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I·CONnect

Blog of the International Journal of Constitutional Law and ConstitutionMaking.org

What’s New in Comparative Public Law

Patrick Yingling, Reed Smith LLP

In this weekly feature, I-CONnect publishes a curated reading list of developments in comparative public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the comparative public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Comparative Public Law,” please email contact.iconnect@gmail.com.

Developments in Constitutional Courts

  1. The Supreme Court of Canada ruled that the federal government does not have to relinquish its gun-registry database to Quebec.
  2. India’s Supreme Court struck down a law that gave authorities the power to jail people for offensive online posts.
  3. The U.S. Supreme Court granted certiorari in a case to determine whether Miller v. Alabama—wherein the Court held that mandatory life sentences without parole for juveniles are unconstitutional—adopts a new substantive rule that applies retroactively on collateral review.
  4. The U.S. Supreme Court declined to hear a major challenge to Wisconsin’s voter ID law.
  5. A judge for the U.S. District Court for the Southern District of New York dismissed a lawsuit against an anti-Iran advocacy group, ruling the case could raise national security risks by revealing state secrets.

In the News

  1. Government officials announced that Thailand’s 20th constitution will be inaugurated by the country’s king on September 4, 2015.
  2. Legislators in South Sudan voted to extend the tenure of President Salva Kiir by three years.
  3. Italy’s highest court overturned the guilty verdict against Amanda Knox in the 2007 murder of British student Meredith Kercher.
  4. Indiana Governor Mike Pence signed into law a religious objections bill that many citizens and business leaders have opposed amid concern it could allow discrimination against LGBT individuals.
  5. An Argentinian appeals court dismissed charges against President Cristina Fernandez de Kirchnerv for conspiring to insulate Iranian officials’ from prosecution over their alleged participation in the 1994 bombing of a Buenos Aires Jewish community center.
  6. China’s leadership promised reform for the country’s judicial system in light of broader efforts to improve the rule of law.

New Scholarship

  1. Wojciech Sadurski, Supranational Public Reason: Part 2: Practice, Sydney Law School Research Paper No. 15/22 (2015) (illustrating the proposition that the legitimacy of supranational authorities is often grounded on the type of arguments provided by supranational entities, and in particular, on their appeal to “public reason” by referring to examples from the European Court of Human Rights, the Inter-American and West African regional human-rights courts, and the WTO)
  2. Gabor Halmai, An Illiberal Constitutional System in the Middle of Europe, in European Yearbook of Human Rights 2014 (submitting that even though external factors can be instrumental to enforce the compliance of a member state with joint European values, the reestablishment of the liberal democracy in Hungary can only be a consequence of actions taken by internal actors both on the institutional and the behavioral level)
  3. Lorenzo Zucca, A Secular Manifesto for Europe, King’s College London – The Dickson Poon School of Law (2015) (proposing that Europe should subscribe to a positive understanding of secularism that can be understood either as a political or as an ethical project)
  4. Holger Spamann, Empirical Comparative Law, Annual Review of Law and Social Science, Vol. 11, 2015, Forthcoming (discussing the obstacles to causal inference from comparative data and cautioning against inappropriate use of instrumental variables and other techniques)
  5. Craig Green, In Human Hands: Constitutional Meaning and Judicial Responsibility, Temple University Legal Studies Research Paper No. 2015-10 (contrasting “constitutional idealism”—the notion that law should function and should thus be basically good rather than bad—and “constitutional purism”—the approach committed to orthodox methodologies of interpreting law, regardless of their consequences)
  6. Brian Christopher Jones, Preliminary Warnings on “Constitutional” Idolatry, Public Law (Forthcoming October 2015) (contending that although enacting a foundational document encompasses particular implications, attaching the word “constitution” to a foundational document enhances such consequences, leading to a more distinctive “constitutional” fetishism)
  7. Anne Peters, International Legal Scholarship Under Challenge, in International Law as a Profession (Cambridge UP 2015 Forthcoming) (concluding that the charges against international scholarship can be successfully met by a pluralist international legal scholarship)
  8. Julian Arato, Corporations as Lawmakers, Harvard International Law Journal, Vol. 56, No. 1, 2015 (arguing that the multinational corporation has acquired the power to create primary rules of international law, at stark cost to the state’s regulatory autonomy)
  9. Jaakko Husa, Nordic Law and Development – See No Evil, Hear No Evil?, The Scandinavian Studies in Law 60 (2015) 15-32 (arguing that one should apply a more informed and critical view on law and development and not merely copy the models provided by global actors as the IMF or the World Bank)

