I·CONnect-Clough Center 2018 Global Review of Constitutional Law
Drugda, Simon; Albert, Richard; Landau, David; Faraguna, Pietro
Publication date: 2019
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Citation for published version (APA): Drugda, S., Albert, R., Landau, D., & Faraguna, P. (Eds.) (2019). I·CONnect-Clough Center 2018 Global Review of Constitutional Law. Clough Center for the Study of Constitutional Democracy at Boston College.
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2018 Global Review of Constitutional Law
Richard Albert, David Landau, Pietro Faraguna and Simon Drugda Editors © 2019 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: 978-0-692-15916-3 Table of Contents
4 INTRODUCTION 5 A Renewed Partnership in Support of Constitutional Democracy 6 The Global Review Turns Three
7 COUNTRY REPORTS 9 Argentina 120 Greece 13 Austria 125 Guatemala 18 Bangladesh 131 Hong Kong 23 Belgium 138 Hungary 28 Boznia and Herzegovnia 143 India 33 Brazil 149 Indonesia 37 Bulgaria 154 Iran 42 Cameroon 158 Ireland 47 Cape Verde 163 Israel 52 Chile 167 Italy 58 Colombia 172 Japan 63 Commonwealth Caribbean 177 Kenya 68 Croatia 182 Latvia 74 Cyprus 188 Liechtenstein 79 Czech Republic 193 Malaysia 84 Denmark 199 Mexico 87 Ecuador 204 Moldova 92 Egypt 209 New Zealand 97 Finland 214 Nigeria 102 France 219 Norway 107 Gambia 224 Palestine 112 Georgia 229 Peru 117 Ghana 234 Philippines
2018 Global Review of Constitutional Law | 1 238 Poland 289 Sri Lanka 243 Portugal 294 Sweden 248 Romania 298 Switzerland 253 Russia 303 Taiwan 258 Serbia 309 Thailand 263 Singapore 314 Turkey 269 Slovakia 319 Ukraine 274 South Africa 325 United Kingdom 279 South Korea 331 Vietnam 285 Spain
336 SUMMARY
2 | I•CONnect-Clough Center 2018 Global Review of Constitutional Law | 3 INTRODUCTION
4 | I•CONnect-Clough Center A RENEWED PARTNERSHIP IN SUPPORT OF CONSTITUTIONAL DEMOCRACY
Vlad Perju Director, Clough Center for the Study of Constitutional Democracy Professor, Boston College Law School
The Clough Center for the Study of Constitutional Democracy at Boston College is delighted to join, for the second year, I-CONnect in making this unique resource available to scholars and practitioners of constitutional law and policy around the world. The first - 2016 - edition of the Global Review of Constitutional Law, to which the Clough Center was a proud partner, received the outstanding reception it deserved as it quickly established itself as an indispensable resource for the world community. The 2017 edition, with its expanded number of jurisdictions, will undoubtedly solidify the reputation of the Global Review.
The Clough Center for the Study of Constitutional Democracy aims to offer a platform that meets, in depth and scope, the urgency of the ongoing challenges to constitutional democracy. Each year, we welcome to Boston College some of the world’s leading jurists, historians, political scientists, philosophers and social theorists to participate in our programs and initiatives. The Center also welcomes visiting scholars from around the world, and I use this opportunity to encourage interested scholars to contact us. More information about the Center’s activities, including free access to the Clough Archive, is available at http://www.bc.edu/centers/cloughcenter.html.
The Clough Center is deeply grateful to all the contributors to this year’s Global Review, and to its editors. Particular thanks go to Professor Richard Albert, a trusted friend and partner of the Clough Center, for his vision and initiative in turning the Global Review into reality.
2018 Global Review of Constitutional Law | 5 THE GLOBAL REVIEW TURNS THREE
Richard Albert and David Landau Founding Co-Editors of I·CONnect and Co-Editors of the Global Review
Pietro Faraguna and Simon Drugda Co-Editors of the Global Review
This year marks the third edition of the I·CONnect-Clough Center Global Review of Constitutional Law. First published in 2017 to review the constitutional law developments in the world in the year 2016, this edition reviews the constitutional law developments in the world in the year 2018.
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The purpose of the Global Review has remained unchanged since its founding. It is to offer readers systemic knowledge that has previously been limited mainly to local networks rather than a broader readership. By making this information DYDLODEOHWRWKHODUJHU¿HOGRISXEOLFODZLQDQHDVLO\GLJHVWLEOHIRUPDWZHDLPWRLQFUHDVHWKHEDVHRINQRZOHGJH upon which scholars and judges can draw. Our ambition is to make our vast world smaller, more familiar, and more accessible.
:HDUHJUDWHIXOWRRXUDXWKRUVIRUSUHSDULQJWKHLUULFKLQVLJKWIXODQGLQIRUPDWLYHMXULVGLFWLRQUHSRUWV:HDOVRWKDQN the leadership team at the International Journal of Constitutional Law²*UiLQQHGH%~UFDDQG-RVHSK:HLOHU&R Editors-in-Chief, as well as Sergio Verdugo, Associate Editor, for publishing a few contributions from this year’s Global Review focused on Latin America to coincide with the 2019 Annual Conference of the International Society of 3XEOLFKHOGRQ-XO\LQ6DQWLDJR&KLOH:HDOVRZLVKWRUHFRJQL]HWKHOHDGHUVRIWKH&HQWUDODQG(DVWHUQ(XURSHDQ Chapter of the International Society of Public Law for hosting a regional workshop this past year for Global Review FRQWULEXWRUV:HKRSHWKHLULQLWLDWLYHLQVSLUHVRWKHUVWRKRVWVLPLODUSURJUDPVLQWKHLURZQSDUWRIWKHZRUOG:HJLYH thanks as well to Gaurie Pandey at the Center for Centers at Boston College for her help once again in designing this beautiful volume.
:HUHVHUYHRXUELJJHVWWKDQNVIRU3URIHVVRU9ODG3HUMX3URIHVVRURI/DZDQG'LUHFWRURIWKH&ORXJK&HQWHUIRUWKH Study of Constitutional Democracy at Boston College. Professor Perju continues to inspire us with his vision for the Center, which he has transformed into a leading site in the world for discussion and debate on constitutionalism. A OHDUQHGVFKRODURIWKH¿HOGDUHVSHFWHGWHDFKHUDQGDSDVVLRQDWHGHIHQGHURIGHPRFUDF\KHKDVRXUGHHSHVWJUDWLWXGH
:H LQYLWH LQWHUHVWHG DXWKRUV IURP QHZ MXULVGLFWLRQV WR FRQWDFW XV YLD HPDLO DW FRQWDFWLFRQQHFW#JPDLOFRP WR express their interest in producing a report for next year’s Global Review. And, as always, we welcome feedback, recommendations, and questions from our readers.
6 | I•CONnect-Clough Center COUNTRY REPORTS
2018 Global Review of Constitutional Law | 7 Argentina
Juan F. González-Bertomeu, Assistant Professor, ITAM Ramiro Álvarez-Ugarte, Assistant Professor. UP/UBA
I. INTRODUCTION II. MAJOR CONSTITUTIONAL DEVELOPMENTS In our 2017 report, we described a Supreme Court in flux. Early in 2016, two new jus- :HVWDUWE\DQDO\]LQJZKDWSUREDEO\ZDVWKH tices joined a five-member Court against most important constitutional issue in Ar- 1 the background of broader political change. gentina during 2018: the legislative debate :HWKHUHLQKLQWHGDWSRVVLEOHMXULVSUXGHQWLDO around the legalization of abortion. The de- shifts, involving a redefinition of both the ARGENTINA bate strongly engaged the public and chan- Court’s role in general and its standards on neled constitutional discourse for the better human rights law in particular. In 2017, an part of the year. Next, we will turn to the Su- ostensibly minor decision but with heavy preme Court. implications regarding the policies of mem- ory, truth, and justice concerning human Abortion rights violations during the last dictatorship Abortion is criminalized by the 1921 Crimi- had invited strong popular backlash. In 2018, nal Code in force except for two cases: (a) if and after a legislative intervention, the Su- the pregnancy puts at risk the woman’s life or preme Court revisited its decision, this time health, or (b) if the pregnancy is the outcome amidst turmoil within the Court itself. After of rape (Section 86). The original wording of an eleven-year tenure, Justice Lorenzetti was this second exception was infelicitous, creat- replaced in September as Court President by ing the impression for some observers—in- Justice Rosenkrantz, the member perceived cluding religiously motivated people—that to be most closely aligned with the nation- only pregnancies resulting from rape against 2 al Executive. The move seems to have left mentally deficient women could legally be strangled relationships within the Court and terminated. Both out of uncertainty about the was followed by another power reconfigura- law and ideological pushback, many doctors tion, what may partly account for the relative refused to perform legally permitted proce- paucity of significant cases decided during dures. In 2012, in FAL, the Supreme Court the year. The most important development said the provision applied to rape committed in constitutional politics, concerning the le- against any woman, and that this stemmed galization of abortion, took place outside the from both statutory interpretation and the courts. country’s human rights law commitments. The Court thus attempted to minimize the judicialization of such procedures, ordering all provinces to pass clear guidelines to guar- antee access to legal abortions, a process still facing obstacles.
1 J. F. González-Bertomeu; R. Álvarez-Ugarte, ‘Argentina’ (2018), The I·CONnect-Clough Center 2017 Global Review of Constitutional Law, pp. 13-14, https://papers.ssrn.com/abstract=3215613. 2 Disclaimer: During Justice RoZLURYHU[a»ZJVUÄYTH[PVUWYVJLZZ1\HU-.VUamSLa)LY[VTL\ submitted a letter of support.
8 | I•CONnect-Clough Center In 2018, after months of engaged public would carry the day, called for the Court to vide a degree of support to that view. demonstrations by women to protest gen- intervene. He claimed that “[the Court] may Now, a series of developments at the Court der violence, President M Macri invited the surprise us with a comprehensive definitive has reached beyond its case law, though it (often-described as “reactive”) Congress to decision … [that] Congress would have to will likely have an impact on the latter. In debate for the first time whether abortion follow … [T]he Court might settle what September, Justice Rosenkrantz was joined should be legalized, a point that had long Congress did not dare to settle”.4 The Court, by two others to end Justice Lorenzetti’s been at the forefront of an ever-growing local however, is likely to remain silent in the near eleven-year tenure as Court President, a re- feminist movement and that a majority of the future—even assuming that justices are will- newable three-year position selected by the population seems to support.3 For weeks, the ing to intervene in this debate, there does not justices themselves that carries considerable lower house listened to hundreds of experts appear to be a relevant case in its docket or power, including acting as the represen- and public figures who shared their views. approaching it. tative of the federal judiciary, supervising The discussions were widely addressed by the administrative workings of the Court, the media, and citizens mobilized for and The Court Changes and making such relevant determinations as against the measure (green and blue scarves The Supreme Court went through a process the order and timing of decisions. Alleged- became symbols for the former and the latter, of renewal with the turn of the century, after ly, this change exacerbated an acrimonious respectively). In June, the lower house nar- a Court-packing move in the early 1990s left confrontation between at least two of the rowly passed a bill legalizing the termination it in disrepute.5 This allowed the Court to re- justices, which made the general news for of pregnancies during the first trimester and gain prestige and to be gradually perceived days. In December, a new coalition of jus- mandating health care providers to guarantee as impartial. Apart from the profile of the tices (including Rosatti, who days before had access to medications and procedures. After new justices, what contributed to this was supported Rosenkrantz) decided to strip the this result in a country where the Catholic the Court’s human rights agenda, expressing Court President of some relevant capacities. Church and, lately, Protestant denominations a relatively strong commitment to interna- This perceived instability, which resulted in opposing abortion exert social influence, the tional human rights law (since 1994 on par a slowdown in the pace of the Court, may not bill moved to the less democratically appor- with the Constitution) and the interpretations help cement its legitimacy. tioned Senate, where, after another round of made by relevant international bodies. The debate, it was narrowly rejected. Court also expressed some willingness to III. CONSTITUTIONAL CASES get involved in cases of social significance, The debate invigorated a stale political sys- including structural litigation and social and During 2018, the Court’s internal turmoil led tem, with many women (and men) forcefully economic rights litigation concerning the it to push important decisions to the last part reclaiming a voice in public discussions. In rights to health, housing, and an adequate of the year. The Court seemed to be under- the lower house, it was moved by a women’s standard of living. going a period of ad-hoc coalitions, although caucus organized across party lines and that a handful of sensitive cases show Justice promises to continue pushing for women’s In December 2015, right after taking office Rosenkrantz as a lone dissenter. Some of rights. Also, either because of the virtues as President, the right-leaning Macri select- the Court’s decisions were marked by a dis- of deliberation or to save face by catering ed two candidates to fill vacant seats at the pute over interpretative doctrines and its re- to an aware constituency, several legisla- Court. A 2006 statute had ordered the gradu- strained versus expansive role. Curiously, a tors claimed to have changed their position al reduction of the Court’s membership from few of its justices seemed to change their po- during the debate, mostly for legalization. nine members to five, a number reached in sitions regarding this matter from one case to :KLOHRSSRVLQJOHJDOL]DWLRQRWKHUVDFFHSW- 2014. In such a small body, two nominations the next, and it will be their task to show that ed that aborting women do not belong in jail. potentially would be close to entailing a sig- these changes were not politically motivat- Finally, though with differences (Macri’s nificant accommodation at the Court. As we HG:HEHOLHYHWKDWZKLOHUHSUHVHQWLQJRQO\ party leaned toward the status quo), all par- hinted last year, some indications suggested a snapshot of the Court’s docket, the four de- ties fractured around the matter, an unusual that the new members, Justices H Rosatti and cisions we cover offer a decent view of this development for a legislature characterized C Rosenkrantz, might be willing to embrace period of transition. A case nearly making by party cohesion. a form of judicial minimalism and to weaken the cut is Peralta Valiente,6 a summarily dis- the previously expressed deference toward missed appeal of a foreigner expelled from During the Senate debate, a senator in fa- international human rights law and its adju- the country, in which two dissenting justices vor of legalization, suspecting that rejection dicatory bodies. Some cases from 2018 pro- (Rosenkrantz and Highton) claimed the per-
3 Eduardo Paladini, ‘Dos nuevas encuestas sobre el aborto’, Clarín, 8 August 2018, https://www.clarin.com/politica/nuevas-encuestas-aborto-horas-arran- que-debate_0_rkAj4JusG.html 4 Senado de la Nación, MA Pichetto (debate of 8 August 2018), available https://www.youtube.com/watch?v=OvWDyFoNj6c. 5 González-Bertomeu and Álvarez-Ugarte, supra note 2. 6 Peralta Valiente, Mario CAF 38158/2013/2/RH1 [2018].
2018 Global Review of Constitutional Law | 9 son’s rights had been violated for lack of no- change as a result of the enactment. The an interpretative rule because it entailed the tification of his right to receive free legal aid. Court’s 4-1 plurality decision suggested an retroactive application of the law to worsen affirmative answer, but only two of the four a defendant’s standing. 1. Batalla: The Constitution inside and justices voting to move away from Bignone outside the courts took the new statute into consideration. Jus- There are two ways to understand these The single most significant cases from 2017 tices Maqueda and Lorenzetti insisted on opinions. One is as a genuine discrepancy and 2018 concerned the same topic. In 2017, their previous position—mostly based on regarding the nature of the “interpretative” the case had involved the fate of one Mr the state’s international obligations—and statute. Justice Rosenkrantz concluded that Muiña, convicted in 2011 of kidnapping and claimed that the statute did not add anything. the statute could not be regarded as such torturing five people (one still disappeared) In contrast, the remaining justices forming because, among other reasons, it violated in the context of massive human rights viola- the decisional majority considered that the constitutional protections, while Justices tions committed during the last dictatorship statute had changed the legal landscape. Rosatti and Highton concluded otherwise. If (1976-1983). this was the issue at stake, Justice Rosenk- In Bignone—the previous case—Justices rantz’s stance was a sensible one only if un- In that case (Bignone), what was at stake was Rosatti and Highton each expressed the view derstood within the confines of his previous whether Muiña could claim a benefit regard- that Congress had not legislated a difference (and most probably wrong) criterion in Big- ing how his prison term was to be calculated, between common crimes and human rights none concerning the state’s human rights law or whether international human rights law abuses, and that it was not for judges to alter obligations. If Congress did not distinguish concerning the fight against impunity pre- the statute. A straightforward interpretation between common crimes and human rights vented that result. Muiña had invoked the of their stance is that it referred to judges violations when enacting that statute, a new so-called “Two for one” rule establishing because that is what was at stake, but that Congress could not do it now without vio- that, after two years in detention, each extra Congress itself would be banned from differ- ODWLQJQRQUHWURDFWLYLW\ :HGRQRWEHOLHYH day would count as two served if convicted. entiating ex post as well. In Batalla, howev- in a metaphysically ever-present Congress The rule had been repealed in 2001, before er, they jointly said that Congress had legiti- whose decisions across time cannot ever his arrest, but Muiña argued it still applied to mately established such a difference through be retroactive.) Since Justices Rosatti and him as a result of the Criminal Code’s “Most the new statute. The statute was a reasonable Highton had shared that view in Bignone, a favorable to the defendant” rule, mandating legislative exercise that did not violate fun- superior option for them would have been to that “[i]f the law in force at the time of the damental rights but only clarified the way acknowledge that human rights law did soft- offense is different from that which exists at to interpret the law, without creating a new en the ban on retroactivity, and that they had the time of the judgment or in the intermedi- crime or worsening punishment. In a show- been wrong to say otherwise. ate time, the more favorable law will always ing of restraint, the justices declared that be of application” (emphasis added). judges were not the mouth of the law, but Perhaps there is another way to conceive neither were they “freethinkers” who could of the discrepancy. The position of Justices :KHQ LQ Bignone, a 3-2 majority granted DOWHUDVWDWXWHDVWKH\VDZILW:KHQWKHSURE- Rosatti and Highton might be construed as Muiña the benefit he demanded, hundreds of lem lies ‘in a statute,’ the solution must come one indicating that the current Congress had thousands took to the streets to protest what ‘by way of a statute’, what had happened in offered its view—on par with that of the they considered an affront to the social and the case. Each institution—the Court and Court’s—on whether the “Two for one” stat- legal consensus on memory and justice re- Congress—had said its piece when it was its ute must apply taking human rights law and garding past human rights violations. Days turn to speak, as is appropriate in a republic, constitutional law into consideration, and after the decision, and to prevent it from and the Court therefore had to uphold Con- that the Court should accept that view. This applying to similar cases, a unanimous Con- gress’s view. would be compatible with a type of “depart- gress passed a so-called “interpretative” stat- mentalist” perspective of constitutional in- ute, saying that the “Two for one” rule had Justice Rosenkrantz stuck to his position in terpretation, under which this is an activity never been meant to apply to cases involving Bignone, becoming the only dissenter. He that all three branches share equally. If this human rights abuses. considered the new statute unconstitutional, were these justices’ position, it would mark a since its aim was not to clarify an obscure change in the way justices conceive of con- :HUHPDUNHGODVW\HDUWKDWWKH&RXUWZRXOG clause in the clear-enough “Two for one” stitutional adjudication. But this would be have to analyze the validity of this statute, statute. The new statute established that the reading too much into both Justices Rosatti which it did in 2018 in a case known as latter did not apply to human rights viola- and Highton’s vote and Congress’s own per- Batalla due to the appellant’s name.7 The tions, so the presupposition was that it did ception as a constitutional interpreter. question the Court addressed was whether apply originally to those cases. He added that its previously announced criterion should the new statute was invalid even if seen as
7 Hidalgo Garzón, Carlos del Señor y otros FLP 91003389/2012/TO1/93/1/RH11 [2018].
10 | I•CONnect-Clough Center 2. Asociación Francesa: minimalism and cial and economic rights agenda, something and not the Executive, to decide on the for- strict-construction that would be authorized or mandated by a mula.11 The SSA had based its authority on A case from 2018 further illustrates the in- thick rights enumeration. However, it has de- a statutory provision from 1993 granting it terpretative battles at the Court. A medical cided a few consequential cases. The Blanco the power to “apply, monitor and oversee” doctor and a hospital were found responsi- decision,8 announced in December, was the the pension system. For the Court, however, ble for malpractice that occurred in 1994, as most significant: it involved the Executive’s this could not be interpreted as a delegation a result of which a baby girl had been born authority to establish an adjusting formula to the SSA of the formula-setting authori- with spastic cerebral palsy. The hospital filed to update pensions. This arithmetic opera- ty, since, in 2008, Congress had eliminated for bankruptcy, and, given her condition, the tion defines how much money retirees will from the statute an explicit delegation to child’s parents asked the bankruptcy judge receive and how costly the state-run pension create an index, establishing itself a new that they be paid with priority over any other system will be, a sensitive question for any one to be applied for future adjustments. credit, even if this meant altering the ranking government.9 Now, since Congress was silent regarding established by statute. They said that several the formula to update salaries before 2008, conventions on par with the Constitution— The decision in Blanco must be read against the Court fell back on a previous decision in including the Convention on the Rights of the backdrop of an economy almost perpet- which a Court-mandated index was used to the Child, mandating to privilege the “best ually in crisis, with inflation levels eating up calculate a plaintiff’s pension.12 interest” of the child—demanded that reclas- much of the income of retirees, hundreds of sification. thousands of whom initiate legal actions to Justice Rosenkrantz dissented. He argued dispute the way their pensions are calculat- that the Court had traditionally recognized In a 3-2 decision, the Court upheld a lower ed. Blanco should also be read within the in Congress a broad authority to decide how court’s denial of the request. Justices Rosen- context of an over a decade-long case law to organize the social security system, an krantz, Highton, and Lorenzetti said that in which the Court underscored the constitu- authority Congress chose to exert on some only legislators could alter the bankruptcy tional principle of “mobility” in social secu- occasions and delegated on others.13 A partial statute’s ranking. Though several obligations rity (section 14 bis), according to which pen- delegation to the SSA still existed because concerning special treatment of children sions are to be adjusted to keep a “reasonable Congress had remained silent regarding the flowed from human rights conventions, it proportion between worker’s incomes and question of how to update pensions before was not possible to derive from them a spe- those of retirees.”10 2008.14 He rejected the index chosen by the cific recognition of a special privilege when majority, and opted to defer to the Executive a credit was involved. Justices Maqueda and In 2016, Congress acknowledged that the since the SSA’s formula fell within the con- Rosatti each filed a dissent, rejecting such state owed a proverbial debt to retirees and stitutional power vested in the Executive to strict constructionism. Maqueda emphasized offered a voluntary adjustment program. issue instructions and rules “necessary for the absolute vulnerability of the child and :KDWZDVDWVWDNHLQBlanco was the author- the enforcement of the laws of the nation said that the claim was meant to protect her ity to establish an adjustment formula of the [.…]”15 Blanco’s claim could only succeed essential rights to life and the enjoyment of now-devalued salaries to be used as the ba- if the formula was shown to be substantially a level of existence adequate for her devel- sis to calculate the pension of plaintiffs who flawed, something he had not proven.16 opment. Together with the obligations stem- had not signed into that program. The Social ming from the Constitution and human rights Security Administration (SSA, part of the Rosenkrantz’s dissent appears as an exer- law, this meant that the statute establishing Executive) vindicated its authority to choose cise of self-restraint in a matter with huge a ranking had to be struck down for not al- the formula via an administrative decision. financial implications for the government. lowing an exception that placed the credit in The SSA’s chosen index coincided with that He said that “the most delicate mission for question on top of others. In a departure from of the voluntary program, but this entailed a the judiciary [was] to keep itself within the his stance of restraint announced in Batalla, lower pension for Mr. Blanco than the pen- boundaries of its jurisdiction.…” 17 On the Justice Rosatti largely agreed. sion he would get under the index devised by other hand, by insisting it was for Congress a lower court. and not the Executive to settle the matter, 3. Blanco: Pensions under ever-recurring the majority was willing to limit the gov- crises After analyzing a complex web of regula- ernment. The majority said that “legislators So far, under its current configuration, the tions, the majority (all justices but Rosenk- [were] better suited to make real the goals Court has seemed unwilling to develop a so- rantz) considered that it was up to Congress, of our constitutional text.” In mandating
8 Blanco, Lucio Orlando CSS 42272/2012/CS1-CA1 [2018]. 9 The state-run pension system coexisted with a private system from 1993 to 2008, when the entire system was renationalized. 10 Blanco, ibid., par 12, Badaro, Adolfo 329 Fallos 3089 [2006], Badaro, Adolfo 330 Fallos 4866 [2007], ,SSPɈ(SILY[V1VZt-HSSVZ 1914 [2009]. 11, 12 Blanco, ibid 13,14 ,15,16 Blanco, ibid (Rosenkrantz’s dissent).
2018 Global Review of Constitutional Law | 11 that pensions were to be adjusted by stat- which federal bodies must treat provincial V. FURTHER READING ute, the Constitution “combine[d] the ide- authorities when they reasonably exercise al of representation with the fulfillment of the autonomy accorded by the national Con- Arballo G, ‘La Corte actual: participación, 18 22 social rights.” Unless Congress chooses stitution. (A case from 2003 also had con- solistas, mayorías frecuentes’ (Saber Leyes another formula, the Court’s criterion will cluded that the DSV system did not violate no es Saber Derecho, February 5, 2019) 23 apply to tens of thousands of similar cases. the national Constitution. ) The Court still
17, 180IPK 19 Unión Cívica Radical de la Provincia de Santa Cruz CSJ 004851/2015/RH001 [2018]. 20 Constitution of the Province of Santa Cruz, Section 114. 21 12 | I•CONnect-Clough Center Austria Anna Gamper, Univ.-Prof. Dr. University of Innsbruck, Austria I. INTRODUCTION constitutional. Finally, Austria took over the Presidency of the Council of the European 2018 was a busy year in terms of Austrian Union for the second half of 2018 (for the constitutional law. First and foremost, the third time, after 1998 and 2006)—a difficult year marked the centenary of the Republic task in times of crisis, in particular with re- of Austria, founded in 1918 (formerly as gard to Brexit, migration and fiscal issues. AUSTRIA “German-Austria”) after the end of the First :RUOG:DU (YHQ WKRXJK WKH )HGHUDO &RQ- II. MAJOR CONSTITUTIONAL stitutional Act (Bundes-Verfassungsgesetz; DEVELOPMENTS hence: B-VG) was only enacted in 1920, the enactment of the laws pertaining to the The Austrian Federal Constitution is not a “provisional constitution” as well as the trig- codified constitution incorporated in a sin- gering of the federal system, which both fell gle document, but consists of approximately into the transitory period of 1918/19, were 500 fragments (laws, single provisions, sev- given due regard during the jubilee year. As eral state treaties, certain laws enacted prior to more recent developments, the new Con- to 1920), all of which are endowed with the servative coalition government, which had formal rank of federal constitutional law. been appointed at the end of 2017, launched Accordingly, constitutional reforms often do several reforms of constitutional impact not just refer to the main constitutional doc- WKDW ZLOO EH GLVFXVVHG LQ WKLV UHSRUW:KLOH ument, i.e., the B-VG, but also other piec- some of these reforms have not come into es of federal constitutional law. Thus, the force (or even passed the legislative proce- most important constitutional reform project dure) yet, others already have or will do so launched by the new Federal Government in in early 2019. However, since the coalition 2018 did not just amend the B-VG but also government only holds a simple majority in other parts of federal constitutional law. The the National Council (the lower chamber of respective constitutional bill1 was passed at the Federal Parliament), the consent of one the end of 2018 and its entry into force is or more of the opposition parties is necessary partly set in 2019, partly at a later date. Its in order to pass constitutional legislation. main concern is a reform of the highly com- Moreover, the Austrian Constitutional Court plicated allocation of powers between the delivered a number of important judgments federation and the nine constituent Länder that dealt with issues such as minimum so- (states). Art 12 B-VG, which enlists several cial aid, asylum seekers, citizenship, parlia- subject matters for which the federation is mentary investigation committees and inter- responsible to enact framework laws, while sex people, as will be reported below. These the Länder are entitled to pass implementing cases demonstrate the varieties of “dialogue” laws and to execute them, will in the future between the lawmaker and the Constitution- apply only to a few politically controver- al Court, ranging from the repeal of laws to sial subject matters, such as social aid.2 In constituent interpretation to deference by turn, most of the enlisted matters were either the lawmaker in order to find out what the transformed into exclusive federal subject Court, among different options, considers 1 BGBl I 2019/14. 2 See below III.1. 2018 Global Review of Constitutional Law | 13 matters under Art 10 B-VG or into pow- laws and regulations that should not enter currently unclear whether the qualified quo- ers under the residuary competence of the out of force. rum and majority required for this constitu- Länder (Art 15 para 1 B-VG). Even though tional provision will be met. The question the shared type of competence, which Art 12 Other constitutional amendments referred, also is whether a constitutional amendment B-VG enshrines, was not totally abolished, among minor legal issues, to adaptations re- would at all be required for the enactment of the amendment sought to make the alloca- quired by the General Data Protection Reg- this provision. The provision would likely tion of powers clearer and more coherent. ulation,4 which provides legal protection by interfere with the freedoms of religion and Inasmuch as the transformed subject matters the administrative courts of the federation opinion—if children at that age can be pre- became either part of the exclusive federal or and the Länder, the Administrative (Appeal) sumed to be able to exercise those rights—as Länder competence, the reform was neither Court and the Constitutional Court. The pro- well as the right to private life or the right over-centralistic nor just Länder-friendly, posal to pass a headwear ban for elementary of parents to ensure school education and which enabled the political compromise re- schools (apart from a similar ban for nursery teaching in conformity with their own re- quired for constitutional approval. The same schools that fell into the competence of the ligious and philosophical convictions. All amendment, moreover, eliminated the mutu- Länder that, in a formal agreement with the these rights are entrenched in the ECHR and al approval rights of the federation and the federation,5 obliged themselves to enact such its Protocol No 1, which in Austria form part Länder, respectively, regarding the bound- bans) was politically much more contested. of federal constitutional law. At the same aries of district administrative authorities, The coalition parties in the National Coun- time, however, the ban might exactly protect which are now exclusively regulated by the cil initiated the respective amendment to the the freedoms of religion, opinion and private governments of the Länder and those of the School Teaching Act at the end of 2018, i.e., life, inasmuch as children must not be forced district courts, which are regulated by the a constitutional provision that would require by others to cover their heads, as well as fur- Federal Government. Likewise, the amend- a qualified quorum and majority in the Na- ther the equality between men and women ment includes some other minor issues of a tional Council.6 An Anti-Face-Veiling Act7 and other important public interests, such as deregulatory and clarifying nature. had already been enacted as an ordinary law social integration. Also, the ECtHR’s cases under the previous Federal Government. Köse and Others v. Turkey and /H\ODùDKLQY A deregulatory effect was also intended by :KLOH WKH SXUSRVH RI WKLV$FW KDG EHHQ WR Turkey [GC] show that a headwear ban may the Second Federal Law Clarification Act, 3 generally ban the veiling of faces in public be legitimate under certain conditions. which was, however, passed as an ordinary places, which, inter alia, applies to the burqa law. According to this Act, all federal laws or niqab, the new amendment is concerned III. CONSTITUTIONAL CASES and regulations entered out of force by 31 with a more specific ban: under ten-year- December 2018 unless they fell under ex- old pupils in elementary schools would be In recent years, the Austrian Constitution- ceptions mentioned in the Act itself (e.g., prohibited to wear head-covering garments al Court has had to deal with a couple of federal constitutional laws or provisions) or based on ideology or religion, which goes thousand cases per year, most of which are were mentioned in the schedule to this Act. beyond the prohibition of face veils and, rejected for formal or substantive reasons.8 Even though the aim to decrease the num- inter alia, refers to ordinary headscarves as In 2018, many cases dealt with violations of ber of federal laws and regulations—the well. At the same time, the draft provision rights of asylum seekers or persons entitled law of the Länder was not concerned—was emphasizes that the ban seeks to implement to the right of asylum, while the Constitu- generally welcomed, the Act was severely certain constitutional and educational values tional Court also held that persons with sub- criticized for its technical design: the main such as the equality of men and women or sidiary protection status were not entitled to concern was that important laws or regula- the social integration of children in accor- the same rights (more concretely, the right tions might be overlooked and accordingly dance with Austrian traditions. In case of a of family reunification) as persons belong- not mentioned in the schedule, and would violation of the ban, the parents would be ing to the latter group. The Constitutional thus automatically enter out of force. For asked to attend a briefing by the responsible Court also dealt with numerous other issues, reasons of legal clarity and certainty, it was authority in order to be informed about the ranging from the review of elections to the suggested to, vice versa, enlist those laws reasons of the violation and their respective constitutionality of cash machine fees. In and regulations that should enter out of force responsibility. Only if the violation was con- this section, a selection of decisions will be instead of enlisting those that should. Still, tinued or the parents ignored the invitation examined more closely since they raised par- the schedule enlists on 240 pages just those more than once would they be fined. It is ticular attention. 3 BGBl I 2018/61. 4 BGBl I 2018/22. 5 Art 3 para 1 Vereinbarung gemäß Art. 15a B-VG zwischen dem Bund und den Ländern über die Elementarpädagogik für die Kindergartenjahre 2018/19 bis 2021/22, BGBl I 2018/103. 6 495/A XXVI. GP. 7 Anti-Gesichtsverhüllungsgesetz, BGBl I 2017/68. 8 See, most lately, the Constitutional Court’s annual report 2017, https://www.vfgh.gv.at/downloads/taetigkeitsberichte/VfGH_Taetigkeitsbericht_2017.pdf. 14 | I•CONnect-Clough Center 1. VfGH 7 March 2018, G 136/2017-19 (Lower the law discriminated between other persons had a wide margin of appreciation to decide Austria); 27 June 2018, G 415/2017 (Vienna); with regard to their stay in Austria, e.g., be- on social aid systems and its limits, it also 1 December 2018, G 308/2018-8 (Burgen- tween persons entitled to asylum that could emphasized that the lawmaker, when provid- land); 11 December 2018, G 156/2018-28 not return to their own country and other ing for social aid, had to consider the min- (Upper Austria): Minimum Social Aid migrants that could. Moreover, the Constitu- imum requirements of a life led in human tional Court struck down as unconstitutional dignity. The Constitutional Court, however, Social aid is a shared competence under Art the provision according to which social aid repealed a provision of the Upper Austrian 12 B-VG, entitling the federation to enact for persons living in the same household law which, when limiting minimum social framework laws and the Länder to enact im- should, as a total, not exceed 1,500 euros. aid per household, did not distinguish be- plementing laws as well as to execute them. :KLOHWKH&RQVWLWXWLRQDO&RXUWDGPLWWHGWKDW tween persons living in the same household As long as the federation does not pass a the lawmaker could, in principle, reduce so- who receive minimum social aid from those framework law, however, the Länder will cial aid in the case of more persons living that do not. have full legislative competence. So far, the in the same household because of decreasing federation has not passed a framework law “synergetic” costs, this ought to be done rea- 2. VfGH 15 June 2018, G 77/2018-9: Entry of under this competence—which will, howev- sonably and in accordance with the concrete Intersex Persons into Civil Register er, change soon—so that all Länder enacted and individual need of the respective number their own laws on minimum social aid. Since of persons. The fact that families additional- In this case, an intersex person sought to applications for minimum social aid have ly receive “family aid” and that the provision have their gender entry in the Austrian Civil strongly increased with the large number of made some exceptions was not considered a Register changed to a term other than “male” persons entitled to asylum, the Länder react- sufficient justification. or “female”. The request was refused by the ed in different ways in order to reduce costs. administrative authority and the refusal con- In 2018, the Constitutional Court examined In the Burgenland case, the Constitution- firmed by the Upper Austrian administrative the relevant legislation of four Länder. The al Court decided in a very similar manner. court against which a complaint was lodged compatibility of these models with the Con- Additionally, the Court held that Art 1 of the at the Constitutional Court. Sec 2 para 2 no 3 stitution attracted vast attention, since the Federal Constitutional Act on the Rights of Civil Register Act11 mentions just “gender” Federal Government simultaneously pre- Children10 had been violated because the among the general Civil Register data, but pared a draft bill for a new federal frame- limit of 1,500 euros per household particu- does not specify between different genders. work law (which, to some extent, resembles larly affected large families with more chil- The Constitutional Court found it possible the Upper Austrian model).9 In this dialogue dren. In both cases, it is interesting to find to interpret this provision consistently with between different legislatures and the Con- how the Constitutional Court applies the the Federal Constitution inasmuch as the stitutional Court, the latter’s decisions prove equality principle, namely (just) with regard Civil Register authorities should register a particularly important yardstick for the to the relation between Austrian citizens the individual gender requested by a person constitutional design of this new law, with among each other and between other persons and not just “male” or “female”. The au- the examined Länder laws serving as its among each other. thorities might, however, verify whether the “laboratories”. requested entry term was adequate—terms In the Vienna case, the Constitutional Court such as “inter”, “open” or “diverse” were In the Lower Austrian case, the Constitution- repealed a provision that denied minimum suggested—since persons were not entitled al Court struck down provisions that, with social aid to underage Austrian citizens who to choose any kind of term for their gender. regard to the amount of social aid, discrimi- can neither themselves receive such aid nor The Constitutional Court based its decision nated against those beneficiaries who, within receive it from parents if they are not entitled on Art 8 ECHR, which forms part of Aus- the last six years, had stayed in Austria less to it. trian federal constitutional law, arguing that than five years. The Constitutional Court a restriction to have one’s gender entry lim- held that this provision, which also referred In the Upper Austrian case, the basic mod- ited to just “male” or “female” would not to Austrian citizens among others, discrim- el of minimum social aid was found to be be proportional and thus violate the right inated between Austrian citizens living in constitutional because it does not absolutely to one’s own gender identity. The Constitu- Austria and those living elsewhere and that limit the minimum social aid per household tional Court did not, however, deal with the this different treatment could not be reason- but allows additional aid for additional per- numerous provisions in the B-VG that just ably justified, since it was not understandable sons living in that household, even though mention males and females—e.g., with re- why a stronger motivation to work (instead the additional aid is significantly lower than gard to voters or the obligation of male cit- of receiving social aid) should be needed the basic aid due to “synergetic” costs of per- izens to military or civilian service. Neither for Austrian citizens living outside Austria. VRQVOLYLQJLQWKHVDPHKRXVHKROG:KLOHWKH did the Constitutional Court point out that Likewise, it was held unconstitutional that Constitutional Court held that the lawmaker it had been the same Court that, in VfSlg 9 104/ME XXVI. GP. 10 Bundesverfassungsgesetz über die Rechte von Kindern, BGBl I 2011/4. 11 Personenstandsgesetz, BGBl I 2013/16 as amended by BGBl I 2018/104. 2018 Global Review of Constitutional Law | 15 18.929/2009, had acknowledged that the provision was held to be unconstitutional by tus of (allegedly) Turkish citizens who thus Austrian legal system recognized just male a lesbian complainant who had ended her re- would have to lose their Austrian citizenship. or female gender. Moreover, consistent inter- lationship with the biological mother of the As a consequence, the Länder authorities re- pretation should only be applied in the case child, but nevertheless wanted to adopt the sponsible for carrying out the federal Citi- of doubt left by other interpretive methods. child afterwards, without, however, replac- zenship Act began to individually examine Sec 77 Civil Register Act, however, provides ing the biological mother. According to the the nationality status of persons mentioned that all male denominations in this Act apply Constitutional Court, a literal interpretation in the list, which, in some cases, entailed a to females as well. The Court considered this of the provision (allowing the replacement deprivation of Austrian citizenship. In a case provision to have been made just for reasons of a biological parent only by an adoptive where the Viennese administrative court had of linguistic equality, eclipsing its meaning parent of the same gender) would indeed vi- rejected the complaint of a person who had with regard to the interpretation of “gender” olate the right to equality and Art 8 ECHR. been deprived of his Austrian citizenship be- in Sec 2 para 2 no 3 of the same Act. Still, But the Constitutional Court also held that cause of an alleged reacquisition of his for- it would be paradoxical to assume that a it was possible—and even required—to con- mer Turkish citizenship, a complaint against law recognizes more than two genders and strue the provision consistently with these that decision was lodged before the Consti- at the same time requires that all terms re- constitutional rights inasmuch as an adop- tutional Court. The Constitutional Court held lating to persons for which the male term is tive father could also replace a biological that the complainant had been violated in his used applies to females as well, but not to a mother and an adoptive mother a biological right to equality because the administrative third gender. The same problem will arise in father. Even though neither the wording nor court had used the list as a token of evidence, numerous laws that expressly apply to two the explanatory materials suggested this re- even though it could not be proven that the genders only, e.g., in the context of gender sult, the Constitutional Court applied consis- list was real and correct. Ex officio investi- equality and non-discrimination. It is not at tent interpretation instead of striking down gations, which would have to be led by the all clear how such provisions should be dealt the provision. This is one example where authorities, could not be supplanted by such with just by consistent interpretation, which the Constitutional Court applies consistent a list. It was the obligation of the authorities shows that this is in truth an issue for the interpretation as a “primary” instead of—as to prove that the person was a Turkish citi- lawmaker. in some other cases—subsidiary interpretive zen, whereas it was not the obligation of that method that seems to express deference to- person to prove that he was not a Turkish cit- 3. VfGH 3 October 2018, G 69/2018-9: wards the lawmaker whose provision thus is izen. Even though many enquiries had been Adoption of Children by Homosexual not struck down, while the reasons and mo- made, neither the origin and truth of the list Couples tives intended by the lawmaker are neverthe- could be clarified nor could the complainant less totally reversed. obtain relevant evidence from the Turkish Already in 2017, the Constitutional Court authorities that he was not a Turkish citizen. had repealed a provision of the Austrian Civ- 4. VfGH 11 December 2018, E 3717/2018- The Constitutional Court, repealing the ad- il Code which prohibited homosexual cou- 42: Deprivation of Citizenship ministrative court’s decision, concluded that ples to marry, even though the same Court as long as the authorities could not prove had, in previous cases, upheld the difference In 2017, the right wing Freedom Party sub- the Turkish citizenship of the complainant, between marriage (for heterosexual couples) mitted a list to the Federal Ministry of the one had to assume that he was not a Turk- and registered partnership (for homosexual Interior that contained the names and other ish citizen and should therefore not have lost couples).12 Substantively, however, the deci- data of more than 66000 persons of allegedly his Austrian citizenship. The Constitutional sion is also a consequence of previous judg- Turkish citizenship who were also supposed Court also mentioned that a concerned par- ments in which the Constitutional Court al- to be Austrian citizens. According to the ty was obliged to a “certain participation” lowed homosexual couples to receive sperm Austrian Citizenship Act,16 a person gener- in the procedure if “justified by ex officio donation13 and to adopt children14. The de- ally—unless certain exceptions apply—los- investigation results and not exceeding tol- cision made in 2018 follows in the same es Austrian citizenship when obtaining the erable limits for the concerned party”, but strain: § 197 para 3 Austrian Civil Code15 citizenship of another state. The Freedom did not spell out what this meant in detail. provides that if a child is only adopted by Party claimed that it had received the list However, since many cases will be similar an adoptive father (or an adoptive mother), anonymously and that the list, showing the and since, as long as the Turkish authorities all legal family relations to the biological current status of allegedly Turkish voters in do not cooperate, it will not be clear wheth- father (or mother) will cease to exist. This Austria, could demonstrate the illegal sta- er the respective persons are in truth Turkish 12 VfGH 4 December 2017, G 258/2017 ua (G 258-259/2017-9). 13 VfSlg 19.824/2013. 14 VfSlg 19.942/2014. 15 Allgemeines bürgerliches Gesetzbuch, JGS 1811/946 as amended by BGBl I 2018/100. 16 Staatsbürgerschaftsgesetz, BGBl 1985/311 as amended by BGBl I 2018/56. 16 | I•CONnect-Clough Center citizens, the Austrian authorities will not be olation of their personality rights because V. FURTHER READING allowed to deprive such persons of their Aus- certain documents that concerned them had trian citizenship. been forwarded to the investigation commit- Gerhard Baumgartner (ed), Öffentliches tee. According to the Court, the complaints Recht.-DKUEXFK 1:9 5. VfGH 14 September 2018, UA 1/2018-15 had been delayed and, moreover, incorrectly (first BVT case); 11 December 2018, UA addressed to the Constitutional Court that Hans Georg Ruppe, ‘Ehe für alle - Grun- 2/2018-17 (second BVT case); 11 Decem- was not competent to decide on such an ap- GUHFKWHMXGLNDWXUDXIQHXHQ:HJHQ"¶ ber 2018, UA 3/2018-30 (Eurofighter case): peal since their personality rights had not JBl 428 Parliamentary Investigation Committees been violated. Karl Korinek and others (eds), Österre- In accordance with its new competence un- IV. LOOKING AHEAD ichisches Bundesverfassungsrecht (R 14, der Art 138b B-VG, the Constitutional Court August 2018) had to decide on appeals raised in the context The Federal Government has already laid of two parliamentary investigation commit- down an ambitious program for 2019, which Benjamin Kneihs/Georg Lienbacher (eds), tees. In 2018, the National Council estab- will, among other issues, focus on tax re- Rill-Schäffer-Kommentar Bundesver- lished these committees with regard to the form, digitalization and health matters. At fassungsrecht (R 21, August 2018) examination of two separate issues, name- the same time, it may be expected that the ly the non-transparent purchase of military Constitutional Court will decide on a number :DOWHU %HUND Verfassungsrecht (7th edn, aircraft (“Eurofighter case”) and the contro- of laws passed under the new government ei- Österreich 2018) versial police raid on the Federal Constitu- ther on the appeal of the parliamentary oppo- tion-Protection and Antiterrorism Agency sition or on individual appeal. Among these, (“BVT case”). In the Eurofighter case, the the social insurance reform, the planned pro- respective investigation committee itself ap- hibition of headwear in elementary schools pealed to the Constitutional Court in order to and the minimum social aid federal law are require the Finanzprokuratur (the legal advi- likely to be dealt with by the Court. After the sory body of the Republic) to submit all doc- intense election years 2016-2018, no regu- uments on the “Task Force Eurofighter”. The lar elections at federal or Länder level will Court held that the Finanzprokuratur had to take place in 2019 except the election of the oblige this request. In the first BVT case, the parliament of the Land Vorarlberg. In May Constitutional Court was appealed to by the 2019, however, Austrian citizens will vote in other investigation committee and accord- the EU parliamentary elections. Last but not ingly required the Federal Minister for the least, 2019 will be the centenary of the first Interior to submit at least certain documents constitutions of the Austrian Länder under to the committee. In the second BVT case, the new Republic. the Constitutional Court rejected the appeal made by complainants who asserted the vi- 2018 Global Review of Constitutional Law | 17 Bangladesh Ridwanul Hoque, Professor of Law at the University of Dhaka Sharowat Shamin, Lecturer in Law at the University of Dhaka I. INTRODUCTION portant decisions, enactments, controversies in politics and civic good-governance move- Bangladesh witnessed heaps of constitution- ments. The third part of this report analyzes al law developments in 2018, with the much- some select constitutional cases, followed by BANGLADESH talked-about general elections that were held conclusions in part IV. on 30 December. In recent years, especially since 2014, fair, participatory, and peaceful II. MAJOR CONSTITUTIONAL elections appeared to be a daunting chal- DEVELOPMENTS OHQJHIRU%DQJODGHVK¶VGHPRFUDF\:LWKWKH 11th parliamentary elections on the calendar, 11th General Election therefore, the whole year of 2018 remained occupied with tensions, debates and contro- Bangladesh is a parliamentary democracy versies in every sphere of public and private with general elections every five years. Ma- life. The Supreme Court, too, was extraor- jor opposition boycotted the 10th general dinarily busy with bail petitions of detained election of 5 January 2014 as their demand politicians and ordinary people as well as for the re-installation of the election-time electoral petitions. On the other hand, two caretaker government system was not met. major social movements, by university and The 15th Constitutional Amendment abol- school students, for reform of reservation in ished the caretaker system in 2011 after the government jobs and road safety, received Supreme Court declared it unconstitutional enormous mass support as they aimed at for being undemocratic. The 2014 elections mending some long-standing good-gover- led to a practically one-party government, nance ills, but were mishandled by the gov- which made the year 2018 an extremely sig- ernment. nificant year for participatory democracy. During 2018, the major opposition Bangla- At the legislative front, the Parliament, over- desh Nationalist Party (BNP) led by Begum whelmingly dominated by the ruling party, Zia remained busy battling legally and polit- enacted a controversial digital security law, ically for her release at least on bail. Many whittling down all critiques and protests other senior leaders of BNP also remained from the rights activists and social actors busy attending courts. Until the last moment, who claimed it was anti-rule of law and the party remained undecided as to whether would stifle online freedom. The Supreme to take part in the election at all or without Court continued with its previous year’s ac- the party leader participating. tivism in the area of compensatory justice but played a largely passive role in protecting Keeping suspense alive for the whole year, civil and political rights. Promisingly, how- all political parties finally participated in the ever, it handed down two leading decisions election after 10 years, the democratic credi- concerning sexual violence prosecution and bility of which was widely questioned. BNP the protection of rape survivors. joined the election with an electoral alliance with major opposition parties except one that :HVWDUWZLWKPDMRUFRQVWLWXWLRQDOGHYHORS- joined the ruling party block. This strategic ments of 2018 in part II, which addresses im- alliance, called Oikya Front (United Front), 18 | I•CONnect-Clough Center was helmed by Dr. Kamal Hossain, the re- ious categories of citizens, of which 30% onlookers, attacked the protesting students nowned international law scholar and former alone were for children and grandchildren indiscriminately. Panicked and traumatized, chair of the country’s constitution drafting of liberation war fighters and just 1% for the students went home, but left a big ques- committee. They consistently accused the physically challenged people. The reform tion mark on their constitutional rights to or- government and the law enforcers of car- had been demanded for years, but this year’s ganize and freedom of expression. rying out unlawful detentions, arrests and movement was refuelled by a clash between lawsuits against their leaders and supporters. the reformists and the ruling party’s student This was the movement where a renowned They also blamed the Election Commission wing, also lately invaded by the police. The photojournalist, Dr. Shahidul Alam, was for not ensuring a level playing field for all. students blocked major streets in Dhaka as a picked up from his residence by undercover The opposition alliance won only eight seats protest against police attacks on them. Soon, policemen on the charge of instigating the out of 300, while the ruling party secured the movement spread nationwide and re- student movement. Dr. Alam’s ‘fault’ was 259 seats on their own and a total of 288 ceived civil society support. that he took photos of the protests and com- seats with allies. mented that the attackers were from the rul- Leaders and participants of the movement ing party. Charged under the infamous sec- National and international media reported were arrested, attacked and prosecuted. One tion 57 of the ICT Act 2006, Dr. Alam was vote rigging and deadly violence, which cost reportedly disappeared and was killed. Dia- denied justice for over 100 days, after which at least 20 lives, including a security force logue with the reformists and administrative he was released on bail. member.1 Moreover, despite the opposition’s committee recommendations all went in defiance, a controversial ordinance autho- vain when the Prime Minister declared ab- The two movements pointed a finger at the rized the use of electronic voting machines olition of the quota system altogether a few ailing condition of freedom of expression in (EVMs). EVMs were used for the first time months before the election. This made both Bangladesh. The quota reform movement in the country for six electoral seats, but they the reformists and the beneficiaries unhappy. could have given rise to a healthy constitu- proved faulty. Finally, however, a notification in October tional dialogue on affirmative action, which, abolished the quota system in the upper two unlike in India, has never been a prominent Overlooking the opposition’s demand for tiers of government jobs. issue in the country. It has never made any fresh elections, the new Parliament, exclud- participatory and deliberative legislation to ing those eight opposition members-elect, The second student protest for safe roads carry out constitutionally authorized affir- commenced its journey. The government began in the background of a horrific road mative measures for weaker or underdevel- gives opposition party status to a party that accident on a busy Dhaka street on 29 July, oped sections of its citizens. The government ran in the elections as an ally of the ruling when two schoolchildren, awaiting their bus, clearly missed out on an opportunity to enact party. This echoes the same democratic de- were killed by a speeding bus. It was racing such laws to realize one of its constitutional cay that was seen in the 10th Parliament with another to pick up more passengers goals: social justice and inclusive develop- except that the appointed opposition party from the stop. The average daily death count ment. The road safety movement, however, has not taken any membership in the current on Bangladesh roads is 20, which makes can be said to have had some impact, albeit Cabinet. them among the deadliest. This time, how- minimal, as a new transport law was hur- ever, fellow students immediately occupied ried-up. It remains faulty, however, and its Student Movements the streets, vandalized transports and com- making was devoid of public participation. menced a movement demanding justice and On a positive note, the police now enforce In April and August, two major student pro- traffic law reform. The movement spread traffic rules on a more regular basis and more tests took place. The first one demanded ref- throughout the capital the very next day. The strictly than before. ormation of the quota system in public em- teens realized that the flouting of traffic rules ployment and the second was the road safety and the widespread and open-secret corrup- Digital Security Act of 2018 movement by the high school kids. tion in the licensing system were the main reason for such clandestine accidents. For Amid huge criticism at home and abroad, the The Constitution permits positive discrimi- days, they kept the entire capital city seized Parliament enacted the Digital Security Act nation to benefit women or children, or any and continued to regulate the traffic system, 2018 in October, many provisions of which ‘backward section’ of the people (Art 28) sometimes assisting the traffic police. They contradict constitutional freedom of expres- to ensure constitutional equality (Art 27) as defied several calls for a recess, leaving the sion. The news editors’ forum has been pro- well as equal participation for all citizens in government worried. After over a week, testing since the drafting of the law, and they public service (Arts 28-29). However, 56% this protest was also brutally suppressed, as now demand that at least nine sections of it of government jobs were reserved for var- private individuals, with state agencies as be amended. These provisions, they argue, 1 From among many media reports, see a report in Foreign Policy: https://foreignpolicy.com/2019/01/07/the-world-should-be-watching-bangladeshs-elec- tion-debacle-sheikh-hasina/ (last accessed 14 Feb 2019). 2018 Global Review of Constitutional Law | 19 allow the authorities to shut down any online ics. In 2018, there were several constitutional portal any time and prosecute any person on compensation decisions, both interim and 1. Eunus Ali Akond vs. State: Legality of an the vague allegation of publishing or spread- final. In the case of the traffic accident that original constitutional provision ing rumor or ‘controversial’ information. led to the student movement for road safety, This draconian law sanctions higher fines for example, the HCD in October hurriedly In this case, Art 70 of the Constitution, and prison terms, extending to life imprison- ordered the bus owners involved to pay huge which provides for the anti-defection law, ment. The 2018 Act has in fact ingeniously compensation to the victims’ families. In an- was challenged. Unlike in India where the reenacted the infamous section 57 of the ICT other case, in which 17 patients lost eyesight 52nd Constitutional Amendment introduced Act 2006 that was widely used to silence following their negligent eye surgery at a the anti-defection law, Article 70 was en- online activists and the media mostly in the private clinic, the SCAD affirmed the HCD acted into Bangladesh’s founding Constitu- name of regulating ‘defamatory’ comments decision holding the clinic and a pharmaceu- tion of 1972. That provision, after a couple against political higher-ups and anti-reli- tical company liable to pay 1 million BDT to of amendments, was restored to its original gious writing. each victim. form via the 15th Amendment in 2011. New Judicial Appointments In 2018, a judicial decision sought to forge On the question of admissibility of this chal- certain reforms in the functioning of lower lenge, the HCD handed down a split judg- Prior to the general elections, three High criminal courts. In Md Aynul Haque v. The ment (15 January 2018). Chowdhury J ruled Court Division (HCD) judges, including a State,2 the HCD issued a set of guidelines for for its admissibility, relying on his own ob- female judge, were elevated to the Appellate Sessions Courts, asking them, inter alia, to servation, made in an earlier decision,3 that Division of the Supreme Court (SCAD) af- hold a monthly ‘judicial conference’ to iden- Art 70 was undemocratic. The other judge on ter almost three years since the last appoint- tify and overcome the problems that they the bench, Justice Kamal, summarily reject- ment. This raised the strength of SCAD to confront when dispensing justice. Questions ed the petition and reasoned that an original seven against the approved number of 11. have always remained about the impact of provision of the Constitution was unassail- As we predicted in our 2017 report regard- such pedagogic rulings short of any system- able. Drawing on the Constituent Assembly ing controversiality, the most senior judges atic and viable judicial reform, which is long debates, he further argued that the anti-defec- were superseded too, and one appointee is overdue. In retrospect, we recall that earlier, tion law was a guarantor of democracy. Ka- a brother of a sitting SCAD judge. The ap- in December 2017, the apex court approved mal J was also on the bench that invalidated pointments also had political undercurrents, the disciplinary rules for the junior court the 16th Amendment, but there he refrained and the government seemingly foresaw po- judges, which were later officially notified from raising a constitutional objection to Art litically sensitive issues to come before the after yearlong tension with the Executive. 70. In the present case, the two judges have SCAD, including the issue of bail and the reiterated their respective ideology about the participation in elections of the now interned At the constitutional rights level there were legality of Art 70, which thus raises a seri- opposition leader. Earlier in May, the HCD multiple decisions, but those on gender-based ous question of their impartiality to hear the got 18 new additional judges, and the cre- violence and women’s rights received wider challenge. dentials of many of them were controversial. attention. Regarding the most precious ques- tion of the protection of people’s liberty, life The matter went to a third judge, Justice III. CONSTITUTIONAL CASES and freedom of expression, however, the year Taher, who agreed that Article 70 is a ‘safe- witnessed judicial avoidance and abdication. guard’ for the Bangladeshi democracy, rea- As we noted in the 2017 report, the Supreme One sees almost no proactive civil rights de- soning that an original provision of the Con- Court has in recent years developed a prac- cision in 2018, which was marred by mass stitution is not subject to judicial review. tice of awarding compensation for what are arrests, false prosecutions and suppression The judge cited the SCAD’s old observation in fact ordinary torts, such as medical negli- of freedom of expression. Interestingly, the (reported in 19 BLD (AD) 276) that Art 70 JHQFHDQGURDGDFFLGHQWV:HDUHFULWLFDORI year 2018 saw a few cases in the field of so- in the original Constitution was a pragmatic this trend because it does not meet the test cial rights that are judicially non-enforceable solution for democratic durability. of ‘gross’ violation of constitutional rights in Bangladesh (Art 8(2)). that the SCAD laid down for such a remedy 2. Disqualifications for election to Parliament (Bangladesh v. Nurul Amin (2015) 3 CLR Below, we first set out the leading cases con- (AD) 410). The new constitutional tort juris- cerning structural issues and then analyze At the end of 2018, the Supreme Court faced prudence, however, has become quite popu- civil rights cases, followed by social/collec- a surge of cases concerning electoral dis- lar amongst legal practitioners and academ- tive rights decisions. putes, including the much-talked-about pe- tition of Khaleda Zia, the opposition chief 2 Criminal Miscellaneous Case No. 20550 of 2014. 3 (K]VJH[L(ZHK\aaHTHU:PKKPX\P])HUNSHKLZO HCD, May 5, 2016, invalidating the 16th Amendment. This was endorsed by the Appellate Division, in which a petition for review of the decision has been currently pending. For details, see our 2016 and 2017 reports. 20 | I•CONnect-Clough Center and a former prime minister, who sought to an earlier decision in which the Court issued run in the general election. In early 2018, a 3. BLAST v Bangladesh: Human dignity of guidelines on how to deal with sexual harass- criminal court convicted Khaleda Zia with rape victims ment at work. The background that led to the five years in prison on several corruption PIL was the rape of an indigenous girl on 21 charges. On appeal, this punishment was ,QWKLV3,/ :31RRI E\VL[ May 2015, who was picked up from a bus raised to 10 years by the HCD, which rea- human rights organisations, a colonial and stop and gang-raped in a running microbus soned that there was no scope for it to take reprehensible system of medical examina- by five men. The victim’s family members a lenient approach to corruption. A further tion of rape victims, called the ‘two-finger- went to three different police stations to lodge appeal has now been pending in the SCAD, test’ (TFT), was challenged on constitutional a complaint, but the police turned them away. the final court of the country. Because of grounds including the ground of violation of Following media reports, the family finally this conviction, Zia could not compete in human dignity. The petitioners argued that succeeded in registering a case, and the vic- the election. Interestingly, however, a politi- the impugned TFT was incompatible with tim was medically examined after three days cian who defected from her party and whose Bangladesh’s international obligations to of rape. Such a delay often results in the loss conviction for corruption was affirmed by protect the victims of sexual offences and of substantive evidence of rape. the HCD in November 2017 (and, like Zia’s prevent their retraumatization. TFT permits case, was on further appeal in the SCAD) doctors to inspect the hymen of any rape sur- In the guidelines published on 22 April 2018, could run in the general election. vivor as well as to test her vaginal laxity to the Court recommended that an online report- determine her previous virginity. ing system for complaints of rape should be The Constitution prohibits any convict from introduced, DNA samples must be sent for participating in the election until after five In April 2018, the HCD banned the inhumane test within 48 hours of the incident and the years of his release (Art 66(2)(d)). However, TFT and held that the test does not have any dignity and privacy of the victim must be the question of whether a person whose con- evidential value or scientific merit. Five maintained at all stages. The Court ordered viction has not yet become ‘final’ with the years after lodging the litigation, the HCD that the guidelines were to be complied with last court’s affirmation can run for election declared the inhumane test to be arbitrary, until legislation is enacted. In short, the Court has yet to be authoritatively decided, unlike discriminatory and violative of fundamental in effect enforced the rape victims’ constitu- the case in India. constitutional rights of rape survivors. The tional rights to equality and life and liberty. decision was arrived at after relying on an On the question of the impact of Art 66(2)(d), expert committee report. Notably, the Court 5. M/S Liberty Fashion Wears v Bangladesh another significant verdict was handed down framed a guideline with eight directives for Accord Foundation (2018) 6 CLR (HCD) on 1 March 2018. A 2014 writ petition, lodged criminal justice actors to follow, at the core 107: :RUNSODFHVDIHW\LQWKHUHDG\PDGH after the 10th general election, challenged the of which lies the protection of victims’ priva- garments industry legality of the office of a ruling party MP cy and dignity. who was released from jail allegedly before In this case, the Court in fact enforced the serving the full length of his conviction, thus 4. Naripokkho v Bangladesh: Effective workers’ collective right to work in a safe invoking disqualification under Art 66(2)(d). prosecution of rape cases environment. The decision is an extraordi- On 6 December 2016, a division bench of nary instance of judicial intervention in a the HCD handed down a split decision. Over ,QWKLV3,/ :31RRI WKH+&' bid to improve the standard of life at work another year later, a one-judge court decided issued directives in the form of an 18-point of millions of garment-industry workers. Af- that the challenge was inadmissible under guideline with a view to ensuring the effec- ter the deadly ‘Rana Plaza Disaster’ in 2013 Art 102 as it involved the resolution of dis- tive prosecution of sexual violence offenders that killed some 1200 workers when an in- puted facts (Shakwat Hossain Bhuiyan v Ban- as well as the protection of rape survivors. dustrial building collapsed, the government gladesh,:3 1R RI 7KH &RXUW This has been a structural reform litigation as established a body with private partners, questionably reasoned that its judicial review well as an abstract judicial review inasmuch including foreign buyers of ready-made authority does not permit adjudication of fac- as the petitioners sought judicial interven- Bangladeshi garments, to overhaul the safe- tual issues. Even a plain reading of Art 102(2) tion to close the gap in the existing practice ty system in the industry. The Bangladesh does not suggest the lack of such authority of investigation and prosecution of rape cases Accord Foundation, a private body, was re- when it comes to the question of constitution- generally, and not any specific remedy for the sponsible for implementing a national plan al legality of any public office. concerned victim. The case indeed built on RIDFWLRQRQILUHDQGEXLOGLQJVDIHW\:KHQ 4 This decision is in line with 4V\SHUH4K(IK\S/HRPT])HUNSHKLZO)3+/*+ ^OPJO^HZKLZJYPILKHZ[OLº+H[HÄU[\YU»PU)HUNSHKLZO PU9PK^HU\S/VX\L º;OL¸+H[HÄU¹;\YUPU)HUNSHKLZO!6WLUPUN 2018 Global Review of Constitutional Law | 21 Liberty Fashion Wears, a private company, (per Ahmed, J). This decision thus marks a in 2019. This year the higher judiciary will was excluded from the scope of this plan of notable exception to the long-standing ab- have to put significant effort to overcome action, they sought constitutional remedies sence of legal and judicial activism on social both internal weaknesses and external pres- under Art 102. The whole issue was, there- and collective rights of the disadvantaged sures, which had been evident in the past few fore, whether the inactions of a private body sections of the people. The decision argu- years. Like the past year, cases of abuses of could be remedied under judicial review ably represents the Constitutional Court’s the newly enacted digital security law will jurisdiction. Article 102(1) allows the en- institutional voice for poor or disadvantaged likely increase, pulling the Court into a test- forcement of fundamental rights against pri- people. Private hospitals in Bangladesh gen- ground to show its ability and willingness to vate bodies, while under Art 102(2), judicial erally refuse to admit road-accident victims, protect freedom of speech and information. review on the ground of breach of legality most of whom are poor. The real but hidden can only be sought against public agencies. reason for such refusals had always been a V. FURTHER READING A judge on the division bench quite uncon- fear of losing earnings. One unique aspect vincingly argued that the private litigant had of the judgment is the enclosure of private Ridwanul Hoque, ‘Eternal provisions in the constitutional rights to enforce (Chowdhury, entities within the remedial framework, who Constitution of Bangladesh: A Constitution J), which the other judge refuted (Kamal, J). will now have to share some of the burden RQFHDQGIRUDOO"¶LQ5LFKDUG$OEHUWDQG%HU- However, both judges ruled that since the of the State vis-à-vis an increasing number til E. Oder (eds.), An Unconstitutional Con- respondent, although a private entity, was of traffic accident victims. Much social and stitution?: Unamendability in Constitutional under the supervision of government author- legal activism will, however, be needed to Democracies (Springer, 2018) 195-229 ities and discharging a public-law function, translate the verdict into a reality. a judicial review would bind them under Art Ridwanul Hoque, ‘Rule of Law in Bangla- 4 102(2). IV. LOOKING AHEAD GHVK 7KH*RRGWKH%DGDQGWKH8JO\"¶LQ Chowdhury Ishrak A. Siddiky (ed.), The 6. Syed Kamal & BLAST v Bangladesh (WP Given that the main opposition party is once Rule of Law in Developing Countries: The No. 1509 of 2016): Enforcement of socioeco- again left out of the Parliament formed af- Case of Bangladesh (London: Routledge, nomic rights ter the 2018 general elections, the year 2019 2018) 18-59 will be of great importance for constitutional PIL’s focus on the realisation of socioeco- law, politics and democracy. Ensuring dem- Ridwanul Hoque, ‘Implicit Unamendabili- nomic rights has remained at an extreme- ocratic practice would likely be a serious ty in South Asia: The Core of the Case for ly low level in recent years. In a landmark challenge for the government. In the 2017 the Basic-structure Doctrine’, in 3 Indian J. PIL decision on 8 August 2018, however, report, we anticipated that the fate of the of Con. & Admin. Law (symposium on the the HCD enforced the right to ‘medical 16th Amendment of the Constitution would doctrine of unconstitutional amendments) care’, which is a non-justiciable state poli- probably hold the heat up in the Court. This (2018) 23-34: 22 | I•CONnect-Clough Center Belgium Luc Lavrysen, Judge at Belgian Constitutional Court and Full Professor at Ghent University Jan Theunis, Associate Professor at Hasselt University and Law Clerk at the Belgian Constitutional Court Jurgen Goossens, Associate Professor at Tilburg University and Associated Fellow at Ghent University Toon Moonen, Assistant Professor at Ghent University Pieter Cannoot, Ph.D. Researcher at Ghent University Sien Devriendt, Ph.D. Researcher at Ghent University 9LYLDQH0HHUVFKDHUW/HJDO2I¿FHUDWWKH%HOJLDQ&RQVWLWXWLRQDO&RXUW BELGIUM I. INTRODUCTION migrant flows, at the UN intergovernmen- tal conference in Marrakesh on 10 Decem- During the last two months of 2018, Belgian ber 2018, and formally endorse it at the UN politics were dominated by controversy on General Assembly on 19 December 2018. whether the Prime Minister could approve In spite of it being non-binding, it is gener- the so-called UN Migration Compact. The ally accepted that the Compact can be used disagreement resulted first in a minority as guidelines for legal developments. In the government and finally led to the resignation end, the Prime Minister both approved and of the federal government. These events are endorsed it, which first resulted in a minority elaborated below, since they constitute the government and finally led to the resignation most important constitutional developments of the government. in Belgium over the course of 2018. Next, the article gives an overview of the main After the federal elections of 25 May 2014, cases of the Belgian Constitutional Court of Flemish parties N-VA, Open VLD and the past year that may be of interest to an &' 9 WRJHWKHU ZLWK :DOORRQ SDUW\ 05 international audience. Finally, the overview established government Michel I. All four looks ahead to the upcoming vacancy in the government parties initially agreed on the Constitutional Court, a number of interesting Compact and PM Michel pledged Belgium’s pending cases and the upcoming electoral support at the UN General Assembly. Fol- period. lowing Austria’s opposition to the Compact and the local elections of 14 October 2018, which led to an increase of votes for the ex- II. MAJOR CONSTITUTIONAL treme right party Vlaams Belang, N-VA (i.e., DEVELOPMENTS New Flemish Alliance, a Flemish nationalist, right-wing political party), and more impor- During the last two months of 2018, Belgian tantly its Secretary of State for Migration politics were dominated by controversy. The Theo Francken, suddenly started to oppose main question at issue was whether Prime the Compact, while the three other govern- Minister Charles Michel could approve the ment parties continued to defend it. This Global Compact for Safe, Orderly and Reg- created a situation of deadlock. N-VA also ular Migration (hereafter: UN Migration refused the proposal to write a supplementa- 1 Compact), an intergovernmental agreement ry declaration on how the text is interpreted promoting a common global approach to by Belgium. Since the decisions of the gov- 1 :LL#O[[WZ!YLM\NLLZTPNYHU[Z\UVYNZP[LZKLMH\S[ÄSLZ FÄUHSFKYHM[FWKM%HJJLZZLK February 2019. 2018 Global Review of Constitutional Law | 23 ernment are made on the basis of consensus, two-thirds majority) after the election. Unde- permit. The second condition implies that a N-VA could no longer be part of a govern- niably, 2019 will again be an interesting time person applying for a residence permit needs ment that would endorse the Compact. for consociational democracy in Belgium. to sign a declaration indicating that he or she “understands the fundamental values and Consequently, as of 9 December, the other III. CONSTITUTIONAL CASES norms of society and will act accordingly.” three parties continued as a minority govern- Signing this “newcomers declaration” will be ment— which is quite exceptional in Bel- In 2018, the Belgian Constitutional Court a condition of admissibility for the residence gian politics—without N-VA and with the delivered 183 judgments and handled 226 permit. In case no. 126/2018, the Constitu- support of only 52 of 150 seats in the House cases in total. Regarding the nature of the tional Court rejected almost all arguments of Representatives. It is controversial wheth- complaints, conflicts of competencies be- invoked against both conditions. However, it er this rearrangement established a new gov- tween the federated entities and the federal ruled out that the criminal past of a person ernment, as the Prime Minister did not of- state only represent 4% of the judgments can be taken into account when measuring fer the resignation of his government to the in 2018. The majority of cases concern in- his integration efforts because of the dispro- King, but only entailed the dismissal of three fringements of fundamental rights. In 2018, portionately wide scope of that criterion. It ministers and two Secretaries of State and a the principle of equality and non-discrimi- is also interesting to note that the freedom redistribution of the powers among the re- nation is still the most invoked principle be- of expression and religion, according to the maining members of the government. How- fore the Court (51%), followed by review of Court, includes the right of a person not to ever, it became common to refer to (the new) compliance with the jurisdictional warran- reveal his convictions. It observes, howev- “Government Michel II” in the press. The ties of Article 13 (6%), the property rights er, that the newcomers declaration does not opposition claimed that the government re- of Article 16 (6%), the right to private and compel a person to accept the fundamental quired a vote of confidence, a position which family life of Article 22 (6%), the socioeco- values and norms of society, but only to un- was supported by a considerable number of nomic rights of Article 23 of the Constitu- derstand them and act accordingly. scholars, but not by all. tion (6%), the guarantees in taxation matters of Articles 170 and 172 (4%), the personal Under Article 23 of the Citizenship Code, Nonetheless, after ten days, on 18 December, freedom and legality of criminal charges of citizens may have their citizenship with- the Belgian government eventually fell. PM Article 12 of the Constitution (4%) and the drawn if they seriously breach their duties Michel tried to find support from left-wing freedom and equality in education of Article as Belgian citizens, provided that the with- opposition parties in order to stay in pow- 24 (3%). References were made to the juris- drawal does not result in the person con- er until the parliamentary elections in May prudence of the European Court of Human cerned being made stateless. This provision 2019. However, the socialists and greens an- Rights (ECtHR) in 49 cases. Moreover, the makes it possible to exclude certain citizens nounced that they would table a motion of no jurisprudence of the Court of Justice of the from the national community when their 2 confidence in Parliament, which triggered European Union (CJEU) is also regularly conduct demonstrates that they do not accept the Prime Minister to offer his resignation reflected in the judgments of the Constitu- the basic rules of community life and seri- to the King. The day after, on 19 December, tional Court, with references to this case law ously infringe on the rights and freedom of PM Michel endorsed the Migration Com- in 17 cases. References to other sources of their fellow citizens. The Antwerp Court of pact. After consultations with the presidents international law can be found in 29 cases. Appeal submitted preliminary questions to of the political parties, King Filip accepted the Constitutional Court concerning the ap- the resignation of the government on 21 De- 1. Measures of Integration and Exclusion plication by the state prosecutor to have FB’s cember, which turned it into a caretaker gov- Belgian citizenship withdrawn. FB had been ernment with limited powers. convicted of criminal offences of acts of vi- At the end of 2016, the Belgian legislator olence and leadership of a terrorist group. In N-VA has proposed a turn to confederalism inserted two new conditions in the Immigra- case no. 16/2018, the Constitutional Court after the federal, state and European elections tion Act of 15 December 1980: the so-called considered the provision not discriminato- in May 2019. However, it is now uncertain “integration efforts” and “newcomers decla- ry. As a matter of fact, citizenship can only whether a list with constitutional provisions ration.” As to the first condition, a person has be withdrawn in cases where citizenship is susceptible to amendment will be approved to provide evidence, in the first term of his not obtained as a result of birth but on the before the elections. According to the consti- temporary residence permit, of his willing- ground of a declaration, before the age of tutional amendment procedure of Article 195 ness to integrate into society. If he is unable 18 years. According to the Court, this dif- of the Constitution, that is necessary in order to prove his “reasonable effort” to integrate, ference of treatment is based on an objective to be able to amend the Constitution (with a the Immigration Office can put an end to its and relevant distinguishing criterion, which 2 0UJHZLVMHUVYKPUHY`]V[LVMUVJVUÄKLUJL7HYSPHTLU[PUKPJH[LZ[OH[P[UVSVUNLYZ\WWVY[Z[OLNV]LYUTLU[I\[NV]LYUTLU[PZUV[VISPNLK[VYLZPNU0U JHZLVMHJVUZ[Y\J[P]L]V[LVMUVJVUÄKLUJLPU[YVK\JLKPU Z\WWVY[LKI`HWHYSPHTLU[HY`THQVYP[`OV^L]LY7HYSPHTLU[P[ZLSMWYVWVZLZHUHS[LYUH[P]L Prime Minister and forces the government to resign (Article 96 of the Constitution). 