterated that, in governing impeachment proceedings so that receive fair pay for work, the right to social
order to remove the incompatibility between the Seimas would be granted the competence, security, the protection of consumer rights,
the Constitution and the provisions of the XQGHUWKHVSHFL¿HGFLUFXPVWDQFHVWRUHYLHZ the equality of the rights of persons). Among
Convention, as well as to implement the and annul an impeachment against a person the cases in this category, particular attention
related judgment of the ECtHR, there is only without applying to the Constitutional Court should be paid to three cases.
one way – to amend the relevant provisions concerning this issue. The Constitutional
of the Constitution; any other way is Court found that such proposal denied the Firstly, in one of its cases, the Constitutional
impossible under the Constitution. constitutional concept of the institute of Court had to assess the constitutionality

5
For more information on this case, see Chapter IV.1 of this report.

122 | I•CONnect-Clough Center

of the provisions of the Code of Criminal The Constitutional Court also held that the Foreign, International, and Multilateral
Procedure regulating the termination of Code of Criminal Procedure consolidates Relations
criminal proceedings after the expiry of a WKH VXI¿FLHQW JXDUDQWHHV WR HQVXUH WKDW WKH
Substantiating the interpretation concerning
statutory limitation period. In the ruling rights of a person, inter alia, a member of the right of judges to receive other
of 27 June 2016, the impugned legal D PXQLFLSDO FRXQFLO KROGLQJ WKH RI¿FH RI
remuneration, the Constitutional Court, in
UHJXODWLRQ ZDV KHOG WR EH LQ FRQÀLFW ZLWK mayor or deputy mayor who is subject to the its decision of 16 May 2016, revealed new
the Constitution insofar as, under this procedural coercive measure of temporary aspects of the activity of courts related to
regulation, a case was to be dismissed by UHPRYDO IURP RI¿FH LQFOXGLQJ WKH ULJKW WR
foreign policy and international relations.
the court without assessing charges brought freely choose a job, would not be limited inIt noted that, under the Constitution, the
against the accused and without ascertaining a disproportionate manner. Therefore, the role of courts is not limited exclusively to
whether the accused had reasonably been impugned legal regulation was ruled not the administration of justice. Like other
charged with having committed a crime or LQ FRQÀLFW ZLWK WKH &RQVWLWXWLRQ LQVRIDU
institutions of state power, courts, within
whether the acquitted person was reasonably as it does not establish the prohibition on their constitutional competence, either
acquitted of a crime with which he/she had removing a member of a municipal council independently or in cooperation with other
been charged. The Constitutional Court held IURPWKHRI¿FHRIPD\RURUGHSXW\PD\RURUstate institutions, may participate in carrying
that the impugned legal regulation precluded any additional criteria limiting the duration
out the general tasks and functions of the
a court from acting in such a way that the RIKLVKHUUHPRYDOIURPRI¿FH state. Among other things, courts may also
truth in a criminal case would be established engage in the activity aimed at achieving
and the question of the guilt of the person In the third case in this category, the the constitutional objectives of the foreign
accused of having committed a crime would Constitutional Court had to assess the policy of the Republic of Lithuania and
be fairly resolved. If a court fails to assess constitutionality of the legal regulation LQ IXO¿OOLQJ LQWHUQDWLRQDO REOLJDWLRQV DQG
whether the charges brought against the imposing a limitation on the size of maternity obligations related to full membership in
accused person are reasonable and the case allowances. By its ruling of 15 March 2016, the EU and NATO, including participation
is dismissed for the reason that the statutory the Constitutional Court recognised the in international cooperation and democracy
limitation period for criminal liability has unconstitutionality of the impugned legal promotion projects. This geopolitical
expired, the impression is created that the regulation, insofar as it provided that a orientation pursued by the Republic of
accused is not convicted only because the maternity allowance could not be higher than Lithuania constitutes a constitutional
prescribed limitation period has expired. the maximum amount provided for in the Law value and implies the relevant activity of
Thus, the preconditions are created for the on Sickness and Maternity Social Insurance. the State of Lithuania, its institutions, and
continued doubts as to whether the accused Under the impugned legal regulation, in cases individuals employed therein, which is
was reasonably charged with having where the average remuneration received by aimed at contributing to the partnership of
committed a crime, as well as the continued a working woman exceeded the maximum other states within the EU or NATO, or at
doubts as to the good repute of the accused. compensatory earnings, she was granted a contributing to the integration of these states
maternity allowance calculated according to into the said international organisations by
In the second case at issue, the Constitutional these compensatory earnings, and the amount promoting the dissemination of universal
Court considered the constitutionality of the of the payable allowance was not connected and democratic values and the principles
legal regulation, consolidated in the Code of to the remuneration received by the woman of EU law, including the dissemination of
Criminal Procedure, under which a member within the established period before the these values and principles in the spheres
RIDPXQLFLSDOFRXQFLOKROGLQJWKHRI¿FHRI OHDYH DQG FRXOG EH VLJQL¿FDQWO\ ORZHU WKDQ related to the improvement of the systems of
mayor or deputy mayor may be temporarily the average of the received remuneration. justice and the activity of courts. Thus, the
UHPRYHGIURPRI¿FHLIKHVKHLVVXVSHFWHGRI According to the Constitutional Court, the participation of the State of Lithuania and
the commission of a criminal act or is charged impugned legal regulation, whereby the its institutions, including courts, in the said
with committing a crime. The Constitutional amount of a maternity allowance was limited, activity may be implemented, among other
Court, in its ruling of 17 February 2016, held did not appropriately implement the guarantee things, through the engagement of judges
that, under the Constitution, the status of a of paid leave before and after childbirth, as in support projects funded by international
PXQLFLSDOFRXQFLOPHPEHUKROGLQJWKHRI¿FH consolidated in Paragraph 2 of Article 39 of organisations or foreign states, or in projects
of mayor or deputy mayor does not imply the Constitution, under which the amount ¿QDQFHGXQGHUWKH/LWKXDQLDQ'HYHORSPHQW
any requirement that, with regard to this RI EHQH¿WV SDLG WR ZRUNLQJ PRWKHUV GXULQJ Cooperation and Democracy Promotion
municipal council member, the relevant law the guaranteed period of their leave before Programme, in cases where such projects
must establish such grounds and procedure and after childbirth must correspond to the are related to improving the system of
for applying procedural coercive measures average remuneration received by them justice and the activity of courts. However,
(including temporary removal from within the reasonable period of time before the said participation may not interfere with
RI¿FH

 WKDW ZRXOG EH GLIIHUHQW IURP WKRVH this leave. the performance of the main constitutional
established with regard to other persons. judicial function of administering justice