Elsewhere Online

  1. Mohamed Abdelaal, Reforming the Constitutional of Egypt: An Ugly Institutional Competition, Cambridge Journal of International and Comparative Law
  2. Tseliso Thipanyane, Human Trafficking: African Perspective, Jurist
  3. Steven Schwinn, Anti-Sharia Laws: A Solution in Search of a Problem, Jurist
  4. Clara Burbano-Herrera, It is time to take maternal mortality in Kenya seriously, AfricLaw
  5. Humphrey Polepole, Marking the new constitution for Tanzania: Challenges and Opportunities, ConstitutionNet

Calls for Papers and Announcements

  1. The Institute of Judicial Administration at the University of Birmingham has issued a call for papers for an SLSA-funded workshop titled “Appointing Judges in an Age of Diversity” to mark the 10th anniversary of the Judicial Appointments Commission.
  2. The School of Law at the National Autonomous University of Mexico announced a call for submissions for its new academic journal, the Latin American Journal of International Trade Law.
  3. The Fordham Urban Law Center and the Sorbonne Center for Study and Research on Environmental, Development, Urban and Tourism Law (SERDEAUT) announced a call for participation for the 2nd Annual International & Comparative Urban Law Conference, which will be held on June 29, 2015 at the Sorbonne Law School in Paris, France.
  4. The Hungarian Academy of Sciences Centre for Social Sciences Institute for Legal Studies and the Pázmány Péter Catholic University Faculty of Law and Political Sciences invited postdoctoral researchers to apply for a 10-month fellowship programme.
  5. The American Anthropological Association announced a call for papers for a conference on “B/Ordering Infrastructures: Mediating Encounters across Difference.”
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Published on March 30, 2015
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Cooperative Federalism Divides the Supreme Court of Canada: Quebec (Attorney General) v. Canada (Attorney General)

Paul Daly, University of Montreal, Faculty of Law

On Friday, the Supreme Court of Canada brought to an end the lengthy saga of Canada’s long-gun registry. There was a sharp split on the Court, with a bare majority of five justices giving a narrow win to the federal government over the joint dissent of their three Quebec colleagues (with whom one other justice agreed). The split was legal, not political, with the Court divided on how to interpret Canada’s constitutional division of powers.

Controversial in its inception and costly in its execution, the registry had long divided Canadians. On one side were ranged advocates for gun control, who convinced the federal Parliament to pass the Firearms Act that established the registry in the 1990s. On the other were skeptics of various stripes, from those who believed the registry penalized law-abiding hunters and farmers, to those who were shocked by the registry’s mounting cost.

In 2011, Stephen Harper’s Conservative Party of Canada was elected with a majority of seats in the House of Commons, having promised in its election manifesto to do away with the registry for once and for all. Parliament duly enacted legislation: the Ending the Long-Gun Registry Act abolished the registry and ordered the destruction of the data it contained. The destruction, required by a stand-alone provision of the ELRA, was at the heart of Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, litigation in which the province of Quebec challenged the destruction of the data.

Read the rest of this entry…

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Published on March 30, 2015
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An Update on the Death Penalty in Trinidad & Tobago

John Knechtle, The University of the West Indies, St. Augustine, Trinidad

The sentence of death has been the mandatory penalty for murder in Trinidad and Tobago since independence in 1962 and with the country consistently ranking in the top ten percent for homicides per capita around the world, public support for the death penalty remains strong. Section 4 of the Offences against the Person Act 1925 provides that every person convicted of murder shall suffer death.