24 | I•CONnect-Clough Center is linked to the way Belgian citizenship was at simplifying the assessment of evidence. ing pro bono services. As such, the Court acquired and the ties maintained with the However, this deletion was annulled by the concluded, the measure does not violate the national community. Further, the Court held Constitutional Court because it violated the right to free choice of a profession, nor does that the impugned provision did not infringe freedom of expression. The Court considered it constitute forced labor. on the general legal principle of non bis in that the intended aim does not justify that a idem enshrined in Article 14.7 ICCPR and person is likely to be sentenced to five to ten The Court’s judgment in case no. 77/2018 Article 4 Protocol 7 ECHR. The withdrawal years’ imprisonment and be fined, even if the potentially has more far-reaching conse- of citizenship at issue is not a penalty but a risk requirement would not be fulfilled. The quences. During the last years, access to jus- civil measure. Finally, it is interesting to note Court stipulated that the effects of this pro- tice has increasingly been analyzed through that the Court, for the first time in its history, vision remained in force until 1 September the prism of financial access. Obviously, ruled that the hearing, for security reasons, 2018. The second item was Article 6 Terro access to pro bono services is an essential would be televised (interlocutory Judgment III, which facilitates the conditions for is- component of that. Through the act of 2016 no. 1/2018). suing an arrest warrant in cases of terrorist already mentioned above, the legislator had crimes that exceed the maximum penalty of restricted the access to those services by im- 2. Fight against Terrorism five years. The Court rejected this action as posing a broader definition of the means tak- unfounded because the rights of the accused en into account to determine an individual’s In 2018, the Court addressed two cases that are not disproportionately affected. The pro- need for assistance and by tightening pre- dealt with regulations regarding counter-ter- cedural safeguards were still guaranteed, in- sumptions of need and control mechanisms. rorism. In case no. 8/2018, the Court rejected cluding the fact that the investigating judge In addition, the legislator introduced a limit- an appeal for annulment of Article 140sexies remains competent. ed, flat rate contribution required from any- of the Criminal Code that penalized those one relying on pro bono services. Although who leave or enter the national territory with 3. Access to Justice (pro bono legal advice) the law provided for general and individual the intent to commit terrorist acts or crim- exceptions, the Constitutional Court struck inal offences of incitement to commit ter- In 2018, the Constitutional Court ruled in this new financial burden in view of the rorist acts. According to the Court, the fact two remarkable cases relating to access to standstill obligation in Article 23 of the Con- that it can be difficult for the prosecuting justice, specifically with regard to pro bono stitution. The Court was puzzled by the idea authorities to prove double “intention” (the legal advice. In one of them, a rare argu- that a contribution was imposed on litigants intention to adopt a specific behavior which ment concerning forced labor was raised. who were, by definition, incapable of paying itself is motivated by a more precise inten- Pro bono legal advice is a service to which for their legal advice. By lack of numbers tion) was insufficient to conclude that this citizens are entitled if certain conditions are demonstrating a real problem of overcon- provision is inconceivable with the principle met. This advice is offered by attorneys who sumption, the argument that the measure was of legality in criminal matters. Moreover, it are later paid by the government on the ba- intended to promote a responsible litigation did not affect the free movement of persons. sis of a performance-related code. Attorneys attitude was equally rejected. As a result, for The Court concluded that the text of this usually offer their services voluntarily. In an the first time, the Court found a violation of Article, despite its general scope containing act in 2016 however, the legislator decided the standstill obligation as it is applicable to cross-references, is sufficiently foreseeable that the bar association can force attorneys to the right to legal aid. and a more precise definition of the term “in- perform pro bono whenever this is necessary tention” is not necessary. It is for the judge for the effectiveness of the service. Qualify- 4. Curtailing the Vulture Funds to assess this intention objectively on a case- ing this measure as forced labor, a number by-case basis. of attorneys and a bar association applied to The Federal Act of 12 July 2015 curtails the the Constitutional Court. In its decision no. activities of so-called “Vulture Funds”; it was Case no. 31/2018 concerned an action for an- 41/2018, the Court disagreed. It observed adopted unanimously by the Belgian Parlia- nulment of two Articles of the act containing that attorneys have a significant role to play ment and found its origin in a bill drafted in a number of provisions to combat terrorism in the administration of justice. They also en- consultation with the Committee for the Ab- (here: Terro III). The first item was Article 2 joy certain privileges. Given that, they can olition of Illegitimate Debt, an umbrella of a Terro III, which amended Article 140bis of be expected to contribute to the performance bunch of NGOs. The Court rejected an ap- the Criminal Code in three different ways, of the justice system, which is a pillar of the peal for annulment of that act introduced by of which two were challenged before the rule of law. Moreover, pro bono services are NML Capital Ltd., a subsidiary of Paul Sing- Constitutional Court. Article 140bis, final an essential element of the right to legal aid er’s hedge fund Elliott Management Corp., sentence, of the Criminal Code contained a as provided in Article 23 of the Constitu- registered in the Cayman Islands (case no. so-called “risk requirement,” which means tion. Qualifying lawyers are free to exercise 61/2018). The act provides that when cred- that only serious indications of a possible the profession of attorney as they please, so itors pursue an illegitimate advantage by terrorist crime may be punished. Article 2, 3° whoever chooses this profession accepts the the purchase of a State’s loan or debt obli- Terro III deleted that risk requirement aimed burdens that come with it, including provid- gation, their rights towards the debtor State 2018 Global Review of Constitutional Law | 25 will be limited to the price they paid for the of personal data between government de- Last year, the Court referred four cases for purchase. The challenged act also prohibits partments and agencies in order to combat preliminary ruling to the CJEU. One of these the issuance of an enforcement order in Bel- domicile fraud in social housing. The new cases, concerning the new Belgian Data gium, or the adoption of measures aimed at measure essentially required all agencies Retention Act, deserves particular attention ensuring the payment of the debt, where this involved in social housing to share informa- (case no. 96/2018). This act replaced the pre- gives the creditor an illegitimate advantage. tion with the supervisory authorities if they vious one annulled by the Court in a judg- The pursuit of an illegitimate advantage is suspected fraud. The Flemish Tenants Asso- ment (case no. 84/2015)3 narrowly tailored deduced from the existence of a manifest ciation challenged the legislation before the to the judgment of the CJEU that declared disproportion between the purchase value Constitutional Court (case no. 104/2018). invalid the EU Directive 2006/24/EC on data of the loan or debt obligation by the creditor The Court considered the measure to be an retention.4 The annulled Belgian Act trans- and the face value of the loan or debt obliga- interference with the right to respect for pri- posed that directive. Meanwhile, the CJEU tion, or else between the purchase value of vate life ex Article 22 of the Constitution and has confirmed and has even strengthened the loan or debt obligation by the debtor and Article 8 ECHR, which was nevertheless jus- its views in a more recent judgment.5 The the amount they demand in payment. The tified in light of the fight against social fraud. CJEU held indeed that Directive 2002/58/ Court held that this limitation is not infring- According to the Court, the legislator imple- EC must be interpreted as precluding na- ing property rights, nor primary or secondary mented strict boundaries for the exchange of tional legislation, which, for the purpose EU Law, nor the right to a fair trial. The cri- data. Not only does the information provider of fighting crime, provides for general and terion of “manifest disproportion” between have to check whether the data are relevant indiscriminate retention of all traffic and lo- the said values is deemed to be sufficiently and useful for the receiver’s statutory duties cation data of all subscribers and registered precise to be applied by the courts and the but the receiver also has to effectively limit users relating to all means of electronic com- curtailing to the purchase value is not in- the use of the information to its statutory du- munication. Furthermore, those provisions fringing on the undisturbed enjoyment of the ties. Moreover, according to the Court, the preclude national legislation governing the property of the creditor. exchange of data only leads to higher levels protection and security of traffic and location of government efficiency, since the infor- data and, in particular, access of the compe- 5. Data Protection mation exchange is limited to relevant data tent national authorities to the retained data, that other government agencies involved in where the objective pursued by that access In 2018, the Court addressed four cases that social housing already obtained. (in the context of fighting crime) is not re- dealt with the protection, management and ex- stricted solely to fighting serious crime, change of personal data. Case no. 29/2018 con- In case no. 174/2018, the Constitutional where access is not subject to prior review cerned an action for annulment of federal legis- Court annulled Articles 39bis, §3 of the Code by a court or an independent administrative lation that provided for automatic exchange of of Criminal Investigation and Article 13 of authority, and where there is no requirement data between utility companies and the provid- the Act on Special Investigation Methods. that the data concerned should be retained ers of social housing in order to combat domi- On the basis of these provisions, the Public within the European Union. However, the cile fraud. Although the Court acknowledged Prosecutor had become competent to order ECtHR adopted a different view on data re- that the measure interfered with the right of a non-confidential network search, instead tention when it found that Swedish legisla- social tenants to retain respect for their private of the previously competent investigating tion on the subject did not infringe on Article lives ex Article 22 of the Constitution and Ar- judge. The Court held that an investigation 8 ECHR.6 Although the new Belgian Act is ticle 8 ECHR, it held that it was pertinent and method that enables access to all personal stricter than the previous one, it nevertheless proportionate in light of the aim to effectively communication data presents an interfer- still provides for massive data retention, but and efficiently combat social fraud. According ence with the right to respect for private life more limited in time and subject to more to the Court, the legislator had foreseen suffi- comparable to a house search or wiretap- safeguards to avoid misuse of those data. cient guarantees to contain the pushing, mining ping. Considering the severity of the inves- The Constitutional Court found it necessary and storing of data. tigation method and the lack of procedural to continue its dialogue with the CJEU, of- safeguards similar to the guarantees comple- fering it the opportunity to nuance, detail The Flemish Parliament had adopted similar menting a house search, the Court held that or alter its jurisprudence7 given the fact legislation in October 2016. Indeed, it had a network search can only be ordered by an that the Belgian legislator is of the opinion also provided for an additional exchange investigating judge. that it is simply impossible to practice more 3 See Developments in Belgian Constitutional Law: The Year 2015 in Review: 26 | I•CONnect-Clough Center differentiated data retention as advocated ment and the parliaments of the federated by the CJEU (an opinion that is shared by entities will be held on 26 May 2019. other EU Member States).8 Furthermore the Court noted that more than one reference for a preliminary ruling was pending before the CJEU,9 that an advocate general has deliv- ered opinions which are critical for the case law and that data retention is not only prac- ticed in view of combating serious crime but also, e.g., to protect the physical and moral integrity of minors in the fight against sexual abuse by electronic communication means.10 The Court therefore submitted several pre- liminary questions to the CJEU concerning the interpretation of Directive 2002/58/EC read in conjunction with the EU Charter of Fundamental Rights. IV. LOOKING AHEAD On January 1, 2019, 337 cases were pend- ing before the Constitutional Court. Some of these cases are of interest to an internation- al audience. The Court must, for example, decide whether the Unstunned Slaughter Ban LQWURGXFHGLQWKH)OHPLVKDQG:DOORRQ Region is compatible with the freedom of religion, the separation of church and state and the freedom of labour and enterprise, and whether the Federal Transgender Act respects the non-discrimination principle. Various cases concern the right to privacy, in particular with regard to the obligation to communicate personal data (e.g., client data by Airbnb hosts and Air companies) to the authorities. Furthermore, we have cas- es on the Act to Combat Squatting, the act providing that there should be a minimum service of the railways in case of an indus- trial action and the act prohibiting some per- sons to be blood donors. In October 2019, a Dutch-speaking11 Justice from the group of former MPs,12 Erik Derycke, is retiring, which means a new judge from that group has to be appointed. Lastly, new elections for the European Parliament, the Federal Parlia- 8#O[[W!Z[H[L^H[JOVYNUL^Z UV]L\L\YVQ\Z[KH[HYL[LU[PVU4:YLWVY[ WKM%HJJLZZLK 1HU\HY` 9 Referrals of the Investigatory Powers Tribunal London, 31 October 2017, Case C 623/17 Privacy International / Secretary of State for Foreign and Com- TVU^LHS[O(ɈHPYZLHand of the Audiencia provincial de Tarragona, Sección cuarta, 14 April 2016, Case C 207/16, Ministerio Fiscal. The Grand Chamber has already delivered judgment in the latter case: Case C 307/16 Ministerio Fiscal [2018] CJEU. 10 See 2<]-PUSHUK App no 2872/02 (ECHR, 2 December 2008). 11 The Court is composed of six Dutch-speaking and six French-speaking Justices, each linguistic group electing their own president. 12 The Court is composed of six former Members of Parliament and six Justices with a background in the legal or academic profession. 2018 Global Review of Constitutional Law | 27 Bosnia and Herzegovina 0DMD6DKDGåLü3RVWGRFWRUDO5HVHDUFKHU University of Antwerp I. INTRODUCTION would adopt modifications to the Constitu- tion and Election Law in order to harmonize Compared to 2017, the events in 2018 wit- them with the aforementioned decisions of nessed several quite diverse constitutional the European Court for Human Rights. But BOSNIA AND in the end, the representatives put pressure HERZEGOVINA matters in Bosnia and Herzegovina. After the elections in October 2018, the political life in on the Constitutional Court to decide in Bosnia and Herzegovina was (and still is) re- several cases involving the amendments to volving around the distribution of mandates the Election Law and did not comply with in legislative bodies in the country. In par- its decisions. As the elections approached, it ticular, the contentious question was which became obvious that there was not enough census to apply when distributing mandates, time to amend the Constitution and Election the 1991 one or the 2013 one. This continues Law. The subject was set aside, and so too to emphasize the importance of the partici- the pressure from the Constitutional Court, pation of all citizens of Bosnia and Herze- although not entirely. As a result of that, un- govina in its system of government under like in the previous year, the Constitution- non-discriminatory conditions, yet doesn’t al Court of Bosnia and Herzegovina heard support the status of the constituent peoples quite diverse cases. that remain an integral element of the hetero- geneous legal and political order of Bosnia II. MAJOR CONSTITUTIONAL and Herzegovina. DEVELOPMENTS :LWKVRPHH[FHSWLRQVDQGIRUDFKDQJHWKH The political representatives still show focus of the Constitutional Court of Bosnia no progress in introducing constitutional and Herzegovina was shifted to the excises, amendments that would make the constitu- criminal procedure, and land registries. One tional system of Bosnia and Herzegovina possible explanation for this might be that responsive. At the same time, internal in- after it became clear that several decisions termediaries, such as the Office of the High of the European Court for Human Rights, Representative in Bosnia and Herzegovina, namely 6HMGLüDQG)LQFLY%RVQLDDQG+HU- still remain mere bystanders. During 2018, ]HJRYLQD=RUQLüY%RVQLDDQG+HU]HJRYLQD ethnicity continued to play an important role and Pilav v. Bosnia and Herzegovina, would in constitutional reality since there is still a not be implemented again, attention was lot of support for ethnic strongholds, which shifted to another direction. During 2017, became and have remained a fundamental the Parliamentary Assembly of the Council factor in the system of government. of Europe, the Head of the Delegation of the European Union to Bosnia and Herzegovi- In terms of the above-mentioned decisions na, and the European Union Special Repre- of the European Court for Human Rights, sentative in Bosnia and Herzegovina urged the Parliamentary Assembly of Bosnia and representatives in the Parliamentary Assem- Herzegovina remains inert in taking steps bly to amend the country’s Constitution and to harmonize constitutional and legal norms Election Law. Since 2018 was an election with the decisions. In 2009, the European year, it was expected that the representatives Court, deciding in the case of 6HMGLü DQG 28 | I•CONnect-Clough Center Finci v. BaH,1 established that the constitu- that the Parliamentary Assembly had failed ment regulates the return of refugees and dis- tional provisions that rendered the applicants to enforce its decision within the given time placed persons in Bosnia and Herzegovina ineligible for election to the Presidency of limit, and, by its decision 54/17, rendered the after the conflict. In order to be considered BaH were discriminatory. (In this case, the provisions ineffective from the day follow- as implemented, it is necessary that, in line persons who did not identify themselves as ing the ruling being published in the Official with Annex 10 of the Dayton Peace Agree- one of the constituent peoples.) Later on, Gazette of Bosnia and Herzegovina. ment, the Office of the High Representative in 2014, in the case of =RUQLüY%D+,2 the for Bosnia and Herzegovina deliver a de- European Court reinforced the previous de- Followed by this and amidst heated dis- cision to confirm this. Since the Office has cision. Finally, in 2016, in the case of Pilav cussions and pressure from different stake- not made any decision so far, Annex 7 is not v. BaH,3 the European Court again looked holders, the Central Election Commission considered to have been implemented, which into the provisions of the Constitution, this of Bosnia and Herzegovina issued the In- means that, in accordance with the Constitu- time from a different angle. In particular, the struction Amending the Instruction on the tion of the Federation of Bosnia and Herze- Presidency of BaH consists of one Bosniac Procedure for Administering Indirect Elec- govina, only the 1991 census can be used as and one Croat, each directly elected from tions for the Bodies of Authority in Bosnia a basis for the calculation. Nevertheless, one the Federation of BaH, and one Serb direct- and Herzegovina under the Election Law. cannot disregard that the ruling of the Con- ly elected from the Republic of Srpska. The The instruction provides for the division stitutional Court of Bosnia and Herzegovina European Court held that the applicant (in of mandates in the House of Peoples of the ordered the Parliamentary Assembly to har- this case a Bosniac living in the Republic of Parliament of the Federation of Bosnia and monize the provisions with the Constitution, Srpska) were prevented from being entitled Herzegovina according to the 2013 census. and when the Court established that the Par- to stand for the election to the Presidency and :KDWPDNHVWKLVLQVWUXFWLRQFRQWURYHUVLDOLV liamentary Assembly had failed to do so, it therefore the Court found it to be a discrim- that according to the Constitution of the Fed- rendered the provisions ineffective. inatory feature of the constitutional system. eration of Bosnia and Herzegovina, the con- All of this means that the persons who do not stituent peoples and members of the group of The saga further developed in January 2019, identify themselves as one of the constituent Others shall be proportionately represented; when the applicants (27 representatives in the peoples are still ineligible for election to the however, such proportionate representation House of Representatives of the Parliament Presidency of Bosnia and Herzegovina, and shall follow the 1991 census until Annex 7 of of the Federation of Bosnia and Herzegovi- that the Serbs from the Federation of Bosnia the Dayton Peace Agreement is fully imple- na) required a review of the constitutionality and Herzegovina are prevented from being mented. To that end, the 1991 census shall of the Instruction Amending the Instruction entitled to stand for the election to the Pres- be appropriately used for all calculations on the Procedure for Administering Indirect idency in the same way the Bosniaks and requiring demographic data until Annex 7 is Elections for the Bodies of Authority in Bos- Croats from the Republic of Srpska are. fully implemented. There are two problems nia and Herzegovina under the Election Law. related to this. The Constitutional Court rejected the request The report of 2017 noted that the Constitu- as inadmissible since it was not competent tional Court of Bosnia and Herzegovina, by First, a comparison between the census in to take a decision (case U-24 18). The Court its decision U-23/14, established that certain 1991 and 2013 points out significant differ- concluded that the challenged Instruction on provisions of the country’s Election Law are ences in ethnic composition before and af- Amendments is an implementing regulation, not in conformity with its Constitution. These ter the 1992-1995 conflict. Some cities and passed by the Central Election Commission include the provision that “each of the con- municipalities that were once predominantly in order to implement the Election Law in stituent peoples shall be allocated one seat in populated by one constituent people are now the process of administering indirect elec- every canton” as well as the provisions that almost entirely populated by another. Some tions for the bodies of authority in Bosnia stipulate the number and ethnic belonging of cities and municipalities became unpopu- and Herzegovina, which determined the pre- the delegates in the House of Peoples in the lated. The population that was once mixed liminary number of delegates to the House Parliament of the Federation of Bosnia and became territorially distributed in such way of Peoples of the Parliament of the Federa- Herzegovina based on the 1991 census. The that ethnic belonging became territorially tion of Bosnia and Herzegovina to be elected Constitutional Court ordered the Parliamen- embedded. That would surely affect the dis- from cantonal assemblies. Accordingly, and tary Assembly of Bosnia and Herzegovina to tribution of mandates according to the deci- taking into account the fact that it concerned harmonize the provisions with the Constitu- sion U-23/14 of the Constitutional Court of a temporary provision, the Court concluded tion no later than six months from the day Bosnia and Herzegovina and the instruction that the subject in the case did not consist of of delivery of the decision. However, in July of the Central Election Commission. a general act, the constitutionality of which 2017, the Constitutional Court established Second, Annex 7 of the Dayton Peace Agree- could be reviewed by the Constitutional 1 :LQKPDžHUK-PUJP])VZUPHHUK/LYaLNV]PUH(WWUV HUK ,*[/9+LJLTILY 2 AVYUPDž])VZUPHHUK/LYaLNV]PUH(WWUV ,*[/9 1\S` 3 Pilav v. Bosnia and Herzegovina, App no 41939/07 (ECtHR, 9 June 2016). 2018 Global Review of Constitutional Law | 29 Court. Moreover, taking into account the Bosnia and Herzegovina. The applicant also constitutions in the Federation of Bosnia content of the request in the case at hand, stated that the challenged laws were adopted and Herzegovina with regard to the the Constitutional Court did not find any in a summary procedure in the course of principle of the constituent peoples and reason why the contested implementing act the first reading and then in the course of the principle of non-discrimination. The of the Central Election Commission would the second reading. The applicant claimed applicant (the Deputy Chair of the House raise an issue of violation of human rights that this procedure may be applied only in of Representatives of the Parliamentary and fundamental freedoms. Therefore, the the case of a law of lesser scope or degree Assembly) filed a request for review of the Constitutional Court, taking into account the of complexity and that the aforementioned constitutionality of several articles of the mentioned circumstances and in particular simplified procedure does not apply to the Constitution of the Posavina Canton, the the jurisprudence related to the interpreta- challenged laws. The applicant also argued Constitution of the Herzegovina-Neretva tion of its jurisdiction, concluded that it was on the authorized proponents of laws, Canton, the Constitution of the Zenica-Doboj not competent to decide on the review of the claiming that the second chamber undertook Canton, the Constitution of the Bosnian- constitutionality of the impugned act of the the prerogatives of the executive power by Podrinje Canton, and the Constitution of the Central Election Commission. putting forward the challenged laws. In line :HVWHUQ+HU]HJRYLQDFODLPLQJWKDWWKH\DUH with this, the applicant claimed that under not in compliance with the principle of the III. CONSTITUTIONAL CASES the course of the chosen procedure, the only constituent status of peoples and principle of proponent of the law could be the Council of non-discrimination. The applicant claimed The core activity of the Constitutional Court Ministers of Bosnia and Herzegovina and not that all three constituent peoples—the of Bosnia and Herzegovina in 2018 was the the House of Peoples of the Parliamentary Bosniaks, Croats, and Serbs—should be same as in 2017. The Court was lodged by a Assembly. constituent on the whole territory of Bosnia large number of appeals with regard to the and Herzegovina without discrimination. right to a fair trial, notably with regard to the Deciding in this case, the Constitutional The applicant then cited the articles from the failure to take a decision within a reasonable Court dismissed the request as it established aforementioned constitutions that refer only time. To that end, the Constitutional Court that the challenged laws are in conformity to the Bosniaks and Croats as constituent ordered the competent judicial bodies to with the Constitution. The Court established peoples as well as the articles that define complete their proceedings urgently. In its that the challenged laws were approved only the Bosnian and Croatian language sessions, the Court highlighted the failure by both chambers of the Parliamentary as the official languages and the Latin to meet the requirement of deciding within Assembly by the majority of those present alphabet as the official alphabet in these a reasonable time as a problem that is very and voting, respecting the necessary majority cantons. According to the applicant, this was much present in the judicial practice in the for adoption. It also established that the laws contrary to the preamble of the Constitution country. Apart from this, the focus of this did not take effect before publication in the of Bosnia and Herzegovina since the Serbs report is on several decisions that raised Official Gazette and that the transcripts of were discriminated against. Apart from this, constitutional issues in several different deliberations were published and that the the applicant questioned the competence of fields. public aspect of their sessions was secured. the Constitutional Court of the Federation The Court could not accept the claims with of Bosnia and Herzegovina to decide in this 1. U-5/18: The Law on Excise Duties in regard to deliberation in the course of an case, arguing that the Constitutional Court Bosnia and Herzegovina urgent legislative procedure and the claim of Bosnia and Herzegovina, as a central- that the principle of separation of powers level constitutional court, should decide as a This case challenged the constitutionality of was violated as well founded. The Court was constitutional court of a sub-national entity. laws on excise duties, revenues, and taxes aware of the fact that it is undisputed that the that have been adopted by the Parliamentary second chamber may be a proponent and that The Constitutional Court of Bosnia Assembly of Bosnia and Herzegovina. The is sufficient for it to conclude that there was and Herzegovina declared the request applicants (19 representatives of the House no violation of the principle of separation inadmissible as it was not competent to take a of Representatives of the Parliamentary of powers as well as no violation of the decision. It also referred to the Constitutional Assembly) filed a request for a review of the appropriate provisions of the Constitution Court of the Federation of Bosnia and constitutionality of the Law on Amendments in regard to compliance with the principle of Herzegovina as a competent authority to to the Law on Excise Duties, the Law on the separation of powers. decide in this case. The Constitutional Amendments to the Law on Payments into Court also noted in the reasons for its the Single Account and Distribution of 2. U-8/18: The principle of the constituent decision that there were no circumstances Revenues, and the Law on Amendments to peoples and the principle of non- indicating that the Constitutional Court of the Law on Indirect Taxation System. The discrimination the Federation of Bosnia and Herzegovina applicant claimed that the challenged laws interpreted and applied the Constitution of are in contravention of the Constitution of This case challenged the application of the Federation of Bosnia and Herzegovina several provisions of several cantonal contrary to the Constitution of Bosnia and 30 | I•CONnect-Clough Center Herzegovina. This is especially taking into applicant believed that this was against the cadaster, while many European countries account the previous relevant case-law of provisions of the Law on the Prosecutor’s joined these two registries under a single the Constitutional Court of the Federation Office of Bosnia and Herzegovina since the institution. The applicant claimed that of Bosnia and Herzegovina. Moreover, the scope of the work of this office is performed the challenged provisions introduced the Constitutional Court referred to its decision by the chief prosecutor, four deputy chief protection of the property that was not U-5/98, known as the “constituent peoples” prosecutors, and prosecutors. The Law did acquired on a valid legal basis because it decision, which established all three not mention the possibility of employing enabled the current beneficiaries to register constituent peoples as constituent on the authorized officials. This is important since as owners even when they did not have whole territory of Bosnia and Herzegovina, potential authorized officials did not possess any legal basis to possess the particular regardless of the entities and cantons. By adequate training and knowledge, and direct property. The challenged provisions also this decision, the Court also struck down supervision by the prosecutor could not allowed for the procedure to be conducted as unconstitutional all provisions of the compensate for this. on bulletin boards, meaning that the person Constitution of the Federation of Bosnia and did not necessarily have knowledge of the Herzegovina that did not reflect the principle The Constitutional Court of Bosnia and actions that were carried out in the process of the constituent peoples. The Court then Herzegovina established that the challenged of establishing or replacing land registers considered that since the provisions of the provision of the Criminal Procedure Code and ownership rights. The applicants were cantonal constitutions have to be harmonized was compatible with the Constitution. convinced that this was against the principle with the Constitution of the Federation of The Constitutional Court, among others, of legal certainty, which is a prerequisite for Bosnia and Herzegovina, the principle of the established that the above provision in the development of democratic societies. It constituent peoples also applies in this case. the challenged part meets the “quality of has been pointed out that it was exactly the law” requirement in terms of its precision opposite of legal security. 3. U-15/18: Authorized officials in the and clarity and foreseeability, thereby not criminal procedure leaving room for arbitrary decision-making Deciding on the request, the Constitutional and possible abuses. In other words, it was Court of Bosnia and Herzegovina established This case concerned the scope of authorized compatible with the rule of law principle that the challenged provisions of the Law on officials in the criminal procedure under Article (I)(2) of the Constitution. Land Registry of the Federation of Bosnia determined by the Criminal Procedure Code Authorized officials, regardless of their and Herzegovina were in accordance with of Bosnia and Herzegovina. The applicant authorization, perform their duties under the the Constitution of Bosnia and Herzegovina (the Second Deputy Chair of the House supervision of and by informing a prosecutor. and the European Convention on Human of Representatives of the Parliamentary It follows that the relationship between the Rights. The Court pointed out that there was Assembly) filed a request for review of prosecutor and the authorized officials is no established standardized organizational the constitutionality of the provision of the hierarchical, in which the prosecutor is the structure of real estate registration in Europe. Criminal Procedure Code referring to the supreme authority running the investigation Also, the registration in land registers was authorized officials under the authorization while the authorized officials act on his not carried out solely on the basis of a factual of the Prosecutor’s Office. The applicant order. The Court was not convinced that this situation, but all other relevant documents challenged the provision that considers rendered the challenged provision imprecise and evidence, which were also taken into expert associates, as well as investigators and unclear. account, could serve when determining working for the Prosecutor’s Office under the ownership and other rights and limitations authorization of the Prosecutor, as authorized 4. U-7/18: The constitutionality of the Law on real estate. Therefore, the Court found officials. The applicant claimed that under on Land Registry that challenged provisions did not violate this provision the authorized officials are all This case challenged the constitutionality of the right to property. Finally, the legislator persons authorized under the scope of police the Law on Land Registry in the Federation prescribed public announcements through forces, including the State Investigation and of Bosnia and Herzegovina. The applicants daily newsletters that are distributed Protection Agency; the Border Police of (29 representatives of the National Assembly throughout Bosnia and Herzegovina as well Bosnia and Herzegovina; the court, financial, of the Republic of Srpska) filed a request as through the Official Gazette of Bosnia and and military police; customs and taxation for review of the constitutionality of the Herzegovina, all with the aim of including authorities, etc. However, the applicant also Law on Land Registry of the Federation persons who hold certain property rights that claimed that this provision was imprecise, of Bosnia and Herzegovina. The applicant are subject to registration in land registries. unclear, and against the rule of law since the claimed that the provisions are against the Accordingly, it followed that the legislator number of authorized officials was widened right to property. The reasons were that the had taken reasonable measures to ensure to include expert associates and investigators characteristics of the registration of real that persons involved were included in this of the Prosecutor’s Office working under estate in Bosnia and Herzegovina were proceeding. the authorization of the Prosecutor. The based on two registers, the land registry and 2018 Global Review of Constitutional Law | 31 IV. LOOKING AHEAD As predicted in the previous report, the 2018 elections intensified relations in political life in Bosnia and Herzegovina. On one side, the pressure that was put on the Parliamentary Assembly to amend the Election Law has now transferred to the Election Commission, who took the initiative to implement the de- cision of the Constitutional Court of Bosnia and Herzegovina. On the other side, the Eu- ropean Commission and the American Em- bassy in Sarajevo expressed their support for the Central Election Commission. The point at issue, then, is what role the Constitutional Court will play further. Setting aside the cases based on a tendency to preserve individual interests of each con- stituent people along territorial lines in Bos- nia and Herzegovina, in 2019 the Constitu- tional Court will most likely continue to be overburdened with applications requesting it to examine whether the constitutional rights (the right to a fair trial, the right of access to court, the right to an effective legal remedy, etc.) have been violated or disregarded, and whether the application of the law was, pos- sibly, arbitrary or discriminatory. V. FURTHER READING 3DWULFLD3RSHOLHUDQG0DMD6DKDGåLü HGV Constitutional Asymmetry in Multinational Federalism, Managing Multinationalism in Multi-tiered Systems (Springer International Publishing, 2019). Patricia Popelier and Samantha Bielen, ‘How courts decide federalism disputes: legal mer- it, attitudinal effects, and strategic consid- erations in the jurisprudence of the Belgian Constitutional Court’ [2018] Publius 1. 32 | I•CONnect-Clough Center Brazil Luís Roberto Barroso, Brazilian Supreme Federal Court Justice; Tenured Professor of Constitutional Law at the Rio de Janeiro State University (UERJ) Juliano Zaiden Benvindo, Tenured Professor of Constitutional Law at the University of %UDVtOLD 8Q% DQG5HVHDUFK)HOORZRIWKH%UD]LOLDQ1DWLRQDO&RXQFLOIRU6FLHQWL¿FDQG Technological Development (CNPq) Aline Osorio, Professor of Constitutional Law at the University Center of Brasília (UniCEUB) I. INTRODUCTION Finally, the Supreme Court (STF) itself BRAZIL faced strong criticism by different dissatis- 2018 was certainly one of those years Bra- fied sectors. The Court was often divided zilian constitutionalists will remember for in the complex struggle against systemic generations. First, the year marked the 30th corruption, not always corresponding to so- anniversary of the 1988 Constitution. The ciety’s expectations. The centrality of the Constitution symbolized the transition from Court and its public exposure amplified its dictatorship to democracy. Since it was structural deficiencies, notably the Justices’ enacted, Brazil has accomplished several power to issue unilateral/monocratic deci- extraordinary achievements: monetary sta- sions with massive political impact without bility, institutional stability (despite having immediately subjecting them to the Plenary gone through two impeachment processes for ratification. and massive corruption scandals) and deep- ened social inclusion (with income distribu- Despite these challenges, this report demon- tion and the reduction of extreme poverty strates that the STF still played a relevant and inequalities). The endurance of Brazil’s role in several cases of strong political im- Constitution despite the economic, political pact. Its most impactful decisions in the 2018 and social turmoil of recent years should be term displayed the Court’s tendency to focus celebrated. on the exercise of its major role—to protect and promote fundamental rights, which may Yet, 2018 was also a stress test for Brazil’s prove to be crucial in the 2019 term. democratic institutions. The 2018 presiden- tial elections were the most polarized and II. MAJOR CONSTITUTIONAL turbulent in the country’s recent history. DEVELOPMENTS Inevitably, the Judiciary was a central play- er in political disputes. The conviction of Following the already turbulent years of ex-President Lula on appeal barred him from 2016 and 2017, when Brazil endured a running in the presidential race. Regardless presidential impeachment and a consid- of how well based the conviction may have erable political crisis involving the whole been, it certainly affected the outcome of political class, in 2018, the country elected the elections, paving the way for Jair Bol- WKHIDUULJKW3UHVLGHQW-DLU%ROVRQDUR:LWK sonaro’s poll victory. Several observers fear his election, Brazil was once again in the that the election of the far-right candidate as international spotlight, as Latin America’s president of Brazil may trigger a process of biggest economy and the world’s fourth big- democratic backsliding in the country and gest democracy was seemingly adhering to produce setbacks in the protection of minori- an illiberal mindset that is gaining traction ty rights. in various parts of the globe. 2018 was the year when the three branches of power were 2018 Global Review of Constitutional Law | 33 strongly challenged: President Michel Temer jurisdiction to try politicians (“privileged was the front-runner in opinion polls. Ulti- saw his popularity sharply plummet, leaving jurisdiction”). Although the Supreme Court mately, the Superior Electoral Court ruled office with 62% of Brazilians deeming his restricted the scope of such prerogative (see that the Clean Records Act bars the former government bad or very bad (a slight im- below),6 the pace of its rulings on the mat- president from being nominated as a candi- provement from August, when the number ter has been slower than society expects. In date in the 2018 presidential bid.8 Fernando was 82%1); Congress endured a severe le- a growingly polarized political environment, Haddad, a relatively unknown politician by gitimacy crisis, which may continue in 2019 the comparison of such cases with the one then, replaced Lula in the polls a few weeks despite the largest number of first-elected incriminating former President Luis Inácio before the first round. Although reaching congressmen in decades;2 and the Supreme Lula da Silva, who does not owe such a priv- 44.9% of the votes in the runoff, Mr. Haddad Court was engulfed by the political crisis and ilege, would naturally become an argument was defeated by Jair Bolsonaro, whose polit- saw its authority largely questioned.3 against the judicial system as a whole by ical platform was boldly shaped by attacks Lula’s many supporters. Unlike most Opera- on PT and Lula. Such a context naturally raises some con- WLRQ³&DU:DVK´FDVHVLQWKH6XSUHPH&RXUW cerns about the capacity of Brazilian institu- Lula was convicted by a federal judge in July In the upcoming term, the Supreme Court tions to protect democracy. On the one hand, 2017 and had this conviction upheld on ap- will certainly be challenged by a new type of the 2018 elections, when the President, State peal in January 2018, a few months before dispute. For instance, during the presidential Governors, Federal and State Representa- the start of the electoral campaign, in which campaign, in addition to many controversial tives, and 2/3 of the Federal Senates were he was planning to run for president. statements against minorities, Mr. Bolsonaro elected, did not put an end to the political suggested the possibility of packing the Su- crisis. In fact, many features of the so-called Lula’s conviction inescapably thrust the Ju- preme Court by increasing its size from 11 “new policy” Bolsonaro’s government and diciary, and more specifically the Supreme to 21 justices. The idea lost steam, but still, his affiliates in Congress aim to implement Court, into the heart of the political dispute. how the STF will react to the foreseeable at- have been portrayed as a bad omen for de- Lula filed a petition for habeas corpus before tacks on Brazil’s democratic credentials will mocracy elsewhere.4 On the other hand, in the Supreme Court to prevent him from start be the key for its success or failure. And this such a scenario, many Brazilians saw the starting to serve prison time. In April 2018, will come at a time when the Court is under Supreme Court as the last institutional resort by a 6 to 5 majority, the Court rejected Lula’s pressure both from the political establish- to defend Brazil from potential attacks on habeas corpus, following recent rulings that ment and civil society. its democratic credentials. However, in the set the precedent that defendants who have 2018 term, the Supreme Court made more their prison sentence affirmed on appeal III. CONSTITUTIONAL CASES visible its internal divisions and the difficul- serve jail time immediately. This decision ties in dealing with the challenges that would and Lula’s arrest sparked protests among In this section, the STF’s most relevant rul- soon knock on its door. supporters. Moreover, the so-called “Clean ings in the 2018 term are summarized. The 7 Records Act” bars political candidates who cases are presented in chronological order. Firstly, the so-called Operation “Car have had their convictions upheld by an ap- :DVK´²DFRUUXSWLRQSUREHLQYROYLQJPDQ\ pellate court from running in elections. De- 1. HC (“Habeas Corpus”) 143.641, decided 5 political bigwigs and businessmen —chal- VSLWH WKLV OHJDO LPSHGLPHQW WKH :RUNHUV¶ 02/20/2018: Collective habeas corpus grant- lenged the Supreme Court’s role as a crim- Party (PT) registered Lula as its presidential ed to pregnant women and mothers of young inal court in cases where it has original candidate. By that time, ex-President Lula children held in pre-trial detention 1 ‘Após reprovação recorde, Temer encerra governo com rejeição em queda, mostra Datafolha’ (Folha de S. Paulo, 22 December 2018) https://www1.folha. uol.com.br/poder/2018/12/apos-reprovacao-recorde-temer-encerra-governo-com-rejeicao-em-queda.shtml accessed 30 January 2019. 2 See André Shalders, ‘Eleições 2018: Câmara e Senado terão a maior renovação das últimas décadas, estimam analistas’ (BBC Brasil, 8 October 2018) #O[[WZ!^^^IIJJVTWVY[\N\LZLIYHZPS %HJJLZZLK1HU\HY` 3 See ‘O ano do Supremo - e o que esperar para 2019’ (JOTA, 24 December 2018), 34 | I•CONnect-Clough Center The second panel of the Supreme Court ad- which limited public funding to women can- ceedings at an appropriate speed. The ma- mitted for the first time the possibility of fil- didates to 15% of each party’s share of fund- jority of the Court held that the “privileged ing a collective petition for habeas corpus to ing. Since 1997, Brazil has adopted a legal jurisdiction” is applicable only to offenses ensure access to justice for the most vulner- quota requiring parties to nominate 30% of committed by officials in the course of their able social groups and prevent the violation women candidates for the Lower House. Yet duty and while in office. Justice Luís Rober- of their rights. The panel, by majority vote, this policy had a low impact on increasing to Barroso, the rapporteur of the case, argued granted the collective writ of habeas corpus women’s political representation: by 2017, that this restrictive interpretation better har- to determine the release from pre-trial de- the country still had less than 15% of female monizes the prerogative of original juris- tention and placement under house arrest of representation in Congress. In view of this diction with the constitutional principles of all women prisoners who are either pregnant reality, the STF held that the constitution- equality, republic, probity and administrative or mothers of children of up to 12 years of al principles of equality between men and morality, and was in line with the Court’s age, or mothers of persons with disabilities women, human dignity and political plural- precedents. (regardless of their age). The majority of the ism require that parties allocate at least 30 Court held that the remedy was necessary on percent of their share of public funding to 6. ADI 5.508, decided 06/20/2018: Plea bar- the grounds that these women and their kids electoral campaigns of female candidates. gain agreements with the Federal Police are systematically subjected to degrading conditions of detention for being deprived 4. HC 152.752, decided 04/04/2018: Enforce- The majority of the STF held constitutional of prenatal and postpartum healthcare. The ment of criminal sentence against President the negotiation of plea bargain agreements order granted did not exclude the application Lula after first appellate ruling by the chief of police during police investi- of non-custodial measures. gations. The Court found that (i) this possi- The Supreme Court voted 6 to 5 to reject the bility does not interfere with the power of the 2. RE (“Extraordinary Appeal”) 670.422 petition for habeas corpus filed by ex-Pres- Public Prosecutor’s Office to file criminal and ADI 4.275, decided 03/01/2018: Trans- ident Luís Inácio Lula da Silva seeking to charges, (ii) the Public Prosecutor’s Office gender persons’ right to official documents invalidate the decree of arrest issued against has to issue an opinion about the agreement that reflect their gender identity him after his prison sentence was affirmed on in such cases, and (iii) the Judiciary has to appeal. The Court then reaffirmed three deci- approve the benefits (e.g., reduction of crim- The Plenary of the STF unanimously held sions issued in 2016 (which became binding inal sentence) granted by the plea bargain that transgender people have the right to upon every court) holding that defendants agreement entered into with the Police. change their name and gender marker on who have their prison sentence affirmed on their official documents without undergoing appeal can serve time provisionally even if 7. ADI 5.794 and ADC 55, decided gender reassignment surgery or any other an appeal to a superior court is still pending: 06/29/2018: Labor law reform – Optional medical treatment. The Court also estab- HC 126.292, decided 02/17/2016; ADC43- union contributions for employees and em- lished, by majority vote, that such change MC (injunction order at the direct action of ployers may be effected administratively, before a constitutionality), decided 10/05/2016; and civil registry office, regardless of prior ju- ARE 964246-RG (appeal in extraordinary In 2017, Congress passed sweeping reforms dicial authorization. The Brazilian Supreme appeal with “general repercussion”), decid- to Brazil’s labor laws advancing President Court found that the right to official docu- ed 11/10/2016. Michel Temer’s reform agenda to kickstart ments reflecting gender identity derives the economy. One of the many contentious from the constitutional principles of equality, 5. AP (“Criminal Action”) 937 QO, decid- changes to the legal framework governing human dignity and liberty, and that the sur- ed 05/03/2018: Limitation of the scope of the employment relations was the extinction of gery requirement would also violate the right “privileged jurisdiction” for public authorities the mandatory union contribution for em- to physical and mental integrity of transgen- ployees and employers. The reform con- der persons, since it is a highly invasive and At the criminal trial of a former federal dep- ferred an optional character to the tax requir- high-risk procedure. uty accused of electoral corruption while ing express authorization of the employees to he was the mayor of a small town, the STF allow the discount of the amount from their 3. ADI (“Direct Action of Unconstitutional- narrowed the scope of the “privileged juris- paychecks. The Supreme Court, in a 6 to 3 ity”) 5.617, decided 03/15/2018: Public fund- diction,” whereby high courts have original decision, upheld the constitutionality of such ing for women candidates jurisdiction to try more than 30,000 author- reform. The Court found that freedom of as- ities. The privileged jurisdiction, in its for- sociation allows employees and employers A few months before the start of the 2018 mer scale, contributed to the inefficiency of to choose whether or not to join a union and election campaign period, the Supreme the criminal justice system, since judges are to make union payments. According to the Court struck down as unconstitutional the better equipped than high courts (especially majority, Congress has the power to regulate provision of the 2015 electoral reform law the Supreme Court) to conduct criminal pro- the matter, which is political in nature, thus 2018 Global Review of Constitutional Law | 35 being entitled to greater judicial deference. It late the Constitution, it is not allowed due to Brazil may need it the most to defend core also emphasized the paternalistic and corpo- the absence of legislation regulating it. democratic values. This is the dilemma that ratist character of the former union system in lies ahead for the Supreme Court, and much Brazil, made up of more than 11,000 unions 9. RE 888.815, decided 09/12/2018: Homes- of its legitimacy and authority will rely on of employees and 5,000 unions of employ- chooling outlawed how it will deal with it. ers, which are generally unrepresentative. On the eve of the second round of the 2018 V. FURTHER READING 8. ADPF 324 and RE 958.252, decided presidential election, the Supreme Court 08/30/2018: Labor law reform – Constitu- unanimously struck down Electoral Court Revista de Investigações Constitucionais – tionality of unrestricted outsourcing judges’ decisions authorizing a series of Journal of Constitutional Research (2018) raids in more than 40 universities all over 5(3) – Special edition: ‘The 30th Anniversary As part of the labor law reform, Congress the country to censor political speech of of the 1988 Brazilian Constitution’ 9 See Diego Werneck Arguelhes and Felipe Recondo, ‘O Supremo e o governo Bolsonaro: o que esperar de 2019’ (JOTA, 4 February 2019), 36 | I•CONnect-Clough Center Bulgaria Michael Hein Adult Education Center Altenburger Land, Altenburg I. INTRODUCTION Judicial Council, whose majority is de fac- to controlled by the parliament, began its Despite a lack of both constitutional amend- preliminary investigations into Chairman of the Supreme Court of Cassation Lozan Pan- BULGARIA ments and nationwide elections, the year 2018 in Bulgaria was highly interesting from ov. This may lead to Panov’s impeachment. a constitutional perspective. The first half of :KLOH WKH &KDLUPDQ KDV YRFDOO\ FULWLFL]HG 2018 was shaped by Bulgaria’s presidency both the government and the politicization of the Council of the European Union. The of the Bulgarian judiciary, he has cynically “European Presidency” was given highest been charged with infringing on judicial in- priority by the government because smaller dependence. member countries such as Bulgaria can use it to influence the EU agenda and present Parliament also adopted an amendment to the themselves on the European stage. Domes- Criminal Code on December 13, 2018, that tically, the government showed increasing allows a delay of up to 48 hours (24 in cas- signs of instability. Here, the ruling coali- es involving children) before notifying third tion consists of four parties, including the parties about an arrest. This would deny an center-right party of Prime Minister Boyko imprisoned person access to legal assistance Borissov, “Citizens for a European Develop- during that time. It also entails that relatives ment of Bulgaria” (GERB), and three small (parents when the case involves children) of extreme right-wing parties that formed the the arrestee will not initially be informed of “United Patriots” alliance. Four ministers their whereabouts. Bulgarian President Ru- from each coalition partner resigned due to men Radev (an independent who was nom- several scandals during the second half of inated in 2016 by the main opposition party, the year. the Bulgarian Socialist Party/BSP) vetoed the amendment, but the parliament overturned Two problematic trends have emerged in this action on January 16, 2019, by an abso- relation to the latest constitutional develop- lute majority against the votes of the BSP. ments. First, Bulgaria meets a poor and de- creasing standard of media freedom. Accord- In this context, the Bulgarian Constitution- LQJWRWKH:RUOG3UHVV)UHHGRP,QGH[ al Court (BCC) is anything but a bulwark of the country scores worse than any other in fundamental rights and the rule of law. There the EU (ranking 111th of 179 studied coun- were only three judgments (i.e., Nos. 2, 10, tries worldwide).1 There is also widespread and 14/2018) among the 17 decisions issued corruption and collusion in politics, media in 2018 in which the BCC contributed to companies, and within a restricted circle of protecting those constitutional principles and a few oligarchs. Second, the state political values (see section III). Its most debated rul- branches continue to endanger the rule of ing also attracted considerable international law, fundamental rights, and judicial inde- attention. Here, the Court did the opposite of pendence. Most prominently, the Supreme ensuring protections by declaring the Coun- cil of Europe’s “Istanbul Convention” un- 1 Reporters Without Borders, ‘Bulgaria: Corruption and Collusion Between Media, Politicians, and 6SPNHYJOZPZ>PKLZWYLHK»#O[[WZ!YZMVYNLUI\SNHYPH%HJJLZZLK 1HU\HY` 2018 Global Review of Constitutional Law | 37 constitutional (see section II). This data may fact that Bulgaria shows the highest level of mental importance for Europe and part of the be explained by the very restricted access to violence against women among all EU mem- core European values,” the BCC declared the BCC and a high degree of politicization ber states.3 :KLOH 3ULPH 0LQLVWHU %R\NR the Istanbul Convention unconstitutional. associated with judicial appointments. Borissov initially defended the Istanbul :KLOH IRXU RI WKH MXGJHV GLVVHQWHG WKH Convention, he and his party (GERB) finally BCC substantially adopted the position of deferred to the massive societal and parlia- the Convention’s conservative critics. II. MAJOR CONSTITUTIONAL mentary opposition. Instead of advocating DEVELOPMENTS: REJECTION for the Convention, which the previous gov- The Court criticized the Convention as OF THE “ISTANBUL ernment (also led by Borissov and his party) self-contradictory because it used the biolog- CONVENTION” had signed, GERB deputies requested that ical terms “men” and “women” while also the Constitutional Court review the Conven- referring to the social concept of “gender.” The Council of Europe Convention on Pre- tion’s constitutionality. They asserted that this would not only lead venting and Combating Violence against to inconsistent interpretations but also com- :RPHQ DQG 'RPHVWLF 9LROHQFH WKH VR Notably, the deputies did not argue for the promise the rule of law. The BCC went as called “Istanbul Convention”) was conclud- Convention’s unconstitutionality, but instead far as to argue that the Convention would de- ed in 2011. It aimed to provide a compre- referred to the large amount of societal criti- stroy any possibility of preventing violence hensive legal framework for the prevention cism that had reached the parliament. The ap- against women, as follows: “By defining of gender-based and domestic violence, to plicants stated that “the social significance of ‘gender’ as a social construct, the Conven- protect victims, and to ensure the prosecu- the Convention, the high public interest and tion compromises the boundaries of the two tion of such violent offenders. The Bulgarian the high degree of political engagement of sexes—man and woman—as biologically government signed the Convention in April the society” had motivated them to appeal to determined. However, if the society loses its 2016. the BCC.4 Specifically, they cited some of the ability to differentiate between a woman and main points raised by the Convention’s crit- a man, combating violence against women Ratification of the Convention entered the ics regarding use of the terms “gender” and would remain a rather formal, but non-dis- parliamentary agenda in late 2017. A fierce “stereotyped roles” as socially-defined cate- chargeable commitment.” debate arose at this time. In particular, there gories, which may contradict the biological was a heated argument in Bulgaria over the terms “sex,” “man,” and “woman” as used in Usage of the social concept of “gender” was translation and meaning of the word “gen- the Bulgarian Constitution. The debate on the also seen as contravening the Bulgarian Con- der.”2 Many political and religious groups Istanbul Convention entirely neglected to fo- stitution. The BCC opined that all Bulgarian (especially the Bulgarian Orthodox Church) cus on protecting women and children against law was based on a biological differentiation attacked the Convention on this basis. These violence because of these developments, in- between women and men and that there were groups argued that it would encourage young stead discussing the self-conception of Bul- biological definitions for the different social people to identify as transgender and there- garian society with regard to gender roles. roles based on these sexes. The judges par- by lead to the legal introduction of a third ticularly referred to Art. 6, § 2 Const., which sex and same-sex marriage in Bulgaria. Pol- In their amicus curiae letters, the Minis- bans any “privileges or restriction of rights iticians from many parliamentary parties tries of Foreign Affairs and of Jurisprudence on the grounds of […] sex [“pol”],” and Art. joined in this criticism, particularly those (both led by GERB politicians) and the State 47, § 2 Const., which states the following: from the ruling coalition United Patriots and Agency for Child Protection argued for the “Mothers shall be the object of special pro- oppositional BSP. The Socialists even pro- constitutionality of the Istanbul Convention. tection on the part of the State and shall be posed that the parliament (the National As- The Ministry of Healthcare (also led by a guaranteed prenatal and postnatal leave, free sembly) hold a referendum on the Conven- GERB politician) issued an undecided opin- obstetric care, alleviated working conditions tion’s ratification. ion, while President Rumen Radev argued and other social assistance.” for its unconstitutionality. This harsh criticism mirrored widespread Although the Istanbul Convention obviously homophobia and the prevalence of socially The Constitutional Court issued its high- provides a more modern approach to gender conservative and patriarchal values in Bul- ly controversial decision on July 27, 2018. relations than the more traditional concep- garian society. However, it contradicted the Although it recognized that “countering vi- tion of the Bulgarian Constitution (adopted olence against women is a matter of funda- in 1991), the judgment did not indicate how 2 The translation provided by the Council of Europe uses the Bulgarian wordœŒŏWVS^OPJOTLHUZ¸ZL_¹PUZ[LHKVM[OL[LYTňŊʼnőňŞŔ (KüLUKȋY or “gen- KLY¹PU,UNSPZO^OPJOOHZILLUJVTTVUS`\ZLKPU)\SNHYPHMVYHJV\WSLVM`LHYZ 3 European Institute for Gender Equality, ‘Gender Equality Index 2017: Violence Against Women, The Most Brutal Manifestation of Gender Inequality’, #O[[WZ!LPNLL\YVWHL\ZP[LZKLMH\S[ÄSLZKVJ\TLU[Z FTO LUUFWKMWKM%HJJLZZLK 1HU\HY` BKH[HHYLMYVTD 4 )\SNHYPHU*VUZ[P[\[PVUHS*V\Y[!+LJPZPVU5V (SSJP[LKQ\KNTLU[ZHYLH]HPSHISLPU)\SNHYPHUH[#O[[W!JVUZ[JV\Y[ININ(J[Z%HJJLZZLK 1HU\- ary 2019 (all translations were done by the author). 38 | I•CONnect-Clough Center adoption of the Convention would cause any motivated appointments for at least eight of international treaty that was placed on the concrete unconstitutional consequences. The the 12 bench posts. Indeed, the 2018 BCC Bulgarian Constitutional Court’s table in Istanbul Convention does not depart from the was dominated by judges who were appoint- 2018. President Rumen Radev and the So- traditional binary gender order at any point, ed through a GERB majority in parliament cialist Party have also openly criticized the not least in its definition of “gender,” which and by former GERB President Rossen Plev- Comprehensive Economic and Trade Agree- deliberately leaves room for country-specific neliev (served from 2012–2017). ment (CETA) between Canada, the EU, and interpretations by the national legal orders. its member states for a considerable amount According to Art. 3, lit. c of the Convention, Second, political actors can easily access the of time. CETA was concluded in 2014. It was “‘gender’ shall mean the socially construct- BCC, but it is largely inaccessible to ordi- approved by all contracting parties (includ- ed roles, behaviors, activities and attributes nary citizens. Its caseload is also dominated ing Bulgaria) in 2016/17. Substantial sec- that a given society considers appropriate for by abstract review proceedings and so-called tions have been provisionally applied since women and men.”5 These aspects were also “constitutional interpretations.” This is a pe- September 2017. mentioned in the dissenting opinions of the culiarity of some post-socialist constitution- four BCC judges. al courts, where certain state authorities are Although President Radev did not openly entitled to request interpretations of consti- challenge CETA before the BCC, he request- A main consequence of the decision was tutional provisions without any specific pre- ed a binding interpretation of several consti- that the BCC obstructed ratification of the requisites. In contrast, there is no individual tutional provisions and equipped this request Istanbul Convention, which could have been constitutional complaint and only the two with some questions related to CETA. He an important step in the fight against gen- Supreme Courts (none lower) are allowed thereby attempted to defeat ratification of der-based and domestic violence in Bulgaria. to initiate concrete review proceedings. Al- the treaty. Radev specifically asked about This was not the first time the BCC appeared though the Ombudsman (or -woman) of the the conditions under which so-called “mixed to act as a highly politicized body. Instead Republic of Bulgaria (since 2006) and the treaties” jointly concluded by the EU and its of defending key constitutional principles, Supreme Bar Council (since 2015) may ad- member states with a third country become e.g., human dignity (Art. 6, § 1 Const.) or dress the BCC with questions related to hu- part of Bulgarian law. Additionally, he asked the special protection of mothers (Art. 47, man and citizen rights, this has not led to a whether CETA constituted a transfer of na- § 2 Const.), the Court bowed to pressures significant increase in the number of cases tional sovereignty rights, which would re- from the political majority and vocal social brought before the Court. Together, these quire ratification according to Art. 85, § 1, groups. rules lead to a comparatively low caseload, No. 9 Const. Although not explicitly men- but result in a high degree of politicization in tioned, this referred to the establishment of III. CONSTITUTIONAL CASES court decisions. an Investment Court System for investment protection and dispute resolution. Since the The BCC has been criticized as a politicized Nevertheless, 2018 was the most active year aforementioned constitutional provision re- body for a long time. Such criticism comes for the BCC since 2001 with 17 issued de- quires a two-thirds majority of all deputies from experts in the political and legal sci- cisions. Six cases were brought before the for ratification, this would provide the oppo- ences as well as the Bulgarian media.6 The Court by the two Supreme Courts, five by sitional BSP with its current 79 of 240 seats BCC’s politicization is mainly derived from parliamentarians, three by the Supreme Bar in the National Assembly, almost a blocking its appointment rules for judges and config- Council, two by the Ombudswoman, and minority against CETA’s ratification. uration of the types of procedure. First, the one each by the President and the Prosecu- 7 Court consists of 12 judges who are appoint- tor General. The following passages will Despite four dissenting votes questioning the ed for a non-renewable term of nine years. describe the most important decisions of admissibility of Radev’s request, the consti- Four judges are appointed by the President the Bulgarian Constitutional Court (except tutional judges unanimously rejected the of Bulgaria, four are elected by the Nation- for its ruling on the “Istanbul Convention,” President’s implicit claim for the unconsti- al Assembly through a simple majority, and which was examined above). tutionality of CETA. On April 17, 2018, the four are elected by the joint meeting of the BCC declared that mixed treaties referred judges of the two highest ordinary courts 1. Decision No. 7/2018: The Comprehensive to the external relations of the EU (and its (i.e., the Supreme Court of Cassation and the Economic and Trade Agreement (CETA) member states) with other countries. Such Supreme Administrative Court, also with a treaties do not therefore “confer to the Euro- simple majority). This allows for politically The Istanbul Convention was not the only pean Union powers ensuing from this Con- 5 Emphases added. 6 4PJOHLS/LPUHUK:[LMHU,^LY[º/V^+V;`WLZVM7YVJLK\YL(ɈLJ[[OL+LNYLLVM7VSP[PJPaH[PVUVM,\YVWLHU*VUZ[P[\[PVUHS*V\Y[Z&(*VTWHYH[P]L:[\K` of Germany, Bulgaria, and Portugal’ (2016), 9 ,\YVWLHU1V\YUHSVM3LNHS:[\KPLZ "7VSPUH7H\UV]Hº2HR2:Z[HUHWVSP[PȏLZRPVYNHU»B/V^[OL*VUZ[P[\[PVU- al Court Became a Political Body] +L\[ZJOL>LSSL 6J[VILY #O[[WZ!WK^JVTW ,.@%HJJLZZLK 1HU\HY` 7 Two claims by the Supreme Court of Cassation and the Supreme Bar Council were jointly decided (No. 6/2018; see below, subsection III.5). 2018 Global Review of Constitutional Law | 39 stitution” as stipulated in Art. 85, § 1, No. a subjective right for the employer. ing parties (GERB and the United Patriots), 9 Const. and can be ratified by an ordinary In a reaction to this judgment, Ombuds- which reproached Zhablyanov for criticizing parliamentary majority. The BCC also ruled woman Manolova submitted a draft amend- Bulgaria’s friendship treaty with Macedo- that mixed treaties (as with any other inter- ment to the Labor Code to the parliament. If nia (signed in August 2017), describing the national treaties ratified by Bulgaria) were passed, it would limit the possibility to pay totalitarian “People’s Courts” (which were part of national law and thus supreme to na- less than the contractually agreed salary to established by the Bulgarian communists in tional legislation. On December 6, 2018, the a one-month period. The National Assembly 1944) as part of a “necessary and inevitable National Assembly finally and almost unan- had not yet considered this proposal at the wartime justice,” and violating order in the imously ratified CETA with 102 supportive end of 2018. parliament on February 1 during a tribute to votes, one negative vote, and 10 abstentions the victims of the communist regime. (the latter 11 votes were cast by BSP depu- 3. Decision No. 2/2018: Resignation of a ties). deputy A total of 60 BSP deputies challenged Zh- ablyanov’s removal before the BCC. They 2. Decision No. 1/2018: Employees’ rights Deputy Delyan Dobrev (GERB) issued his argued that the decision did not conform to resignation on October 3, 2017. This was a Art. 5, § 1, No. 2 of the Standing Orders of In its first decision issued in 2018, the BCC reaction to the so-called “Kumgate” scandal, the National Assembly because Zhablyanov submitted a January 16 ruling on a case filed which revealed that Dobrev had placed his did not “systematically exceed” his rights as by Ombudswoman Maya Manolova against cousins and groomsmen in key city adminis- stated in the motives of the parliamentary de- a provision of the Labor Code stemming tration positions in his hometown of Hasko- cision. They argued that the decision would from 1992. According to Art. 245, § 1 of the vo in his former capacity as Minister of Eco- therefore breach several constitutional provi- Labor Code, employers must “guarantee” nomic Affairs (served in 2012/13). However, sions, including the rule of law (Art. 4 Const.) their employees 60% of their contractually the parliamentary majority refused to accept and the constitutionality and legality of the agreed salary as long as the payment is at Dobrev’s resignation. Dobrev’s mandate as decisions of the National Assembly (Art. 73. least equal to the statutory minimum wage. deputy thus remained active. This move by Const.). The court’s decision was again highly This provision was designed to allow com- the governing parties to protect an affiliated disputed among the judges, this time without panies to overcome economic difficulties by politician was brought before the Constitu- revealing an obvious party pattern. The BCC lowering salary payments. Manolova argued tional Court by the oppositional Socialists. rejected the claim by a 7-to-5 majority on No- that the provision contradicted several con- The Court followed their claim, according vember 6, 2018, thereby subscribing to the stitutional provisions, including Art. 48, § 5 to which a deputy’s “resignation present- majority opinion in parliament. Const., which states that “employees shall be ed before the National Assembly” (Art. 72, entitled to […] remuneration for the actual § 1, No. 1 Const.) is an individual decision 5. Decision No. 6/2018: Code of Criminal work performed.” She also pointed out that it of the deputy and cannot be rejected by the Procedure I violated the social state principle in the con- parliament. The judgment was highly disput- stitutional preamble. ed amongst all 12 judges and only reached As mentioned in the beginning of this report, a seven-to-five majority (the narrowest pos- Bulgaria has received regular criticism for its The BCC rejected these claims in a contro- sible). Since the five dissenting judges had lack of success in combating corruption. In YHUVLDOGHFLVLRQ:KLOHVL[MXGJHVUXOHGWKDW all either been appointed by former President early 2018, the National Assembly changed the claim was unfounded and two argued Plevneliev (GERB) or elected by a GERB the Code of Criminal Procedure (CCP) to for inadmissibility, four dissenting judges majority in parliament, politicization along fulfill the European Union’s ongoing de- (including Court Chairman Boris Velchev) party lines may explain the stark controversy mand to improve the legal framework for ruled that it was founded. The first six judg- among the judges in an otherwise clear case. fighting high-level corruption and organized es decided that Art. 245, § 1 of the Labor crime. An extension of the competencies of Code did not give employers the discretion 4. Decision No. 16/2018: Removing a the Specialized Criminal Court was partic- to pay less than contracted remuneration. Vice-President of the National Assembly ularly contested. This body was established This was based on an interpretation in con- as a special anti-corruption court in 2011. formity with the constitution and a review of Another conflict occurred between the ruling An amendment of Art. 411a CCP gave the the historical motives of the parliament from and oppositional parties regarding an inter- court competency to judge members of the 1992. The challenged provision guarantees nal parliamentary decision. This also reached government, deputies, judges, prosecutors employee rights (even in cases of economic the Constitutional Court in 2018. The Na- and investigators, mayors and deputy may- or financial difficulty) in the sense that pay- tional Assembly voted Vice President Valery ors, and several other categories of high state ments can only be lowered to a certain ex- Zhablyanov (BSP) out of office on February officials not only in cases of corruption and a tent. Thus, the provision does not constitute 21. This decision was supported by the rul- variety of other crimes. 40 | I•CONnect-Clough Center The Supreme Court of Cassation and the Su- thus strengthened the rule of law and the V. FURTHER READING preme Bar Council challenged this amend- right to legal defense. ment before the BCC by arguing that a court Martin Belov, ‘Bulgaria,’ in A. Alen and D. competent for a certain group of suspects (and 7. Decision No. 10/2018: Suspension from Haljan (eds.), International Encyclopaedia not for certain crimes) was not a “specialized office of civil servants of Laws: Constitutional Law, Suppl. 132 court” as allowed for by Art. 119, § 2 Const., (Kluwer Law International, 2018). but an “extraordinary court,” which was The final BCC case presented in this re- banned by Art. 119, § 3 Const. This was there- port involves a Supreme Court of Cassation Radosveta Vassileva, ‘Bulgaria’s Consti- fore in breach of the constitutional principles challenge to Art. 214, § 2 of the Law on the tutional Troubles with the Istanbul Con- of the rule of law and equality before the law. Ministry of Interior. This provision stipu- vention,’ Verfassungsblog (2 August 2018) lated that a civil servant would lose their 8 This judgment also reviewed (and accepted) another minor amendment to the CCP. 2018 Global Review of Constitutional Law | 41 Cameroon Paul Zibi, Senior Lecturer, University of Bamenda, Fellow of the Global Youth Intensive Program of Constitutional Law Scholars/IACL I. INTRODUCTION stitutional developments, those elections re- sulted in the beginning of the second Senate Since the last major constitutional overhaul and particularly the issuance of the very first in 1996,1 Cameroon has awaited the effec- Constitutional Council rulings. The elector- tive establishment of institutions provided al proceedings resulted in some decisions by the Constitution.2 This is true of the Con- which will enrich the case law of this or- stitutional Council, created by the Constitu- gan in charge of constitutional adjudication. CAMEROON tion of 18 January 1996 but delayed in han- 2019 will also be an electoral year for legis- dling cases until 2018—twenty-two years lative, regional and municipal elections that after its creation. Though this Cameroonian were postponed because the country could constitutional adjudication body is important not financially hold three major elections in to the legal apparatus, it still did not fulfill 2018. expectations in 2018, as the crisis in the two English-speaking regions was getting II. MAJOR CONSTITUTIONAL worse.3 This State form-based crisis, started DEVELOPMENTS in October 2016,4 was apparently not critical enough for the government to engage in con- Though constitutional systems are intended stitutional reform that would put an end to to be rooted in time to guarantee their reli- it and lead to peaceful cohabitation between ability, sometimes the legal and institutional Anglophone and Francophone regions of the framework may need to be reconsidered in country.5 order to suit the changes of present-day soci- eties. This is undoubtedly, to a certain extent, On the contrary, 2018 resulted in the gov- the justification and the merit of the present ernment’s infra-constitutional responses annual report of the Global Review of Con- to a crisis having an obvious constitutional stitutional Law of the I•CONnect-Clough nature. However, senatorial and presidential Center. This one questions the major consti- elections have been the main constitutional tutional developments carried out by country activities of the year that conveyed some over a specific year. However, there is no steps forward, though they did not lead to need for substantial disruptions to set a value a political landslide. Indeed, as major con- on a constitutional system. It is continuous- 1 The Constitution of Cameroon, usually known as the Constitution of 18 January 1996, is actually an amendment of the Constitution of 2 June 1972, though there has always been a controversy as to whether it is a new constitution or an old one. 2 The current Constitution of Cameroon came into force on 18 January 1996 and was amended on 14 April 2018. 3 ;OL*VUZ[P[\[PVUKVLZUV[KPɈLYLU[PH[LIL[^LLU[OL[LUYLNPVUZVM*HTLYVVUHJJVYKPUN[V[OLPY SPUN\PZ[PJPKLU[P[`ILJH\ZL[OLJV\U[Y`SLNHSS`RUV^UHZIPSPUN\HSWYHJ[PJLZ,UNSPZOHUK-YLUJOHZVɉJPHS SHUN\HNLZ;OLYLMLYLUJLVM¸,UNSPZOZWLHRPUNYLNPVUZ¹OLYLPZ[`WPJHSS`ZVJPVSVNPJHSK\L[V[OLMHJ[[OH[PU these two regions English is the dominant language, as French is in the eight others. 4:LL*4-VTIHK¸¸+L]LSVWTLU[ZPU*HTLYVVUJVUZ[P[\[PVUHSSH^¹ 0*65ULJ[*SV\NO*LU[LY Global Review of Constitutional Law 37 (2017). 5 Cameroon, which had been colonised by Germany in 1884, is a bilingual country practising English and French inherited from British and French dominance, after the country was placed under the aegis of the UN in 1946 following the defeat of the German army during the Second World War. 42 | I•CONnect-Clough Center ly tested by its own application. The major exist) and municipal councilors, who are the ternational attention to the accountability constitutional developments that have taken only electors who have cast their ballot for and transparency of the electoral process in place in Cameroon during 2018 fall in line the first two elections to the Senate. Cameroon. However, they were etched into with this. The cases that were looked at did memory and resulted in some non-negligible not allow for either a major breakthrough of The second major political event held in decisions that will henceforth be part of the the existing constitutional system or its rein- 2018 was the election of the President of constitutional case law. forcement, though that reinforcement can be the Republic for a seven-year term.8 The in- inferred from the implementation and appli- cumbent President, Paul Biya, who has held III. CONSTITUTIONAL CASES cation of constitutional and political events office since 6 November 1982, faced eight provided within the constitutional text. The other candidates. Among them are some re- The very first decisions of the Constitutional current report can therefore be based on three sounding names such as Maurice Kamto, an Council rendered following disputes of the main events, namely the senatorial and presi- internationally known law professor; Akere elections held in 2018 were not what one dential elections that respectively took place Muna, a lawyer whose reputation crosses would have expected. The seventeen peti- on 25 March and 7 October 2018, and a third borders; and Josua Osih, who inherited the tions lodged before the Constitutional Coun- event related to the effective establishment chairmanship of the historical opposition par- cil by five defeated candidates pleading for of the Constitutional Council, whose very ty Social Democratic Front (SDF) ruled until the partial or total cancellation of the pres- first rulings dealt with the electoral disputes then by Ni John Fru Ndi. Following results idential election have either been dismissed stemming from both sets of elections. made public by the Constitutional Council, or declared inadmissible. The same outcome the reigning party, known as the Cameroon resulted with petitions submitted during the Senatorial elections held in March 2018 People’s Democratic Movement (CPDM), of post-electoral dispute of senatorial elections. mark the beginning of the second composi- the incumbent President Paul Biya won the If some petitions looked trivial, there were 6 tion of the chamber. The history of the Up- election with 71.28% of the vote, followed others—though held inadmissible—that per House of the Cameroonian Parliament is by the Cameroon Renaissance Movement raised important legal matters. This report similar to the other political institutions laid (CRM) of Maurice Kamto with 14.2% and in discusses two of these petitions that can be down within the constitutional Act of 18 Jan- third position, the Universe Party of 39-year- considered representative of some major uary 1996, whose effective establishment oc- old Cabril Liibi with 6.28%. The SDF, long stakes of the electoral process and the un- curred more than two decades later. Beyond considered the primary opposition party, derlying problem of the ongoing crisis in the simple fact that they opened the second came in fourth position with a disappointing Cameroon. The first one, lodged by Maurice term of the Senate, these elections provided UHVXOWRI:KLOHWKHVHRIILFLDOUHVXOWV Kamto, beyond the legal relevance that can an opportunity to assess the first mandate do not really surprise the observers of the be inferred from some pleas in law put for- of this chamber whose mission, pursuant to Cameroonian political scene, they nonethe- ward, purported to undermine the electoral Section 20, Paragraph 1 of the Constitution, less help draw some lessons. process of Cameroon. The second petition, is to represent regional and local authorities. related to post-electoral disputes of senato- The least that can be raised on this point is The main lesson was the electoral litigation rial elections, raised the question of voter that, since the first elections held on 14 April conducted before the Constitutional Coun- turnout in areas that suffer from instability. 2013 setting up the effective functioning of cil, whose proceedings were only the second the Senate, the process of decentralization time this court has sat as constitutional judge 1. Kamto Maurice v. Constitutional 9 has stagnated under conflicts as regards the and as judge of electoral operations. Among Council: Disqualification and discharge for prerogatives between national institutions the seventeen petitions submitted before the legitimate suspicion DQGORFDORQHV:RUVHVWLOOWKHHVWDEOLVKPHQW Constitutional Council by the defeated can- of regions as regional and local authorities, didates seeking the cancellation of the pres- This case was lodged on the occasion of the in other words as decentralized local collec- idential election, the Council noted the rel- post-electoral disputes by Maurice Kamto, tivities, within which senators are suppos- evance of some arguments brought forward defeated candidate in the 7 October 2018 7 edly being elected and appointed, is still by the petitioners. Furthermore, the pro- presidential election, where he asked for pending. The absence of regions skewed the ceedings were broadcast live on State tele- the recusal of some members of the Con- election of senators since they are supposed vision and private television stations. Those stitutional Council. These petitions were to be voted by an electoral college compris- public hearings, seen by some as democracy intended to support other requests that tar- ing both regional councilors (who still do not in progress, tended to call national and in- geted the partial or total cancellation of pres- 6 ;0U*HTLYVVU[OL:LUH[LPZJVTWYPZLKVMZLUH[VYZ VM^OVTHYLLSLJ[LKI`PUKPYLJ[\UP]LYZHSZ\ɈYHNLHUKHWWVPU[LKI`[OL7YLZPKLU[VM[OL9LW\ISPJ 7 According to Section 20, Paragraph 2 of the Constitution and Section 214 of the Electoral Code, each region shall be represented in the Senate by ten (10) sena- [VYZZL]LU VM^OVTLSLJ[LKI`PUKPYLJ[\UP]LYZHSZ\ɈYHNLVUHYLNPVUHSIHZPZHUK[OYLLHWWVPU[LKI`KLJYLLVM[OL7YLZPKLU[VM[OL9LW\ISPJ 8 Since the amendment of the Constitution of 14 April 2008, the President of the Republic is elected for a term of 7 years. He shall be eligible for re-election. 9 The Supreme Court previously acted as the electoral judge, according to the provisions of Section 64, Paragraph 4 of the Constitution. 2018 Global Review of Constitutional Law | 43 idential election results due to irregularities to the Council to have “jurisdiction of its ju- members who are not acting as judges, even that have been recorded, according to the risdiction,” in accordance with Section 18 of though some are career magistrates,16 cannot petitioner, during electoral operations. The Law No. 2004/005 of 21 April 2004, laying justify their disqualification for the sheer six concerned petitions10 were examined by down the status of members of the Consti- fact that only sitting magistrates,16 namely the Council following formal requirements tutional Council as amended by Law No. judges, can be recused under Cameroonian and ruled inadmissible for procedural rea- 2012/016 of 21 December 2012. law. Indeed, in accordance with Section sons. Nonetheless, Kamto’s petition sought 591 of Law No. 2005/007 of 25 July 2005 to recuse some members of the Constitu- This section provides that: “The Constitu- to lay down the Criminal Procedure Code, tional Council and therefore provoke their tional Council ruling by a majority of (2/3) any sitting judge can be recused for any of discharge for legitimate suspicion. If these two-thirds of its members may, on its own the reasons restrictively specified by that claims surprised many legal theorists and motion or at the request the authority of des- law. Furthermore, once designated, as stated practitioners because neither the Electoral ignation, terminate, after the completion of implicitly by Law No. 2004/005 of 21 April Code11 nor the law laying down the function- a contradictory procedure, duties of an in- 2004 laying down the status of members of ing and the organization of the Constitution- cumbent member who might have shirked the Constitutional Council, all members of al Council provided for the disqualification his commitments [or] breached the regime the Council are said to be discharged from and the discharge of members of this institu- of his incompatibilities…” their political duties.17 tion, the audacity of these petitions should be recognized. However, having looked close- Kamto’s petitions require attention to a It is on the basis of this request for disqual- ly at the issue, one can honestly admit that number of observations concerning Cam- ification that Petition 355 intervened. Its they raised substantive matters which cannot eroonian substantive law in order to under- purpose was related to the discharge for le- merely be swept away on the sole basis of stand the grounds for their rejection by the gitimate suspicion of the above-mentioned their illegality. Constitutional Council. In the first instance, members of the Constitutional Council. following the disqualification of members, The preliminary motion filed in this petition :LWKLQKLVILUVWILYHSHWLWLRQV0DXULFH.DP- irrespective of the fact that the Council, by sought the referral of the post-electoral liti- to requested the disqualification of six mem- joining all the petitions due to their connec- gation of the presidential election to another bers of the Constitutional Council, namely tion,13 declared them as inadmissible be- judicial body because of legitimate suspicion Clément Atangana (President of the Coun- cause the author lacks standing,14 ruled on towards the members of the Constitutional cil), Emmanuel Bonde, Ahmadou Tidja- the substance by declaring that the purpose Council. This request also fell in line with ni, Jean Baptiste Baskouda, Joseph-Marie of these requests are “a preliminary question inadmissibility and was declared unfounded %LSRXQ:RXP DQG WKH ODWH -HDQ )RXPDQH which should be decided through a special because no statutory law in Cameroon ex- Akam, who recently passed away. He based procedure the petitioner did not initiate.”15 pressly allowed the discharge of a member his request on the fact that those members regarding electoral disputes before the Con- of the Constitutional Council have been for Lawfully arguing, it should be understood stitutional Council, which is the last-resort some, and are still for others, members of the that it is not possible, in the current positive body in the matter of presidential, senatorial ruling party CPDM. He wanted the Council law of Cameroon, for a petitioner to recuse and legislative elections. to disqualify its own members because they the members of the Constitutional Council. were neither independent nor impartial to en- This is an institution that enjoys a peculiar 2. Njenje Valentine Kleber v. Elecam, sure the regularity, sincerity and transparen- political stature inherited from the French CPDM, ANDP, UNDP cy of the presidential election. He therefore model, unlike some other countries where requested their replacement by the authority constitutional justice is exercised through The petition lodged before the Constitutional in charge of their designation.12 He pleaded judicial bodies. The political past of some Council by Njenje Valentine Kleber, 18 repre- 10 Petition Nos. 350, 351, 352, 353, 354, 355/SRCER/G/SG/CC of 15 October 2018. 11 3H^5VVM (WYPSYLSH[PUN[V[OL,SLJ[VYHS*VKLHZHTLUKLKHUKTVKPÄLKI`3H^5V VM+LJLTILY 12;OLLSL]LU4LTILYZVM[OL*VUZ[P[\[PVUHS*V\UJPSHYLKLZPNUH[LKMVYH[LYTVMVɉJLVMZP_ `LHYZHZMVSSV^Z![OYLLPUJS\KPUN[OL7YLZPKLU[VM[OL*V\U- cil, by the President of the Republic; (3) three by the President of the National Assembly after consultation with the Bureau; (3) three by the President of the Senate after consultation with the Bureau; (2) two by the Higher Judicial Council. Besides the eleven members provided for above, former presidents of the Republic shall ILL_VɉJPVTLTILYZVM[OL*VUZ[P[\[PVUHS*V\UJPSMVYSPML 13 Petitions Nos. 350, 351, 352, 353 and 354. 14 Kamto v. Constitutional Council (n 024/CE/CC/2018) 16 October 2018. 15 Ibid. 16 Among the eleven members of the Constitutional Council, two, including the President, are career magistrates. 17 Section 5, Paragraph 1. 18 Petition No. 007/CCES/2018 of 28 March 2018. 44 | I•CONnect-Clough Center sentative of the party SDF within the Region- electoral district, he argued that there was tion points out that in the Manyu Division, al Supervisory Commission19 of the South- no gain saying that no election took place in all one hundred voters21 were locked up and :HVW UHJLRQ GXULQJ WKH VHQDWRULDO HOHFWLRQV some places of this subdivision. According cut off from any communication with the of 25 March 2018, is similar to the request to him, there was cogent evidence that all other participating political parties, with the made on the occasion of post-electoral dis- along, terror and horror gripped the locality exception of the ruling party CPDM. They putes of presidential polling by Josua Osih.20 as there was a sustained exchange of gunfire were supposedly housed in different hotels In this petition, he requests from the Council between unidentified assailants and forces of around the electoral ward two days before the cancellation of senatorial elections with- law and order, causing civilians to flee for the polling date. in the Division of Lebialem, especially in the their safety. In order to challenge the valid- Kupe-Manengouba Subdivision and by ex- ity of the election in this electoral constitu- Although the Constitutional Council de- WHQVLRQZLWKLQWKHUHJLRQRIWKH6RXWK:HVW ency, he referred to irregularities related to clared the petition of Njenje Valentin Kleber as a whole. According to the petitioner, these the sole signature on result reports by repre- to be “inadmissible for lack of locus standi” elections were severely affected by incidents sentatives of the ruling party. He concluded and for lack of reliable evidence of irregular- that could have struck down the outcome of from the above that no election took place ities presented to the Council, a core ques- senatorial polls in this electoral constituency. in Kupe-Manengouba and that the electors tion still emerged from this request: whether were simply disenfranchised because of the an election can reasonably be held within a To meet this goal, the litigant based his re- “series of attacks by unidentified gunmen.” difficult security environment.22 In answer- quest on Section 132, Paragraph 2 of the ing the question, the nature of the election Electoral Code, which states: “The Consti- The second case illustrated by the petition- at stake should be taken into account. As tutional Council shall rule [on] all petitions er concerned the Lebialem electoral district. far as the presidential election is concerned, filed by any candidate, any political party He argued that there is evidence according where the electoral constituency is nation- which took part in the election or any person WRZKLFKWKLUWHHQYRWHUVRIWKH:DEDQHDQG wide, the issue of the coverage rate of votes serving as a representative of the Adminis- Alou areas were locked up in Dschang in validly cast by district or region may appear tration for the election, requesting the total or WKH :HVW UHJLRQ DQG FRQYH\HG E\ KHOLFRS- anecdotal. This is what the Constitutional partial cancellation of electoral operations.” ter to Menji in order to cast their ballot in Council acknowledged within its rulings on an empty city. From this allegation, he tried facts alleged in a similar petition lodged on He argues that: to show that this was constitutive of the vi- the occasion of the 7 October 2018 presiden- olation of laws and fundamental freedoms, tial election.23 It is the same argument that This is predicated upon hard, incontro- which are key conditions for free, fair, trans- was raised by the lawyers of the body in vertible and compelling facts and evi- parent and credible elections, and a violation charge of elections, namely Elections Cam- dence garnered before, during and after RI WKH 6RXWK:HVW JRYHUQRU¶V LQVWUXFWLRQV eroon (ELECAM), and those of the winning 25 March 2018 senatorial elections in the prohibiting all movements on polling day. party in response to Maurice Kamto’s and various polling stations throughout the In a polling station, the applicant noted that Josua Osih’s petitions: an election having a 6RXWK:HVW UHJLRQ +H LOOXVWUDWHV VRPH only twenty-seven people effectively cast nationwide constituency cannot be partially cases that will guide the members of the their ballot compared to ninety-three peo- annulled. Constitutional Council in reaching a rea- ple enrolled on the electoral list. Moreover, he reportedly claimed that this polling sta- soned decision that will uphold the rule IV. LOOKING AHEAD of law, fairness, equity and justice, to Wit. tion had been closed at 4:30 pm instead of 6:00 pm as provided by the Electoral Code. In 2019, there should be no constitutional The other argument invoked by the plaintiff For the cases that have been illustrated, the developments that will substantially change was that two political parties, namely ANDP petitioner sought to demonstrate that an the underlying problems Cameroon is facing and UNDP, a coalition to the ruling party, election could not be held in suitable con- today. The year will also be marked by the did not appoint their representatives in the ditions within a context of instability due holding of elections that were supposed to Regional Supervisory Commission of votes to the ongoing crisis. Concerning the first take place in 2018 but were postponed be- as required by the electoral law. The peti- case illustrated in the Kupe-Manengouba cause of cost reasons. These are communal 19 (JJVYKPUN[V:LJ[PVU 7HYHNYHWOVM[OL,SLJ[VYHS*VKL[OL9LNPVUHS:\WLY]PZVY`*VTTPZZPVUZOHSSLUZ\YL[OLJV\U[PUNHUK]LYPÄJH[PVUVM]V[LJV\U[PUN operations on the basis of reports forwarded by polling stations. 