2016 Global Review of Constitutional Law | 123

under the Constitution. the priests of certain religious communities the legislature must take account of the and associations. continuously failed. the Constitutional Court will face of the Statute of the Seimas insofar as.e. other challenges. particular Court but also by the intensive international mention should be made of the ruling of 5 cooperation and public promotion of the October 2016. The legislature national who has entered into a same-sex LV DOVR REOLJHG WR SURYLGH IRU WKH ¿QDQFLDO marriage or same-sex registered partnership consequences for continuous failure (without in another state with a citizen of the Republic DQLPSRUWDQWMXVWL¿DEOHUHDVRQ. For instance. remuneration for the probably being the 4th Congress of the given month could not be reduced by more :RUOG&RQIHUHQFHRQ&RQVWLWXWLRQDO-XVWLFH than one-third for a member of the Seimas which will focus on “The Rule of Law who. the Constitutional constitutional justice cases. It will also have to consider constitutional duty of the members of the ZKHWKHU LQ FDVHV RI IDPLO\ UHXQL¿FDWLRQ Seimas to attend the sittings of the Seimas. to be important and complex. the payment of remuneration exempting from mandatory military service for the work of the members of the Seimas. during that month. when regulating one of the guarantees of the the Constitutional Court will investigate parliamentary activity of the members of the the constitutionality of the legal provisions Seimas. in which the Constitutional activity of the Constitutional Court. In Court declared unconstitutional a provision 2017. the biggest one most under this provision. and Constitutional Justice in the Modern ZLWKRXW DQ LPSRUWDQW MXVWL¿DEOH UHDVRQ WR :RUOG´$WWKHVDPHWLPHWKH&RQVWLWXWLRQDO attend the sittings of the Seimas or the sittings Court will carry out its jurisprudential of the committees or other structural units of activity following from the adjudication of the Seimas. i. The preceding year was marked not only by the variety and complexity of constitutional Other matters brought before the Constitutional Among other cases of 2016. which promise Court noted that.in a proper and effective manner and must CONCLUSION be compatible with the impartiality and independence of judges. In its ruling. as the Constitution allows refusing to issue well as the sittings of the committees or other a temporary residence permit to a foreign structural units of the Seimas.

or the sittings of the committees or other structural units of the Seimas. i. without an LPSRUWDQW MXVWL¿DEOH UHDVRQ IDLOV WR DWWHQG the sittings of the Seimas. and other legal acts of the Seimas. the duty for the implementation of which the member of the Seimas is remunerated. Thus.e. may not be regarded as the proper implementation by the member of the Seimas of his or her constitutional duty to represent the Nation.WRIXO¿OOWKLV of Lithuania who resides in Lithuania (taking constitutional duty. or the sittings of the committees or other structural units of the Seimas. should be considered a FRQVWLWXWLRQDOO\XQMXVWL¿HGSULYLOHJH 124 | I•CONnect-Clough Center . the payment of remuneration from the funds of the state budget to a member of the Seimas who continuously. meeting with voters. performing other parliamentary activities) of a member of the Seimas ZLWKRXW DQ LPSRUWDQW MXVWL¿DEOH UHDVRQ including failure to attend the sittings of the Seimas. The episodic or even into account the circumstance that such FRQWLQXLQJ IXO¿OOPHQW RI RQO\ SDUW RI WKH marriages or partnerships are not allowed constitutional powers (such as drafting laws under national law).

6 May 2013.com/ news/world-asia-22422172 (accessed 24 April 2017). appeared he was pursuing criminal charges tem is best described as two-party. failure to secure any meaningful account- bah and Sarawak joined the Federation under ability of the Prime Minister (PM) in respect an amended version of the 1957 Constitu. which until billion missing from 1MDB. Controversy I: Kleptocracy M A L AY S I A al and enshrines constitutional monarchy in The year 2016 was overshadowed by a D EURDGO\ :HVWPLQVWHUVW\OH JRYHUQPHQWDO non-constitutional event.1 In 1963 the Borneo states of Sa. 2 ‘Malaysia Vote: PM Najib Razak’s Barisan Nasional Wins. of the financial scandal surrounding the de- tion. Dian AH Shah.2 A measure of Islamicisation of the legal system These events cast a pall over a set of institu- has proceeded since the dawn of the 21st cen. Malaysia DEVELOPMENTS IN MALAYSIAN CONSTITUTIONAL LAW Jaclyn LC Neo. The Straits Times. The BN from investigations in the United States. 5HVHDUFK 3RVWGRFWRUDO)HOORZDW1DWLRQDO8QLYHUVLW\RI6LQJDSRUH:LOVRQ797D\ Associate Professor at National University of Singapore. Professor and the Director of the Centre for Asian Legal Studies at NUS INTRODUCTION DEVELOPMENTS AND CONTROVERSIES IN 2016 Readers will be aware that Malaysia has since 1957 had a Constitution that is feder. 2016 Global Review of Constitutional Law | 125 . http://www. ment Berhad (1MDB).3 By the begin- 2008 commanded at least the two-thirds ma. and the Attorney-General to manipulate the Constitution according (AG) had been summarily sacked when it to its desires. every form of political and le- jority in Parliament required for most con. ning of 2016. Assistant Professor at National University of Singapore. retains power having won a majority of seats Singapore.5 than the opposition in the 2013 elections. Article 3 of the Constitution provides stitution that signally failed to perform their that Islam is the religion of the Federation. The Constitution of Malaysia: A Contextual Analysis (Hart Pub- lishing.bbc. 1 For an introduction. http://www. formerly Al. namely the abject structure. 3 The Economist.’ BBC. his personal bank account nor of the RM42 liance) multi-ethnic coalition. tional arrangements established under a con- tury. ‘Malaysians Underestimate the Damage Caused by the 1MDB Scandal. and Switzerland implicating the in Parliament despite securing fewer votes Prime Minister and people close to him. Some political background is needed to velopment corporation 1 Malaysia Develop- understand the balance of this brief survey. gal accountability in respect of this scandal stitutional amendments. Since 2008 the political sys. 2012). The PM has never given convincing or consistent explanations Since 1957 Malaysia has been governed for the US$681 million that passed through by the Barisan Nasional (BN. with two against the PM.com/news/leaders/21710820-opposition-has-do-more-win-over-rural-ma- lays-malaysians-underestimate-damage (accessed 24 April 2017).’ http:// www. above n.4 The year 2016 continued coalitions (BN and Pakatan Rakyat) each this sorry saga in the same vein despite the commanding around half of the votes in the incremental accretion of evidence resulting general elections of 2008 and 2013. and was thus able had been blocked.3. Andrew Harding.economist. 5 The Economist. 27 January 2016.straits (accessed 24 April 2017). 4 ‘Malaysia’s Attorney-General Clears Najib of Corruption over Cash Gift from Saudi Royals’. see AJ Harding.