However, despite the mandatory nature of the death penalty in Trinidad and Tobago, nobody has been executed in the country since 1999.[1] Nevertheless, in January of this year, the Attorney-General of Trinidad and Tobago wrote a letter to the opposition leader informing the opposition leader of the Government’s intention to reintroduce the Constitutional (Amendment) (Capital Offences) Bill 2015 to operationalise the death penalty in Trinidad and Tobago.[2] Exactly what the outcome of this letter will be remains to be seen, but it appears that Trinidad and Tobago is set for another chapter in its efforts to implement the death penalty.

The controversy surrounding the death penalty, both socially and legally, cannot be understated. Trinidad and Tobago, and by extension the Caribbean, has witnessed a wave of judicial activism  on the part of its court of final appeal, the Judicial Committee of the Privy Council (JCPC) located in the UK, geared towards dismantling the death penalty in the Caribbean.

Read the rest of this entry…

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Published on March 27, 2015
Author:          Filed under: Analysis
 

Reminder–ICON-S 2015 Conference in New York City, July 1-3, 2015—Call for Papers & Panels—Public Law in an Uncertain World

I-CONnect is pleased to announce the Call for Papers & Panels below for the 2015 Conference of ICON-S: the International Society of Public Law.

ICON-S, a new international learned society now entering its second year, is guided by a Pro Term Executive Committee featuring many of the world’s leading scholars in the field of public law.

This edition of the ICON-S Conference will be held in New York City, on July 1-3, 2015, at the New York University School of Law. The conference will feature plenary and concurrent panels. Scholars–both senior and junior, including graduate students, as well as practitioners–are invited to submit papers and/or fully-formed panels for the conference.

Further details follow below.

 

International Society of Public Law (ICON·S)

2015 Conference

New York City, July 1-3

Call for Panels and Papers

“Public Law in an Uncertain World”

ICON-S invites submissions for papers and fully-formed panels for its 2015 Conference on “Public Law in an Uncertain World”.

The Conference will take place in New York City, on July 1-3, 2015, at the New York University School of Law.

The Conference will feature a keynote address as well as three plenary sessions on the Conference theme. A provisional program can be found here. The heart of the Conference, however, will be the two days devoted to the papers and panels selected through this Call.

ICON-S welcomes both individual papers as well as proposals for fully-formed panels. Panel proposals should include at least 3 papers by scholars who have agreed in advance to participate and should identify one or two discussants, who may also be paper presenters. Concurrent panel sessions will be scheduled over two days. Each concurrent panel session will last 1 hour and 30 minutes.

The plenary sessions are not intended to limit the subject-matter scope of individual paper submissions and fully-formed panel proposals. Paper and panel proposals may focus on any theoretical, historical, comparative, empirical, doctrinal, philosophical or practical perspective related broadly to public law, including administrative law, constitutional law, criminal law, or international law in all of their possible domestic, transnational, supranational, international and global variants related to the 2015 Conference theme. The purpose of this conference is to explore and evaluate the function and limits of public law in our uncertain world in relation to war and peace, human rights, religion, state-building, constitution-making, formal and informal institutional change, revolutionary movements, national security as well as but not limited to the economy, the environment and the challenge of new technologies.

We invite potential participants to refer to the ICON-S Mission Statement when choosing a topic.

ICON-S is by no means restricted to public lawyers! We particularly welcome panel proposals that offer a genuine multi-disciplinary perspective from various areas of law (including civil, commercial, criminal, tax, and labor law), as well as from scholars from the humanities and the social sciences with an interest in the study of public law and (un)certainty.

We welcome submissions from both senior and junior scholars (including advanced Ph.D. students) as well as practitioners.

All submissions must be made on the ICON-S website (www.icon-society.org) by April 10, 2015. Successful applicants will be notified by May 1, 2015.

All participants will be responsible for their travel and accommodation expenses.

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Published on March 25, 2015
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New Scholarship Review: Interview with Jonathan Marshfield on Federalism and the Amendment Power

Richard Albert, Boston College Law School

In this installment of I-CONnect’s interview series, I speak with Jonathan Marshfield about his forthcoming paper on Decentralizing the Amendment Power. In his new paper, Marshfield explores how and why constitutional amendment rules might be structured to include subnational units in the process of formal amendment. He concludes that “although there are real risks associated with strong decentralization of the amendment power, there are several sound normative justifications for including subnational units in the amendment process.”