20 1VZ\H6ZPO],SLJHT*7+4 (n 025/CE/CC/2018) 17 October 2018. 21 Pursuant to Section 222, Paragraph 1 of the Electoral Code, senators are elected by regional and municipal councilors. 22 Njenje Valentine Kleber v. Elecam, CPDM, ANDP, UNDP (n 008/CE/CC/2018), 3 April 2018. 23 Josua Osih (n 025/CE/CC/2018). 2018 Global Review of Constitutional Law | 45 elections to elect local councilors and legis- lative ones that should start another five-year term of office for members of parliament. More importantly, regional elections, if they are held for the first time, will significant- ly contribute to setting regions in place in a definitive way as decentralized local author- ities.24 The hope surrounding these regional elections would be to put an end to the hy- per-centralization of the State, which if it endures will jeopardize the decentralization process and exacerbate local tensions. V. FURTHER READING Charles M Fombad (ed), Constitutional Adjudication in Africa (Oxford Universi- ty Press, 2017), published online (14 June 2018). 24 A region in Cameroon has a double status. On the one hand, it is an administrative unit, i.e., an extension of the central government headed by an appointed governor; on the other hand, it is a decentralized collectivity where the regional executive should be elected be the local community. 46 | I•CONnect-Clough Center Cape Verde José Pina-Delgado Associate Professor/Associate Justice Instituto Superior de Ciências Jurídicas & Sociais/Constitutional Court I. INTRODUCTION ties that circumstantially happen to be in the opposition, is not bad, at least when The Cape Verdean (CV) constitutional sys- compared with African neighbors and some tem is rather recent because the country other countries in the developed world. This only achieved independence from Portugal report aims to present political, legislative, in 1975,1 and from then until 1990 it had a jurisprudential and doctrinal developments CAPE one-party system.2 The Constitution in force of CV Constitutional Law in 2018. VERDE was enacted in 1992,3 establishing a demo- cratic liberal system based on the rule of law, II. MAJOR CONSTITUTIONAL basic rights and people’s sovereignty, which DEVELOPMENTS adopts the values of human dignity, freedom of the individual, equality and solidarity. 2.1. At the political and social levels, 2018 4The country has a semi-presidential system was marked by the announcement of a of government5 with independent courts: new composition of the Executive that three superior courts, the Constitutional expanded the numbers of ministers and Court (CC), the Supreme Court of Justice secretaries of state,8 with the addition of (SC) and the Auditors Court as well as two a Deputy Prime Minister and a Minister of regional appeals courts and district courts in State. This development was understood almost all municipalities of the Archipelago. as a sort of abjuration of 2016 election campaign pledges of the current ruling Between independent rankings and studies6 party. That was the result of 2016 election and a political regime that has been cele- campaign pledges. Constitutional contro- brated in the early twenty-first century,7 the versies between the Government (GR) and health of liberal democracy in Cabo Verde, the President of the Republic (PR) emerged despite some criticism from political par- 1 Richard Lobban, Jr., Cape Verde. From Criolo Colony to Independent Nation (Westview Press, 1995). 2 Humberto Cardoso, O Partido Único em Cabo Verde. Um Assalto à Esperança (INCV, 1993); Mário Silva, Contributo para a História Político-Constitucional de Cabo Verde, 1974-1992 (Almedina, 2015). 3 Constitutional Law Nº 1/1992, of 25 September, consolidated version republished after its third revision, OJ, I-S, n. 17, n. 12, 03.05.2010, pp. 394-457, and, for a presentation in English, Aristides Lima, ‘Cape Verde’ in: Gerhard Robbers (ed.), Encyclopaedia of World Constitutions (FoF, 2007) vol I, 174-178. 4 José Pina-Delgado, ‘Constituição de Cabo Verde de 1992 – Fundação de uma República Liberal de Direito, Democrática e Social’ in José Pina-Delgado and Mário Silva (eds.) Estudos Comemorativos do XX Aniversário da Constituição de Cabo Verde (Edições ISCJS, 2013), 113-159. 5 6J[m]PV(TVYPT5L[VHUK4HYPUH*VZ[H3VIVº:LTPWYLZPKLU[PHSPZTPU3\ZVWOVUL*V\U[YPLZ!+PɈ\ZPVU and Operation’, 21 Democratization, 434-457. 6 See Democracy for All? V-Dem Annual Democratic Report 2018 (V-Dem Institute, 2018), 94, where it is JSHZZPÄLKHZHSPILYHSKLTVJYHJ`"+LTVJYH[PJ0UKL_ !4L[VV&7VSP[PJHS7HY[PJPWH[PVU7YV[LZ[ZHUK +LTVJYHJ`,0< YHURPUN NSVIHSS`HUKZLJVUKPU(MYPJHPU[OL\W[PLYVMÅH^LKKLTVJYHJPLZ HUK[OL -YLLKVT/V\ZL9LWVY[#O[[WZ!MYLLKVTOV\ZLVYNYLWVY[MYLLKVT^VYSK JHWL]LYKL% accessed 12 February 2018, appearing with the status of free. 7 Peter Meyns, ‘Cape Verde: An African Exception’ (2002) 13 JoD 153-165, and Bruce Baker (2006), ‘Cape Verde: the Most Democratic Nation in Africa?’ 44 JMAS 493-511. 8 Presidential Decree [PD] No 2/2018 of 4 January, OJ, I Serie [I-S], n. 2, 04.01.2018, 26. 2018 Global Review of Constitutional Law | 47 on matters of foreign policy related to the duct as an impartial umpire, and acrimoni- which substituted the previous statute of constitutional division of powers between the ous discussions between the center-right, 1988, approved before the Constitution of two branches, with the Head of State arguing SUREXVLQHVV DQG SUR:HVWHUQ PDMRULW\ 1992 and embedded in a more authoritar- that the GR has a duty to consult with him on party (MpD) and the center-left, more ian criminal philosophy, and the Right to negotiations with foreign powers in order to statist and Afro-nationalist main opposi- Food Act,16 which recognizes this right of conclude a treaty. The country also experi- tion party (PAICV)11 as well as with the individuals and collectivities to continuous enced some social unrest with major strikes, junior parliamentary party, center demo- access to food in sufficient quantities. In in particular a controversial one promoted cratic-Christian UCID. This was the case the labor and social security domains, oth- by the national police union that resulted in when the Minister of Foreign Affairs and HU PHDVXUHV LQFOXGHG WKH 6WXGHQW:RUNHU disciplinary proceedings and the dismissal of National Defense announced a new secu- Statute;17 the Telework18 Act, which ex- some of its members from the corporation,9 rity partnership with the US that led to the tends Labor Code protection to telework- and the organization of semi-autonomist approval of a SOFA,12 and the enactment HUV DQDPHQGPHQWWRWKH0LQLPXP:DJH marches in the Northern Islands of the Archi- of amendments to the Foreigners Act in Law to increase the base amount;19 and an pelago aimed at increasing the decentraliza- order to exempt nationals of EU member act to protect the legitimate expectations of tion of power; countries from visas to enter the country, workers as a result of unforeseen and detri- where the main source of revenue is the mental effects of an amendment to the gen- 2.2. It was also a year of consolidation of tourism industry.13 Verbal confrontations eral law on social security.20 important Constitutional Institutions in- between the two main parties moved to cluding the CC, the Ombudsman and the an unseen event in the country when two At the institutional level, 2018 led to the National Authority on Data Protection, MPs entered into physical engagement at approval of the Regulation of Labor Inspec- though in the last cases the consolidation Parliament House.14 torate21 and of the Regulation of the Ombuds- was combined with complaints of bud- man Office.22 It also saw the promulgation getary and staff problems in conducting 2.3. Despite this, relevant legislation was of a decree to regulate media companies and their respective missions.10 There was approved in domains important for Con- media outlet registration, allocating these continuous political strife in the Parlia- stitutional Law: powers to the independent National Media ment (Assembleia Nacional) involving Regulation Authority,23 and the passing of a different constitutional interpretations of 2.3.1. In the rights protection system, im- law to designate the National Commission on the role of the opposition and the limits portant substantive developments are note- Human Rights and Citizenship as the nation- of the parliamentary majority powers. The worthy, such as the enactment of the Code al preventive mechanism for purposes of the controversies included the Speaker’s con- of Execution of Criminal Sentences, 15 Optional Protocol to the Convention Against 9 See Inforpress, 17/07/18, available at 48 | I•CONnect-Clough Center Torture, granting it powers to visit places of III. CONSTITUTIONAL CASES of causes of cessation of functions of its sub- detention and also to receive individual com- stitute justices written for the Court by Jus- 24 plaints (Article 2). In addition, also com- The CC, composed of three permanent jus- tices Lima and Pina-Delgado, respectively, ing from an international source, Parliament tices, was created by a 1992 amendment of and to a post-opinion request related to clar- DXWKRUL]HGDFFHVVLRQWRWKH:,32&RS\ULJKW the Constitution, but only started operating ification and alleged omission of a 2017 rul- 25 Treaty of 1996; to the Marrakesh Treaty in 2015, delivering its first ruling in 2016. ing that led to R 9/2018, authored by Justice WR)DFLOLWDWH$FFHVVWR3XEOLVKHG:RUNVIRU In 2018 it maintained close to 30 decisions Pina-Delgado. There were also relevant rul- Persons who are Blind, Visually Impaired, a year. ings included, namely an admissibility deci- or Otherwise Print Disabled of 2013;26 and, sion where the CC, in an opinion written by with a rather unorthodox procedure, ‘acces- Despite the Court having broad jurisdiction, the CJ Semedo, granted its first provisional 27 sion’ to the Open Government Declaration. comprising decentralized and centralized measure involving the decision of a request judicial review of legislation (both pre- and to revert the freezing of assets determined by 28 2.3.2. Rules of Parliament were also en- post-promulgation), constitutional complaint the Public Prosecutor’s Office; another—R acted in June and entered into force in Oc- for violation of civil and political rights by 10/2018: Joaquim Wenceslau v. SC—written tober, inserting new precepts providing for public powers (including the judiciary) and on behalf of the Court by the same Justice bimonthly sessions rather than monthly settlement of electoral, parliamentary and in order to adopt an injunction to declare ones as before; for the obligation of the PM intra-party disputes, of the 29 collective de- null and void a disciplinary procedure where to present himself, once a month, for de- cisions of 2018, 24 involved constitutional a public employee was dismissed from of- bates with the opposition; for the strength- complaints. Nonetheless, some of the rulings fice without the possibility of contesting a ening of the specialized committees role; were mere decisions conceding to the com- change in the indictment; an opinion written for the establishing of an ethics commission plainants the possibility of correcting their for the Court by Justice Pina-Delgado on a and for a rationalization in time available memorials, standard opinions on admissibil- constitutional complaint—Nascimento v. for speeches. The ambitious bill of region- ity written by the CJ (Borges v. SC; Ezeonwu SC—in which, despite not granting the relief alization, which required a two-thirds ma- and Duru v. SC; CIMA v. SC; Barros et al. sought, considered that the appellate court jority, narrowly passed a first reading vote, v. SC; Zirpoli v. District Court of Praia; Se- may have applied an unconstitutional rule but it is not certain if it will attract enough medo v. Director of the Central Penitentiary that conditioned appeal on previous payment support from opposition party benches to of Praia and Minister of Justice), or merit of court fees, which should be scrutinized be definitively approved. opinions written by Justice Pina-Delgado following a request by the Attorney-General; on a matter—invocation of violation of the and, finally, Ruling 23/2018, written by Jus- 2.3.3. Some developments occurred in presumption of innocence in a dimension of tice Pina-Delgado with Justice Lima dissent- the field of the system of justice with the the in dubio pro reo clause in reason of error ing, concerning judicial review of legislation 29 enactment of the Auditors Court Law, in analysis of evidence—that, despite some referred by the Attorney-General where it granting the organ expanded powers of initial divisions, are by now reasonably set- followed a precedent established in a simi- oversight and leading to the appointment of tled between the judges in the sense that the lar case decided in 2016 when it developed new judges to replace predecessors whose CC only intervenes to grant relief if the trial the test it generally applies in cases of rules 30 term of office had long since expired. It is court and the appellate court act arbitrarily challenged on the basis of the principle of also worth mentioning that Ms. Costa and or in a contradictory manner (Barbosa v. SC; legitimate expectations, both in situations of Mr. B. Delgado, elected, respectively, to an Fonseca v. SC; Ezeonwu and Duru v. SC). pure retroactivity and of mere retrospectivity (&2:$6&RXUW RI -XVWLFH MXGJHVKLS DQG of laws. a Judicial Council Chairmanship, left their Other rulings included minor decisions (R. 31 functions as substitute judges of the CC. 18 and 19/2018) related to the confirmation 25 Resolution No 92/IX/2018 of 29 October, OJ, I-S, n. 69, 29.10.2018, 1660-1667. 26 Resolution No 93/IX/2018 of 29 October, OJ, I-S, n. 69, 29.10.2018, 1667-1676. 27 National Assembly Resolution No 75/IX/2018 of 2 March, OJ, I-S, n. 15, 02.03.2018, pp. 369-371. 28 OJ, I-S, n. 41, 21.06.2018, pp. 1060-1095. 29 See Law No 24/IX/2018 of 2 February, OJ, I-S, n. 7, 02.02.2018, 95-120. 30 PD No 28/2018 of 24 October, OJ, I-S, n. 67, 24.10.2018, 1618, appointing Mr. da Cruz, a jurist and career auditor at the Court, as the CJ; Ms. Reis, a career Q\KNL"4Y*HYKVZVHTPUPZ[Y`VMÄUHUJLJHYLLYPUZWLJ[VY"4Y=4VU[LPYVHZLUPVYJHYLLYH\KP[VY"HUK4Y*4VU[LPYVHZWLJPHSPZ[PUÄUHUJLZ 31 Declaration of Cessation of Functions of the Substitute Justices of the CC of 9 October 2018, OJ, I-S, n. 65, 19.10. 2018, 1615. 32 OJ, I-S, n. 21, 11.04.2018, 505-530. 2018 Global Review of Constitutional Law | 49 Major Decisions The PR wanted ‘advice’ on the constitu- pre-trial detention. In the second decision tionality of a norm inserted in the Law of (R 25/2018), written by CJ Semedo for the 1. R 7/2008 - Monteiro v. National Electoral Essential Public Services that expanded its Court,36 the CC dealt with the related matter Commission [NEC] – Electoral Appeal 32 coverage to reach solid urban waste, but al- of establishing whether the SC breached the lowed the service to be charged on the same constitutional clause of presumption of inno- Despite this decision being adopted by the invoice of other public services, leading to cence and the guarantee of not being kept in CC as an Electoral Court, it dealt with im- a situation where failure to pay the former pre-trial detention outside the temporal lim- portant constitutional matters, such as the would suspend the continuous delivery of its of the law when it twice extended its du- principle of participatory democracy and the electricity, water or phone services. The CC ration by appealing to the special complexity principle of equality. It followed a challenge found that such a norm infringed the clauses of the matter and ruled that the rights of the promoted by Mr. Monteiro, a candidate in the that obliged the state to take into account the complainant were violated because the facts last presidential election who had his request economic interests of the consumers as well did not point to an objective complexity and for reimbursement of electoral campaign ex- as the principles of justice—in this matter, because the reasoning of the SC, as far as it penses denied by the NEC on grounds that he overcoming an internal division between stressed that the maintenance of Mr. Teixeira failed to reach the threshold of 10% of votes two of its justices concerning the meaning in pre-trial detention was necessary because established by the Electoral Code. The CC, and reach of the clause—and good faith in the matter was causing ‘social alarm,’ was in an opinion written by Justice Pina-Delga- the relations between the administration and incompatible with his right to freedom of the do with Justice Lima concurring, understood private persons. body and to the value of human dignity. that it was approached not to exercise its role as constitutional jurisdiction but as an 3. Teixeira v. SC I and II – Constitutional 4. PR Referral for Ex-Ante ‘Advice’ on the electoral one and in order, as any court under Complaints Constitutionality of the Enabling Act to Re- the mixed CV judicial review model,33 to set view the General Commercial Companies aside legal rules contrary to constitutional These two decisions are related to the same Code (GCCC) and to Enact the Corpora- principles. In that position, it dismissed the case linked with Mr. Teixeira, who was sub- tions Code (CorC) – Judicial Review argument brought by the plaintiff that the jected to pre-trial detention for allegedly principle of participatory democracy was murdering a person in circumstances that he This referral dealt directly with the constitu- breached by the limit imposed by ordinary understood were classifiable as self-defense. tional distribution of legislative powers be- legislation, stressing, after an examination of In the first decision, R 8/2018,35 written by tween the National Assembly and the GR in the preparatory works and the political con- Justice Pina-Delgado for the Court with Jus- the framework of an Enabling Law approved text of the adoption of the Constitution, that tice Lima dissenting, the CC dealt, firstly, by the former granting powers to the latter the correct interpretation of that principle did with the question of whether the absence of to edict amendments to the GCCC and to not lead to a positive obligation to support all a decision by the SC on a post-trial request enact a new CorC. This took place because candidacies in an equal manner, but only to challenging the omission of the Court in an- the PR understood that the matter fell under underline the principles of a competitive and swering one of the pleas violated the plain- the regime of concurrent legislative compe- multiparty democracy to contrast the princi- tiff’s right to a speedy trial, and, after drafting tence and thus the GR could approve legis- ple of revolutionary democracy that was one a test discussed in the framework of leading lation without that act. The Court’s Advice of the pillars of the previous one-party sys- cases of the ECHR, the SCOTUS and the (2/2018),37 written by Justice Pina-Delgado, tem. Nonetheless, it found a violation of the Spanish CC, concluded that the appeal court followed a different path, finding that the en- principle of equality insofar as it understood breached that constitutional guarantee; sec- abling act was not unconstitutional because that the threshold was too high and dispro- ondly, it used the right of self-defense recog- the parameters inserted in it would inevita- portionate after inserting for the first time a nized with the right of resistance by Article bly lead to the approval of rules that limit the test of proportionality in the framework of 19 of the Constitution to consider that the SC right to property, that incriminate conduct, the equality scrutiny. violated the plaintiff’s rights when it did not and that establish administrative sanctions, consider the effects of that norm in interpret- all matters included in the set of competenc- 2. PR Referral for Ex-Ante ‘Advice’ on the ing a rule of the Code of Criminal Procedure es of the National Assembly, though delega- Constitutionality of the Amendment Act that exempted suspects of having commit- ble by an enabling act. of the Law on Essential Public Services – ted a crime in circumstances that may pre- Judicial Review 34 clude wrongfulness of being subjected to 5. Borges v. SC – Constitutional Complaint 33 See also Judicial Review Systems in West Africa. A Comparative Analysis (IDEA, 2016). 34 OJ, I-S, n. 28, 11.05.2018, 655-664. 35 OJ, I-S, n. 25, 02.05.2018, 574-604. 36 OJ, I-S, n. 88, Sup, 28.12.2018, 11-26. 37 OJ, I-S, n. 44, 02.07.2018, 1141-1156. 50 | I•CONnect-Clough Center Mr. Borges, after being arrested by the po- it is still subject to an appeal to the CC, was CCs can scrutinize the way the ordinary lice, was submitted to pre-trial detention by a a final decision for the purposes of ending courts apply the law. At any rate, the CC will judge order and subsequently convicted and status as a pre-trial detainee. Thus, the tem- be busy with major constitutional challenges sentenced for drug-trafficking, arms posses- poral limits attached to the status were ap- that were submitted, namely related to the sion and conspiracy by the trial court. He did plicable, meaning that the plaintiff had to be constitutionality of certain provisions of the not appeal his convictions on the first two released pending re-trial of the district pros- US-CV SOFA and of the Airport Security counts, but he argued that when the district ecutor’s appeal because by that time the term Fee Act. public prosecutor challenged all the items for maintenance of a person in that condition of the ruling on the grounds that the penalty had already been exceeded. Though uncertain, 2019 could also be the was too light, Mr. Borges should have been year of the approval of important constitu- notified by the judge. The fact is that the trial 6. Hills v. SC – Constitutional Complaint tional or legislative acts, namely amend- judge admitted the appeal but did not com- ments to the Constitution and to the Electoral municate this to Mr. Borges, who, for that This case dealt specifically with privacy and Code, and the enactment of the Regionaliza- reason, failed to present his defense at the data protection in the framework of criminal tion Law as well as the election of two new SC, which subsequently ruled that even if investigation, being filed by Mr. Hills, a Ni- substitute judges of the CC to replace the that were the case it could not be acted upon gerian national resident in CV convicted of ones that left functions; of the reappointment because the plaintiff did not react in the three drug-trafficking, who alleged that the appeals of the Attorney General for another term in days established by the law and that the lack court did not exclude evidence obtained in office or the replacement of the holder of the of notice was only a minor irregularity and contravention of his rights to inviolability of office by a new one. not an insurmountable nullity that could be home and protection of correspondence and argued at any time until the end of the pro- communications. This occurred because the V. FURTHER READING cedure. The CC in R 24/2018,38 written by criminal police entered his house, accessed Justice Pina-Delgado with Justice Lima dis- a mail package and read the contents of his José Pina-Delgado, ‘O Direito Internacio- senting, disagreed, considering that the lack cellphone without judicial warrant and with- nal Público no Direito Cabo-Verdiano’ in 39 of notification was a grave breach of proce- out his voluntary consent. In R 27/2018, Jorge Bacelar Gouveia and Francisco Perei- dure and due to the right to contest accusa- written by Justice Pina-Delgado, the CC rec- ra Coutinho (eds.), O Direito Internacional tions, of judicial defense and of due process, ognized a general right to privacy which in Público nos Direitos de Língua Portuguesa it had to be interpreted as constituting an its reasoning is linked to a myriad of consti- (CEDIS 2018), 81-176. unsurmountable nullity void of effects, and tutional guarantees, concluding that the SC ordered the repetition of the procedure start- should have excluded the evidence obtained Edalina Sanches, Party Systems in Young ing with the decision of admissibility by the without proper judicial warrant in situations Democracies. Varieties of Institutionaliza- trial judge and the notification of the sus- in which the criminal police could not autho- tion in Sub-Saharian Africa (Routledge, pect. In addition, the plaintiff also pleaded rize themselves to enter people’s homes or 2018), chap. IV (CV). to be released because in his opinion he was to interfere with their correspondence, com- kept in pre-trial detention for more than 30 munications or personal data for purposes of months by the time he complained to the CC, investigation. Thus, it declared the breaches challenging the interpretation of the SC that and granted relief by an injunction to ex- he had been convicted by a stable decision clude all evidence obtained by illegal means. that was already res judicata, and concluding that he was no longer in pre-trial detention, IV. LOOKING AHEAD but instead had already started to serve the criminal sentence. The CC adopted the un- Certain negative reactions from ordinary derstanding that considering the Constitution court judges to those CC decisions on crim- establishes a subjective right to the consti- inal matters have meant that next year could tutional complaint, it is not possible to con- lead to tense situations between the two ju- sider that a ruling of the SC, provided that risdictions, similar to other countries where 38 OJ, I-S, n. 88, 28.12.2018, 2132-2157. 39 OJ, I-S, n. 11, 31.01.2019, 146-178. 2018 Global Review of Constitutional Law | 51 Chile Iván Aróstica, Chief Justice of the Chilean Constitutional Court – Universidad del Desarrollo Sergio Verdugo, Universidad del Desarrollo 1LFROiV(QWHLFKH8QLYHUVLGDGGHO'HVDUUROOR±3RQWL¿FLD8QLYHUVLGDG&DWyOLFDGH&KLOH I. INTRODUCTION duced first by the 1970 amendment to the 1925 Constitution,2 but its current version Our previous 2016 and 2017 reports have is the one implemented by the 1980 Con- shown examples that aim to identify and stitution, which partly followed the French 3 illustrate two trends that the Chilean Con- model. stitutional Court (Tribunal Constitucional de Chile—from now on, the ‘CC’) has de- Our previous reports also briefly described CHILE veloped. First, the CC has become a con- a second CC trend: that the inaplicabilidad sequential body that can challenge existing mechanism—an ex-post and concrete ju- legislative majorities by declaring the un- dicial review power the CC uses to declare constitutionality of important legislative that a specific ordinary court should not use bills when the judges believe that those bills, certain legal provisions to solve contingent or parts of them, violate the Constitution.1 legal controversies—is triggering relevant Our reports claimed that the critical judicial litigation aimed at protecting fundamental mechanism that the CC used to assert its re- rights, such as the right to due process and 4 view power against legislative majorities is, equal protection of the law. although not exclusively, the ex-ante judi- cial review mechanism. It is worth noticing This 2018 report confirms and expands on that, in the Chilean constitutional system, the the two trends stated in our previous 2016 President can influence the Congress’s legis- and 2017 reports. As we will illustrate by lative agenda, and the Congress can hardly examining a group of selected rulings, first, enact any new piece of legislation without the CC has continued to assert its judicial the President’s consent. Thus, the CC typi- review power in ex-ante procedures during cally uses the ex-ante judicial review against legislative procedures. Second, the CC is bills sponsored by the President, a fact that consistently growing a significant forum for increases the public visibility of the deci- fundamental rights litigation through its ex- sions that declare the unconstitutionality of post judicial review power, partly due to the the bills using the ex-ante review procedure. considerable number of inaplicabilidad cas- An initial version of that power was intro- es that litigants and judges bring to the CC. 1Iván Aróstica, Sergio Verdugo and Nicolás Enteiche, ‘Developments in Chilean Constitutional Law’ in Rich- ard Albert and others (eds), .SVIHS9L]PL^VM*VUZ[P[\[PVUHS3H^ (I·CONnect-Clough Center 2017); Iván Aróstica, Sergio Verdugo and Nicolás Enteiche, ‘Chile: The State of Liberal Democracy’ in Richard Albert and others (eds), .SVIHS9L]PL^VM*VUZ[P[\[PVUHS3H^(I·CONnect-Clough Center 2018). 2 6U[OLÄYZ[L_HU[LQ\KPJPHSYL]PL^WV^LYPU[YVK\JLKPU*OPSLZLL,UYPX\L:PS]H*,S;YPI\UHS*VUZ[P- [\JPVUHSKL*OPSL (1971-1973), vol 38 (second edition (2008), Cuadernos del Tribunal Constitucional 1977); Sergio Verdugo, ‘Birth and Decay of the Chilean Constitutional Tribunal (1970–1973). The Irony of a Wrong Electoral Prediction’ (2017) 15 0U[LYUH[PVUHS1V\YUHSVM*VUZ[P[\[PVUHS3H^ 469. 37YVIHIS`[OLTVZ[PUÅ\LU[PHS,UNSPZO^YP[[LU^VYRKPZJ\ZZPUN[OL-YLUJOTVKLSPZ[OL^VYRI`(SLJ:[VUL ‘The Birth and Development of Abstract Review: Constitutional Courts and Policymaking in Western Eu- rope’ (1990), 19 7VSPJ`:[\KPLZ1V\YUHS 81; Alec Stone, ;OL)PY[OVM1\KPJPHS7VSP[PJZPU-YHUJL;OL*VUZ[P[\- tional Council in Comparative Perspective (Oxford University Press, 1992). 4 See Aróstica, Verdugo and Enteiche, ‘Developments in Chilean Constitutional Law’ (n 1) 49; Aróstica, Verdugo and Enteiche, ‘Chile: The State of Liberal Democracy’ (n 1) 58. 52 | I•CONnect-Clough Center The year 2018 has been particularly crucial judicial opinions, ignoring dissents and con- the conflict over indigenous demands, posit for the inaplicabilidad because the number currences. one of the key challenges that the country is of inaplicabilidad legal actions has been currently discussing. drastically elevated. A search using the CC’s The next section provides some context by online research engine shows that in 2018, briefly exploring the state of the Chilean po- In March 2018, President Bachelet ended 1663 new cases arrived, compared to 916 litical system and by describing some events her presidential term. Sebastián Piñera, the in 2017 and 357 in 2016.5 Inaplicabilidad that are relevant for the CC. Then, this re- leader of the center-right political alliance, legal actions triggered 1618 cases in 2018 port dedicates two sections to summarize became the new President of Chile and will compared to 883 in 2017 and 299 in 2016. and analyze the most high-profile cases of finish his term in the year 2022. A few days As we will explain later, part of the reason the year 2018. The first one focuses on the before leaving the presidential office, for- why the number of inaplicabilidad cases has most important decisions released as a result mer President Bachelet submitted a bill to escalated is related to the way the doctrinal of the ex-ante judicial review procedure, and the Congress proposing to replace the Chil- positions of the CC in critical cases like the the second one on the other decisions that we ean Constitution with an entirely new con- ones in Weapons and Emilia, discussed in selected. stitutional text.10 That project offered many our previous reports,6 have invited more liti- changes to the Constitution, including a pro- gation on specific issues. II. THE STATE OF CHILEAN posal to redesign the CC. It is worth mention- ing that the 2005 constitutional reform had DEMOCRACY AND THE To be sure, the Chilean inaplicabilidad established the current institutional model mechanism is probably not as relevant as CONSTITUTIONAL COURT of the CC, which was pushed by the former the prominent Colombian tutela mecha- Socialist President Ricardo Lagos and ap- nism used by the Constitutional Court of The Chilean democratic system seems to be proved by a bipartisan political agreement. that country (nor is it a similar legal action). in good shape. Elections are competitive; The Lagos reform had increased the number 7 Compared to the Colombian tutela, the there is uncertainty on which political alli- of judges, changed the judicial appointment Chilean inaplicabilidad has procedural con- ance will win the next elections; conflicts are mechanisms and expanded the powers of the straints that limit its doctrinal impact on the generally solved by institutionalized means; CC. The 2005 Court is, indeed, a different way the Courts of Appeals and the Supreme politicians respect judicial rulings; and elec- court compared to the one established by the Court engage with fundamental rights litiga- tions have been held on a regular and unin- 1980 Constitution. tion.8 Despite that limitation, our examples terrupted basis since democracy was rees- illustrate the fact that the inaplicabilidad can tablished in 1990. If we use Jack Balkin’s Today, some politicians promote reforms to still be a valuable device for rights protec- definition of what constitutes a constitu- the CC. President Piñera’s platform—pub- 9 tions, as it is frequently used to consolidate tional crisis, drawing from Sanford Levin- lished in 2017—had suggested to reform the or reiterate specific fundamental rights inter- son’s work, Chile is far removed from such way CC judges are appointed. There seem to pretations. a crisis. Although a group of politicians, in- be ongoing political negotiations on wheth- cluding former President Michelle Bachelet, er the CC’s powers should be modified and :H VHOHFWHG VL[ GHFLVLRQV WR LOOXVWUDWH have promoted the enactment of a new con- on whether the judicial appointment mech- the course of the two trends stated above stitution, Chilean institutions are respected anisms should be reviewed, but no consen- during the year 2018. Those rulings solved and the debates on whether the Constitution sus has pushed for specific reforms yet (we high-profile cases that attracted the attention should be reformed have been channelized are writing this report in early February of of the media. Three out of the six judgments through the current constitutional amending 2019). Changes to the regulation of the CC were pronounced by the CC using its ex-ante procedures. Even though Chilean political are a challenging political task, as they re- judicial review power, and three decisions and judicial institutions seem to be strong, quire a bipartisan agreement broad enough are inaplicabilidad cases. Since this report the violent events that have occurred in the to achieve the legislative supermajorities must be brief, we will not mention separate southern Araucanía region, in the context of needed to modify the Constitution’s Chapter 5 https://www.tribunalconstitucional.cl/buscador [accessed 2/11/2019]. 6 Aróstica, Verdugo and Enteiche, ‘Developments in Chilean Constitutional Law’ (n 1) 49; Aróstica, Verdugo and Enteiche, ‘Chile: The State of Liberal Democracy’ (n 1) 58. 7 On the way the tutela cases have produced important doctrinal trends in Colombia, see generally Manuel José Cepeda Espinosa and David E Landau, *VSVTIPHU Constitutional Law: Leading Cases (First edition, Oxford University Press, 2017). 8 See some illustrative cases in the book by Gastón Gómez Bernales, 3HZ:LU[LUJPHZ+LS;YPI\UHS*VUZ[P[\JPVUHS`:\Z,MLJ[VZ:VIYL3H1\YPZKPJJP}U*VTU (Ediciones Universidad Diego Portales, 2013). 9 Jack M Balkin, ‘Constitutional Crisis and Constitutional Rot,’ in Mark A Graber, Sanford Levinson and Mark Tushnet (eds), Constitutional Democracy in Crisis? (Oxford University Press, 2018). 10 See 7YV`LJ[VKLYLMVYTHJVUZ[P[\JPVUHSPUPJPHKVLUTLUZHQLKL:,SH7YLZPKLU[HKLSH9LWISPJHWHYHTVKPÄJHYSH*VUZ[P[\JP}U7VSx[PJHKLSH9LWISPJHBoletín N° 11.617-07. 2018 Global Review of Constitutional Law | 53 VIII.11 Moreover, no partisan coalition pres- III. MAJOR CONSTITUTIONAL stated by the bill, could be exercised with- out the need of obtaining previous judicial ently dominates the legislative agenda, as the DEVELOPMENTS OF THE current political composition of the Congress authorization. EX-ANTE JUDICIAL REVIEW considers the existence of three political alli- ances and some independent legislators. POWER According to the CC, the need for judicial authorization in these cases is constitutional- In the meantime, the CC has continued to use 1. The Controversy Over the New Powers of ly required by the due process clause (Article its powers. As we will show in later sections, the Government’s Tax Agency (STC 5540) 19, No. 3, Par. 6 of the Constitution). The in 2018 the CC reviewed some legislative CC’s doctrine states that the clause includes bills that were originally sponsored by for- The CC reviewed parts of a legislative bill the fundamental right to access courts of law mer President Bachelet, and other bills pro- that aimed to modernize the institutional if an administrative agency is imposing an moted by the current Piñera administration. framework of the Chilean banking system unfavorable decision against a private party. Despite the importance of the ex-ante judi- and the Financial Market Commission. Once the SII has obtained the information, it cial review mechanism in evaluating legis- Among several amendments to existing as- is too late to repair the harm made to the tax- lative bills,12 most of the CC’s work focused sociated regulations, the bill included provi- payer’s rights. The CC established that ‘the on the inaplicabilidad cases. sions intended to empower the Chilean Tax prior judicial authorization is constructed as Agency (in Spanish, the Servicio de Impues- a manifestation of due process since it de- The year 2018 was also important for the CC tos Internos, hereinafter, the ‘SII’), which is notes the existence of its elements: access to because of changes in its composition. Judge the Chilean equivalent to the American Inter- justice and the bilateral nature of the process. Carlos Carmona, who had been appointed to nal Revenue Service. The legal issue at stake As a result of the absence of any of these el- the CC by former President Bachelet during was associated with the fact that the bill pro- ements, the legal provision under examina- her first presidential term, ended his judicial vided for expanding the SII powers over the tion must be declared unconstitutional.’ (our term on April 9, and Marisol Peña, who had taxpayers in different ways. The SII’s new translation of c. 67 of the ruling). been nominated to the CC by the Supreme powers were supposed to be reviewed by Court, completed her term on June 10. Both the CC because they were considered to be This ruling is relevant at least because of Judge Carmona and Judge Peña served their ‘organic laws,’ as they somehow related to three reasons. First, the CC expanded and full nine-year judicial terms. Also, they both judicial matters. According to Article 77 of deepened its understanding of the scope of served as Chief Justices of the Court. In the Constitution, legal provisions regarding the due process clause by confirming that Chile, constitutional judges cannot be reap- the organization or the powers of the judi- these sorts of procedures need previous ju- pointed, and the Chief Justice is elected by ciary are ‘organic laws’ and, therefore, they dicial authorization and that the legislative her peers. Judge Peña was the first female are supposed to be reviewed by the CC in the bodies must introduce this guarantee if they Chief Justice to head the CC in its histo- ex-ante judicial review procedure. intend to empower an administrative agency ry. To replace Judge Carmona and Judge in these cases. This decision connects with a Peña, President Piñera appointed Miguel A. One of the rules that the CC declared un- broader doctrine that was previously outlined Fernández, and the Supreme Court nominat- constitutional consisted of a provision that by the CC in earlier rulings, such as the Di- ed María Pía Silva, respectively. Both Judge aimed to allow the SII to require banks and rección General de Aguas case (STC 3958) Fernández and Judge Silva are constitutional other institutions to communicate payments that we examined in our 2017 report.14 The law scholars that have lectured at the P. Uni- and wire transfers from Chilean accounts new decision finds a new application for that versidad Católica de Chile.13 to accounts located abroad or of incoming doctrine while detailing it further. Second, funds to the country from a foreign account the CC has consistently defended the powers that exceed US$10,000. This SII power, as of ordinary judges to review administrative 11 (JJVYKPUN[V(Y[PJSL VM[OL*OPSLHU*VUZ[P[\[PVU[OLJOHW[LYYLN\SH[PUN[OL***OHW[LY=000JHUVUS`ILTVKPÄLKPMIV[OJOHTILYZVM*VUNYLZZHJOPL]LH two-thirds majority. Also, the organic statute detailing the content of Chapter VIII and supplementing the Constitution on this matter requires a legislative super- THQVYP[`]V[L(JJVYKPUN[V(Y[PJSL VM[OL*VUZ[P[\[PVUTVKPÄJH[PVUZ[V[OL**»ZVYNHUPJZ[H[\[LYLX\PYL[OLHWWYV]HSVMMV\YZL]LU[OZVMIV[OJOHTILYZVM Congress. 12 We explained the reasons that justify the ex-ante judicial review mechanism, and described the way it operates, in our previous report. See Aróstica, Verdugo and Enteiche, ‘Chile: The State of Liberal Democracy’ (n 1) 55. Also, see Sergio Verdugo, ‘Control Preventivo Obligatorio. Auge y Caída de La Toma de Razón Al Legislador’ (2010), Año 8, No 1 Estudios Constitucionales 201; Felipe Meléndez Ávila, ,S*VU[YVS7YL]LU[P]V,U3H*VUZ[P[\JP}U(J[\HS!,S;LTVY(S+LZIVYKL,U3H Función Legislativa (Editorial Jurídica de Chile, 2017). 13 Another change in the CC’s composition was the nomination of two substitute judges. We will refer to these two appointments in our 2019 report, as they were JVUÄYTLKPU1HU\HY`VM[OH[`LHY 14 Aróstica, Verdugo and Enteiche, ‘Chile: The State of Liberal Democracy’ (n 1) 56. 54 | I•CONnect-Clough Center actions in the past, while understanding that ifications the bill sought to implement, legis- be passed by legislators following the corre- judicial intervention is many times required lators also aimed at transferring some juris- sponding legislative decision-making process should state officers want to impair the activ- dictional powers to the SERNAC, which is because, under Chilean constitutional law, all ity of private citizens. This new ruling con- why the CC understood that the bill included the regulations regarding fundamental rights firms and strengthens that approach. ‘organic law’ provisions and reviewed these should be made by the corresponding parlia- new powers using the ex-ante review proce- mentary procedure (c. 43). The final reason why this ruling is import- dure—the explanation of the above case is ant is that cases like this one are typically also applicable in this case. The CC’s decision triggered a relevant dis- situated in a relevant and broader debate in- cussion among Chilean legal scholars, partly volving the scope of the executive branch’s The judicial powers granted by the bill were aimed at defining the boundaries among the power to intervene or influence independent related to the consumers’ right to present powers of the judicial, executive and legisla- administrative agencies that possess regula- and process consumer protection claims, tive branches of government, and it is critical tory powers and that are able to punish pri- and who could decide whether to file those for understanding the way parts of the sep- vate citizens. The issue usually is not only claims directly to the SERNAC or the courts. aration of powers debates have taken place to preserve judicial authority but to delineate The CC understood that the option to submit in Chile. the correct balance between the President’s claims to the SERNAC involved an uncon- powers and the powers that these sorts of stitutional exercise of judicial powers by an 3. Reviewing the Legislative Bill Regulating agencies can employ, and how to preserve administrative agency. The CC defined judi- the Gender Identity Statute (STC 5385) their independence. As is commonly framed cial power as an activity aimed at the solu- in Chilean legal academia, although the Pres- tion of a conflict of legal relevance between The CC reviewed a bill intended to recog- ident’s powers over these sorts of agencies interested parties and argued that the Consti- nize and regulate the gender identity right. are generally justified by the constitutional tution prevents those kinds of disputes from The bill aimed to adapt existing regulations provision stating that the President is the being solved by an agency such as SERNAC. to accommodate that right. Parts of the bill state’s chief (Article 24 of the Constitution), For that reason, the CC further claimed that allowed people to change the registration of these institutions are also supposed to have the related provisions included in the bill their gender in the records of the Registro a relevant degree of independence. Chilean harmed the power of the judiciary by violat- Civil, an agency in charge of registering and scholars typically debate on what the right ing the judicial power clause included in Ar- providing certificates such as marital status scope of the President’s powers is, and on ticle 76 of the Constitution, and Article 19, documentation and birth certificates, among how to balance the need to protect the auton- No. 3 of the Constitution, Subsections 5 and many others. That way, the bill tried to ac- omy of these agencies with the President’s 6. The CC also reasoned that the bill partly commodate the legal identification officially constitutional obligations.15 violated the separation of powers principle, provided by the state with the gender identity and prevented the promulgation of the parts that each person possesses. 2. Reviewing the Bill that Aimed to Modify the of the bill that infringed on the Constitution. Consumer Protection Law Agency (STC 4012).16 During the legislative debates, some legisla- Among other relevant considerations made tors argued that parts of the gender identity The CC reviewed a legislative bill whose by the CC, the ruling stated that its decision bill were unconstitutional, using arguments purpose was to strengthen the organization- is not necessarily analogous to other cases in such as the ones considering the types of al structure of the administrative agency in which different agencies are empowered to ‘family’ that are protected by the Constitu- charge of enforcing the Consumer Protection punish private citizens (c. 39). The resolution tion (Article 1 of the Chilean Constitution Law (in Spanish, the Servicio Nacional del also reaffirmed the ‘principle of access to jus- protects the ‘family’), and the scope of the Consumidor, hereinafter, the ‘SERNAC’). tice’ of all those affected in matters related equal protection clause (Article 19, Nº 2 of The SERNAC aims to ensure compliance to Consumer Protection Law (c. 42). Finally, the Constitution). These legislative debates with consumer regulations and to promote the CC declared the unconstitutionality of the triggered a larger discussion that attracted and provide information on the rights and SERNAC’s power to enact regulations. The the attention of the media, different civil duties of the consumer. Among many mod- CC argued that those regulations could only society organizations, and even celebrities. 15 On this debate, see, for example, the following papers: Nicolás Enteiche Rosales, ‘Superintendencias: Una Necesaria Autonomía Constitucional’ in Julio Alvear T. and Ignacio Covarrubias C. (eds), +LZHMxVZ*VUZ[P[\JPVUHSLZ7YVWPLKHK+LIPKV7YVJLZV3PILY[HK9LSPNPVZH9tNPTLU7VSx[PJV`(KTPUPZ[YH[P]V (Tirant lo Blanch, 2017); José Francisco García G. and Sergio Verdugo R., ‘De las superintendencias a las agencias regulatorias independientes en Chile: Aspectos constitucionales y de diseño regulatorio’ (2010) 22 (J[\HSPKHK1\YxKPJH263; José Manuel Díaz de Valdés J., ‘Anomalías Constitucionales de Las Superintendencias: Un Diagnóstico’ (2010) 8 Estudios Constitucionales 249; Luis Cordero Vega and José Francisco García, ‘Elementos para la Discusión sobre Agencias Independientes en Chile. El Caso de las Superintendencias’ (2012), (U\HYPVKL+LYLJOV7ISPJV 415. 16 See a useful summary released by the CC of the CC decision in http://www.tribunalconstitucional.cl/wp-content/uploads/Comunicado-de-prensa.pdf [accessed 2/11/2019]. 2018 Global Review of Constitutional Law | 55 Parts of the bill connected to the powers that gree—because of such prohibition. The CC In 2017, the CC had rejected a similar peti- previous laws had given to Family Judges, received two petitions that asked the Court tion (STC 2926), but this new case provided so the CC understood that those parts were to declare the inapplicability of the prohibi- an opportunity to revise the previous doctrine. ‘organic laws’ and had a legal reason to re- tion and questioned whether there was a rea- The CC accepted the inaplicabilidad petition view the bill. Nevertheless, the CC did not sonable justification for such a ban. The CC and argued that the specific law that applied have the power to review all the parts of the decided that the prohibition of practicing a to the San Miguel case was justified under a bill, as the legislators that had argued that the medical profession or medical technology in constitutional clause referring to the regula- bill violated the Constitution did not present these cases, within such establishments, had tion of the public sector (Article 38, Par. 1 of a formal claim. no justification (c. 11), and that it violated the Constitution) and that a general statute for Article 19, No. 2 of the Constitution, which public employees already existed. As a result, As a result, the CC only reviewed the parts prohibits public officials to establish arbi- the CC claimed that the Labor Code could of the bill that were associated with judicial trary differences. only be applied if the specific regulation ex- powers. The CC declared that those parts did plicitly said so (c. 8) and that in the case in not violate the Constitution with a relatively 2. The Labor Code and Public Employees point there was no rule referring to the Labor brief ruling. Case (STC 3853) Code. If a new piece of legislation wanted to extend the Labor Code rights to public em- IV. OTHER RELEVANT The Chilean Labor Code, which is the pri- ployees, it should say so explicitly (c. 10-11). mary statute regulating the workers’ and CONSTITUTIONAL unions’ labor rights, establishes that public 3. The Public Procurement Cases (STC 3570 DEVELOPMENTS employees are subject and can benefit from and STC 3702) the provisions of the Code only when certain This section summarizes three inaplicabili- matters are ‘not regulated by their respec- A rule of the statute regulating the procedure dad decisions. It is useful to keep in mind tive statutes’ (Article 1, Par. 3 of the Labor by which the state can purchase goods and that, even though the inaplicabilidad rulings Code). That way, if a specialized norm regu- services (the Public Procurement Law or, in do not produce a binding precedent, as the lates the specific matter concerning specific Chile, the Ley de Compras Públicas) estab- challenged legal provisions remain legally public employees, that norm—and not the lishes that anyone who has been sentenced valid and applicable to other cases, the in- Labor Code—should be applied. The Code for anti-union practices or for violating the aplicabilidad decisions can still trigger a also establishes that workers can file legal employees’ human rights, or for bankruptcy persuasive precedent able to push for rele- actions when their employers have infringed crimes established by the Criminal Code, are vant jurisprudential trends. If the CC’s ju- on their fundamental rights. This legal action not allowed to pact contracts with the state dicial majority can gather eight votes out of is the procedural justification for specialized for a period of two years (Article 4, Par. 1). a total of ten judges, it can even eliminate labor judges to decide whether firing an em- Two universities that had been sentenced the unconstitutional legal provision from the ployee or other employer actions violate the under Article 4, the Pontificia Universidad corresponding statute. The importance of workers’ fundamental rights (Article 485 of Católica de Chile and the Universidad de the cases that we will briefly summarize in the Labor Code). Chile, presented petitions of inaplicabili- this section is that the first decision solved a dad to the CC. Among other arguments they first-impression case, and the other two rul- San Miguel’s local government had removed made, both universities alleged that Article ings reversed previous judicial doctrines. All an employee who was subject to a specific 4 did not guarantee a fair and rational pro- the cases involved litigation on fundamental regulation (Law No. 18.833, regulating the cedure and violated the Constitution’s due rights issues. Statute of Municipal Officials), and that em- process clause. ployee had petitioned a labor judge to declare 1. The Optometrists’ Case (STC 3519 and that the removal was unjustified and that it vi- In the past, the CC had decided that Article 4 STC 3628) olated her fundamental rights. The labor judge did not violate the Constitution (STC 1968, accepted the petition and used the Article 485 STC 2133, STC 2722-2729), but the CC The Chilean Código Sanitario, a statute reg- procedure to establish that the San Miguel lo- revised its doctrine and decided in favor of ulating some issues related to healthcare, cal government should pay compensation to the petitioners. The CC claimed that Article prohibits medical consultations or medical the employee. The San Miguel Court of Ap- 4 prohibition provides for a penalty that is eye technicians from providing consultation peals had also ruled in favor of the employee. automatically assigned, preventing a previ- inside establishments that sell eyeglasses San Miguel’s local government asked the CC ous procedure that can allow businesses to (Article 126, Par. 2 of the Código Sanitar- to declare the inapplicability of Article 485 defend themselves. Moreover, the employers io). The ban harmed the rights of such es- and argued that the specific regulation—and were already punished by the labor law or tablishments and optometrists—healthcare not the Labor Code—should control the case. the bankruptcy law, so Article 4 imposes a professionals without a medical doctor de- new penalty without a trial, violating the due 56 | I•CONnect-Clough Center process clause (Article 19, No. 3, Par. 6 of the Constitution). Likewise, the CC claimed that the Article 4 prohibition does not allow differentiating situations that may, in fact, be different, violating the equal protection clause (Article 19, No. 2, of the Constitu- tion). V. LOOKING AHEAD This report showed three key cases that exemplify how the ex-ante judicial review power has been used in high-profile cases. In them, the CC proved to be a consequen- tial actor capable of influencing the legis- lative decision-making process, although in the last case the CC avoided declaring any UXOHDVXQFRQVWLWXWLRQDO:HDOVREULHIO\H[- amined three inaplicabilidad decisions that illustrate how the CC is becoming a relevant forum for concrete judicial review litigation in cases concerning fundamental rights. To be sure, all the cases, even the ones decided through the ex-ante review procedure, in- volve a fundamental rights reasoning, such as equality and due process. But the ones of the inaplicabilidad petitions do not only include abstract reasoning on fundamental rights but also provide the CC the opportu- nity to decide controversies and impact the way ordinary judges in specific fields, such as Labor Law, solve specific legal conflicts. Even though there is an ongoing debate on how the CC will be reformed, and when, the observed trends will probably continue to be deepened in 2019. 2018 Global Review of Constitutional Law | 57 Colombia Carlos Bernal, Justice – Colombian Constitutional Court Diego González, Deputy Justice – Colombian Constitutional Court María Fernanda Barraza, Judicial Law Clerk – Colombian Constitutional Court Nicolás Esguerra, Judicial Law Clerk – Colombian Constitutional Court Santiago García Jaramillo, Judicial Law Clerk – Colombian Constitutional Court Vicente F. Benitez-R., Professor of Law – University of La Sabana I. INTRODUCTION long-lasting conflicts in the hemisphere. A challenge of the agreement was to secure the The Colombian Constitutional Court faced demobilization of former combatants and, four key questions in 2018. First, how to bal- at the same time, to guarantee justice, truth, ance constitutional principles with the aims reparation to victims, and non-repetition of COLOMBIA of transitional justice in the constitutional the atrocities. The Constitutional Court has review of constitutional amendments, acts, played a major role in solving the tensions and legislative decrees that implemented between those goals, and in articulating the the peace agreement signed by the Colom- peace process with the structural principles bian Government and the FARC Guerrillas. of the 1991 Constitution. Since 2014, the Second, how to achieve effective protection Court has built an original corpus of transi- of social rights and the accomplishment of tional constitutionalism. goals of the social state, in particular, un- der the circumstances of massive immigra- The peace agreement is a political commit- tion of Venezuelans. Third, in a country in ment. Accordingly, Constitutional Amend- which mining products amount to more ment 1/2016 created a special fast-track than half of the total exports, how to solve procedure for legal implementation of the collisions arising between public participa- Agreement via constitutional amendments, tion, environmental rights, and rights of the acts, and legislative decrees. It also empow- indigenous peoples on the one hand, and ered the Constitutional Court with the com- rights and interests linked to mining on the petence to undertake an automatic abstract other. Fourth, how to catalyze deliberative constitutional review of those norms. The democracy, in particular, by means of the Court reviewed most of them in 2018. They participation of citizens in abstract processes concern amnesties or reduced sentences in of constitutional review and concrete proce- favor of former combatants, limitations on dures of constitutional complaints (tutela). their political rights, the procedures for crim- This report undertakes a critical analysis of inal justice under the Special Jurisdiction for the way the Constitutional Court approached Peace (a jurisdiction created for rendering those issues in the most relevant 2018 cases. accountable the participants in the conflict), the use of FARC assets for reparation to the victims, and the guarantees to political oppo- II. MAJOR CONSTITUTIONAL sition which aim to strengthen deliberative DEVELOPMENTS democracy and create disincentives for the use of violence to pursue political ends. In 1. Transitional Constitutionalism the most relevant decisions, the Court in- fused flexibility into some standards of con- In November 2016, the Colombian Govern- stitutional review for the sake of facilitating ment and the FARC Guerrillas signed a peace the transition. agreement that put an end to one of the most 58 | I•CONnect-Clough Center 2. Social State In order to realize economic and social rights source of legitimacy, which alleviates the while respecting the separation of powers, democratic deficit attributed to those consti- In 2018, the Colombian Constitutional Court the Court has begun to employ dialogical tutional courts. To this extent, constitutional addressed three major issues regarding the remedies involving a meaningful engage- courts are expected to engage in deliberation achievement of goals of the social state. First, ment between the claimants and the com- in order to achieve the best decision based whether the Constitution grants social rights, petent authorities for determining the most on the best argument. Both usually emerge or at least a fundamental right to humanitarian effective measure for the case at hand. from a reason-giving process open to all the attention, to undocumented aliens. In the last relevant stakeholders. Second, deliberation few years, Colombia has been facing the larg- 3. Public Participation, Environmental brings about public contestation. Rather than est migration crisis in its history. According Rights, Indigenous People’s Rights, and stating the last word about all constitution- to the Ministry of Foreign Affairs, over one Mining Activities in Colombia al issues, constitutional courts should play a million Venezuelans have crossed the border dialogical role in the framework of contem- in the past three years. Most of them are still Due to its economic and social relevance, porary constitutional democracies. To this undocumented and endure circumstances of the Colombian Government has declared concern, constitutional courts catalyze delib- vulnerability. As a consequence, they have mining an activity of public interest. As a eration and action of public and private ac- been requesting access to housing, health, ed- result, there has been an influx of mining tors, and open a space in which civil society ucation, and financial aid from the Colombi- projects all over the country. Stakeholders can render officials accountable. an Government. This comes during a public have stressed that, under conditions of legal budgetary deficit and severe infrastructure certainty, this industry could generate annual During the last 5 years, the deliberative per- limitations. Thus, the Government has denied revenue of $1.5 billion. However, since 2013 formance of the Colombian Constitutional services demanded by the immigrants. As a some communities have hosted popular con- Court has been outstanding. This is true re- response, numerous Venezuelans have filed sultations and voted against the development garding external deliberation, which implies constitutional complaints (tutelas). The Con- of mining projects in their territories. This the reason-giving engagement between the stitutional Court has acknowledged the finan- has elicited the question of whether peo- Court and external actors. Apart from the cial limitations argued by the Government. ple are constitutionally empowered to ban traditional amicus curiae, the Court has held However, it has also found that the principle mining activities by means of participatory public hearings in some of the most import- of solidarity, which is at the heart of the con- mechanisms. In a landmark 2018 case, the ant cases. In them, the Court has used this de- cept of the social state, grounds the protection Court ruled out this possibility. vice for involving the relevant stakeholders of some fundamental rights to undocumented and igniting public deliberation on pressing aliens; above all, the right to receive human- In addition, Colombia is a party of the Con- constitutional issues, in the pre- and post-de- itarian aid. vention ILO 169. According to Section 6, in- cisional phases. Between 2014 and 2018 (5 digenous people—and other ethnic groups— years), the Court held 24 public hearings, The second issue related to the right to equal- hold a right to consultation concerning the which is the same amount held by the Court ity of women. The Court reviewed the con- development of projects that could directly between 1992 and 2013 (21 years). In partic- stitutionality of a section of Act 1819/2016 impact their land. This right has also limited ular, in 2017 and in 2018, the Court held 13 that imposed a levy on feminine hygiene mining undertakings. Constitutional judges public hearings, which denotes a significant products (Judgment C-117/2018). The Court have suspended mining operations to en- growth of this deliberative practice. declared the unconstitutionality of the provi- sure that consultation processes are carried sion at stake with the argument that the levy out. Furthermore, indigenous people have The Court held 6 public hearings in 2018: targeted irreplaceable goods of exclusive fe- filed tutelas for claiming compensation for 3 pre-decisional and 3 post-decisional. The male use. Hence, it held that the measure was environmental damages caused by mining pre-decisional public hearings related to discriminatory against women. Moreover, it DFWLYLWLHV :LWKLQ WKLV FRQWH[W LQ WKH 3 of the most relevant cases brought to the considered that it was particularly harmful Colombian Constitutional Court redefined Court that year, which concerned the tension to women and girls with low income or who the constitutional scope of the rights to between popular consultation and mining were in a state of vulnerability. public participation in environmental de- (A-138 of 2018), urban planning and broth- cision-making and to prior consultation re- el regulation (A-444 of 2018), and bilateral The third matter concerned the challenge of garding mining projects. investment treaties (in particular, the treaty choosing appropriate remedies for achieving concluded between Colombia and France the most effective realization of economic 4. The Constitutional Court and Its Deliber- (A-707 of 2018). The post-decisional public and social rights. That realization typically ative Endeavor hearings were about the 3 main structural involves the design and implementation of cases in which the Court retained supervi- public policies and the investment of finan- Deliberation matters remarkably for consti- sory jurisdiction; that is to say, prisons (A- cial resources. Both of them are traditionally tutional courts. It plays at least two core roles 631 of 2018), forced displacement (A-634 of subject of legislative and executive powers. within these bodies. First, deliberation is a 2018), and public health (A-668 of 2018). 2018 Global Review of Constitutional Law | 59 The 3 pre-decisional public hearings were in- lated to forced displacement, public health, of the implementation of a peace agreement, tended to enable the Court to identify clearly and prisons. Rather than being judicial, those a timeframe in which former guerrillas were what issue was at stake, to gather technical public hearings have become a forum of po- becoming political agents. The Court upheld information, and to clarify the main argu- litical accountability, where administrative the declaration of political opposition by ments behind each case. The public hearing authorities come to the Court as mere “ac- political parties as a fundamental right, pro- held by the Court in case A-138 of 2018 gath- count renders.” There is not reliable data on tected by an administrative injunction and ered public officials, mining actors, public the benefits of those hearings over the effec- exceptionally by the judiciary. However, the officials from municipalities, and nongov- tive protection of rights of victims of forced Court declared unconstitutional extending ernmental organizations to discuss whether displacement, patients, and inmates. such protection to the social movements with local communities are constitutionally em- representation in the Parliament and local powered, through participatory mechanisms, III. CONSTITUTIONAL CASES collegiate bodies, with the argument that the to ban mining projects from their territories. Colombian Constitution aims at strengthen- The rationale behind the public hearing in 1. Transitional Constitutionalism ing the protection of institutionalized politi- case A-444 of 2018 was to launch “a forum cal parties. Moreover, the members of social for civil society organizations to participate; 1.1. Judgment C-007/2018 movements engaging with political activities in particular those which work on the issue enjoy protection under the individual consti- of the rights of victims and survivors of sex- Act 1820/2016 regulated the conditions to tutional right to political participation. ual exploitation, with the aim that they are grant amnesties to former combatants. In de- heard and taken into account.” In the public cision C-007/2018, the Court reviewed the 1.3. Judgment C-071/2018 hearing developed in case A-707 of 2018, constitutionality of that statute and held that the Court tackled the technical information most of its provisions were compatible with In July, the Constitutional Court upheld the behind customary bilateral investment trea- the Constitution. To reach this conclusion, it majority of the provisions contained in De- ty clauses such as most-favored nation, na- distinguished two types of crimes. First, in cree 903 of 2017, which regulates the des- tional treatment, indirect expropriation, and the case of politically motivated crimes— tination of FARC assets (Judgment C-071 the very investor-state dispute settlement, as well as some other crimes connected to of 2018). In accordance with the judgment, among others. It is too early to determine them—the Court ruled that granting amnes- all FARC’s assets ought to be used exclu- whether and to what extent those public ties or ceasing prosecution were reasonable sively for the reparations of the victims of hearings enriched the final decisions in those measures to attain peace. Second, the Court the armed conflict. Also, acknowledging the cases. reiterated that some international crimes— importance of the victims’ rights, the Court such as war crimes, crimes against humanity, declared unconstitutional the possibility of The 3 post-decisional public hearings were and genocide, among others—cannot be ful- using those assets to finance the reincorpo- sessions in which the Court followed up on ly pardoned, given that this would infringe ration to civil society of former FARC mem- the compliance to the remedies issued in the on the rights of victims. Nevertheless, to bers. Finally, the Court stated that due pro- cases T-025 of 2004 (forced displacement) strike a balance between peace and victims’ cess should be granted in case bona fide third and T-760 of 2008 (public health) as well as rights, the Court recognized that those who parties claim that their assets were included T-338 of 2013 and T-762 of 2015 (prisons). committed those serious offenses can (under in the inventory of FARC assets without jus- In those follow-up hearings, the Court inter- some conditions) receive alternative and re- tification. acted with central and local public officials, duced sanctions. as well as civil society organizations, for de- 1.4. Judgment C-080/2018 liberating about the hurdles to comply with 1.2. Judgment C-018/2018 remedies issued in structural cases. Some months later, the Constitutional Court In April 2018, by means of Judgment reviewed the constitutionality of a bill gov- Up to 2018, the Court had held 34 follow-up C-018/2018, the Constitutional Court upheld erning key aspects of the so-called Special public hearings related to forced displace- the “Opposition Statute.” This is an act that Jurisdiction for Peace. The newly created ment, 22 regarding public health, and 2 grants relevant political rights to politicians Special Jurisdiction for Peace is a central concerning prisons. The effectiveness of who declare themselves as part of the oppo- piece in the apparatus designed to implement this strategy is an open question. The risks sition or as independent. Those rights include the peace agreement. It is empowered to de- at stake are undisguisable. Rather than dia- entitlements to state funds for political cam- termine the criminal liability and potential logical, it seems that those public hearings paigns, and to special conditions to access sanctions applicable to former combatants. have become a sequence of monologues pre- the media. The Court acknowledged the im- In one of the most consequential decisions pared by public authorities to submit before portance of promoting the peaceful exercise for the implementation of the peace agree- the Court. Rather than a catalyst of public of the function of political opposition within ment (Judgment C-080/2018), the Court en- contestation, the Court has assumed a role of a constitutional democracy, and in the midst dorsed the constitutionality of the bill. How- general administrator of public policies re- ever, it also addressed and clarified certain 60 | I•CONnect-Clough Center contested issues, and held that: (a) the appli- principle, the state must guarantee the min- as an appropriate judicial remedy. For the cation of amnesties or reduced sanctions is imum conditions of living to all human be- Court’s part, it had to determine the most possible only if the perpetrators commit to ings, especially to those who are vulnerable, appropriate alternative to guarantee the ef- the restitution of victims’ rights; (b) the right regardless of their migration status. fective access of the petitioners to secondary to participate in government is allowed only education. The dialogue successfully led to for those former combatants who, at the out- 2.2. Judgment T-027/18 the enrollment of most of the students in one set of the proceedings, explicitly recognize of the schools available. their criminal responsibility and contribute In Judgment T-027/18, the Court decided a to restoring victims’ rights; (c) the extradi- case regarding the protection of persons with 3. Public Participation, Environmental tion of former combatants who committed disabilities and their right to public higher Rights, Indigenous People’s Rights and Min- crimes before the peace agreement’s signa- education. The petitioner stated that a public ing Activities in Colombia ture is prohibited, while in other cases (i.e., university denied her rights to education and crimes that occurred after its signature and equality by not adjusting its curriculum to 3.1. SU-095/2018 certified as such by the Special Jurisdiction her hearing disability. The University argued for Peace), the President and the Supreme that its programs complied with inclusive In this judgment, the Court declared the un- Court must consider the state’s duty to pros- education regulation, even by the employ- constitutionality of the judicial decision that ecute serious crimes and protect victims’ ment of a sign language interpreter. authorized the Municipality of Cumaral, rights before authorizing their extradition; The Court experimented with methodology Meta, to initiate a public consultation pro- and (d) noncombatants who were involved to balance the levels of realization of positive cess to ask its citizens whether they wanted in the conflict may request to be tried by the economic and social rights grounded on the to allow mining activities in their territory. Special Jurisdiction for Peace. This judg- principles of rationality and proportionality. The petitioner, a mining company that had ment elicited severe criticism concerning the :KHQDSSO\LQJWKLVPHWKRGRORJ\WKH&RXUW an effective mining right to exploitation, ar- intervention of the Court in the procedure granted certain reasonable and proportional gued that the result from the public consul- for extradition, and the possibility that sexu- claims. Regarding other claims, even though tation implied in fact a veto to exercise legal al offenders of minors might receive lenient the Court determined that the intended level mining activities. criminal treatment under the Special Juris- of realization was unreasonable, it ordered diction for Peace. the University to implement alternative mea- The Court declared that, even though par- sures to effectively guarantee the petitioner’s ticipation is a fundamental right (granted 2. Social State right to access and remain in a higher educa- by Sections 40 and 79 of the Constitution), tion institute. it ought to be exercised within its constitu- 2.1. Judgment T-210/18 tional limits. According to the Court, the mu- 2.3. Judgment T-091/18 nicipalities lack constitutional power to veto In Judgment T-210/18, the Court protect- or annul the exercise of a national constitu- ed the right to health of two undocumented Following that trend, in Judgment T-091/18, tional competence via public consultation. Venezuelans. The first was a single mother the Court applied the above-mentioned pro- Issuing mining and oil regulations is an ex- who had been diagnosed with cervical can- portionality methodology for economic and clusive competence of the National Govern- cer in Venezuela. Initially, a hospital in Co- social rights to address an issue concern- ment. Nevertheless, the Court admonished lombia provided her radiotherapy and che- ing education. In this case, the petitioners the Congress to legislate on a participation motherapy. However, the hospital told her claimed that the Secretary of Education of mechanism that allows communities to par- that since she did not have Colombian health Caquetá disavowed the rights to education ticipate on mining issues without granting insurance, they could not assist her anymore. and equality by not authorizing the open- them a veto power. The doctors gave her a medical order and ing of high school grades at the rural public warned her that she needed to continue with school of Salamina. The Secretary argued 3.2 SU-123/2018 the treatment elsewhere. The second plain- that the number of students demanding tiff was the mother of a two-year-old Vene- secondary education in the school was not In this case, the petitioner was an indigenous zuelan boy who suffered from a hernia. She sufficient to open new grades, according to community (Awa La Cabaña) that was ac- requested medical attention for her son. She applicable legal criteria. The Secretary also knowledged to be at risk of physical extermi- claimed to be in the process of regularizing mentioned that there were two alternative nation due to the armed conflict and the fact their migration status. The hospital, howev- schools to guarantee the right to education of that it had suffered massive dispossession er, denied surgery because they were not yet the students. The Court considered that there of its lands. The petitioner claimed that the enrolled in the Colombian health system. were multiple plausible and reasonable alter- National Environmental Licensing Authority The Court ruled in favor of both plaintiffs. natives to protect the right of the plaintiffs. and two oil companies were bound to con- It argued that the principle of solidarity is Thus, it ordered a dialogue be established sult on a specific drilling project based on a pillar of the Constitution. In virtue of that between the petitioners and the authorities its direct impact on their rights to a healthy 2018 Global Review of Constitutional Law | 61 environment and to access to and enjoyment The company requested the Court to partial- V. FURTHER READING of culture. ly annul the decision because, in its opinion, it violated its right to due process. In this Vicente F. Benítez R., ‘Judicial Review of The Court unified its case law on prior con- annulment instance, the plenary of the Court Peace Amendments in Colombia: Towards sultation to the indigenous population. This decided to annul orders (i), (ii), and (iii) on Supraconstitutional Rules and Plurality Opin- decision set some rules regarding the appli- three grounds. First, the decision disavowed LRQV"¶Int’l J. Const. L. Blog, Oct. 31, 2017, cation of relevant elements of prior consul- the constitutional precedent concerning the at: http://www.iconnectblog.com/2017/10/ tation, for instance: (i) the notion of direct tutela as a remedy to protect fundamental judicial-review-of-peace-amend- affectation; (ii) the scope of indigenous terri- rights and not to obtain reparations. Second, ments-in-colombia-towards-supraconstitu- tory; (iii) the relations between prior consul- the decision did not motivate the need for tional-rules-and-plurality-opinions tation and environmental justice; and (iv) the the creation of an ethnic compensation fund. right of indigenous peoples to be compensat- Third, order (iii) constituted a sanction not Carlos Bernal, ‘Introduction to I-CON- ed with an ethnic perspective. As a result, the provided by the legal order. This infringed nect Symposium–Contemporary Dis- Court ruled in favor of the petitioner com- the due process of law of the defendant. cussions in Constitutional Law–Part II: munity. It determined that, in application The Paradox of the Transformative Role of the above-mentioned criteria, and of the IV. LOOKING AHEAD of the Colombian Constitutional Court,’ Ruggie Principles on Business and Human Int’l J. Const. L. Blog, Oct. 31, 2018, at: Rights, the state has a duty of diligence to In 2019, the Constitutional Court will issue http://www.iconnectblog.com/2018/11/ ensure prior consultation given the impacts relevant decisions on whether bilateral in- introduction-to-i-connect-sympo- that drilling activity may have on the com- vestment treaties are according to the Con- sium-contemporary-discussions-in-consti- munity’s bio-cultural rights. stitution, whether the use of glyphosate for tutional-law-part-i-the-paradox-of-the-trans- eradication of illicit drug fields is allowed formative-role-of-the-colombian-constitu- 3.3 A-616/2018 under the right to a healthy environment, tional-court and whether traditional possessors of vacant In judgment T-733/2017, the Seventh Cham- lands should be constitutionally entitled to Magdalena Correa Henao, ‘I-CONnect ber of the Constitutional Court, comprised of own them. Symposium–Contemporary Discussions 3 justices, decided a tutela presented by an in Constitutional Law–Part VIII: Popu- indigenous community against Cerro Mato- Moreover, the deliberative endeavor of the lar Consultations Regarding Mining Proj- so, the largest nickel mine in Colombia. The Court concerning public hearings will be ects in Colombia,’ Int’l J. Const. L. Blog, petitioners claimed a violation of their right fulfilling the expectations of positioning it Nov. 7, 2018, at: http://www.iconnectblog. to prior consultation. The Chamber estab- in a better epistemic status to decide, and com/2018/11/i-connect-symposium-con- lished a violation of the rights to prior con- promoting public discussion on highly con- temporary-discussions-in-constitution- sultation, health, and a healthy environment tested issues. However, the risks of misusing al-law-part-viii-popular-consultations-regar- of the petitioners. Hence, the Court ordered this deliberative device will undermine the ding-mining-projects-in-colombia the company to not only create a consulting credibility of the Court if the hearings do not process with the claimants but also: (i) to upgrade the protection of fundamental rights, compensate for damages caused by the op- creating polarization and glossing over defi- eration, including lost profit and non-pecu- cient government performance. A challenge niary loss; (ii) to create a compensation fund of the Court for 2019 is rationalizing public with an ethnic perspective; and (iii) warned hearings for achieving their aims. In particu- Cerro Matoso that non-compliance to these lar, the Court should assess the efficiency of orders would empower the constitutional follow-up public hearings for purposes relat- judge to halt the mining operation. ed to the exercise of supervisory jurisdiction in structural cases. 62 | I•CONnect-Clough Center Commonwealth Caribbean Derek O’Brien, Senior Lecturer – Truman Bodden Law School I. INTRODUCTION ance for Change, in Guyana), narrowly lost a vote of no-confidence towards the end of In constitutional terms, 2018 was an event- the year when a Government backbencher, ful year for the region on a number of dif- Charandass Persaud, crossed the floor of the ferent levels. At the political level, the year House of Representatives. COMMONWEALTH began with the election of the first-ever fe- CARIBBEAN male president in the Republic of Trinidad At the level of constitutional reform, the citi- and Tobago, Madame Justice Paula-Mae zens of Antigua and Barbuda and Grenada si- :HHNHV D IRUPHU &RXUW RI $SSHDOV MXGJH multaneously voted in referendums to reject LQWKH7XUNVDQG&DLFRV3UHVLGHQW:HHNHV an amendment of their respective Constitu- who had been nominated by the Prime Min- tions to replace the Judicial Committee of ister, Keith Rowley, and whose nomination the Privy Council (JCPC) with the Caribbean was endorsed by the leader of the opposi- Court of Justice (CCJ). Meanwhile, in Trin- tion, Kamla Persad-Bissessar, was indirectly idad and Tobago, a Joint Select Committee elected by an electoral college comprised of (JSC) composed of members of both houses all the members of the House of Representa- of the Trinidad and Tobago Parliament has tives and the Senate. The election of Presi- been reviewing a draft bill—the Constitution GHQW:HHNHVZDVIROORZHGVKRUWO\WKHUHDIWHU (Amendment) (Tobago Self-Government) by the appointment of only the second-ever Bill 2018—which provides for a decentral- female governor general of Barbados, Dame ized system of government for Trinidad and Sandra Mason. In elections in May, Barba- Tobago. dos also elected a new female prime minister, Mia Mottley, the leader of the Barbados La- Finally, at the juridical level, the High Court bour Party, which won all 30 of the available of Trinidad and Tobago ruled that laws that seats in the House of Representatives. The criminalise homosexuality are unconstitu- elections also resulted in the largest number tional1 while the CCJ, in two landmark judg- of female members (six) being elected to ments,2 ruled that the law providing for a Parliament. Though this was the first- ever mandatory death penalty in Barbados and a clean sweep of an election in Barbados, clean law criminalising cross-dressing in Guyana sweeps are not uncommon in the region, are both unconstitutional. Also noteworthy and the year saw the Antigua Labour Party was the announcement of the withdrawal and the New National Party winning clean by the Roman Catholic Church of its ap- sweeps in elections in Antigua and Barbuda peal against the decision of the High Court and Grenada, respectively. Elsewhere, the of Belize in Caleb Orozco v Attorney Gen- Government of St Vincent had to face down eral of Belize3 that section 53 of the Beliz- a vote of no-confidence, which it won by the ean Criminal Code, which criminalised ho- narrowest of margins (8 to 7 votes) while PRVH[XDOLW\ZDVXQFRQVWLWXWLRQDO:LWKWKH the coalition Government, the APNU (Alli- withdrawal of the appellants it would appear 1 Jason Jones v Attorney General Trinidad and Tobago, H.C.720/2017. CV.2017-00720 (unreported). 2 Nervais v The Queen [2018], CCJ 19 (AJ), and McEwan et al v Attorney General Guyana [2018], CCJ 30 (AJ). Available at http://www.ccj.org/judgments-proceedings/appellate-jurisdiction-judgments 3 In the Supreme Court of Belize, Claim No. 668 of 2010. Unreported but available at http://cnslibrary.com/ wp-content/uploads/Belize-Court-of-Appeal-Judgment-Caleb-Orozco-v-AG-et-al.pdf. Last accessed 5 January 2019. 2018 Global Review of Constitutional Law | 63 that homosexuality in Belize has effectively to make laws for the peace, order and good solely responsible for the government as a been decriminalised. government of Tobago with respect to all whole.4:KDW WKHQ LV WR KDSSHQ ZKHQ WKH matters except those listed in the Fourth national Parliament votes on measures that II. MAJOR CONSTITUTIONAL Schedule of the Bill, which would be the ex- DIIHFW 7ULQLGDG RQO\" ,V WKH LQWHQWLRQ WKDW clusive responsibility of the central govern- the two Tobagonian MPs will be excluded DEVELOPMENTS ment. Those matters would include national IURPYRWLQJRQWKHVHLVVXHV",IVRWKLVFRXOG security, foreign affairs, immigration and the be problematic, given that the Government Since I have previously discussed the on- appointment of the most senior public offi- presently has a narrow majority in the elect- going attempts across the region to replace cials, which will continue to fall under the ed House (holding 23 of the 42 seats), which the JCPC with the CCJ in my “2016 Year in purview of the central government. includes the two MPs from Tobago. If these Review,” I will not discuss here the issues two MPs were not allowed to vote on matters arising from the failed referendum attempts The fourth is the establishment of a Tobago that affected Trinidad only, the Government in October of 2018 to replace the JCPC with Executive Council, comprising the Chief would no longer have a majority when these the CCJ in Antigua and Barbuda and Gre- Secretary, a Deputy Chief Secretary and a matters were voted upon. nada. I will instead focus on efforts to rede- number of other Secretaries appointed in ac- fine the relationship between Trinidad and cordance with the advice of the Chief Secre- There is also the problem of lack of repre- its sister island, Tobago, and the passage of tary from among members of the House of sentation of Tobagonians in the upper House “The Constitution (Amendment) (Tobago Assembly, which would have direction and of the national Parliament, which comprises Self-Government) Bill 2018” (hereinafter control of the Tobago Island Government 31 senators appointed by the President: 16 “the 2018 Bill”). and which would answer to the Tobago Leg- on the recommendation of the Prime Minis- islature. ter; six on the recommendation of the Leader Though relatively small, with a land mass of the Opposition; and nine by the President of 116 square miles and a population of 60 Fifth, and finally, the President, when exer- in his discretion from outstanding persons 000, the island of Tobago has been agitating cising his functions under the Constitution or from economic or social or community orga- for several decades for greater autonomy any other law, must do so in accordance with nizations and other major fields of endeav- from its larger and wealthier sister island, (unless otherwise stated by the Constitution our. There is no specific requirement that this Trinidad. The most recent manifestation of or any other such law) the advice of not only number should include senators who repre- Tobago’s desire for autonomy culminated in the Cabinet but also the Tobago Executive sent the interests of Tobago and the 2018 Bill the 2018 Bill, which has been the subject of Council. In return, the Chief Secretary must makes no provision for this. review by the JSC. Since there is not enough keep the President informed concerning mat- space within this short piece to comment on ters of the Tobago Island Government. Finally, there is the larger question of Toba- every detail of the 2018 Bill, I will instead gonian influence on matters reserved to the highlight five of its main provisions. The system of government envisaged by the central Government under the 2018 Bill, 2018 Bill may be described as “quasi-feder- such as national security, foreign affairs, etc. The first is a proposed amendment to the pre- al” and is akin to that of a constitutionally :KLOHWKH%LOOSURYLGHVIRUPDQGDWRU\ amble of the 1976 Constitution that would decentralized union. It is basically unitary in quarterly meetings between the Chief Sec- recognise the right of the people of Tobago form, but incorporates a constitutionally pro- retary and the Prime Minister and the Chief to determine their political status and freely tected subnational unit of government that Secretary may be invited to “air” Tobagonian pursue their economic, social and cultural has functional autonomy. There will thus be matters at cabinet meetings, this is at the dis- development. a regional government for Tobago, but not cretion of the central Government. As Toba- for Trinidad. This arrangement resembles gonians become accustomed to a measure of The second is a new constitutional provision WKH UHODWLRQVKLS EHWZHHQ WKH :HVWPLQVWHU self-government, will they be satisfied with that would provide for the equal status of the Parliament in the UK and Scotland under the being excluded from decision-making in two islands. Scotland Act 1998 and gives rise to the prob- relation to such matters as national security lem of what has come to be known as “the DQGIRUHLJQDIIDLUV"7KHFXUUHQWVWDQGRIIEH- The third is the creation of a new Tobago :HVW /RWKLDQ TXHVWLRQ´ VLQFH WKH QDWLRQDO tween the Scottish Government and the UK Legislature consisting of the President of Parliament must contain at least two MPs Government regarding Brexit is illustrative Trinidad and Tobago, a House of Assembly IURP 7REDJR 7KH :HVW /RWKLDQ TXHVWLRQ of the kind of tensions that can arise from (comprising 15 elected members and four refers to the anomaly caused by asymmetric such an asymmetrical relationship. Councilors) and a People’s House (a second devolution, in which devolved legislatures chamber composed of 13 elected members). have law-making powers for some parts of The JSC was due to submit its report on the The Tobago Legislature would have power the country, but the shared Parliament is also 2018 Bill to the national Parliament by 31 4 Jason Jones v Attorney General Trinidad and Tobago, H.C.720/2017. CV.2017-00720 (unreported). 