‘Critic of Najib Razak. The call for support One development arising from this consti.’ The Star. They issued a tion for theft offenses and stoning for adul. judges within the syariah branch deserved an statement asking for accountability and an tery or same-sex sexual conduct). This broad construction was later ernment suspended its order of business to In the wake of this decision. and/or six strokes of the cane. Poh Cho Ching v Public Prosecutor [1982] 1 MLJ 86. equal remuneration) explanation from the Prime Minister. sition party.org.10 ber of Parliament who supported the Bill multiracial and multireligious society. The Rulers sit in a Conference of Syariah Criminal Code. as the PM moved to suppress criti.8 mandated by Islamic law other than the death been a mixed success.’ https://www.g. with the Bar Council challenging the amend the 1965 Act.malaysianbar. the sentencing jurisdiction of to ignore with apparent impunity despite the (Criminal Jurisdiction) Act. On 6 April 2017. it was emphasized that Mus- scandal. The amendment lims had a duty to unite to safeguard the dig- Rulers that has some limited constitutional introduced a range of Islamic criminal law nity of Islam as the majority religion (and the powers that include the power to make pro. For proponents sitting.equality and equal protection.task. (AG) declared the Prime Minister innocent To pursue the implementation of Kelantan’s The Bill’s constitutionality continues to be of any wrong doing in the 1MDB issue. therefore. 11 ‘Hudud’ is Islamic criminal law.000. the lowest court in the civil court hierarchy high social and political standing of the Rul. their desire to ‘empower the Syariah Courts. This Syariah Criminal Code.. punishments in the state (including amputa. They have largely refrained certain. focusing instead on 2011-13. pledged to table a private member’s bill tofor personal sins and victimless crimes and eral. 9 Ibid. but this was also laced turned to the traditional Rulers. PAS. lay Sultans. triggered by the Kelantan State Assembly’s with other economic and political rhetoric. religion of the Federation) and that Muslim nouncements on state policy. this initiative the Prime Minister was able limitations set by the 1965 Syariah Courts As it stands. In January 2016 a new Attorney-General (RM) 5000. in any event. 126 | I•CONnect-Clough Center . shari’a) courts. as well as arguing that ment was designed in such way as to allow ruling party (UMNO) has pledged to support the AG had. the event was followed by a lively and instruc.thestar. Even could not be implemented because of the with their counterparts in the civil branch. e. the amendment would 2016. a subject of great debate. The Bill’s fate remains un- in Malaysia have always granted the AG punishments. the implementation of such punishments on dismissal of the previous AG. the Federal Parliament wit.my/legal/general_news/press_release_%7C_the_malaysian_bar_to_appeal_high_court_deci- sion_regarding_judicial_review_of_the_exercise_of_the_attorney_generals_powers.e.com/2016/11/15/world/asia/malay- ZPHYHÄaPYHTSPO[TS&FY$5HQPIJYP[PJPZT (accessed 24 April 2017). 2016 saw a Controversy II: Punitive Powers of Syariah argued in Parliament that the Bill had noth- further reversal of reforms carried out during Courts ing to do with Hudud). and public debates about its consti- an almost completely unfettered discretion from using the term ‘Hudud Bill’11 (a Mem. Although the clearing of the PM. Rosli bin Dahlan v Tan Sri Abdul Gani bin Patail & Ors [2014] MLJU 581. there was some FKDQJHG:KHQWKH%LOOZDVWDEOHGLWVRXJKW pave the way for Abdul Hadi Awang (PAS interest in the question whether the AG’s to raise the limits of existing punishments President) to table the Bill. 15 Nobember 2016.’ Bar Council Press Release. which governs Kelantan. the Islamic oppo.Q0DUFKWKH0DOD\VLDQ%DU¿OHGD 100.’ cism and displays of dissent.html (accessed 24 April 2017).nytimes.9 The courts merely increase the upper limits of Syariah never debated. In particular. 6 October 2016.. Public debates about the was aimed to strike at the religious senti- tutional blockage was that public opinion Bill had been ongoing for almost two years. Throughout October and November judicial review action challenging the AG’s of the Bill. but these equal status (and thus. WZHOYHVWURNHVRIWKHFDQHDQG¿QHVRIXSWR RQPHQW¿QHQRWH[FHHGLQJ5LQJJLW0DOD\VLD RM 10. 10 Johnson Tan Han Seng v PP [1977] 2 MLJ 66 (FC). http://www. 8 ‘The Malaysian Bar to Appeal to High Court Decision Regarding Judicial Review of the Exercise of the Attorney-General’s Powers. ments of Muslims.6 nessed the tabling of a controversial Bill to and prevent personal sins and moral degra- increase the punitive powers of the syariah dation among Muslims.000.my/news/nation/2015/10/06/rulers-want-imdb-issue-settled/ (ac- cessed 24 April 2016). its progress through Parliament has a declaration of this kind. This feder.com. looking for a resolution of the unanimous approval to amend the state’s For instance.tutionality and propriety continue to divide a whether to prosecute or discontinue a case.WR  \HDUV¶ MDLO D PD[LPXP ¿QH RI 50 a postponement until the next Parliament YLHZHG. and the latter’s :KHQWKH%LOOZDV¿UVWPRRWHGWKHDPHQG. disputing the Muslims raise questions about the rights to appointment of the new AG. (i. and/or 100 lashes. but he asked for discretion to refuse to prosecute could be re. possibility of disproportionate punishments tive debate as to the role of the Attorney-Gen. http://www. 6 See. In addition. the nine Ma. 7 ‘Rulers Want 1MDB Issue Settled. no power to make Syariah Courts to impose any punishment the Bill. the Bill was tabled twice but it was decision to exonerate the PM. al-level law only authorizes Syariah Courts LV FDSSHG DW D PD[LPXP RI ¿YH \HDUV¶ MDLO ers. and relatedly.7 to impose a maximum of three years impris. In May 2016 the gov- penalty. Gets Prison for 1MDB Disclosure. Malaysian Leader.