In our interview, we discuss how federalism exacerbates amendment difficulty, why constitutional designers might or might not want to include subnational units in the amendment process, and how to categorize the variations on subnational involvement in formal amendment.

The full interview is available here.

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Published on March 24, 2015
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What’s New in Comparative Public Law

–Sandeep Suresh, National Law University, Jodhpur, India

In this weekly feature, I-CONnect publishes a curated reading list of developments in comparative public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the comparative public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Comparative Public Law,” please email contact.iconnect@gmail.com.

Developments in Constitutional Courts

  1. The Supreme Court of India has upheld the constitutional validity of the regulations framed by the University Grants Commission prescribing minimum qualifications for national and state level entrance tests for appointment of teachers/assistant professor in colleges.
  2. Germany’s highest court has struck down a ban on headscarves for state school teachers as unconstitutional.
  3. The Supreme Court of India set aside the notification to include Jats in the Central list of Other Backward Classes (OBC) for according benefits of reservation to them.
  4. The Supreme Court of the United States was petitioned to overturn a ruling denying her request for sex reassignment surgery.
  5. The Supreme Court of Canada ruled that Quebec violated schools’ right to religious freedom.

New Scholarship

  1. Catherine Turner, Transitional Constitutionalism and the Case of the Arab Spring, International and Comparative Law Quarterly (Forthcoming, 2015) (analyzing the relationship between the transition and the enactment of a new constitution for Egypt)
  2. Ozan O. Varol,Constitutional Stickiness, 49 UC Davis Law Review (Forthcoming, 2016) (analyzing why many constitutional amendment and replacement processes produce relatively little change in substance and arguing that, even with low amendment thresholds, the constitutional status quo constrains future choices in specific and systemic ways)
  3. Eric S Fish, Choosing Constitutional Remedies (March 16, 2015) (exploring several different aspects of the American doctrine of constitutional remedies, showing that it sometimes follows the logic of editorial restraint and sometimes the logic of purpose preservation)
  4. Federico Fabbrini, Privacy and National Security in the Digital Age. European and Comparative Constitutional Perspectives, 20 Tilburg Law Review (2015) (introducing the theme of the protection of the right to privacy in a world characterized by rapid developments in digital technology and the need to fight terrorism)
  5. Neil Walker, The Antinomies of Constitutional Authority, Edinburgh School of Law Research Paper No. 2015/11 (revisiting the question of the nature and viability of a post-state or cosmopolitan constitutionalism, and of its merits in comparison to state-centered constitutionalism, by reference to a number of deep-rooted antinomies within constitutional thought and practice)
  6. Douglas-Scott, Sionaidh, A UK Exit from the EU: The End of the United Kingdom or a New Constitutional Dawn?, Cambridge Journal of International and Comparative Law (2015) (considering the impact of a UK exit from the EU on the UK devolutionary settlement, as well as considering its effects on Ireland)
  7. Mark Walters, Succession to the Throne and the Architecture of the Constitution of Canada, Queen’s University Legal Research Paper No. 2015-001. (arguing that in light of the basic structure or ‘architecture’ of the Constitution of Canada, no formal amendment to Canadian constitutional law is required in response to the new rules of royal succession adopted in the United Kingdom)

In the News

  1. United States has joined forces with Japan and the European Union to pressure China on new bank cyber security rules that have upset foreign companies.
  2. Two Associates of Ex-Security Chief to Face Trial over Bribery in China.
  3. Cambodia’s Parliament passed new election laws that are alleged to be potentially damaging to free speech.
  4. Oregon Governor Kate Brown on Monday signed a new law that makes Oregon the first state in the nation to institute automatic voter registration.
  5. France’s lower house of parliament passed a bill allowing patients near the end of their lives to stop medical treatment and request deep sedation until they die.
  6. America’s largest Presbyterian denomination has announced a change to its constitution that allows for a more inclusive definition of marriage.