64 | I•CONnect-Clough Center July, but the report has not yet been made alty (s2 Offences against the Person Act (d) Freedom of conscience, of expres- publicly available. It is not, therefore, clear 1861), being a pre-existing law, was saved sion and of assembly and association, when, if ever, the Bill will be approved by from constitutional challenge by the gener- The following provisions of this Chap- Parliament. The 2018 Bill is supported by al savings clause to be found in s26 of the ter (ss12-23) shall have effect. the current Prime Minister of Trinidad and Barbados Constitution. This is because s26 Tobago, Keith Rowley, himself a Tobago- provides that nothing contained in or done The answer to the question of whether s11 nian native, but since it will entail amend- under a law enacted prior to the date of in- of the Constitution was separately enforce- ments to a number of the most entrenched dependence (being 30 November 1966) shall able was critical because, unlike the rights provisions of the Constitution it will need to be held to be inconsistent with or in contra- and freedoms guaranteed by sections 12 to be approved by three-quarters of members vention of any provision of sections 12 to 23 23 of the Constitution, s11 was not subject of the House of Assembly of Trinidad and of the Constitution (which list the rights and to the immunising effect of the general sav- Tobago and two-thirds of the Senate. This is freedoms guaranteed by the Constitution). In ings clause in s26. Previously, the JCPC had a formidable hurdle, which perhaps explains other words, the effect of s26 is to immunise treated clauses like s11, which are common why efforts to introduce greater autonomy all pre-independence laws from challenge on to constitutions throughout the region, as for Tobago have been so protracted. Given the grounds that they violate any of the rights mere preambles to the rights set out in the that the incumbent Government is already and freedoms listed in sections 12 to 23 of chapter guaranteeing fundamental rights over three years into the life of the current the Constitution. Accordingly, the JCPC and freedoms. Thus, for example, in Olivier Parliament, there must be a concern that if refused to deploy the modifications clause v Buttigeig, the JCPC observed of a similar the Bill is not passed within the next two contained in s4(1) of the Independence Or- provision found in the Constitution of Malta: years and Prime Minister Rowley, who has der-in-Council, under which the Constitu- thus far championed the 2018 Bill, does not tion was enacted, to modify the mandatory It is to be noted that the section begins win the next election, the Bill will eventually death penalty provided by s2 OAPA 1861 ZLWK WKH ZRUG ³:KHUHDV´ 7KRXJK WKH fall by the wayside. to bring it into conformity with the Consti- section must be given such declaratory tution by substituting a discretionary for the force as it independently possesses, it III. CONSTITUTIONAL CASES mandatory death penalty. would appear in the main to be of the nature of a preamble. It is an introduc- Though it is of undoubted significance, the The CCJ, however, took a quite different tion to and in a sense a prefatory or ex- declaration of the High Court of Trinidad approach to this issue. Unlike the JCPC, the planatory note in regard to the sections 6 and Tobago in Jason Jones that laws which focus of the CCJ in Nervais was directed to- which are to follow. criminalise homosexuality are unconstitu- wards the question of the enforceability of a tional is currently the subject of an appeal to quite different provision of the Constitution, Notwithstanding this precedent, Sir Dennis the JCPC. I will, therefore, instead focus in s11, which provides as follows: Byron, delivering judgment for the majority this section on two landmark judgments of in Nervais, held that it would be irrational the CCJ: Nervais v The Queen and McEwan :KHUHDV HYHU\ SHUVRQ LQ %DUEDGRV LV to attribute a meaning to the word “where- et al v AG Guyana. I will first briefly explain entitled to the fundamental rights and as” that would make s11 impotent, i.e., un- the CCJ’s approach in each case before pro- freedoms of the individual, that is to say, enforceable. The fact that s11 was omitted ceeding to offer a critique of the CCJ’s ap- the right, whatever his race, place of or- from the savings provisions in s26 did not, proach, which is common to both cases. igin, political opinions, colour, creed or in his view, mean that s11 was preambular sex, but subject to respect for the indi- only. Rather, “the view that better accords 1. Nervais v The Queen vidual rights and freedoms of others and with the protection of fundamental rights is for the public interest, to each and all of that the Court is not prevented from holding This case was concerned with the constitu- the following, namely: that existing laws may be inconsistent with 7 tionality of the mandatory death penalty in (a) Life, liberty and security of the per- the rights and freedoms set out in s11.” Barbados. This very issue had previously son; been considered by a nine-panel member of (b) Protection for the privacy of his Having decided that s11 was separately en- the JCPC in 2001 in Boyce and Another v At- home and other property and from forceable, the majority had little difficulty in torney General Barbados.5 On that occasion, deprivation of property without com- finding that the protection of the law guar- the JCPC had determined that the law-mak- pensation; anteed by s11(c) included the right not to be ing provision for the mandatory death pen- (c) The protection of the law; and subject to a mandatory death penalty. The 5 [2004] UKPC 32. 6 [1967] 1 AC 115, 128F. 7 [39]. 2018 Global Review of Constitutional Law | 65 question then arose as to whether the Court In answering this question, the CCJ, reiterat- to circumvent the limits imposed on its juris- had jurisdiction to grant a remedy for this ing the views it had previously expressed in diction by the savings law clause in Article violation. Though it was acknowledged that Nervais, declared: 152. Thirdly, that there was an onus on the s11 is omitted from the redress clause con- courts to interpret the savings law clause as tained in s24, which empowers the Court to A Constitution must be read as a whole. narrowly as possible to place it in compli- remedy violations of the rights and freedoms Courts should be astute to avoid hin- ance with Guyana’s obligations under the guaranteed by the Constitution, this was not drances that would deter them from in- American Convention of Human Rights a reason in the majority’s view to assume terpreting the Constitution in a manner and the jurisprudence of the Inter-American that the rights guaranteed by s11 were not faithful to its essence and its underlying Court of Human Rights, which had repu- separately enforceable. The duty of the Court spirit. If one part of the Constitution diated savings law clauses for denying the was “to give effect to the interpretation which appears to run up against an individual right to seek judicial protection against vio- is least restrictive and affords every citizen of fundamental right, then, in interpret- lations of guaranteed human rights. Fourthly, Barbados the full benefit of the fundamental ing the Constitution as a whole, courts that the modification clause to be found in rights and freedoms.”8 This meant deploying should place a premium on affording the s7(1) of the Constitution Act, which brought the modifications clause contained in s4(1) of citizen his/her enjoyment of the funda- the Constitution into force, must be read to- the Independence Order-in-Council to modify mental right, unless there is some over- gether with the savings law clause to bring the mandatory death penalty provided by s2 riding public interest (emphasis added). pre-independence laws such as s153 into OAPA 1861 to bring it into conformity with conformity with the rights guaranteed by the the Constitution by substituting a discretion- :LWKWKLVREMHFWLYHLQPLQGWKH&&-LGHQWL- Constitution. ary for the mandatory death penalty. fied “four broad and interlocking approach- es” that it could take in order “to ameliorate Having concluded that, for all of the above In conclusion, Sir Dennis Byron, on behalf the harsh consequences of the application of reasons, the Court should not be deterred of the majority, declared that the Court was the saving laws clause.” The first was to con- by the savings law clause from testing the under a duty “to construe the conflicting pro- strue the savings law clause in Article 152 as compatibility of s153 with the fundamental visions of the Constitution, with a view to narrowly as possible. The second was to ap- rights guaranteed by the Constitution, the harmonizing them, where possible, through ply the saving laws clause only to challeng- CCJ then proceeded to find that s153 was interpretation, and under its inherent juris- es to the stipulated human rights provisions, incompatible with both the right to equality diction, to fashion a remedy that protects i.e., in Guyana, Articles 138 to 149. The third and the right to freedom of expression. from breaches and vindicates those rights was to avoid an interpretation of domestic guaranteed by the Bill of Rights.”9 law that places a state in breach of its inter- 3. A critique of the CCJ’s approach national obligations. The fourth was to apply 2. McEwan et al v AG Guyana the modifications clause contained in s7(1) As the CCJ declared in Nervais, the main of the Constitution Act to the relevant pre-in- purpose of establishing the CCJ was to pro- This case was concerned with the constitu- dependence law before attempting to apply mote the development of a “Caribbean” juris- tionality of a pre-independence law in Guy- the savings law clause. SUXGHQFH:KDWWKDWPLJKWPHDQLQSUDFWLFH ana, s153(1)(xlvii) of the Summary Jurisdic- has never been precisely defined, but in one tion (Offences) Act, which makes it a crime Applying each of these approaches, in turn, of its earliest judgments,10 Attorney General for a man to dress in female attire, or for a the CCJ reached the following conclusions. Barbados v Joseph and Boyce, the CCJ ex- woman to dress in male attire, in a public Firstly, that the savings law clause did not plained how it would go about developing its place, for an improper purpose. Though the apply to s153(1) because that provision had jurisprudence: case raised a number of distinct constitu- been amended so many times it was no lon- tional issues concerning the compatibility of ger an “existing law.” Secondly, since the >:@HVKDOOQDWXUDOO\FRQVLGHUYHU\care- s153(1)(xlvii) with the right to equality and Constitution is based on the implied princi- fully and respectfully opinions of final the right to freedom of expression, for pres- ple of the rule of law, s153 could be struck courts of other Commonwealth coun- ent purposes the most important issue was the down not because it violated the fundamen- tries and particularly, judgments of the preliminary question of whether the CCJ was tal rights and freedoms guaranteed by the [JCPC] which determine the law for barred by the general savings law clause con- Constitution but because it violated this im- those Caribbean states that accept the tained in Article 152 of the Constitution from plied principle on account of its vagueness. [JCPC] as their final appellate court.11 testing the constitutionality of s153(1)(xlvii). Attacking s153 in this way enabled the CCJ 8 [39]. 9 [68]. 10 [2006] CCJ 1 (AJ). Available at http://www.caribbeancourtofjustice.org/judgments-proceedings. 11 [7]. 66 | I•CONnect-Clough Center In Nervais, the CCJ added that the devel- There is no explanation of how to recon- the decisions of the voters in the two most opment of its jurisprudence would require cile a separate justiciability of s11 with recent referendums in Antigua and Grenada, “evolution and change in relation to the ap- the architecture of the constitutional in 2018, to reject a proposal to replace the proach of decisions of the [JCPC].”12 The provisions. JCPC with the CCJ, and in light of the po- CCJ’s judgment in Nervais is, however, nei- litical deadlock in Jamaica and Trinidad and ther respectful nor evolutionary. Similarly, the reliance by the CCJ in Nervais Tobago over the same question,18 it seems and McEwan on the modifications clause, likely that this bifurcation in the jurispru- Sir Dennis Byron, for example, delivering which had been so emphatically condemned dence of the CCJ and JCPC will continue for judgment for the majority, castigates Lord by Lord Hoffman in Boyce and Joseph, de- the foreseeable future. Hoffman (who delivered judgment for the mands some explanation, but none is forth- majority in Boyce and Joseph) as suffering coming. Lord Hoffman’s approach is simply IV. LOOKING AHEAD from “the imperial taint of the view that dismissed as being based on “mere conven- what was done under the colonial regime tional wisdom.” The CCJ prefers instead to As a result of the no-confidence vote in Guy- 13 cannot be struck down.” Sir Dennis By- rely on the approach adopted by the JCPC ana, elections will be held a year earlier than ron then proceeds to accuse Lord Hoffman to the modifications clause in the Consti- expected unless the Government wins its of “undermining the concepts of indepen- tution of The Bahamas in the later case of constitutional challenge to the no-confidence 14 17 dence and sovereignty,” and ascribes to Bowe (Junior) and Anor v The Queen, even vote, which is currently pending before the Lord Hoffman a view which the latter has though the terms of the appeal in Bowe were Supreme Court. never professed; namely, “the unacceptable expressly framed so as to preclude re-argu- idea that colonial law as applied to colo- ment of the points decided by the Board in The Government of Trinidad and Tobago has nial subjects contained all the fundamental Boyce and Joseph. also announced that it intends to appeal to 15 rights to which they were entitled.” There the JCPC against the decision of the High are, undoubtedly, principled objections to Because of the decisions in Nervais and Court in Jason Jones. This will be the first the majority judgment of the JCPC in Boyce McEwan, the CCJ now finds itself at odds time that the JCPC will have an opportunity and Joseph (see, for example, the dissenting with the jurisprudence of the JCPC. This is to rule on the constitutionality of laws crimi- judgment of Lord Bingham in that case), but uncharted territory for all concerned. Given nalising homosexuality, which are pervasive this is simply argumentum ad hominem. the size of the panel in Boyce and Joseph, it across the region. Justifying the decision to is difficult to conceive of the JCPC overrul- appeal, Trinidad’s Attorney General, Faris The argument that s11 of the Constitution of ing that decision any time soon, but for so Al-Rawi, argued that “if you leave this mat- Barbados is separately enforceable is also far long as it does not there will be two parallel ter simply to the High Court judgment level from evolutionary. There is simply no prec- human rights systems in the region. On the you may run the risk of another High Court edent for this argument in the jurisprudence one hand, the judges of those countries that judge with a contradictory point of view. The of the JCPC. Instead, the majority in Nervais subscribe to the CCJ’s appellate jurisdiction Government’s role, therefore, is important in rely on an article by Tracy Robinson and Arif will now be able to modify the entire body appeal (sic) so that law ought to be settled.”19 Bulkan,16 which argues, controversially, that of pre-independence law to bring it into con- the JCPC has previously misconstrued such formity with the Constitution. On the other clauses. Notwithstanding the novelty of this hand, the judges of countries that continue proposition, there is no attempt to grapple to subscribe to the JCPC will remain bound with the omission of s11 from both s24 and to give effect to pre-independence law even s26. As Justice Anderson observed, in his where it violates the rights and freedoms dissent in Nervais: guaranteed by the Constitution. In light of 12 [65]. 13 [67]. 14 [67]. 15 [67]. 16 ‘Constitutional Comparisons by a Supranational Court in Flux: The Privy Council and the Caribbean Bill of Rights,’ MLR 2017, Vol. 80, No.3, 380. 17 [2006], UKPC 10. 18 See D. O’Brien, ‘The end of the Caribbean Court of Justice? On failed constitutional referendums in Grenada, and Antigua and Barbuda.’ Available at http://con- stitutionnet.org/news/end-caribbean-court-justice-failed-constitutional-referendums-grenada-and-antigua-and-barbuda 19 Rachel Espinet, ‘Trinidad and Tobago sodomy law struck down,’ Washington Blade, April 30 2018. Available at https://www.washingtonblade.com/2018/04/13/ trinidad-tobago-sodomy-law-struck/ 2018 Global Review of Constitutional Law | 67 Croatia Ivana Tucak, PhD, Associate Professor Faculty of Law, Josip Juraj Strossmayer University of Osijek, Croatia I. INTRODUCTION aimed at human rights and fundamental free- doms protection.3 In regards to the structure This review presents key events in the con- of the cases received from the establishment stitutional order of the Republic of Croatia of the Court in 1991 to 31 December 2018, that took place in 2018. The Freedom House 93,211 cases (87%) relate to constitution- CROATIA ³)UHHGRPLQWKH:RUOG5HSRUW´UHJDUGV al complaints and 12,864 cases to constitu- 4 Croatia as a free country and rates it 1.5 / 7 tional and legality review. In 2018, the main (“1=Most Free, 7=Least Free”).1 Political issues dealt with by the Constitutional Court rights protection is rated 1/7 and civil liberties involved popular initiatives for constitutional 2/7. In this light, nothing changed with re- amendment and the proper role of the state in spect to 2017. The electoral process is award- country economics. ed the highest ratings, which is supplemented by the assertion that the head of government II. MAJOR CONSTITUTIONAL was elected in a free and fair election, as were DEVELOPMENTS the national legislative representatives. The electoral laws are given the same ratings and At this point, the issue of a citizen-initiated deemed as being impartially implemented by referendum needs to be touched upon. In “relevant election management bodies”. 2018, two civil initiatives collected a rather large number of citizens’ signatures to make In 2018, the Constitutional Court received the Croatian Parliament call a constitutional 4,868 cases, most of which belonging to two referendum. One of them was aimed at the categories: 162 cases referred to procedures amendment of the Croatian electoral system for assessment of the compliance of laws concerning parliamentary election and the with the Constitution, and 4,514 cases related other one to transferring the right to make the to proceedings initiated following a constitu- final decision on entering into international tional complaint for the protection of human treaties to the citizens. As part of its com- rights and fundamental freedoms guaranteed petencies referring to constitutionality and by the Constitution.2 In the same year, the legality review, the Constitutional Court had Constitutional Court resolved 4,875 cases, the key role in resolving the procedural issues out of which 278 referred to procedures for relating to referendum implementation since assessment of the compliance of laws with the Referendum and Other Forms of Personal the Constitution and 4,396 to proceedings Participation in the Exercise of State Power initiated following a constitutional complaint and the Local and Regional Self-government 1 -YLLKVTPU[OL^VYSK *YVH[PH#O[[WZ!MYLLKVTOV\ZLVYNYLWVY[MYLLKVT^VYSK JYVH[PH% accessed 30 January 2019. All the translations from Croatian into English are mine unless noted otherwise. 2 Pregled primljenih predmeta u razdoblju od 1990. do 31.12. 2019. O[[WZ!^^^\Z\KOYZP[LZKLMH\S[ÄSLZKVR\TLU[P7YLNSLKFWYPTSQLUPOFWYLKTL[HF\FYHaKVISQ\FVKF F KVF WKM%HJJLZZLK1HU\HY` 3 Pregled riješenih predmeta u razdoblju od 1990 do 31. 12. 2018. #O[[WZ!^^^\Z\KOYZP[LZKLMH\S[ÄSLZKVR\TLU[P7YLNSLKFYPQLZLUPOFWYLKTL[HF\FYHaKVISQ\FVKF F KVF WKM%HJJLZZLK1HU\HY` 4 *VUZ[P[\[PVUHS*V\Y[VM[OL9LW\ISPJVM*YVH[PH:[H[PZ[PJZ#O[[WZ!^^^\Z\KOYOYZ[H[PZ[PRH%HJJLZZLK 30 January 2019. 68 | I•CONnect-Clough Center Act (hereinafter: Referendum Act)5 does not 9 November 2000 provided the citizens with promoted the organization of a referendum for regulate all relevant issues. a pure novelty called “popular constitutional incorporation of the definition of marriage as a initiative”.10 This is the “most radical instru- union of a man and a woman into the Consti- The text below offers a brief overview of ment”, which empowers citizens to shape tution, aiming to prevent legalisation of same- the constitutional provisions on referenda.6 constitutional provisions independently.11 Ar- sex marriage in the Croatian Parliament.14 The The first Croatian Constitution,7 adopted in ticle 87 was supplemented with Paragraph 3, initiative resulted in the amendment of Article December 1990, envisaged only facultative which reads as follows: 62 of the Constitution.15 referenda.8 Article 87, Paragraph 1 stipulated that the Croatian Parliament (at that time, the “The Croatian Parliament shall call Other civil initiatives were not so successful, Croatian Parliament was a bicameral body referenda on the issues specified in DVKLJKOLJKWHGE\$QD+RUYDW9XNRYLüPRVW- and the Chamber of Representatives exer- Paragraphs (1) and (2) of this Arti- ly because they did not succeed in collecting cised this power) is entitled to “call a referen- cle in accordance with law when so the number of signatures required for calling dum on proposals to amend the Constitution, requested by ten percent of the total a referendum, or because the Constitutional a bill or any such other issue as may fall with- electorate of the Republic of Croatia”. Court declared their referendum questions in its purview”. The Croatian president may substantially unconstitutional.16 However, also call a referendum on a Government’s The first ten years following the above civil initiatives have disclosed some flaws proposal, but such an initiative shall include amendment of the Constitution did not see in Croatia’s referendum system, from proce- a countersignature of the prime minister and the application of that instrument. It was the dural issues to issues relating to substantial revolve around “a proposal to amend the year 2010 when the instrument became “a compliance of referendum questions with the Constitution or any such other issue as he/she high priority political and legal issue”.12 Not Constitution.17 The Constitutional Court has may deem to be of importance to the indepen- long before the Croatian accession to the Eu- indicated those issues in a number of its cas- dence, integrity and existence of the Republic ropean Union, it came to a significant change es.18 All those problems culminated in 2018 of Croatia” (Article 87, Paragraph 2). relating to the conditions for referendum or- when two civil initiatives, “The People De- ganization.13 Article 87 (now Article 86) of cide” (1DURGRGOXþXMH) and “Truth about the A referendum is valid if “the majority of all the Constitution faced a major change in its Istanbul Convention” (Istina o Istanbulskoj), registered voters in the Republic of Croatia” Paragraph 4, which does not require “a ma- managed to collect a vast number of signa- turn up to vote. A referendum decision shall jority turnout any more” for the referendum tures. be made by the majority of the votes cast at a to be legally binding but sets forth that the re- referendum (Article 87, Paragraph 3). Such a spective decision shall be made by the simple Civil initiative “The People Decide” required decision is binding for the Government (Ar- majority of the votes cast. a comprehensive electoral reform.19 It aimed ticle 87, Paragraph 4). It should be stressed to amend Article 72 of the Constitution sig- that neither the Croatian president nor the The subsequent period brought out various nificantly. First, the reduction of the number Croatian Parliament has ever exercised their civil initiatives and their goals. The only suc- of total deputies was required. In compliance constitutional powers and called a referen- cessful civil initiative was called “In the Name with the current formulation of Article 72 of dum for constitutional amendment.9 The of the Family” (U ime obitelji). That initiative the Constitution, “the Croatian Parliament amendment of the Croatian Constitution of was supported by the Catholic Church when it shall have no less than 100 and not more than 5 ¸6ɉJPHS.HaL[[L¹UV 6 ;OPZIYPLMYL]PL^OLH]PS`YLSPLKVU9VILY[7VKVSUQHR»Z[L_[!¸(IVSPZOPUN(SS4LJOHUPZTZMVY-P_PUN,SLJ[PVUZ¹!;OL*P[PaLUZ»0UP[PH[P]L[V*OHUNL[OL,SLJ[VYHS:`Z[LT of Croatia (2015), 52 Croatian Political Science Review 104-106. 7 ¸6ɉJPHS.HaL[[L¹UV ,UNSPZO[YHUZSH[PVU!#O[[W!^^^ZHIVYOYZP[LZKLMH\S[ÄSLZ\WSVHKZPUSPULÄSLZ*65:;0;<;065F*96(;0(WKM%HJJLZZLK1HU\HY` 8, 9, 10, 11 Podolnjak (n. 6), 105. 12 (UH/VY]H[=\RV]PDž¸ 2018 Global Review of Constitutional Law | 69 160 deputies”. The respective referendum domestic violence (hereinafter: Istanbul Con- Public Administration to coordinate activities question suggested that there shall be no more vention). 25 Apart from the issue of denuncia- related to checking the number of collected than 120 deputies. The initiative also called for tion of Istanbul Convention, this civil initiate signatures and their validity. The Ministry a reduction in the number of representatives of also proclaimed amendment of the Croatian forwarded the task to the Information Sys- national minorities from eight, as prescribed Constitution in a way that its Article 133 tems and Information Technologies Support by the current electoral legislation, to six.20 should be supplemented with a paragraph Agency LLC - Apis IT LLC (p. 2). Furthermore, it demanded preference vot- which would read as follows: “The Croatian ing for election of candidates to the Croatian Parliament shall decide on denunciation of On 3 August 2018, the initiative submitted Parliament, decrease of the electoral thresh- international treaties subject to ratification to the Ministry of Public Administration a old from 5% to 4% of valid ballots, a new thereof or withdrawal from international or- request for participation in the procedure for manner of defining electoral constituencies, ganizations and alliances with the same ma- signature verification, adding that it, as the introduction of postal and electronic voting, jority as the one required for ratification of organizer, represents an interested party and and limited capacity for entering into political international treaties and assignment of pow- thus should be enabled to participate in the alliances.21 Besides the reduction in their total ers to international organizations or alliances. procedure (p. 3). The request was rejected, number, representatives of national minorities Such issues may be subject to a national ref- and the initiative submitted a constitution- would be prevented from casting a vote of erendum”. 26 al complaint to the Constitutional Court on confidence and deciding on the state budget. 3 October 2018. The applicant required the That was the second question proposed by this Both initiatives were collecting signatures Constitutional Court to abolish the conclu- civil initiative, and its goal was to supplement from 13 to 27 May 2018 and afterwards ex- sions of the Croatian Parliament and Gov- the Constitution with Article 72a. pressed their doubts about the action of the ernment and order the Parliament to call a bodies in charge of referendum implementa- referendum and, “subsidiarily”, order the Not far from the truth is Robert Podolnjak’s tion due to a lack of regulation of the subject Government, Ministry of Public Administra- assertion that the most radical item of the matter, and consequently submitted their ap- tion and Ministry of Interior to permit par- proposed electoral reform was the constitu- plications to the Constitutional Court. ticipation of initiative representatives in the tionalization of the electoral system. Its fun- signature verification procedure (p. 1.1). damental principles, which are currently only III. CONSTITUTIONAL CASES prescribed by the law, would have been in- The applicant’s objections (p. 4-4.2) can be 22 corporated into the Constitution. The goals Ruling No. U-VIIR-3592/2018 of 18 Decem- summed up in the following way. The appli- of this civil initiative were directed towards ber 2018 and Ruling No. U-VIIR-3260/2018 cant held that its participation in the signa- the so-called electoral engineering of big po- of 18 December 2018 – review of the ture verification procedure was “necessary... litical parties, which benefit from such a sys- constitutionality and legality of a national due to the protection of a public interest and tem at the detriment of citizens and therefore referendum particularly the elimination of a doubt about are not interested in system amendment.23 As the regularity and transparency of the proce- detected by Podolnjak, a large share of Croa- After members of the “The People Decide” dure”. The Ministry of Public Administration tian citizens feel that the electoral system is, civil initiative had submitted the collected violated the applicant’s right to a response to although being given high ratings by foreign signatures calling for a referendum to the the submitted request for participation in the observers, such as in the “Freedom House” Croatian Parliament, the Parliament then above procedure. The Government did not 24 report, unfair and partial. requested the government to verify the col- provide an answer, and the Ministry of Public lected signatures or, in other words, to check Administration gave it in an improper form, a A civil initiative called “Truth about the Is- whether the signatures were collected in form different from that of an administrative tanbul Convention” was engaged in gather- compliance with Article 8c of the Referen- act, so the applicant was not able to file a le- ing voters’ signatures for denunciation of the dum Act. In its conclusion of 2 August 2018, gal remedy and hence, its constitutional right Council of Europe Convention on preventing the Government assigned the Ministry of to an effective legal remedy laid down in Ar- and combating violence against women and ticle 18 of the Constitution had been violated. 20 (Y[PJSL 7HYHNYHWOVM[OL(J[VU[OL,SLJ[PVUVM9LWYLZLU[H[P]LZ[V[OL*YVH[PHU5H[PVUHS7HYSPHTLU[JVUZVSPKH[LK[L_[¸6ɉJPHS.HaL[[L¹UV 53/03, 69/03, 167/03, 44/06, 19/07, 20/09, 145/10, 24/11, 93/11, 120/11, 19/15, 104/15. 21 ¸;OL7LVWSL+LJPKL¹#O[[WZ!UHYVKVKS\J\QLOY%HJJLZZLK-LIY\HY` 22 7VKVSUQHRWYV]PKLK[OLHZZLY[PVU^P[OPU[OLJVU[L_[VM[OL¸;OL7LVWSL+LJPKL¹JP]PSPUP[PH[P]LI\[P[ILHYZYLSL]HUJLMVYIV[OPUP[PH[P]LZMVY[OLPYZPTPSHYP[` Podolnjak (n. 6), 103-104 23 Ibid 103. 24 Ibid 104. 25 ¸6ɉJPHS.HaL[[L¶0U[LYUH[PVUHS;YLH[PLZ¹UV 26¸;Y\[OHIV\[[OL0Z[HUI\S*VU]LU[PVU¹#O[[W!PZ[PUHVPZ[HUI\SZRVQPUMV%HJJLZZLK-LIY\HY` 70 | I•CONnect-Clough Center Moreover, the applicant believed that neither and therefore there were no obstacles to the of the Constitutional Act or reasons indicat- the Constitution nor the Referendum Act sets participation of initiative representatives ing that the action of the Government and out either power or obligation of the Croatian therein. The applicant added that the proce- its Ministry of Public Administration was of Parliament to entrust the Government with dure should be subject to general principles such a nature that it would represent a severe the task of verifying the number of signatures applied in electoral activities and advocated breach of democratic procedure rules or fac- and their authenticity. Since such a decision for an analogous application of the Act on the tual abolishment of the civil rights relating is ill-founded, it can be deemed as arbitrary Election of Representatives to the Croatian to the decision-making process at a referen- action, and as such, it is contrary to Article 19 National Parliament (p. 3.1; 4.1).28 Further- dum”. (p. 12). The Constitutional Court em- of the Constitution. more, the applicant expressed its doubt about phasized the importance of the principle of the “transparency and objectivity of the pro- minimum confidence in the authorities com- On 18 December 2018, the Consti- cess” since the Government and Ministry of petent for national referendum implementa- tutional Court delivered Ruling No. Public Administration had criticized the ref- tion based on the Constitution. U-VIIR-3592/2018 on the dismissal of the erendum questions on several occasions. A constitutional complaint of the “The People three-month delay in the initiation of the sig- In the end, it should be noted that although Decide” civil initiative. It held that the con- nature verification procedure was considered neither initiative has succeeded in collect- clusions of the Government and the Parlia- “unfair action of the authorities” (p. 3. 1). ing the required number of signatures, they ment were not acts governed by Article 62, were very close to achieving that. In its de- Paragraph 1 of the Constitutional Act on the The Constitutional Court established that the cisions, the Constitutional Court discussed Constitutional Court of the Republic of Cro- applicant complained about the action of the procedural issues and if the initiatives had atia (hereinafter: Constitutional Act)27 since authorities after she had already submitted an collected the required number of signatures, they were not aimed at deciding on the con- application calling for a referendum to the their content would have been probably chal- stitutional rights of the applicant and thus Croatian Parliament, and added that due to its lenged in terms of its compliance with the cannot be subject to contestation before the content, the petition was more of an applica- Constitution, particularly the part relating to Constitutional Court (p. 7. 1). On the con- tion for review of the constitutionality and le- the reduction of national minority rights. Ac- trary, those acts were aimed at defining the gality of national referendum implementation cording to the Ministry’s report, the “Truth obligations of the Government and the Min- than a constitutional complaint (p. 3). about the Istanbul Convention” civil initia- istry of Public Administration. tive managed to collect 345,942 valid sig- The Ruling elaborated on the Court’s powers natures while the “The People Decide” civil The “Truth about the Istanbul Convention” relating to review of the constitutionality and initiative collected 371,450 valid signatures civil initiative had similar remarks to the legality of the referendum process and re- for the first question relating to the amend- action of the government bodies in charge ferred to the relevant case law (p. 5-6), high- ment of Article 72 of the Constitution of the of national referendum implementation and lighting the criteria for conducting a judicial Republic of Croatia and 367,169 valid signa- consequently submitted a petition to the review of the national referendum, stated in tures for the second question referring to the Constitutional Court on 4 September 2018. Article 96 of the Constitutional Act (p. 7). supplement of the Croatian Constitution with The petition had the form of a constitution- The Court noticed that the applicant based Article 72a.29 In order to call a referendum, al complaint and was directed towards the its claims on “general allegations” of viola- 374,740 valid signatures were required.30 “statement” of the Ministry of Public Admin- tion of the democratic procedure, “ultimate- istration, in which the initiative’s request for ly reduced to a lack of competences of the Ruling of the Constitutional Court of the participation in the procedure for verification legislative and executive bodies for signature Republic of Croatia no. U-I-1694/2017 and of the signatures collected to initiate a refer- verification” (p. 9). others of 2 May 2018 (Lex Agrokor) – the endum on the denunciation of the Istanbul procedure for assessment of the conformity Convention was declined (p. 2). After examining the above facts, the Consti- of an act with the Constitution tutional Court concluded that the applicant The applicant claimed that the Referendum did not provide “factually substantiated, clear In early 2017, the Agrokor Group, which Act does not stipulate the manner of con- and convincing reasons which would impose included over 70 legal entities, was facing a ducting the signature verification procedure, activation of the powers vested by Article 96 major liquidity and solvency crisis. The rea- 27 ;OL*VUZ[P[\[PVUHS(J[VU[OL*VUZ[P[\[PVUHS*V\Y[VM[OL9LW\ISPJVM*YVH[PHJVUZVSPKH[LK[L_[¸6ɉJPHS.HaL[[L¹UV 28 ¸6ɉJPHS.HaL[[L¹UV 29 9LWVY[VU[OL*VTWSL[LK:PNUH[\YL5\TILY*OLJR=LYPÄJH[PVUVM:PNUH[\YL(\[OLU[PJP[`HUK3H^M\SULZZVM[OL:PNUH[\YL*VSSLJ[PVU4L[OVKYLSH[PUN [V[OL¸;OL7LVWSL+LJPKL¹JP]PSPUP[PH[P]L»ZHWWSPJH[PVUMVYJHSSPUNHYLMLYLUK\TVUHTLUKTLU[VM(YPJSL VM[OL*YVH[PHU*VUZ[P[\[PVUHUKVUP[ZZ\W- WSLTLU[H[PVU^P[O(Y[PJSL HHUK[V[OL¸;Y\[OHIV\[[OL0Z[HUI\S*VU]LU[PVU¹JP]PSPUP[PH[P]L#O[[WZ!\WYH]HNV]OY 2018 Global Review of Constitutional Law | 71 son why its survival was a serious issue for forbidden to initiate either the liquidation of The legal definition of “companies of sys- the Government and the wider public was the debtor’s property or pre-bankruptcy and temic importance”, according to some ap- the fact that the concern had over 56,000 bankruptcy procedures.”33 The parties for plicants, is arbitrary and discriminatory, be- employees, which makes 4.78% of the total the management of extraordinary adminis- cause it only includes joint-stock companies. number of people employed by legal entities tration procedures are “the court, emergency Some of the applicants claimed that this Act in the Republic of Croatia (p. 26. 2). The fear commissioner, advisory body and council of has “enabled the implementation of a single that the crisis in this massive company would creditors” (Article 9). The court appoints the procedure of extraordinary administration spill over to the entirety of the Croatian econ- commissioner proposed by the Government over a parent company and its subsidiaries omy was the direct cause for the enactment (Article 11). The emergency commissioner and affiliated companies, which resulted in of the Act on Emergency Administration in has the rights and obligations of “the bank- an ‘unconstitutional’ breach of the legal sta- Companies of Systemic Importance to the ruptcy trustee”34 (Article 12). tus of the debtors, as well as subsidiaries and Republic of Croatia (dubbed by the media as affiliated companies” (p. 17. 2). Lex Agrokor).31 An application for assessment of the consti- tutional merits of this Act, or some of its pro- In its assessment of the constitutional merits In the Draft Act, sent to the Croatian Parlia- visions, has been submitted by 12 petitioners. of the Act, the Constitutional Court accepted ment on 31 March 2017, the Government There were numerous objections by the ap- as relevant the statement of the Government explained the reasons for its enactment as plicants, and the Ruling of the Constitutional that the prevention of risks for the Croatian follows: “(…) because the existing solutions Court alone is 184 pages long. The Constitu- economy represented by these companies from the Bankruptcy Act (“Official Gazette” tional Court has divided the objections into constitutes “a particularly justified reason” no. 71/15 and 104/17) and the Act on Fi- two groups. The first group includes issues that provides the option to the legislator to nancial Operations and the Pre-Bankruptcy related to the lack of formal conformity be- determine the vacatio legis differently than Settlement (“Official Gazette” no. 108/12, tween the Act and the Constitution. The most what is regulated as a rule, i.e., eight days 144/12, 81/13, 112/13, 71/15, and 78/15) important objection emphasized by the ap- following the publication of an act in the “Of- have not proven to be sufficiently efficient plicants regarding this is that the Act has not ficial Gazette” (Article 90, Paragraph 3) (p. in managing the risks that affect the stabili- been enacted by following the regular legis- 27.1). ty of the Croatian economy in circumstances lative procedure, moreover, it has not even of deep financial difficulties for companies been scheduled in the annual plan of legisla- Regarding the substantial non-conformity with systemic importance for the Republic of tive activities. An emergency procedure was between the Act and the Constitution, the Croatia” (p. 13). The systemic importance of implemented instead, “signed by the Pres- Constitutional Court established that based these companies, according to the Draft Act, ident and announced in the Official Gazette on the constitutional provisions regarding the “results from their size regarding the number of the Republic of Croatia on the same day welfare state (Article 1) and the principle of of employees, their business relationships it was voted through by the Croatian Parlia- social justice (Article 3), the legislator in the with other business entities within the econ- ment, and it came into effect on the first day “circumstances of unfavourable economic omy, the distribution of their business activ- after it was published” (p.17. 1). and financial conditions…with an inappro- ities in the entire territory of the Republic priate and inefficient existing legal model” of Croatia, and/or their dominant economic Among the numerous objections categorised does not only have the option, but is obligated position in one part of the territory of the Re- as substantial non-conformity (p. 17. 2), the to implement “the essential economic policy public of Croatia...” (p. 13). following needs to be pointed out: all the measures” (p. 29. 7). Since 1991, the year in which the Republic petitioners emphasized that the Act has no After that, the Constitutional Court consid- of Croatia gained its independence, this has legitimate goal, and the Government has not ered whether the Act meets the proportion- been the first case of a downfall of a “too- stated the “objective and justified reasons” ality requirements from Article 16 of the big-to-fail” legal entity.32 The subject of this for its implementation in the Draft Act. Many Constitution, regarding the legitimacy of its Act has been determined as “the measure of petitioners pointed out that the problem re- goal, necessity, appropriateness and propor- extraordinary administration for companies garding the Agrokor Group could be resolved tionality stricto sensu for accomplishing the of systemic importance”. The specific proce- by appropriate application of existing legal legitimate goal, and if the enactment of the dure set out in this Act “is urgent, and during provisions, and if those were not satisfactory, Act had imposed an excessive burden on the the period of emergency receivership it is those provisions should have been amended. debtors and the creditors (p. 30). 30 This was determined pursuant to the decree of the Ministry of Public Administration on total eligible voters on 13 May 2018 at 00, 00 h. #O[[WZ!\WYH]HNV]OY]PQLZ[PWV[YLIUVWYPR\WP[P WV[WPZHaHYHZWPZP]HUQLYLMLYLUK\TH %HJJLZZLK 1HU\HY` 31 ¸6ɉJPHS.HaL[[L¹UV 32 0]HU9\IPUPDž+LQHU)VK\S¸9LN\SH[PVUVM[OL¸[VVIPN[VMHPS¹LU[P[PLZPU[OL9LW\ISPJVM*YVH[PH¸ ,RVUVTZRPWYLNSLK HUK 33,34 Ibid 306. 72 | I•CONnect-Clough Center Regarding the legitimacy of the goal of the Robert Podolnjak, “Formiranje vlade u Re- Act, the Constitutional Court accepted as rel- IV. LOOKING AHEAD publici Hrvatskoj u komparativnoj perspek- evant the statements of the Government that tivi – jedan prijedlog ustavne promjene” the goal of the Act to ensure the continuation The Government’s legislative agenda and (Forming a Government in the Republic of of business activities for the companies of action plan for the year 2019 envisages Croatia in Comparative Perspective – a Pro- systemic importance and the “maximisation adoption of a new Referendum Act in the posal for a Constitutional Change) (2018), of their total value” for all the interested par- first quarter of the year.35 It is evident that 34 Pravni vjesnik 55 ties (debtors, their employees, creditors, the many problems relating to the implementa- economy as a whole) is justified (p. 31. 3). tion of the referenda proposed by the two ,YDQ5XELQLü'HMDQ%RGXO³5HJXODWLRQRI Regarding the proportionality of the disputed civil initiatives arise from the existing legal the “too-big-to-fail” entities in the Republic measure, to evaluate its appropriateness, the lacunae. Gaps in the legislation are evident of Croatia“ (2018), 69 Ekonomski pregled Constitutional Court compared “the effects in rules on the collection of signatures to ini- 298 of the initiated bankruptcy and pre-bankrupt- tiate a referendum and their verification. The cy proceedings” and the measures that have first meeting of the working group set up to Ivana Tucak, “Hohfeld’s Analytical Scheme been accomplished so far for Agrokor (p. draft the new legislation took place in Octo- and Constitutional Economic and Social 32.1). Government reports and the monthly ber 2018. The spokeswoman of the Ministry Rights”, in Marko Novak and Vojko Stra- reports from the emergency commissioner of Public Administration made a statement hovnik (eds.), Modern Legal Interpretation, had convinced the Constitutional Court that that the new law would focus on the elimina- Legalism or Beyond (Cambridge Scholars the effects of the implemented extraordinary tion of the flaws in the extant regulation and Publishing, 2018) pp. 160-192 administration measure for Agrokor demon- streamlining the process. Some of the flaws strated the appropriateness of the measure for that should be corrected concern deadlines accomplishing the goals of the Act, without for collection and submission of signatures encroaching on the state budget (p. 34. 6). for verification as well as the subsequent timeline for calling a referendum by the Cro- :KHQFRQVLGHULQJWKHPDWWHURIWKHQHFHVVLW\ atian Parliament. The legislation is expected of the measure, the Constitutional Court held to define bodies competent for the organiza- that its necessity results from a legal void—a tion of activities that take place before the “lack of a legal framework for insolvency” referendum, such as campaigning, and to for “systemic companies” undergoing fi- deal with the issue of financing civil initia- nancial difficulty (p. 35). The Constitutional tives.36 Questions on certain subject matter Court also established that this legal mea- may be explicitly prohibited from a refer- sure does not impose an excessive burden on endum. The importance of regulating this the debtor and the creditors (p. 2.2.3). The issue is indicated by the current activities of “primary goal of the Act”, to “protect the the Association of Croatian Trade Unions, sustainability of the company of systemic which is considering the collection of signa- importance”, is “the prerequisite for the suc- tures needed for calling a referendum against cessful reimbursement of the creditors” (p. the pension reform package adopted by the 40. 4). For those reasons, the final evaluation Croatian Parliament in December 2018.37 of the Constitutional Court was that the ex- traordinary administration procedure meets V. FURTHER READING the proportionality requirements (p. 41). For that reason, the Constitutional Court issued a ĈRUÿH *DUGDãHYLü ³+LVWRULFDO (YHQWV LQ ruling on the dismissal of the application for Symbols and the Freedom of Expression: initiation of the procedure for assessment of The Contemporary Constitutional Debate in the conformity of the Act with the Constitu- &URDWLD´ 3ROLWLþNDPLVDR tion as a whole as well as the conformity of the specific provisions of the Act. 35 2019 Legal Agenda and Action Plan. #O[[WZ!aHRVUVKH]Z[]VNV]OY 2018 Global Review of Constitutional Law | 73 Cyprus Constantinos Kombos, Associate Professor of Public Law Law Department, University of Cyprus I. INTRODUCTION tution, i.e., a procedure of preventive review of constitutionality that forms the primary The 1960 Constitution of the Republic of Cy- method for ensuring separation of powers. prus established a unitary yet bi-communal CYPRUS state, with the Greek-Cypriot and the Turk- II. MAJOR CONSTITUTIONAL ish-Cypriot communities forming the axis DEVELOPMENTS upon which the constitutional arrangements operated. Following the collapse of the polit- The year 2018 witnessed a few notable con- ical compromise between the two communi- stitutional developments and court decisions. ties in 1964 and the withdrawal of the Turk- The most remarkable constitutional develop- ish-Cypriots from the government,1 Cypriot ment was the Supreme Court’s decision in constitutional law has evolved by the appli- Andreas Michaelides a.o. v. Chief Returns cation of the doctrine of the law of necessity.2 Officer a.o. (Electoral Petition 1/2017),3 Consequently, the law of necessity is always where by a narrow majority (6-5) it held that present in Cypriot constitutional discourse; the Amending Law 82(I)/2017 was unconsti- nevertheless, it is continuously coupled with tutional as it was inconsistent with Articles the counterbalancing effect of principles that 65, 66, 69 and 71 of the Constitution as well ensure that the state is governed under the as the principle of popular sovereignty. This principle of separation of powers and with decision gave rise to a major constitutional adherence to constitutionalism as well as issue and created a new deadlock similar to with a persistent and effective guarantee of the one created by Andreas Michaelides a.o. fundamental rights. v. Chief Returns Officer a.o. (Electoral Peti- tion 2/2016).4 Looking back at the year 2018, the constitu- tional developments in Cyprus were relative- Electoral Petition 2/2016 and its ly limited. In 2018, the Supreme Court ad- consequences dressed the lack of a constitutional procedure for filling parliamentary seats vacated before Following the parliamentary elections of the commencement of the parliamentary May 2016, the chairperson of the Solidarity term. Additionally, the Administrative Court Movement, Dr. Theocharous, had won a seat. issued two decisions relating to the reduction Yet she chose to keep her seat in the Europe- of benefits of civil servants and of pensions an Parliament, thus her term of office in the of former public servants as fiscal measures House of Representatives never commenced. to reduce public expenditure. Finally, in 2018 The Chief Returns Officer (CRO) granted the three references were resolved by the Su- vacated seat to the Solidarity Movement’s run- preme Court under Article 140 of the Consti- ner-up, Mr. Papadopoulos. Mr. Michaelides, a 1 P. Polyviou, Cyprus on the Edge: A Study in Constitutional Survival (Nicosia, 2013), pp. 5-26. 2 A. Loizou, The Constitution of the Republic of Cyprus (Nicosia, Cyprus, 2001); C. Kombos, The Doctrine of Necessity in Constitutional Law (Sakkoulas, 2015); C. Tornaritis, Cyprus and Its Constitutional and Other Problems (2nd, Nicosia, 1980); S. Papasavvas, La justice constitutionnelle à Chypre (Economica, 1998); C. Paraskeva, Cypriot Constitutional Law: Fundamental Rights and Freedoms (Nomiki Vivliothiki, 2015). 3 (UKYLHZ4PJOHLSPKLZHV]*OPLM9L[\YUZ6ɉJLYHV,SLJ[VYHS7L[P[PVU (WYPS 4 (UKYLHZ4PJOHLSPKLZHV]*OPLM9L[\YUZ6ɉJLYHV,SLJ[VYHS(WWSPJH[PVU 4H` 74 | I•CONnect-Clough Center candidate of the Democratic Rally, filed Elec- CRO was correct, as his decision safeguard- provisions. Finally, the majority held that Arti- toral Petition 2/2016 to the Supreme Court, in ed the existing proportional electoral system cles 65 and 66 of the Constitution—expressly its capacity as the electoral court,5 challenging in Cyprus, which a by-election could disrupt, providing for the “election” of the House and the procedure and arguing that a by-election the CRO reached a deadlock, as there was no for “general elections”—safeguard the princi- should have been held instead of granting the constitutional or legislative solution for fill- ple of popular sovereignty by neutralizing the seat to the party’s runner up. ing a seat that was vacated before the com- possibility of electing as an MP a person who, mencement of the parliamentary term. without securing the seat and without giving The election of the House of Representatives, the necessary affirmation, declines it. including the replacement of vacant seats, Electoral Petition 1/2017 is regulated by the Constitution and Law On the contrary, the minority indicated that 72/1979, as amended.6 Article 66(2) of the In the aftermath of the decision in Electoral the fact that the Constitution itself does not Constitution establishes that “[w]hen a vacan- Petition 2/2016, the House of Representa- regulate the filling of a “non-occupied” seat cy occurs in the seat of a Representative such tives amended Article 35 with Amending Law nor authorizes the legislator to regulate this vacancy shall be filled within a period not 82(I)/20178 in such a way as to allow seats va- issue, cannot be interpreted as depriving the exceeding forty-five days of its occurrence, cated before an elected member of the Parlia- Parliament of its constitutional authority to in such manner as a Law may provide”.7 Ar- ment has been sworn in to go to the runner-up exercise legislative power in all matters.9 The ticle 35(1) of Law 72/1979 further provides of the same party. In an attempt to overcome minority held that the inexistence of the no- that if a seat is vacated during a parliamentary the existing vacancy, the Amending Law fur- tion of “non-occupied” seats in the Constitu- term, the vacant seat shall be assigned, within ther provided for the retroactive effect of the tion does not hinder the House of Represen- a maximum of forty-five days by the CRO, amendment so as to cover seats that were not tatives from regulating this issue and thus it to the next candidate from the same political filled or were vacant on or after its entry into cannot raise the question of unconstitutional- party having obtained the highest number of force. Accordingly, the CRO granted the seat ity. Thus, the minority judges concluded that, votes in the elections. In the event that the once again to Mr. Papadopoulos. since a different approach would amount to procedure of Article 35(1) cannot be applied, a limitation of the exercise of the legislative Article 35(2) calls for by-elections. In Electoral Petition 1/2017, the same peti- power as per Article 61 of the Constitution, tioner argued that the Amending Law, provid- the petition should have been rejected. The respondents argued that their decision ing for the filling of non-occupied seats, was to assign the seat to Mr. Papadopoulos was unconstitutional and therefore the nomination The response of the House of Representatives based on the fact that Article 35 of the Law of Mr. Papadopoulos as an MP was null and to this development was rather immediate. and Article 66 of the Constitution were not YRLG:LWKDPDMRULW\RIVL[YRWHVWRILYHWKH In June 2018, a new bill was voted into leg- applicable in the present case, since the va- Supreme Court found the Amending Law islation, amending the procedure for filling a cancy of Dr. Theocharous’s seat did not take contrary to Articles 65, 66, 69 and 71 of the parliamentary seat when an MP does not take place during the parliamentary term but prior Constitution, but also to the democratic prin- up his/her duties by giving the necessary af- to the commencement of the new term. By ciple of popular sovereignty that is diffused firmation. The President referred this law to analogy, they chose to act on Article 35(1) as in Part IV of the Constitution (regulating the the Supreme Court and the referral awaits ad- the best and only available option. The Su- House of Representatives) and which requires judication. Consequently, the 56th seat of the preme Court unanimously held that the as- the election of representatives by the people. House of Representatives still remains vacant. signment of Mr. Papadopoulos as an MP was In particular, the majority indicated that Arti- null and void. Specifically, the Court said that cles 66 and 71 relate to the vacancy of a seat III. CONSTITUTIONAL CASES the CRO could not have acted on the basis of and the replacement of MPs. Thus, since a Article 35 since that provision regulates the person becomes an MP only after their public 1. Human Rights procedure for filling a seat during the parlia- affirmation, as per Article 69 of the Constitu- mentary term, and not before. And while one tion, the notion of non-occupation of a parlia- On 12 November 2018, the Administrative could argue that the initial approach of the mentary seat is unknown to the constitutional Court examined in Christodoulidou a.o. v. 5 The Supreme Court, acting as an electoral court, has exclusive jurisdiction to hear and determine petitions concerning the interpretation and application of the electoral laws. See Article 145 of the Constitution of Cyprus, which provides: “The Supreme Constitutional Court shall have exclusive jurisdiction to adjudicate ÄUHSS`VUHU`LSLJ[PVUWL[P[PVUTHKL\UKLY[OLWYV]PZPVUZVM[OL,SLJ[VYHS3H^^P[OYLNHYK[V[OLLSLJ[PVUZVM[OL7YLZPKLU[VY[OL=PJL7YLZPKLU[VM[OL9LW\ISPJVY VMTLTILYZVM[OL/V\ZLVM9LWYLZLU[H[P]LZVYVMHU`*VTT\UHS*OHTILY¹ 6 The Elections of Members of the House of Representatives Law of 1979. 7 This provision was amended with the Law relating to the Second Amendment of the Constitution (Law 115(I)/1996). 8 See Elections of Members of the House of Representatives (Amending) Law (Law 82(I)/2017). 9 See Article 61 of the Constitution. 2018 Global Review of Constitutional Law | 75 the Republic a.o. the constitutionality of al- have ensured the saving of millions and a re- claimed that the enactment of the contested lowance reductions and allowance abolitions duction in the budget deficit. As a result, the Law was necessary, as illustrated by its pre- of 211 applicants working the 24-hour shift Court found that the reductions and abolition amble, since during that period the Republic system in public service (firefighters and of certain allowances were constitutional. was in a difficult financial situation, and in nurses) and the police by virtue of the Law order to avoid a further deterioration of the concerning the Budget of 2014.10 The plenary In relation to the seven successful applica- fiscal situation, it was necessary to reduce the of the Administrative Court rejected almost tions, the Administrative Court held that “the expenditure of the public and the wider pub- all applications, with the exception of seven abolition of an allowance to hospital staff lic sector. submitted by nurses that had been found to be which would be paid only to nursing staff of in breach of the principle of equal treatment. Mental Health Services employed in closed The Administrative Court ruled that deduc- All applicants argued that the reductions and hospital units, either in the Psychiatric Hos- tion made by the state, as part of the fiscal abolition of benefits should be declared con- pital or elsewhere, violates the constitutional measures adopted in December 2012 to sup- trary to Articles 9 (right to decent living), principle of equality and Article 28(1) of the port the Cypriot economy following a pre- 24(1) (equality of persons in contributing Constitution which does not allow for arbi- liminary agreement reached between Troika in public burdens) and 28 (equality) of the trary differentiations in reduction of the al- and Cyprus in November 2012, was indeed Constitution as well as Article 1 of the First lowance between civil servants of the same unconstitutional. Specifically, the Court re- Additional Protocol to the ECHR. The Ad- category”.11 More specifically, the Court in- ferred to its case law in which pensions were ministrative Court examined the facts before dicated that the distinction between nurses considered an asset and a property right and it and the events that led to the abolition or in closed hospitals for which the allowances according to which the completion of the ser- reduction of the relevant allowances and in- remained the same and other nurses had as vice in a pensionable post gives rise to pen- dicated that the state was in a great financial basis the sole fact that expenditure for the sion; a contractual, acquired and crystallized crisis and had an obligation to implement the former was limited. Thus, the Court held that right.13 Article 23(3) allows restrictions or Memorandum of Understanding on financial in the absence of any study establishing the limitations which are absolutely necessary assistance to Cyprus in order to cope with the distinction to justify such distinction, the dif- in the interest of public safety, public health, financial crisis. In particular, Troika request- ferent treatment was discriminatory and in public morals, town and country planning or ed from the Cypriot government to abolish violation of Article 28 of the Constitution. the development and utilisation of any prop- anachronistic allowances, to reduce the re- erty to the promotion of public benefit or for maining allowances of civil servants by 15% Two weeks later, in Avgousti a.o. v. the Re- the protection of the rights of others. There- and to review the formula for calculating the public a.o.,12 the Administrative Court exam- fore, Article 23(3) does not permit limitations overtime allowance, and achieve additional ined 115 applications submitted by pension- for budgetary considerations, consolidation savings from allowances as a quid pro quo for ers who previously worked in the public and of public finances, for streamlining pensions, receiving financial assistance. The Court held wider public sector and who argued that their nor for the rather general ground of public in- that the intervention to the right of property, pension deductions were unconstitutional. terest. As a result, the Administrative Court via the reduction and abolition of allowances, The applicants claimed, inter alia, that the found in favour of the applicants and declared was justified on grounds of public interest as Law concerning the Reduction in Emolu- the pension reductions as unconstitutional such intervention was necessary and appro- ments and Pensions of Officials, Employees and in breach of Article 23(3). priate to achieve cost savings and a balanced and Pensioners of the Public Service and of budget for government expenditure. Addi- the broader Public Sector (Law 168(I)/2012), The Avgousti case caused alarm to the Min- tionally, the Court found that the 25% cut in on which the contested reductions were istry of Finance as the implementation of the shift allowances and 33.3% in the overtime al- based, contravened Article 23(3) of the Con- decision would mean that the government lowance calculation formula was not a dispro- stitution. In particular, they supported that would be obliged to reimburse the reductions, portionate restriction on the property right of Article 23(3) sets out specific grounds for costing the state €30-€40 million per year. the total remuneration, taking into account the which a law may impose limitations or re- Consequently, the Attorney-General of the financial benefit resulting from that restriction strictions on the right to property; however, Republic and the Minister of Finance decided and the fact that a variety of other cuts in the Article 23(3) does not enlist public interest as to appeal against the decision of the Admin- wages, allowances and pensions of all cate- a ground legitimizing limitation to the right to istrative Court, and the appeal is awaiting ad- gories of civil servants and public pensioners property. On the other hand, the respondents judication. 10 Christodoulidou a.o. v. the Republic a.o., Joined Cases 441/2014 a.o., 12 November 2018. 11 Translation by the author. 12 Avgousti a.o. v. the Republic a.o., Joined Cases 898/2013 a.o., 27 November 2018. 13 See Koutselini-Ioannidou a.o. v. the Republic a.o., Joined Cases 740/2011 a.o., 7 October 2014. See also Charalambous a.o. v. the Republic a.o., Joined Cases 1480/2011 a.o., 11 June 2014. 76 | I•CONnect-Clough Center 2. Separation of powers tary Committee on Education and Culture”, Cabinet to administer state-owned property; the Amending Law of 2017 was consistent the legislative power affords to the Council, In 2018, the Supreme Court reviewed the with the Constitution and the principle of sep- via law, the authority to produce secondary constitutionality of three laws passed by the aration of powers. The minority judges found legislation and, thus, the said law prevails House of Representatives prior to their prom- the Amending Law unconstitutional in its en- over regulations and decrees in accordance ulgation, as per Article 140 of the Constitu- tirety. Specifically, the minority indicated that with the principle of hierarchy of legal norms, tion.14 In Reference 1/2017,15 the Supreme since the need for consultation was deemed deriving from the rule of law. The minority Court issued an opinion on whether Com- unconstitutional and contrary to the principle was of the view that the Repealing Law was munity Secondary Schools Law,16 as amend- of separation of powers, the whole of Article contrary to Article 54 of the Constitution and ed by Amending Law of 2017,17 is contrary 11A was unconstitutional on the same ground, the principle of separation of powers, as the and inconsistent with the principle of the since Article 11A could not be separated in a abolition of the Law deprives the executive of separation of powers and the Constitution of reasonable and legitimate way. its right to exercise its constitutional author- Cyprus. It was the applicant’s view that the ities. It is noteworthy that the minority’s de- provision of Article 11A, which is added by On the same day, the Supreme Court issued cision drew on Reference 8/2016, a case with Amending Law of 2017, violates the principle its opinion on Reference 2/201718 on whether similar facts where the Supreme Court held of separation of powers. In particular, Article the 2017 Law Repealing the Law regarding that a 2016 amending law was in violation of 11A provides that the Ministry of Education the Regulation of Issues of Privatisation of Article 54(e) of the Constitution and the prin- and Culture may issue regulations stipulat- 2014 (Repealing Law) is contrary and incon- ciple of the separation of powers, since the ing school holidays, school celebrations and sistent with the Constitution of the Republic Council of Ministers issued decrees in accor- anniversaries. Additionally, it provides that and the principle of separation of powers. dance with the Constitution and the existing the Ministry of Education has the authority, The Repealing Law essentially abolished the law in relation to the supervision and the dis- “after consultations with the Parliamentary privatisation unit, a unit set up in 2014 to put posal of the Republic’s property and the 2016 Committee on Education and Culture”, to in place a framework for the privatisation of amending law neutralized those regulations.19 determine school anniversaries in which mes- state-owned entities and utilities, as per one sages are read or discussions in classrooms of the conditions of international support The last opinion issued by the Supreme are held. However, the issuance of regulations agreed between Cyprus and Troika following Court, via the procedure of Article 140, was by virtue of an authorizing law shall be de- the financial crisis of 2013. The applicant ar- Reference 1/2018, where the Court unani- posited with the House of Representatives for gued that the Repealing Law was in violation mously found the Immovable Property (Ten- approval, as per Article 3 of Law 99/1989. of the separation of powers and further inter- ure, Registration and Valuation) (Amending) Thus, Article 11A, read in conjunction with fered with the Council of Ministers’ authority (No. 4) Law of 2017 consistent with the Article 3 Law 99/1989, violates the princi- to supervise and dispose the property of the Constitution of Cyprus and the principle of ple of separation of powers, as it enables the Republic, envisaged in Article 54(e) of the separation of powers. The 2017 Amending House of Representatives to interfere with the Constitution. By a narrow majority (6 to 5), Law introduced Article 75A to the basic law H[HFXWLYH SRZHU:LWK D PDMRULW\ RI WR the Supreme Court found that the House of (Cap. 224), obliging all authorities (such as the Supreme Court held that the mandatory Representatives acted within its power to leg- the land registry) to personally inform prop- consultation of the executive with legislative islate on all matters, as per Article 61 of the erty owners of any significant change in the power on a matter falling within the sphere of Constitution, and consequently could lawful- value of their property by virtue of any decree exclusive competence of the executive was ly enact legislation abolishing the unit if it or court decision. The applicant argued that unconstitutional and should be deleted in or- was of the opinion that the unit was no longer the Amending Law, if promulgated, would der for the Amending Law to be promulgated. functional. Particularly, the Supreme Court remove from the executive the exclusive Consequently, after the deletion of the reser- held that Article 54(e) of the Constitution competence to exercise the general manage- vation “after consultation with the Parliamen- does not confer exclusive competence to the ment and control of the state’s governance, 14 Article 140 of the Constitution provides “(1) The President and the Vice-President of the Republic acting jointly may, at any time prior to the promulgation of any law or decision of the House of Representatives, refer to the Supreme Constitutional Court for its opinion the question as to whether such law or decision or any ZWLJPÄLKWYV]PZPVU[OLYLVMPZYLW\NUHU[[VVYPUJVUZPZ[LU[^P[OHU`WYV]PZPVUVM[OPZ*VUZ[P[\[PVUB¯D0UJHZL[OL:\WYLTL*VUZ[P[\[PVUHS*V\Y[PZVM[OLVWPUPVU [OH[Z\JOSH^VYKLJPZPVUVYHU`WYV]PZPVU[OLYLVMPZYLW\NUHU[[VVYPUJVUZPZ[LU[^P[OHU`WYV]PZPVUVM[OPZ*VUZ[P[\[PVUB¯DZ\JOSH^VYKLJPZPVUVYZ\JOWYV]PZPVU [OLYLVMZOHSSUV[ILWYVT\SNH[LKI`[OL7YLZPKLU[HUK[OL=PJL7YLZPKLU[VM[OL9LW\ISPJ¹;OLHWWSPJH[PVUVM(Y[PJSLHM[LY HUKZPUJL[OLWVZ[VM[OL Vice-President is vacant, is enabled via the law of necessity. 15 President v. House of Representatives, Reference 1/2017, 5 February 2018. 16 Community Secondary Schools Law (Law 6/1961GCC). 17 The Community Secondary Education Schools, as amended by Articles 3(2) and 4 of the Transfer of the Exercise of the Authorities of the Greek Community Chamber and the Establishment of the Ministry of Education (Amendment No. 2) Law (Law 130 (I)/2018). 18 President v. House of Representatives, Reference 2/2017, 5 February 2018. 19 See President v. House of Representatives, Reference 8/2016, 2 May 2017. 2018 Global Review of Constitutional Law | 77 as well as the coordination and supervision of all public services, as safeguarded by Ar- ticle 54(d) of the Constitution. The Supreme Court held that Article 75A of the Amending Law introduced a general obligation of the relevant authority to disclose any decisions that may significantly affect the value of the property; yet, the question of what is likely to significantly affect the value of immovable property is left entirely at the discretion of the relevant authority. Therefore, the House of Representatives did not interfere with the executive power and did not breach the prin- ciple of separation of powers. IV. LOOKING AHEAD A significant development expected in 2019 is the third decision relating to the saga of the 56th parliamentary seat. In the event that the 2018 Amending Law is also found incompat- ible with the Cypriot Constitution, the only remaining and valid option would be a con- stitutional amendment; namely the amend- ment of Article 66 of the Constitution so as to introduce the notion of “non-occupied” seats. Additionally, judicial reform is also expected in 2019. The reform of the judicial system, through the creation of new courts and pro- cedures, has been under discussion for more than two years in an attempt to speed up the dispensation of justice. In the wake of seri- ous allegations concerning conflict of inter- est among Supreme Court judges as well as allegations of collusion between them and prominent law firms, discussions seem to have speeded up. Indeed, the government has prepared nine bills, inter alia, for the creation of a Supreme Constitutional Court, an Appel- late Court and a Commercial Court, and talks relating to the composition of the Supreme Council of the Judicature are also underway. 78 | I•CONnect-Clough Center Czech Republic Maxim Tomoszek, Senior Lecturer – Palacký University in Olomouc, Department of Constitutional Law =GHQČNýHUYtQHN-XQLRU/HFWXUHU– Palacký University in Olomouc, Department of Con- stitutional Law Zuzana Pilerová, Doctoral Researcher – Palacký University in Olomouc, Department of Constitutional Law I. INTRODUCTION RI¿FHZDVWU\LQJWRLQÀXHQFHWKHMXGJHVRI the Constitutional Court (“CC”) and Su- CZECH REPUBLIC From the perspective of Czech constitutional preme Administrative Court in their deci- law, the year 2018 was marked by two im- sion-making in cases related to the President 1 portant anniversaries: the 25th anniversary RU3UHVLGHQWLDO2I¿FH of the Czech Constitution (it came into force on 1 January 1993) and the 100th anniver- II. MAJOR CONSTITUTIONAL sary of the republican state on Czech terri- DEVELOPMENTS tory (the First Czechoslovak Republic was founded on 28 October 1918). After the parliamentary election of October 2017 won by a margin of more than 18% by In terms of constitutional developments, the WKH SDUW\ RI$QGUHM %DELã $12 WKH SUR- \HDU ZDV QRW VLJQL¿FDQWO\ GLIIHUHQW cess of government creation was complicat- IURPWKH\HDU:HREVHUYHGFRQWLQXD- HG:HDOUHDG\UHSRUWHGODVW\HDUDERXWWKH tion of several trends that had already started ¿UVWJRYHUQPHQWRI$QGUHM%DELãQRPLQDW- in previous years, such as growing populism, ed by President Zeman in December 2017 polarization of the political scene, increasing without even having a chance to pass a con- pressure on independent media and journal- ¿GHQFH YRWH LQ WKH &KDPEHU RI 'HSXWLHV ists, excessive use of presidential powers However, this situation was untenable in the leading to changes in long-standing constitu- ORQJWHUPVR$QGUHM%DELãFRQWLQXHGQHJRWL- tional practice, and negative effects of grow- ations. After excluding all other possibilities, LQJFRQFHUQDERXWWKHFRQÀLFWRILQWHUHVWRI he decided to create a government of ANO the Czech Prime Minister. The outcome of and social democrats, supported by the Com- these trends is a phenomenon not present in munist Party. This government received a the Czech Republic since 1989: the govern- FRQ¿GHQFHYRWHLQ-XO\2IFRXUVHWKH ment supported by the votes of deputies of Prime Minister had to make several conces- the Communist Party. sions to the Communist Party for their sup- port, such as proposing the bill on taxation However, there was one important new of church restitutions or granting places in theme in 2018: judicial independence. There committees and boards for Communist Party ZHUH GLI¿FXOW QHJRWLDWLRQV DERXW WKH VHOHF- nominees. tion of a new president of the Supreme Ad- ministrative Court between the President and Even this government was not without trou- representatives of the judiciary, and it be- ble. President Zeman refused to appoint the came public that the head of the President’s social democratic minister of foreign affairs, 1 6UKȱLQ2\UKYH(UKYLH7YVJOmaRV]m7VaVY]VSm4`Umȱ!QHRZLWYH]mY\RHWYLaPKLU[HZUHüxV]SP]UP[ZV\KJL >H[JOV\[4`UmȱPZJHSSPUN!/V^PZ[OLOLHKVM[OLWYLZPKLU[»ZVɉJL[Y`PUN[VPUÅ\LUJL[OLQ\KNLZ& available at respekt.cz, published on 5 January 2019, accessed on 19 February 2019, https://www.respekt. cz/tydenik/2019/2/vola-mynar 2018 Global Review of Constitutional Law | 79 allegedly because of his positive attitude ed that the President tried to deal with the WLRQ6XFKVLWXDWLRQVFUHDWHVLJQL¿FDQWVHFX- to refugees, but more likely because in the judiciary on a quid pro quo basis, which is rity threats for the Czech Republic. Also, the 2018 presidential campaign, he supported by some perceived as unconstitutional. The European Commission is investigating the Zeman’s rival. This situation demonstrates parliamentary subcommittee investigating subsidies that Agrofert has received since the uneasy position of the Czech Prime Min- WKLV LVVXH GLG QRW ¿QG DQ\ LQIULQJHPHQW RI 0U%DELãZLWKVWDQGVQHJDWLYHSXEOLF- ister, who normally should select the minis- judicial independence, but the revealed facts LW\LQDOOWKHVHGLI¿FXOWVLWXDWLRQVWKDQNVWR ters at his will but does not have any ready- are very troubling. considerable back-up from media he owns, to-use constitutional means of overcoming which tend to downplay accusations against rejection of his nominees by the President. It is paradoxical that probably the most crit- him and not cover matters negatively related This means that there is a gradual shift of ical “development” has a rather stagnant or to him at all. the Czech model of separation of powers to- XQFKDQJLQJFKDUDFWHU:HUHIHUWRDPDVVLYH wards the semi-presidential system, also in FRQÀLFWRILQWHUHVWRIWKH&]HFK3ULPH0LQLV- The negative effect of this situation on hu- SDUWEHFDXVH3ULPH0LQLVWHU%DELãGRHVQRW WHU$QGUHM%DELã%DELãLVDQROLJDUFKRZQHU man rights and the legislative works of the counteract President Zeman. of major newspapers and radio stations, and Parliament can be demonstrated by the ex- one of the largest Czech companies, Agro- ample of a proposed amendment to the Right As previously mentioned, the year 2018 fert (comprising around 200 food produc- to Information Act. The original version of brought judicial independence to consti- tion, agriculture, chemical, and media com- the government proposal aimed, among oth- tutional practice in the Czech Republic. In panies). He has been Prime Minister since ers, to exclude from the scope of the Act October 2018, the term of the long-standing 2017, and although he was forced to transfer all information about criminal cases (apart president of the Supreme Administrative his enterprise to a trust fund to comply with IURP WKH ¿QDO MXGJPHQW DQG LQIRUPDWLRQ Court, Josef Baxa, expired. Since there is QHZ OHJLVODWLRQ DJDLQVW FRQÀLFWV RI LQWHUHVW on ongoing proceedings on infringement of no constitutionally embedded representa- FRPPRQO\ NQRZQ DV ³/H[ %DELã´ WKLV obligations deriving from EU membership tive body of judicial power, the presidents of does not diminish the fact that he remains a of the Czech Republic. Both these exclu- three high courts (CC, Supreme Court, and EHQH¿FLDU\RIWKHIXQGZKLOHKHWDNHVSDUWLQ VLRQV ZRXOG VLJQL¿FDQWO\ EHQH¿W 0U %DELã Supreme Administrative Court) sought an decisions about providing agricultural subsi- by reducing public availability of informa- audience with the President, who, with the dies and tax relief to Agrofert. tion related to his criminal prosecution and consent of the Prime Minister, appoints the misuse of European funds. Thanks to con- president and vice-president of the Supreme But there has been an important break- cerns raised in public debate, deputies of Administrative Court. through in this regard: an initial administra- RSSRVLWLRQ SDUWLHV LGHQWL¿HG WKLV WKUHDW DQG tive decision ruled that the Prime Minister is passed amendments to the bill. They not only After long negotiations, Court presidents EUHDNLQJFRQÀLFWRILQWHUHVWUXOHVE\RZQLQJ remove these exclusions but also include a were able to persuade the President that the media outlets, including national newspa- QHZ LQVWUXPHQW IRU PRUH HI¿FLHQW HQIRUFH- most suitable nominee would be the current pers and the country’s biggest commercial PHQW RI WKH ULJKW WR LQIRUPDWLRQ 7KH ¿QDO vice-president of the Supreme Administra- radio station. The Prime Minister has already vote on this bill is expected in spring 2019. tive Court, Michal Mazanec. In return, Pres- ¿OHGDQDSSHDODJDLQVWWKLVGHFLVLRQFODLP- This situation demonstrates that extra-legal ident Zeman expected that a judge close to LQJWKHUHLVQRFRQÀLFWRILQWHUHVWLQKLVFDVH control mechanisms such as parliamentary his administration would be appointed as a %HVLGHVWKDW0U%DELãKDVEHHQFULPLQDOO\ opposition and civil society are a effective vice-president of the Supreme Administra- prosecuted for subsidy fraud related to ille- counterweight to the government. tive Court. However, the law prevents ap- gally obtaining European funding for build- pointing the vice-president from judges out- ing his residence, the so-called Stork Nest III. CONSTITUTIONAL CASES side the Supreme Administrative Court, so Farm. This situation poses a major threat to in the end, another suitable candidate from the rule of law and also for the independence 1. Social Rights within the Supreme Administrative Court of relatively new democratic institutions in ZDVDSSRLQWHG%DUEDUD3RĜt]NRYi the Czech Republic, especially prosecutors Judgment Pl. ÚS 7/17 of 27 March 2018 - and police. The case was also investigated by Constitutionality of a complete ban on smok- Not long after this, in January 2019, Josef WKH(XURSHDQ$QWL)UDXG2I¿FH ³2/$)´ ing in restaurants and other provisions of %D[D DQG 9RMWČFK âLPtþHN PDGH SXEOLF LQ which concluded that the rules for funding “Anti-Smoking Act” an interview with the prominent liberal jour- were breached. To receive funds for building nal Respekt that they were approached by 6WRUN 1HVW )DUP 0U %DELã WUDQVIHUUHG WKH A group of senators requested the CC to WKH KHDG RI WKH RI¿FH RI 3UHVLGHQW =HPDQ farm project from Agrofert to his children, annul (besides other things) provisions of 9UDWLVODY 0\QiĜ VHYHUDO WLPHV EHWZHHQ who are important witnesses in his case. His the so-called Anti-Smoking Act prohibit- DQG LQ RUGHU WR LQÀXHQFH WKHLU son, who has not yet been interviewed by the ing smoking inside the premises of catering decisions in cases related to the President or police, was living in Switzerland and Crimea service establishments. The senators mainly his administration. This information indicat- in 2018, without knowledge of the investiga- 80 | I•CONnect-Clough Center contested its paternalistic nature, resulting in dismissed the complaint of a severely men- 2. Procedural guarantees in criminal a breach of a general right to freedom, the tally disabled person claiming that regional matters protection of property, and the right to pri- DXWKRULWLHVIDLOHGWRIXO¿OOWKHLUSRVLWLYHRE- vate enterprise. ligation to provide him with appropriate so- Judgment No. Pl. ÚS 15/16 of 16 May 2018 – cial services. The complainant suffered from Responsibility of the vehicle operator for the At the outset, the CC stated that the Act fol- autism and lived in a small apartment with administrative offences of the driver lows various legitimate aims, such as pro- his also-handicapped mother and his (at that tection of the health and life of individuals time) 80-year-old grandmother. Notwith- This judgment is one of the most controver- as well as certain vulnerable groups such as standing that the whole family was involved, sial of 2018. The CC dismissed the motion children, adolescents, and pregnant wom- it was hardly manageable for them to take for annulment of Sections 10 (3) and 125f en. Moreover, it also might have a positive care of the complainant. Thus, they repeat- RI WKH$FW RQ 5RDG7UDI¿F FRQVWLWXWLQJ effect on the environment and reduce state edly contacted providers of social services an administrative offence that commits an expenditures on healthcare. Subsequently, and local and regional authorities asking to operator of a vehicle (owner of the vehicle WKH&&KDVVWDWHGWKDW¿QGLQJDVROXWLRQWR institutionalize him, but all their efforts were or a person authorized by the owner to use WKH FRQÀLFW EHWZHHQ WKH ULJKWV RI VPRNHUV to no avail. the vehicle) by non-securing that the driver and those who are exposed to tobacco smoke DELGHVE\URDGWUDI¿FUHJXODWLRQV is above all a matter for the legislature. The The CC found that disabled people in dire role of the CC in this respect is limited to as- straits have the subjective right to access The CC put the Act under review and found sessing whether the chosen solution consti- appropriate social care services. This right no violation of the Constitution. It stated that tutes an inadmissible interference with any stems from both statutory (Section 38 of impugned provisions set down objective li- constitutional rights. The CC stated that the the Social Services Act) and constitutional ability of the vehicle operator by means of Act does not have such a deleterious effect provisions (right to health, right to an ad- constituting his/her culpability for the ad- on constitutional rights that would warrant equate standard of living, and right to live ministrative offence. It admitted that indi- its intervention. Thus, the CC concluded that independently and be included in the com- vidual guilt and culpability is a ground rule the negative effect of smoking, whether ac- munity). Subsequently, the CC stated that in the construction of public law offences, tive or passive, on human health is a fact that the above-mentioned right calls for a posi- EXWWKHMXVWL¿HGH[FHSWLRQFDQEHVHWRXWGXH does not need to be demonstrated. Therefore, tive obligation of the government to guaran- WR DQ HI¿FLHQF\ RI UHJXODWLRQ RYHU FHUWDLQ the ban on smoking pursues a legitimate aim. tee access to appropriate social care services areas of human conduct. And, in this case, Moreover, the separation of the premises to every disabled person in dire straits. This the CC found that the impugned measure and establishment of smoking rooms does right, however, does not guarantee a per- ZDVMXVWL¿HGEHFDXVHLWLVWKHRSHUDWRUKLP QRWVXI¿FHWRSUHYHQWWKHQHJDWLYHHIIHFWVRI son’s access to social services on demand, herself who drives the vehicle or authorizes smoking. In addition, the health of employ- but rather to such services that are adequate its usage by a third person. Thus, the main ees of catering businesses is damaged even to their state of health and situation and ca- aim of the measure is not to punish a partic- in premises with smoking rooms (e.g., when SDEOHRIDVVXULQJWKHPDGLJQL¿HGOLIHZLWK ular offender but to have a preventive effect cleaning such rooms). In general, smoking inclusion to society, independence, and per- on drivers. It presupposes that the operator rooms neither protect the health of the popu- sonal autonomy to the fullest possible extent. will exert a pressure on a driver to abide by lation nor guarantee the enforceability of the In addition, the CC reiterated that regional WKHURDGWUDI¿FUHJXODWLRQVRUKHVKHZLOOEH Act, at least in a manner comparable to the authorities have a wide margin of discretion liable for the offence. Moreover, it is only contested ban. From a comparative point of LQVHOHFWLQJWKHPHDQVWRIXO¿OOWKHVHREOLJD- the right to private property that is infringed. view, the complete ban is a standard solution tions. Moreover, the obligations are progres- The operator could only be imposed with in other countries as well. It does not vio- sive by their very nature. This means that it D PLQRU ¿QH IRU WKH RIIHQFH ZKLFK KDV QR late the freedom of smokers, as they can still is not necessarily a violation of the right in stigmatizing effect. This infringement, stated smoke in the outdoor areas of catering facil- hand when an individual is not provided with WKH&&LVSHUIHFWO\MXVWL¿HGSDUWLFXODUO\LQ ities, or in the street (outside the facilities). services needed in the short term. The viola- WKHVLWXDWLRQRIKHDY\YHKLFXODUWUDI¿FZKHUH tion occurs only when the regional author- WKH SXEOLF DXWKRULWLHV ODFN HI¿FLHQW PHDQV Judgment No. I. ÚS 2637/17 of 23 January ities remain completely inactive, or when to investigate these offences. Frequently, it 2018 – Obligation of the regional authority WKH\IDLOWRWDNHUHDVRQDEOHDFWLRQVWRIXO¿O is evident that the offence was committed, to provide a disabled person with access to the right in hand. In this respect, the author- but public authorities have no means to track proper social services ities cannot disregard the fact that the more down the driver. Usually, drivers “dodge the severe or untypical the handicap, the more bullet” of the conviction by relying on the In this case, the CC annulled the decision of demanding that social services are required right to remain silent and not incriminate the Supreme Administrative Court, which in return. themselves or people they are intimate with 2018 Global Review of Constitutional Law | 81 (Art. 37 (1) Charter). On top of that, the CC WR¿QDOL]HWKHSURFHVVRQO\DVDFXUHWRDQ FRPPHQWVZHUHGH¿QLWHO\QRWSDUWRIGHOLE- also found no violation of the right to the pre- infertile couple, which does not apply in this erations or voting of the panel. CC conclud- sumption of innocence. Notwithstanding the case. The procedure at hand is therefore only ed that the recording could not be excluded CC considered the offence as a criminal one, applicable inter vivos and to a couple as a from evidence on this basis. it stated that the presumption of innocence treatment for infertility. is rather a procedural rule that—unlike sub- 7KH DSSOLFDQW¿OHG D FRPSODLQWWR && && It understood the recording as a piece of stantive constitutional rights—does not have agreed with the Supreme Court and stat- valuable information concerning the impar- any effect on the decision of the legislator to ed there was no violation of the applicant’s tiality of the judge and stated that in this par- criminalize certain human behavior and the right to privacy and family life under Arti- ticular situation, there were no other possible constitution of an offence as such. cle 8 of the Convention and Article 10 (2) pieces of evidence of similar information of the Charter. CC concluded that common value that would interfere in a lesser amount :KDWPDNHVWKLVFDVHVRFRQWURYHUVLDOLVKRZ courts ruled in accordance with the appli- with the judge’s right to privacy. According the CC disregarded the right to the presumption FDEOH OHJLVODWLRQ -XVWLFH 'DYLG 8KOtĜ H[- to the CC, without the recording, the right of innocence both as a subjective right and also pressed a very persuasive dissenting opinion to a fair trial of the defendant would be al- as the objective value of a society. But what is in the case, claiming that the common courts most impossible to enforce effectively, while even more striking than the reasoning provided should have investigated in more detail the the intensity of interference with the right to by the CC is the lack of opposition to it. It is wish of the deceased husband, especially privacy of the judge was minor because the noteworthy that no justice of the CC dissented since if an anonymous donor provided the judge’s remarks were made during the de- from the opinion of the majority. sperm, it could be used even after the donor cision-making process. Also, the CC noted died. The distinction between anonymous that the recording effectively cast doubt on 3. Right to private and family life and non-anonymous donor was unreason- the objective element of judicial indepen- able. The law shall serve the society and not dence: the public trust in independent deci- Judgment No. I. ÚS 1099/18 of 8 November YLFH YHUVD DQG FRXUWV VKRXOG ¿QG ZD\V WR sion-making of that particular judge, in this 2018 - Assisted fertilization from deceased interpret the law in accordance with consti- case, was diminished. For this reason, the husband tutionally guaranteed rights of individuals. CC concluded that the previous decisions infringed the defendant’s right to a fair trial The applicant and her husband signed in- 4. Judicial independence and annulled them. formed consent for extracorporeal fertiliza- tion consisting of cryopreservation of the Judgment No. III. ÚS 4071/17 of 31 July 5. Attorney-client relationship husband’s sperm, which was later meant 2018 - Eligibility of secret recording of court to be inseminated into the applicant’s ge- deliberation as evidence Judgment No. II. ÚS 644/18 of 17 August netic information. Before the process was 2018 - Professional responsibility of attor- ¿QLVKHG WKH DSSOLFDQW¶V KXVEDQG GLHG DQG In a criminal matter, the defendant chal- ney advising a client to present misleading the clinic refused to complete it. It claimed lenged the impartiality of one of the judges or false evidence that according to the Health Services Act, it deciding his case based on an unauthorized could only proceed with a complete couple, recording of deliberation of the judicial pan- The CC only rarely decides cases related which wasn’t the case of the applicant. el. In the recording, the judge made offen- to the professional regulation of lawyers. sive remarks about the defendant and his However, in this case, the nature of the facts 7KH DSSOLFDQW ¿OHG D FODLP WR WKH GLVWULFW attorney. The challenge was denied by appel- and inappropriate response of other courts FRXUW UHTXLULQJ WKH FOLQLF WR ¿QDOL]H WKH late court based on the fact that the recording led the CC to intervene. At the beginning procedure. However, the district court con- was made without knowledge of the judges of this case, an attorney represented a client ¿UPHGWKHFOLQLF¶VDSSURDFKDQGVWDWHGWKDW and was therefore inadmissible as evidence. in a civil suit. After initiating the civil suit, it could not anticipate the husband’s will in && UHFRJQL]HG WKDW WKHUH LV D FRQÀLFW EH- the client transferred its claim to a company WKHSURFHVVRIDUWL¿FLDOLQVHPLQDWLRQ,QWKH tween the right to a fair trial of the defen- specializing in the non-judicial recovery of following proceedings, the appellate court dant and the right to privacy of the judge claims. The result of this was, however, that FRQ¿UPHG WKH FOLQLF¶V DSSURDFK 7KH 6X- and conducted the test of proportionality the client was no longer an eligible partici- preme Court, in its extensive judgment, dis- to balance them. It noted that the recording pant of the civil suit. tinguished the applicant’s case from the case might have contained parts where the judi- of Evans vs. the UK (from 10 April 2007, cial panel was deliberating and/or voting, The client’s attorney claimed in front of the application number 6339/05) since in the DQGWKDWWKLVW\SHRILQIRUPDWLRQLVFRQ¿GHQ- court that the claim was returned to the client, pending case the applicant still had a chance tial. However, such information was not part even though he knew it was not true. He also of having a child, only not with her deceased of the evidence during the determination of asked the client to sign an ante-dated contract husband. Besides that, the clinic is required impartiality of the judge because the judge’s FRQ¿UPLQJWKHUHWXUQRIWKHFODLPZKLFKWKH 82 | I•CONnect-Clough Center client refused. Later, the client also refused is vacant on the CC, as Justice Jan Musil to sign an ante-dated contract allowing her to stepped down as of 31 January 2019 and his recover the claim instead of the company it successor has not yet been appointed. An was transferred to, which was again proposed election to the European Parliament is due by her attorney. This lead to the dismissal of in late May 2019. One of the most promi- the client’s claim. The client then sued her at- nent CC cases will be the law on taxation torney for damages incurred by not informing of church restitution, which, in case it gets her about the risks related to transferring the adopted by the Parliament, will be certainly claim to a third party. The courts have reject- challenged by a group of opposition deputies ed the attorney’s liability for damages, stating due to its retroactive nature. that the client herself caused her civil suit to be dismissed by not providing necessary co- V. FURTHER READING operation to her attorney. =GHQČNýHUYtQHN³3URSRUWLRQDOLW\RU5DWLR- The CC found this conclusion unconstitu- nality in Socio-Economic Rights Adjudica- tional. The Ethical Code of the Czech Bar WLRQ"&DVH6WXG\RIWKH&]HFK&RQVWLWXWLRQDO Association explicitly prohibits attorneys Court’s Judgment in Compulsory Vaccina- from presenting or proposing misleading or tion Case.” [2018], 1(1) UCL Journal of false evidence, even if their client would re- Law and Jurisprudence - Special Issue quire it. According to the CC, if an attorney suggests to their client to follow unlawful 'DYLG .RVDĜ -DQ 3HWURY ³'HWHUPLQDQW RI procedure and the client refuses to apply it, &RPSOLDQFH'LI¿FXOWLHVDPRQJµ*RRG&RP- it cannot be later held to their detriment, and pliers’: Implementation of International Hu- thus it cannot allow the attorney to eliminate man Rights Ruling in the Czech Republic.” their liability. It is the client‘s constitution- [2018] 29(2) The European Journal of Inter- ally protected right to refuse to act unlaw- national Law fully. At the same time, the courts did not properly address all arguments brought by Jan Petrov, “Unpacking the Partnership: Ty- the client, especially that the attorney did not pology of Constitutional Courts’ Roles in inform the client about the consequences of Implementation of the European Court of the transfer of the claim and possible loss of Human Rights’ Case Law.” [2018] 14(3) standing in court proceedings. Because of European Constitutional Law Review this, court decisions were not properly jus- WL¿HGDQGWKHUHIRUHYLRODWHGWKHULJKWWRIDLU .DWDUtQDâLSXORYi-RVHI-DQRYVNê+XEHUW trial of the client. Smekal, “Ideology and International Human Rights Commitments in Post-Communist IV. LOOKING AHEAD Regimes: The Cases in the Czech Republic and Slovakia,” in International Courts and :HDUHH[SHFWLQJDOOWKHDERYHVWDWHGSURE- Domestic Politics (Cambridge University OHPVWRFRQWLQXH7KHFRQÀLFWRILQWHUHVWRI Press, 2018), s. 25 3ULPH 0LQLVWHU %DELã ZLOO EH IXUWKHU GLV- cussed and investigated as well as the crimi- 0LOXãH .LQGORYi ³)RUPDO DQG ,QIRUPDO QDOFKDUJHVDJDLQVWKLP:HDUHDOVRHDJHUO\ Constitutional Amendments in the Czech awaiting further developments regarding the Republic.” [2018] The Lawyer Quarterly KHDGRIWKH3UHVLGHQW¶VRI¿FHDQGKLVWU\LQJ 2018 Global Review of Constitutional Law | 83 Denmark Mikele Schultz-Knudsen PhD student Centre for European and Comparative Legal Studies, Faculty of Law University of Copenhagen I. INTRODUCTION their understanding of the Danish constitu- tion was that it only grants rights to people There were two opposing tendencies in Dan- with Danish citizenship and not to anyone ish constitutional law in 2018. else who lives in Denmark. This goes against DENMARK an otherwise uncontested interpretation of In some ways, Danish democracy became the constitution. more inclusive. A new regulation made it possible for citizens to get the parliament to Another important constitutional develop- vote on proposals if 50,000 citizens backed ment was the reopening of the so-called Tibet them. Such an initiative is a small step in the &RPPLVVLRQ'XULQJRI¿FLDOYLVLWVIURP&KL- direction of a more direct democracy. Four na, Danish police have illegally prevented Ti- proposals received enough signatures during betan protesters from being visible to Chinese 2018 to be considered by the parliament. RI¿FLDOV7KHLQTXLU\LQWRZKRJDYHWKLVRUGHU However, at the end of the year, the parlia- was reopened due to new information. ment had rejected two of them while the oth- er two were still under consideration. II. MAJOR CONSTITUTIONAL DEVELOPMENTS Similarly, in a move to expand voting rights, Denmark found a way to bypass a constitu- A. A more inclusive democracy tional rule that had removed voting rights for legally incapacitated individuals. In January 2018, it became possible for cit- izens to get the parliament to vote on a pro- However, in other areas Danish politicians posal if 50,000 citizens backed it. The sys- appeared willing to challenge the limits of tem is very similar to the European Citizens’ FRQVWLWXWLRQDOULJKWV)RUWKH¿UVWWLPHVLQFH Initiative in the EU. Practically, the website WKH6HFRQG:RUOG:DUDQRUJDQL]DWLRQZDV www.borgerforslag.dk was launched, on banned. It now rests with Danish courts to which citizens, using their digital ID, can de- decide if this is unconstitutional. Similarly, clare whether they support proposals made in several issues related to immigrants and by other citizens. If 50,000 citizens support minorities, Denmark changed direction in a proposal, it will be sent to the parliament. 