and the Applicant – by virtue of being a prac. the Court determined the father’s application before the Syariah batan Agama Islam Sarawak and Others. theless granted that the syariah order was a ined the longstanding questions surround. it never- the High Court of Sabah and Sarawak exam.V. The Court husband (which preceded the Civil Court’s Judge issued a letter informing the Applicant considered two principal questions: (1) order in favor of the mother) was valid could that the court had no jurisdiction to issue the whether a Civil or Syariah Court had juris. proval. to change his name and remove the word the present case from previous decisions ‘Islam’ from his national identity card. The Syariah Court did not Viran Nagappan v Deepa Subramaniam & riah Court’s custody order in favor of the formally hear his case. but the Chief Syariah Other Appeals [2016] 3 CLJ 505. court orders. in one respect. In addition. The Applicant renounced Is.13 this decision is a wel- The outcome of this decision is thus a cu- request was rejected by the National Regis. and he sought Although the Court took pains to distinguish her son. he was These cases continued to be at the centre of does not automatically dissolve a non-Mus- told that the department could not assist him debates on Malaysian constitutional law in lim marriage and preclude the Civil Courts’ and was asked to make an application before 2016. who insisted on a HQIRUFHPHQW RI¿FHUV IDFHG ZLWK FRQÀLFWLQJ tutional questions. mother’s application for a recovery order of lam to embrace Christianity.MAJOR CASES religious freedom to be the ‘most inalienable Federal Court exercised more restraint.VODP:KHQKHDSSURDFKHGWKH6DUDZDN.15 The Court’s approach could D FRXUW RUGHU FRQ¿UPLQJ KLV µUHOHDVH¶ IURP be seen.’ and accord.be seen as a step backward. as a step forward. His concerning apostasy. come approach to deciding important consti. cluded the High Court from entertaining the apostasy cases. Child Conversions and Custody Battles given its decision that conversion to Islam lamic Department (Limbang branch). over persons professing the religion of Islam.12 that the Syariah Court only has jurisdiction Court was an ‘abuse of process’). particularly in light of the decision in MXULVGLFWLRQ<HWLWVDI¿UPDWLRQWKDWWKH6\D- the Syariah Court. Al- and sacred of all human rights. as it appears to FHUWL¿FDWHRIDSRVWDV\+HWKHQSURFHHGHGWR GLFWLRQ²LQWKHFRQWH[WRI$UWLFOH $. which is rightly under the letter from the State Islamic Department and purview of the Civil Courts. though the court recognized that the Syariah Apostasy and the Jurisdiction of the Syariah ingly the right to choose one’s own religion Court had no jurisdiction to grant custody Courts should not be subject to Syariah Court ap. order in favor of the father (it also added that In Azmi Mohamad Azam v Director of Ja. posing practical issues for law tration Department (NRD). valid order until it was set aside. .14 The exis- ing the formalities of renunciation of Islam ticing Christian – could no longer be said to WHQFHRIFRQÀLFWLQJFXVWRG\RUGHUVDOVRSUH- and the jurisdiction of the syariah courts in ‘profess’ Islam.rious one.

15 Ibid. 13 Lina Joy v Majlis Agama Islam Wilayah Persekutuan & Another [2007] 4 MLJ 585). existing (and enforceable) custody order by Syariah Practitioners the Syariah Court. Deepa Subramaniam & Other Appeals [2016] 3 CLJ 505. However. in the Federal Court was whether a non-Mus- of the Syariah Court.husband’s disregard of the Civil Court order. practitioner. and although the Syariah Court Ordi.the Civil Courts had no jurisdiction over the gious Council (Majlis Agama Islam) of the nance 2001 and the Majlis Agama Islam dissolution of his marriage or over the cus. Raimi bin Abdullah v Siti Hasnah Vangarama binti Abdullah [2014] 4 CLJ 253 14 Viran Nagappan v.Federal Territories had declined to process Sarawak Ordinance 2001 bore no provision tody of the children because he is a Muslim. when it could have ruled held that the conversion of one spouse to Is. On appeal.quiring syariah practitioners to be Muslims that the matter before it should be decided lam does not strip the Civil Courts of juris.. the Court argued that bringing these issues within the jurisdiction EDVLV WKDW DV D &KULVWLDQ VKH GLG QRW IXO¿OO the jurisdiction of the Syariah Courts can be of the Syariah Court. On 8(2) and/or Article 5 and/or Article 10(1)(c) WKHLVVXHRIFRQÀLFWLQJRUGHUVKRZHYHUWKH of the Federal Constitution.is in contravention of Articles 8(1) and/or by the Syariah Court. The Islamic Reli- law. the requirement to be admitted as a syariah implied. The Muslim father in the In Majlis Agama Islam Wilayah Persekutuan The High Court judgment in favor of the Syariah Court and the non-Muslim mother v Victoria Jayaseele Martin [2016] MLJU $SSOLFDQWLVVLJQL¿FDQWIRUWZRUHDVRQV7KH in the Civil Court were both granted custo. The plaintiff sought judicial re- cused heavily on the constitutional right to In a unanimous judgment. the father argued that as a syariah practitioner. the question that arose for determination ¿UVW FRQFHUQV WKH MXULVGLFWLRQDO ERXQGDULHV dy of their two children. partly on the ground that the rule re- religious freedom. Hj. the plaintiff/respondent’s application on the regulating apostasy. a mandamus order to compel the tody orders. at 508. and (2) whether a Civil Court NRD to change his name and remove the could make a recovery order in light of an Non-Muslims Not Allowed to Become word ‘Islam’ from his identity card. 12 [2016] 6 CLJ 562. The son. among WKH &RQVWLWXWLRQ²WR PDNH FRQÀLFWLQJ FXV. however.RI have implicitly legitimized the recalcitrant the Civil Court for relief. seeking. others. the Court in this case fo. the Federal Court view. The Court considered diction in matters of divorce and custody. 507-8. The Court accepted was taken away by the father. 2016 Global Review of Constitutional Law | 127 .40. prompting the lim possessing the requisite academic and the settled principle that apostasy issues mother to obtain a recovery order from the SURIHVVLRQDOTXDOL¿FDWLRQVFRXOGEHDGPLWWHG must be determined according to Islamic High Court.