Calls for Papers and Announcements

  1. The School of Government at LUISS Guido Carli University is pleased to invite applications for the 4th edition of the Summer School-Jean Monnet Module on ‘Parliamentary Democracy in Europe’ to be held in Rome, Italy from 14-24th July, 2015. The application form is now available here. The application deadline is 4 May 2015.
  2. Abstracts for the 5th International Conference on Language, Law and Discourse to be held from 27 September-1 October, 2015, have to be submitted before March 24, 2015. The conference is being organised by Orbero University School of Law, Psychology and Social Work.
  3. The 7th Conference on the Future of Adversarial and Inquisitorial Systems will be held from 18-20 May, 2015 at the University of Warwick, UK. You can register for the conference here.
  4. Paper proposals are invited for the Intergenerational Justice Conference to be held on 9 October 2015 at the World Trade Institute, Bern, Switzerland.
  5. The Fordham Urban Law Center is pleased to announce the call for proposals for the 2nd Annual International & Comparative Urban Law Conference to be held on 29 June 2015 in Paris, France.
  6. In conjunction with the Institute of Law (Jersey), Juris Diversitas will co-host a symposium on ‘Micro-jurisdictions and Small States’ in St Helier, Jersey on 17 April 2015. Interested participants may visit the organiser’s website here.
  7. The Columbia Human Rights Law Review (HRLR) is publishing a symposium edition about the relationship between the ‘U.S. War on Terror and Human Rights Law’. Individuals interested in publishing should submit a paper proposal of no more than 1000 words by no later than April 20, 2015.
  8. The Centre for Asian Legal Studies at NUS is inviting abstracts of papers for the 6th Asian Constitutional Law Forum to be held from 10-11 December, 2015.

Elsewhere Online

  1. Susan Finder, Hong Kong needs an advisory committee to examine complex cross-border legal issues, South China Morning Post.
  2. Gautam Bhatia, Freedom of Religion and Non-Discrimination: The Haji Ali Dargah’s Decision to Ban Women from Access to the Inner Sanctum, Indian Constitutional Law & Philosophy.
  3. Lissa Griffin, Looking at Collateral Consequences of Conviction, Comparative Law Prof Blog.
  4. Akhil Reed Amar, Clones on the Court, The Atlantic.
  5. K.Chandru, Judges, castes and social justice, The Hindu
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Published on March 23, 2015
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The Supreme Court of Canada on Religious Freedom and Education: Loyola High School v. Québec (Attorney General)

Benjamin L. Berger, Osgoode Hall Law School, York University

The classroom has been a contemporary crucible for working out the relationship between religion and the modern constitutional state.  Whether the issue has been the crucifix on classroom walls in Italy, the pledge of allegiance in U.S. schools, the religious (or was it ethnic?) identity of children at a Jewish school in England, or headscarves worn by teachers or students in schools around Europe, questions of constitutionalism and religious difference have persistently emerged out of debates about education.  As I explain here, this has long been true of the Canadian setting, in which education has served as a principal terrain for negotiating religious difference and the claims of state authority.

The Supreme Court of Canada’s decision in Loyola High School v. Québec (Attorney General), released last week, carries on this pattern of looking to the classroom to sort through constitutional questions regarding freedom of religion under section 2(a) of the Canadian Charter of Rights and Freedoms, state neutrality, and the character of the modern “secular” state.  At the heart of this case is a part of the Québec government’s mandatory core curriculum for high schools, the Program on Ethics and Religious Freedom (“ERC”).

In 2008, the Minister of Education began to require that all public and private provincial high schools teach this program of study in world religion, the history of religion in Québec, and a range of religious and non-religious ethical systems.  The purpose of instituting the ERC was to “inculcate in all students openness to diversity and respect for others” by promoting “the ‘recognition of others’ and the ‘pursuit of the common good’.” (para. 11)  Importantly, the ERC was to be taught from an impartial and neutral perspective.  It thus sits in the arc of a particular Québec history: in the 1960s, during what is referred to as the “quiet revolution,” a theretofore highly Catholic society pushed back on the power and influence of the Church.  Education was the focal point of this radical social reorientation towards religion.  The government took control over public education, previously provided by religious communities.  By the end of the 20th Century, denominational schools only operated as private institutions. The ERC was to be the coup-de-grâce, replacing all remaining programs of denominational education in high schools.