2018. The burqa was banned and social ben- Technically, the parliament is under no obli- H¿WVIRUSHRSOHZKRKDYHOLYHGOHVVWKDQVHY- gation to consider such proposals, but seven en years in Denmark were reduced to such a of the nine political parties in the parliament low level that it might be unconstitutional. have promised to present them there, even if To acquire citizenship in Denmark, a hand- WKH\ GR QRW VXSSRUW WKHLU FRQWHQW7KH ¿UVW shake is now required (enacted in response to proposal to get 50,000 supporters was aimed certain religious Muslims who do not shake at removing an existing regulation that lim- hands with the opposite gender) and several its the possibilities of taking more than one rules were enacted to more strictly regulate university education. The second proposal to socially vulnerable neighbourhoods. Finally, receive enough support proposed removing a major Danish political party declared that 84 | I•CONnect-Clough Center the special pensions that ministers and their GXHWRWKHGLI¿FXOW\LQSURYLQJWKDWLWLVWKH by governments to mean that the parlia- children receive. Both proposals were subse- organization itself that acts through violence ment is never obligated to grant citizenship quently rejected in the parliament. Two other and not just the individual members that are to anyone. In this view, the parliament can proposals received enough support during involved in violent activities on their own. fully decide which rules—if any—they will 2018 to reach the parliament but were still Following several shootings in Copenha- apply for granting citizenship. However, a under consideration at the end of 2018. They gen between various gangs, the Director new rule implemented in 2018 is probably suggest prohibiting circumcision on healthy of Public Prosecutions decided to instigate the most unusual one that the parliament has children younger than 18 years and making proceedings against the group “Loyal to Fa- ever implemented in this regard. It is now everyone over the age of 18 automatic organ milia” with the aim of banning it. This was a condition for getting citizenship that the donors. backed by the parliament, which simultane- applicant shakes hands—without wearing ously made a law detailing the consequenc- gloves—with a representative of the gov- According to the Danish constitution, a cit- es of an organization being prohibited. The ernment (originally proposed to be the local izen—following certain conditions—“shall group has now been prohibited but is await- PD\RUEXWDWWKH¿UVWRIWKHVHRI¿FLDOKDQG- have the right to vote in parliamentary elec- ing a court decision on whether the prohibi- shake ceremonies it was the Minister of Im- tions, provided that he has not been declared tion is unconstitutional. migration and Integration who had the hon- incapable of conducting his own affairs”. our). It is no secret that the politicians behind This wording has been interpreted to mean Discussions on immigration and especially WKLVQHZUXOHLPSOHPHQWHGLWVSHFL¿FDOO\IRU that the parliament cannot grant such people on the presence of Islam have for several those religious Muslims who refuse to shake parliamentary voting rights. Around 2,000 years been at the forefront of political de- hands with the opposite gender. people in Denmark have been placed in a bate in Denmark. Several new laws were guardianship due to impaired functional ca- passed during 2018 concerning these top- Section 75 of the Danish constitution states pacity, with the aim of protecting them from ics. Most debated was probably the prohi- that “Any person unable to support himself JHWWLQJLQWR¿QDQFLDOSUREOHPVGXHWRWKHLU bition against covering the face in public. or his family shall … be entitled to receive own actions or exploitation. These people The intention of several politicians behind public assistance”. In earlier cases, the Su- have automatically lost their voting rights the law was to ban the burqa; however, due preme Court stated that this means that the in parliamentary elections following the to regulations on religious freedom, the law government must guarantee anyone in such wording of the constitution (while keeping was made more general. a situation a minimum subsistence level. their voting rights to both local elections and However, the exact level has not been made EU-parliamentary elections). Four citizens Special rules were also enacted in socially clear by the court. In 2018, the section re- had sued the Danish government, claiming vulnerable neighbourhoods—called “ghet- ceived new attention. Anyone who has lived that this loss of voting rights was against tos” by the government—which have a high- less than seven years in Denmark within the their human rights, but the Supreme Court er proportion of immigrants. These include last eight years receives a lower amount of decided in favour of the government in Janu- the possibility of doubling the punishment money from the government in case of need ary 2018. However, the case convinced Dan- for crimes committed in these areas. The than others – the so-called “integration al- ish politicians to change the rules. Due to the exact same crime committed in two differ- lowance”. Based on an analysis of the situ- GLI¿FXOW\ LQ FKDQJLQJ WKH 'DQLVK FRQVWLWX- ent areas of Denmark can thus lead to two ation for families receiving this allowance, tion, this was not seen as an option. Instead, different punishments. The new laws also the Danish Institute for Human Rights con- the legislation on guardianship was changed, include rules that will economically punish cluded in October 2018 that there were good making it possible to be declared only par- parents in these areas if their children as reasons to assume that some of these families tially incapable of conducting one’s own af- young as one year of age do not attend oblig- received less than the minimum subsistence fairs. The government’s interpretation of the atory classes for 25 hours per week. Finally, level, which would be unconstitutional. The constitution is that this solution prevents the the new rules include a plan which will lead reaction from the government was less than loss of voting rights. The interpretation is un- to parts of the “ghettos” being demolished, positive to this claim. One month later— likely to ever be challenged in court. thus moving existing inhabitants. Questions November 2018—the government made an have been raised concerning whether some agreement with the Danish People’s Party to B. Challenging the limits of constitutional of these rules contradict basic principles of lower the integration allowance further. rights equality before the law or regulations against discrimination. Thus, it was a year in which the government The Danish constitution, section 78, allows and the parliament were willing to thread for prohibiting and dissolving organizations According to the Danish constitution, a for- new paths and challenge the limits of con- if they employ violence to attain their aims. eigner can only become a Danish citizen if stitutional provisions. It should be noted +RZHYHUWKHRI¿FHRIWKH'LUHFWRURI3XEOLF an act is passed in the parliament, which— that Denmark does not have a constitution- Prosecutions had earlier abandoned attempts mentioning the foreigner by name—grants al court and no automatic review of wheth- to prohibit the motorcycle club Hells Angels the citizenship. This has been interpreted 2018 Global Review of Constitutional Law | 85 er a law is unconstitutional exists. Instead, nese state visits since 1995. This investiga- an analysis of decisions from the European an individual affected by a law can choose tion is still ongoing. Court of Human Rights, especially the Case to institute proceedings in the normal Dan- of Alajos Kiss v. Hungary in which a viola- ish courts to have the law evaluated. Only The Tibet Commission is not the only com- tion of Article 3 of Protocol No. 1 was found. if someone instigates such proceedings will mission looking into highly political topics. The Danish Supreme Court noted that the the constitutionality of these laws be tested. Denmark has had several tax scandals in re- ECHR had found that ensuring that only cit- cent years, with the authorities not noticing izens capable of assessing the consequenc- A further comment could be made about massive tax fraud while also appearing un- es of their decisions and making conscious the fact that the Danish People’s Party—the able to collect debts owed to the state. A tax and judicious decisions participate in public second largest party in the parliament—an- commission has been tasked with investigat- affairs was a legitimate aim. However, the nounced in November 2018 that their under- ing these events. ECHR had found that the Hungarian pro- standing of the Danish constitution is that it vision was not proportional since it was an only grants rights to people with Danish cit- III. CONSTITUTIONAL CASE absolute bar on voting by any person under izenship and not to anyone else who lives in partial guardianship, irrespective of his or Denmark. This view was strongly criticized Supreme Court Decision of 18 January 2018 her actual faculties. In contrast with this, the by several legal scholars and it is without a in case 159/2017: No violation of constitu- Danish Supreme Court found that the Dan- doubt an interpretation that goes against all tional or international obligations in rela- ish provision was proportional since it was established interpretations of the constitution. tion to loss of voting rights. DVLJQL¿FDQWO\QDUURZHUVFKHPHWKDQWKHRQH in Hungary, and since Danish law operated C. Existing commissions This case concerned four plaintiffs who had with another guardianship which did not been deprived of their legal capacity under cause a loss of voting rights. The Supreme The president of China visited Denmark in a guardianship order, cf. section 6 of the Court also made reference to the fact that 2012. During his visit, demonstrations were Danish Guardianship Act. The Danish Par- a number of other European countries have carried out in Denmark against the Chinese liamentary Election Act, section 1, states that similar regulations. Thus, the Supreme Court policies in Tibet. Demonstrators accused the in such circumstances, a person loses the concluded that there had not been a breach of Danish police of hiding the demonstrators right to vote for parliamentary elections. The international obligations. WR SUHYHQW WKH &KLQHVH RI¿FLDOV IURP VHH- plaintiffs argued that this was in breach of the ing them. In 2015, a commission, the Tibet Danish constitution, the European Conven- IV. LOOKING AHEAD Commission, was established to look into tion on Human Rights and the UN Conven- this matter, and in 2017, the Commission tion on the Rights of Persons with Disabili- Elections for the European Parliament will concluded that illegal orders had been given ties. The Supreme Court found that this was be held in May. Elections for the Danish par- within the Copenhagen police department. not a breach of the Danish constitution. Sec- liament are due at the latest in June 2019. Po- However, the Commission found no evi- tion 29 of the Danish constitution states that litical parties in Denmark have for decades dence that ministries or even the manage- a person who is “incapable of conducting his EHHQGLYLGHGTXLWH¿UPO\EHWZHHQWZREORFV ment of the Copenhagen police department own affairs” does not have the right to vote. but recently several political parties have had made such orders or had any knowledge Based on a detailed analysis of the historical challenged the traditional alliances, making of them. development of the Danish constitution, as LWGLI¿FXOWWRIRUHVHHKRZDJRYHUQPHQWFRQ- well as an analysis of the preparatory work stellation will look after the elections. During 2018, these conclusions came under to the Danish Guardianship Act, it was found heavy criticism. Various media reported that that a person deprived of their legal capacity, Both the Tibet Commission and the Tax the Commission had not had access to emails cf. section 6 of the Danish Guardianship Act, Commission are ongoing and have potential from former employees in the police depart- was to be treated as a person “incapable of implications at a major political level. The ment or in ministries, which included the en- conducting his own affairs”. Thus, in reality case on the banning of Loyal to Familia is tire management of the Copenhagen police it was the Danish constitution that prevent- also ongoing. Further, if the elections lead to GHSDUWPHQWDVZHOODVDVLJQL¿FDQWDPRXQWRI ed the plaintiffs from having voting rights. a change of government, it is possible that the relevant employees in ministries. Simul- Based on this, the Supreme Court declared a new government will open investigations WDQHRXVO\ IRUPHU SROLFH RI¿FHUV H[SODLQHG that even if international obligations had into the background of the Danish decision to the media that it had been a general prac- been breached, it could not lead to section 1 in 2003 to join the war against Iraq. tice to hide such protesters during Chinese of the Danish Parliamentary Election Act be- state visits. Due to this new information, it ing invalid, since the rule was a consequence was decided to not only reopen the Tibet of the constitution. However, the Supreme Commission but also to widen the mandate, Court also found that the rule did not breach so now the Commission will look at all Chi- international obligations. This was based on 86 | I•CONnect-Clough Center Ecuador Johanna Fröhlich, Full Professor of Law, Faculty of Jurisprudence – Universidad San Francisco de Quito Pier Paolo Pigozzi, Full Professor of Law, Faculty of Jurisprudence – Universidad San Francisco de Quito I. INTRODUCTION1 Besides the three-month-long constitution- The year 2018 was one of fighting against al vacancy, Ecuador has witnessed several corruption and reshaping several public of- other turbulent moments with regard to the fices, including the Council of the Judicia- restructuring of the judiciary and corruption ry and the Ecuadorian Constitutional Court charges against numerous public officers, ECUADOR (ECC). This might signal an important turn- mainly from the government of President ing point in the country’s constitutional his- Correa. Many former authorities have been tory. Following the popular referendum in convicted, some of whom are serving time, February, the Ecuadorian people agreed to others fugitives in foreign countries. appoint a transitory Council for Public Par- ticipation and Social Control (CPPSC-t) and II. MAJOR CONSTITUTIONAL grant it extensive powers to evaluate virtu- DEVELOPMENTS ally all public offices in Ecuador. The main constitutional development in 2018 was un- 1. Popular Referendum doubtedly the dissolution of the ECC and the beginning of the process for the appointment Last year, President Moreno submitted sev- of new justices. en referendum questions to the ECC for ap- proval. The questions were about sensitive :H FORVHG ODVW \HDU¶V UHSRUW ZRQGHULQJ political and constitutional issues, like the whether the elected authorities would be able indefinite reelection of the president or the to “stir the country towards the rule of law, redesign of the CPPSC. The decision on the or will it be just another type of rule of man approval of the questions posed a challenge WKDWLVPRUHWHPSHUDWH"´7KLVLVVWLOOKDUGWR to the ECC, as in 2015 it already dealt with say. In the public eye, the discharge of duties the issue of the indefinite reelection of the by the CPPSC-t has been received along par- president, and it was considered as a mea- ty lines. On the one hand, Correistas have sure to expand the sphere of voting rights. been against every move by the CPPSC-t This time, however, the referendum aimed at and unwilling to assume any responsibility. abolishing the indefinite reelection. Finally, On the other hand, anti-correistas have been the ECC refrained from deciding whether willing to overlook the shortcomings of the the referendum question was constitutional evaluation process. Outside this dichotomy, or not, and ducked the issue by simply letting some have regarded this as a sui generis case the deadline pass. of transitional justice.2 It is still too soon to evaluate, and the CPPSC-t will continue in By the time the referendum was held, Pres- office until March 2019. ident Moreno had made clear that he was 1 We are thankful to Sebastián Abad, Irina Burgaentzle and Sol González from University of San Francisco KL8\P[VMVY[OLPYNLULYV\ZOLSW;OLYLZWVUZPIPSP[`YLNHYKPUN[OLÄUHS[L_[PZVUS`V\YZ 2 Simeon Tegel, ‘A referendum in Ecuador is another defeat for South America’s left-wing populists,’ ;OL >HZOPUN[VU7VZ[ (5 February 2018). 2018 Global Review of Constitutional Law | 87 distancing himself from Correa both in style were supposed to perform as comptrollers with the removal of the heads of the eval- and in substance. The constitutional refer- had pervasively concealed unthinkable acts uated institutions and were followed by the endum3 was held on February 4, and all the of corruption for over a decade. The stakes designation of new leaders. questions of the referendum4 were decided were too high just to let go of the position affirmatively. This will mark the beginning with archives, files, and other evidence (if The CPPSC-t and its decisions were widely of a set of reforms to rebuild the rule of law there was any left). Thus, the CPPSC-t faced supported by Ecuadorian society, especially and its institutions over the year, but even every possible political and judicial inci- its president, the iconic public figure Julio more important than that, the outcome of the dent. Even the Inter-American Commission César Trujillo6 The CPPSC-t relied on the referendum reassured that popular support was called to intervene, which went as far backing of the National Assembly, which for President Moreno was still strong. as asking for provisional measures from the requested all state organs to cooperate with Inter-American Court. It had to spend its the evaluation procedure carried out by the 2. The transitional Council for Public first months under heavy fire—none of the CPPSC-t. Participation and Social Control targeted authorities truly stand a chance after a decade of a general perception of abuse of 3. An arbitrary Constitutional Court goes Following the popular referendum, the Leg- power, impunity, and biased decisions in fa- vacant islative appointed seven counselors to the vor of Rafael Correa’s Alianza Pais. “transitory” CPPSC (CPPSC-t) from short- In May, the CPPSC-t began to evaluate the lists by President Moreno. The CPPSC-t was The first to be evaluated were the five mem- ECC. Following the procedure, the justices granted via referendum the authority to eval- bers of the National Electoral Council. of the ECC as well as civil society were of- uate the major public authorities and was in Throughout the terms of Correa, the Elec- fered to present their reports and complaints charge of the oversight and accountability toral Council was accused of electoral fraud, about the performance of the ECC and its of every other public official within the next gerrymandering, and disqualifying political justices. After the assessment procedure in year. The CPPSC-t also received the powers parties of the opposition, among others. The August, the CPPSC-t decided7 to cease the to dismiss those authorities that neglected CPPSC-t gave the assurances of due process functions of all nine ECC justices8 for irreg- their responsibilities or were corrupt. of law, but finally dismissed all of them in a ularities in their selection and appointment 99-page report and appointed five transitory in 2012, for not complying with their con- The referendum was neither explicit nor members. stitutional function to guarantee fundamental carefully drafted to give precise powers to rights, and for misusing public funds desig- the CPPSC-t. The CPPSC-t read the powers After a rocky start, CPPSC-t continued fol- nated to the ECC. granted by referendum broadly to fulfill the lowing its rules of procedure, and granted popular mandate for reforms and transparen- every evaluated authority the right to be In connection with the selection and ap- cy. For instance, it vindicated the competence heard and produce evidence in its favor. pointment of the justices, the CPPSC-t high- to appoint provisional authorities and to call The fierce opposition from sympathizers of lighted that neither the written nor oral part for the appointment of definitive ones. At the Correa faded more and more. The CPPSC-t of the evaluation of the selected candidates same time, it tried to draft its regulations as evaluated several state organs, such as Om- was in line with an objective, transparent, precisely as general principles of public law, budsman, the Public Defender, the General and meritocratic assessment of the candi- such as due process of law, require.5 Attorney of the State, General Comptroller date’s professional knowledge and skills set of the State, Contentious Electoral Tribunal, forth by the Ecuadorian Constitution9 and The discharge of duties of the CPPSC-t was the Attorney General, the Superintendents, by the jurisprudence of the Inter-American not free from criticism, especially at the out- the Constitutional Court, and finally the Ju- Court. The CPPSC-t found that the ECC did set. On the one hand, public officials that dicial Council. All the procedures finished not fulfill its constitutional review functions 3 6ɉJPHS9LNPZ[Y`:\WWSLTLU[5V -LIY\HY` 4;OLX\LZ[PVUZ^LYLHIV\[[OLMVSSV^PUN!PMJVYY\W[PVUZOV\SKILZHUJ[PVULKI`^P[OKYH^HSVMWVSP[PJHSYPNO[Z"PMHSS[OLKPYLJ[S`LSLJ[LKW\ISPJVɉJLYZZOV\SKIL able to be reelected only once; 3) if the CPPSC should transitionally have the power to evaluate the performance of certain public authorities; 4) if crimes of sexual violence against children and adolescents should never be prescribed; 5) if metal mining should be prohibited in protected and urban areas; 6) if the law on the cap- ital gains tax should be repealed; 7) if the area for oil extraction should be reduced inside the Yasuní National Park. The highest popular support was given to the question regarding sexual violence. 5 See, No. PLE-CPCCS-T-O-009-03-2018. Every document on each evaluation procedure is publicly available here: http://www.cpccs.gob.ec/designacion-de-au- toridades/ 6 According to the last surveys of CEDATOS, 73% of Ecuadorian society supports the actions of the CPPSC-t. http://www.cedatos.com.ec/detalles_noticia. php?Id=372 7 Resolution No. PLE-CPCCS-T-O-089-23-08-2018. (August 23, 2018). 8 Emma Roxana Silva Chicaiza, Pamela Martínez Loayza, Victor Francisco Butiña Martínez, Wendy Molina Andrade, Tatiana Ordeñana Sierra, Marien Segura Reascos, Ruth Seni Pinoargote, Manuel Viteri Olvera, and Alfredo Ruiz Guzmán. 9 Constitution of 2008, Art. 434. 88 | I•CONnect-Clough Center and left the country without effective control impartially for over a decade was the cen- Council of the Judiciary was the one that of constitutionality. The CPPSC-t emphasized ter of the turmoil. Since 2013, the Council faced more external criticism and internal that the ECC decided its cases arbitrarily and of the Judiciary, presided by Gustavo Jalkh, division. According to a certain public per- violated the principles of due process, fore- had been pervasively accused of directly in- ception, it was resorting to similar grounds seeability, and the rule of law. Furthermore, terfering with the independence of judges on of dismissal for judges and prosecutors as its the CPPSC-t resolved that the arguments used a nationwide scale.13 In May, the Legislature predecessors, which was questioned by a mi- in the ECC’s cases were selected in a discre- impeached Jalkh, and the CPPSC-t found nority among its members.16 tional fashion and were driven by the self-in- extensive evidence on the systemic arbi- terest of the president of the ECC. Finally, the trariness in judicial decision-making, which Corruption and lack of impartiality within CPPSC-t established that the ECC did not generally favored the interests of Correa’s the judiciary reached the level of covering properly manage the public funds allocated to government and relatives. The “inexcusable up and leaving in impunity cases of politi- exercise its functions, especially in the field of miscarriage of justice” was the legal term cal violence. During 2018, a new National public contracting. Ecuadorian public opinion of choice by the Council of the Judiciary to Attorney found evidence of a state crime in welcomed this outcome with satisfaction, reprimand and dismiss disloyal judges with connection with the kidnapping of a political which mirrors a long-standing and general a chilling effect over the rest. The dismissal activist and ex-congressman in 2012. The negative judgment towards the ECC.10 of judges under this figure paved the way for evidence pointed in the direction of the Gen- the Council of the Judiciary to appoint judg- eral of the National Police and the Secretary After removing the nine justices from the es that would avail themselves to tailor the of Intelligence Services under Rafael Cor- ECC, the CPPSC-t declared a 60-day-long decisions that the regime would require. In rea.17 Both of them were sentenced to pris- constitutional vacancy.11 Following the res- the face of all the evidence, Jalkh and the rest on,18 and the National Court of Justice issued olution, all the pending cases and their dead- of the members of the Council of the Judi- a red arrest warrant against President Correa lines were declared dormant for the period of ciary were dismissed by the CPPSC-t.14 The because of evidence that could incriminate the constitutional vacancy and it was decid- CPPSC-t appointed five transitory members him. Interpol declined to arrest and extra- ed they were to be analyzed by the newly se- to the Judicial Council and created a sort of dite Correa from Belgium, and the criminal lected and appointed constitutional justices. Sub-Committee for Truth and Justice (Mesa proceedings in Ecuador have halted until he In November, after a rigorous selection pro- de Verdad y Justicia) to hear complaints appears before the Court. cedure, the CPPSC-t approved the list of the against judges, prosecutors, and clerks. The new candidates12 for the ECC. Among others Sub-Committee heard over 800 cases and Corruption has also tainted much of the pub- was Hernán Salgado, previous judge of the decided to dismiss 175 of the defendants.15 lic works built during the past ten years. The Constitutional Tribunal and the Inter-Amer- National Court of Justice found the Comp- ican Court, as well as other prestigious law The task of the transitory Council of the Ju- troller General, Carlos Pólit (now fugitive), professors and professionals. diciary was key to mending the rule of law in and his son guilty of extortion and bribery. Ecuador. Under the particular circumstances, They were sentenced to 6 and 3 years of pris- 4. Corruption the task to evaluate judges without making on, respectively, due to crimes related to the them feel the type of undue pressure that Odebrecht scandal.19 In the oil sector, the The breadth and depth of corruption scandals had become usual was almost impossible. National Court of Justice found that the for- unveiled during 2018 were astonishing. The Among the transitory authorities appoint- mer Minister of Oil20 and the former CEO21 judiciary itself and its inability to adjudicate ed by the CPPSC-t, perhaps the transitory of the Ecuadorian oil company Petroecuador 10 :HU[PHNV)HZHILº*VY[L*VUZ[P[\JPVUHS$PUVWLYHJPHJVYY\WJP}UW\ZPSHUPTPKHK»B*VUZ[P[\[PVUHS*V\Y[$PULɈLJ[P]LULZZJVYY\W[PVUW\ZPSSHUPTP[`D4Pelagatos, 7 August 2018). https://4pelagatos.com/2018/08/07/corte-constitucional-inoperancia-corrupcion-pusilanimidad/ accessed 22 February 2019. 11 Resolution No. PLE-CPCCS-T-O-095-31-08-2018. (August 31, 2018). 12 Hernán Salgado Pesantes, Daniela Salazar Marín, Ramiro Ávila Santamaría, Teresa Nuques Martínez, Agustín Grijalva Jiménez, Alí Lozada Prado, Pablo Herrería Bonnet, Carmen Corral Ponce, and Karla Andrade Quevedo. 13 Santiago Basabe, ‘Consejo de la Judicatura: hacemos de la corrupción una práctica diaria’ (4Pelagatos, 2 October 2018). https://4pelagatos. com/2018/10/02/consejo-de-la-judicatura-hacemos-de-la-corrupcion-una-practica-diaria/ accessed 22 February 2019. 14 Resolution No. PLe-CPCCS-T-O-037-04-06-2018. 15 Resolution of the Judicial Council No. 094A-2018. http://www.funcionjudicial.gob.ec/index.php/es/saladeprensa/noticias/item/7094-mesa-de-verdad-y-justicia-investiga-casos-de-judiciales-destituidos.html 16 Fermín Vaca, ‘Las claves para entender las pugnas en la Judicatura’ (Plan V, 17 September 2018). http://www.planv.com.ec/historias/politica/claves-en- tender-pugnas-la-judicatura accessed 22 February 2019. 17 7YLZZYLSLHZL-.,5¢+* O[[WZ!^^^ÄZJHSPHNVILJÄZJHSPHWYLZLU[V LSLTLU[VZKLJVU]PJJPVUWHYH]PUJ\SHYHKVZWLYZVUHZHSJHZVIHSKH 18 Criminal Proceeding No. 17721-2018-00012 (June 15, 2018). 19 Criminal Proceeding No. 17721-2017-00222. 20 Criminal Proceeding No. 17721-2016-1564 (June 12, 2018). 21 Criminal Proceeding No. 17294-2017-01641 (July 3, 2018). 2018 Global Review of Constitutional Law | 89 were guilty of illicit enrichment, traffic of 2. Case of the Río Blanco: illegal mining in favor of restricting mining activities. The influences, and other charges of corruption. and rights of nature24 Court further reasoned that the 2008 Con- stitutional paradigm mandates developing III. CONSTITUTIONAL CASES The decision of the Provincial Court of Jus- a “non-extractivist” economic model and tice of Azuay on halting mining activities by replacing the anthropocentric approach to 1. Case Satya: gender identity22 the Río Blanco River was considered a land- the protection of the environment with a bio- mark for the protection of the rights of nature centric or “ecocentric” approach, according The case was about a child, Satya, who was and the local community. The local commu- to which human beings shall not be placed born in 2011. Her biological mother sought nity of Molleturo, in the southern province at the center of the legal protection (as un- to register Satya under her family name and of Azuay, have opposed for a long time the der liberal constitutionalism) but instead the that of her female partner.23 This, however, mining project by Ecuagoldmining, owned ecosystem as a whole (which is a novelty in was not possible according to the Ecuadorian by the Chinese Junefield Group. The project Andean Transformative constitutionalism). Constitution and civil registry statutes. Satya would take place in the biosphere reserve of According to the Court, this ecocentric ap- was already legally recognized as the daugh- Macizo del Cajas. UNESCO declared this proach was adopted when the Ecuadorian ter of the lesbian couple in Great Britain. In to be a biosphere reserve in 2013 due to the Constitution of 2008 recognized “nature as Ecuador, the case had been dismissed in the exuberant biological diversity of this region, a bearer of rights” and the sumak kawsay final instance, but the Ombudsman’s Office which includes moorland, wetland, man- as the central principle of the Ecuadorean brought the issue to the ECC alleging that groves, and a marine ecosystem. The com- constitutional order. Under such reasoning, there had been violations of constitutional munity of Molleturo filed a judicial remedy the Court decided that the Ministry had not rights in the course of the judicial decision. (acción de protección) that seeks to declare abided by constitutional standards on prior null and void all the mining licenses issued consultation and that the rights of the local Besides the heated issue in regard to same- by the Ministry of Mining and Environment communities had been violated. sex parenting, this case touched upon the for drilling and gold mining by the Río Blan- erratic jurisprudence of the ECC on the co River. They also seek to recover damages 3. Case of the 2015 unconstitutional consti- 25 extraordinary judicial remedy or acción ex- and other forms of reparation for the harm tutional amendment traordinaria de protección. The ECC has already caused to nature and the community. contradictory jurisprudence on when such This was the first time that the ECC re- a remedy is admissible, what sort of right The decision of the Court provided an anal- viewed the constitutionality of an already might be violated in a judicial procedure, ysis of the constitutional principle of sumak promulgated constitutional amendment. The 26 and whether the ECC has the power to over- kawsay (Quechua for “living well” or “full- challenged constitutional amendment was rule previous judicial decisions. The nature ness of life”) and the right to prior consulta- adopted while Rafael Correa was still in of- of the extraordinary judicial remedy and the tion to the community. The Court found that fice in 2015, and its central question was the powers of the ECC when deciding such cas- whereas Article 408 of the Constitution de- indefinite reelection of the President. The es will have to be clarified by the next com- clares an inalienable property of the State all challenge was brought on formal and sub- position of the ECC, especially because the nonrenewable natural resources, including stantial grounds by several plaintiffs. The overwhelming majority of cases in the back- mineral deposits and biodiversity, the State ECC was criticized for not being willing to log of over ten thousand pending cases are must respect the environmental principles take the heat while it was still a relevant is- extraordinary judicial remedies. In practice, laid down by Article 395 when administer- sue but only when a second amendment had the extraordinary judicial remedy has been ing such natural resources. already made the issue moot. abused as if it were a sort of another instance and it has created a great deal of uncertainty. The decision also considers the right to prior The ECC declared that it has the power to ex In this case, the ECC ruled that the Office consultation of the affected communities in post review the constitutionality of constitu- of Civil Registry must register Satya as re- the planning and implementation of mining tional amendments, following Articles 436.2 quested by her biological mother. activities (Article 57, No. 7 of the Constitu- and 75(1.a) of the Constitution and Article tion). The Court recalled that in the popular 106 of the Organic Law of Jurisdictional referendum in February, Ecuadoreans voted Guarantees and Constitutional Review.27 Ac- 22 Judgment No. 184-18-SEP-CC, ECC. 23 (JJVYKPUN[V[OLUHTPUNWH[[LYUPU,J\HKVYHJOPSK»ZNP]LUUHTLPZ[VILMVSSV^LKI`PU[OLÄYZ[WSHJL[OLMH[OLY»ZMHTPS`UHTLHUKPU[OLZLJVUKWSHJLI`[OL mother’s family name. 24 Decision of the Provincial Court of Azuay, No. 01333201803145 (August 3, 2018). 25 Judgment No. 018-18-SIN-CC, ECC. 26 :\WWSLTLU[6ɉJPHS9LNPZ[Y`5V +LJLTILY 27 :\WWSLTLU[6ɉJPHS9LNPZ[Y`5V 6J[VILY ;OLJVTWL[LUJLVMYL]PL^PUN[OLJVUZ[P[\[PVUHSP[`VMJVUZ[P[\[PVUHSHTLUKTLU[ZPZTLU[PVULKL_WYLZZS` only in the Organic Law, not in the Constitution. This, however, did not appear as an issue in the decision of the ECC. 90 | I•CONnect-Clough Center cording to the Organic Law, the ECC is only This decision was one of the last judg- null on the elections.32 Their outcome will allowed to review the constitutionality of ments of the ECC before its dissolution by be important to consolidate the work of the amendments on formal grounds. Therefore, the CPPSC-t. Under normal circumstances, CPPSC-t, which was not free from faults but the ECC focused on possible errors during a judgment on the unconstitutionality of a pointed the country in the direction of un- the amendment procedure, and it did not ad- constitutional amendment might have been veiling corruption and abuse of power, and judicate anew on whether the selected pro- approached as a historic step in a country’s rebuilding the institutions needed in a liberal cedure for the constitutional change in 2015 constitutional development. Nevertheless, democracy. was in line with the Constitution. In its ex this judgment has not received any attention 28 ante review from 2015, the ECC consid- in professional or general public discourse. V. FURTHER READING ered that giving way to indefinite reelection One reason to explain this disinterest could of the President was not considered either an be that the professional community con- Juan Pablo Aguilar Andrade, El Mito del “alteration of the fundamental structure of sidered this a strategic move of the ECC to Nuevo Paradigma Constitucional (Corpo- the Constitution” or a “constitutive element prove its legitimacy and impartiality while ración de Estudios y Publicaciones, 2018) of the Constitution,” and it did not “restrict it was under the evaluation of the CPPSC-t. any fundamental rights or guarantees” that Another reason seems to be that the decision Mauricio Maldonado Muñoz, Los Dere- allowed for a simpler amendment procedure. does not have any major impact on the con- chos Fundamentales. Un estudio conceptual 29 According to Article 441, the amendment tested amendments. (ARA Editores, 2018) that the ECC had approved had to be initiat- ed by at least one-third of the members of the IV. LOOKING AHEAD Andrés Martinez Moscoso – Teodoro Ver- National Assembly, and for its adoption, it dugo Silva (coord.), Tensiones y contradic- was enough to secure two-thirds of the votes In October, the chairman of the CPPSC-t an- ciones de la democracia ecuatoriana (Uni- of the National Assembly. 30 nounced that the Council had fulfilled its versidad de Cuenca, 2018) mandate to evaluate the performance of sev- In 2018, the ECC decided that the amend- eral state organs to strengthen the constitu- Sebastián López Hidalgo, Reflexiones acer- ment was initiated by the necessary number tional institutions in Ecuador. The members ca de la legitimidad democrática de la justi- of members of the National Assembly, and of the CPPSC-t encouraged the Ecuadorean cia constitucional en Ecuador (CEP – Uni- that the final text of the amendment was ad- people to abolish this institution from the versidad Andina Simon Bolivar, 2018) opted by the required two-thirds majority as Constitution, hinting to include another ref- well. However, the ECC found that the appli- erendum in the elections for local authorities cable procedure mandated that the National that will take place in 2019. The reason is Assembly had to vote separately for each ar- that the powers that the Constitution gives to ticle, but the Assembly decided in a single the CPPSC to remove and appoint authori- vote. The ECC found this practice contrary ties could easily be abused once again, and to the principle of constitutional supremacy it may be better to give back those constitu- and rigidity. The ECC ruled that voting in tional powers to the Legislative, as it used to blocks about different provisions to amend be before the 2008 Constitution. the Constitution violated the freedom of the electors and the democratic principle of de- The National Electoral Council has already31 liberation; therefore, it was unconstitutional. called for elections on March 24, 2019. They The ECC clarified that the formal unconsti- will not include a referendum, but new mem- tutionality of the said amendment did not af- bers to the CPPSC will have to be elected. fect its normative force. Public opinion seems to support the aboli- tion of the CPPSC and encourages voting 28 Judgment No. 184-18-SEP-CC, ECC. 29 0U [OLKLJPZPVUVM[OL,**^HZJYP[PJPaLKILJH\ZLP[KPKUV[JVUZPKLYZLYPV\ZS`OV^PU[OLJPYJ\TZ[HUJLZVM[OLTVTLU[[OLPUKLÄUP[LYLLSLJ[PVUVM[OL 7YLZPKLU[JV\SKHɈLJ[[OLWYPUJPWSLVMWVSP[PJHSYV[H[PVUWYPUJPWPVKLHS[LYUHIPSPKHKLULSNVIPLYUV) and political rights. 30 Press release No. 248 (October 19, 2018). See http://www.cpccs.gob.ec/2018/10/cpccs-t-explico-su-actuacion-y-propuesta-de-eliminacion-de-la-institucion/ 31 Resolution of the National Electoral Council, No. PLE-CNE-3-21-11-2018. O[[W!JULNVILJPTHNLZK ,SLJJPVULZFF JVU]VJH[VYPHFTVKPÄJHKHWKM 32 Santiago Basabe, ‘Voto nulo = eliminar el Consejo de Participación Ciudadana’ [Null vote = eliminating the Council of Citizens’ Participation]. 4 Pelagatos. Febru- ary 19, 2019. https://4pelagatos.com/2019/02/19/voto-nulo-eliminar-el-consejo-de-participacion-ciudadana/ 2018 Global Review of Constitutional Law | 91 Egypt Eman Muhammad Rashwan, Lecturer/PhD Candidate – Cairo University, Faculty of Law, Public Law Department/EDLE (European Doctorate in Law & Economics), Hamburg University, Faculty of Law, Hamburg Institute of Law & Economics I. INTRODUCTION II. MAJOR CONSTITUTIONAL DEVELOPMENTS Between brand new issues and continuous developments of the last years, the constitu- The most prominent constitutional develop- tional status of Egypt in 2018 was rich and ment of 2018 was rooted in one of the es- controversial. The emergency status was sential features of the constitutional system extended— again—with new relevant pro- in Egypt, namely the problematic emergen- cedural orders. A law addressing the rights cy status. Egypt has been under a “roughly” EGYPT 1 of the disabled was passed, a decision reg- continuous emergency status since 1981 un- ulating the situation of a number of churches der the rule of the former president Mubarak. 2 was delivered, and a new Chief Justice of This was suspended for a while after the 3 the Supreme Court was appointed, while the revolution, given it was one of its major de- battle over the appointment of female judg- mands. However, after August 14, 2013, the es in the state council continued. In another date of the dispersing of Rabaa sit-in, Egypt context, a number of interesting decisions has been witnessing a sequence of declara- were issued by the Supreme Court address- tions and extensions of the emergency status, ing—among other matters—the regulation giving the army and the police forces excep- of pharmaceuticals, the interpretation of the tional powers over citizens.7 Islamic Sharia,4 the sovereignty acts,5 the former Supreme Court judges’ status, and According to Article 154 of the Egyptian 6 the previous civil associations law. After the 2014 Constitution, the President has the explanation of the most salient constitutional power to declare the emergency status, as developments, the reviewer, where applica- regulated by law, and after consultation with ble, presents a brief comment. the cabinet. The proclamation has to be ap- proved with a simple majority and has to be submitted to the House of Representatives within 7 days. The Constitution limits the duration of the emergency status to three months. This limitation can be renewed for only one time with the approval of the Par- 1 -VYTVYLHIV\[[OPZSH^ZLL!;OL6ɉJPHS.HaL[[L0ZZ\L YLWLH[LKI4H` 2-VYTVYLHIV\[[OPZKLJPZPVUZLL!;OL6ɉJPHS.HaL[[L0ZZ\LYLWLH[LKP1\UL W 3 +LJPZPVUVM[OL7YLZPKLU[VM[OL(YHI9LW\ISPJVM,N`W[U\TILY VM`LHY ;OL6ɉJPHS.HaL[[L Issue (29) repeated (c), July 21, 2018, p. 2. 4 -VYTVYLHIV\[[OLZLKLJPZPVUZZLL!;OL6ɉJPHS.HaL[[L0ZZ\L YLWLH[LKM(WYPS W HUK;OL6ɉJPHS.HaL[[L0ZZ\LYLWLH[LKP1\UL W HUK;OL6ɉJPHS.HaL[[L0ZZ\L YLWLH[LKI4H` W W 5 -VYTVYLHIV\[[OPZKLJPZPVUZLL!;OL6ɉJPHS.HaL[[L0ZZ\LYLWLH[LKP1\UL W 6 -VYTVYLHIV\[[OPZKLJPZPVUZLL!;OL6ɉJPHS.HaL[[L0ZZ\LYLWLH[LKP1\UL W 7 Yussef Auf, ‘The State of Emergency in Egypt: An Exception or Rule?’ (Atlantic Council, MENASource, 2018) 92 | I•CONnect-Clough Center liament with a two-thirds majority. In 2018, the different relevant questions of the pro- balance the potentially conflicting consti- Egypt experienced two declarations of the tection of civil freedoms and restrictions WXWLRQDO LQWHUHVW :LWK LWV UHJXODWLRQ WKH emergency status, and two extensions, all or powers of the state. Although not all the legislator considered that pharmacies pro- according to the given constitutional pro- interesting cases can be included in this re- vide an aspect of health care protected by cedures.8 Moreover, according to the last view, the most prominent ones are, keeping Article 18 of the Constitution, and provide declaration of the emergency status in Oc- in mind variation between the relevant sub- a viable balance of the constitutional inter- tober 2018, the Prime Minister issued a de- jects. Other cases can be found in the Further ests involved. These interests include the cision that obliges the General Prosecution Readings section. protection of the profession of pharmacists to defer specific cases to the State Security from the mere application of free market Emergency Courts (a type of exceptional 1. Basel El-Aalaily v. The Prime Minister self-regulation to guarantee that customers court) instead of the ordinary courts. These & Others: The Regulation of Pharmacies get the best possible quality and lower pric- cases included felonies harming the security Ownership es. Moreover, the contested regulation aimed of the government from outside the country at preventing illegitimate competition within or internally, and crimes related to unlawful The plaintiff challenged the constitution- this profession, and at keeping it away from assembly, explosives, disruption of transpor- ality of clause (30) of law no. 127 of 1955 the mere profitable commercial attitudes tation, a number of press- and opinion-relat- modified by law number 253 regulating the given its close relevance to health care and ed crimes, the violation of peace, supply and practice of the pharmacy profession. This the right to life. The Supreme Constitutional compulsory pricing, arms and munition, the constitutional issue originated from a contro- Court, then, held that the regulation of the preservation of places of worship, the viola- versy concerning the decision of the head of legislator in this context was reasonable and tion of labor liberties, facilities sabotage, the the central administration of pharmaceutical logically connected to the objective of the regulation of assembly rights and peaceful affairs declining the plaintiff’s request of is- law, and did not violate Articles 33 and 35, demonstration, and terrorism.9 suing a license to open a public pharmacy in regulating property rights. Regarding the al- El Shorouk City. The administration rejected leged breach of the right to labor protected :KHWKHUWKHFRQVWLWXWLRQDOGHILFLWOLHVLQWKH the issuance of the license, arguing that the by Articles 12 and 13 of the Constitution, constitutional text itself or in its application mentioned clause forbids that a pharmacist the Court also rejected the claim on the basis is debatable. One may say the real circum- be an owner or a partner of two pharmacies, that this right is not absolute, elaborating on stances can require an exceptional status that and this would have been the case. the dimension of the right to labor as a public rightfully lasts for more than six months. The plaintiff argued that these limitations duty. In the Court’s view, the legislator drew However, the problem is with the laws reg- breached the constitutional protection of pri- a reasonable balance between constitutional- ulating the emergency state themselves.10 As vate property rights, as it consisted of an un- ly relevant interests, such as the protection long as these laws adopt a broad and elastic reasonable restriction of these rights. More- of public health, the prevention of unfair formulation, this will give the President, the over, he claimed that the contested decision competition, and the guarantee of a real and Parliament, and the Executive huge discre- limited the social role of property rights by effective supervision of the owner on the ac- tionary power, and courts in charge of inter- endangering public service and putting pos- tivity of the pharmacy. preting and applying these laws will play a sible jobs at risk. limited role. This turns the emergency status The Court, accordingly, decided that the reg- into a normal status in the Egyptian constitu- The court rejected these arguments and up- ulation of the law did not violate the origin tional scenario, while the exercise of powers held the constitutionality of the addressed and essential core of the regulated rights, of constitutional adjudication paradoxically clause on the basis that property rights are and consequently upheld the contested leg- turns into an exceptional event. not absolute, and they have to be subject to islation.11 the evaluation of their social roles. The leg- III. CONSTITUTIONAL CASES islator has the discretionary power to regu- In our opinion, however, the Court could late these rights with the aim of guaranteeing have considered whether the current regula- The most important constitutional law cases social needs. It is within this discretionary tion had reached its goals during the years in Egypt 2018 vary in their fields between power that the legislator might and should of application, or even whether the contested 8 +LJPZPVUVM[OL7YLZPKLU[VM[OL(YHI9LW\ISPJVM,N`W[U\TILY VM`LHY ;OL6ɉJPHS.HaL[[L0ZZ\L YLWLH[LKK+LJLTILY W +LJPZPVUVM[OL7YLZPKLU[VM[OL(YHI9LW\ISPJVM,N`W[U\TILY VM`LHY ;OL6ɉJPHS.HaL[[L0ZZ\L YLWLH[LK(WYPS W +LJPZPVUVM[OL7YLZPKLU[VM[OL(YHI9LW\ISPJVM,N`W[U\TILY VM`LHY ;OL6ɉJPHS.HaL[[L0ZZ\L YLWLH[LKH1\UL W +LJPZPVUVM[OL7YLZPKLU[VM[OL(YHI9LW\ISPJVM,N`W[U\TILY VM`LHY ;OL6ɉJPHS.HaL[[L0ZZ\LYLWLH[LKH6J[VILY W 9 +LJPZPVUVM[OL7YPTL4PUPZ[LYU\TILYVM`LHY ;OL6ɉJPHS.HaL[[L0ZZ\LYLWLH[LKH6J[VILY W Penal Code number 58 of year 1937, https://manshurat.org/node/14677 10 See last year’s report: Eman Muhammad Rashwan, ‘Egypt: The State of Liberal Democracy’ in Richard Albert and others (eds), .SVIHS9L]PL^VM*VUZ[P[\- [PVUHS3H^ #^^^IJLK\JSV\NOJLU[LY% 11 ;OL6ɉJPHS.HaL[[L0ZZ\LYLWLH[LKP1\UL W 2018 Global Review of Constitutional Law | 93 regulation prevented a sole owner from be- by the Government as “Sovereignty Acts”, cisions delivered by the State Council and to ing de facto owner of more than two phar- and thus not subject to any judicial review.14 give immediate application to the decisions macies. This is highly doubtful from our delivered by the ordinary courts. point of view.12 Of course, any deficits in First, the Supreme Court rejected the appli- the competition in the pharmacy market in cants’ argument based on the fact that the The Supreme Court decided that both the Egypt cannot simply be overcome only by matter was res judicata. The Supreme Court ordinary and administrative courts have no legal means. However, whatever the most affirmed that the res judicata was limited to jurisdiction over the subject of the case. appropriate means to regulate the matter at the peculiar circumstances of the cases de- hand, we hold that the legitimacy of a given cided, and that the cases at hand involved a Although the very complicated details of law does not only depend on its “rationali- different, though similar, subject. Accord- the case entailed an extremely detailed de- ty” and “logic” “in the books” but also on its ingly, the Court affirmed that the challenged cision that could be a reference for many le- functionality “in action”. This could be food decisions of the State Council did not per se gal issues, the most important aspects of the for thought for the Supreme Court in its fu- preclude the application of the sovereign- Court’s decision may be listed as follows: (a) ture decisions. ty acts principle laid out by the Supreme The Court rejected the defendants’ argument Court, because the State Council decided the that there is no actual conflict between the 2. Tiran & Sanafeer Cases contested acts were not to be considered as two jurisdictions, as the administrative courts sovereignty acts but as administrative acts, already had delivered their decisions and ex- The Case of Tiran & Sanafeer Islands, con- VXEMHFWWRMXGLFLDOUHYLHZ:KHWKHUWKLVFRQ- hausted their jurisdiction over the case be- nected to the international treaty between sideration by the State Council was correct fore a new case was filed before the ordinary Egypt and Saudi Arabia on the Red Sea bor- or not is not the subject matter of this first courts. It decided that this simultaneous liti- derlines, started in 2016, when a number of case. gation does not generate a conflict that falls activists and lawyers took it to the judiciary. within the Supreme Court’s attribution; (b) 13 In 2018, two decisions were delivered by The second case was decided on the same Although the Parliament and the President the Supreme Court on this issue. day by the Supreme Court (The President of had approved the treaty after filing the case the Republic & Others v. Ali Ayoub [Lawyer] before the Supreme Constitutional Court, The first was in the case filed by The Pres- & Others). This decision, unlike the first and before this Court delivered its final de- ident of the Republic, The Prime Minister, one, tackled the question of whether the sub- cision suspending the earlier State Council The Head of the Parliament, The Minister ject matter of the case was falling into the decisions, this does not mean that the parties of Defense, The Minister of the Interior, and category of sovereignty acts or not. no longer benefit from the Supreme Court the Minister of Foreign Affairs v. Ali Ayoub deciding the case. First, because the non-ex- (Lawyer) & Others. The applicants filed this After the decision of the State Council ecution of the conflicting judicial decisions case as an “Execution Dispute” to ask for an courts—referred to earlier—an urgent case that are the subject matter of the conflict urgent suspension of the execution of a deci- was filed before an ordinary court (not an case is not a condition provided by law for sion delivered by the State Council. The con- administrative one, and therefore not under the Court to be able to rule over the conflict. stitutional challenge concerned the jurisdic- the jurisdiction of the State Council). The And second, even if a decision delivered by tion of the State Council over the dispute on action aimed at the urgent suspension of the an incompetent court was executed, this can the competence to sign and conclude the rel- execution of the decisions delivered by the only be considered a mere material barrier evant treaty. The State Council declared that State Council on the basis that the subject of in the way of the execution of the competent the contested acts were null and void, basing the dispute was a sovereign act that should court’s decision, and in such case this bar- the decision on Article 151 of the Egyptian be out of judicial review jurisdiction. The ur- rier should be removed; (c) The Court held Constitution, which prohibits the conclusion gent court decided to stop the execution and that the signature and conclusion of an in- of any treaty that entails the cession of parts considered the decisions of the State Council ternational treaty is a sovereign act and does of the state’s territory. as null and void. This decision was later up- not fall within any court’s jurisdiction; (d) held by the relevant court of appeals. Con- The Court held that it is the Parliament that The applicants alleged that the challenged sequently, the situation came into a conflict should decide whether a treaty is tackling decision by the State Council prevented the between two judicial decisions from two one of the State Sovereignty Rights and—in application of earlier decisions by the Su- different jurisdictions. In fact, the applicants the affirmative case—it is the Parliament preme Court, which categorized similar acts asked the Supreme Court to disregard the de- that is empowered to call a referendum to ’لشاف لكشب ةمزألا عم تلماعت ةموكحلا :ءاودلا يف قحلا ..”ربخ الو سح ال“ ةرازولاو ”ةحصلا“ بطاخت ةلدايصلا ةباقن ..ءاودلا قوس ىلع نولوتسي ”ةيلديصلا لسالسلا“ ةرطابأ‘ ,See for instance: Mohamed Fatouh 12 º;OLLTWLYVYZVM[OLWOHYTHJ`JOHPUZHYL[HRPUNV]LY[OLKY\NTHYRL[;OL7OHYTHJPZ[Z»:`UKPJH[LPZHKKYLZZPUN¸OLHS[O¹HUK[OLTPUPZ[Y`^P[OUVYLWSPLZº;OL right to medicine: The government dealt with the crisis in a failed manner’ ((OS4HZY #O[[WZ!^^^HOSTHZYUL^ZJVT %HJJLZZLK -LIY\HY` 13 For more about the previous developments and details of the issue, see: Eman Muhammad Rashwan (n 10) 85. 14 ;OL6ɉJPHS.HaL[[L0ZZ\L YLWLH[LKJ4HYJO W 94 | I•CONnect-Clough Center approve the international treaty (according 3. Justice Tahani El-Gebali v. The Pres- As a final note, it may be of interest that to Article 151 of the Constitution); (e) The ident of the Republic & Others: Supreme Justice El-Gebali was the only female judge Court held that after the final approval of Court Justice Reappointments among the Supreme Court justices. the treaty and its publication in The Official Gazette (what had already happened in the The 2012 Constitution reduced the number IV. LOOKING AHEAD case at hand), the review over the treaty be- of justices of the Supreme Court to 10 (keep- comes an exclusive jurisdiction for the Su- ing the most seniors on the bench). This The main constitutional question that awaits preme Court, its jurisdiction being limited to constitutional regulation was interpreted as Egypt in 2019 is whether the 2014 Constitu- 17 assessing the compatibility of the procedures revenge by the Islamists against the Court. tion will be amended, mainly to enable the of approving the treaty with the procedures One of the judges affected by this constitu- current President, Abdel Fattah El-Sisi, to be explained in the Constitution, and to the ad- tional regulation was justice El-Gebali, who re-elected for a third term. herence of its content to its principles, the filed the reported case. 15 same power it has over ordinary laws; (f) As expected,21 in January 2019, a coalition However, the Court finally refused to review The applicant requested the cancellation of in the Parliament submitted a constitution- the question on the competence, as it held the President’s decision dismissing her. She al amendment draft, including: (a) the ex- that the question was not relevant to the case based her request on the constitutional prin- tension of the presidential term from 4 to 6 at hand, which only concerned the conflict of ciple of judicial independence and on the years; (b) the recognition to the current Pres- 16 jurisdiction between two courts. prohibition of the judges’ dismissal, and on ident of an exception through a transitional the change of political circumstances, which clause that accords him the right to run for However, in our opinion, the Court disre- enabled the reappointment of most of the presidency for two more terms added to the garded a crucial deficit in procedural Egyp- judges who were dismissed in the same con- current term that is supposed to end in 2022, 18 tian law, which gives a person the opportuni- text. which gives him the chance to be a president ty to preclude the execution of a final judicial for twenty sequential years; (c) the conces- decision by filing an opposite case over the The Court rejected her application, arguing sion of additional presidential powers over same dispute before a different jurisdiction, that the applicants requested the cancella- the judiciary, including the appointment of even if he/she already knows that this sec- tion of the reappointment of a number of the the heads of judicial authorities, while the ond jurisdiction has no competence over the impeached judges; nonetheless, she had no State Council’s powers are severely reduced; case. In deciding these conflicts, the Court interest in such a decision. Moreover, the (d) the broadening of the powers of the mil- should have considered the intention of the Court rejected the request of reappointing itary, including “the protection of the Con- litigants by investigating possible cases of herself, as this matter falls into the discre- stitution and democracy, and preservation of 19 “abuses of law”. In fact, the core dispute at tionary power of the Court; finally, the the main pillars of the state and civil society, hand did not concern a conflict of jurisdic- Court noted that the 2014 Constitution ex- the acquired interests of the people and rights tion between administrative and ordinary plicitly preserved the legal consequences of and liberties of individuals;” (e) the broaden- courts, but the justiciability of the act itself. the 2012 Constitution for reasons related to ing of the jurisdiction of military courts; (f) In fact, the decision of the Supreme Court, the stability of law. Consequently, the 2014 the addition of the vacancy of the vice-pres- declaring the invalidity of both the ordinary Constitution chose the ways through which ident; (g) the creation of an upper chamber and administrative court decisions, supports it corrects the invalid consequences of the of the Parliament, named “Senate;” (h) the 20 this claim. 2012 Constitution. The reappointment of establishment of a 25% quota for women in the dismissed judges was not part of this and the house of representatives, and (i) the guar- so not addressed by the 2014 Constitution. antee of an “adequate” representation in the Parliament and municipalities for Christians, 15 For more about the Supreme Constitutional Court power over reviewing treaties, see article (151) of 2014 the Constitution. 16 ;OL6ɉJPHS.HaL[[L0ZZ\L YLWLH[LKJ4HYJO W The Supreme Constitutional Court in the Constitution Draft Between an Unreasoned - ’قوبسم ريغ ماقتنإو رربم ريغ ءادع نيب روتسدلا عورشم يف ايلعلا ةيروتسدلا ةمكحملا‘ ,راصن رباج 17 .(2012) نطولا ةديرج Hostility and Unprecedented Revenge .Almasry Alyoum (25 December 2012) < https://www ’ةاماحملاو نيضوفملا ةئيهو ىرخأ مكاحم ىلإ نودوعي ةاضق 7 :ةيروتسدلا ةمكحملا لسكشت‘ :For more about the dismissal details see 18 HSTHZY`HS`V\TJVTUL^ZKL[HPSZ % 19 (Y[PJSL VM[OL*VUZ[P[\[PVUZ[H[LK[OH[[OL:\WYLTL*VUZ[P[\[PVUHS*V\Y[ZOHSSILMVYTLKMYVTHJOPLMQ\Z[PJLHUK¸Z\ɉJPLU[¹U\TILYVM]PJLJOPLMZ;OPZ gives the decision whether the Court appoints new judges or not, and the selection of these judges to the Supreme Court itself. 20 ;OL6ɉJPHS.HaL[[L0ZZ\LYLWLH[LKP1\UL W 21‘Egypt Mulls Changing Constitution to Keep Sisi in Power’ (news 24, 2019) 2018 Global Review of Constitutional Law | 95 تائيهلا يف تانييعتلا»‘ ,people with disabilities, laborers, farmers, Randa Mustapha لالقتسا عم ةسائرلا ةمزأ يف ديدج لصف ..«ةيئاضقلا the youth, and Egyptians residing abroad -Appointments in the Judicial Au“ - ءاضقلا even though the latter minorities are not) guaranteed with a specific quota). Finally, thorities”. A New Chapter in the Crisis of the the constitutional amendment draft aims at Presidency with the Judicial Independence’ introducing an amendment to the amend- (Mada Masr, 2018) Shams El-Din El-Haggagi, Sarah El-Gham- تايلمع يف ءاضقلا رود ,di and Omar El-Naas The Role of the Judiciary in - ريتاسدلا عضو Constitution Making Processes (Arab Asso- ciation of Constitutional Law 2018) -Shorouk News (3 February 2019) 96 | I•CONnect-Clough Center Finland Milka Sormunen, Doctoral Candidate – University of Helsinki Laura Kirvesniemi, Doctoral Candidate – University of Helsinki Tuomas Ojanen, Professor of Constitutional Law – University of Helsinki I. INTRODUCTION II. MAJOR CONSTITUTIONAL DEVELOPMENTS This report discusses developments in Finn- ish constitutional law during 2018. It focus- In 2018, the Constitutional Law Commit- HV RQ WKH PRVW VLJQL¿FDQW GHYHORSPHQWV tee of Parliament, the primary authority of including a major reform of the healthcare constitutional interpretation and review of and social services system as well as reform legislation in Finland, issued 64 opinions of legislation related to civil and military on legislative proposals or other matters, FINLAND intelligence. In addition, important opin- including proposals for EU measures, con- ions by the Constitutional Law Commit- cerning their compatibility with the Con- tee of Parliament and major cases by the stitution of Finland as well as international highest courts—the Supreme Court and the human rights obligations binding upon Fin- Supreme Administrative Court—and other land.1 important bodies are discussed. In-depth reform of the healthcare and The intelligence legislation package, in- social services system cluding a constitutional amendment relat- ed to the package, continued to be one of In 2017, the Government submitted to Par- the most important themes on the Finnish liament extensive legislative proposals that scene of constitutional and political life in healthcare and social services should be run 2018. Another pressing topic was the re- by larger entities instead of municipalities, form of the Finnish healthcare and social which are currently responsible for provid- welfare system. Aside from their constitu- ing healthcare and social services. In addi- WLRQDOVLJQL¿FDQFHWKHSROLWLFDODQGVRFLH- tion, a central proposed change was related tal importance of these two topics must be to opening up more opportunities for the emphasized, not least because the Govern- private sector to provide healthcare and so- ment was already close to collapse due to cial services. The reform is needed because the failure of healthcare and social welfare of problems related to the current health- reform in 2015. Given also looming parlia- care system as well as the aging population. mentary elections and European Parliament :KLOH WKH &RQVWLWXWLRQDO /DZ &RPPLWWHH elections in the spring of 2019, 2018 was took the view that the reform is necessary, vibrant and intensive in Finnish constitu- LWDOVRLGHQWL¿HGDQXPEHURIFRQVWLWXWLRQ- tionalism and politics. al problems, especially insofar as the role of private actors within the so-called free- dom-of-choice model was concerned. In addition, the Committee took the view that the schedule of the entry into force of the 1 The Finnish system of constitutional review was discussed in more detail in the 2016 report on Finland, see Laura Kirvesniemi, Milka Sormunen and Tuomas Ojanen, ‘Developments in Finnish Constitutional Law: The Year 2016 in Review’, in Richard Albert, David Landau, Pietro Faraguna and Šimon Drugda (eds.), ;OL0*65ULJ[*SV\NO*LU[LY .SVIHS9L]PL^VM*VUZ[P[\[PVUHS3H^ (Clough Center for the Study of Constitutional Democracy 2017) 2018 Global Review of Constitutional Law | 97 reform jeopardized everyone’s right to ad- tober 2018. As 2018 came to an end, the an act due to reasons of conscience based equate social, health and medical services.2 proposed legislation on civil and military on their religious beliefs. Because the act intelligence and on the oversight of intel- FRQÀLFWHG ZLWK WKH &RQVWLWXWLRQ LW ZDV After the opinion of the Committee, the ligence gathering was still pending before passed according to the procedure for con- legislative proposals on the reform were Parliament. stitutional enactment to assume the status amended, and the Government submitted of the so-called exceptive enactment. Ex- its new proposals to the Parliament in 2018. Previously, section 10 of the Constitution ceptive enactments constitute a traditional In 2018, the Constitutional Law Committee provided that the secrecy of correspon- peculiarity5 of the Finnish constitutional gave a new opinion on the reform in which GHQFH WHOHSKRQ\ DQG RWKHU FRQ¿GHQWLDO system as they allow the adoption of leg- it continued to stress the importance of communications was inviolable. Before islation that in substance derogates from paying attention to equal treatment of the the amendment, national security was not the Constitution without amending the text inhabitants of municipalities in different included in the grounds for limiting the thereof, subject to the proviso that such leg- parts of the country and their factual access VHFUHF\ RI FRQ¿GHQWLDO FRPPXQLFDWLRQV islation is approved in the procedure appli- to services necessary for the realisation of After the amendment, section 10 provides cable for constitutional amendments. Since their fundamental rights. The Constitution- that provisions on limitations to the se- its adoption in the 1980s, the act exempting al Law Committee took the view that the FUHF\ RI FRQ¿GHQWLDO FRPPXQLFDWLRQV WKDW -HKRYDK¶V:LWQHVVHVKDVFRQWLQXRXVO\EHHQ proposed legislation was still incompati- are necessary for the purpose of gathering subject to criticism by, e.g., international ble with the Constitution in several ways.3 intelligence on military operations or oth- human rights treaty bodies. Therefore, the Social and Health Committee er such activities that pose a serious threat of Parliament amended the bills, and now to national security can be laid down by an In the case before the Helsinki Court of Ap- they are again pending before the Constitu- ordinary act. The threat directed at national peal (23.2.2018 no. 108226), the defendant, tional Law Committee, which is expected to security must be serious, and secondly, it is ZKRZDVQRWD-HKRYDK¶V:LWQHVVKDGEHHQ JLYHLWV¿QDORSLQLRQRQWKHFRPSDWLELOLW\RI required that interfering with the secrecy of ordered to perform his civil service. He had the proposed legislation in February 2019. communications must be necessary for the refused and claimed that major reasons of It seems uncertain whether the reform will purpose of intelligence gathering. conscience prohibited him from performing take place before the parliamentary elec- military or civil service. The District Court tions of April 2019. III. CONSTITUTIONAL CASES sentenced him to imprisonment. Constitutional amendment concerning Helsinki Court of Appeal prohibited Contrary to the District Court, the Court of secrecy of confidential communications for discrimination in military service Appeal found that sentencing the defendant the purpose of allowing the enactment of would constitute a violation of section 6 of civil and military intelligence legislation Section 127 of the Constitution of Finland the Constitution, according to which every- states that every Finnish citizen is obligat- one is equal before the law and no one shall, In 2018, the Constitution of Finland was ed to participate or assist in national de- without an acceptable reason, be treated dif- DPHQGHGIRUWKH¿UVWWLPHLQLWVKLVWRU\DF- fence, as provided by an act. Provisions ferently from other persons on the grounds cording to the urgent procedure for consti- on the right to exemption, on grounds of of sex, age, origin, language, religion, con- tutional enactment in which an amendment conscience, from participation in military viction, opinion, health, disability or other is passed without acceptance from two sub- national defence are laid down by an act. reason that concerns his or her person. 4 sequent Parliaments. The amendment was It follows from current legislation that all adopted for the purpose of allowing the adult men are liable to perform either mili- In examining the question of conscription enactment of legislation on civil and mili- tary or civil service. The sentence for refus- and alleged discrimination, the Court of Ap- tary intelligence, including their legal and al is 173 days of imprisonment. peal made reference to several cases of the parliamentary oversight, before the end of European Court of Human Rights and the this Government term. The constitutional 6LQFH KRZHYHU-HKRYDK¶V:LWQHVVHV Human Rights Council. The Court found amendment entered into force on 15 Oc- have been exempted from conscription by WKDW VLQFH -HKRYDK¶V :LWQHVVHV KDG EHHQ 2 Constitutional Law Committee Opinion 26/2017; Milka Sormunen, Laura Kirvesniemi and Tuomas Ojanen, ‘Finland: The State of Liberal Democracy’, in Richard Albert, David Landau, Pietro Faraguna and Šimon Drugda (eds.), ;OL0*65ULJ[*SV\NO*LU[LY .SVIHS9L]PL^VM*VUZ[P[\[PVUHS3H^ (Clough Center for the Study of Constitutional Democracy 2018), 90–91 3 Constitutional Law Committee Opinion 15/2018 4 For more information on the normal and urgent procedures for constitutional enactment in Finland, see previous report concerning Finland, supra note 2, 90 5 )L[^LLU L_JLW[P]LLUHJ[TLU[Z^LYLHKVW[LK^P[O[OLV\[JVTL[OH[ZVTLJVUZ[P[\[PVUHSWYV]PZPVUZHJ[\HSS`ILJHTL¸LTW[`ZOLSSZ¹HZ they were hollowed out by numerous exceptive enactments. Since the reform of the constitutional system of 1995, the constitutional doctrine has been that L_JLW[P]LLUHJ[TLU[ZZOV\SKVUS`IL\ZLKMVYPUJVYWVYH[PUNPU[LYUH[PVUHS[YLH[PLZ[OH[JVUÅPJ[^P[O[OL*VUZ[P[\[PVU*VUZLX\LU[S`[OLPY\ZLOHZKYHZ[PJHSS` diminished. In addition, the new Constitution of 2000 introduced a material limit for exceptive enactments by requiring that the derogation from the Constitu- [PVUT\Z[YLTHPU¸SPTP[LK¹ 98 | I•CONnect-Clough Center exempted from conscription due to reasons rights such as freedom of speech and free- compensations amounted to 184 000 euros. of conscience, sentencing the defendant dom of association. ZRXOG EH LQ HYLGHQW FRQÀLFW ZLWK VHFWLRQ Supreme Court on the freedom of speech 6 of the Constitution, when interpreted in 7KHUXOLQJLVQRW\HW¿QDOEHFDXVHWKH1RU- and right to privacy the light of Finland’s international human dic Resistance Movement has appealed the rights obligations. According to section 106 decision in the Supreme Court. The ruling In a case before the Supreme Court of the Constitution, if the application of an ZLOOEHFRPH¿QDOLIWKH6XSUHPH&RXUWGRHV (KKO:2018:51), the defendant had posted DFW ZRXOG EH LQ HYLGHQW FRQÀLFW ZLWK WKH not grant leave to appeal. in an open Facebook group a news article Constitution, the court of law shall give pri- about a person who had four months earlier macy to the provision of the Constitution. Helsinki District Court on hate speech online been sentenced to imprisonment for aggra- Consequently, the Court of Appeal rejected vated sexual abuse of a child. The post had the charges. The fact that the act that ex- In what can be considered an exceptional included a photo of that person, taken from HPSWHG-HKRYDK¶V:LWQHVVHVIURPFRQVFULS- case, the Helsinki District Court found the WKHSHUVRQ¶V)DFHERRNSUR¿OH7KH6XSUHPH tion had been enacted in the procedure for owner of a racist media website, MV-me- Court held that the defendant was guilty of constitutional enactment had no bearing on dia, guilty of 16 different crimes related to dissemination of information violating per- WKH&RXUW¶V¿QGLQJ,WYRWHGRQWKHRXWFRPH the activities of the site. In addition, two sonal privacy. of the case. other persons involved in the activities of the website were found guilty of some of The Supreme Court referred to several cas- In September 2018, the Government submit- these crimes. The crimes included, among es of the European Court of Human Rights ted to Parliament a proposal to repeal the act others, ethnic agitation and several aggra- and the Court of Justice of the European WKDWH[HPSWV-HKRYDK¶V:LWQHVVHVIURPFRQ- vated defamations. 8QLRQLQH[DPLQLQJWKHDOOHJHGFRQÀLFWEH- 6 scription. The bill was still pending before The District Court noted that MV-media tween the freedom of speech and the right Parliament when 2018 came to an end. had been publishing and distributing rac- to privacy. The Court concluded that the de- ist, insulting and defamatory content for fendant had disseminated information con- Turku Court of Appeal upheld ban on several years. The published content had cerning the private life of another person so Nordic Resistance Movement in Finland included false information and disparaging that the act had been conducive to causing insinuations as well as issues related to the that person damage and suffering and sub- On 28 September 2018, Turku Court of Ap- private lives of the plaintiffs. The District MHFWLQJWKDWSHUVRQWRFRQWHPSW:KLOHWKH peal upheld the decision of the Pirkanmaa Court held that from the point of view of Court found that sexual crimes were serious District Court to ban the Finnish branch freedom of speech, publishing the material and as such the defendant’s Facebook post of the neo-Nazi Nordic Resistance Move- could not be defended for public interest or was a part of the consideration of a matter 7 ment. Like the District Court, the Court of any other acceptable cause. The defama- of general importance, it also found that the Appeal found that the activities of the Nor- tion was so severe that limiting freedom combination of the link, a personal photo dic Resistance Movement ran counter to ex- RIH[SUHVVLRQZDVMXVWL¿HG7KHSXEOLVKHG of the plaintiff and the fact that the news isting laws and good practice. Consequent- content had disparaged the plaintiffs in an article had been published several months O\DZDUQLQJZRXOGKDYHEHHQLQVXI¿FLHQW extremely offensive manner, and the motive before the Facebook post clearly exceeded and a ban was necessary. behind publishing the writings had been to what could be deemed acceptable. destroy their reputation. The Court of Appeal based its decision part- Supreme Administrative Court on the right ly on the fact that racial discrimination has The District Court considered important that to be forgotten a central role in the activities of the Nor- the owner of MV-media was the owner, ed- dic Resistance Movement. The Court also itor-in-chief and overall person responsible The Supreme Administrative Court as- noted that the movement idealizes fascism, for the content on the website. According to sessed in KHO 2018:112 whether Google is anti-Semitic and aims to infringe on the the Court, the owner decided on all content had to remove from search results URL rights of sexual minorities. The Court stated that had been published on the site regardless links containing personal information con- that the movement has embraced violence of who had originally written the material. cerning a man convicted of murder. Infor- and criminal offences committed in the mation concerning the man was also ac- name of the organisation and its values. The The owner received a jail sentence of one cessible via Google searches that did not Court therefore ruled that the movement year and ten months. The two other persons contain his name. The man had been found does not enjoy protection of constitutional received suspended sentences. Together, the to have diminished responsibility for the 6 Government Bill 139/2018 7 :LLWYL]PV\ZYLWVY[JVUJLYUPUN-PUSHUKZ\WYHUV[L "ZLLHSZVO[[WZ!`SLÄ\\[PZL[VZHZ[VUL^ZIHUFVUFULVUHaPFNYV\WF\WOLSKFI`F[\YR\FHWWLHSF court/10429858, last accessed 15 February 2019 2018 Global Review of Constitutional Law | 99 murder he had committed, meaning that he The mandate of the Tribunal is to give legal workload among social workers responsi- had a mental condition and so was not ful- protection to anyone who considers that they ble for children’s affairs. A large number O\ OLDEOH7KH PDQ KDG ¿UVW DVNHG *RRJOH have been discriminated against. The Tribu- of client families under the responsibility to remove his information but Google had nal may handle cases related to both private of social workers was preventing or at least refused. After this, the Finnish Data Protec- activities and public administrative and com- hampering the supervision of substitute care tion Ombudsman put forward a request for mercial activities.9 SODFHV$FFRUGLQJWRWKHLQVSHFWLRQ¿QGLQJV removing the data. and reports received, the legal right of chil- In a case concerning a rejected loan (Case dren placed in care to a personal discussion In what can be considered an important No. 216/2017, Decision of 21 March 2018), with their own social workers had not been precedent, the Supreme Administrative the Non-discrimination and Equality Tribu- VDWLV¿HGLQHYHU\FDVH7KHULJKWRIDFKLOG Court considered that the data in ques- nal took a stand on the use of an automated in substitute care to obtain the necessary tion was sensitive information. The Court scoring system on loan decisions issued by care had been seriously compromised.10 referred to the Google Spain case of the a credit company. The applicant, a Finn- Court of Justice of the EU (C-131/12) on ish-speaking man in his thirties, complained Constitutional Law Committee on the the “right to be forgotten” online. In that that the use of the automated system consti- constitutional environmental right case, the CJEU ruled that when consider- tuted prohibited discrimination because the ing removal of links from search results, a decision had been based on factors such as The Constitution of Finland contains a con- fair balance should be sought between the his place of residence, sex, age and mother stitutional environmental right. According legitimate interest of Internet users and the language. to section 20 titled “Responsibility for the data subject’s right to respect for private life environment”, nature and its biodiversity, (article 7 of the EU Charter of Fundamental The Non-discrimination and Equality Tri- the environment and national heritage are Rights) and right to protection of personal bunal held that using the automated scoring the responsibility of everyone. Public au- data (article 8 of the Charter). As a general system had led to a situation where statis- thorities shall endeavour to guarantee ev- rule, the data subject’s rights override the tical information concerning other persons eryone’s right to a healthy environment and interest of Internet users, but the balance was used as a basis for making assumptions SRVVLEO\ LQÀXHQFH GHFLVLRQV WKDW FRQFHUQ may depend on the nature of the informa- about the applicant. The factors used in the their own living environment. Section 20 is tion in question and its sensitivity for the assessment were prohibited grounds for dis- exceptional in that it is the only provision in data subject’s private life and on the interest crimination, and using these factors had led the Constitution providing a responsibility. of the public in having that information, an the credit company to assess the eligibility of interest which may vary, in particular, ac- the applicant more negatively than it would In its Opinion 55/2018, the Constitutional cording to the role played by the data sub- have based on information related to the ap- Law Committee assessed a legislative pro- ject in public life. plicant personally. The use of the automated SRVDO DFFRUGLQJ WR ZKLFK FRDO¿UHG SRZHU scoring system was not proportionate and and heating generation would be banned as of According to the Supreme Administrative therefore constituted discrimination. 1 May 2029.11 The coal ban is part of Fin- Court, even though the crime in question land’s National Energy and Climate Strategy was serious, the man’s right to privacy and The Office of the Parliamentary Ombudsman for 2030. In the proposal, the Government personal data protection outweighed public on the rights of the child in substitute care referred to the need to ban coal in order to interest in receiving information.8 reach the aims of the Paris Agreement and An unannounced inspection to a children’s to combat climate change. According to the Non-discrimination and Equality Tribunal KRPH E\ WKH 2I¿FH RI WKH 3DUOLDPHQWDU\ *RYHUQPHQWELOOFRDOZRXOGEHWKH¿UVWIRV- on the use of automated scoring system in 2PEXGVPDQLGHQWL¿HGDQXPEHURIPDMRU sil fuel to be banned, with the overall goal of issuing loan decisions GH¿FLHQFLHVLQWKHWUHDWPHQWRIFKLOGUHQDQG Finland gradually stopping use of fossil fuels WKH XVH RI UHVWULFWLRQV 7KH 2I¿FH DVNHG in energy generation and moving towards an The National Non-discrimination and Equal- municipalities and the regional supervisor emission-free energy system. It is estimated ity Tribunal is an impartial and independent to report on the reasons that had led to the that the coal ban would cut carbon dioxide judicial body supervising compliance with the violations. emissions in Finland by approximately one Non-discrimination Act as well as with the The reports indicated a shortage of social million tons a year. $FW RQ (TXDOLW\ EHWZHHQ :RPHQ DQG 0HQ service resources and an unreasonable 8 O[[WZ!`SLÄ\\[PZL[VZHZ[VUL^ZÄUUPZOFJV\Y[FPZZ\LZFWYLJLKLU[FYPNO[F[VFILFMVYNV[[LUFKLJPZPVUFMVYFNVVNSLF[VFYLTV]LFKH[H SHZ[HJJLZZLK February 2019 9 O[[WZ!^^^`][S[RÄLUPUKL_O[TSSHZ[HJJLZZLK -LIY\HY` 10 -PUSHUK6ɉJLVM[OL7HYSPHTLU[HY`6TI\KZTHU7YLZZYLSLHZL6J[VILY O[[WZ!^^^VPRL\ZHZPHTPLZÄLUF.)ZVZPHHSP[`VU[LRPQVPKLURVO[\\[VU[`V[H- akka-vaarantaa-sijaishuollon-valvonnan-ja-kodin-ulkopuolelle-sijoitetun-lapsen-oikeuksien-toteutumisen, last accessed 10 February 2019 11 Government Bill 200/2018; Constitutional Law Committee, Opinion 55/2018 100 | I•CONnect-Clough Center The Constitutional Law Committee as- The new act ensures that two women as a anti-immigration movements. Given also sessed the proposal from the perspective same-sex couple are legally recognised as people’s attitudes towards immigration in of equality (section 6 of the Constitution), mothers from the moment their child is the aftermath of the suspected crimes in protection of property (section 15) and the born. If the child is born as a result of a Oulu,14 as well as subsequent plans of the freedom to engage in commercial activity fertility treatment, both women can be rec- Government to review international human (section 18). The Committee held that the ognised as mothers before birth. The Mater- rights obligations binding upon Finland,15 it aims of the proposal were well in accor- nity Act does not, however, enable a child can’t be ruled out that such developments dance with section 20 on the constitutional to have more than two legal parents. may mutate into legislative proposals and environmental right since the proposal aims other measures that give rise to serious hu- at protecting the climate and the environ- Government bill prohibiting child marriages man rights concerns during 2019. ment. In assessing the proportionality of the limitation of the freedom to engage in com- The Government submitted a legislative V. FURTHER READING mercial activity, the Committee took the proposal amending the Marriage Act. The view that as remarkable as the limitations legislative proposal aims at prohibiting per- Tuomas Ojanen, ‘The Charter of Funda- may be, they have to be balanced with the sons under 18 years of age to marry, which mental Rights as Apprehended by Judges aims of the limitation that have to be con- has previously been possible upon a dispen- in Europe: FINLAND’, in Laurence Bur- sidered especially weighty. Similarly, the sation granted by the Ministry of Justice for gorgue-Larsen (ed.), La charte des droits Committee held that the proposed limita- special reasons.12 This possibility has been fondamentaux saisie par les juges en Eu- tions to the protection of property were both criticized, inter alia, by the Ombudsman for rope – The Charter of Fundamental Rights acceptable and proportionate, especially Children.13 as Apprehended by Judges in Europe (Edi- when taking into account section 20 of the tions A. Pedone, 2017) Constitution. Consequently, the Committee IV. LOOKING AHEAD held that the proposal could be passed in the Tuomas Ojanen, ‘Rights-Based Review ordinary legislative procedure. In early 2019, Finland is preparing for two of Electronic Surveillance after Digital upcoming elections: parliamentary elec- Rights Ireland and Schrems in the Europe- New Maternity Act tions in April 2019 and European Parlia- an Union’, in David Cole, Federico Fabbri- ment elections in May 2019. Year 2019 is ni and Stephen Schulhofer (eds.), Surveil- The Parliament adopted an entirely new act also important from the perspective of in- lance, Privacy and Transatlantic Relations called the Maternity Act (253/2018) con- ternational collaboration. Finland holds the (Hart Publishing, 2017) cerning legal recognition of motherhood. presidency of the Committee of Ministers The act was adopted in April 2018, and of the Council of Europe until 17 May 2019. Tuomas Ojanen, ‘Human Rights in Nordic it will enter into force in April 2019. The Finland’s third EU Presidency period of six Constitutions and Impact of International Government bill was based on a citizen’s months begins on 1 July 2019, and the na- Obligations’, in Helle Krunke and Björg initiative. tional presidency programme regarding the Thorarensen (eds.), The Nordic Consti- presidency will be published in June 2019. tutions – A Comparative and Contextual Under current legislation, the partner not Study (Hart Publishing, 2018) giving birth to the child is required to adopt It seems very likely that one of the major the child in order to be recognised as a par- constitutional issues in 2019 will continue ent, which is a procedure that can be consid- to be social welfare and healthcare reform. ered both cumbersome and discriminatory. In addition, questions related to the urgency The current situation is problematic from of preventing climate change are likely to the perspective of the rights of the child, affect legislative proposals. e.g., if the mother giving birth dies before the adoption procedure has been completed. In recent years, the Nordic countries, in- The child would then have no legal parents. cluding Finland, have also witnessed the rise of populism, including neo-Nazi and 12 Government Bill 211/2018 13 -PUSHUK6TI\KZTHUMVY*OPSKYLU7YLZZYLSLHZL1\S` H]HPSHISLH[O[[W!SHWZPHZPHÄ[H[HTPLS[H[PLKV[[LL[[PLKV[[LL[ SHWZPHZPH]HS[\\[L[[\SHZ[LUH]P- oliitot-kiellettava/, last accessed 10 February 2019 14 O[[WZ!