is a non-Muslim. as she could (c) to bring into hatred or contempt or to the Constitution only provides that ‘any law still practice as an advocate before the Civil excite disaffection against the adminis. status. it was held not unconstitu. any Government to attempt to procure comed. or amongst the inhabitants of Malaysia sought by the plaintiff (see para 45). to say or publish matters with a seditious ten. of the inconsistency. The ap- In view of these. of the population of Malaysia.relied on in reaching its conclusion is Article the Majlis to stipulate that only Muslims can tility between different races or classes 162(6). and is now an entrenched part of Malaysian con. or of any State. oth. (d) to raise discontent or disaffection is questionable whether any provision exists as that provision refers only to the right to amongst the subjects of the Yang di-Per. tration of justice in Malaysia or in any tent with this Constitution shall. The Federal Court observed that as: of expression and therefore violates the a syariah court. it freedom of association) was also rejected. 153 or 181 VWLWXWLRQ¶µ0RGL¿FDWLRQ¶LVGH¿QHGLQ$UWLFOH vision in the Sedition Act is unconstitutional of the Federal Constitution. It is submitted that the Court test to determine constitutionality of laws :KLOH WKH )HGHUDO &RXUW XSKHOG WKH RI. ODZ ZKLFK KDV QRW EHHQ PRGL¿HG RQ RU DI- Constitutionality of the Sedition Act position.passed after Merdeka Day which is inconsis- Courts. the alteration. is no longer a strict liability offense. rogative established or protected by PRGL¿FDWLRQVDVPD\EHQHFHVVDU\WREULQJLW ajaan Malaysia16 LV VLJQL¿FDQW ERWK IRU WKH the provisions of Part III of the Federal into accord with the provisions of this Con- Court of Appeal’s declaration that a key pro. like any other court. of any acted in 1948 before the Federal Constitution livelihood contrary to Article 5(1) (the right matter as by law established. not the right to be part of tuan Agong or of the Ruler of any State to have granted the declaration in the terms any existing association of one’s choosing. Article 4(1) of to life and personal liberty). within one of the permissible objectives for Appeal). adaptation. Constitution or Article 152. be void. sovereignty or pre.In allowing the Majlis’s appeal and dis.ter Merdeka Day … may apply it with such The case of 0DW6KXKDLPLELQ6KD¿HLY. faith is important. The upshot of this is that its practitioners when necessary.’ Technically. The provision was be able to enforce its laws and rules against (a) to bring into hatred or contempt or to declared invalid. to the extent lenge based on Article 10(1)(c) (the right to State. right. and for its application of the proportionality and repeal. as the Federal Court (the Mat Shuhaimi that this did not preclude it XQGHU$UWLFOH  .in the Constitution for the Court of Appeal form associations. and in this excite disaffection against any Ruler or sedition remains an offense in Malaysia but case. privilege. 162(7) as including amendment. it could not legally do so as the plaintiff any Government. must equal protection clause. declared section 3(3) to be in- the Court of Appeal. guaranteed WLRQEH\RQGMXGLFLDOFRQVLGHUDWLRQ:KLOHWKH missing the application for judicial review to citizens under Article 10 of the Constitu-Court appears to countenance this as falling (which had succeeded before the Court of tion. inhabitants of any territory governed by :KLOHWKLVGHFLVLRQLVXQGRXEWHGO\WREHZHO- tiff’s non-Muslim faith would be an imped.making intent an irrelevant element of the VLEOH FODVVL¿FDWLRQ¶ DQG WKDW ZDV ZKDW KDGGHQF\6HGLWLRXVWHQGHQF\LVEURDGO\GH¿QHG offense disproportionately restricts freedom occurred. by the Government. or bunal applying the provision of any existing (f) to question any matter. The chal. of 1957 came into existence. from the syariah (b) to excite the subjects of any Ruler of the perspective. and was indeed doing so.HU. which provides that ‘any court or tri- be syariah practitioners.could have made reference to Article 162(6) vis-à-vis fundamental liberties. it nonetheless stated that the provision tion on the basis of ‘reasonable or permis. and the plain. the Court of Appeal opined in declared the offending provision repealed stitutional law and. in the case of freedom of speech. According to fence-creating provision (section 4) of the and 162(7). Further. the Federal Court held that Article restricting freedom of expression in Article 8 (the equality clause) permits discrimina.that was raised of the Sedition Act being en- the plaintiff was not being deprived of her erwise than by lawful means. it is suggested that the Court of Ap- iment to her duty to assist the Syariah Court in the territory of the Ruler or governed peal had not adequately dealt with the issue in upholding syariah law (para 51). propriate provision that the Court could have tional for the relevant religious body such as (e) to promote feelings of ill-will and hos. the proportionality test Sedition Act in its earlier decision in Azmi consistent with Articles 10(1) and 8(1). Moreover. Malaysia’s Sedition Act makes it an offense 10.bin Sharom.

the con- encapsulated within the equality provision irrelevant the intention of the person charged cern is that a more executive-minded panel (Article 8) in the Federal Constitution.17 the test is section 3(3) of the Act. This. 128 | I•CONnect-Clough Center . ity to deprecate the important conclusions HUW\ULJKWWKDWLVQRWDEVROXWHEXWTXDOL¿HGDV puts the issue of the accused person’s inten. Section 3(3) deems preted or elaborated in these terms.the offense. 17 [2015] 6 MLJ 751.:KLOH WKH GHFODUDWLRQ highest court in Malaysia) opined in Public from determining the constitutionality of actually granted can no doubt still be inter- Prosecutor v Azmi bin Sharom. The at the time he spoke or committed any act of the Federal Court (or even a subsequent proportionality test is particularly relevant producing the seditious material to establish Court of Appeal) may seize on the ambigu- where the law implicates a fundamental lib.reached in 0DW6KXKDLPLELQ6KD¿HL 16 [2017] 1 MLJ 436. as the Court highlighted.

release after a period of de- tention). the for the arrest and opined that they appeared appellant alleged that she was continually to be for ‘a collateral or unrelated ulterior KHOGLQVROLWDU\FRQ¿QHPHQWOLYHGXQGHULQ. OLYHWKUHDWWKDWMXVWL¿HGWKHXVHRIWKHSRZHUV ically charged. Applying this test. ends [prescribed under the statute]’.Preventive Detention claim for damages for wrongful arrest and The case of YB Teresa Kok Suh Sim v Men. … had reasonable and substantive grounds der Malaysia’s internal security laws (which to support their belief that the arrest of the allow for preventive detention). There Parliament. the allegations were made sev- arrest gives rise to compensation. fully and that even though recourse to the ¿HGWKDWVKHZDVQRWDWKUHDWWRSXEOLFRUGHU courts for release may have been overtaken and security. a further disciplining tool exists in :KLOH DI¿UPLQJ WKH )HGHUDO &RXUW¶V HDUOLHU the form of civil compensation. and therefore there was no immediate or imminent act or The facts giving rise to the case were polit. motive. was arrested by the police. WHULDO WR HVWDEOLVK WKDW WKH DUUHVWLQJ RI¿FHU tive review test for arrests and detentions un. the Court of teri Dalam Negeri. the Court held for humane conditions. the Court quently repealed) Internal Security Act 1960 of Appeal called into question the motives (ISA). and the Deputy Inspector General of Police issued a This decision is to be welcome as it ensures formal press statement that her release was that executive action must be exercised law- unconditional because ‘the police was satis. YB Dato’ Seri Appeal adjudged that the police had ‘failed Syed Hamid bin Syed Jaafar Abar & Ors18 is WRVKRZWKHFRXUWFUHGLEOHDQGVXI¿FLHQWPD- VLJQL¿FDQWQRWMXVWIRUUHDI¿UPLQJWKHREMHF.g. eral months before the arrest. damages against the police. was deprived of all her the appellant and granted not only general constitutional rights. but for hold. She was later released. The appellant. During her one-week detention. preliminary investigations into the allega- ing arrested and detained under the (subse.’ by events (e. ly members. Malaysia. She was also no attempt by the police to conduct was subsequently informed that she was be. Indeed. tions before the arrest. and was not allowed damages but also aggravated and exemplary reasonable access to her lawyer or her fami. decision in Mohammad Ezam Mohd Nor & Ors v Inspector General of Police19 to apply CONCLUSION DQREMHFWLYHWHVWVSHFL¿FDOO\WRVHFWLRQ . appellant was urgently required to meet the ing that this standard of review is also ap.’22 Consequently. a Member of to arrest and detain without a warrant.21 As the plicable in determining whether an unlawful Court noted. detention.