The ERC–and its requirement for strict neutrality in the teaching about religion–received its first challenge in the 2012 case of SL v Commission scolaire des Chênes, in which Catholic parents with children at a public school sought to have their children exempted from the ERC.  The parents’ complaint was that the neutral and objective teaching of religion and religious ethics would interfere with their ability to raise their children in the Catholic religion, as it would inculcate a kind of relativism and treat Catholicism as just one system of belief and ethics among many.  The Supreme Court of Canada rejected this claim, stating that the mere act of exposing children to varieties of religious cultures and ethical approaches did not interfere with the parent’s religious freedom, protected by s. 2(a) of the Charter of Rights and Freedoms.

Loyola presented a very different and much more difficult situation.

Read the rest of this entry…

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Published on March 23, 2015
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The BCCI Case on “Public Function” and its Implications on Sports Governance

Special Series: Perspectives from Undergraduate Law Students
B.A/LL.B. (Hons) Student Contribution

–Aradhya Sethia, III Year, B.A. LL.B. (Hons.), National Law School of India University, Bangalore (India)

On January 22, 2015, the Supreme Court of India decided Board of Control for Cricket in India v. Cricket Association of Bihar (“Cricket case”). The Board of Control for Cricket in India (“BCCI”) regulates professional cricket in India. Its legal status is that of a society registered under the Tamil Nadu Registration of Societies Act, 1975, a state (provincial) law for the state of Tamil Nadu. The Act provides the procedure for registering a society for the purpose of promoting education, literature, science, charity, art, athletics, sports (including indoor games) recreation, public health and other objectives.

The Cricket Association of Bihar, a society registered under the Societies Registration Act, 1860 filed a writ petition in public interest seeking a writ of mandamus directing BCCI to recall its order constituting a probe panel to inquire into the allegations of betting and spot fixing in the Indian Premier League (IPL). The petition also challenged the amendment to BCCI Regulation 6.2.4 on the ground of mala fide exercise of power. Regulation 6.2.4 prohibited the administrators from having any commercial interests in the matches or events conducted by the BCCI. However, an amendment was brought to exclude IPL and Champions League T-20 from its ambit allegedly to serve the interest of the then-Chairman of the BCCI.

The traditional understanding is that the constitutional remedy of writs for the violation of fundamental rights cannot be issued against a private actor, like BCCI. Therefore, a preliminary question arose: may BCCI be subjected to the writ jurisdiction? In order to answer this question, the Court went on to inquire whether the BCCI performs a ‘public function’, the relevance of which will be discussed in the following section.

In this post, I explore and evaluate the public function analysis carried out by the Court. Further, I also identify some of the issues that the Court left unanswered for now but that will have to be answered eventually in connection with constitutional litigation in sports governance in India.  Specifically, the Cricket case opens up the doors for subjecting the sports governance bodies to constitutional and administrative law obligations including fundamental rights in India. Generally, it is also an important milestone in the process of the principled expansion of constitutional duties to non-state bodies.

Read the rest of this entry…

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Published on March 21, 2015
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An Evolution in “Italian Style”: The Constitutional Court says it will Govern the Effects of its Judgments (and Will Use the Proportionality Test to Do It)

Erik Longo (University of Macerata) and Andrea Pin (University of Padua)

Since the adoption of the Constitution in 1947, Italy’s Constitutional Court (CC) has had the primary purpose of defending the normative superiority of constitutional law within the legal order. The Italian model of judicial review of legislation largely takes inspiration from the so-called ‘centralized’ or ‘European’ model of review that Hans Kelsen developed for the Austrian Constitution of 1920.[1]

Italy’s CC retains sole power to invalidate legislative provisions as unconstitutional. If lower courts suspect that a law they are expected to apply in a controversy is unconstitutional, they only can suspend the trial before them and request a preliminary ruling from the CC on the relevant legal provision.

The decision of the CC to invalidate a statute applies not only to the concrete case that led to that ruling, but to all cases, present and future. The only exceptions are those cases that have exhausted all judicial remedies and therefore are barred from relitigation: such cases were subject to the law as applied before it was declared unconstitutional since they cannot be reopened.