`SLÄ\\[PZL[VZHZ[VUL^ZTPUPZ[LYF\YNLZFKLWVY[H[PVUFSVZZFVMFJP[PaLUZOPWFMVYFPTTPNYHU[FZL_FVɈLUKLYZ SHZ[HJJLZZLK -LIY\HY` 15 O[[W!UL^ZUV^ÄUSHUKÄWVSP[PJZNV]LYUTLU[L_HTPUPUNPU[LYUH[PVUHS[YLH[`VISPNH[PVUZPUSPNO[VMJOPSKHI\ZLHSSLNH[PVUZSHZ[HJJLZZLK -LIY\HY` 2018 Global Review of Constitutional Law | 101 France Corinne Luquiens, Member of the Constitutional Council Nefeli Lefkopoulou, PhD Candidate at Sciences Po Law School Eirini Tsoumani, PhD Candidate at Sciences Po Law School Guillaume Tusseau, Professor of Public Law at Sciences Po Law School I. INTRODUCTION political action. Several ministers, among whom many important ones, decided to re- There was something special about 2018 sign in September, and an important social because it was the 60th anniversary of the movement, the “Yellow Vests” protest, led the Government to suspend several of the FRANCE Constitution of the Fifth Republic. It was also supposed to be the year of a major reforms it had planned. Thus, 2018 was a constitutional change. Among other things, tricky year for French constitutionalism, and the number of MPs as well as the number so it was a busy year for the Constitutional of terms they could serve were supposed to Council. Indeed, it continued controlling the have been reduced. The parliamentary pro- results of the 2017 elections for the National cedure should have been modernised in or- Assembly and the Senate. Among the deci- der to allow for a faster adoption of statutes sions it rendered regarding constitutional and for the improvement of Parliament’s review, special emphasis should be placed functions of control and assessment of pub- first on a ruling whereby the Council gave lic policies. The powers of the High Council new life to the maxim of the Republic, “Lib- of the Judiciary should have been increased erty, Equality, Fraternity,” and second on one in order for judicial independence to be about personal data protection, which seems more effectively secured. Finally, regarding to be a major source of concern for constitu- the Constitutional Council itself, the amend- tional judges everywhere in the world, and ment of the Constitution should have put an for years to come. end to the membership of former Presidents of the Republic. Depending on the topic, a II. MAJOR CONSTITUTIONAL constitutional bill, an organic bill and an or- DEVELOPMENTS dinary bill were tabled. However the Pres- ident had to postpone this reform, which The first major ruling was Decision No. was discussed during the summer, because 2018-717/718 QPC, in which the Constitu- of the “Benalla scandal.” Indeed, Alexandre tional Council gave full effect to the maxim Benalla, one of his aides, was suspected of of the Republic. Until then, only Liberty and committing violence and impersonating a Equality had been clearly used as parameters police officer. Because it was also suspected for assessing the validity of statutes. Frater- that there were attempts from the Executive nity was ordinarily regarded as too vague to to cover up the affair, the standing commit- allow proper jurisdictional control. The case tees of both the National Assembly and the involved two persons who had been convict- Senate decided to investigate this case and ed for helping migrants to stay and circulate review the general administrative organisa- on French territory. Pursuant to sections L. tion of the presidency. Although it is difficult 622-1 and L. 622-4 of the Code for Entry to delineate what powers the Parliament and and Residence of Foreigners and Right of the Judiciary, respectively, have to shed light Asylum, facilitating the irregular entry, cir- on these facts, this was the first of a series of culation and stay of foreigners is an offence. events that complicated President Macron’s The only persons who could benefit from an 102 | I•CONnect-Clough Center exemption are close relatives of the foreign- idea of a “negative legislator,” and second taxpayers. More generally, illiberal forms of er and other persons whose help “has not by choosing a new interpretation for the re- democracy in Europe are being reinforced, given rise to any direct or indirect compen- maining provisions, thus engrafting its own especially when issues regarding immigra- sation and consisted in providing legal ad- understanding of the law onto the pre-exist- tion are at stake. In this context, since it is vice or catering, accommodation or medical ing text. The Council considered that less based on the value of solidarity, the Coun- care to ensure dignified conditions of life to than six months should be given to Parlia- cil’s decision may be appealing to those who the foreigner, or any other help to preserve ment in order to remedy these defects. In the believe that another form of constitutional- her dignity or bodily integrity.” The two ac- meantime, the Council decided to establish ism is possible.3 tivists contended that their exclusion from transitory norms. These made it obligatory these categories violated the principle of to consider that penal exemptions should Another important ruling was Decision No. fraternity, which had until then been some- apply to all humanitarian acts facilitating 2018-765 DC on the act on the protection of how under-enforced.1 The Constitutional the circulation and stay of (even irregular) personal data. In 1978, France was among Council accepted the argument, thus clearly foreigners as opposed to their entry on the the first countries to pass laws on the protec- making the three values of the Republican territory, which results in the direct creation tion of personal data. It created a new inde- maxim a parameter of constitutional review. of an illegal situation. The delay given to pendent administrative authority, the Nation- According to the Council, although no con- the legislator may seem to have been shorter al Commission for Information Technology stitutional rule confers any right to enter na- than usual. That can be explained by the fact and Liberties (CNIL), which is in charge of tional territory and stay on it, “Pursuant to that when the decision was adopted, Parlia- enforcing the protection of citizens in that Section 2 of the Constitution: ‘The maxim of ment was already discussing a bill on immi- area. Since then, the European Union has the Republic shall be “Liberty, Equality, Fra- gration and asylum. An amendment to meet also adopted regulations to that end. On 27 ternity.”’ The Constitution also refers, in its the Council’s demands was thus quite easy April 2016, a regulation on the protection of Preamble and in Section 72-3, to the ‘com- to introduce. The legislator rapidly obliged, natural persons with regard to the processing mon ideal of liberty, equality and fraternity.’ and the Council confirmed the validity of the of personal data (General Data Protection It follows that fraternity is a principle of con- new legislation.2 The exemption in Section Regulation) and a directive protecting per- stitutional value. From [this] principle fol- 622-4 now includes “any natural or legal sonal data when used by the police and crim- lows the freedom to help another person for person whose action has not given rise to any inal justice authorities were adopted. The a humanitarian purpose, irrespective of the direct or indirect compensation and has con- French Parliament passed a law adapting the legality of her presence on the national ter- sisted in providing legal, linguistic or social domestic legislation to this regulation and ritory.” This principle needs to be balanced advice or support, or any other aid provided transposing the directive. This bill was re- against others, such as the protection of pub- for an exclusively humanitarian purpose.” ferred to the Constitutional Council by sena- lic order. The principle of fraternity imme- This ruling cancelling what activists called tors who criticised several of its provisions. diately proved efficient. First, the Council the “offense of solidarity” was highly com- One of the main interests of this decision struck down provisions of Section L. 622-4. PHQWHG XSRQ HYHQ LQ WKH SUHVV :KHUHDV lies in the type of control the Constitutional Because they forbade any humanitarian form some vehemently criticised the Council for Council exercises on this sort of legislation. of assistance, they did not strike an adequate using vague principles to usurp Parliament’s Pursuant to Section 88-1 of the Constitution, balance between fraternity and public order. power to define the immigration policy, oth- Parliament has an obligation to transpose Secondly, the Council extended the scope of ers praised the judges for reviving the prom- directives into domestic law or adapt them the penal exemption through a reserve of in- ise of French Constitutionalism. In terms of to European regulation. The Constitutional terpretation. Under the Constitution, it could normative creation, one might consider that Council is responsible for making sure that not but be interpreted as including every act this ruling is no more nor less activist than this requirement is fulfilled, except if the Eu- of humanitarian assistance. Once it was read many others. It simply makes more explicit, ropean rules conflict with a principle inher- this way, the said provisions could not be from a realist viewpoint, the extent to which ent to France’s constitutional identity, which criticised for violating the more traditional any constitutional court necessarily contrib- would require a former modification of the constitutional principles of criminal law (le- utes to crafting the parameter, the object Constitution. gality of offences and sanctions, necessity and the results of its control. The ruling can and proportionality of sanctions). Both hold- moreover be interpreted as an act of judicial The Council decided that it should not con- ings led the Council to exercise legislative communication. The Council had been crit- trol domestic legislative provisions that power, first by quashing a legislative provi- icised slightly before for favouring funda- merely draw the necessary consequences of sion, thereby acting according to Kelsen’s mental rights that mostly benefit firms and the unconditional and precise provisions of a 1 Michel Borgetto, 3HUV[PVUKLMYH[LYUP[tLUKYVP[W\ISPJMYHUsHPZ3LWHZZtSLWYtZLU[L[S»H]LUPYKLSHZVSPKHYP[t, (LGDJ 1993). 2 Decision no. 2018-770 DC of 6 September 2018,3VPWV\Y\ULPTTPNYH[PVUTHz[YPZtL\UKYVP[K»HZPSLLɈLJ[PML[\ULPU[tNYH[PVUYt\ZZPL 3 For further details, see Guillaume Tusseau, “Le Conseil Constitutionnel et le ‘délit de solidarité’: de la consécration activiste d’une norme constitutionnelle ZV\ZHWWSPX\tLnSHYt]tSH[PVUK»\ULZ[YH[tNPLJVU[YHPU[LKLJVTT\UPJH[PVUQ\YPKPJ[PVUULSSL&¹9L]\LJYP[PX\LKLKYVP[PU[LYUH[PVUHSWYP]t, 2019, forthcoming. 2018 Global Review of Constitutional Law | 103 directive, as this would imply that it would It was also important for the Council to check III. CONSTITUTIONAL CASES rule on the directive itself. It only ensures whether such a measure threatened rights that no domestic provision is obviously in- and freedoms. First, the Council considered 1. Decision No. 2018-763 DC – Student compatible with the directive. However, it that using an algorithm to take an adminis- Guidance and Achievement Act exercises full control on the provisions for trative decision was only permitted based on which the directive allows for a more flex- rules and criteria defined in advance. It could In Decision No. 2018-763 DC, the act re- ible implementation. If there is any doubt not authorise the administration to adopt de- ferred to the Constitutional Council provid- about the compatibility of domestic law with cisions that would be deprived of any legal ed that enrollment in undergraduate courses a directive, the Council cannot refer it to the basis. The Council did not find it incompre- taught in public higher educational estab- European Union Court of Justice because hensible either. Regarding the guarantees lishments were tied to a nationwide pre-en- of the limited time frame it has to make its provided, the Council highlighted that an rollment procedure which was administered decisions. It belongs to the administrative or algorithm could be used only under certain via the “Parcoursup” platform. The Constitu- judicial courts to review this question and, if conditions, some of them explicitly stated by tional Council dismissed the claim that these needed, refer the case to the ECJ. the law, others emphasized by the decision provisions breached the principle of equal itself. First, according to provisions of the access to education because they would al- European regulations are normally directly Code on the relationship between the pub- low for a differential treatment of candidates applicable and require an adaptation of the lic and the administration, any administra- in the same group, depending on the insti- domestic legislation. That is why until now tive decision must mention the fact that it is tution. In particular, it determined that by the Council has only checked whether leg- based on an algorithm, whose main charac- allowing those establishments to take into islative provisions were in accordance with teristics must be disclosed, on his request, to account course characteristics, which are the regulation. But, unlike this rule, the reg- the person concerned. Since those elements in any case regulated by a “national frame- ulation on data protection gives Member cannot be communicated when they could work” laid down by ministerial order, and States flexibility in more than fifty areas. imperil national defense or State security the candidates’ prior experience and skills, in The Council thus decided to apply the prin- interests, no administrative decision can be order, where appropriate, to make their en- ciples that apply to directives. Section 21 of exclusively based on an algorithm in such rollment conditional on their acceptance of the act, which extends the cases in which a matters. Secondly, since any administra- support and training arrangements, the leg- decision having legal effects with regard to a tive decision was subject to administrative islature has adopted objective and rational person, or significantly affecting her, may be review, the Council stressed that, in such a criteria, the content of which it has spelled based on an automated processing of person- case, the administration should rule without out in sufficient detail. The same is true of al data—a so-called “algorithm”—is among deciding only on the basis of the algorithm, the legislature’s intention to require that en- the most interesting ones. Section 22 of the which would then make it obligatory to scru- rollments be approved with due regard to the European regulation gave Member States tinize the situation with conventional means. extent to which the candidate’s training plan, flexibility to determine the appropriate mea- Furthermore, if the case is submitted to a experience and prior training are compatible sures to safeguard rights and freedoms and court, the judge may ask the administration with the key aspects of the course to be tak- the legitimate interests of the persons con- the main characteristics of the algorithm to en. The Constitutional Council also declared cerned. The applicants stressed that through control its compliance with legal prescrip- that the scope of the information provided such a process, the administration would tions. Thirdly, the European regulation, as to candidates during the pre-enrollment pro- renounce its power of assessment over in- well as the domestic legislation, excluded cedure did not undermine the guarantee of dividual situations, especially in the case of the use of algorithms for sensitive personal academic independence, a fundamental prin- “self-learning” algorithms, which can revise data that refer to an alleged racial or ethnic ciple enshrined in the laws of the Republic. the rules they apply. This would infringe on origin; political opinions; religious or phil- the principle of constitutional value govern- osophical beliefs; trade union membership; 2. Decision No. 2017-687 QPC Wikimédia – ing the exercise of regulatory power. They and genetic, biometric or health data as well Image rights of the national estate also insisted that such algorithms, the func- as data related to the sexual life or orientation tioning of which cannot be determined in of a person. Finally, the Council focused on In Decision No. 2017-687 QPC, the Act on advance, would violate the principle of the the fact that the capacity to explain how the Freedom of Creation, Architecture and Her- public nature of regulations. Lastly, they data processing was implemented excluded itage introduced a system of prior authorisa- considered that, due to its complexity, this the use of “self-learning” algorithms. These tion for the commercial use, on any medi- provision contradicted the objective of con- conditions appeared sufficient to rule that um, of images of buildings belonging to the stitutional value of the accessibility and un- disputed Section 21 did not violate any right national estate. The authorisation issued by derstandability of the law. or freedom protected by the Constitution. the operator of the domain may be subject to financial conditions, in which case the fee 104 | I•CONnect-Clough Center shall take into account any benefits, irrespec- reasons, the Constitutional Council declared these operations take place, provided they tive of their nature, accruing to the holder Section 365-1 of the Code of Criminal Pro- respect the principle of non-discrimination. of the authorisation. These provisions were cedure to be unconstitutional. In view of the Moreover, whenever private individuals are challenged, mainly with regard to freedom obviously excessive consequences which the allowed to conduct the aforementioned con- of enterprise and property rights. The Con- immediate application of that decision would trol operations, they shall be placed under stitutional Council found these provisions have had, it postponed the date of that repeal the supervision of a judicial police officer to be in conformity with the Constitution. It to 1 March 2019, while specifying that for who exercises effective control over them. noted in particular that in adopting them, the trials begun after the date of its decision and Last but not least, the Constitutional Council legislature had pursued a twofold objective without waiting until 1 March 2019, the law considered that the Constitution permits the of general interest, namely the protection should be interpreted as also requiring the administration to temporarily close places of image rights of the national estate to pre- cour d’assises to indicate, in its statement of of worship as well as to impose individual vent any harm being done to the character reasons, the main elements which have in- measures of administrative control, like the of property having an exceptional link with fluenced it in relation to the determination of prohibition to meet certain persons, in order the history of the Nation and owned, at least the sentence in jury trials. to prevent the commission of terrorist acts. in part, by the State; and the economic en- hancement of the heritage of these national 4. Decisions No. 2018-774 DC and 2018- 6. Decision No. 2018-706 QPC – Mr. Jean- estates. It further noted that the prior authori- 773 DC – Act relating to the fight against Marc R.: Glorification of terrorism sation of the national domain manager is not the manipulation of information required where the image is used for com- In Decision No. 2018-706 QPC, the Consti- mercial purposes and where there is also an In Decisions No. 2018-774 DC and 2018- tutional Council declared the constitutional- activity linked to a cultural, artistic, educa- 773 DC, the Constitutional Council dis- ity of Sections 421-2-5, 422-3 and 422-6 of tional, teaching, research, information, news missed the claims that the provisions of the the French Criminal Code, which establish illustration or public-service objective. act relating to the fight against the manipu- and punish the crime of glorifying terror- lation of information violated the freedom ism. Pursuant to the constitutional ruling, the 3. Decision No. 2017-694 QPC – Mr. Ous- of expression and communication and failed contested legal provisions did not violate the mane K.: Statement of reasons for decisions to respect the constitutional principle of the principles of the legality and proportionality in jury trials legality of criminal offences and penalties of criminal offences and penalties nor free- and, in particular, that the introduction of dom of expression. Specifically, the provi- In Decision No. 2017-694 QPC, the Con- a new interim proceeding would be neither sions were considered to be precise enough, stitutional Council ruled that the princi- necessary nor appropriate or proportionate. and the imposed penalties respectful of the ple of the individualisation of sentences, However, the Council considered that the nature of the repressed behaviour and thus which derives from Sections 7, 8 and 9 of challenged provisions complied with French not patently disproportionate. As a conse- the Declaration of the Rights of Man and of constitutional principles, provided the inac- quence, the restriction of freedom of expres- the Citizen of 1789, implies that a criminal curacy or misleading nature of the alleged sion and communication caused by the con- sanction can only be applied if the judge has facts or accusations were obvious. tested provisions is necessary, appropriate expressly imposed it, taking into account and proportionate. the specific circumstances of each case. For 5. Decision No. 2017-695 QPC – the first time, the Council inferred from the Mr. Rouchdi B.: Administrative 7. Decision No. 2018-737 QPC – Mr. Jaime aforementioned constitutional requirements measures against terrorism Rodrigo F.: Granting of the French nation- an obligation to state reasons for courts’ de- ality to legitimate children born abroad cisions regarding both guilt and sentencing. In Decision No. 2017-695 QPC, the Consti- The Code of Criminal Procedure explicitly tutional Council found the contested legal In Decision No. 2018-737 QPC, the Con- provides that the reasons underlying a judg- provisions regarding administrative mea- stitutional Council held that the fact that ment that is handed down by the criminal sures to combat terrorism constitutional. the granting of the French nationality to the court (cour d’assises) must include, in re- More specifically, the judge held that the legitimate child of a French mother and a spect of each of the offences, a statement of French prefect, in order to secure a place or foreign father was upon the condition that it the main elements of the charges against the an event exposed to terrorist risk, is entitled was born in France, whereas the legitimate accused which have convinced the court, at to establish a security area, within which child of a French father is French whatever the end of its deliberations, that he is guilty. the freedom of access and movement of in- its place of birth, violates both the principle However, according to a settled interpre- dividuals is partly restricted (security pat- of equality before the law and gender equal- tation by the Court of Cassation, the Code down, visual inspection, search of luggage ity. The children of a French mother born prohibits the criminal court from stating rea- and/or vehicles). The legislator can freely abroad between 16 August 1906 and 21 Oc- sons for the sentence it imposes. For these determine the criteria according to which tober 1924 to whom French nationality has 2018 Global Review of Constitutional Law | 105 not been granted yet may claim it as uncon- will also reveal if and to what extent the stitutional. Their descendants may also claim President has managed to regain legitimacy. it as unconstitutional in all the proceedings One-third of the Constitutional Council will that have been started since the date of pub- be renewed. lication of this decision. V. FURTHER READING 8. Decision No. 2018-744 QPC – Mrs. Mu- rielle B.: Juvenile delinquency Dominique Chagnollaud de Sabouret, Les 60 ans de la Constitution: 1958-2018 (Dalloz, In Decision No. 2018-744 QPC, the Consti- 2018) tutional Council found the contested legal provisions relative to juvenile delinquency Antoine Chopplet, Thomas Hochmann unconstitutional. The judge held that the leg- (eds.), Les anciens Présidents de la Répub- islator does not offer sufficient guarantees to lique au Conseil constitutionnel (Epure, ensure that the human rights of individuals 2018) who are placed in custody, especially those of minors, are respected. The councilors con- Arnaud Le Pillouer (ed.), La protection de la sidered that, with these provisions, the legis- constitution: finalités, mécanismes, justifica- lature failed to ensure a balanced concilia- tions (Université de Poitiers, Presses univer- tion between the need to prosecute offenders sitaires juridiques, 2018) and the respect of constitutional freedoms. The legislator thus violated Sections 9 and :DQGD0DVWRU HG Penser le droit à partir 16 of the Declaration of Rights of Man and de l’individu (Dalloz, 2018) the Citizen of 1789 as well as the constitu- tional principles relative to juvenile justice. The aforementioned lack of constitutionality can be claimed in all pending cases. IV. LOOKING AHEAD Since November 2018, huge demonstrations and protests have taken place. They have led the President to change his political agenda, and especially to postpone his institutional reforms yet again. In order to restore public confidence, the Government resorted to an exceptional public consultation from Janu- ary 15th to March 15th. Four topics should be addressed by local popular gatherings, which are to be filtered and aggregated into proposals: (1) taxes and public spending, (2) the organisation of public administration and action, (3) the ecological transition, and (4) democracy and citizenship. Regarding the last topic, many institutional and con- stitutional propositions will no doubt be expressed and debated. Depending on how they are taken into account by the Govern- ment, e.g., leading to a multi-question refer- endum, they may result in important changes regarding, for example, the right to vote, and the structure of political assemblies. The re- sults of the European elections in May 2019 106 | I•CONnect-Clough Center Gambia Satang Nabaneh, Founder and Editor – Law Hub Gambia Gaye Sowe, Executive Director – Institute for Human Rights and Development in Africa (IHRDA), Commissioner, Constitutional Review Commission I. INTRODUCTION for a period not exceeding eighteen months. :KHUHWKHQHHGDULVHVWKH3UHVLGHQWPD\H[- :LWK WKH SHDFHIXO WUDQVLWLRQ DIWHU \HDUV tend the term of the CRC for a period not under an authoritarian regime that began in more than six months, upon the recommen- July 1994, 2018 saw the new government of dation of the chairperson of the CRC. The Gambia, headed by President Barrow, GAMBIA take measures to restore good governance, In discharging its responsibilities, the Com- rebuild public confidence in key institutions mission is required according to section 6 of and uphold human rights in the context of the Act to seek the opinion of citizens both transitional justice. within the country and abroad. Thus, the Commission is currently on a lengthy pro- This is happening twofold: first, dealing cess of public consultation and deliberation with past human rights violations and abus- on a number of matters contained in the Is- es; and second, ensuring that the governance sues Document. The CRC, where it deems it architecture upholds the highest standards of necessary, can also invite persons, including respect for human rights, the rule of law and representatives of professional, civic, political justice. To this end, 2018 saw the activation and other organisations, to appear before it to of transitional justice mechanisms: the Truth make such presentations as those representa- and Reconciliation and Reparations Commis- tives consider relevant or make presentations sion, Constitutional Review Commission and on topics the Commission may specify. National Human Rights Commission with the goal of consolidating democracy and aligning The main functions of the CRC are to review governance architecture with regional and in- and analyse the current 1997 Constitution, ternational human rights standards. draft a new constitution and prepare a report in relation to the new constitution. This re- port will provide the reasoning for the pro- II. MAJOR CONSTITUTIONAL visions contained in the new constitution. DEVELOPMENTS Section 21 of the Act empowers the Com- mission, upon submission to the President, Constitutional review process to publish the draft constitution and the re- port in the Gazette and in such other manner The formal process of reviewing the 1997 as the Commission deems fit. This serves as Constitution and drafting a new one started a safeguard against tampering. in June 2018 with the appointment of eleven members (comprised of 5 women, includ- Dealing with past human rights violations ing the vice chairperson) as commissioners of the Constitutional Review Commission Following the enactment of the Truth, Rec- (CRC). According to section 9(1) of the onciliation and Reparations Commission Constitutional Review Commission Act, (TRRC) Act 2017,2 the Commission was 1 2017, the Commission shall be in existence formally launched. The TRRC Act provides 1 Constitutional Review Commission Act, No. 7 of 2017, available at: https://www.lawhubgambia.com/con- stitutional-review-commission-act [accessed 5 January 2019]. 2018 Global Review of Constitutional Law | 107 for the establishment of the historical record NHRC is authorised to investigate and con- woman—were executed, allegedly by a fir- of the nature, causes and extent of violations sider complaints of human rights violations ing squad.7 According to the news report, and abuses of human rights committed during in The Gambia committed by the state, pri- “all persons on death row have been tried by the period July 1994 to January 2017 and for vate persons and entities. the Gambian courts of competent jurisdic- the consideration of granting reparation to tion and thereof convicted and sentenced to victims. The Commission’s mandate includes Access to the African Court death in accordance with the law. They have initiating and coordinating investigations into exhausted all their legal rights of appeal as violations and abuses of human rights; iden- In fulfillment of its regional and internation- provided by the law.”8 tifying persons or institutions involved in al human rights obligations, on 23 November such violations; identifying the victims; and 2018, The Gambia became the ninth African The executions were the first in The Gambia determining what evidence might have been country to make the declaration under article since 1985. The death penalty was abolished destroyed to conceal such violations. 34(6) of the Protocol to the African Charter in 1993 by the Death Penalty (Abolition) Act on Human and People’s Rights on the Es- 1993 but reinstated in 1995 by Decree No. The hearings, which began on 7 January 2019, tablishment of an African Court on Human 52, entitled the Death Penalty (Restoration) serve as an initial first step towards securing and People’s Rights (African Court) to allow Decree, in 1995. Among the reasons given justice, truth and reparations in The Gambia.3 individuals direct access to the Court. The for the restoration of the death penalty were The TRRC provides a foundation, if execut- declaration allows the Court to trigger its ju- that “since the abolition of the death penalty ed properly, to not only address the structures risdictional competency under article 5(3) of in The Gambia there has been a steady in- and causes of violations but also assure vic- the Protocol to allow access for non-govern- crease of cases of homicide and treasonable tims of past violations of non-repetition. mental organisations (NGOs). offences which, if not effectively checked, may degenerate into a breakdown of law Building a human rights culture Ratification of key UN human rights treaties and order” and that the duty dawned on the “State to provide adequate mechanisms for Establishment of the National Human On 28 September 2018, The Gambia also the security of life and liberty of its citizenry, Rights Commission ratified important UN human rights trea- thereby maintaining law and order and en- ties including the Second Optional Protocol suring greater respect for individual human After over two decades of authoritarian rule to the International Covenant on Civil and rights.” characterised by gross human rights viola- Political Rights (ICCPR), the Convention tions including torture, enforced disappear- Against Torture and Other Cruel Inhuman or Despite section 21 of the Constitution pro- ance, arbitrary arrests, detention without tri- Degrading Treatment or Punishment (CAT), hibiting torture, inhuman or degrading al, and murder perpetrated by state agents, the Convention for the Protection of All Per- punishment or other treatment and the rati- the new government has made strides to- sons from Enforced Disappearance (CED) fication of CAT, the absence of torture as a wards building a human rights culture. and the International Convention on the Pro- criminal offence in the Criminal Code inhib- WHFWLRQRIWKH5LJKWVRI$OO0LJUDQW:RUNHUV its the prosecution of perpetrators under the Following the enactment of the National DQG0HPEHUVRI7KHLU)DPLOLHV &0: 5 transitional justice system. Human Rights Commission (NHRC) Act, 2017,4 the National Assembly has recently :KLOHWKHVHUDWLILFDWLRQVDUHFRPPHQGDEOH Human Rights Committee’s review of the approved the nomination of five candidates the State is yet to ensure individual access state of civil and political rights in The with proven records of respect for human to a majority of the UN human rights treaty Gambia rights who are to be sworn into office on bodies.6 The Gambia has still not abolished 14 February 2019. The establishment of the the death penalty in accordance with its in- In July 2018, the Human Rights Committee Commission addresses the need for a legal ternational obligations. The last executions reviewed the implementation of the ICCPR and institutional framework to which a hu- were carried out on 27 August 2012, when in The Gambia. The Gambia submitted a re- man rights culture will be anchored. The nine death row inmates—eight men and one port in response to the list of issues in lieu of 2 Truth, Reconciliation and Reparations Commission (TRRC) Act, No. 9 of 2017, available at: https://www.lawhubgambia.com/truth-reconciliation-reparations-com- mission [accessed 5 January 2019]. 3 ‘TRRC hearings begin today’ ;OL7VPU[7, January 2019. 4 National Human Rights Commission Act (NHRC) Act, No. 8 of 2017, available at: https://www.lawhubgambia.com/national-human-rights-act [accessed 5 January 2019]. 5 <50U[LYUH[PVUHS/\THU9PNO[Z0UZ[Y\TLU[Z9H[PÄJH[PVU:[H[\ZMVY;OL.HTIPHO[[WZ![IPU[LYUL[VOJOYVYNFSH`V\[Z;YLH[`)VK`,_[LYUHS;YLH[`HZW_&*V\U[Y`- 0+$ 3HUN$,5BHJJLZZLK 1HU\HY` D 6 At the moment, individual access to UN Treaty Bodies is limited only to the Human Rights Committee. 7 Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns ‘Mission to The Gambia’, A/HRC/29/37/Add.2 (11 May 2015) para. 25. 8 :5HIHULOº;OL.HTIPH!*VTTLU[HY`»PU9>VSMY\T9.YV[L *-VTIHKLKZ*VUZ[P[\[PVUZVM[OL>VYSK (Oxford University Press, 2017) 10. 108 | I•CONnect-Clough Center its second periodic report.9 The Committee ment of a Commission of Inquiry, which was tions Bill, which was tabled by the Minister of raised concerns that section 18 of the Con- mandated to investigate the circumstances, Finance and Economic Affairs on 11 Decem- stitution and sections 15 (A) and 72 of the deaths, injuries, destruction, those who may ber 2018 after seeking approval of one billion Criminal Code allow for a great deal of dis- have ordered the shootings, those who fired dalasis (approximately over 21 million USD) cretion in the use of force by law enforcement the shots and any possible failure or break- from the National Assembly for additional officials, and that section 2 (a) and (b) of the down in the police chain-of-command that payments from the Consolidated Funds.18 Indemnity Act (as amended in 2001) exoner- led to the shootings, among others.14 ates all public officials from civil or criminal Upon presentation of the Bill, a group of cit- liability for the exercise of their duties with The Commission was mandated to operate for izens dubbed #OccupyNA staged a protest at respect to unlawful assemblies, riotous situa- a period of one month, but was extended to the National Assembly grounds to demand for tions or public emergencies.10 The Commit- 31 August 2018. Upon completion of its work rejection of the government’s controversial tee made recommendations to The Gambia to on 27 August, the Commission presented its supplementary appropriation estimates. The revise its laws with a view to bringing them in findings and recommendations in the form of PIU, in full riot gear, denied the group entry. line with international standards.11 a report to the President.15 The Faraba Report The National Assembly, after extensive delib- is particularly important in that it deals with erations and debate, rejected the Bill. It is important to note that The Gambia is the duty to investigate human rights viola- yet to withdraw the reservation it made upon tions. The Commission held that there was A revised budget was later tabled in which ratification of the ICCPR on 22 March 1979 no evidence that the police had taken any at least 16 parliamentarians rejected it, lead- in respect to article 14(3)(d) to the effect steps to vet and/or screen PIU officers who ing to a deadlock that was broken by a vote that “for financial reasons, free legal assis- had been involved and/or suspected to have from the Speaker of the House in favour of tance for accused persons is limited in our been involved in past human rights abuses the Bill on 20 December 2018.19 Given that constitution to persons charged with capital nor were they made aware of any programs this approval did not follow the procedure offences only.”12 To further promote access in place to train and or reorient PIU officers in laid out in the Constitution and is not fiscally to justice, The Gambia should take steps to operating under a democratic dispensation.16 prudent, there is urgent need to promote eco- withdraw its reservation to the ICCPR, thus It reiterated the urgent need for a security sec- nomic policies that enhance judicious finan- bringing it in conformity with the spirit and tor reform. The White Paper on the Report of cial management. intent of the Legal Aid Act, 2008.13 the Faraba Banta Commission of Inquiry has since been published, and the government is III. CONSTITUTIONAL CASES Use of force: The Faraba incident criminally prosecuting the perpetrators.17 1. Bai Emil Touray and Two Others vs. the A deadly clash between personnel of the :KLOHWKHVHSRVLWLYHVWULGHVDUHHQFRXUDJLQJ Attorney General: Freedom of speech Police Intervention Unit (PIU) and the com- some of the questionable legislative proce- munity of Faraba Banta on 18 June 2018 led dures are seen as regressive steps underscor- In Bai Emil Touray and Two Others vs. the to two men being shot dead and nine others ing the need for vigilance. An example was Attorney General,20 the Supreme Court con- injured. An outcry led to the swift establish- the contentious Supplementary Appropria- 9 Human Rights Council, ‘Replies of The Gambia to the list of issues’, CCPR/C/GMB/Q/2/Add.1, 12 June 2018. See also, Human Rights Committee ‘List of issues in the absence of the second periodic report of The Gambia’, CCPR/C/GMB/Q/2, 11 December 2017. 10 Human Rights Committee, ‘Concluding observations on The Gambia in the absence of its second periodic report’, CCPR/C/GMB/CO/2 (30 August 2018), para. 29. 11 As above, 30. 12 2018 Global Review of Constitutional Law | 109 sidered the constitutionality of various pro- producing statement or rumour or report that is designed to achieve (protecting the President visions of the Criminal Code (Cap 10:01) of is likely to cause fear or alarm to the public from hatred, contempt or dissatisfaction). The the Laws of The Gambia and the Informa- or to disturb peace) and 181A (false publica- purpose of this limitation does not contribute to tion and Communications (Amendment) Act tion and broadcasting) violated freedom of an open and democratic society that is based on 2013. The plaintiffs in 2017 sought declara- speech and expression including freedom of human dignity and equality. tion that sections 178 (defining libel), 179 the press and other media. (defining defamatory matter), 180 (defining The rest of the sections were also maintained publication) and 181A of the Criminal Code On 9 May 2018, the Supreme Court held as they were deemed to be reasonable and nec- and section 173(A) (1) (a) & (c) of the Infor- that the protection accorded to the holder of essary in a democratic society for preserving mation and Communications (Amendment) the Office of the President is reasonable and the interest of national security and public or- Act 2013 (relating to matters committed necessary, while the protection accorded to der insofar as they do not relate to the severed over the Internet) were inconsistent with nu- government as an institution is not reasonable first limb of section 51(a) (on sedition applying merous provisions of the Constitution and and not necessary. The Court rejected the ar- to the government).26 The Supreme Court also therefore void and unconstitutional. gument with little hesitation on the basis that: upheld section 181A of the Criminal Code, which proscribes the so-called publication or The Court held that sections 178, 179 and the vicissitudes and trappings of the broadcast of “false news,” as well as section 180 of the Criminal Code and section 173 (A) Office of President and as the Office :LWKWKLVVWDQFHWKH&RXUWPLVVHGDQRWKHU (1) (a) & (c) of the Information and Commu- serves first and foremost as the founda- opportunity to bring its media laws in line with nications (Amendment) Act 2013 were incon- tion for national cohesions and stability, accepted regional and international standards on sistent with the rights and freedoms enshrined coupled with the need for the holder of free speech, as its limited judgment was directly under sections 25 (freedom of speech, includ- such office to concentrate on State af- FRQWUDU\WRWKHGHFLVLRQPDGHE\WKH(&2:$6 ing freedom of the press and other media), and fairs and not to be unduly distracted, it is Court of Justice in Federation of African Jour- 207 (freedom and independence of the media reasonable that the holder of such Office nalists and Others v. The Republic of The Gam- and other information media) and 209 (which is protected. This protection is, in the bia27 three months prior to the GPU case. outlines limitations relative to that guaranteed context of The Gambia and the values freedom) of the Constitution.21 The Court not- attributed to such leadership position in The plaintiffs argued that the state had vio- ed that the restrictions placed by these three the country, considered necessary and lated their fundamental rights by failing to sections were neither reasonable nor neces- thus has a legitimate aim.24 protect the rights of citizens in accordance sary in a democratic society. It subsequently with the international instruments that had declared them ultra viles of the Constitution It thus partially limited the scope of the of- been signed by The Gambia, including the and therefore invalid.22 fence of “seditious intention” (section 51(a) (&2:$65HYLVHG7UHDW\WKH$IULFDQ&KDU- of the Criminal Code) by removing the ter and the ICCPR.28 It was submitted that 2. Gambia Press Union and Two Others vs. availed protections for government as an security agents of The Gambia arbitrarily ar- the Attorney General: Freedom of expression institution but leaving the protection for the rested, harassed and detained the journalists President intact.25 under inhumane conditions, and forced them In Gambia Press Union & Two Others v the into exile for fear of persecution as a conse- Attorney General,23 filed in 2014, it was ar- It is submitted that while the decision of the quence of their work. gued that various sections of the Criminal Court in limiting the scope of 51(a) of the Crim- Code, in terms of sections 51 (definition of inal Code and consequently the offence of sedi- The Court upheld the claim, finding that The seditious intention), 52 (offence for commit- tious intention is commendable, in essence, it re- Gambia had violated the journalists’ rights ting seditious intention), 52A (power to con- tains criminal measures for defamation against to freedom of expression, liberty, freedom of fiscate printing machine on which seditious the head of state. Put at its simplest, the Court did movement and prohibition against torture.29 material is published), 53 (statutory time for not show that there is sufficient proportionality As such, it awarded six million dalasis in initiating prosecution), 54 (require evidence between the harm done by the law (the infringe- compensation to the journalists (approxi- to warrant conviction), 59 (publishing or re- ment on freedom of speech) and the benefits it mately 21,352 USD). The Court further or- 20 SC Civil Suit No: 001/2017, 9 May 2018. 21 (ZHIV]LWHYHZ 22 As above, para. 54. 23 SC Civil Suit No: 1/2014, 9 May 2018. 24 As above, para. 52. 25 As above, para. 54. 26 As above, paras. 55-62. 27 -LKLYH[PVUVM(MYPJHU1V\YUHSPZ[ZHUK6[OLYZ];OL9LW\ISPJVM;OL.HTIPH ECW/CCJ/JUD/04/18, 13 March 2018, https://www.mediadefence.org/sites/default/ ÄSLZISVNÄSLZ-(1HUK6[OLYZ];OL.HTIPH1\KNTLU[WKMBHJJLZZLK 1HU\HY` D 110 | I•CONnect-Clough Center dered The Gambia to immediately repeal or law and democratic consolidation in The the NGO Affairs Agency was moved to the amend its laws on criminal defamation, se- Gambia. The change in leadership and Pres- Ministry of Local Government. It is vital that dition and false news in line with its obliga- ident Barrow’s commitment to undertake the government repeals the NGO Act and ex- tions under international law.30 The govern- legal reforms to enable greater protection of peditiously enacts a comprehensive measure ment has yet to implement the judgment of fundamental rights and freedoms presents an that is in full compliance with international the Court relating to legislative reform and opportunity to revisit existing laws. For in- standards. compensation for the victims. stance, the Non-Governmental Organisation (NGO) Act undermines the freedom of as- IV. LOOKING AHEAD 3. Emil Touray v Saikou Jammeh sociation in The Gambia through a cumber- (represented by IHRDA & Sagar Jahateh) some registration process governed by the Despite the excitement and enthusiasm that v Republic of The Gambia (2018): Freedom NGO Affairs Agency. greeted the onset of multiparty democracy of expression association and speech following decades of authoritarian rule, The Under the law, there is a two-tier system for Gambia’s democracy remains fragile. There Following the immensely unpopular decision registration. First, if an organisation meets are concerns regarding the absence of com- of the Supreme Court on 23 November 2017 the criteria set out, the NGO Affairs Agency prehensive anti-discrimination legislation dismissing claims of unconstitutionality of grants a clearance certificate prior to the en- and existing repressive laws. section 5 of the Public Order Act, holding that tity’s registration with the Registrar of Com- the section was reasonable and constitution- panies, which is located within the Office An important undertaking should be about 31 ally legitimate, a communication was sub- of the Attorney General. In exchange for an exploring whether the TRRC presents an sequently submitted to the African Commis- annual fee and continued compliance, reg- opportunity to discuss the old regime’s at- sion on Human and People’s Rights (African istered NGOs receive limited-duty waivers titude towards minority groups such as les- 32 Commission). The complainants averred and permission to register with The Associ- bian, gay, bisexual, transgender and intersex that the Public Order Act, 1961 unlawfully ation of NGOs (TANGO). The civic space (LGBTI) persons in The Gambia. As part of restricted the scope of freedom of expression under Jammeh’s regime was very much re- a deliberate nurturing and consolidation of (article 9(2)), freedom of association (article stricted as the Act placed the Agency firm- democracy, a key question then arises: does 10) and freedom of assembly (article 11) as ly under the ambit of the Executive. It was the transitional justice process provide space protected under the African Charter on Hu- located at various times under different gov- to have conversations and chart better legis- 33 man and People’s Rights (African Charter). ernment ministries during its operations and lative protection on controversial issues such They further requested that the African Com- was finally located, following a decision in as sexual minority rights and liberalisation 34 mission address the communication. The 2010, at the Office of the Presidency. RIDERUWLRQ" Commission has accepted the matter and the case is now at the admissibility stage. In summary, the key constitutional challeng- In 2013, the government introduced a new es in 2018 concerned freedom of speech, as- NGO Bill without any consultation with rel- sembly and association. The Supreme Court evant stakeholders and ignoring TANGO’s must bear in mind that its approach to the 2010 proposal for an NGO Bill that would be application, interpretation and limitation of consistent with the Constitution. However, constitutional cases have serious implica- the 2013 proposal by the government did not tions with respect to human rights, rule of progress in the National Assembly. In 2017, 28 Suit No. ECW/CCJ/APP/36/15. 29 As above, pp. 60-61. 30 As above, p. 62. 31 6\ZHPUV\+HYIVL 6[OLYZ]0UZWLJ[VY.LULYHSVM7VSPJL+PYLJ[VY.LULYHSVM5H[PVUHS0U[LSSPNLUJL(NLUJ` [OL([[VYUL`.LULYHSCML SUIT NO: SC :LL.:V^L :5HIHULOº;OL.HTIPH!;OLZ[H[LVMSPILYHSKLTVJYHJ`»PU9(SILY[L[HS;OL0Ç*65ULJ[*SV\NO*LU[LY .SVIHS9L]PL^VM*VUZ[P- tutional Law (July 19, 2018) 99-100. 32 Communication 705/18, ,TPS;V\YH`]:HPRV\1HTTLOYLWYLZLU[LKI`0/9+( :HNHY1HOH[LO]9LW\ISPJVM;OL.HTIPH (2018), para. 4. 33;OL.HTIPHYH[PÄLK[OL(MYPJHU*OHY[LYVU 1\UL 34 Communication 705/18 (n. 32 above), para. 12. 35 Cap 50:04, Vol. 7, Revised Laws of The Gambia 2009. 36 (TLUKTLU[Z[V[OL5.6)PSSI`;OL(ZZVJPH[PVUVM5.6ZPU[OL.HTIPHO[[WZ!KYP]LNVVNSLJVTÄSLK(M> 7HM2 Q88U4F6L9;LRX0T.=I7?]PL^ [accessed 15 January 2019]. 37 S Nabaneh, ‘Crusade to root out homosexuality like malaria’, AfricLaw 7, April 2014 https://africlaw.com/2014/04/07/crusade-to-root-out-homosexuali- ty-like-malaria/ [accessed 5 February 2019]. 38 S Nabaneh, ‘The unspoken: Unsafe abortion in The Gambia and the necessity for legal reform’, AfricLaw 13 March 2018 https://africlaw.com/2018/03/13/the-un- spoken-unsafe-abortion-in-the-gambia-and-the-necessity-for-legal-reform/ [accessed 5 February 2019]. 2018 Global Review of Constitutional Law | 111 Georgia Malkhaz Nakashidze, Associate Professor – Batumi Shota Rustaveli State University I. INTRODUCTION In addition, in 2018 the Parliament adopt- ed a new edition of the Constitution of the 1 This report provides a brief introduction to Autonomous Republic of Adjara, which the Georgian constitutional system, with a was based on the new status of autonomy 2 SDUWLFXODU HPSKDVLV RQ WKH ¿QDO FRQVWLWX- adopted by Parliament on 13 October 2017. GEORGIA tional amendments in Georgia, last direct The Constitution of the Autonomous Re- presidential election and main challenges public determined the rules of forming and of the judiciary. It provides an overview of regulating the authorities of the autonomous landmark judgments of the Georgian Con- republic and improved certain procedural VWLWXWLRQDO&RXUWLQ7KH¿QDOVHFWLRQ deficiencies, but there were also important examines developments expected in 2019 issues (e.g., the transition to a fully propor- related to Court vacancies, Constitutional tional electoral system) that the autonomous Court cases and other related events. constitution did not decide independently. The last direct presidential election II. MAJOR CONSTITUTIONAL DEVELOPMENTS The last direct election of the President of Georgia was held in 2018. Beginning in The end of constitutional reform 2024, the President will be elected by an electoral collage. This election was import- On March 23, 2018, the Parliament of Geor- ant because it was the first time in the history gia adopted constitutional amendments. In of the country that a second round of presi- fact, this was a new edition of constitutional dential elections was utilized. The elections amendments adopted in 2017, which was up- were also distinguished by an unprecedented dated according to the Venice Commission’s number of candidates. FRPPHQWV:LWKWKHVHFKDQJHVFHUWDLQFRQ- stitutional deficiencies were corrected in the The Central Election Commission registered Constitution. Especially significant was an 25 presidential candidates, 6 of which were amendment related to removing a bonus sys- independents.3 Acting president Giorgi Mar- tem that impacted the proportional distribu- gvelashvili refused to participate in the elec- tion of votes among parties and participation tion.4 The ruling party did not nominate a of election blocs in parliamentary elections. candidate and5 supported so-called “indepen- 1 The Organic Law of Georgia on Approval of the Constitutional Law of the Autonomous Republic of Adjara VU[OL¸(TLUKTLU[[V[OL*VUZ[P[\[PVUVM[OL(\[VUVTV\Z9LW\ISPJVM(KQHYH¹;OL3LNPZSH[P]L/LYHSK of Georgia #O[[WZ!TH[ZULNV]NLRHKVJ\TLU[]PL^ &W\ISPJH[PVU$%HJJLZZLK February 14, 2019 2*VUZ[P[\[PVUHS3H^VM.LVYNPHVU[OL¸(\[VUVTV\Z9LW\ISPJVM(KQHYH¹;OL3LNPZSH[P]L/LYHSKVM.LVYNPH #O[[WZ!TH[ZULNV]NLKVJ\TLU[]PL^ &W\ISPJH[PVU$%HJJLZZLK-LIY\HY` 3 Malkhaz Nakashidze, Georgia – The Presidential Election: Candidates and the Campaign, October 3, #O[[W!WYLZPKLU[PHSWV^LYJVT&W$ %HJJLZZLK-LIY\HY` 4 Giorgi Margvelashvili will not take part in the presidential elections, https://www.radiotavisupleba. ge/a/29463535.html 5 Ivanishvili: My position is not to nominate a presidential candidate, 112 | I•CONnect-Clough Center dent” candidate Salome Zurabishvili.6 The observer organizations as voter bribery.11 The Main challenges to the judiciary Central Election Commission announced opposition said that this was not a fair election. that Salome Zurabishvili had won 38.64% in They do not recognize the results12 and have In 2018, judicial power was a key topic. Sud- the first round and Grigol Vashadze 37.74%. demanded early parliamentary elections with denly, the chairman of the Supreme Court, Davit Bakradze from the European Union a fully proportional electoral system.13 Despite with whom the new government was rein- came third with 10.97%.7 These results were the opposition’s protest, the inauguration of forcing new judiciary reforms, resigned.19 somewhat unexpected for the ruling party, and the President was scheduled for December 16, After his resignation, the President of Geor- the outcome of the election was thus a protest 2018, but ruling party changed its location 14 gia began extensive consultations to select a against its policies. On November 28, 2018, from Tbilisi to Telavi.15 Thus, the inauguration new chairman of the Court.20 However, the the second round of the presidential elections of 2018 was specially designed to prevent op- parliamentary majority did not participate was held in Georgia, and the so-called “inde- position protest in Tbilisi. The police blocked in the discussion, the consensus did not take pendent” candidate, Salome Zurabishvili, was the road and opposition supporters were unable place and the candidate was not named.21 elected. The Central Election Commission an- to enter Telavi. Some people were injured as The President’s decision was harshly criti- nounced that Vashadze had won 40.46% and a result of clashes between the opposition and cized by the NGO coalition.22 Zurabishvili 59.54%.8 The first round showed police, and one of the leaders of the opposition that the opposition had a real chance to win the was arrested. National and international organi- In 2018, the High Council of Justice came contest in a free and fair election.9 The second zations indicated that significant violence was to the attention of the public. On December round campaign was quite tense. Victory was observed.16 Observers noted that the elections 24, 2018, the Council chose 10 candidates a strategic goal for the ruling Georgia Dream were competitive, free, but unfair.17 This elec- for lifetime judges on the Supreme Court. team and they mobilized all kinds of resourc- tion has intensified polarization in Georgia and The decision was particularly condemned es to win. For example, the government re- also caused significant damage to the country’s by non-judge members Anna Dolidze23 and moved bank debt from 600,000 citizens.10 democratic image internationally.18 Nazi Janezashvili,24 who pointed out that the The decision was denounced by international Council of Justice chose them through hasty, non-transparent procedures. The NGO Coa- 6.LVYNPHU+YLHT^PSSZ\WWVY[:HSVTLAV\YHIPJO]PSPK\YPUN[OLWYLZPKLU[PHSLSLJ[PVUZ#O[[WZ!VUNLZ[VY` ࡅ࠰ࡀ࠷ࡃ࠺࠸࠽ࡊ࠼࠴࠱࠰ࡁ࠰࠾ࡀ࠴࠶࠸࠳࠴࠼ࡂ࠽ ࠰ࡀࡉ࠴࠵࠼࠴࠱࠶࠴ࡁ࠰࠺࠽࠻࠴࠶ࡃࡀ࠰࠱࠸ࡈ࠵࠸࠺ࡁ࠳࠰ࡃࡍ࠴ࡀࡁ࠻ࡎ࠰ࡀࡁ%HJJLZZLK-LIY\HY` 7 Malkhaz Nakashidze, Georgia – Presidential election: First-round results and expectations for the second round, November 5, 2018, 2018 Global Review of Constitutional Law | 113 lition25 and Ombudsman26 were against the of a legal state. The respondent referred to versial regulation is to promote the special decision. After the protest, the chairman of the legitimate aims of the disputed norm as relationship between the state and the Or- the Parliament stated that the selection of proper legitimacy, maintenance, restoration thodox Church and underline the status of the candidates would be conducted in accor- and restoration-conservation of culturally the Church within these relationships. The dance with preset procedures and criteria.27 and historically valued temples with histor- State of Georgia has a special legal relation- :KLOHWKHMXGJHVRIWKH6XSUHPH&RXUW ical-cultural and archaeological-architectur- ship with the Orthodox Church, confirming rejected their candidacy,28 it was announced al value and ecclesiastical treasure. It also Article 9 of the Constitution of Georgia and that in 2019 the law will set up the selection based its argument on Article 9 of the Con- the constitutional agreement between the criteria for the list of judges.29 stitution of Georgia and on the same article state and the Orthodox Church. Consequent- on the realization of the normative frame- ly, the controversial regulation is based on III. CONSTITUTIONAL CASES work envisaged by the Constitutional Agree- the above-mentioned legal relationship. The ment concluded with the Georgian Orthodox Court ruled that differentiation was not re- Church. The Court ruled that the Constitu- quired by the Constitution, and it establishes 1. LEPL “Evangelical Baptist Church of tion does not require the first paragraph of differential treatment on religious grounds Georgia” and others V. The Parliament of Article 9, and since the norm under the dif- that do not have sufficient, objective and Georgia Decision (Judgment No. 1/2/671, 3 ferentiation has no rational relation to the re- reasonable justification. Thus, the provision July 2018) spondent party by any legitimate objective, contradicts the requirements of Article 14 of it is discriminatory and therefore should be the Constitution of Georgia.31 In this case, seven different churches and the declared unconstitutional.30 Muslims Union disputed the words “by or- 3. Georgian citizen Nana Parchukashvili V. der of the Patriarchate of Georgia” of the Tax 2. LEPL “Evangelical Baptist Church of The Ministry of Penitentiary and Probation Code of Georgia. According to the Code, the Georgia and others V. The Parliament of (Judgment N2/4 / 665,683, 26 July 2018) construction, restoration and painting of the Georgia” (Judgment No. 1/1/811, 3 July temples and churches ordered by the Patri- 2018) The subject of this dispute was the consti- archate of Georgia would be exempt from tutionality of the provision of instructions the VAT tax. The claimants were non-en- In this case, the claimants were the four approved by the Minister of Penitentiary of trepreneurial (non-commercial) legal enti- ecclesiastical and Muslim divisions reg- Georgia that the accused/convict shall be ties and religious organizations registered istered as legal entities of the Public Law. obliged to expose body parts after an order as legal entities of public law engaged in The claimants complained about the norm made by an authorized person. The claimant religious activities. The applicants claimed of the Law on “State Property,” according believed that such treatment leads to humil- that the above-mentioned norm of the Tax to which state property could be transferred iation, is insulting and should be used only Code is unconstitutional because it estab- to the Georgian Autocephalous Orthodox in extreme cases. The claimant noted that lishes unequal treatment between the Geor- Church free of charge. The claimants con- with the development of technology, elec- gian Autocephalous Orthodox Church and sidered that the disputed norm establishes tronic scanning capabilities were also im- other religious organizations. In particular, the unequal treatment of the peculiarly eq- proved and today can detect any items that unequal treatment is demonstrated since the uitable persons—between the Orthodox the person has. According to the claim, the Tax Code of Georgia imposes an exemption Church of Georgia and other religious or- scanner can detect metal items, plastic, ce- for the Orthodox Church or in its favor. The ganizations—to enjoy state property free of ramic, explosives and other hazardous items. main purpose of the disputed norm is to cre- ownership, which is guaranteed only for the The claimant believed that such a scan of ate a prerequisite condition for the Georgian Georgian Orthodox Church. The respondent the human body, unlike a physical, does Patriarchate as a representative of a particu- argued that the legitimate aim of the contro- not cause a person’s humiliation and spiri- lar religion, which contradicts the principle 25 *VHSP[PVUMVY¸0UKLWLUKLU[HUK;YHUZWHYLU[1\KPJPHY`¹YLZWVUKZ[V[OLKL]LSVWTLU[ZPU[OLJV\Y[HUKPUP[PH[LZ[OLJHTWHPNU¸0^HU[>LUKV*V\Y[¹4HYJO #O[[WZ!^^^[YHUZWHYLUJ`NLNLWVZ[RVHSPJPHKHTV\RPKLILSPKHNHTJO]PY]HSLTHY[STZHQ\SLIPZ[]PZZHZHTHY[SVZOPNHU]P[HYLI\STV]SLULIZ%HJJLZZLK-LIY\HY` 26 6TI\KZTHUKLTHUKZ[VZ[VW[OLWYVJLZZVMYL]PL^PUNQ\KNLZVM[OLZ\WYLTLQ\KPJPHY` #O[[W!WPY]LSPYHKPVNLPUKL_WOW&UL^ZPK$ %HJJLZZLK February 14, 2019 27 7HYSPHTLU[^PSSKPZJ\ZZH[[OLZWYPUNZLZZPVUVM[OL:\WYLTL*V\Y[1\KNLZ #O[[WZ!JP]PSNLRHHYJOP]LZ %HJJLZZLK-LIY\HY` 28 The 10th Supreme Court Judge addresses the Parliament and does not consider their candidates, 21.01.2019, 114 | I•CONnect-Clough Center tual suffering. The Court partly satisfied the important to note the relationship between the impugned norm is not a restriction of the claim and established the unconstitutionality the state and religion characteristic to Geor- right protected by Article 22 (2) of the Con- of the norm in respect of Article 17, para- gia, the legal specifics and the context. In par- stitution of Georgia and the constitutional graph 2 of the Constitution of Georgia. The ticular, religious entities have a special legal claim is not satisfied.34 Court pointed out that the measures taken in status. The Parliament of Georgia considers the Penitentiary Establishment Establishing that the state should interfere with such reli- 6. “Giant Security Ltd.” and “Safety the Rights of Persons Act should not cause gious cultural heritage only if the fact of de- Company Tigonisi Ltd.” V. The Parliament pain, discomfort, psychological suffering liberate damage is present. The Court held the of Georgia and the Minister of Internal and shame more than necessary for a person relevant provisions partially unconstitutional Affairs of Georgia (Judgment No. 2/11/747, experiencing a penalty or other restrictions. based on Article 14 and Article 34, paragraph 14 December 2018) Otherwise, the event will violate Article 17 2 of the Constitution.33 of the Constitution of Georgia and, there- The subject of this dispute was the constitu- fore, will be unconstitutional. Based on all 5. A citizen of Georgia and Canada, Giorgi tionality of the norms and provisions of the the foregoing, it was necessary to determine Spartak Nikoladze V. The Parliament of law of Georgia on “Private Defenders” and the essence of the measure provided by the Georgia (Judgment No. 2/10/1212, 7 regulations of the Security Police Depart- disputed norm, its legitimate aim and pro- December 2018) ment in relation to Article 30, paragraph 2 portionality.32 of the Constitution. The claimant argued that The subject of the dispute was a provision the disputed norms on the Security Police 4. Georgian citizens Marine Mizandari, of the Civil Procedure Code of Georgia that Department perform one of the functions of Giorgi Chitidze and Ana Jikuridze V. The constituted the Court’s authority to prohibit controlling private security organizations, Parliament of Georgia (Judgment No. a parent from withdrawing his child from the and themselves carry out defensive activi- 2/6/1216, 27 July 2018) borders of Georgia under Article 22, para- ties. This implies harsh interference by the graphs 2 and 3 of the Constitution of Geor- state in private security organizations, which This dispute was related to the constitutional- gia by using a temporary decree. According makes it impossible to have a free and com- ity of norms of the law of Georgia on “Cultur- to the constitutional claim, the Tbilisi City petitive environment in this sphere and puts al Heritage.” The constitutional claim states Court issued a temporary decree that held it in a preferential position in comparison that on the basis of the disputed norm, if the Giorgi Spartak Nikoladze was prohibited with other entrepreneurial entities. The re- owner and/or legitimate beneficiary of the from withdrawing his son from the borders spondent pointed out that the Security Police monument of cultural heritage is a religious of Georgia until the final decision of the fam- Department is equipped with appropriate entity, the Ministry can not give the owner or ily dispute in court. According to the claim- knowledge and skills as well as the standards user an alert or penalty when it violates the ant, the child thus did not receive a number of independence and impartiality which are rules of maintenance of the monument. The of benefits that he is entitled to as a Canadian supported by regulatory legislation. In ad- claimant considered that these norms violate citizen living in Canadian territory. The re- dition, in case of disproportionate sanctions the right to guarantee the protection of cul- spondent noted that the formal basis for lim- and subjective decisions, the entrepreneur tural heritage. The claimants argued that the iting the right of movement outside the coun- may apply to the Court to protect his or her disputed provision does not have a legitimate try is protected and the legitimate aim of the right. The Court pointed out that free com- aim, since it is a blanket policy, without any regulation is to protect the rights of children, petition and market structure threatens any criteria and without conditions. In addition, in particular the best interests of children, event carried out by the state which puts in in the case of a legitimate aim, the impugned which are derived from paragraphs 2 and 3 place the advantage of any economic agent norm is a disproportionate way of restrict- of Article 36 of the Constitution of Georgia. and creates unequal conditions for market ing the right. According to the representa- The state is responsible for the family and participants. Any such intervention should tive of the respondent, the legitimate aim of well-being of women and children’s rights. be justified by a legitimate public interest. the controversial regulation is to coordinate The Court observed that juveniles cannot de- The Court has ruled that the implementation efforts and to distribute responsibilities be- cide independently for a short period of time of the two functions at the same time by the tween the state and religious confessions in to leave Georgia, and so the use of this right Security Police is not a necessary means of the field of cultural heritage protection. It is by juveniles depends on their parents. Thus, achieving a legitimate aim of effective con- 32 Georgian citizen Nana Parchukashvili V. The Ministry of Penitentiary and Probation [2018], N2/4/665,683, 2018 Global Review of Constitutional Law | 115 trol of private security, the restriction im- IV. LOOKING AHEAD Malkhaz Nakashidze, Georgia – The results posed by impugned norms is incompatible of the presidential election, December 20, 35 and obstructs constitutional norms. One of the major challenges in 2019 will be 2018, Presidential Power, 35 ¸.PHU[:LJ\YP[`3[K¹HUK¸:HML[`*VTWHU`;PNVUPZP3[K¹=;OL7HYSPHTLU[VM.LVYNPHHUK[OL4PUPZ[LYVM0U[LYUHS(ɈHPYZVM.LVYNPHB D5V #O[[WZ! TH[ZULNV]NLRHKVJ\TLU[]PL^ &W\ISPJH[PVU$%HJJLZZLK-LIY\HY` 36 Georgian citizens Zurab Japaridze and Vakhtang Megrelishvili V. The Parliament of Georgia [2018], N1/3/1282, 116 | I•CONnect-Clough Center Ghana Maame AS Mensa-Bonsu, DPhil Student in Law, University of Oxford, UK I. INTRODUCTION Some scholars and critics called the exer- cise an unnecessary expense. Allegations of One of the most exciting things about hav- deliberate exclusion, gerrymandering and ing such a constitutionally young state is the election rigging were rife. Though threats of QXPEHURI¿UVWVRQHJHWVWRZLWQHVV violence were, by and large, not realized, it is like the year before it, had a number of im- worrying how frequent and how earnest they SRUWDQW¿UVWV,WLVQRWDWDOOFHUWDLQWKDWDOO were. There was a resurgence of secessionist WKHVH FRQVWLWXWLRQDO ¿UVWV LQXUH WR *KDQD¶V sentiment in the Volta region. The Supreme interests in the long term. Be that as it may, Court was called on to rule whether all per- WKH\KDYHGH¿QLWHO\SURYLGHGVRPHFRQVWLWX- sons in the entirety of a region that was to GHANA tional growth in the form of previously un- be split were entitled to vote; contrary to the charted territory. As can be expected, the Su- government’s view that the persons contem- preme Court was in the thick of it. It received plated by Chapter 2 were the persons who new members and is currently—though tem- lived in the areas that would become the new porarily—at the largest it has ever been un- region. Those remaining in the old regions der this Constitution. It grappled with a nov- were not considered to be affected. The HOFRQVWLWXWLRQDOTXHVWLRQ)RUWKH¿UVWWLPH Court endorsed the government’s view and the executive made use of some of its most Ghana now has a new map. Notwithstand- neglected but, it turns out, contestable pow- ing the derision with which the decision was ers. The quality of Ghanaian legislators was received in some quarters, it is hard to fault questioned from within the legislature itself, the Court’s reasoning. Beyond having to re- reviving a long-standing debate about the orient themselves to the borders of their re- separation of powers mechanisms under the gion, the people remaining in a region that Constitution. All in all, it was a most event- was to be split had no legitimate interest in ful constitutional year. the creation of the region. Ghana is a unitary, not a federal, state. So even the argument that the source of a resource on which all II. MAJOR CONSTITUTIONAL the people in that region are dependent will DEVELOPMENTS be in the new region is not an argument of exclusion. It can be no more than an obser- President Akufo-Addo became the first Pres- vation. Furthermore, regional borders may ident to use the provisions of Chapter 2 of create new Houses of Chiefs, but they do not the Constitution. He undertook the not in- interfere with traditional territorial allegianc- significant task of organizing six separate es. Indeed, as the case of Republic v Judi- referendums to determine the creation of cial Committee of the Brong Ahafo Regional six new regions. Both because the constitu- House of Chiefs shows, practice, prudence tional provisions on how new regions may and tradition have worked out a solution in be created are simultaneously over-specific cases where the traditional allegiances and and vague, and because there are deep-seat- the House of Chiefs jurisdictions do not so ed issues of territory-related resentment dat- tidily overlap. The greater concern this ex- ing perhaps to pre-independence times, the ercise has raised is that for the first time, we process, though completed in a surprisingly have regional boundaries that appear to coin- short time, was fraught and acrimonious. cide with sometimes contested ethnic or trib- 2018 Global Review of Constitutional Law | 117 al territory. It defeats the integration function dent’s choice to head a local area be in any it has weakened the caliber of parliamenta- of the state administrative units for them to way connected to the area. The difficulties ry engagement on the majority side. This is lend themselves to being used interchange- involved in having a stranger administer this worrying since that is who is making a large ably with ethnicity. It is hoped the execu- most basic unit of the state are self-evident: chunk of the decisions. As an entrenched tive will proceed cautiously as it is creating a lack of understanding of or even concern provision, it is not an easy one to change. But precedent of how the state functions in and with the issues most pressing to the residents; this government has shown by the referen- relates to the traditional authorities of these a lack of co-operation from a hostile local as- dums that it has the ability to achieve difficult new regions. sembly, etc. The President’s withdrawal of a constitutional changes when it has the will. promise that would have rectified the error :HKRSHWKH0DMRULW\/HDGHUDQGRWKHUNH\ The Supreme Court welcomed four new ap- of the drafters of the Constitution does little members of Parliament and the executive will pointed members: Prof Kotey from the Legal to advance liberal democracy in Ghana. act upon this agreed problem and organise the Academy, Nene Amegatcher from the Bar necessary referendum to change it. and Justices Marful-Sau and Agnes Dordzie, Ghana’s first female electoral commission- who were promoted from the Court of Ap- er became the first in that position to be re- One of the most encouraging developments peal. They fill the vacancies left by Justices moved by the President in Ghana’s history. of the year was that following the seminal :RRG$WXJXEDDQG$NDPED7KHIRXUQHZ Ms. Charlotte Osei was accused of flouting case of Occupyghana v Auditor-General dis- appointments brings the current number of procurement law in her administering of cussed in last year’s report, the Auditor-Gen- Supreme Court judges to 15; a larger number some donor funds. The President set up a eral, in November, issued for the first time than the Court has historically had. Howev- Commission of Enquiry as required by the in the history of the Constitution a report er, a few retirements are anticipated in 2019. Constitution and, acting on that commis- in which he disallowed unjustified charges The number will thus return to 13 shortly. In sion’s recommendations—again as per the on public accounts and surcharged the pub- the heat of the aborted Constitutional Review Constitution—removed her from office. The lic officers involved. It will be recalled that exercise a few years ago, there was some editor of a prominent newspaper filed a pub- the Supreme Court acceded to Occupygha- agitation that the number of Supreme Court lic interest action challenging the work of na’s request to compel the Auditor-Gen- Justices be capped at 15 to prevent the pos- the commission as not meeting the constitu- eral to exercise his power to disallow such sibility of an executive packing the Court. It tional standards before the Supreme Court. charges. The Auditor-General had, since does not appear that a cap is necessary. In the A decision is expected on the cases shortly. 1993, detailed in every annual report sig- three governments since then, the Supreme nificant amounts of money lost to the state Court has never exceeded 15. The Majority Leader in Parliament revived a through the malice or negligence of public debate on the impact of ministerial duties on officers but had never sought to recover any President Akufo-Addo has retreated from a the performance of parliamentary duties and of those sums. The civil society group had decentralisation promise that would have in- vice versa. This is a debate that has been in argued that this was a breach of his constitu- ured to the benefit of the liberal democracy. the public sphere since the earliest days of tional duty. The Auditor-General’s immedi- In the lead-up to his election, he promised the Fourth Republic and is one in which all ate compliance with the Court’s decision is he would willingly limit presidential pow- seem to be on the same side but no action to most heartening constitutionally and useful ers over local government, and rather than address it has actually happened. The Con- financially. According to the Auditor-Gener- appoint all the heads of local assemblies as stitution requires that a majority of ministers al’s report, over fourteen million USD was per Article 243, allow them to be elected. of state be drawn from the legislature. As the saved or recovered in this first effort. As The self-imposed deadline for the imple- majority leader pointed out, ministerial du- Occupyghana pointed out in its statement, mentation of this promise was 2018. But ties are so consuming, they compel the MPs however, the drive cannot be properly called the year ended with no sign of the promised so appointed to participate only peripherally completed until the Attorney-General takes elections. More worryingly, the Minister for in legislative affairs. Former President Ku- steps to prosecute those officers whose acts Local Government announced that it was not fuor complained during his tenure that the amounted to criminal conduct. within the contemplation of the government constitutional provision saddled him with to implement changes in 2019 either. Two under-efficient ministers. The Committee of III. CONSTITUTIONAL CASE things made the promise appealing and the Experts, in its report, recommended this ar- disappointment crushing. First, the appoint- rangement for the purpose of increasing the Republic v. Baffoe-Bonnie and Ors ment system breaks important accountability collegiality between the two arms without (unreported; Decided 7 June 2018) loops in terms of the transparency of local entirely merging them. But it does not ap- government. The spending officer of lo- SHDU WR KDYH EHHQ VXFFHVVIXO:KDW LV QHZ This far-reaching decision of the Supreme cal councils is not accountable to the local about the Majority Leader’s complaint is the Court has yet to draw the attention it de- area whose money he is spending. Second- effect of having the more senior MPs on his serves. The Court clarified the meaning of ly, there was no requirement that the Presi- side in executive positions. He observed that Article 19(2) (e) and (g) of the 1992 Con- 118 | I•CONnect-Clough Center stitution, which grant an accused person assistance will be required to leave behind the right to “adequate time and facilities” to the dark days of the state seizing property prepare his defence, and the facilities to call without payment and examine all necessary witnesses. It held that an accused person facing a summary Chief Justice Akuffo will retire in 2019 and trial was entitled to full pretrial disclosures, Ghana will once again be looking for a chief including all documents and evidence the justice. prosecution had in its possession as well as those that the prosecution did not intend to Meanwhile, the legal community will be rely on. The only limitation the Court put eagerly awaiting the Supreme Court’s judg- on these rights was in instances such as for ment in the National Cathedral case, in witness protection, police intelligence pro- which some citizens are contesting the con- tection, public interest and national security. stitutionality of the president’s proclaimed However, the Court hastened to add that the project: the building of a 5,000-seat na- state’s determination of these matters was tional cathedral. It triggers some unease in not incontestable, and a court could review scholars of constitutionalism that the sitting and override such decisions in appropriate President—himself a lawyer and former at- cases. The practice until this case was for torney-general—had no hesitation about the the state to only furnish the defence with the constitutional compatibility of the project, evidence in its possession in trials on indict- such as singling out his religion for state en- ment. Since, as the Court noted, the majority dorsement under a constitution forbidding of criminal trials are actually summary trials, discrimination and guaranteeing equal reli- the state has wielded an unhealthy and unfair gious rights. surprise power in most criminal trials. V. FURTHER READING This decision does much to engrave fair trial rules into the ethos of a country with a long Adjei Bediako E, ‘Safeguarding online free- history of unfettered executive power. The dom of speech in Ghana in an election year: practice this decision ends predates this Con- the role of government’, Ghana@60: Gov- stitution and its two immediate predecessors ernance and Human Rights in Twenty-First and is therefore deeply ingrained. It is most Century Africa (1st edn) (Pretoria University heartening to see it abolished. The Court Law Press, 2017), 52 must be commended also for preventing the state from using what is an unquestionably Agyeman-Budu K, ‘Establishing the office reasonable limitation on a right to defeat that of the Special Prosecutor in Ghana: Mission right by retaining unto the courts the power LPSRVVLEOH"¶ GIMPA Law Review, to determine finally when disclosure ought 158 not to be made. Nyinevi C, Challenges to Judicial Enforce- IV. LOOKING AHEAD ment of Socioeconomic Rights in Africa: Comparative Lessons from Ghana and South Government has begun the largest compul- Africa (March 29, 2018). Michael Addaney sory acquisition of real property thus far & Michael Nyarko (eds), Ghana@60: Gov- endeavoured under the 1992 Constitution: ernance and Human Rights in Twenty-First a 13,000-acre parcel of land at Afienya. De- Century Africa (Pretoria University Law parting from previous regimes on the mat- Press, 2017) ter, the 1992 Constitution mandates “prompt payment of fair and adequate compensation” Okyir NT, ‘Towards a progressive realiza- for property compulsorily acquired. Such tion of socio-economic rights in Ghana: a a large acquisition will no doubt be very socio-legal analysis’, AJCIL 2017, 91-113 costly. All eyes will be on the government to see if it will abide by the constitutional provisions willingly or whether the Court’s 2018 Global Review of Constitutional Law | 119 Greece Dr. Alkmene Fotiadou, Research Associate Centre for European Constitutional Law, Athens, Greece I. INTRODUCTION Christian dogma, is a reminder that the fight for rights is a never-ending project. Reflection on the constitutional develop- ments in Greece during 2018 is closely in- II. MAJOR CONSTITUTIONAL terrelated to the anticipation of what 2019 DEVELOPMENTS will bring. The initiation of the revision pro- GREECE cess marks 2018. Throughout the financial Ever since the financial crisis erupted, many crisis, the Constitution was at the heart of calls for constitutional reforms were made public constitutional dialogue, malfunctions from all political parties. Still, although the surfaced under the stress, and yet no formal consensus that changes must be made exist- changes were made. The amending formula ed, there was little agreement with regard to demands an exceptional degree of consen- their content. The Constitution underwent sus and provides for a five-year mandatory important informal change, and yet, even af- time lapse between the completion of one ter a formal revision was procedurally possi- revision process and the initiation of a new ble in 2013, a long time of inertia followed. one. Many factors shall determine whether In March 2017, a “dialogue committee on the this revision process shall be concluded, and constitutional reform” launched an electron- if so whether it shall be a limited corrective ic deliberation process attempting to involve intervention or long-discussed issues shall the citizens, who were invited to complete also be addressed. multiple-choice questionnaires and/or make amendment proposals. This process, which At the moment, a heated dialogue on the in- was not provided for by the Constitution, did terpretation of formal amendment rules with not become central in political life, nor is it regard to whether and how the decision of clear whether and how it shall impact the re- the first Parliament is binding upon the sec- vision process. The initiation in November ond, which is mandated to amend the Con- of the long-awaited constitutional revision stitution following the intervening general process marks 2018. Nonetheless, it is far elections, is characteristic of the political cli- from certain that it shall be successfully con- mate. Jurisprudence is faced with the reper- cluded. The ratio of the amending formula, cussions of the financial and refugee crises. which is expressed through the way the re- The Council of State (Supreme Administra- quired majorities are laid down, demands a tive Court) is still trying to tackle the consti- degree of consensus which is very difficult tutionality of salary and pension cuts. Setting to reach within a polarized political system. precedent for future decisions, rulings with Article 110, para. 2-6 of the Greek Consti- retroactive effect may add strain on the state tution sets out very strict procedural limits. budget. A second line of decisions deals with the rights of refugees. The refugee crisis Constitutional revision takes place in two challenges pre-conceptions of the rule of law phases, between which general elections are guarantees in multiple ways. Lastly, a ruling held. The amending process has no influence of the Council of State, according to which over the timing of general elections. During the Constitution dictates that religious edu- the first phase, the need for a constitutional cation in primary and secondary education revision is ascertained by resolution of Par- must be an indoctrination in the Orthodox liament, adopted following the proposal of 120 | I•CONnect-Clough Center at least one-sixth of the members of Parlia- majority). By contrast, SYRIZA, which will and secondly, that in case the decision of the ment either by a three-fifths majority or by probably be the opposition in the Revision first Parliament includes the direction to- an absolute majority of its members in two Parliament, insists that the decision of the wards which a specific provision should be ballots, held at least one month apart. This first Parliament is binding upon the second amended, this direction is binding and there- resolution defines specifically the provisions not only with regard to the provisions to be fore reviewable. subject to revision. During the second phase, revised but also with regard to the content of the next Parliament amends the provisions the future amendment. This discussion on procedure betrays the deep that are to be revised. In case a proposal for divide between the political parties in a climate amendment of the Constitution receives the The mandatory time lapse is also an important of deep polarization. Revision becomes a pow- absolute majority of the votes of the total factor. If the second Parliament reaches con- er game instead of the envisaged consensual number of members but not the three-fifths sensus only on very few articles, this excludes procedure. Scenarios include the possibilities majority, the next Parliament shall proceed from change the rest of the provisions for the that the second Parliament does not conclude with the revision of the proposed provisions next 10 years. This can be used as a strategy: the procedure, opting to initiate a new one, or by a three-fifths majority of the total number in case the basic aim of a political party is to that a minimal revision takes place, amend- of its members, and vice versa. Revision of shield certain articles from future revision, it ing the few articles where consensus can be the Constitution is not permitted before the may deliberately try to put forth a mini-revi- reached, which would freeze the rest of the lapse of five years from the completion of sion in order to exploit the mandatory time amendments for another decade. a previous revision.1 Several eternity clauses lapse. The revision process is in this case used exist excluding from revision (among other (or manipulated) in order not to effect change III. CONSTITUTIONAL CASES material limits) the provisions defining the but adversely to fetter change. form of government. 1. Decision 431/2018 Council of State (Plena- An interesting aspect is that in parallel with ry Session): retroactivity and salary cuts The ruling SYRIZA party proposal puts the discussion on the substance of the pro- forth four axes targeting the architecture of posed amendments, a debate on the extent to Decision 431/2018 of the Council of State the form of government, the relationship be- which the first Parliament can bind the sec- ruled that provisions introducing retroactive tween state and church, the enhancement of ond Parliament is ongoing, centered around salary reductions of National Health System popular participation through referenda and the interpretation of the formal amendment doctors were in violation of the Constitution. the enhancement of social rights protection. rules, and more precisely how binding the According to the Court, such reductions vi- Of crucial importance is that proposals do not decision of the first Parliament is upon the olate Article 21 (3) GrConst, according to include certain provisions whose change is second. The landscape is not clear. As there which the State must take care for the health considered a priority by the center-right op- has never been a case of a court annulling a of citizens, of the principle of a special wage position party, which according to polls will constitutional amendment deemed unconsti- regime for doctors serving in the NHS, and probably win the intervening elections. For tutional, the only existing precedent is one the principles of proportionality and equal- example, a much-contested provision estab- thought expressed in Judgment no. 11/2003 ity in public burdens. Doctors who work in 2 lishes a ban of private universities, triggering of the Supreme Special Court. According to the NHS are subject to a special regime and tensions with EU law. The largest opposition this isolated thought, in view of the limits of special conditions compared with other civil party has issued its own proposals, which judicial review of the constitutional revision servants, since they start working at an old- includes numerous articles and has different process, the direction towards which a pro- er age and have exclusive employment. The DLPVWKDQWKHSURSRVDOVE\6<5,=$:KHUH vision was to be amended was not binding State has the obligation to provide a special ZLOOWKLVODFNRIFRQVHQVXVOHDGWR" because it was not included in the final deci- wage regime for NHS doctors as well as the sion of the Parliament following the two par- obligation to provide high standard health Formal amendment rules are the basic deter- liamentary votes provided for in Article 110, care for citizens, for which NHS doctors are minant. As a rule, the first Parliament avoids para. 2 of the Constitution. According to the responsible. The extend of wage cuts brings giving proposals a supermajority, since this Court, in the contested decision of the Par- about a reversal of the current wage regime would give carte blanche to the second Par- liament, the constitutional provisions to be and cannot be effected without prior assess- liament, and therefore to a different political revised were only enumerated without any ment of the financial benefit in relation to the landscape. It is thus not coincidental that the limitation with regard to their content. This impact that this reduction will have on the op- opposition party would prefer that a wide thought seems to imply two things: firstly, eration of the National Health System and in range of articles would be proposed for re- that the courts have competence to review particular without assessing if the reduction is vision (preferably voted on by an enhanced unconstitutional constitutional amendments necessary, or could be achieved through other 1 See Xenophon Contiades and Alkmene Fotiadou ‘Models of Constitutional Change’, in Xenophon Contiades (ed.), ,UNPULLYPUN*VUZ[P[\[PVUHS*OHUNL (*VTWHYH[P]L7LYZWLJ[P]LVU,\YVWL*HUHKHHUK[OL<:( (Routledge, 2013) 417. 2 Judgment no. 11/2003, the Supreme Special Court, Thought 6. 