22 Ibid. ISA.It is impossible to claim that 2016 was an en- tions without warrant. The Court of Appeal nonetheless held that the same objective test applied in determining a civil 18 [2016] 6 MLJ 352. empowering police arrests and deten. even if they do so in an inconsis- Mohammad Ezam arose from an applica. 19 [2001] 1 MLJ 321 (Federal Court).judiciary whose decisions may on occasion ing any subjective formulation in the pow. the Court of Appeal couraging year for the Constitution and con- DOVR UHDI¿UPHG WKH JHQHUDO SURSRVLWLRQ WKDW stitutional law.20 The earlier case of al values. even if political constitu- in any challenge to an administrative action tionalism and democratic institutions appear or act. 20 Ibid. tion for a writ of habeas corpus. Yet. 21 Ibid. [69]. [34]. some whether there exist reasonable grounds for cases in the courts show that there is still a the act or decision. [67].support fundamental rights and constitution- er-conferring statute. 2016 Global Review of Constitutional Law | 129 . the courts are entitled to ‘objective. This is notwithstand.under threat (as they are in many places ly scrutinize’ the exercise of power to see where they were thought quite secure).tent and sometimes problematical manner.

one way or another stract judicial review) were adopted. the ber of actors (i. Berlin MEXICO INTRODUCTION THE CONSTITUTION AND THE COURT Taking a look at the developments in Mex- ican Constitutional Law in 2016 illustrates The design of the Mexican constitutional well the transformation the justice system justice system has become increasingly ro- has gone through in the last decade. member of El Colegio Nacional. Carlos Herrera Martin. and Mariana Velasco Rivera. 1994 when. review granting standing to a limited num- rious drug-related violence (Section III). and. long-standing proce. J. 9LVLWLQJ5HVHDUFKHUDWWKH&HQWHUIRU*OREDO&RQVWLWXWLRQDOLVP±:=%%HUOLQ<DOH)R[ International Fellow at Freie Universität. In only stantive charter of rights that included the a decade.). the amparo suit was virtu- shortly after. national security. All of these changes place a bigger single-party hegemonic regime. Mejía *DU]D6HFUHWDU\RIWKHRI¿FHRI-XVWLFH-RVp5DPyQ&RVVtR6XSUHPH&RXUWRI-XVWLFH Constitutional Law Professor at Centro de Investigación y Docencia Económicas (CIDE). whereas ments to adjudicate the increasing number of the amparo suit is a semi-concentrated and amparo suits in its docket (Sections II and concrete form of review granting standing IV). the constitution of 1917 was born with a sub- complex social reality of the country. the attorney general. Although the modernization and adoption of concentrated forms of judicial review have put the Court in a more prominent position 130 | I•CONnect-Clough Center . abstract review are concentrated forms of ing with government interests to tackle se.S. Mexico DEVELOPMENTS IN MEXICAN CONSTITUTIONAL LAW José Ramón Cossío Díaz. the Juicio de Amparo European influences: the amparo suit. As we will see in the acciones de inconstitucionalidad (ab- the following sections. human rights established in ally the only mechanism to bring constitu- international treaties from which Mexico is tional questions to the Supreme Court until part were incorporated as part of the consti. inherited the worldwide known individual satory model in 2008. in the midst of the fall of the tution. Camilo Saavedra Herrera. political parties. For (amparo suit). both bust throughout constitutional history. The procedurally and substantively. Research Fellow at the Center for Constitutional Studies of the Supreme Court. minorities. the executive and legisla- Supreme Court is extensively taking into tive powers. Both these transformations are manifesting. almost 80 years. Teaching Fellow at University College London. the criminal justice system was social justice demands of the revolution and transformed of an inquisitorial to an accu. and. Raúl M. constitutional complaints mechanism cre- dural rules of the individual constitutional ated in the 9th century with American and complaint mechanism. Constitutional Law Professor at Instituto Tecnológico Autónomo de México (ITAM). legislative account international human rights instru. candidate at Yale Law School.D. Mexican Supreme Court Justice. were modified in 2011.e. The the competence allocation mechanism and new criminal justice principles are collid. the dormant burden on the judiciary and particularly on controversias constitucionales (competence the Mexican Supreme Court (hereinafter the allocation mechanism) were modernized and Supreme Court or Court). etc. and the Court is often having to solve to anyone who considers that their constitu- cases closely related to state surveillance and tionally protected rights have been violated.

available at < http://fueromilitar. all with the DEVELOPMENTS AND on the other hand. open. interdependence. to ply with international human rights standards. mostly written model with an remains valid for the rest of the population. For a detailed analysis of the decision-making process of this opinion see: Ramón Cossío. does not imply an assessment on their impact institutions in charge of most public security preme Court.2 In spite of this hindrance. which drug-related matters are prosecuted) The surge of violence related to drug traffick- sarily settled when the Supreme Court issues where minimum standards of due process in ing and organized crime has been the main a decision.scjn. Unfortunately. Estudio y Documentos (Porrúa 2013). it tional human rights law. the amparo cases in section IV below illustrates well re. Today it ment interests. in in amparo is a difficult task for two reasons: our opinion. On the one in federal courts. the government wants to provide the ro suits only reach the Court in the form of a major setback of the amendment in 2014. the adoption of constitutional reforms aimed judge panel sessions (First Chamber and lished the pro personae interpretative princi. to become binding on lower ception for the investigation and prosecution CONTROVERSIES IN 2016 FRXUWV²ZKLFK IRU SUDFWLFDO PDWWHUV PHDQV of organized crime (the type of crimes under that constitutional questions are not neces. the effects of rulings are use to solve rights related cases. the two ple and the obligation of all state authorities. vided by the constitution. for constitutional interpretation. In this sense. sessing the impact of Supreme Court rulings human rights. 14 July 2011. the Supreme Court ganized crime. namely through (Pleno) three times a week and in two five. it has to be noted that as. what constitutionally is supposed President (in charge of nominating) and the man rights treaties ratified by the Mexican to be the exception has become the rule.mx/Resoluciones/Varios_912_2010. Roughly speaking. which according to articles 21 and 29 of the constitution should be in charge :LWKLQWKLVV\VWHPRIFRQVWLWXWLRQDOMXVWLFH In 2011 an amendment to article 1 of the of civil authorities and only under a state of the Supreme Court is the highest authority constitution introduced major changes for emergency could the military take control. the reader must bear the phase of investigation do not apply. Raúl Mejía and Laura Rojas. constitutional provision should prevail over alization of true liberal democracy. within the scope of their jurisdiction. indivisibility for public security functions and the con- Through the amparo suit. tial system requires five rulings. military with more power and discretion in appeal when a constitutional question in the in a 10 to 1 decision solving a circuit split order to efficiently tackle the problem of or- ‘strict sense’ remains unanswered or if the (contradicción de tesis). at making the criminal justice system trans- Second Chamber) once a week. the selection of In the 10 years since the war on drugs was 1 :PUJL[OPZYL]PL^TLJOHUPZTWYV]PKLZ[OLWVZZPIPSP[`MVY[OL:\WYLTL*V\Y[[VKLJSHYLSLNHSUVYTZ]VPK^P[ONLULYHSLɈLJ[Z(M[LYÄ]LJVUZLJ\[P]L rulings declaring the same norm unconstitutional and previous warnings to Congress. Its member.1 years ago was virtually non-existent. State as part of the constitution. Normatively speaking. arguably. in our opinion. Promoted as a measure to inter partes as opposed to erga omnes² is already a settled practice to establish the finally have a fair criminal justice system on meaning that despite the declaration of un. 2016 Global Review of Constitutional Law | 131 .as an arbiter of political disputes. CT 293/2011. decided that any restriction established in a that would mean putting into question the re- dent. The any restriction or suspension of rights except also shown efforts aimed at signaling its com- Supreme Court convenes in en banc sessions on the cases and under the conditions pro. democracy seem to be colliding. La Con- strucción De Las Restricciones Constitucionales A Los Derechos Humanos (Porrúa 2015). transforming the justice legality of authority acts (amparo indirec. Expediente Varios 912/2010. ampa. the amparo’s preceden. cade. stitutional reforms that have been adopted to challenge the constitutionality of statutes. The federal government has increas- suit remains the only mechanism available cent developments in constitutional law but ingly relied on the armed forces to act as the for individuals to bring cases before the Su.pdf>. on constitutional rights doctrine. the one hand. and better com- panels adjudicate the vast majority of cas. established in treaties as part of the consti. 3 In fact. public issue Mexico has faced in the last de- in mind that. The amendment incorporated hu. constitutional interpretation on human rights :LWKRXW D IRUPDO GHFODUDWLRQ RI D VWDWH RI ship comprises 11 Justices appointed by the matters. accessed 10 April 2017. emergency. except in a state of emergency (arti. HV²ZKLFKLQDGGLWLRQKDSSHQWREHDPSDUR promote. 2 SCJN. Moreover. SCJN. man rights according to the principles of The normalization of the use of the military universality. individuals are able and progressiveness. in this period the Mexican state has fied majority) to serve for 15-year terms. the amendment has already had The 2008 constitutional reform is a good the effects of rulings and precedential rules. functions. it estab. this amendment incorporated human rights aimed at. in hand. For a thorough analysis of the decision-making of this case and others see: José Ramón Cossío. the Supreme Court has the power to declare the unconstitutionality of the norm at hand. but on the other hand. cle 29 of the constitution). Re- Senate (in charge of confirmation by a quali. Importantly. adversarial and oral model in order to On the other hand. system into one that fits into a true liberal to) and judicial decisions (amparo directo) tution. constitutionality of a norm in a given case. it created a regime of ex- same outcome. Yet. protect and guarantee hu- suits. parent and rights protective.gob. El Caso Ra- dilla. foster transparency and efficiency. the reform substituted a closed. however. Raúl Mejía and Laura Rojas. respect. a noticeable impact on the resources Justices example to illustrate the collision of govern- On the one hand.3 a practice that 15 inquisitorial. interpretative framework to include interna. To this date. this was incorporated by the Supreme Court as the rule in a declarative opinion (Expediente Varios 912/2010) issued in July 2011 shortly after the amendment to article 1. doing Court deems a case important and transcen. prohibiting markably. the Supreme Court has not exercised this power. mitment to rights protection.