In other words, the CC’s declarations of unconstitutionality have retroactive effect.[2] Moreover, as a general rule, the CC itself has no power to mitigate the effects of its decisions.

There has always been little question that the CC’s judgments would affect present and future cases alike, with no leeway for the CC itself to modulate the effect of its decisions. Legal doctrine, however, has divided sharply between those who endorse this approach and those who prefer that the CC have a broader spectrum of solutions available.[3] Endowing the CC with the ability to control the effects of its own decisions would bring its discretion closer to that which is afforded to the legislature. This change would be a major shift in the understanding of the CC’s role.

Nevertheless, the CC has occasionally carved minor exceptions to this rule under specific circumstances. For example, it has controlled the effect of its decisions by invalidating the law under its review only prospectively. Or, it has limited the retroactive effects of a decision. Only a handful of cases have applied these limits, though, and the CC each time has clarified that compelling constitutional interests urged it to deviate from the general rule. For example, it limited the retroactive effects of a judgment in which it struck down a piece of State legislation financing daycares because it interfered with Regional competencies. Retroactive effects would have caused daycares to pay back the public funds they received from the State in restitution and face bankruptcy. Thus, the CC protected the transactions that had been enacted up to that point.[4] But such decisions were sporadic, and the justifications for such deviance from the general rule were narrowly-tailored and piecemeal.

The lack of control over the effects of its decisions, together with the poor theorization of exceptions it provided, traditionally has put the CC in a difficult position. The CC has oftentimes declined to invalidate tax or fiscal laws whose incompatibility with the Constitution was at least arguable, because of the financial difficulties that such a decision would have caused for the State. The CC realized that the decision’s retroactive effects would have required the State to give back to taxpayers the revenues that it had been collecting for years. The CC’s lack of power to mitigate its decisions’ effects resulted in the CC relaxing its scrutiny of tax and fiscal laws.

Only now, with judgment no. 10, on 2 March 2015,[5] has the CC made the bold affirmation that it has the power to govern the effects of its decisions.

Read the rest of this entry…

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Published on March 20, 2015
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Constitutional Interpretation and Constitutional Review in Afghanistan: Is There Still a Crisis?

Shamshad Pasarlay, University of Washington School of Law

Constitutional interpretation—specifically, the question over where to locate the power to issue constitutional interpretations that would bind the branches of the government—was a controversial issue during the drafting of the 2004 Constitution of Afghanistan. The drafters of the Constitution (members of the Constitutional Drafting Commission and Constitutional Review Commission) recommended an independent constitutional court to interpret the Constitution and conduct constitutional review of laws. But the then President, Hamid Karzai, and his cabinet removed the draft constitutional court before the convention of the Constitutional Loya Jirga (the popular body that adopted the 2004 Constitution). President Karzai and his supporters argued that the constitutional court would become like Iran’s Council of Guardians, using constitutional provisions, especially those having to do with Islam, to trump the political system. The removal of the constitutional court from the draft constitution beget confusion over constitutional interpretation, especially given the haphazard inclusion of article 121, empowering the Afghan Supreme Court to conduct judicial review, and article 157, requiring the establishment of an independent commission to supervise the implementation of the Constitution. These changes did not clearly authorize either the Commission or the Supreme Court to interpret the Constitution.

It has been almost five years since the establishment of the Independent Commission for the Supervision of the Implementation of the Constitution (The Constitutional Supervision Commission). Shortly after a presidential veto in 2009, the Afghan Parliament passed the Law of the Constitutional Supervision Commission by a two-thirds majority. This Law authorized the Commission to interpret the Constitution at the request of the government, the National Assembly and the Supreme Court. However, the Afghan Supreme Court and President, Hamid Karzai, challenged the power of the Commission, maintaining that constitutional interpretation is the power of the Supreme Court under article 121 of the Constitution. But, strongly backed by the Parliament, the Commission continued interpreting the Constitution notwithstanding the opposition of the President and the Supreme Court.

Thus, a crisis over constitutional interpretation emerged. This short piece explores whether this crisis still remains and highlights how constitutional interpretation and constitutional review is conducted in Afghanistan—identifying which institution does what today. Read the rest of this entry…

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Published on March 18, 2015
Author:          Filed under: Analysis