2018 Global Review of Constitutional Law | 121 measures that have a similarly effective result The rationale of this decision is also applica- the concentration of refugees in specific re- burdening less the medical staff. Due to the ble to the other seven officers, since this was gions, not allowing their distribution across severe financial crisis and budgetary prob- a pilot judgment. In its decision, the Plenary the entire Greek territory, which excessively lems faced by the Greek State, this decision is Session of the Supreme Court of Cassation burdens those regions. Indeed, the islands of applicable only to the plaintiffs and to hospital invoked the Geneva Convention, according Lesbos, Samos, Chios, Leros, Rhodes, and doctors who have already brought their cases to which to establish a legitimate fear of be- Kos are expected—in the midst of the severe before the courts. Retroactive remuneration ing persecuted for his political beliefs, it is financial crisis—to manage the entry and and the return to salary status before August not necessary for the applicant to express accommodation of a significant number of 1, 2012, applies only to them. For all other those beliefs; it suffices that the persecutor, persons applying for international protection doctors of the NHS, salaries shall be adjusted in this case Turkey, holds the applicant re- using the existing infrastructure. This may for the future. sponsible for such beliefs. According to the lead to social upheavals, and creates public Court, it was not proved that the officer in order problems in areas that are also tourist This is an important precedent with regard question participated in the coup of July 15, destinations. to future decisions pending before the Coun- 2016, nor that he belonged to the movement cil of State and other courts with regard to to which the Turkish Government attributes The Court referred also to Article 31(2) of salary and pension cuts and the issue of the organization of the coup. The officer is the Geneva Convention, which permits the retroactivity. Underlying it is an important therefore eligible to receive travel docu- imposition of only the necessary restrictions question with regard to the extent to which ments. According to the Court, the contested on applicants for international protection. the judiciary should intervene in state bud- decision of the Asylum Committee, which The Court ruled that no serious and impera- getary policy. As Greece is still facing a fi- had granted asylum to the Turkish officer tive reasons of public interest and migration nancial crisis, such decisions have a poten- was sufficiently justified, as there exists a policy that could justify the imposition of re- tially immense impact on the State budget. causal link between the fear of persecution striction on the freedom of movement of ap- On the other hand, in case the State does not of the officer, in his country of origin and the plicants for international protection entering abide by court decisions, rule of law issues beliefs attributed to him there. the Greek territory were established. are raised. Such constitutional dilemmas are interrelated with the role of the judiciary and Following this decision, the ruling Turkish 4. 470/2018 Council of State (Third Section): are quite difficult to address. Having entered party spokesman tweeted that it is “Crystal refugee child education a more “mature” era of crisis litigation, the clear that Greek judiciary sided with Tur- courts show less self-restraint, yet the degree key’s enemies and coup plotters with this de- In an important decision, the Council of State in which they should interfere with budget- cree. This is much more serious and shame- had to face xenophobic populist activism ary issues, striking down law as unconstitu- ful than supporting terrorism.”3 The courts triggered by the refugee crisis. Parents and tional, is contested. in this developing situation are challenged to parental associations sought the annulment uphold the rule of law guarantees regardless of a decision by the Minister of Education 2. Decision 1694/18 Council of State (Plenary of repercussions. on the designation of school units of the Pri- Session – pilot judgment): granting asylum to mary and Secondary Education Departments Turkish officers 3. Decision 805/2018 Council of the State: on of the Prefectures of Central Macedonia, the restriction of movement of refugees Attica, and Sterea Ellada for the school year The story of the eight Turkish military of- 2016-2017, where the Reception Facilities ficers who had fled to Greece seeking asy- The Council of State annulled the Decision for Refugee Education operate. The Court lum after the July 2016 failed coup is still of the Director of the Asylum Service impos- held that applicants lacked a legitimate in- unfolding. In 2017, the Court of Cassation ing restrictions on the free movement within terest as they invoked only their status as (Areios Pagos) had turned down an extra- Greece to applicants for international protec- residents of the district of the schools where dition request by Turkey, concluding that a tion entering the Greek islands after the date the impugned decision was enforceable and fair trial and the protection of fundamental of the publication of the judgment.4 because the application of the decision with human rights could not be guaranteed there. regard to the education of refugee children In Decision 1694/18, the Council of State According to the Court, the disputed restric- does not affect them. rejected the petition made by Greece’s mi- tion on free movement by the Greek State gration minister to rescind the asylum that is not prohibited by the Constitution or by The Court stressed that the Greek State, tak- had already been granted to Suleyman Oz- other supra-constitutional laws; however, ing into account the 2016 report of the Sci- kaynakci. the restrictive measures must be justified by entific Committee to assist the work of the specific reasons. This restriction results in Committee for the Support of Children of 3 http://www.ekathimerini.com/231922/article/ekathimerini/news/turkish-ruling-party-lashes-out-at-greek-judiciary, accessed on 5 February 2019 4 https://www.asylumlawdatabase.eu/en/case-law/greece-council-state-fourth-section-decision-8052018-17-april-2018s, accessed on 7 February 2019 122 | I•CONnect-Clough Center Refugees, considered that the optimal solu- essary consensus does not seem to exist. The IV. LOOKING AHEAD tion for the education of refugee children following decision is characteristic of this at the present stage is the establishment of type of interpretive approach. The Plenary of In May 2019, municipal elections and elec- special facilities aimed at the smooth inte- the Council of State (with a minority of five tions for the European Parliament will be gration of refugee children in Greek schools. members out of 17) found unconstitutional held while general elections will also take Thus, existing structures were not used, nor the decision of the Minister of Education place within 2019, as dictated by the Con- was the direct integration of these children with regard to religious education in Primary stitution. This will bring about alterations into the Greek schools opted for because the and Middle Schools. According to the major- in the political landscape. It is in this con- children’s emotional and psychological con- ity opinion, the contested decision violates: text that the revision process shall continue, ditions, after their many months of suffering since the new Parliament will be a revision and war experience, created difficulties to (a) the provision of Article 16 (2) Gr- Parliament. So far, the revision process is in their integration in a new social environ- Const, because the curriculum distorted the first stages, and there seems to be a con- ment. For these reasons, the Greek State, the purpose of religious education set by vergence between the two major parties on through the Ministry of Education, created this provision, which is to develop the 6 points: educational programs that ran in the after- orthodox Christian conscience of the noon hours in existing schools, where the students belonging to the prevailing re- (a) Article 96, which renders the guar- children of the applicants go earlier in the ligion of the Eastern Orthodox Church; antees of judicial independence for the day. Refugee children could then learn the military courts the same as those in Greek language in a school environment and (b) the provision of Article 13 (1) Gr- place for ordinary courts, in classes made for them that also conveyed Const, which enshrines the freedom of a feeling of normal school life, with the ul- religious conscience; [According to the (b) Article 32, amending the President timate aim being their smooth reintegration Court, the curriculum encouraging pu- of the Republic election process and into the scholastic social environment. The pils (ages 8 to 15) to reflect on religious abolishing the possibility of early dis- choice of the school units hosting the re- matters may unsettle faith in the ortho- solution of the Parliament, ception classes had taken into account both dox Christian religion, formed by the the number of children and the availability students in the context of their family (c) Article 54, which provides for the of rooms, and also the precondition that the environment before they began school. election of up to five MPs by Greek em- vaccination program for these children had This constitutes proselytism, as it could igrants, been followed. interfere with students from orthodox Christian conscience.] (d) Article 86 on the liability of min- It is clear that courts can play a distinct role isters abolishing the limitation period in handling the delicate side effects of the (c) the provision of Article 2 of the within which prosecution is allowed, refugee crisis by maintaining a firm stance ECHR, because it violates the right of in matters of human rights protection. Orthodox Christian parents to ensure the (e) Article 62 on parliamentary immu- education and training of their children nity limiting the scope of protection to 5. 660/2018 Council of the State (Plenary in accordance with their own religious offenses directly related to the exercise Section): religious education in schools beliefs; and of parliamentary duties, and The Church and State relationship in Greece (d) the constitutionally guaranteed au- (f) Article 101A on the election of mem- is not an easy one. Greece has been convict- thority (Article 4 (1) S) and Article 14 bers of Independent Authorities. ed several times by the European Court of (in conjunction with Article 9) of the Human Rights for violations of freedom of ECHR, since it deprives students of the Does this suffice for reaching the wider con- religion. The Constitution refers to the pre- Orthodox Christian doctrine of the right VHQVXVUHTXLUHGIRUDUHYLVLRQ",WLVKDUGWR vailing religion of Greece—which leaves the to be taught exclusively the doctrines, tell how the process will unfold. Given the door open to interpreting Article 16, which moral values, and traditions of the East- stringency of the amending formula, if dis- renders the State responsible for the “devel- ern Orthodox Church, whereas the leg- agreement results in a limited revision in opment of religious conscience,” to dictate islation provides that Roman Catholic, scale, the possibility of formally changing that religious education in schools should Jewish, and Muslim students may be other constitutional provisions will be post- take the form of indoctrination. Over the taught exclusively the doctrines of their poned for a long time. years, a discussion about amending the Con- faith by teachers proposed by their own stitution to rule out the possibility of such in- religious community. terpretation has been ongoing; still, the nec- 2018 Global Review of Constitutional Law | 123 V. FURTHER READING Philippos Spyropoulos and Thodoros Fort- sakis, Constitutional Law in Greece (3rd edn, Kluwer Law International, 2017) Xenophon Contiades and Alkmene Fo- tiadou, ‘The Resilient Constitution: Lessons from the Financial Crisis’, in Alexia Herwig and Marta Simoncini (eds), Law and the Management of Disasters. The Challenge of Resilience (Routledge, 2017) 124 | I•CONnect-Clough Center Guatemala Carlos Arturo Villagrán Sandoval, PhD Candidate, Melbourne Law School – Constitution Transformation Network1 Sara Larios, Master of Laws (LL.M.), International Business and Economic Law, Georgetown University Law Center I. INTRODUCTION Rios Montt to run for president even though previous judgments of the Constitutional The 2017 report on Guatemala highlighted Court and Inter-American Commission the role of the International Commission on Human Rights had forbidden him from Against Impunity in Guatemala (CICIG) doing so. The third and last case this report and the Guatemalan Constitutional Court reviews is the introduction of the doctrine in moving towards greater accountability of of the “Constitutional Block” (Bloque de Constitucionalidad), which marked a new GUATEMALA those holding power. However, this report shows how 2018 was marked by the backlash era for the litigation and promotion of human against the CICIG and Constitutional Court rights in Guatemala. Finally, Part IV looks by Guatemala’s Executive. Part II shows ahead to future events in the country, such how the President of Guatemala launched a as the presidential and congressional general series of political and legal attacks against the elections in October 2019 and the election of CICIG and Constitutional Court, including judges to the Supreme Court of Guatemala. denouncing the treaty that created the CICIG and launching impeachment proceedings II. MAJOR CONSTITUTIONAL against the judges of the Constitutional Court DEVELOPMENTS for their “unconstitutional” judgments that sought to limit the Executive’s powers to act This part details the backlash against the against the CICIG. These actions provoked CICIG and the Constitutional Court by a constitutional crisis that is still unresolved. the Guatemalan Executive. The CICIG is Moving away from the year’s relevant an independent body created by a treaty constitutional events, Part III discusses three between Guatemala and the UN.2 It is of the most important constitutional cases led by a commissioner appointed by the of the Guatemalan Constitutional Court UN Secretary-General, with a mandate to since its establishment in 1986. In the first investigate and prosecute corruption.3 As case, the Constitutional Court declared discussed in last year’s report, in August unconstitutional an attempted self-coup in 2017, the Constitutional Court declared 1993 in which the then-President attempted, unconstitutional the Executive’s decision through emergency powers, to dissolve the to declare the CICIG Commissioner “non- Congress and Courts. The second case regards grata” and deport him. Following this, the how in 2003 the Constitutional Court failed to President announced his decision to revise apply the constitutional prohibition on people the treaty creating the CICIG.4 who have led a coup running for election to the presidency, allowing dictator Efraín 1 We would like to thank Anna Dziedzic for her fantastic edits and comments in the realization of this report 2 Carlos Arturo Villagrán Sandoval, ‘Guatemala: The State of Liberal Democracy,’ eds. Richard Albert, et al, .SVIHS9L]PL^VM*VUZ[P[\[PVUHS3H^ (Clough Center for the Study of Constitutional Democracy, 2018) 126. 3,4 Ibid. 2018 Global Review of Constitutional Law | 125 On 1 February 2018, the Ministry of Swedish ambassador, accusing him of new CICIG Commissioner.16 However, on Foreign Affairs met with the UN Secretary- interfering with domestic issues.10 The 19 September 2018, the Constitutional Court General to discuss the CICIG’s mandate.5 Swedish ambassador had announced a large issued a clarification, requiring that the The Guatemalan Government accused donation to the CICIG in January 2018.11 In government permit Ivan Velásquez as CICIG the CICIG of exceeding its mandate, response, the Human Rights Ombudsman Commissioner to re-enter the country.17 violating the human rights of the people it filed a constitutional injunction against the investigated, and threatening the judicial Executive proceeding with the removal. The government’s response to these rulings system.6 The UN Secretary-General’s On 29 May 2018, the Constitutional Court of the Constitutional Court came on 11 response to these accusations came on granted the injunction on the grounds that the October 2018, when it announced that the 23 May 2018 at the Debate Marking decision of the Ministry of Foreign Relations working visas of the CICIG’s personnel 15th Anniversary of Adoption of United to remove the ambassador had violated would not be extended. Between 21 and 27 Nations Convention Against Corruption, principles of international law protected by December 2018, the Constitutional Court held in New York. The Secretary-General the Guatemalan Constitution.12 delivered a series of judgments that ordered stated: “There are several ways the [UN] all government institutions to allow the re- Organization can support Member States On 31 August 2018, the Guatemalan entry of the CICIG’s personnel.18 However, to combat corruption, from sharing good President made public his decision not on 5 January 2019, CICIG personnel were practices to supporting the capacity of to renew the CICIG’s mandate, which detained in the airport by immigration national anti-corruption institutions. The expires in September 2019. On this day, the officials, acting on direction from the International Commission against Impunity Government displayed its military force, executive. In response, the Constitutional in Guatemala is a case in point”.7 which surrounded the CICIG’s compound Court issued an order making known that and the US Embassy.13 On 14 September non-compliance with its rulings are criminal After this response from the UN Secretary- 2018, the Government decided that it was in offences and public officials are liable to General, the Guatemalan Executive started the “interests of the nation” that the CICIG removal from office for non-compliance.19 lobbying strongly against the CICIG’s main Commissioner, Ivan Velásquez should not financial donors: the United States and be allowed back into the country.14 However, On 7 January 2019, the Guatemalan Executive Sweden. The result came in early May 2018, on 16 September 2018, the Constitutional announced its decision to denounce the treaty when US Senator Marco Rubio delayed Court declared the executive’s decision to that established the CICIG. The Executive funding for the CICIG8 in the belief that it forbid the CIGIC Commissioner entry to claimed that the CICIG, in its 11 years of had been “manipulated and used by radical Guatemala unconstitutional.15 The following existence, had violated national sovereignty elements and Russia”.9 The second move day the Ministers of Interior and Foreign and the human rights of the people that it came against the Swedish ambassador to Relations and Solicitor-General resisted the had investigated for corruption, and that Guatemala. On 11 May 2018, the Guatemalan Constitutional Court’s ruling by demanding the UN Secretary-General was ignoring the government requested the removal of the the UN Secretary-General to designate a petitions of the Guatemalan Government. 5 El Periódico, Ayuda de Memoria Reunión de Ministra de Relaciones Exteriores de la República de Guatemala con el Secretario General de las Naciones Unidas, 1\L]LZKL-LIYLYVKL O[[WZ!KYP]LNVVNSLJVTÄSLKP.5T2> >[>2J@a] >=7:LP, @82_:]PL^ 6 See: Carlos Arturo Villagrán Sandoval, Cancillería versus el sistema de justicia: Análisis de las críticas del Gobierno a la Cicig ante la ONU, Plaza Pública, https:// www.plazapublica.com.gt/content/cancilleria-versus-el-sistema-de-justicia-analisis-de-las-criticas-del-gobierno-la-cicig 7 United Nations Secretary-General, Remarks at High-level Debate Marking 15th Anniversary of Adoption of United Nations Convention Against Corruption, https:// www.un.org/sg/en/content/sg/speeches/2018-05-23/15th-anniversary-adoption-un-convention-against-corruption-remarks 8 Elisabeth Malkin, Guatemala Corruption Panel Has New Foe: U.S. Senator Marco Rubio, the 5L^@VYR;PTLZ, https://www.nytimes.com/2018/05/06/world/ameri- cas/guatemala-corruption-marco-rubio.html 95PUH3HROHUP*VYY\W[.\H[LTHSHUVɉJPHSZÄUKOLSWMYVTHU\USPRLS`ZV\YJL!4HYJV9\IPV;OL.\HYKPHU https://www.theguardian.com/world/2018/may/17/gua- temala-marco-rubio-corruption 10 Reuters, Guatemala asks Sweden, Venezuela to remove ambassadors over ‘interference’, https://www.reuters.com/article/us-guatemala-diplomacy/guatema- la-asks-sweden-venezuela-to-remove-ambassadors-over-interference-idUSKBN1IC06Y 11 Ibid. 12 Corte de Constitucionalidad, Expedientes Acumulados 2198-2018 y 2201-2018, 29 Mayo 2017, 7. 13 Carlos Arturo Villagrán Sandoval and Héctor Oswaldo Samayoa Sosa, ‘Investigaciones de corrupción y disminución de la impunidad en delitos contra la admin- istración del Estado y de la Justicia’ (Informe de situación en Guatemala) (2018) 150 9L]PZ[H(UmSPZPZKLSH9LHSPKHK5HJPVUHS 28, 37. 14 Ibid, 43. 15 Corte de Constitucionalidad, Expediente 4207-2018, 16 Septiembre 2018. 16 Villagrán Sandoval and Samayoa, (n 13) 43. 17 Corte de Constitucionalidad, Expediente 4207-2018, 19 Septiembre 2018. 18 Corte de Constitucionalidad, Expediente 5443-2018, 21 Diciembre 2018. 19 Corte de Constitucionalidad, Expediente 5346-2018, 6 Enero 2019. 126 | I•CONnect-Clough Center The UN Secretary-General strongly rejected little success at hearing constitutional himself. In addition, he ordered the removal the Government’s action against the disputes, as it lacked independence from of the Justices of the Supreme Court and CICIG.20 The Guatemalan Constitutional the Judicial Branch.24 This is why the new the Constitutional Court of Guatemala, to Court has accepted a constitutional amparo Constitution of 1986 created a permanent be able to unilaterally name new members challenging the denouncing of the treaty and independent Constitutional Court to be of these courts. He also ordered the removal and suspending its effects pending a final the highest court in constitutional matters. of the Attorney General and Ombudsman of determination.21 On 12 January 2018, the The Constitutional Court of Guatemala Guatemala. CICIG Commissioner made public a letter has played a pivotal role in the country as addressed to the UN Secretary-General that guardian of the constitutional order and as These measures were an evident rupture rebuts all of the Government’s allegations.22 promoter and protector of human rights. It of Guatemala’s constitutional order and an Today, CICIG personnel have left the country is because of the Court’s jurisprudence that authoritative move in order to expand his and its commissioner, Ivan Velásquez, is still international labor law standards, women’s powers. The Constitutional Court played not allowed back. rights, and indigenous people’s rights, a pivotal role in the re-establishment of among other relevant topics, have been constitutional order. In an unprecedented In a parallel move, the Executive and able to progress in Guatemala. However, its manner,25 and risking their personal safety its supporters in Congress have sought history has not been without pitfalls. Among at the time,26 the Justices of the Court to impeach judges of the Constitutional its landmark decisions, it is important to note decided to review the decree on the same Court. On 9 January 2018, the Supreme the following three cases that have shaped day that it was passed and declared that Court of Guatemala resolved that there are Guatemala´s constitutional development. its provisions were unconstitutional.27 In grounds for impeaching the judges of the this ruling, the Court determined that the Constitutional Court on the basis that they Re-establishment of constitutional order after order to dissolve Congress was contrary to exceeded their constitutional mandate in the attempted self-coup the Constitution and that members of the Swedish ambassador case and the CICIG judicial branch cannot be removed from matters, unconstitutionally intruding on Jorge Serrano Elias was elected President their position during their tenure, except issues within the sole competence of the of Guatemala in 1991, becoming the second in the specific situations established by the Executive, such as foreign relations.23 The President democratically elected under the law.28 Moreover, the President does not judges face the prospect of impeachment in current Constitution after a history of recurring have the faculty to remove serving judges Congress, where the President’s party holds authoritarian and military governments. The unilaterally, which rendered his decree a majority. The impeachment attacks the core official party did not have high representation unconstitutional, evidencing a breakdown of of judicial independence. These events are in the legislative branch and the alliances that Guatemala’s constitutional order, which the leading Guatemala towards a constitutional were initially made in Congress did not last. Court could not let happen. It is important crisis, sparking public protests but with no This, coupled with public discontent due to to note that the Court’s decision to act ex clear resolution in sight. rising living costs and poorly planned public officio, which is not expressly allowed in policies, led to a difficult scenario for the the Constitution or laws of Guatemala, III. CONSTITUTIONAL CASES President, who decided to take extreme and reflected the Court’s understanding of the anti-democratic measures. In 1993, Serrano gravity of the situation and its duty to act in The Guatemalan Constitution of 1965 Elias attempted a self-coup. By a presidential an unequivocal and compelling manner in established a Constitutional Court that decree under the name of “Temporary Rules defense of the Constitution and Guatemala’s served as a non-permanent tribunal, of Government”, Elias suspended certain young democracy. There has been no other convening only when necessary. This constitutional provisions that protected issue since that has forced the Court to act Court was composed of members of the individual rights and ordered the dissolution ex officio. Supreme Court. The model proved to have of Congress to assume legislative powers 20 UN News, Guatemala: UN anti-corruption body will continue working, as Constitutional Court blocks Government expulsion, https://news.un.org/en/sto- ry/2019/01/1030142 21 Corte de Constitucionalidad, Expedientes Acumulados 96-2019, 97-2019, 99-2019, 106-2019 y 107-2019, 09 Enero 2019. 22 UN News, UN anti-corruption body in Guatemala rebuts government’s reasons for expulsion order https://news.un.org/en/story/2019/01/1030372 23 Los Angeles Times, Crisis builds in Guatemala as its legislature seeks to impeach judges, https://www.latimes.com/world/la-fg-guatemala-corruption-cri- sis-20190110-story.html 24 Adolfo Gonzalez Rodas, La Corte de Constitucionalidad de Guatemala, https://archivos.juridicas.unam.mx/www/bjv/libros/1/219/3.pdf, p. 20. 25 ElPeriódico, A 25 años del Serranazo, https://elperiodico.com.gt/opinion/2018/05/25/a-25-anos-del-serranazo/ 26 Rodolfo Rohrmoser Valdeavellano, De cómo viví el Serranazo, XV Opus Magna Constitucional, 2018. 27 Prensa Libre, 1993: Guatemala retorna a la institucionalidad, https://www.prensalibre.com/hemeroteca/serrano-abandona-la-presidencia-de-guatemala/ 28 Corte de Constitucionaldidad, Expediente 225-93, 25 May 1993. 2018 Global Review of Constitutional Law | 127 During the days that followed the Court’s protest, which turned violent and resulted of the Constitutional Court. It is important ruling, Serrano Elías was still in power, but in the unfortunate death of reporter Hector to note that the Guatemalan legal system the strong social opposition to the attempted Ramirez. A week later, the Constitutional does not contemplate any proceeding by self-coup and the backing of Guatemala’s Court, on appeal, overturned the Supreme which a citizen, who was not a party in Army and economic sector allowed the Court’s decision, allowing Rios Montt to the original case, can ask a Court to annul Court’s decision to be enforced. On 31 May run for the presidency. In its judgment, the a ruling after it has been decided and duly 1993, the Minister of Defense addressed Court recognized that it is publicly known executed. However, the Court indicated, in a the nation to announce that following the that Rios Montt assumed the presidency of far-reaching interpretation of the principle of Court’s ruling, President Elías had stepped Guatemala after the coup that overthrew pro actione, that a citizen should be allowed down.29 This ruling has been analyzed and President Romeo Lucas Garcia in 1982. to seek access to constitutional justice, even applauded at a domestic and regional level However, the Court centered its analysis through procedures that are not expressly as the single most transcendent decision of on determining whether the constitutional established in the Constitution or applicable Guatemala’s Constitutional Court. prohibition that would apply in Rios Montt’s law. Thus, the Court proceeded to analyze case would produce retroactive effects, given the petition and determined that the Court’s Acceptance of Rios Montt’s presidential can- that the facts that caused him to be barred ruling on the presidential candidacy of Rios didacy despite constitutional prohibition from being a presidential candidate happened Montt was wrongly decided, not only because before the Constitution was passed in 1985. the textual interpretation of the constitutional Efrain Rios Montt was a military leader, The Court acknowledged the constitutional prohibition was inadequate but also because politician, and founder of the right-wing history of Guatemala and the authoritarian the decision failed to adhere to precedents Frente Republicano Guatemalteco party. governments and events that led Constitution- in other cases on retroactive application. After the 1982 coup that struck down the makers to include such a prohibition, but Consequently, the Court declared that the then-President Romeo Lucas Garcia, Rios it also cited Article 15 of the Constitution, ruling should have no jurisprudential effect. Montt was proclaimed the new President of which establishes that the law shall not have This resolution constitutes the only one of *XDWHPDOD :KHQ WKH FXUUHQW &RQVWLWXWLRQ retroactive effects. The majority of the Court its kind in the history of the Guatemalan was passed in 1985, it established different concluded that constitutional norms were Constitutional Court. prohibitions to run for President to prevent made to have effect only in the future, and a return to authoritarian governments so applied only to events that occurred after Recognition of the “Constitutional Block” and anti-democratic events. Among these 1985, when the Constitution was passed. prohibitions, Article 186 of the Constitution Thus, Article 186(a) could not be applied In 1985, Guatemalan Constitution-makers provides that no former leader of a coup to Rios Montt’s presidential candidacy, as established two articles to give wide d’etat or anyone who has “significantly this would mean that it has unconstitutional recognition to human rights. Article 44 altered the constitutional order” of the retroactive effects.32 The Court’s decision provides that the rights expressly established country by a similar movement can be that Rios Montt should be allowed to run for in the Constitution do not exclude other a presidential candidate.30 Given this the presidency was contrary to a previous rights that are inherent to human beings. prohibition, when Efraín Rios Montt decided ruling33 by the Constitutional Court that had Article 46 indicates that International Human to run for President31 in the 2003 elections, determined that he could not run for President Rights Treaties have a special place in the his candidacy was denied by the Guatemalan in the 1990 elections and was contrary to hierarchy of legal norms, prevailing over electoral authorities. the interpretation of this issue by the Inter- “internal law”. This provision represents a American Commission of Human Rights.34 clear intention of give special prominence Ríos Montt filed a writ of amparo to have this to International Human Rights Law, a decision reviewed. The Supreme Court of The decision was very polarizing. The shared characteristic among many other Guatemala upheld the denial of his candidacy Court’s resolution was not unanimous as Latin American Constitutions. However, its due to the constitutional prohibition. This three of the seven members of the Court meaning has been subject to much academic ruling caused much unrest among Rios presented dissenting votes. This became debate over the years, and the Guatemalan Montt’s followers and on 24 July 2003, relevant in 2006, when a petition to annul Constitutional Court, in many of its rulings party leaders and members led a massive the ruling was presented to new members since the 1990s, has interpreted the phrase 29 Midori Papadópolo, Del 25 de Mayo hasta las reformas a la Constitución, http://biblio3.url.edu.gt/Publi/Libros/2013/papadopolioo.pdf, 4. 30 Constitution of Guatemala, article 186. 31 See: ElPeriódico, Efraín Ríos Montt: una historia controversial y polémica, https://elperiodico.com.gt/nacion/2018/04/02/efrain-rios-montt-una-historia-controver- sial-y-polemica/ 32 La Nacion, Efraín Ríos Montt ya es candidato, https://www.nacion.com/el-mundo/efrain-rios-montt-ya-es-candidato/2MXJLHTHAND5FN6NDQ76JEYKB4/story/ 33 Corte de Constitucionalidad, expediente 280-90, 19 Octubre 1990. 34 Comisión Interamericana de Derechos Humanos, Informe No. 30/93-Caso 10.804 Guatemala, 12 Octubre 1993. 128 | I•CONnect-Clough Center “shall prevail over internal law” to mean In its decision, the Constitutional Court another important challenge for the Court at that Human Rights Treaties are superior to determined the extent of the Constitutional the hands of a government with authoritarian ordinary Guatemalan legislation, but inferior Block that allows for incorporation into tendencies that places the obtainment of its to the Constitution.35 the Constitution those international norms objectives over the respect and promotion of that refer to human rights, even when the the rule of law. The doctrine of the Constitutionality rights and liberties guaranteed by them do Block, which originated in Europe, gained not figure expressly in the Constitution. 2019 is an election year in Guatemala. importance among academics in the Latin This interpretation is based on the Citizens will elect the next President, American region and slowly obtained acknowledgment of the difference between municipal authorities, and members of recognition among courts in some countries, a formal Constitution, limited to what is Congress. The outlook is grim in regards including Panama, Costa Rica, Colombia, expressly written in the text, and a material to a true renovation of the political elite and Peru.36 This, coupled with the strong Constitution, encompassing other rights and in Guatemala that can allow for a process influence of the Inter-American Court of liberties that seek to protect human dignity of transformation in governance and the Human Rights’ jurisprudence, made way in and place individuals at the Constitution’s eradication of corruption. The Constitutional 2012 for the Guatemalan Constitutional Court center and reason of being. Moreover, this Court will have to be prepared to hear cases to recognize the doctrine of the Constitutional ruling established that the Constitutional regarding electoral issues. One such issue will Block, and thus to overturn its original Court of Guatemala, as the highest tribunal be whether members of Congress who have interpretation of Article 46. Up to this point, in constitutional matters, is competent to switched political parties will be able to run the Court had held that since Human Rights determine the international instruments that for re-election, as a reform to the legislative Treaties were inferior to the Constitution, are part of the Constitutional Block. branch’s laws resulted in the prohibition of they could not be used as a parameter to transferring to different parties. Party hopping determine the validity of ordinary legislation. By recognizing the Constitutionality Block, has been a strategy used to advance personal In other words, inconsistency with a Human the Constitutional Court of Guatemala made and political objectives and had become a Rights Treaty was not a ground to strike way for a new era in its jurisprudence, systemic issue among members of Congress down a law. In this leading case,37 the Court allowing for rigorous conventionality control who seek to align with the party that best overturned this previous interpretation and and a broader protection of human rights serves them at any one moment, without acknowledged that Human Rights Treaties through international law standards. regard for the party’s ideology or stance on should be at the same hierarchical level important issues. Another issue that may come as the Constitution. Consequently, they IV. LOOKING AHEAD before the Court concerns the candidacy of should also be a constitutional parameter Zury Rios, daughter of former General Rios for judicial review. The case that allowed The tension between the Guatemalan Montt. Rios will seek the presidency through for this recognition involved the review of a Government, the CICIG, and the a newly established conservative party that legislative omission in the Guatemalan penal Constitutional Court of Guatemala is set aligns with the same values and ideology that code in which the article establishing the to continue in the near future. Despite the her father’s Frente Republicano Guatemalteco crime of torture omitted certain important Court’s recent ruling, which stated that the once did. However, she is also subject to a elements mandated by treaties ratified by Commission must be allowed to end its constitutional prohibition, as Article 186(c) Guatemala, notably the Convention against mandate without Government interference, establishes that close relatives of people in Torture and Other Cruel, Inhuman or CICIG officials have left the country, and her father’s situation may not be presidential Degrading Treatment or Punishment and the the Commission will surely be limited candidates either. Inter-American Convention to Prevent and in its work until the termination of the Punish Torture. This decision was innovative agreement between Guatemala and the From a procedural point of view, the Court from a procedural perspective as well, since UN. The Constitutional Court will face will seek to continue recent efforts to control it was the first ruling in which the Court different challenges. Five judges are facing the rising number of writs of amparo that decided that it was feasible to review not only impeachment charges in Congress. The come before it by strengthening its procedural norms passed by Congress but also legislative Court will need to strengthen institutionally requirements. Many of these actions are filed omissions. in the face of a highly divided society. The in an attempt to delay the underlying issues, enforcement of its decisions is proving to be and the Court cannot formally dismiss cases 35 Corte de Constitucionalidad, expediente 280-90, 19 octubre 1990; Corte de Constitucionalidad, expediente 199-95, 18 mayo 1995; Corte de Constitucionalidad, expediente 334-95, 26 marzo 1996. 36 Manuel Eduardo Góngora Mera, La difusión del Bloque de Constitucionalidad en la Jurisprudencia Latinoamericana y su Potencial en la Construcción del Ius Constitutionale Commune Latinoamericano, http://www.corteidh.or.cr/tablas/r31277.pdf, p.303. 37 Corte de Constitucionalidad, expediente 1822-2011, 17 Julio 2012. 2018 Global Review of Constitutional Law | 129 that it deems unworthy of an analysis on the merits. Thus, by applying criteria reiterated in previous cases, it will continue to seek to decongest the extremely heavy load of issues that come before it. V. FURTHER READING Villagrán Sandoval, Carlos Arturo, and Héctor Oswaldo Samayoa Sosa, “Investigaciones de corrupción y disminución de la impunidad en delitos contra la administración del Estado y de la Justicia” (Informe de situación en Guatemala) (2018) 150 Revista Análisis de la Realidad Nacional, 28. 130 | I•CONnect-Clough Center Hong Kong Cora Chan, Associate Professor – Faculty of Law, University of Hong Kong PY Lo, Barrister-at-Law – Gilt Chambers, Hong Kong Swati Jhaveri, Assistant Professor – Faculty of Law, National University of Hong Kong I. INTRODUCTION The first event concerned the co-location of immigration, customs and quarantine Hong Kong is a Special Administrative Region clearance facilities of both Hong Kong and of the People’s Republic of China governed Mainland China at a newly built train station HONG KONG under a Basic Law adopted pursuant to the in Hong Kong. Chinese Constitution. In this report, we will report on developments in three main areas: The train station and the associated railway 1) the constitutional relationship between were constructed to connect Hong Kong with 1 China and Hong Kong; 2) sexual minority China’s high-speed rail network. The Hong rights; and 3) political rights. Kong Government announced in 2017 the implementation of a co-location arrangement II. Major Constitutional Developments: that would deploy Mainland Chinese officers Constitutional relationship between Central at a “Mainland Port Area” of the Hong Kong Authorities and Hong Kong Special station to conduct clearance procedures for Administrative Region passengers in accordance with Mainland Chinese laws.2 Two events in 2018 had important implications on the constitutional relationship This ignited an intense debate in Hong between the Central Authorities and Hong Kong on the validity of the co-location Kong. One concerned the application of arrangement, not least because the Basic Chinese laws and jurisdiction in Hong Kong Law states that Chinese laws shall not and the way the Central Authorities may apply to Hong Kong except for those listed issue binding decisions on the territory. in Annex III of the Basic Law (the latter to The other concerns the disqualification of be limited to defence, foreign affairs and candidates or legislators for their inability other matters outside of the autonomy of 3 (actual or perceived) to observe the ritual of Hong Kong On 18 November 2017, Hong oath-taking. In both cases the matter found Kong’s Chief Executive and the Governor its way to the courts. of Guangdong Province signed the Co- operation Arrangement for implementing the 1 Information Service Department, ‘10 projects to boost economy, add jobs’ (10 October 2007) (at: https://www.news.gov.hk/isd/ebulletin/en/category/infrastructureandlogistics/071010/htm- l/071010en06002.htm) (last accessed on 26 February 2019). 2 See Department of Justice, Transport and Housing Bureau and Security Bureau of the HKSAR Government, ‘Customs, Immigration and Quarantine Arrangements of the Hong Kong Section of the Guangzhou-Shenzhen-Hong Kong Express Rail Link’ (LC Paper No CB(2)1966/16-17(01)) (July 2017) (at: http://www.legco.gov.hk/yr16-17/english/hc/papers/hccb2-1966-1-e.pdf) (last accessed on 26 February 2019). 3-VYKPZJ\ZZPVUZZLL7@3Vº/VUN2VUN»Z 2018 Global Review of Constitutional Law | 131 co-location arrangement.4 On 27 December entertain arguments based on the doctrines office. The Interpretation went beyond the 2017, the National People’s Congress of “basic structure” and “unconstitutional usual interpretative function of clarifying Standing Committee (NPCSC) adopted FRQVWLWXWLRQDODPHQGPHQWV´:HVXJJHVWWKDW or explaining the terms of a provision; it a decision to approve the Co-operation this judgment failed in two respects. First, stipulated the manner of taking an oath and Arrangement. In June 2018, Hong Kong’s the judge “fails to notice the fundamental the consequences of failing to take one, Legislative Council passed the implementing breach of Article 11 of the Basic Law … matters that had previously been provided for local legislation. that no law enacted by the legislature of in local legislation. The Interpretation also the HKSAR shall contravene [it], whose added that persons standing for election in Section 6 of the Ordinance states: ‘‘(1) provisions form the basis of the systems and Hong Kong must meet the legal requirements Except for reserved matters, the Mainland policies practised in [Hong Kong], including and preconditions of upholding the Basic Port Area is to be regarded as an area the system for safeguarding the fundamental Law and bearing allegiance to the Hong lying outside Hong Kong but lying within rights and freedoms of its residents, the Kong Special Administrative Region. The the Mainland for the purposes of: (a) the judicial system, and the relevant policies.”8 Court of Appeal held that this Interpretation application of the laws of the Mainland, Second, he did not grapple with the Central was “unquestionably binding”, refusing to and of the laws of Hong Kong, in the Authorities’ de facto suspension of the entertain a request to consider whether it Mainland Port Area; and (b) the delineation operation of Basic Law provisions by the went beyond the limits of an interpretation of jurisdiction (including jurisdiction of the NPCSC decision purporting to endorse the allowed by the Basic Law. The Court of Final courts) over the Mainland Port Area; and (2) co-location arrangement. The implication Appeal declined to grant leave to appeal. Sub-section (1) does not affect the boundary of this, when considered alongside the The implications of this on political rights of the administrative division of the [Hong NPCSC’s final power of interpreting the of access to participate in public affairs is Kong Special Administrative Region] …”. Basic Law under Article 158 of the Basic discussed in Section III(2) below. Law, is that the Basic Law does not pose any Legal challenges against the Ordinance constraints on the Central Authorities.9 III. CONSTITUTIONAL CASES were lodged.5 Two of the applicants applied unsuccessfully to halt the commencement of The other controversy related to the 1. Sexual Minority Rights the Ordinance.6 The co-location arrangement disqualification of candidates and elected came into operation on 22 September legislators who supported or did not Recent years have seen an increasing 2018. The hearing of the challenges came dismiss the idea of Hong Kong becoming number of individuals challenging the Hong afterwards in October 2018. an independent state, or the idea of self- Kong government on sexual minority rights determination, on the ground that they failed issues through judicial review. This section The Court of First Instance dismissed all to observe, or could not satisfy an official summarizes two key judgments in 2018—QT these applications.7 Although the judge that they intended to observe, the promissory v Director of Immigration10 and Leung Chun outlined the main arguments on why the oath they were or would have been required Kwong v Secretary for Civil Service11—and Ordinance was inconsistent with Basic Law to take on assuming office. makes observations that will be relevant provisions, he ruled in favour of consistency to the numerous pending cases on sexual without evaluating them, preferring to say The NPCSC issued an interpretation of Article minority rights, including one that challenges that on a fair reading of the Basic Law and 104 of the Basic Law (“Interpretation”) on 7 the non-availability of civil partnership having regard to its context and purpose, it November 2016 to deal with the disrespectful and marriage to same-sex couples. Given was open to the Hong Kong legislature to actions of two elected legislators in taking the government’s unwillingness to offend enact the Ordinance. He also considered the their oaths to assume office. Article 104 majoritarian views on sexual mores, it NPCSC’s Interpretation to be of conclusive provides that certain officers shall take an is expected that affected individuals will weight, despite there being no specific oath to swear to uphold the Basic Law and continue to take the government to court. basis in the Basic Law for the NPCSC to bear allegiance to the Hong Kong Special issue such a decision. Further, he refused to Administrative Region when assuming 4 See the HKSAR Government’s press release on 18 November 2017 (at: http://www.info.gov.hk/gia/general/201711/18/P2017111800419.htm). 5 Namely, HCAL 1160, 1164, 1165, 1171 and 1178/2018. 6 See 9L3L\UN*O\UN/HUN:P_[\Z 6YZ[2018] HKCFI 1869 [2018] 5 HKC 138 (CFI). 7 See9L3L\UN*O\UN/HUN:P_[\Z 6YZ(No 2) [2018] HKCFI 2657 [2019] 1 HKC 104 (CFI). 8 Ibid 9 See Cora Chan, ‘Thirty years from Tiananmen: China, Hong Kong, and the ongoing experiment to preserve liberal values in an authoritarian state’ (2019) 17(2) 0U[LYUH[PVUHS1V\YUHSVM*VUZ[P[\[PVUHS3H^ (forthcoming). 10 [2018] HKCFA 28 (2018) 21 HKCFAR 324. 11 [2018] HKCA 318 [2018] 3 HKLRD 84. 132 | I•CONnect-Clough Center Leung is a civil servant who has entered into visas to spouses in foreign registered same- is a relevant similarity between him and the a foreign registered marriage with his same- sex partnership was discriminatory. The FRPSDUDWRU:KDWWKHJRYHUQPHQWFDQQRWGR sex partner. He challenged the government’s Court of Final Appeal rejected the Court is defend differences in treatment between existing policy on tax and other benefits for of Appeal’s “core rights and obligations” married and unmarried couples simply on the spouses of civil servants. This policy approach. It reiterated a point that Ma CJ the basis that the former are unmarried. recognizes only spouses in marriages that previously made in Fok Chun Wa v Hospital are given legal status in Hong Kong, i.e., Authority:13 that the two-stage approach Second, although the courts in QT, Leung and heterosexual and monogamous marriage. was not a strait-jacket—it would be rare for a previous landmark case, W v Registrar of The Court of Appeal affirmed the two-stage the court to be able to rule whether the two Marriages15 (which allowed post-operative approach to finding discrimination: first, is persons have enough of a relevant difference transsexual persons to marry in their post- the applicant in a comparable position to the to justify the differential treatment without operative gender), all accepted that the right FRPSDUDWRU WKH FRPSDUDWRU VWDJH " LI VR going through the proportionality test.14 to marry under the Basic Law extends only then the court proceeds to assess whether the The court criticized the “core rights and to heterosexual couples, and the court in differential treatment passes the four-stage obligations” approach as being circular and Leung stated that protecting the traditional proportionality test that asks whether the subjective. It was not clear, for example, why concept of marriage is a legitimate aim, differences in treatment pursue a legitimate adoption or succession should be exclusively these propositions were in fact common aim, are rationally connected to the aim, are reserved for married couples. The correct ground between the parties in these cases. It no more than necessary for achieving the aim approach should be to subject “every alleged is open to applicants in the future—including and strike a fair balance between the harm to case of discrimination” to the proportionality Leung in his final appeal—to dispute these the individual right and the benefit to society test. Applying this approach, the court found propositions, which are not uncontroversial. (the justification stage).12 More importantly, that the denial of dependent visas to spouses the court affirmed the “core rights and in same-sex partnerships was not rationally Third, the Court of Appeal stated that whether obligations” approach that one of its judges connected to the aim of striking a balance a right is core to marriage is determined by, (Cheung CJHC, as he then was) previously between attracting talent to Hong Kong and inter alia, tradition and social usage, and developed in the Court of Appeal judgment maintaining stringent immigration control. would often be a matter of “common sense”, of QT. According to this approach, insofar “representing nothing other than one’s as differences in treatment between married A number of observations regarding these ‘intuition’ or ‘instinct’”.16 One problem and non-married couples are concerned, two cases are worth highlighting. First, with this approach is that the court allowed the comparator stage enquires whether the although the Court of Final Appeal stated social views to define minority rights and benefit denied goes to the “areas of life which that all alleged cases of discrimination have may enable entrenched social prejudices are, whether by nature or by tradition or long to go through the proportionality test, hence against minority groups to persist, contrary usage, closely connected with marriage” seemingly doing away with the comparator to it’s role to guard minority rights against such that any denial of such benefits to non- stage, it is clear that the court still has to majoritarian intrusion. Despite the Court of married couples need not go through the apply some test to see if the comparators Final Appeal’s rejection of the core rights justification stage. Divorce, adoption and are in an analogous position such that a approach, the jurisprudence shows that succession were given as examples. The prima facie case of discrimination has social views will continue to play key roles Court of Appeal held that although tax and been made out. In fact, the court itself in determining what rights sexual minorities other spousal benefits are not rights that are assessed that homosexual civil partners enjoy. In Leung, social views were relevant core to marriage, the denial of such benefits and heterosexual married couples were in determining whether the second to fourth to same-sex spouses is a proportionate analogous because they were capable of stages of the proportionality test were passed: measure to protect the uniqueness of the “having equivalent interdependent and second stage – the court reasoned that if a status of marriage in Hong Kong, which the interpersonal relationships”. The judgment’s non-core right has nevertheless been long court deemed to be a legitimate aim. rejection of the “core rights and obligations” associated with married couples, opening it approach should therefore not be taken to up to non-married couples may weaken the Shortly after the Court of Appeal handed have overruled the two-stage approach to status of marriage; third and fourth stages down its judgment in Leung, the Court finding discrimination altogether. To show – the court held that given the societal of Final Appeal in QT held that the a prima facie case of discrimination, the preference for heterosexual marriage, courts government’s policy of denying dependent applicant would still need to show that there should be slow to conclude that these stages 12 At [96]. QT v Director of Immigration [2017] 5 HKLRD 166 at [14]. 13 (2012) 15 HKCFA 409 at [58]. 14 At [83]. 15 (2013) 16 HKCFAR 112. 16 QT v Director of Immigration [2017] 5 HKLRD 166 at [14] [16] [18]. 2018 Global Review of Constitutional Law | 133 were not passed. These propositions survived residents “shall have the right to vote and to was a sitting legislator who sought to run for QT, where the court did not have to assess stand for election in accordance with law”. election as a rural representative of a village the measure at stake against the legitimate In the past year, there have been a number of in a locally governed district in Hong Kong, aim of protecting the traditional concept high-profile restrictions imposed on access which was not one of the offices referred to of marriage. Indeed, the Court of Appeal to elections. As discussed in Part I, one of in Article 104 (which was the subject of the and Court of Final Appeal in QT refused to these incidents involved the disqualification NPCSC’s interpretation referred to in Part I). speculate on what the outcome of the case of duly- elected members of the Legislative would be if the legitimate aim had been Council (LEGCO) on the basis that they In the case of Chan Ho Tin v Lo Ying Ki Alan phrased as such. Social views would also had improperly taken the oath required to & Ors,23 the petitioner challenged—by way be relevant in determining who is entitled confirm their office. Following those cases, of an election petition—the decision of the to get married. All of the jurisprudence on the Court of First Instance adjudged that four returning officer to invalidate the nomination sexual minority rights so far (including the more legislators were disqualified because of the petitioner, who was the convenor of the judgments that extended sexual minority of their inappropriate oath-taking manner.20 Hong Kong National Party. The invalidation ULJKWVVXFKDV47DQG: HPSKDVL]HGWKDW Subsequently, the Court of First Instance was done on the grounds that the petitioner — it is for society, not the court, to determine dismissed the election petition of a pro- and his party—advocated the independence whether same-sex couples may get married. independence individual whose nomination of Hong Kong from the People’s Republic Hence, despite the overruling of the “core was invalidated because the returning officer of China, which had the aim of nullifying the rights and obligations” approach, social was not satisfied that he intended to uphold Basic Law. Pursuant to Section 40(1)(b)(i) views will continue to play a crucial role in the Basic Law (including Article 1, which of the Legislative Council Ordinance (Cap. determining sexual minority rights. states that Hong Kong is an inalienable part 542), a valid nomination by a candidate of China).21 requires a declaration that they will uphold This brings us to the fourth point. Despite the the Basic Law and pledge allegiance to the Court of Final Appeal’s recent liberalisation Candidates standing in Hong Kong elections Hong Kong Special Administrative Region. of rights for sexual minorities (that fall that were held during the reporting period The petitioner did not provide confirmation short of granting same-sex marriage), it has had their nominations scrutinized by of his declaration. The returning officer remained extremely cautious in extending returning officers who “took account” of the accordingly decided that his nomination was the definition of marriage to cover same-sex Interpretation by the NPCSC discussed in invalid and that, based on the publicly held couples. It is clear that unless there is clear Part I. views of the petitioner, he was not going evidence of changes in societal views in to uphold the Basic Law. The petitioner favour of same-sex marriage, the court will This section focuses on a newer restriction on challenged this decision on the basis that the not affirm and uphold such right. The courts access to the political arena: restrictions on returning officer’s invalidation was unlawful. have been careful to avoid the core issue of political parties and their members because Specifically, that the returning officer took same-sex marriage, but they will have to they are advocating self-determination. As into account irrelevant considerations. The face this issue head-on in the pending cases a result of the oath-taking decisions, Agnes consequence of the petitioner’s application of MK v Government of HKSAR,17 TF v Chow, Lau Siu-lai and Eddie Chu all had was the invalidation of the subsequent Secretary for Justice18 and STK v Secretary their respective nominations for standing election of various candidates to their relevant for Justice.19 for election ruled invalid because each had seats in the LEGCO. The petitioner further previously expressed support for “self- argued that the appropriate remedy was not 2. Political Rights: Right to Participate in determination” of the Hong Kong people.22 to invalidate his nomination, but to subject Political Affairs All three are seeking to challenge the returning him to relevant criminal consequences under officer’s decision by election petition. Eddie the Electoral Affairs Commission (Electoral Article 26 of the Basic Law sets out that all Chu’s case was the most curious, since he Procedure) (Legislative Council) Regulation 17 HCAL 1077/2018. 18 HCAL 2648/2018. 19 HCAL 2682/2018. 20 One of the four, Leung Kwok Hung, appealed unsuccessfully against the judgment appeal ([2019] HKCA 173). 21:LL7@3Vº,UMVYJPUNHU 134 | I•CONnect-Clough Center (Cap. 541D) for making a false declaration. More so, any constitutional arguments reforming the mode of electing the Chief If convicted under this regulation, a returning (based on the right to stand for election) Executive and the members of the LEGCO, officer has the power to retroactively must be read in light of the requirements of respectively. The process for reform (in disqualify a candidate pursuant to Section Article 104 (as interpreted by the NPCSC). terms of the requisite majority in LEGCO, 42(B)(4) of the Legislative Council The relevant rights relied on by the petitioner the consent of the Chief Executive and the Ordinance. The petitioner also argued that were not absolute and could be subject to a role of the legislative body of the People’s the returning officer lacked the power to proportionality assessment. This required Republic of China (NPCSC) is also set out disqualify a nomination on grounds of formal assessing: (a) whether any restriction on the in the text. Annexes I and II of the Basic Law versus substantive validity. It would, in fact, right to stand for election was legitimate; (b) state that any changes should “be reported be unlawful for the returning officer to look the restriction was rationally connected to to the [NPCSC] for the record” (in the case into substantive matters, such as whether the a legitimate aim; (c) the restriction was no of the election of members of LEGCO) or nominee had a genuine intention to uphold more than reasonably necessary or was not “for approval” (in the case of the election the Basic Law. Finally, the petitioner raised manifestly without reasonable foundation of the Chief Executive).27 :KLOH$QQH[HV, various constitutional grounds, including to achieve the aim; and (d) a reasonable and II make clear that the NPCSC has a role the fact that the returning officer’s decision balance had been struck between the benefits to play in political reform, this is only at the infringed on his right to stand for election of the restriction and the encroachments on end of the reform process once any reform and the voters’ right to vote on the basis of the relevant rights.25 This test was satisfied package has been voted on by LEGCO and their beliefs. in the present case. The legitimate aims of approved by the Chief Executive. Paragraph the restrictions (imposed by the declaration 7 of Annex I states that any amendments to In response to the petitioner’s arguments, for a valid nomination that the candidate will the method for selecting the Chief Executive the Court of First Instance held that the uphold the Basic Law) were to protect the “shall be reported to the [NPCSC] for Interpretation by the NPCSC issued under overall constitutional order, maintain public approval” (emphasis added). Paragraph (III) Article 104 of the Basic Law clearly confidence in LEGCO and maintain public of Annex II states that any amendments to indicated that the declaration for nomination order. The requirement for a candidate to the method for selecting LEGCO “shall be as an electoral candidate was a substantive make a truthful declaration only denied reported to the [NPCSC] for the record” requirement. The substantive purpose of candidacy to those who advanced the (emphasis added). The political reform the declaration was plain: members of the negation of constitutional order, and there process was therefore envisaged as one LEGCO were to serve Hong Kong within was thus a rational connection between the that would be primarily locally initiated, the constitutional framework established restriction and legitimate aim of the former. driven and led. However, through various by the Basic Law. Fundamental to this duty In these circumstances, the court was unable interpretations and decisions relating to the was the upholding of the establishment to imagine alternative modes of achieving the relevant provisions of the Basic Law, the of Hong Kong as a special administrative legitimate aim and it was, in fact, consistent NPCSC created a new role for itself at the region of China and the maintenance of with the constitutional order of the Hong inception of the reform exercise and then the “one country, two principles” ideal.24 Kong Special Administrative Region that exercised this role in problematic ways. Interpreting the requirements of the Section such a restriction should be maintained. The distinction between a “decision” and an 40(1)(b)(i) nomination as just a formal “interpretation” by the NPCSC is unclear. requirement would also result in an “absurd” For the benefit of the petitioner, the court The NPCSC has provided no indicators or interpretation of the provision. It would be did hold that any nominee must generally be guidance on when it will issue one over the absurd for a nominee to submit a formally accorded a reasonable opportunity to respond other on a particular issue, but the purported valid declaration but act in a way that to any materials that the returning officer effect of both instruments appears to be the indicated they had no intention of upholding was relying on as negating the nominee’s same from their texts: they are promulgated the Basic Law. Such irrationality could not intention to uphold the Basic Law. as authoritative positions on a particular have been intended by the drafters of the provision of the Basic Law. These various legislation. The returning officer accordingly The development of a system of direct interpretations and decisions on the meaning did have the power to assess the substantive elections was a significant focus during and implementation of provisions of the compliance of any nomination as well as its the Sino-British negotiations prior to Hong Basic Law arguably augment and amend the formal compliance. Kong’s handover to China.26 The provisions provisions outside the proper constitutional of the Basic Law set out the parameters for amendment procedures set out in the Basic 24 Relying on *OPLM,_LJ\[P]LVM[OL/VUN2VUN:WLJPHS(KTPUPZ[YH[P]L9LNPVU]7YLZPKLU[VM[OL3LNPZSH[P]L*V\UJPS [2016] 6 HKC 541, [2017] 1 HKLRD 460 considered (paras 53-56). 25 Hysan Development Co Ltd v Town Planning Board [2016] 6 HKC 58 at [152]. 26 See Michael Davis, *VUZ[P[\[PVUHS*VUMYVU[H[PVUPU/VUN2VUN¶0ZZ\LZHUK0TWSPJH[PVUZVM[OL)HZPJ3H^ (Palgrave Macmillan, 1990) especially 27-29. See also, Swati Jhaveri, ‘Reconstitutionalizing Politics in the Hong Kong Special Administrative Region’ (2018) 13(1) Asian 1V\YUHSVM*VTWHYH[P]L3H^ 27-57. 27 Annex II, Part III and Annex I, para 7, Hong Kong Basic Law. 2018 Global Review of Constitutional Law | 135 Law. The gradual increase in input from report). It would be interesting to test this members of the LEGCO to raise questions the NPCSC on the interpretation of the hypothesis empirically. during debate. There will also need to be a Basic Law could be detrimental from the concerted effort on the part of administrative perspective of furthering interpretations In terms of rights of access to the political authorities (such as the police and returning that are sensitive to the rule of law as arena, the constitutional issues will largely officers) to be cautious in the exercise of practiced and understood in Hong Kong.28 be more systemic in their impact on political their discretion to restrict access to the Dissatisfaction with the progress of electoral parties generally. The barriers on Hong Kong political arena. reform towards universal suffrage has led National Party members from running for to mass movement—such as the Umbrella election in the LEGCO were subsequently More broadly, it has to be recognised Movement and the establishment of pro- felt on the party as a whole. In July 2018, that the court’s position on matters that independence parties. they received a notice under the Societies implicate the role of the Central People’s Ordinance that the police were likely to Government’s role in relation to Hong IV. LOOKING AHEAD ban the party. This was on the grounds Kong may ultimately be precarious. As that they were (or likely to be) engaging in a matter of political reality, the NPCSC First, in the area of sexual minority rights, seditious activity due to their beliefs. Key and the Central People’s Government are how the mentioned cases and those pending members of the party appealed the ban to unlikely to be invisible in the interpretation will play out concerning rights that fall short the Chief Executive of Hong Kong and the of the Basic Law. This is not the direction of marriage and civil union (e.g., challenging Executive Council. The bans were officially in which local-central government relations the ineligibility of same-sex couples for upheld by the Executive Council (Cabinet) are going, with ever-increasing involvement public housing,29 decision to remove some of Hong Kong in February 2019. The issue in the political governance and autonomy of LGBT-themed children’s books from public of party-wide bans is likely to become an Hong Kong. If the courts take a stronger role libraries30 and Leung’s final appeal) may be increasingly live one. Article 23 of the in pushing back against or re-interpreting affected by, inter alia, changes on the bench Basic Law of Hong Kong mandates the NPCSC interpretations, they might lose of the highest court. Tang PJ has been replaced enactment of national security legislation their perceived legitimacy and influence by Cheung, the judge who developed the “core to prohibit, among other things, treason, once they are viewed as being more active in rights and obligations” approach and who secession, sedition and subversion against constitutional adjudication in this area. This elaborated extensively on why the relaxation the Central People’s Government. Earlier could lead to pushback from the NPCSC, of some rights would undermine the special attempts to introduce this legislation were who may issue retaliatory interpretations status of marriage. It will be interesting to see highly unpopular, leading to the shelving of RI WKH %DVLF /DZ :RUVH VWLOO WKH 13&6& 32 how Cheung PJ will rule in these cases as a the government’s proposals. However, the may issue a “clarifying” and perhaps member of the highest court. enactment of such legislation is inevitable. contrary interpretation of Article 158 on the Indeed, the issue has recently become a live conditions for their interpretation of it. This A recent study shows that Hong Kong one, with local government coming under could ultimately lead to the diminishment of courts are generally less deferential on increasing pressure to enact national security the judicial role, as the courts would become 33 issues of moral controversy and more so legislation. bound by more interpretations of the Basic in politically sensitive cases.31 :KHWKHU Law from the NPCSC in future cases. The there is a causal connection between these Ultimately, controlling the scope and result might be an irreversible position in the two observations has yet to be tested, but a operation of national security legislation and absence of any democratic or constitutional plausible hypothesis is that courts are more its impact on political participation rights mechanisms to combat any unilateral activist in sexual minority cases in order will need to be a multi-event and multi-actor constitutional usurpation by the NPCSC. to compensate for the legitimacy they lost effort. This will include upstream efforts by being deferential in politically sensitive during legislative debates on any proposed cases (e.g., the oath-taking cases and co- legislative restrictions and associated civil location case, outlined elsewhere in this society movements to, for example, lobby 28:LL(SILY[*OLUº5H[PVUHSZLJ\YP[`HUK[OLY\SLVMSH^\UKLY¸6UL*V\U[Y`;^V:`Z[LTZ¹»PU-PVUH+L3VUKYHZHUK*VYH*OHULKZ*OPUH»Z5H[PVUHS :LJ\YP[`!,UKHUNLYPUN/VUN2VUN»Z9\SLVM3H^&(Hart Publishing, forthcoming). 29 5PJR0UÄUNLY]/VUN2VUN/V\ZPUN(\[OVYP[` HCAL 2647/2018. 30 3LL;HRO\UN HCAL 1196/2018. 31 Cora Chan, ‘Rights, Proportionality and Deference: A Study of Post-Handover Judgments in Hong Kong’ (2018) 48(1) /VUN2VUN3H^1V\YUHS51. 32 See Fu Hualing, Carole J Petersen and Simon NM Young, 5H[PVUHS:LJ\YP[`HUK-\UKHTLU[HS-YLLKVTZ!/VUN2VUN»Z(Y[PJSL 136 | I•CONnect-Clough Center V. FURTHER READING Cora Chan, “Rights, Proportionality and Deference: A Study of Post-Handover Judgments in Hong Kong” (2018) 48(1) Hong Kong Law Journal 51 Swati Jhaveri, “Reconstitutionalizing Politics in the Hong Kong Special Administrative Region” (2018) 13(1) Asian Journal of Comparative Law 27-57 P Y Lo, “Enforcing an Unfortunate, Unnecessary and ‘Unquestionably Binding’ NPCSC Interpretation: The Hong Kong Judiciary’s Deconstruction of Its Construction of the Basic Law” (2018) 48 HKLJ 399 Po Jen Yap and Jiang Zixin, “Co-Location Is Constitutional” (2018) 48 HKLJ 37 Cora Chan, “Thirty years from Tiananmen: China, Hong Kong, and the ongoing experiment to preserve liberal values in an authoritarian state” (2019) 17(2) International Journal of Constitutional Law (forthcoming) 2018 Global Review of Constitutional Law | 137 Hungary Eszter Bodnár, Assistant Professor – ELTE Eötvös Loránd University Faculty of Law Fruzsina Gárdos-Orosz, Senior Research Fellow – Hungarian Academy of Sciences, Center for Social Sciences, Institute for Legal Studies Zoltán Pozsár-Szentmiklósy, Assistant Professor – ELTE Eötvös Loránd University Faculty of Law I. INTRODUCTION Court, are losing power and relevance. Due to the transformation of its competences and In 2018, for the third time, the Fidesz-KDNP the lack of petitions from State authorities, party coalition secured a two-thirds majority as well as the appearance of loyalty regard- in the Hungarian Parliament in the general ing certain politically sensitive questions, the Constitutional Court is not the watchdog HUNGARY parliamentary elections. The old-new Gov- ernment, led by Prime Minister Viktor Or- of constitutionalism any more. This report bán, adopted the Seventh Amendment to the describes the Seventh Amendment to the Fundamental Law that obstructs the accom- Fundamental Law as the major constitution- modation of migrants, limits the freedom of al change, and explains important cases from assembly and establishes the High Admin- Constitutional Court jurisprudence to show istrative Court, outsourcing administrative the lack of outstanding decisions that would justice from the ordinary judiciary to special balance the Government’s policy. courts administered partly by the Minister of Justice. These constitutional developments II. MAJOR CONSTITUTIONAL point towards creating a non-reversible po- DEVELOPMENTS litical system based on authoritarian rule. The autonomy of the social subsystems is The Government, using its two-thirds majori- gradually being eliminated: media, culture, ty in Parliament, adopted the Seventh Amend- science, education, etc., are captured by the ment to the Fundamental Law in 2018. State. In 2018, the Government continued to reorganize education and science, the Cen- The original 2011 text of the Fundamental tral European University was forced to give Law used the concept “historical constitu- up a part of its activities in Budapest and the tion” as a reference point to constitutional- Hungarian Academy of Sciences, which is ism in the National Avowal (Preamble) and an autonomous institution according to the also as a method of interpretation. However, Fundamental Law, is under forced restruc- as Hungary has a written constitution, the turing. Some education programmes, such role of these provisions were still not clear, as the gender programmes, were prohibit- and many scholars attributed a purely sym- ed at universities. Research activities will bolic force to this, although there were Gov- be influenced by centrally defined research ernment attempts to emphasize its central projects. State capture extends to the princi- role. Finally, the Seventh Amendment de- ples of liberal constitutionalism, such as the FODUHGWKDWWKHRULJLQDOWH[WZKLFKVD\V³:H separation of powers, the independence of honour the achievements of our historical the judiciary or legal certainty. Legislation is constitution and we honour the Holy Crown, not introduced duly in advance, official ne- which embodies the constitutional continu- gotiations do not influence the outcome of ity of Hungary’s statehood and the unity of political decisions and implemented law is the nation,” shall be supplemented in the Na- often not clear and consequent. Independent WLRQDO$YRZDOZLWKWKHIROORZLQJWH[W ³:H State institutions, such as the Constitutional hold that it is a fundamental obligation of the 138 | I•CONnect-Clough Center State to protect our self-identity, rooted in Concerning the separation of powers, a great III. CONSTITUTIONAL CASES our historical constitution.” As explained in change has been introduced into the Hungar- our 2016 report, the concept of constitutional ian legal system by the Seventh Amendment. 1. 3199/2018. (VI. 21.) CC order and identity was introduced by the Constitution- This is the introduction of separate admin- 3200/2018. (VI. 21.) CC order: postponing the al Court (CC) in its Decision 22/2016 (XII. istrative courts. At the end of 2018, a new decision-making on lex CEU 5). The CC primarily functions as a shield act was adopted by the two-thirds majority in against the implementation of EU Law by Government. Separate administrative courts The Amendment of the National Tertiary protecting the fundamental rights laid down have their roots in Hungarian constitutional Education Act, adopted in one week, intro- in the Fundamental Law as well as Hunga- history, but the safeguards of independence duced new conditions for the operation of ry’s inalienable right of disposal related to its are quite weak in the new system to be in- universities accredited outside the Europe- territorial integrity, form of government and troduced in 2020. The administration of this an Economic Area (EEA) in Hungary and is governmental organisation. Furthermore, branch of judiciary is, e.g., separate from applicable also to existing higher education since the Amendment, all state organs shall ordinary administration and the Minister of institutions, including the Central European protect the constitutional self-identity of Justice has competencies in the appointment University (CEU). It has given rise to much Hungary. The Seventh Amendment, and also and removal of judges. criticism, both domestically and internation- the new case law of the Constitutional Court, ally, including by the Council of Europe Par- highlights that constitutional self-identity Finally, the Seventh Amendment that pro- liamentary Assembly and the Venice Com- is to be protected through respect for the vided for a new constitutional framework in mission. In our report of 2017, we explained achievements of the historical constitution. 2018 introduced not only structural changes that the constitutional complaint of the CEU This blurs the boundaries of the concept of in matters of adjudication but also influenced and the ex-post review initiated by one- the written constitution. matters of interpretation. It is quite rare that fourth of the MPs had been before the court constitutions provide for specific clauses on for months and it applied procedural tools As to the development of fundamental the mandatory methods of interpretation. In (otherwise very rare) to postpone the deci- rights, privacy received elevated protection Hungary, the Fundamental Law contained sion: it created an ad hoc committee consist- by the Seventh Amendment by prescribing such provisions and these were supplement- ing of the law clerks of the court to “prepare that the exercise of freedom of expression ed with others in 2018. the decision-making procedure” of the case. and the right of assembly shall not harm oth- On the proposal of the committee, the court ers’ private and family life and their homes. According to the new rule, “In the course of asked further clarification from the claim- This provision, however, limited the freedom the application of law, courts shall interpret DQWV DQG VHYHUDO VWDWH LQVWLWXWLRQV :H DOVR of assembly that also appeared in the codifi- the test of the legal regulations primarily in predicted that the court would have to decide cation of the new act on freedom of assem- accordance with their purposes and with the this case in 2018, even if it is politically sen- bly. It is problematic that the original raison Fundamental Law. Primarily, the preamble sitive. It has decided—but not in an expected d’être of this new regulation might have been of the legal regulation, and the reasoning of way. In June 2018, the Constitutional Court a personal demand of leading politicians not the legal regulation or its amendment, shall suspended its procedure until the decision on to be disturbed by assemblies in front of their be taken into account when the purposes of the infringement procedure against Hungary homes. New case law has yet to be born, but WKH OHJDO UHJXODWLRQV DUH HVWDEOLVKHG:KHQ at the Court of Justice of the European Union this constitutional environment undoubtedly interpreting the Fundamental Law or legal (CJEU). The court justified its decision by changes the attitudes of the people. regulations, it shall be presumed that they the obligation of the cooperation of courts serve moral and economical purposes which within the European Union: as the funda- The Government also reacted to the most topi- are in accordance with common sense and mental rights in the Fundamental Law that cal issue of migration by amending the Funda- the public good.” [Article 28] were violated according to the motions are mental Law to declare that no alien population closely related to the fundamental rights en- will be settled in Hungary, and that immigra- In sum, the Seventh Amendment to the Fun- shrined in the Charter of Fundamental Rights tion will be based only on individual applica- damental Law adopted in 2018 by the two- of the European Union, the court had to post- tions. A major human rights controversy is the thirds Government majority in Parliament pone its decision. This reasoning, which may challenge of migration. Hungary has decided changed the constitutional framework of otherwise be well founded, begs questions in to respond to it with a constitutional amend- human rights and the separation of powers that the practice of the Constitutional Court ment that is contradictory at least to the spirit DQGUXOHRIODZVLJQLILFDQWO\:HZLOOFRQVLG- usually does not follow the practice of the of European human rights standards by being er the case law of the Constitutional Court CJEU, and did not find it necessary to make clearly exclusive and paternalist towards Hun- in this changing constitutional environment. similar steps in previous cases when pro- garian inhabitants. cedures before the CJEU were in progress. As Justice Stumpf stated in his concurring 2018 Global Review of Constitutional Law | 139 opinion, the requirement of the suspension the court reviewed the decision based on the court referred to international standards of was not fulfilled, as the case did not depend interpretative methods used by the judge. As environmental protection (non-derogation, on the decision of the CJEU, and it was not Justice Czine concurred, this is contrary to the precautionary principle) and reached the justified by legal certainty, a particularly im- principle that the courts interpret the statutes conclusion that the proposed change of the portant interest of the petitioner or any other independently, and the Constitutional Court regulation is in conflict with the right to a particularly important reason, as the Act on has to limit itself to establishing the consti- healthy environment, as the State intends to Constitutional Court requires. Therefore, it tutional limits of the interpretation instead of play a more limited role in the protection and seems that the court rather wanted to avoid deciding the case on its merits. Finally, the conservation of groundwater. The court did political conflict with the Government, or at most problematic point is guaranteeing the not examine the second question expressed least postpone it again. right of initiating a constitutional complaint by the President, namely whether the bianco about State institutions. Previously, the deci- authorisation of the Government to regulate 2. 23/2018. (XII. 28.) CC decision: constitu- sions of the Constitutional Court, based on this field is in accordance with the rule of tional complaint of a state institution the dogmatical standpoints elaborated by the law principle. Five justices attached dissent- German Federal Constitutional Court, made it ing opinions to the decision. :KLOHWKLVGHFLVLRQVHHPVWRGHDOZLWKDPHUH clear that State institutions do not have funda- bagatelle case, it shows that to favor a State mental rights, as these rights are guaranteed Two comments should be added. First, the ex institution, the Constitutional Court is ready to individuals against the State. This decision ante review initiated by the President (pres- to confront the ordinary courts, overcome ignores this dogmatical clarity and opens a idential veto on constitutional ground) al- its decades-long practice, internal rules, and way for the Constitutional Court to become ways has special relevance in the Hungarian even the logics of reasoning. a guardian of the interest of State institutions governmental system. As we emphasized in The topic of the 8:7 decision is a simple in- instead of protecting the fundamental rights our reports on 2017 and 2016, there is a trend terpretation of a statutory provision that pre- of individuals. that shows that the President turns to the scribes the decision on the board of directors Constitutional Court in politically less-sen- of the Hungarian National Bank (HNB) in an 3. 13/2018. (IX. 4.) CC decision: real constitu- sitive cases. This case is part of this trend as investigation but makes it possible to delegate tional standards in a neutral case environmental protection is not part of the the “issuance”—the question is whether this daily political agenda but rather a personal issuance means only signing or also delegated The Constitutional Court declared uncon- commitment of the President. Second, in decision-making (the vice president decided stitutional the amendment to the “Act on this case, the court used, in an open manner, in this case). The ordinary courts, and in the :DWHU´ $FW /9,, RI EDVHG RQ WKH procedural techniques which can promote end the Curia as the highest forum, decided proposal for preliminary norm control of the deliberation of the concurring arguments that it was clear from systematic interpreta- the President (the head of the State). The of the debate (requesting opinions from the tion that it meant only signing, so it annulled purpose of the challenged provisions was to stakeholders and referring to the opinions of the decision of the HNB and ordered a new facilitate private water well drilling up to 80 other professional organizations)—a prac- procedure. The HNB submitted a constitu- m in depth. In the case of private consump- tice which is not common in politically sen- tional complaint, stating that by not looking tion, such works could be performed without sitive cases. at the reasoning of the bill (which suggests State authorization—contrary to the previous the opposite interpretation of the statutory regulation, which required an official permit. 4. 3130/2018. (IV. 19.) CC decision: permissive provision), the Curia did not follow Article The new provisions of the act authorized the approach towards the political majority 28 of the Fundamental Law that prescribes Government to enact a decree regulating this that courts shall interpret the acts primarily by field and prescribing those activities which The Constitutional Court declared unconsti- their purposes. do not require State authorization. The court tutional the Resolution of the Curia taken in asked for the opinion of the Hungarian Acad- an electoral dispute related to the 2018 par- The decision is problematic in many ways. As emy of Sciences, the ombudsman for future liamentary elections. The original case relat- some of the dissenting opinions pointed out, generations (deputy commissioner for fun- ed the placement of a billboard during the the Constitutional Court set itself against its damental rights) and the minister of interi- electoral campaign that depicted the prime previous practice (and even its Rules of Pro- or. The court also referred to the opinions of minister and contained the slogan, “For us cedure) by deciding in a case where the Curia other professional organizations (university Hungary is the first!” The billboard was pub- annulled the judgment and ordered a new pro- departments, associations, etc.). lished by the governing party (Fidesz), one cedure. This not only made the CC decision of the electoral contestants. This fact was premature but also interfered with the normal The court accepted the arguments expressed not evident, as it was indicated in extreme- decision-making of the ordinary judicial sys- by the President, finding the duty of the ly small letters that were visible only from a tem by excluding the possibility of changing State to protect the environment follows distance of one meter. Moreover, all the visu- its decision. The other aspect of the interfer- from the provisions of the Fundamental al elements of the billboard were identical to ence with the ordinary courts’ function is that /DZ:KHQLQWHUSUHWLQJWKHVHSURYLVLRQVWKH those used by the Government in its commu- 140 | I•CONnect-Clough Center nication. According to the objection filed by ingly advantageous position compared to pressed that the right to property in private another party that took part in the electoral other parties. The blurry dividing lines be- relations does not protect assets which are contest, the billboard was misleading and tween the Government and the governing not acquired at present. The court accepted contrary to the procedural electoral princi- party also raise questions on the legal enti- the interpretation of the law of the HNB and ples of fairness and exercising rights in good ties who are entitled to submit constitutional other judicial instances stating that these are faith, in accordance with their purpose. The complaints. The decision can be evaluated in accordance with the possible purpose of Curia declared infringement in its decision, also in the light of the debates between the the law (stable and prudent functioning of but only in the case of one billboard, placed Constitutional Court and the Curia, referred financial enterprises and lowering business near a highway. Identical billboards were to in our report on 2017. risks). The court thus did not accept the ar- placed at public spaces across the country. guments related to the limitation of fair trial 5. 