national human rights instruments to set the behavior with penalties that exact their nym in Spanish).mx/16-03-2016/1636596 accessed 15 April 2017. certaining the criminal responsibility of (PRI. thus giv- and explicitly asked for the Congress to issue to decide on the constitutionality of the ing full meaning to the principle of nul- a legal framework to regulate their activities. criminal prosecution. placed on the interpretation of the principle 2008 to 23. toward the end of 2016 and cide to give preference to the government definition of the criminalized conduct. et al v. via in criminal law. the beginning of 2017. MAJOR CASES Ambiguity in describing crimes creates . prison for committing the crime of insulting Amparo Directo en Revisión 3236/86 tions. toll on the things that are most precious. of the military in public security functions. conducting searches.sinembargo. The Supreme ico City Court of Appeals which found that 4 :LL4PN\LSÍUNLS)LYILY*Y\a¸.QSDUWLFXODUWZRRXWRIWKHWKUHHELOOV²RQH doubts and the opportunity for abuse of presented in the Chamber of Deputies by In the cases decided by the Supreme Court. the crime of insulting an authori- els and human rights violations. the reform has been of the Inter-American Convention on Human media have documented. These rates increased olations and has not been an effective way aspect of this ruling is the strong emphasis from 8. Principle of Legality in Criminal Law – but instead it opted for an interpretation de- tary is empowered to take over police and Amparo Directo en Revisión 2255/2015 veloped by the ICoHR. and the other On the one hand. intervene communica. Cienfuegos: “El Ejército debe salir de las calles.000 inhabitants in of combating organized crime. In Castillo Petruzzi nas has been particularly focused on the role alization of the formal constitutional com. strategy that has increased human rights vi. conduct. 132 | I•CONnect-Clough Center .4 As this shift has been ernment is under pressure from two fronts: of legality developed by the Inter-American even more noticeable in the states where the the conditional support of the military by Court of Human Rights (ICoHR) in the cases military has conducted public security tasks. Dice Cienfuegos’ (El Universal) http://www. NGOs who argue that it is militarizing law the Court. This means a clear Unsurprisingly. a state where human rights are protected. etc. Peru. This Supreme Court could have used exist- speaking.eluniversal. According to the analysis of led to a substantial increase in violence lev. The rise in enforcement in Mexico and following a ty left unclear what conduct would result in homicide rates is.YH`LJ[VYPHZKL]PVSLUJPH/VTPJPKPVZ¹5L_VZQ\S`H]HPSHISLH[!O[[W!^^^UL_VZJVTT_&W$ 5 See ‘Que Las Tropas Regresen a Los Cuarteles. the party in power when interpretative framework to decide cases. the war on drugs has widely criticized by the civil society and Rights (ACHR). it is feasible to think that soon. publicly Should any of the bills or a mild version of be classified and described in precise and declared a number of times that the military them pass. framework for their activities. lo Petruzzi et al v. three legislative bills interest for wider discretion and powers establishing its elements and the factors were presented to propose the creation of a to investigate and to prosecute organized that distinguish it from behaviors that brand new piece of legislation on internal se. the most dramat. the extensive use of inter. and the re. arguably.mx/articulo/nacion/seguridad/2016/12/8/ que-las-tropas-regresen-los-cuarteles-dice-cienfuegos accessed 15 April 2017. er or later the Supreme Court would have defines the punishable offense. Gral. power. ularly because in 2016 the Secretary of De. 121. Guatemala and Castil- the debate within and outside legislative are. fue un error entrar en esa guerra” (Sin Embargo) http://www. The most prominent ic proof of this change. Peru. under which the mili. Salvador Cienfuegos. particularly when it comes to as- the ruling Institutional Revolutionary Party two relevant trends are clearly identifiable.The Court considers that crimes must fense. the ICoHR interpreted Article said institution should play in public security mitments it has acquired aimed at building 9 saying: matters.5 new piece of legislation. an increasing number such as life and liberty. The gov. individuals and punishing their criminal by the National Action Party (PAN. stitutionalize the role and broaden the power of rulings discussing the limits to surveil- of the military in law enforcement. crime or to the protection of human rights. Those that defend the reform argue that it Court sitting en banc struck down the provi- neither having the military on the streets nor is just providing a legal framework to what sion on the basis that it went against the prin- the institutional mechanisms to make criminal has been happening on the ground for such ciple of legal certainty as defined in Article investigation more efficient have delivered the a long time and establishing clear limits to 14 of the Mexican Constitution and Article 9 expected results. This became a pressing issue partic. the bills provide a possibility to ing interpretations of the principle of legality formally declare the existence of threats to Use of International Instruments as developed by the Mexican Supreme Court the interior security. are either not punishable offences or are curity aimed at regulating the participation punishable but not with imprisonment. As both academia and mass the military. Roughly lance powers. and on the other hand.launched by the Federal Government in 2006. LQYHVWLJDWLRQ IXQFWLRQV²QDPHO\ GHWDLQLQJ An individual challenged the ruling sentenc- individuals. the issuing of a statute providing a legal of Fermin Ramirez v. It remains to be lum crimen nulla poena sine lege prae- seen whether the Supreme Court would de. unambiguous language that narrowly no longer wants to perform police functions.com. its acronym in Spanish). its acro. ing him to spend 10 months and 15 days in Right to Private Life and Reparations – ing interrogations. However.1 homicides per 100.5 in 2011. WKHZDURQGUXJVZDVODXQFKHG²VHHNWRLQ. an authority provided in Article 287 of the An individual challenged a ruling by a Mex- Criminal Code of Mexico City.

The Court ruled for those individuals subject to defamatory policies that affect persons with disabilities. First that the legislation did not comply with the principle of progressiveness and could not because they did not require monetary com. state government and the university which ber ruled that Articles 39. the use of heteronormative language to de- Rights Commission challenged the consti. the Court made extensive references to internation- If the Court finds that there has been a Gender Equality – Amparo en Revisión al human rights instruments that define the violation of a right or freedom protect. Honor gation was regulated so authorities are aware did not renew its funding commitment to the and Self-Image were unconstitutional. the Convention on the In this case a woman working for the state The Supreme Court interpreted Article 63. plaintiff challenged several provisions of the required monetary compensation not subject fore. Article 24 and Article 1. The Court ruled that these Supreme Court making substantive interpre. The Supreme Court upheld most of Right to Education – Amparo en Revisión previous rulings made by the Supreme Court the articles. if ap. sification against same-sex couples. tations of international instruments that have authority should prove both the lack of funds sation regime found in Article 63. the given to the International Convention on the preme Court ruled that a Public Universi. any rollback should could be paid. and efforts for the realization of the right at ACHR. fact were discriminatory and therefore un- edied and that fair compensation be paid constitutional because they only gave the Right to Equality (LGBTI Rights) – Amparo to the injured party. A majority and an agreement was signed between the compensation. but they allowed this measure to be implemented for Mexico City Law of Civil Responsibility to pointed out that it would be better if this obli. adopting a gendered perspective. two years. the state government Protect the Rights to a Private Life. 11 and 13 developed by the Committee measure or situation that constituted the Supreme Court ruled that said provisions in on Economic. This is another example of the tablished or recognized. Employees Law based on which the registra- tified particularly because it assigned roles tion denial was motivated on for discrimina- Rights of Persons with Disabilities – Acción based on gender stereotypes. the set of cases included in this section.3 of said Convention imposed be a violation of the right to education of in cases such as Espinoza Gonzáles v. Based on said pensation on all cases and second because Convention and therefore the law should be principle. right to childcare to women workers. This of the requirements they need to comply with university. To justify its interpretation. hand.1 of the an effect on the understanding of the require. The Court ruled said provisions There were 3 minority votes that considered tion was not absolute. once a socioeconomic right is es- they impose a limitation to the amount that struck down. thus the latter started charging legal instrument provided a civil remedy before passing legislation or implementing registration fees once again.an individual was guilty of defamation but fore deciding on governmental policy or leg. The Su. the Social Services and Security for Government to limitations. Ac. Court found that this distinction was unjus. Just as in of this case is the substantive interpretation In this case. Colombia. Accordingly.ty from the State of Michoacan could not ings from the ICoHR and on its interpreta- preme Court by a majority of 10 to 1 ruled charge registration fees because this would tion of the ACHR. the remedy to a violation of convention rights judge with a gendered perspective. it was subject to the were unconstitutional for two reasons. breach of such right or freedom be rem. the Court shall In this case a married man who was denied International Covenant on Economic. There. the Social Insurance Law for discrimination education developed in General Comments propriate. However. that Article 4. the First Cham. It shall also rule. consultation requirement of Article 4. of 7 Justices found that in this case the re. The Second Chamber of the no. Perú a substantive requirement to give meaningful the plaintiffs. The Constitution of the State and Duque v.3 of the be rolled back arbitrarily.tion to the child. participation to persons with disabilities be. that even though the right to access educa- statements.1 Elimination of all Forms of Discrimination was denied the right to register her wife for directly and ruled that providing an effective $JDLQVW :RPHQ LPSRVHG DQ REOLJDWLRQ WR social security benefits. EH VXEMHFW WR VWULFW VFUXWLQ\²PHDQLQJ WKH provisions were contrary to the compen. Social rule that the injured party be ensured the day care service for his child challenged the and Cultural Rights and the interpretation of enjoyment of his right or freedom that constitutionality of Articles 201 and 205 of the progressiveness principle in relation to was violated. which provides that ments of the legislative process. the First Chamber of the Su. en Revisión 710/2016 cording to the Court.of Michoacán in its Article 138 had recently 2016 Global Review of Constitutional Law | 133 . the National Human childcare service but also in an unduly affec. 59/2016 right to education such as Article 13 of the ed by this Convention. This is another example of fine the beneficiaries from social security tutionality of several articles in the Law for the Court adopting a substantive obligation resulted in an unconstitutional suspect clas- WKH$WWHQWLRQDQG3URWHFWLRQRI3HUVRQV:LWK from an international instrument. The Second de Inconstitucionalidad 33/2015 only in the discrimination of men to access Chamber of the Supreme Court found that In abstract review. but the most interesting feature 750/2015 on the rights of same-sex couples. that the consequences of the based on gender. 40 and 41 of the quirement had been complied with. established the right to free higher education failed to condemn him to provide monetary islation that affects them directly. This rul- WKH &RQGLWLRQ DQG :LWKLQ WKH 6SHFWUXP RI ing was uncontroversial and consistent with Autism. Social and Cultural Rights. Court once again relied extensively on rul- Rights of Persons with Disabilities. resulting not tion based on sexual preference. In this case.

in cases in which the au. the tailored for the legal advisor of the President is not a minor feature for the development victim had not authorized to reveal private to challenge resolutions of the INAI (an of constitutional law. In all other granted. Put in a investigations. leaving the These articles imposed two requirements on issue to be decided on a case-by-case basis. process. The individual had in amparo) it is necessary to make more de- imminent danger for the victim. on the other hand. a judicial au. t