3029/2018. (II. 6.) CC and 19/2018. (XI. 12.) in this case. In relation to the freedom of en- The publisher of the billboard in question, the CC decisions: protecting the interests of the terprise, the court stated that starting certain Fidesz party, filed a constitutional complaint State business activities is not limited by law in against the decision of the Curia, claiming this case. that the decision caused a disproportionate In Decision 3029/2018. (II. 6.) CC, the Con- limitation of its freedom of speech in relation stitutional Court rejected a constitutional One of the justices attached a concurring to the electoral campaign. The claimant also complaint claiming the limitation of the opinion to the decision, arguing that the emphasized that the “visibility requirement” right to property and other related rights in a court should have examined the limitation related to billboards and other electoral ma- case in which the Hungarian National Bank of the affected fundamental rights in detail terials is not explicitly prescribed by law. refused to issue a permit for a natural person based on substantive standards. The Constitutional Court did not include a living outside Hungary to acquire a quali- detailed argumentation in the reasoning part fying holding in a financial enterprise. The In Decision 19/2018. (XI. 12.) CC, the Con- of its decision. There is no substantive as- reason for the refusal was the interpretation stitutional Court declared certain provisions sessment of the proportionality requirement of the act regulating this field, which pre- of the Act on National Security unconstitu- related to the possible limitation of freedom scribes that in the case of such acquisitions tional based on the proposal for ex post re- of speech and of the similarities between the the source of the payment must be certified. view of the prosecutor general. Based on the Government’s and governing party’s mes- Even though the claimant presented certifi- challenged regulation, certain public profes- sages. The Constitutional Court declared cations issued by her personal bank and the sions and positions (including prosecutors) that the Act on Electoral Procedures contains tax authority indicating the sources of her can only be held after the preliminary ex- limitations on the publication of posters and income, the HNB (as the state organ respon- amination of national security risks. In this billboards during electoral campaigns based sible for financial supervision) required a case, as was stated by the national security on timing and their physical placement. In continuous certification of all transactions services, the given position can be occupied the court’s argumentation, it is a decisive from the previous years that indicated the or sustained only with the individual approv- argument that the act does not explicitly utilization of the specific amount of money al of the leader of the State organ in question. prescribe the “visibility” requirement of the planned to be used as payment for the ac- According to the prosecutor general’s view, imprints on billboards. It declared that the quisition. The decision of the HNB was up- it is problematic that the leaders of State or- visibility requirement does not follow from held by the Administrative and Employment gans are not informed of this and of the facts the principle of the fairness of elections, and Court of Budapest and later by the Curia. that cause national security risk, and that neither does the placement of the imprint on the law does not contain any aspects to be billboards. According to the court, if voters The claimant based her petition on three considered when deciding on appointments are in a position to identify the political ac- arguments: the limitation of the right to or sustaining the appointments of those per- tor whose interests are supported by the bill- fair trial in relation to the ambiguity of the sons affected by such examination. These board, the principle of fairness is respected. regulation, the limitation of the freedom of controversies could cause a conflict with the The latter statement was criticized by one of enterprise and the limitation of the right to requirement of clarity of norms (as part of the six concurring opinions. property. In her view, the law prescribes only the rule of law principle) and the freedom a single certification of the source of the pay- of occupation as well as the separation of Based on the decision, one can question ment, while requiring the certification of all powers, as the regulation limits the sphere of whether the Constitutional Court accords transactions beginning from the time of en- action of the prosecution service as an inde- due significance to procedural electoral prin- try of the amount of money in question into pendent state organ. Moreover, the prosecu- ciples by maintaining a misleading commu- one’s property until the proposed acquisition tor general claimed that the system of appeal nication practice which blurs the differences is a contra legem interpretation and impos- against the statements of the national securi- between the Government and the governing sible to comply with. The Constitutional ty service is not in accordance with the right party. The latter is one of the electoral con- Court did not accept these arguments. In the to legal remedy. testants, which therefore is in an overwhelm- longest part of the reasoning, the court ex- 2018 Global Review of Constitutional Law | 141 In the last question (system of appeal), the V. FURTHER READING Constitutional Court recalled the arguments expressed in a very similar former case (initi- Szente, Z. and Gárdos-Orosz, F. (eds.) ated by the president of the Curia), and based (2018). New Challenges to Constitutional on these, annulled certain provisions of the Adjudication in Europe (Routledge) examined act. In the given case, it is much more relevant that the court declared certain Halmai, G., “The Application of European provisions of the examined act unconstitu- Constitutional Values in EU Member States. tional due to the fact that these contradicted The Case of the Fundamental Law of Hun- the independence of the prosecution service, gary,” in Nagy, C. (2018). The EU Bill of ensured in the Fundamental Law. However, Rights’ Diagonal Application to Member the court did not refer to other provisions of States (The Hague: Eleven Publishing) the Fundamental Law and did not examine the position of the prosecution service within -DNDE$³:KDW,V:URQJZLWKWKH+XQJDU- the system of the separation of powers. ian Legal System and How to Fix It,” Max Planck Institute for Comparative Public Law As a result of both decisions described above & International Law (MPIL) Research Paper (constitutional complaint regarding the deci- No. 2018-13 sion of the Hungarian National Bank; poste- rior norm control initiated by the prosecutor general), the Constitutional Court played a significant role in protecting the interests of state organs—a controversial issue, taking into consideration the function of consti- tutional courts in protecting constitutional principles and individual rights. IV. LOOKING AHEAD Recently, the decisions of the Hungarian Constitutional Court have become quite un- predictable. Nevertheless, two interesting cases are foreseen in 2019. The court should decide on the initiatives of four judges who, suspending the cases before them, chal- lenged the statutory amendments penalizing homelessness. One-fourth of the MPs initi- ated an ex post review of the amendment of the Labor Act because it was adopted among critical circumstances in the Parliament (MPs of the opposition managed to hinder the regular procedure). :KLOH WKH SROLWLFDOO\ UHOHYDQW (XURSHDQ parliamentary elections do not promise too much constitutional upheaval, an upcoming vacancy in the court may. Considering the high number of 8:7 decisions, the election of the new member will have a crucial im- pact. As the governmental coalition has the two-thirds majority in the Parliament to elect the justice without the opposition, we do not have many illusions. 142 | I•CONnect-Clough Center India Raeesa Vakil, JSD Candidate – Yale Law School I. INTRODUCTION Court ruled in a controversial opinion that re- ligious authorities had to allow menstruating Despite being a parliamentary democracy, women access to worship at the Sabarimala the legislature in India is not supreme; the Temple in India. At the same time, the Court executive, legislature, and Indian Supreme chose to uphold the gov-ernment’s controver- Court manage a complex and delicate bal- sial biometric identification system, Aadhar, ance of powers that rests on the basis of a despite procedural and legal concerns about written Constitution. The Supreme Court of how the system was implemented as well as INDIA India is the custodian of the Constitution, deeper substantial concerns regard-ing pri- with wide-ranging powers to hear appeals vacy and surveillance. This review outlines on civil and criminal matters, to exercise key developments in 2018. judicial review over administrative and ex- ecutive action and over legislation, and to II. MAJOR CONSTITUTIONAL enforce fun-damental rights. It sits at the top DEVELOPMENTS of a federal judicial structure, and acts as an arbiter of disputes between federal units as 2018 saw a rich legacy of major constitution- well. The Constitution that it guards, imple- al pronouncements from the Supreme Court. ments, and interprets is long and detailed, and The Indian Supreme Court may consist of up its drafters have justified this on the grounds to 31 judges, but never sits en banc; rather, that the textual foundation is fun-damental judges sit in disparate benches of twos and to the ‘diffusion of constitutional morali- threes to hear questions related to civil and ty.’1 Although it has been amended over 100 criminal appeals, federal disputes, and ques- times, the Constitution’s core, i.e., its ‘basic tions of statutory interpretation. In cases of structure,’ remains unamendable by virtue of conflicting opinions be-tween benches, the the Court’s jurisprudence over decades. judicial practice is to refer the dispute to a larger bench; precedent establishes that larg- In 2018 Indian constitutional law was the er benches’ opinions bind smaller benches, subject of deep public interest, as the Su- and smaller benches may not overrule larger preme Court sat in large benches of five ones. judges or more to pronounce on multiple and significant constitu-tional questions. :KHQLWFRPHVWRLVVXHVWKDWLQYROYHµDVXE- Progressive opinions resulted in tremendous stantial question of law as to the interpretation advancements in the field of indi-vidual of [the] Constitution,’ Article 145(3) requires rights, with the Court finally decriminalizing the Court to sit in benches of a minimum of ‘intercourse against the order of nature’ and five judges, i.e., Constitution benches, in or- thereby affirming basic freedoms for India’s der to provide authoritative pronouncements. LBGT+ population. The offence of adultery, In practical terms, the creation of a Consti- de-fined to deny married women any agen- tution bench is fraught with difficulty, as an cy or remedy, was also struck down, and the overburdened Court struggles with a massive 1)9(TILKRHY:WLLJO5V]LTILY 6ɉJPHS9LWVY[ZVM[OL*VUZ[P[\LU[(ZZLTIS`+LIH[LZ vol VII (Lok Sabha Secretariat, 5th reprint, 2009) 38 2018 Global Review of Constitutional Law | 143 docket that must be managed in order to per- of India6 the Court legalized passive eutha- Johar v Union of In-dia,9 the Indian Supreme mit a Constitution bench to sit.2 2018 was nasia, but in doing so, attempted to overrule Court decriminalized carnal intercourse significant, chiefly because a semi-permanent a pre-vious decision also decided by a Con- ‘against the order of nature’ and in doing so, Constitution bench headed by the then-Chief stitution bench. Similarly, in Jarnail Singh effectively decriminalized sexual relations Justice of India, Justice Dipak Misra, sat from v Lachhmi Na-rain Gupta and others,7 the for India’s LBGT+ citizens. Section 377 of January 2018 right until the end of his tenure Court was specifically faced with the ques- the Indian Penal Code, framed in 1860 on the in October 2018 to hear and decide on a num- tion of whether it needed to refer a matter to recommendations of Lord Thomas Babing- ber of significant constitutional questions that a larger bench for reconsideration. It refused ton Macaulay, was read down in Navtej had been awaiting judgment. The consequent to do so, but nonetheless still attempted to Singh so that it no longer covered consensual legacy of six major Constitution bench de- overrule a bench of co-equal strength. sexual acts between adults. This decision un- ci-sions in 2018 will form binding precedent did a historical harm, as well as a new one: in not only on all equal and smaller benches in Despite these concerns, the Supreme Court’s 2014, the Indian Supreme Court had refused the Indian Supreme Court but also on every consideration of significant constitution- to decriminalize this provision, with a bench other court in India. al questions in some of these Constitution of two judges refusing to address a legal in- bench cases has been timely with regard to equality that in their words, only affected :KLOHWKH&RXUW¶VGHWHUPLQDWLRQWRKHDUDQG long-pending disputes. A notable decision is a ‘minuscule fraction’ of the popu-lation.10 address questions of constitutional signif- the Court’s ruling upholding India’s biomet- Navtej Singh Johar’s case articulated a test icance is undoubtedly positive, procedural ric identification system, known as Aadhar, of direct as well as indirect inequality under concerns about the Chief Justice’s unilateral in the Puttaswamy case.8 Despite claims that the Indian Constitution, and affirmed person- power to deter-mine bench composition were the government had misused par-liamentary al liberties that had been previously framed raised within the Court itself, with judges of procedure to implement Aadhar as a money as part of the right to privacy. A Constitution the Court publicly protesting in 2018 about bill and not ordinary legislation, the Court bench in Joseph Shine v Union of India11 being excluded from hearing matters of held that the Aadhar law withstood judicial also decriminal-ized adultery: Section 497 of constitutional significance.3 These and oth- scrutiny for the most part. The Court arti- the same penal code allowed a husband legal er procedural irregularities in establishment cu-lated a new standard of proportionality, remedy against an-other man for having con- of the Constitution benches have been crit- applying it to strike down certain limited sensual intercourse with his wife. The text of icized as unfairly burdening the parties to provisions of the Aadhar legislation that the provision effectively treated women as the cases,4 and have been accompanied by infringed on the right to privacy while up- their husband’s chattel, and was struck down calls for a permanent Constitution bench in- holding the law in general terms. A powerful on grounds of equality under the Indian Con- stead.5 Moreover, procedural concerns were dissent from Justice Chandrachud, however, stitution. Finally, in Govt. of NCT of Delhi not limited to the creation of the Constitution articulated concerns about pri-vacy, surveil- v Union of India & another,12 the Supreme benches alone but to the manner in which lance, and the proportionality standards that Court tackled the legacy of the institution of they determined cases as well. In two of the the Supreme Court had sought to im-plement the Lieutenant-Governor—a former colonial six Constitution bench judgments, the Court in Puttaswamy. post designed with powers to allow the em- disregarded precedent and over-ruled a bench pire control over the colony—and reframed of co-equal strength, which would ordinarily Additionally, in three cases, the Court grap- its position within the Democratic Republic set a troubling precedent if it were not for the pled with India’s colonial legal legacy, of India to allow the elected government in fact that it effectively constitutes a disregard choosing to adapt it in one instance, and Delhi to conduct its work. for precedent. In Common Cause v Un-ion wholly reject it in two others. In Navtej Singh 2 See Nick Robinson and others, ‘Interpreting the Constitution: Supreme Court Judges since Independence’ [2011] 46(09) Economic and Political Weekly 27 3 Bhadra Sinha, ‘Supreme Court crisis: Senior Judges not in bench for key cases’, Hindustan Times (Delhi, January 15, 2018) < https://www.hindustantimes. JVTPUKPHUL^ZZ\WYLTLJV\Y[JYPZPZZLUPVYQ\KNLZUV[PUILUJOMVYRL`JHZLZZ[VY`+ 3 QHL/<. `(OT; 9N?6O[TS%HJJLZZLK-LIY\HY` 4 See Shreya Munoth, ‘Constituting Constitution Benches: The Dipak Misra year(s)’, Indian Constitutional Law and Philosophy (30 October 2018) 144 | I•CONnect-Clough Center The focus on constitutional developments including proportionality, before striking ple authorities argued that the exclusion of in 2018 has accordingly been on the Indian down certain limited provisions, particularly menstruating women from the temple was an Supreme Court and its pronouncements, but those that allowed private parties access to ‘essential religious practice’ and was so pro- in public institutions, the Constitution con- Aadhar data and those that restricted legal tected under their religious rights. The Su- tinues to be con-tested as well. The 102nd remedies for individuals whose rights under preme Court heard and allowed a challenge Constitutional Amendment13 was passed by the Aadhar legislation had been violated. An to this prohibition, holding by a majority of Parliament in August 2018, giving constitu- extensive dis-senting opinion by Justice D.Y. 4:1 that the right of female devotees to wor- tional status to an executive body known as Chandrachud continued to voice concerns ship at the temple must be upheld. In con- the National Commission for the Backward about surveillance and exclusion, holding at sidering the conflict between the relig-ious Classes (NCBC). The function of the NCBC variance from the majority on proportionali- rights of a group of worshippers against the is to protect the interests of ‘socially and ed- ty, equality, and privacy. religious rights of the individual, the Court ucationally backward classes’ of people, to ruled, in this case, that the legal rights of fe- investigate legal safeguards for them, and The Court’s holding that Parliament may, male devotees to worship at the temple had ex-amine specific complaints about depri- in fact, use money bills to pass substantive greater weight than the customary right of vations of their rights as well as advise the legislation is one that raises significant con- the temple authorities to exclude them. government on steps to implement these cerns for the functioning of the Indian leg- safeguards and improve their socio-econom- islature in the future, as money bills stand a 3. Navtej Singh Johar v Union of India:18 ic development.14 :KLOH DSSURYDO IRU WKLV lower test of legislative scrutiny than ordi- decriminalization of homosexuality constitutional amendment was nearly unan- nary legislation, and can be used accordingly imous, a fierce debate continued through to avoid safeguards built into the parliamen- In 2014, the Indian Supreme Court refused 2018 about proposed amendments to India’s tary process. More generally, the major-ity in to strike down a colonial-era legal provision constitutional provisions concerning citizen- Puttaswamy articulates a modified propor- criminal-izing ‘carnal intercourse against the ship, with the bill currently being reviewed tionality test to be applied when evaluating order of nature,’19 noting that only a ‘minus- by a joint parliamentary com-mittee.15 claims to privacy rights in India, but there cule fraction’ of the population was affected remains some lack of clarity about the legal by this discriminatory law.20 Following great III. CONSTITUTIONAL CASES basis for this modified test as well as on the contestation, in 2018, the Court took the step precise manner of its application. of overruling their own decision in this case. 1. Justice KS Puttaswamy and another v The Supreme Court held unambiguously Union of India and others:16 Judicial Re- 2. Indian Young Lawyers’ Association v in Navtej Singh Johar that LBGT+ citizens 17 view, Pri-vacy State of Kerala and others: Freedom of were equally entitled to all funda-mental Religion, Equality) rights under the Indian Constitution, and A long legal contestation over the legality ruled that Section 377 of the Indian Penal of India’s biometric identification system, The Sabarimala Temple in the State of Ker- Code, insofar as it criminalized consensual Aadhar, drew to a close in September 2018. ala traditionally prohibited entry to female acts between adults, was unconstitutional as The Indian Supreme Court ruled by a Con- worship-pers between the ages of 10 and it violated the rights to equality as well as to stitution bench that the legislation on which 50, an exclusionary practice based on be- OLIHDQGSHUVRQDOOLEHUW\:KLOHWKHEDVLVRI this biometric system stood was validly en- liefs linking menstrua-tion and impurity. the ruling lies in judi-cial review triggered acted, despite challenges raised to the use of This practice was permitted first under state by the enforcement of constitutional rights, a financial (money) bill (usually intended for legislation, and later by a ruling by the state concurring opinions addition-ally held that budgetary purposes) instead of ordinary leg- High Court as well. It was challenged on the a presumption of constitutionality could not islation to establish Aadhar. The Court tested grounds that it infringed on the relig-ious be upheld for laws enacted before the Indian 21 the Aadhar legislation on various grounds, rights of female devotees who wished to Constitution was adopted, and recognised worship at the temple. In opposition, tem- that the constitutional right to equality must 13 The Constitution (One Hundred and Second Amendment), Act 2018 (India) 14 Constitution of India 1950, art 338B 15 ‘Citizenship (Amendment) Bill, 2016: Joint Parliamentary Committee fails to reach consensus’ Economic Times (28 November 2018) < https://economictimes. PUKPH[PTLZJVTUL^ZWVSP[PJZHUKUH[PVUJP[PaLUZOPWHTLUKTLU[IPSS QVPU[WHYSPHTLU[HY`JVTTP[[LLMHPSZ[VYLHJOJVUZLUZ\ZHY[PJSLZOV^ JTZ% 16 (2019) 1 S.C.C. 1 (26 September 2018, Supreme Court of India) 17 (2018) S.C.C. Online 1690 (28 September 2018, Supreme Court of India) 18 (2018) 10 S.C.C. 1 (6 September 2018, Supreme Court of India) 19 Indian Penal Code 1860, sec 377 20 Suresh Kumar Koushal v Naz Foundation (2014) 1 S.C.C.1, para 66 (Supreme Court of India, per G.S. Singhvi J) 21 Navtej Johar (n ), para 361 (per R.F. Nariman J., concurring) 2018 Global Review of Constitutional Law | 145 protect against indirect as well as direct dis- life-prolonging care and resources. In do- er’) should be identified, and denied, affir- crimination.22 ing so, the Court referred to, but diverged mative action. The Court declined to refer from a previous decision by a bench of equal Nagaraj for re-consideration by a larger 4. Joseph Shine v Union of India:23 strength: it had previously held in Gian Kaur bench, holding that the Court’s precedents decriminalization of adultery v Union of India26 that the ‘right to life’ did were sufficiently clear on both points of law. not include within its ambit the ‘right to die.’ In Joseph Shine, the Indian Supreme Court Although the ruling in Common Cause was Relying on these precedents, it did not differ decriminalized the offence of adultery and unanimously in favour of permitting passive with Nagaraj on the question of the ‘creamy struck down as unconstitutional another euthanasia, it creates no little amount of am- layer’; however, it overruled Nagaraj on the colonial legal provision: Section 497 of the biguity on what passive euthanasia entails, requirement of gathering quantifiable data Indian Penal Code. Section 497 criminalised particu-larly as five judges chose to express for eligible categories. In overruling Naga- adultery for men who had sexual intercourse their unanimous decision in four separate raj, the Supreme Court in Jarnail Singh en- with a married woman, and did so without opinions, all of which contain minute vari- countered, but failed to address, a significant the ‘consent and connivance’ of the husband. ance on specific aspects of the enforcement issue. Nagaraj and Jarnail Singh were both In striking down this provision as violating of this right. decided by benches of equal strength, and the constitutional guarantee to equality, the so it was not open to the Supreme Court to Court ruled that this section had the ef-fect 6. Jarnail Singh v Lachhmi Narain Gupta overrule Nagaraj on any point at all. of treating married women as subordinate to and others:27 affirmative action their male spouses, and failed to recognize 7. Shafin Jahan v Asokan KM:29 them as equal citizens. Testing this against To address historical inequalities perpetrated personal liberty the constitutional right to equality under by the system of segregation and discrimina- Articles 14 and 15 of the Constitution, the tion on the basis of caste in India, the Indian In Shafin Jahan’s case, the Supreme Court Court struck down Section 497, holding it to Constitution provides for affirmative action closed a chapter in an extraordinary case of be ‘manifestly arbitrary.’24 in various forms, including reservations in curtail-ment of personal liberty. Hadiya, a matters of public employment under Article medical student aged 24 years, married Sha- 5. Common Cause v Union of India:25 16 of the Indian Constitution. The imple- fin Jahan, a Mus-lim man, and converted to euthanasia mentation of this affirmative action, and in Islam following her marriage. Her father, particular, the identification of the groups of opposing the marriage and her conversion, The Supreme Court in Common Cause castes and tribes who are eligible for reser- approached the Kerala High Court with a ha- ruled that passive euthanasia for terminally vations, has resulted in a complex his-tory of beas corpus petition, alleging a criminal plot ill patients was legally permissible, laying litigation. In Jarnail Singh v Lacchmi Narain to abduct, confine, and convert his daugh- down extensive guidelines for the framing Gupta, the Indian Supreme Court was asked ter.30 The Kerala High Court granted this and execution of ad-vance directives con- to refer to a previous decision in Nagaraj v petition, annulled the marriage, and removed cerning medical treatment and withdrawal Union of India28 for reconsideration. Naga- the adult Hadiya from her marital home to of care for such patients. The Court upheld raj re-quired two conditions for granting af- parental custody, against her consent. On ap- the right to choose a dignified death as a firmative action to certain groups: first, that peal by her husband to the Supreme Court, facet of the right to life and personal lib-erty the government would have to collect quan- the Court over the course of a year held mul- under Article 21 of the Indian Constitution, tifiable data proving disadvantages before tiple hearings, overseeing a national security and in doing so, continued to prohibit active providing affirmative ac-tion, even if the investigation into her fa-ther’s claims, and euthanasia, defined as a positive intention- groups had already been found eligible for later transferring her to the custody of her al act to cause death, as opposed to passive reservation, and second, that within groups medical institute to allow her to con-tinue euthanasia, defined by the withdrawal of entitled to reservation, the most advantaged her education.31 Following much public crit- members of these groups (the ‘creamy lay- icism, the Supreme Court finally ruled in 22 Navtej Johar (n ), para 438-9 (per DY Chandrachud J., concurring) 23 (2018) S.C.C. Online 1676 (27 September 2018, Supreme Court of India) 24 Joseph Shine (n 23) para 32 25 (2018) 5 S.C.C. 1 (9 March 2018, Supreme Court of India) 26 (1996) 2 S.C.C. 648 (Supreme Court of India) 27 (2018) 10 S.C.C. 396 (26 September 2018, Supreme Court of India) 28 (2006) 8 S.C.C. 212 (Supreme Court of India) 29 (2018) S.C.C. Online 343 (9 April 2018, Supreme Court of India) 30 MS Asokan v Superintendent of Police (2017), SCCOnline Ker 5085 (Kerala High Court, India) 31 :OHÄU1HOHU](ZVRHU:37*YS :\WYLTL*V\Y[VM0UKPH 5V]LTILY #O[[W!Z\WYLTLJV\Y[VÄUKPHUPJPUZ\WYLTL- court/2017/19702/19702_2017_Order_27-Nov-2017.pdf 146 | I•CONnect-Clough Center 2018 that the annulment of Hadiya’s mar- flict with the advice of the council of minis- the Election Commis-sion of India to im- riage and her removal to parental custody ters, he could refer to the President—but the plement limited reforms that would improve was unlawful. The Supreme Court upheld Court was unanimously of the view that ‘any documentation and transparency concerning the right to choice in religion as well as in matter’ did not mean ‘every matter.’ It held pending criminal charges against electoral marriage as being essential to the right to life that the practice of referring every decision candidates. and personal liberty under Article 21 of the of the elected gov-ernment to the President Indian Constitution. In a concurring opinion, would have the effect of entirely obviating 10. Swapnil Tripathi v Supreme Court of Justice D.Y. Chandrachud noted that the cur- democratic governance in Delhi. However, India:36 transparency tailment of liberty through the exercise of the bench of five judges, in three different state power could have a chilling effect on opinions, had different views on what cir- In response to a public interest petition filed freedoms, and further called for restraint by cumstances would, in fact, justify a refer- by a group of citizens calling for greater ac- judicial authorities when exercising powers ence to the President. cess and transparency in Supreme Court pro- in the guise of acting as parens patriae while ceedings, a bench of three judges agreed to dealing with competent adults.32 9. Public Interest Foundation v Union of direct the Su-preme Court Registry to allow India:35 separation of powers live-streaming of judicial proceedings. It laid 8. Govt. of NCT of Delhi v Union of India & out guidelines for this, initially agreeing only another:33 federalism The Indian Constitution provides disquali- to stream certain cases that it deemed to have fications for membership to Parliament and ‘national importance,’ with prior approval of The National Capital Territory (NCT) of state legis-latures, and empowers Parliament the Court, along with a time-delay to allow Delhi occupies a unique place within the to frame laws with additional disqualifica- the Court to edit broadcasts if necessary. federal struc-ture: Delhi is neither an in- tions. The Represen-tation of People Act :KLOHWKHDFWXDOVWUHDPLQJRISURFHHGLQJVLV dependent state nor a federally controlled 1950, therefore, disqualifies candidates on still being implemented, this is an impor-tant territory. Constitutionally allocated powers various additional grounds, in-cluding those step in providing greater access to the Su- are distributed between a locally elected who have been convicted of certain offences. preme Court as well as towards providing government and the Union Govern-ment The petitioners in Public Interest Founda- accessi-bility to its proceedings. at the Center, which exercises its authority tion approached the Supreme Court, seeking through an appointed Lieutenant-Governor. a ruling that such disqualification should op- IV. LOOKING AHEAD The Constitution provides that the Lieu- erate not only when a candidate was convict- tenant-Governor, although the nominal head ed but prior to that, when such candidate was In 2019, scholars of Indian Constitutional of the state, is to act on the aid and advice charged with a disqualifying offence. In their law will be closely watching the progress of the elected government and their cabi- support, they cited a number of scholarly and of constitu-tional amendments proposed to net, and in cases of any matter of dispute or pub-lic comments advocating this position, India’s citizenship provisions as well as the conflict is empowered to refer the matter to including a report from the Law Commis- hearings in several ongoing Constitution 34 the President for a binding decision. The sion of India. The Court, sitting in a Consti- bench cases, including a politically sen- matter before the Supreme Court concerned tution bench, accepted that the petitioners’ sitive one concerning the demolition of a the scope of these constitutional provisions. concerns about the criminalization of pol- mosque.37 Chief Justice Ranjan Gogoi began The Court’s judgment established two clear itics had weight, but nonetheless ruled that his tenure in October 2018 as India’s 46th principles. Firstly, the Lieutenant-Governor, it could not go beyond the text of the Con- chief justice, and will continue to hold office as the titular head of the state, was bound to stitution and statutory law to create an addi- until November 2019. He faces the challenge act on the aid and advice of the cabinet of tional ground of disqualification. Citing the of settling controversies that arose during his ministers constituted by the elected govern- principle of separation of powers, the Court predecessor’s tenure. Most significantly, in ment. This, the Court held, was in keeping refused to infringe upon legislative territory, April 2019, India will hold its next general with constitutional provisions but also un- noting that it was the responsibility of Parlia- election to elect members to Parliament, and derlying constitutional principles of repre- ment to frame appropriate legislation on this the formation of a new government will un- sentative democracy. Secondly, in situations subject. None-theless, the Court did concede doubtedly transform constitutional politics where the Lieutenant-Governor was in con- part of the petitioners’ claims and directed in the immediate future. 32 :OHÄU1HOHUUWHYH WLY+@*OHUKYHJO\K1 33 (2018) 8 S.C.C. 501 (4 July 2018, Supreme Court of India) 34 Constitution of India 1950, art 239AA(3)(a), art 239AA(4) 35 (2018) S.C.C. Online 1617 (25 September 2018, Supreme Court of India) 36 (2018) 10 S.C.C. 639 (26 September 2018, Supreme Court of India) 37 ‘CJI Ranjan Gogoi-led Constitution bench on Ayodhya, hearing starts Jan 10’, Indian Express (9 January 2019) < https://indianexpress.com/article/india/cji-ran- QHUNVNVPSLKJVUZ[P[\[PVUILUJOVUH`VKO`HOLHYPUNZ[HY[ZQHU %HJJLZZLK-LIY\HY` 2018 Global Review of Constitutional Law | 147 V. FURTHER READING 1. Ornit Shani, How India Became Demo- cratic (Penguin Random House India, 2018) 2. Rohit De, A People’s Constitution (Prince- ton University Press, 2018) 148 | I•CONnect-Clough Center Indonesia 6WHIDQXV+HQGULDQWR$I¿OLDWH6FKRODU– Boston College Fritz Edward Siregar, Lecturer – Indonesia Jentera School of Law I. INTRODUCTION interested in the Indonesian Constitutional Court’s case law. The primary focus of the This report offers an overview of the Indo- report will be on statutory review, in which nesian Constitutional Court’s case law in the seven cases are examined, mostly centered term of 2017/2018.1 The term also marked on the judicial review of electoral laws, judi- the transition of leadership from the fifth cial review of marriage law, and religion-re- chief justice, Arief Hidayat, to the sixth, lated cases. Anwar Usman. Usman won the election by a 5 to 4 majority vote on April 2, 2018.2 II. MAJOR CONSTITUTIONAL INDONESIA The 2011 Amendment to the Constitutional DEVELOPMENTS Court Law prescribes that the chief justice has a limited term of two and half years, In recent years, the Indonesian Constitu- which means that Anwar Usman will be a tional Court has transitioned from an inter- chief justice until 2020. ventionist Court, especially the first- and second-generation Courts, to a non-interven- The last term also marked the complete tran- tionist Court. But it has not retreated under sition from the second-generation Court to pressure or chosen to compromise to avoid the third-generation Court with the departure clashes with other branches of government. of Justice Maria Farida Indrati. Justice Indra- Rather, the Court’s judges see its role as be- ti was appointed as the first female justice of ing more limited, following the orders of the the Constitutional Court in August 2008. She Constitution and the political branches of was appointed with five other justices to re- government. SODFHWKHILUVWJHQHUDWLRQMXVWLFHV:KLOHDOO of her colleagues either retired or resigned in The Court’s non-interventionist approach disgrace, Justice Indrati served her two full is evident in the Presidential Threshold XV five-year terms until her retirement in August case. Blame may lie with the Court because 2018. On August 13, 2018, President Jokowi it issued a decision that precipitated the cur- appointed Erni Nurbanigsih, a law professor rent crisis of the presidential election, and, from Gadjah Mada University, as an associ- moreover, it refused to intervene when the ate justice to succeed Justice Indrati. constitutional stakeholders asked the justices to resolve the crisis.3 It arose when the Joko Most of the decisions of the Indonesian :LGRGR DGPLQLVWUDWLRQ SDVVHG WKH *HQHUDO Constitutional Court have not been official- Election Law, which states that a presidential ly translated into English. This report offers candidate could be nominated by a political a quick overview of the Court’s decisions party or a coalition of political parties who for comparative judicial scholars who are hold at least 20 percent of seats in the House 1 A Term of the Constitutional Court begins in mid-August, and usually Court sessions continue until early August in the following year. 2 Marguerite Afra Sapiie, ‘Anwar Usman elected as new Constitutional Court chief justice,’ The Jakarta Post, April 2, 2018. https://www.thejakartapost.com/news/2018/04/02/anwar-usman-elected-as-new-constitu- tional-court-chief-justice.html. 3 For a detailed analysis of this issue, please see Stefanus Hendrianto, ‘The Indonesian Constitutional Court and the Crisis of the 2019 Presidential Election’, Int’l J. Const. L. Blog, Sept. 19, 2018. http://www.iconnect- blog.com/2018/09/the-indonesian-constitutional-court-and-the-crisis-of-the-2019-presidential-election/ 2018 Global Review of Constitutional Law | 149 of Representatives or have obtained at least KPU insisted on following the Constitution- he is not a lifelong constitutional scholar or 25 percent of the popular vote in the last gen- al Court ruling, pushing Odang to tender his lawyer. He served as the administrative clerk eral election.4 Considering that the law stipu- resignation with the party in order to be listed for the Supreme Court justices (1997–2003), lates that the 20 and 25 percent requirements DVDFDQGLGDWH:KDWZDVPRVWMDUULQJDERXW and then became head of the Bureau of Per- must be based on the 2014 general election this conflict was that the Constitutional Court sonnel of the Supreme Court (2003–2006). result, no political parties are able to nomi- was content to let the conflict evolve without In 2005, he had the same position at the Ja- nate candidates unilaterally. That the Court any attempt to clarify the effect of its decision. karta High Court. Clearly, Usman’s long ad- refused to resolve the crisis and condoned Apart from the Supreme Court’s decision, the ministrative career in the judiciary equipped the presidential nomination system, which is Administrative Court and the Election Super- him only with an understanding of the legal based on outdated legislative election results visory Board (Bawaslu) have also issued fa- technicalities and internal mechanisms of rather than new ones, makes little sense. YRUDEOHGHFLVLRQVWR2GDQJ:KLOHWKHVHFDVHV the Court, not sufficient knowledge of con- concerned the administrative violations relat- VWLWXWLRQDOPDWWHUV:KHWKHUKHZLOOEHDEOH Lack of command and reasoning also char- ed to Odang’s nomination, in some ways the to show strong intellectual and social leader- acterized the Court’s performance in the last decisions also undermined the Constitutional ship remains to be seen. term. For instance, in the DPD membership Court’s decision. case, it declared that a candidate for Regional III. CONSTITUTIONAL CASES Representative Council (Dewan Perwakilan From the second-generation Court, there Daerah - DPD) must not be a member of a has been decreasing reasoning behind the 1. The Presidential Threshold XV case (De- 6 political party. Some DPD candidates who Constitutional Court’s decisions. The trend cision No. 49/PUU-XVI/2018) held positions in political parties refused seems to be continuing in the current Court to comply with the Court’s decision. In re- under the chairmanship of Anwar Usman. It In this case, the Court was reviewing the sponse to the decision, the General Election continues to overrule its previous rulings, constitutionality of Article 222 of Law No. Commission (Komisi Pemilihan Umum - with questionable reasoning. An apt example 7 of 2017 on General Election, which states KPU) issued Regulation No. 26/2018, in is the Marriageable Age II case, in which the that a presidential candidate could be nomi- which it canceled the candidacy of several Court overruled its previous ruling without nated by a political party or a coalition of po- DPD candidates who were members of po- a convincing argument. The circumstances litical parties who hold at least 20 percent of litical parties, including the DPD speaker, of the two cases are different, but in essence seats in the House of Representatives or have 5 Osman Sapta Odang. both involved the constitutionality of simi- obtained at least 25 percent of the popular lar provisions, namely the marriageable age vote in the last general election (in this case, Odang objected to the decision and chal- for women. In the Marriageable Age I case, the 2014 general election). Since 2008, the lenged the KPU regulation in the Supreme the Court ruled that it will not intervene in Court has reviewed the presidential thresh- Court. The Constitution maintains that the religious domain on the requirement of mar- old requirement multiple times (14 cases) Constitutional Court has the authority to re- riage, especially on the age limit. But in the and it has consistently argued that the policy view the constitutionality of statutory regu- Marriageable Age II case, the Court reversed is constitutional as it is considered the legal lations, and the Supreme Court has the au- its previous ruling and moved to declare the policy of legislators.7 The petitioners in this thority to review ordinances and regulations provision unconstitutional. case, however, came out with a different ar- made under statutes. So Odang filed a judi- gument, pointing to the fact that the result of cial review against the KPU regulation to the The last term also marked the new era of the the previous election could not be used as a Supreme Court, and the Court, surprisingly, chairmanship of Anwar Usman. Usman was reference or requirement for the presidential accepted his petition and nullified the KPU sworn in as the sixth chief justice on April threshold. The Court, however, rejected the regulation. 2, 2018, and has faced a tough job restoring claimants’ argument entirely and reaffirmed public confidence in a Court that has been its precedent that the presidential threshold As of this writing, there has been no resolu- hit by controversies and doubts, and is seen was an open legal policy and there was no tion to the conflict, and it continues to esca- to be increasingly non-interventionist. Us- compelling reason for the Court to undo its late. Odang remains defiant, and will neither man was appointed by the Supreme Court in previous decisions. resign from his party, Hanura, nor step back 2010 to be an associate justice of the Consti- from his candidacy. In the meantime, the tutional Court. Looking at his background, 4 Law No. 7 of 2017 on General Election, art. 222. 5 4HYN\LYP[L(MYH:HWPPLHUK5\Y\S-P[YP9HTHKOHPº+7+ZWLHRLYPUOV[ZLH[MVYJHSSPUN*VUZ[P[\[PVUHS*V\Y[¸Z[\WPK¹»;OL1HRHY[H7VZ[(\N\Z[ O[[WZ! www.thejakartapost.com/news/2018/08/02/dpd-speaker-in-hot-seat-for-calling-constitutional-court-stupid.html 6 See Theunis Roux and Fritz Siregar, ‘Trajectories of Curial Power: The Rise, Fall and Partial Rehabilitation of the Indonesian Constitutional Court’, 16 (2) Australian Journal of Asian Law, Article 2 (2016). 7 Constitutional Court Decision No. 49/PUU-XVI/2008 (hereinafter the Presidential Threshold XV case), page 43, para. 3.13. 150 | I•CONnect-Clough Center 2. The DPD Membership case (Decision No. allows the House Honorary Council (Mah- berantasan Korupsi - KPK) in retaliation for 30/PUU-XVI/2018) kamah Kehormatan Dewan - MKD) to take the KPK’s investigation of several members any legal action against individuals, groups, of the DPR concerning the corruption case The crux of the matter in this case is Arti- or legal entities that insult the House or of Electronic ID’s project (e-KTP). The issue cle 182 §1 of Law No. 7 of 2017 on General members of the House.10 The Court first held was whether the KPK was part of the exec- Election, which provides that a member of that the House does not have the authority utive branch and if the DPR had authority to the Regional Representative Council (De- to compel someone to testify nor to detain investigate the KPK. wan Perwakilan Daerah - DPD), the second someone for 30 days; that it only has legis- chamber of Parliament, must not be a prac- lative and budgeting authority. Second, the The Court majority declared that the KPK ticing lawyer, public accountant, public no- Court held that the Honorary Council is part is part of the executive,12 and, therefore, tary, or provide any services related to state of an internal mechanism within the House, the KPK is not immune from congressional finance, or be a member of another profes- so it has no authority to take any legal action oversight as part of the checks and balances sion that creates a conflict of interest. The against anyone. The Court then declared the mechanism.13 There were four Constitution- issue is whether the term “other profession” challenged provisions unconstitutional. In- al Court justices who wrote dissenting opin- is considered to include a member of a po- terestingly, in the Susduk Law case,11 which ions, namely I Gede Palguna, Maria Farida litical party. The Court ruled that based on was decided over a decade ago, the Court is- Indrati, Saldi Isra, and Suhartoyo. The Court its original intent, the DPD was established sued an advisory opinion that the act of com- minority argued that the original scope of the as an institution that could represent the as- pelling someone to testify before the House congressional oversight was intended for the pirations of people at the regional level. The was still within the corridors of legislative President, Vice President, Cabinet ministers, Court held further that it was not appropriate power as long as it was carried out through Attorney General, Chief of National Police, for members of a political party to become a legal mechanism and due process. But the and the head of a non-ministerial govern- members of DPD because there would be current Court did not seem obliged to follow mental department.14 It argued further that binary representation if party members were this opinion because the previous Court had the KPK was not part of the executive be- allowed to participate as members of DPD already rejected the petition on the ground of cause it was an autonomous governmental while the parties already had their repre- the claimant’s lack of standing, but it insert- institution.15 Justice Maria Farida Indrati, sentatives in the House of Representatives ed advisory opinion in its decision. however, issued a separate dissenting opin- (DPR). The Court finally declared that a ion, in which she argued that the KPK was candidate for DPD must not be a member of 4. The Congressional Oversight case part of the executive. Nevertheless, Justice a political party. (Decision No. 36/PUU-XV/2017) Indrati opined that the KPK must file an an- nual report to the President, the DPR, and the 3. The Congressional Summons case (Deci- This case originated from the provision on Auditor General’s office. Thus, the KPK it- sion No. 16/PUU-XVI/2018) congressional oversight power under the self can be held accountable by the DPR, and MD3 Law. Article 79 (3) provides that the there is no need to investigate the institution. This case involved the constitutionality of DPR (House) has oversight power to inves- several provisions of the so-called MD3 tigate the implementation of a statute and/or 5. The Blasphemy IV case (Decision No. 76/ Law:8 first, the provision that stated the governmental policy that relates to essential PUU-XVI/2018) House of Representatives has authority to and strategic aspects, and the broader impli- compel anyone before it and give testimony cation to society at large. This case involved the constitutionality of as needed, and to have them detained for up anti-blasphemy provisions16 in the Criminal to 30 days if they failed to comply with the The issue arose when the DPR formed a spe- Code (Articles 156 & 157) and Law No. 1 summons.9 Second, the Court also reviewed cial oversight committee to investigate the of 1965 on the Prevention of the Misuse/In- the constitutionality of the provision that Anti-Corruption Commission (Komisi Pem- sulting of Religion (Blasphemy Law). The 8 Law No 2 of 2018 regarding the Amendment to Law No. 17 Year of 2014 on Majelis Permusyawaratan Rakyat, Dewan Perwakilan Rakyat, Dewan Perwakilan Daerah dan Dewan Perwakilan Rakyat Daerah – People’s Consultative Assembly, People’s Representative Council and Regional Representative Council, and Regional People’s Representative Council (commonly known as ‘MD3 Law’). 9 Ibid., art 73 (3), (4), and (5). 10 Ibid., art 122 (I). 11 Constitutional Court Decision No. 014/PUU-I/2003 (hereinafter the Susduk Law case). 12 Constitutional Court Decision No. 36/PUU-XV/2017 (hereinafter the Congressional Oversight case), para. 3.23.1. 13 Ibid., para. 3.23.2. 14 Ibid., page 120. 15 Ibid., page 125. 16 Constitutional Court Decision No. 140/PUU-VII/2009 (the Blasphemy Law I case), Constitutional Court Decision No. 84/PUU-X/2012 (the Blasphemy Law II case), and Constitutional Court Decision No. 56/PUU-XV/2017 (the Blasphemy III case). 2018 Global Review of Constitutional Law | 151 Court has issued three decisions related to prohibited any Ahmadiyah activity based on In its decision, the Court moved to overrule the challenged anti-blasphemy provisions the Blasphemy Law.19 The claimants argued its own precedent in the Marriageable Age and rejected the petitions to nullify them. that their religious practice had been ham- I case,23 in which it rejected the petition to pered by many administrative regulations invalidate the minimum age requirement The petitioners in this case challenged the pro- based on the allegation that Ahmadiyah is a for women to marry. Basically, in the Mar- visions on the ground of religious diversity, in deviant sect of Islam. The Court, however, riageable I case, the Court ruled that it will which there is a diversity of religious beliefs utterly rejected the claimants’ petition and not intervene in religious domain on the in Indonesia, and, therefore, the anti-blasphe- argued that the main problems were related requirement of marriage, especially on the my law can be misused or abused for personal to the implementation of these administra- age limit.24 Moreover, the Court ruled that and political gain. The petitioners argued that tive regulations and not the constitutionality there was no guarantee that with increasing the blasphemy charges are routinely abused of the challenged statute. The Court held that the age from 16 to 18 there will be a reduc- and the Court must end such manifest injus- Cabinet ministers and local governance have tion of divorce rates, health improvements, tice. The Court addressed the petitioners’ con- the authority to issue administrative reg- and reduction of other social problems.25 At cern based on the religious freedom clause in ulations related to Ahmadiyah. It then sec- that time, the Court ruled that it was not the the Constitution (Art. 29 § 2). It argued that ond-guessed the claimants’ main concern of domain of the judiciary to increase the age the provisions are necessary to guarantee re- vigilantism or persecution against the Ahma- limit of marriage but rather the domain of the ligious freedom because they do not allow di instead of the constitutionality of the Blas- legislative branch.26 any insults or defiling of religious teachings phemy Law. The Court then recommended or books, which become a source of religious that the issue be addressed by revising the IV. LOOKING AHEAD beliefs.17 Regarding the petitioner’s concern Blasphemy Law so that it can provide better on the potential abuse of the application of the protection for citizens. :LWKWKH JHQHUDOHOHFWLRQORRPLQJWKH blasphemy provisions, the Court believed that Court’s docket will be filled with disputes, such concerns were not a matter of the con- 7. The Marriageable Age II case (Decision even likely presidential election disputes. As stitutionality of the law but instead about the No. 22/PUU-XV/2017) the justices may well be preoccupied with re- 18 application of laws. gional election controversies, the Court has In the Marriageable Age II case, some wom- to face the challenge of focusing its time and 6. The Blasphemy III case (Decision No. 56/ en challenged the constitutionality of Mar- energy to solving statutory reviews rather PUU-XV/2017) riage Law No. 1 of 1974’s provision that pro- than delaying its ruling on many important vides the minimum marriageable age of 16 statutory review cases. In this case, some members of Ahmadiyah years for women.20 They argued that the pro- challenged the constitutionality of some pro- vision discriminated against girls due to the Finally, at the end of March 2019, two Con- visions of the Blasphemy Law. Ahmadiyah different minimum age of marriage for boys stitutional Court justices, Aswanto (one name is a religious movement that originated from (19 years old). They argued that their mar- RQO\ DQG:DKLGXGGLQ$GDPVZLOOFRPSOHWH India in the mid-1880s as part of the revival riage age was also inconsistent with the stat- their first five-year term. They have both de- of Islam and Islamic missionary efforts. The utory regulation on child protection, which cided to re-seek nomination from the House, teachings, however, differ from traditional defines a child as being a person below the where they have to compete with other can- 21 Islamic doctrine in several important ways. age of 18 years. The Court granted the pe- didates through the selection process in the The Ahmadiyah movement has been present tition by stating that the phrase “age 16 (six- House Judiciary Committee. So there is a in Indonesia since the 1920s. teen) years” in Article 7, paragraph (1) of the high probability that the House will appoint Marriage Law is unconstitutional and must two new justices by spring 2019. In the past decade, the Ahmadi often get in- be changed, especially on the minimum age appropriate treatment from other Muslims. requirement for women, within a maximum Moreover, many administrative regulations period of 3 years after the case is decided.22 17 Constitutional Court Decision No. 76/PUU-XVI-2018 (the Blasphemy IV case), para. 3.15. 18 Ibid., para. 3.17. 19 0IPKWHNLZ ¶ ;OL(OTHKPZHYLWYVOPIP[LKMYVTWLYMVYTPUNHU`YLSPNPV\ZHJ[P]P[`HJJVYKPUN[VWVSPJ`YLN\SH[LKI`[OL4PUPZ[LYVM9LSPNPV\Z(ɈHPYZ([[VYUL` .LULYHSHUK4PUPZ[LYVM/VTL(ɈHPYZ:L]LYHSKLJYLLZHYLHSZVW\ISPZOLK[VWYVOPIP[(OTHKP`HOHJ[P]P[` 20 Law No. 1 of 1974 on Marriage, Article 7 (1). 21 Law No. 23 of 2002 on Juvenile Protection. 22 Constitutional Court Decision No. 22/PUU-XV/2017 (the Marriageable Age II case), pages 58–59 para. 3.17. 23 Constitutional Court Decision No. No. 30-74/PUU-XII/2014 (the Marriageable I case). 24 Ibid., para. 3.13.2. 25 Ibid. 26 Ibid. 152 | I•CONnect-Clough Center V. FURTHER READING Stefanus Hendrianto, Law and Politics of Constitutional Courts: Indonesia and the Search for Judicial Heroes (first published 2018, Routledge, 2018) 291 Björn Dressel and Tomoo Inoue, ‘Megapolit- ical Cases before the Constitutional Court of Indonesia since 2004: An Empirical Study’, Constitutional Review, Volume 4, Number 2, December 2018 Dominic Nardi, Jr., Can NGOs Change the &RQVWLWXWLRQ"&LYLO6RFLHW\DQGWKH,QGRQH- sian Constitutional Court in Contemporary Southeast Asia 40, No. 2 (2018), pp. 247–78 2018 Global Review of Constitutional Law | 153 Iran Ali Shirvani, Ph.D. Candidate and University Lecturer – Xiamen University I. INTRODUCTION II. MAJOR CONSTITUTIONAL DEVELOPMENTS The hybrid constitution of the Islamic Re- public of Iran (1979, rev. 1989) finished Developments in Iran’s jurisdiction included its 39th year of endurance. In the fusion of improvements in interpretation and legisla- Islamic, liberal and democratic tendencies tion. The first in regard to presidential elec- and also as a consequence of malfunctions, toral law, and the second in favor of religious it is reaching crucial points of disharmony. minorities. Interpretation took a small step IRAN This report highlights detailed aspects of towards clarification of women’s status in the jurisdiction. presidential elections and the reform towards the republican rather than the Islamic side of The constitution has borrowed democratic the constitution. concepts in a complexity of Arabic and Per- sian wording. E.g., “The powers of govern- The first development was a long-awaited ment in the Islamic Republic are vested in the interpretation of article 115 of the consti- legislature, the judiciary, and the executive tution, particularly on a term to determine powers, functioning under the supervision of the sex of the presidential candidate. It hap- the absolute wilayat al-’amr and the Leader- pened in March 2018, following one and a 1 ship of the Ummah.” The article camouflag- half years of announcing general election es a set of independent powers functioning policies by the leader. Art. 115 defines the under the absolute supervision of an indirect candidate as a religious and political person- elected leader who is defined as the leader of ality, which in written language is the term not only the national community but also the “Rijal.” The word comes from Arabic, and international one. This allows for the forma- now is in use in both Arabic and Persian le- tion of a single world community referred to gal and especially constitutional language. by Quranic verse, stated in the preamble. The It brought conflicts in translation and in- camouflage has negated the constitution’s re- terpretation about the sex of the candidate publican foundations since its establishment. and whether female candidates are allowed. Iran is a republic by way of constituting the Some referred to it as only for a male, and government but not in the choice of govern- others hoped an interpretation might expand ing; this has been noted in the drafters’ de- its jurisdiction. Since its establishment, the bates and books along with current Assembly Guardian Council (GC) has never approved 2 of Experts (AE) member courses. a female candidate. Section II below covers the example of a :KLOHWKLVTXDOLILFDWLRQIRUWKHVHFRQGKLJK- long-awaited interpretation to let women est office has been conflicted since its draft- be presidential candidates, and later in the ing, it has never resulted in a constitutional constitutional cases, Special Courts on Fi- interpretation. Moreover, in practice, there nancial Crimes and Edict on a Law Revision has never been a female candidate in the are practical examples of the constitutional election debates, although in registrations camouflage. some have applied for candidacy. 1 Article 57 of the constitution. 2 Seyed Mohammad Hosseini Beheshti, Wilayat, Leadership, Clergy, Boqeh publication, 2009, 400. Persian. 154 | I•CONnect-Clough Center However, ordinary laws under the current In 2017, an elected city councilor of Yazd, five Marja taqlid as the office of leadership, jurisprudence outlawed women from promi- Spanta Niknam, a religious minority of Iran’s determined and introduced by the AE. The nent decision-making positions such as judg- ancient Zoroastrian religion, was suspended AE determined a temporary leader in a secret es and severely underrepresented them in via an interim order from the CAJ on the session without any public announcement, senior government posts. The constitution, ground that non-Muslims cannot represent and later through the amendment removed instead of using an explicit expression to Muslims. He was elected for the first time to the term Marja taqlid. In another secret ses- ban female candidates, used exclusions that the city council in 2013 in accordance with sion, it omitted the word “temporary” from relied on other means. During the past 40 the election law of the councils approved in the leader and made it unconditional. years, the GC found female applicants un- June 1996. However, in 2017, his presence qualified and kept them out of races, avoid- was attacked in a case brought to the CAJ. :KLOHWKHVHWZRVHFUHWVHVVLRQVDQGWHPSRUDO ing significant backlash. The court order referred suspension to its leadership were secrets for the past 30 years, substantive hearing. Later, the GC nullified the leader has been introduced to the public The first interpretation in this regard defeated a paragraph of the June 1996 electoral law from the first appointment as an entirely con- expectations for a timely change for transpar- that previously had been approved both by stitutional and qualified entity. At the time, ent application of the constitution. It defines the ICA and GC. The GC used the authority there were critiques that his qualifications the term through the quote “Rijal are those given by article 4 of the constitution that all did not match a Marja taqlid. Governmen- Rijals” and thus passes over the key question. regulations must be based on Islamic crite- tal debates always denied those allegations The determination of specific details, includ- ria, which applies absolutely to all articles of without mentioning the secret appointments. ing the exact age of presidential candidates, the constitution as well as to all laws, and Therefore, it seems the critiques were right should be determined in the law approved by the fuqaha of the GC are judges in this mat- since there was a temporary leader for a pe- the Islamic Consultative Assembly (ICA). ter. The GC argued that this paragraph was riod but the constitution was amended to re- against the opinion of the founder of the Is- move that term. The second development of Iranian jurisdic- lamic Republic of Iran, and therefore Islam. tion was a balance concerning the democrat- Immediately, the ICA passed a bill clarify- The AE is the only constitutional organ with ic side of the constitution. A reform of the ing the 1996 law on religious minorities and the authority to determine a leader’s incapa- electoral law of the city councils had been allowing them to stand for council elections bility of fulfilling duties or loss of qualifi- made after disputes between the ICA and in their towns even when there is a majority cations. GC, resulting in interference by the Nation’s of Muslims. The GC found it against Islam Exigency Council (NEC)3 in favor of the par- and by the insistence of the ICA, the matter 2. Judicial Order on Blocking the Top Mes- liament rather than Islamic jurisprudence of was sent to the NEC for final decision, which senger Service, Telegram the current fuqaha in GC. After nine months resulted in a ruling in favor of the democratic of legal disputes among MPs and members side of the constitution. In May 2018, the Iranian Judiciary issued an of the GC, NEC and Court of Administra- order via the Second Branch of the Public tive Justice (CAJ), this happened in late July III. CONSTITUTIONAL CASES Prosecutor’s Office of Culture and Media 2018. The law was reformed to support the that all Internet providers take steps to block presence of religious minorities as represen- 1. Critiques on Leader Qualifications the app Telegram as of April 30. The plat- tatives of Muslim majority cities. form was in use by some 40 million active On January 8, leaked footage brought new users in the jurisdiction, within a country of This reform states that Iranian religious pieces of evidence on critiques of the legality 82 million people. By 2018, this app was in minorities—Zoroastrians, Jews and Chris- of the appointment of the supreme leader and use in most tracks of life in Iran, including tians—are eligible to run in elections even revealed the selection process for the first communications, education, business, news, in regions with a Muslim majority, and rep- time. At the time of the selection of the cur- politics, healthcare, art and culture and so- 4 resent them. rent leader, the constitution was under an of- cial life. It was foreign owned, based outside ficial amendment discussion via an appoint- the country, and previously targeted for cen- The issue returned first to the nullification of ed (not elected) commission. The enforced sorship because of its secure private calls. a paragraph of the electoral law of June 1996 constitution, however, had two limited op- that was not clear enough: whether religious tions: either an accepted Marja taqlid by the Later, following the widespread anti-govern- minorities may be elected as councilors of a overwhelming majority of the people like ment protests in late 2017 and early 2018, region with a Muslim majority, and second, the previous leader and founder of the Is- Telegram, along with Instagram, the other to the suspension of activities of an elected lamic Republic of Iran, or a council of three/ pop social app, was temporarily banned. member of the City Council of Yazd. The ban was meant to maintain peace after 3 Article 112. 4 Article 13. 2018 Global Review of Constitutional Law | 155 claims of encouraging offensive conduct, happened in summer 2018, regarding the ad- war, and that those disrupting and corrupting use of Molotov cocktails, armed uprisings ministration’s economic performance. the economy also provide for the enemy’s and social unrest through the app.5 goals and commit crimes that require urgent The parliament summoned the president. and rapid action. The letter asked for autho- President Hassan Rouhani tried to criticize Lawmakers had questions about the Rou- rization especially on: blocking decisions in other blocked social hani administration’s handling of the coun- media in case the highest level of the judi- try’s economic issues, including a high un- 1) Special open tribunals for two years cial system decided to restrict or prevent the employment rate, slow economic growth and directed to hand down maximum communication of the people. and a devaluation of Iran’s rial currency as sentences; well as goods and currency smuggling. The 2) Prohibition of any suspension or mit- Some lawyers called for the ban to be lifted MPs were also critical of the ongoing sanc- igation of the sentences; not only in a civil law case but also a crimi- tions against banking despite the 2015 Joint 3) The court branches being composed nal one, referring to the denial of individual Comprehensive Plan of Action (JCPOA) as of the Islamic Revolutionary Tribunals; rights of the people and their deprivation of part of the international nuclear deal. The 4) Members of the court being made up the rights conferred by the constitution by president called this questioning against the of three judges with at least 20 years of the issuance of a general order outside the constitution and not in due time and circum- judicial experience, a judge, and two ju- jurisdiction of a judge. They grounded the stances, but to prevent any dispute between dicial advisors; debate on a law that says any government of- the powers and respect for the ICA, he at- 5) The trial being run with the atten- ficial who deprives individuals of the right to tended the parliament in due time. dance of two members; and liberty or deprives people of the rights out- 6) All legal timelines specified in the lined in the law, in addition to dismissal from On August 28, after the president’s explana- procedure law, such as notification, ap- service and government employment, will tions, the results of a vote conducted at the peals and protest, be set at a maximum be sentenced to prison. They also based their end of the session showed that the lawmakers of 5 days. claims on other rights under the constitution, were not convinced by the answers on four through which those who earned income on out of the five questions. They only found It also demanded that all court rulings ex- Telegram and lost their jobs through the is- the president’s answer to the issue of banking cept the death penalty be final, with death suance of the order could seek compensation sanctions satisfying. If the majority of repre- sentences subject to appeal at the Supreme from the issuing judge. sentatives present at such a meeting are not Court within a maximum of 10 days. satisfied with the president’s response to their The constitution prohibits the inspection of questions, a statute of the ICA provides that The leader authorized and mentioned that letters, the recording and disclosure of tele- this is a violation of the law or the failure of the purpose of the courts should be to punish phone conversations and the disclosure of the law. The matter will then be sent to the ju- corrupt financial criminals swiftly and fairly. telegraphic and telex communications. Cen- diciary. Accordingly, after hearing the case, it Earlier, the leader described “outright and sorship, or all forms of covert investigation, reports to the parliamentary committee. How- unequivocal” treatment of economic corrup- are forbidden except as provided by law.6 ever, in another session, the committee con- tion as one of the judiciary’s primary duties, cluded that, since the questions asked were stressing that confronting economic corrup- 3. ICA Question to the President not law and the questioners did not mention tion must be decisive and effective. this in their questions, the referral of the mat- :KHQHYHUDWOHDVWRQHIRXUWKRIWKHWRWDO03V ter to the judiciary was not relevant. The requests and the issuance of permits for sign a question posed to the president on a their content were not only challenging from subject relating to his duties, he is obliged to 4. Special Courts on Financial Crimes the perspective of the constitution and the attend the ICA in not more than a month and powers of its correspondences but also from answer it.7 Iran’s jurisdiction had not applied Through a letter on August 8, the head of the the following dimensions: a question to a president since the eighth judiciary asked the leader for authorization ICA, in March 2012. Even after the first such to act within the framework of the penal code 1. Subjective matters and territorial ju- question was raised, there was a taboo. The of disrupters of the economic system of the risdiction of the courts; MPs canceled the second in 2014 upon the country and the Islamic Penal Code to set up 2. Procedural timelines, such as time to leader’s call, that said continuing this legal tribunals in the face of exclusive economic appeal set at 5 days; action in time is not expedient. The second conditions. He mentioned the current special 3. In the event of a research flaw, the Race application to ask a question to the president economic conditions as a kind of economic Court shall proceed to its completion; 5 Ilya Khrennikov, ‘Telegram Loses Bid to Block Russia From Encryption Keys’ (Bloomberg, 20 March 2018) 156 | I•CONnect-Clough Center 4. Suspensions and other discounts in manders and those who could get an exemp- tion, Sayed Ebrahim Raisol-Sadati, who car- sentences prohibited; tion from the country’s leader. Some retired ries a long history of judicial service. 5. The term of detention is not objec- through this law, such as Tehran’s last may- tionable, and only the judge shall deter- or, Mohammad Ali Afshani; however, others These two facts, first placing the current head mine that; and got the exemption of the leader. of the judiciary in charge of the NEC, and 6. All decisions of the courts other than second, appointing the chief of the judiciary the death penalty are final. The leader, Ayatollah Ali Khamenei, ad- earlier than usual, fuel speculation about the dressed this matter in a speech. He called on AE electing a new leader in the near future. These requests are illegal and in violation the parliament to review the law and possi- The current leader turns 80 in 2019 and has of the legal principles and standards of hu- bly revise it with more general exceptions so been ruling for the past 30 years. The NEC is man and constitutional rights, including the there would be no need to ask for exemp- a significant office that is composed of three right to a fair trial. The principle of the rule tions from his office. A few hours later, the heads of power, all GC members and official of law, the legality of crimes and penalties, ICA speaker, Ali Larijani, directed the ICA individuals of some organs. the separation of powers and a fair trial are research body to draft the revision. all neglected. After several rounds of ping-pong between The leader’s remarks raised an old debate the ICA and the GC on ratifying Combating Statistics show special tribunals set up in on his powers and whether the article 57 the Financing of Terrorism (CFT) and Paler- Tehran have so far handed down various sen- wording, “absolute wilayat al-’amr and the mo Convention, which ICA passed and GC tences to 35 economic offenders. Three were Leadership of the Ummah,” along with oth- rejected, it is now the NEC’s turn to decide sentenced to death for “spreading corruption ers, provide him such power. Some interpret- which side to take in 2019.8 on earth,” and their convictions were upheld ed articles 57 and 110 of the constitution as by the Supreme Court. Thirty-two other de- meaning that the leader enjoys the power to V. FURTHER READING fendants received up to 20 years for econom- issue so-called “leadership commands,” or ic corruption. special edicts that could reverse any law ap- Sahar Maranlou, Access to Justice in Iran: proved by legislators. Others refer to consti- Women, Perceptions, and Reality, Cam- The defendants were found guilty of illegal tutional limitations that are not mentioned in bridge University Press, 2017, 275 dealings in coins and currency, while there the constitution. In practice, the first opinion is no prohibition and limitation for this un- is in force. * : %RZHUVRFN The Crucible of Islam, der any laws. Some parts of the trials were Harvard University Press, 2017, 220 broadcast on national television along with Edicts have long histories not only in the past documentaries of the confessions of the ex- constitutional history of Iran but also in the Medea Benjamin, Inside Iran: The Real His- ecuted felons. The legality of the trials and recent one. This was true under the monarchy tory and Politics of the Islamic Republic of their fairness are under question. Amnes- and has continued under the Islamic Republic, Iran, OR Books, 2018, 256 ty International condemned the process as which has no clear written term on them. show trials with abhorrent executions and called these actions flagrant violations of in- IV. LOOKING AHEAD ternational law and a display of disregard for the right to life. The constitution will be the source of large- scale legal events, and more importantly, sig- 5. Edict on a Law Revision nificant amendments in the upcoming years. In 2019, the appointment of the seventh In the eyes of the current constitution, the chief of the judiciary will take place, earli- leader is equal with the rest of the people of er than usual. Sadiq Larijani, who has been the country. In September, the ICA ratified in charge of the judiciary since 2009, is an a new retirement law meant to abolish a de- AE member and also one of the six fuqaha cades-long practice of re-employing public members of the GC. He was simultaneously sector managers who are past retirement appointed as the head of the NEC after Mah- age. However, there is a vast exclusion. It moud Hashemi Shahroudi’s death in Decem- explicitly excluded the leader, the president, ber 2018. The next chief of the judiciary is presidential deputies, the judiciary chief, said to be someone who tried to be head of MPs, members of the GC, top military com- another power in the 2017 presidential elec- 8 The CFT bill is one of the four Financial Action Task Force (FATF) bills which seek reform in the money-laundering rule and change in the funding terrorism law. 2018 Global Review of Constitutional Law | 157 Ireland Eoin Carolan, Centre for Constitutional Studies – University College Dublin I. INTRODUCTION in late 2018 on blasphemy, while the Gov- ernment has also announced its intention to Just as it was for the 2016 and 2017 reports, hold referendums on divorce, extending cer- the issue of abortion loomed large over Irish tain voting rights to citizens living abroad, constitutional politics in 2018. The big dif- and on the future of the Constitution’s cur- ference for this year’s report, however, is rent recognition of woman’s “life within the that 2018 marked the culmination of the var- home”. This would mean there will be sev- ious review processes discussed in previous en referendums in four years, after only 33 years with the holding of the long-anticipat- in the previous 70 years, something which suggests that recourse to referendums may IRELAND ed referendum on the issue. be becoming an increasingly settled part of These processes—from Citizens Assembly Ireland’s constitutional politics. through parliamentary committee and onto referendum—have attracted considerable at- II. MAJOR CONSTITUTIONAL tention from overseas commentators. Much DEVELOPMENTS of the commentary, marvelling in its appar- ent capacity to persuade a deeply Catholic The major constitutional development was Ireland to support change, have looked to the the holding of a referendum on the amend- Irish experience as a model for constitutional ment of the provisions of the Constitution of deliberation. Ireland concerning the rights of the unborn. Article 40. 3. 3 of the Constitution, which was The reality of the abortion referendum—like inserted into the constitutional text by a refer- the marriage equality amendment before it— endum in 1983, previously provided that: may, however, be more nuanced and less re- velatory than this commentary assumes. “The State acknowledges the right to life of the unborn and, with due regard 2018 was also noteworthy in that it saw the to the equal right to life of the mother, Supreme Court’s entry into the abortion de- guarantees in its laws to respect, and, as bate for the first time in recent years. The far as practicable, by its laws to defend decision of the Court clarified an outstand- and vindicate that right.” ing—if somewhat arcane—question in the Irish case law on abortion. Of more long- The 8th Amendment (as it was more com- term interest may be what the manner of the monly known) was introduced as the result Court’s entry into the debate indicates about of a campaign by groups expressing concern its self-perception as a political actor. that an Irish court could follow the example of the English courts in R. v Bourne1 or US Su- :KLOHWKHDERUWLRQLVVXHDWWUDFWHGWKHPRVW SUHPH&RXUWLQ5RHY:DGH2 and interpret the attention, the year was also noteworthy for relevant statutory or constitutional provisions the Government’s continued interest in con- in a manner which made abortion more wide- stitutional change. A referendum was held ly available than was the case under the then 1 ? 2 Geoghegan J., in Roche v Roche [2010] 2 IR 321, para 210. 158 | I•CONnect-Clough Center legislation. The aim of the Amendment was The Assembly also made detailed rec- tivists for many years prior to these formal “to prevent the introduction of abortion either ommendations concerning the legislation deliberative processes but also overlooks by legislation by the Oireachtas or by judicial which, in its view, ought to be introduced polling data on the abortion issue. Opinion decision”.3 This meant, in effect, that it was after the referendum. polls for several years prior to the Assem- generally regarded as impossible to introduce bly and referendum had consistently shown a broad “decriminalisation of abortion with- For those interested in deliberative as- comfortable majorities for both a repeal of out the approval of the people as a whole”.4 semblies and the politics of constitutional the 8th Amendment and increased access change, it is this aspect of the Assembly’s to abortion. This casts serious doubt on the The proposal which was put to the people work, rather than its more obviously “con- cause-and-effect assumptions implicit in in May 2018 was to replace Article 40. 3. 3. stitutional” effects, which might merit most some of the more optimistic accounts of the with the following text: scrutiny. If there were any aspect of the Assembly’s role.5 Assembly which shifted public or political Provision may be made by law for the opinion (and this remains open to debate), In reality, the “dramatic” results of the mar- regulation of termination of pregnancies. it was the Assembly’s recommendations on riage equality, abortion, and (perhaps) blas- legislative rather than constitutional change. phemy referenda are more to do with the The aim of this was to confirm the entitle- delayed acknowledgement by an innately ment of the Oireachtas (parliament) to in- This is where some consideration of the spe- risk-averse political class of changes in ma- troduce legislation providing for abortion, cific social and political context becomes jority social attitudes that happened—or be- thereby addressing a concern that there LPSRUWDQW :KLOH WKH LQWHUQDWLRQDO SHUFHS- gan to happen—20 or 25 years ago. could be legal constraints on the expansion tion of Ireland can be of a deeply religious of abortion services—or, at the very least, society, this is arguably years, if not decades, However, it is amongst this group of polit- lengthy litigation asserting the existence of out of date. That is not to say that there are ical representatives where the Assembly’s legal constraints—notwithstanding the re- not parts of Irish society, especially amongst deliberations did seem to have some effect. peal of the 8th Amendment. older generations, that remain heavily influ- Its legislative recommendations were initial- enced by religious belief. That is also not ly greeted with significant skepticism as too This concern is discussed further in the next to overlook the fact that Irish society is, in liberal to command public support. Nonethe- section. many respects, more visibly—or anecdotal- less, it ultimately proved highly influential in ly—Catholic than many other states. Reli- shaping the legislative proposals announced The proposal was put forward by the Gov- gion certainly features prominently in many by the Government in 2018. The Assembly ernment at the end of a process which had of the familiar rituals of family or social life. recommendations set the agenda for the con- featured involvement by various bodies. However, the one-time capacity of the Cath- sideration of the issue by a parliamentary First of all, the question was one which had olic Church to influence political or social committee. Moreover, while the committee become increasingly difficult for the politi- life has long been in significant decline, es- did not endorse all of the Assembly recom- cal establishment to ignore as the result of a pecially since the child abuse scandals of the mendations, they seem in general to have visible and effective campaign for the repeal 1990s. To give one example, at the time of given them a presumptive weight in their of the 8th Amendment by activists. the 1983 referendum, 87% of Catholics were deliberations. That this committee’s report estimated to attend Mass weekly. By 2012, (which was, again, more liberal than might This led ultimately to the establishment of this was estimated to have fallen to around have been assumed a few months previous- a 100-person Citizens Assembly in 2016 to 30-35%, with some parishes in Dublin re- ly) was largely adopted by the Government consider the issue. Its recommendations, is- porting only 2% weekly attendance. as the basis for its proposed legislative re- sued in late 2017, were for the 8th Amend- gime in 2018 can arguably be seen as con- ment to be replaced with text confirming the In terms of the specific issue of abortion, it crete evidence of the Assembly model hav- entitlement of the Oireachtas to legislate on is a distortion to suggest that either the ref- ing practical political effects. this issue. The referendum proposal largely erendum campaign or the Citizens Assembly followed this recommendation. brought about a shift in deeply held views. The second referendum on constitutional This not only underplays the efforts of ac- change in Ireland in 2018 involved the re- 3 Hardiman J., in Roche v Roche [2010] 2 IR 321, para 181. 4 ? 5 :LLMVYL_HTWSL(UUP7V[[VYɈº3LZZVUZMYVT[OL0YPZO*P[PaLUZ»(ZZLTIS`!+LSPILYH[L,]LU>OLUP[»Z+PɉJ\S[»¸0YLSHUK»ZYLJLU[JP[PaLUZ»HZZLTIS`HUKYLZ\S[PUN YLMLYLUK\TVUHIVY[PVUYPNO[ZOPNOSPNO[Z[OLOPZ[VY`JOHUNPUNPTWHJ[JP[PaLUZ»HZZLTISPLZJHUOH]L¯5V[VUS`KPK[OL(ZZLTIS`ZWHYRHSVUNH^HP[LKW\ISPJ KPZJ\ZZPVUVUHIVY[PVUYPNO[ZP[OLSWLKZL[[OLZ[HNLMVYSHZ[TVU[O»ZUH[PVUHSYLMLYLUK\TVU4H` ¹"7H[YPJR*OHSTLYZº/V^ Z[YHUNLYZPUH+\ISPUOV[LSIYVRL 0YLSHUK»ZHIVY[PVUKLHKSVJR»;OL.\HYKPHU4HYJO ¸(YLMLYLUK\T^HZZJHYJLS`PTHNPUHISL^OLU[OLPKLHVMHUHZZLTIS`^HZÄYZ[TVV[LKPU )HJR [OLUML^WVSP[PJPHUZKHYLKL]LUYHPZL[OLZ\IQLJ[VMHW\ISPJ]V[LSL[HSVUL]VPJLZ\WWVY[MVYHIVY[PVUYPNO[Z¹ 2018 Global Review of Constitutional Law | 159 moval of the criminal offence of blasphemy requirement that political actors ought to III. CONSTITUTIONAL CASES from the text. This was, again, a provision comply with the obligations imposed by the with conspicuously religious origins but Constitution rather than to introduce de facto 1. M v Minister for Justice and Equality with significantly less practical effects. Ar- an amendment by constitutional desuetude. [2018] IESC 14: Abortion – right to life – ticle 40. 6. of the Constitution had provided This meant that the legislation was specifical- popular sovereignty – natural law (in part) that: ly stated by its sponsors to be designed to be difficult to prosecute. Under the Act, a person These proceedings involved a leapfrog ap- 1° The State guarantees liberty for the ex- could be found guilty of blasphemy if they peal to the Supreme Court from the decision ercise of the following rights, subject to published or uttered “grossly abusive or in- of Humphreys J. The High Court ruling had public order and morality: sulting” matter on “matters held sacred by any addressed a range of constitutional issues, i The right of the citizens to express religion”; their action caused outrage among several of which have been the subject of freely their convictions and opinions. a substantial number of members of that reli- contention for many years. These included the …. gion; and they intended to cause that outrage. meaning of family under Articles 41 and 42 as The publication or utterance of blas- well as the constitutional rights of the unborn. phemous, seditious or indecent matter One curious, if little-remarked, feature of is an offence which shall be punish- the referendum was that it was widely justi- The latter issue is one which, while the sub- able in accordance with law. fied and celebrated as a victory for freedom ject of considerable public, judicial, and ac- of expression even though it specifically ademic attention since the 1970s, had never However, while the Constitution thus re- re-enacted the obligation in Article 40. 6. 1 been comprehensively resolved. It had been quired that blasphemy be an offence, it did to provide for criminal offences of obscenity suggested by several judges prior to the not itself define what this meant or how the and sedition. From a freedom of expression 1983 referendum that at least some of the offence might be committed. That this made perspective, these are arguably as objection- rights protected by the Constitution might it difficult to apply in practice in the absence able and constitutionally unorthodox as the DSSO\ EHIRUH ELUWK )RU H[DPSOH :DOVK - of legislative intervention was confirmed in previous blasphemy requirement. Nor would expressed the view in G. v An Bord Uchtála 6 Corway v Independent Newspapers. There, there appear to be any great public or politi- [1980] IR 32 that “a child … has the right to a private individual applied to the High cal demand for their retention in the consti- life itself and the right to be guarded against Court for permission to bring a prosecution tutional text. It seems most likely that they all threats directed to its existence whether for blasphemous libel. The application re- were retained as an afterthought (if even before or after birth” (at 69). It was never de- lated to a newspaper cartoon about the 1995 that) to the political objective of “dealing finitively clarified either before or after the referendum on divorce. The courts refused with” a blasphemy issue that had attracted a 1983 referendum whether this represented the application. The Supreme Court point- degree of media and civil society criticism. the law on this issue, and therefore whether ed out that the legislation which referred to This is broadly consistent with the point the 8th Amendment created the right to life blasphemy provided “no statutory definition already made about the extent to which the of the unborn or was declaratory of it. of blasphemy … [and] assume[d] that the programme of constitutional change in re- crime exists without defining it.” The Court cent years reflects a decline in religious in- :LWKUHIRUPRI$UWLFOHXQGHUVHUL- pointed out that there was uncertainty over fluence in Irish society. It may also point to ous consideration, this became a key issue. which religion or religions were protected aspects of contemporary Irish constitutional It was prominent in discussions before the from blasphemy. There was also uncertainty politics that may be of interest or influence Citizens Assembly and seemed to have in- over how a person might commit blasphemy, in the medium-term. In particular, it rais- fluenced that body’s recommendation that an and of how an offence of blasphemy might es a question as to whether there is a per- express enabling amendment be included in interact with the Constitution’s protection ceived political dividend from constitutional any constitutional reform. This appeared to of freedom of expression and freedom of modernization—especially one defined in be intended to deal with the potential for an conscience. The Court concluded that the of- secular terms—by supplanting the habitual argument to be made that the unborn contin- fence existed but that there was significant caution of the Irish political class towards ued to enjoy constitutional rights even after uncertainty over what it involved. referendums and socio-religious issues over the repeal of Article 40. 3. 3. the last two decades. If that is the case, then This uncertainty was addressed by the Def- the prevalence of Catholic symbolism in the The Court stated in M that the unborn has amation Act 2009. The justification for its 1937 text suggests that there may be many no rights under the Constitution other than introduction was a perceived rule-of-law more referenda in the years to come. those contained in Article 40. 3. 3. This was 6 [1999] 4 IR 484. 160 | I•CONnect-Clough Center generally expected as a result, especially ly thereafter. However, it is also because to when or in what circumstances they might given the very expansive interpretation of the decision was ultimately delivered after be available. C marked the first occasion on the unborn as holding full Article 42A rights the Government had already announced the which the Court gave a more detailed insight that had been advanced by the High Court wording of the proposed amendment. The into the rationale for this new departure, and judge in the decision under appeal. decision clarified a legal issue which had the parameters of its exercise. There is some The Court engaged in a relatively detailed generated doubts over whether Article 40. evidence in the decision of differing lev- review of the various occasions in which 3. 3 should be repealed or replaced. It con- els of enthusiasm amongst the members of judges had suggested that the unborn may firmed, in effect, that the Article could be the Court. In general, O’Donnell J. seemed enjoy some degree of wider constitutional repealed—but after that decision had already mindful of the potential issues with this form protection. It concluded that these sugges- been made. of remedy but attracted to the flexibility tions were all obiter dicta. It also relied to which it provides. By contrast, McMenamin some degree on the reference in the consti- :KDW PD\ EH PRUH LQWHUHVWLQJ DERXW WKLV J. seemed more sceptical. Overall, all agreed tutional text to “citizen” or “person” as de- however, is the fact that the Supreme Court with Clarke J. that this was an exceptional fining the scope of the constitutional “rights appeared prepared to intervene in this de- remedy; that an immediate declaration was holder”,7 and on the fact that the 13th and bate at all. From a procedural and political the norm; and, in particular, that Ministers 14th Amendments seemed to regard Article perspective, there was no necessity for them should not seek to engage with the Court for 40. 3. 3 as an exhaustive statement of right. to do so. The proceedings had long become advice on what responses might be appropri- This meant that “the only right of the unborn moot by the time that an appeal was sought ate after a declaration was made. child as the Constitution now stands … is to the Supreme Court. Nevertheless, the that enshrined by … Article 40. 3. 3” (para Court not only agreed to hear the matter but IV. LOOKING AHEAD 10. 62). did so on an expedited basis for the express purpose of addressing the issue prior to the Constitutional change again looks likely However, and in keeping with its somewhat referendum being held. Furthermore—and to be a significant theme of the year ahead obtuse finding in the immigration law por- possibly unrelatedly—the decision was the with referendums proposed on a number of tion of its ruling that regard must be had to first (and so far only) occasion on which the issues including voting rights for emigrants, the rights of the unborn-once-born, the Court delivery of the ruling by the Supreme Court divorce, and the current constitutional refer- then immediately went on to suggest that the was broadcast on television. The Court’s de- ence to the role of women in the home. The unborn retains some degree of constitutional cision is, it should be noted, careful to re- latter two are in keeping with the nature of “visibility”. This was partly linked to Arti- peatedly disclaim any political dimension to the amendments in recent years, being pro- cle 40. 3. 3. In addition, though, it noted that its ruling. Nonetheless, the deliberate nature posals to address aspects of the text that bear “the fact … that the Minister must take into of the Court’s intervention is somewhat out the particular imprint of Catholic teaching. account of rights which will be acquired on of keeping with the traditional conservatism birth … recognise[s] and protect[s] the in- of the Supreme Court on sensitive issues. It The 1937 Constitution originally contained terests of an unborn child”, adding that “the is arguably the clearest indication of a shift an absolute prohibition on divorce, but State is entitled to take account of the respect that has debatably been occurring since the this was modified by a referendum (which which is due to human life as a factor which Court acquired control of its own caseload passed with a narrow majority) in 1996 to may be taken into account as an aspect of the in 2016, moving from a traditionally reactive permit divorce subject to certain conditions. common good in legislation”. Although it is common law court to a more self-conscious- One of these was that the couple had to have expressed in enabling terms that the State ly proactive role as a constitutional actor. lived apart from one another for a period of, is “entitled to take into account”, the refer- or periods amounting to, at least four years ence to the “respect which is due to human 2. C v Minister for Social Protection [2018] during the previous five years. The proposal life” has the potential to be seen as a basis IESC 57: Remedies is that this would be reduced or, perhaps, re- for constitutional challenges or limitations in moved from the Constitution in its entirety. the future. This decision is important for its consider- ation of the circumstances in which a sus- The other Catholic-influenced provision at :KLOHWKHFDVHDWWUDFWHGVLJQLILFDQWDWWHQWLRQ pended declaration of invalidity may be ap- issue for 2019 is Article 41. 2 of the Consti- at the time, the constitutional effects of the propriate. As discussed in the 2017 report, tution. This provides that: decision are arguably quite limited, at least the Supreme Court, in keeping with this as far as the abortion issue is concerned. This sense of a shifting role, has begun to experi- 1° In particular, the State recognises is most obviously because the decision was ment with suspended declarations of invalid- that by her life within the home, wom- concerned with text that was removed short- ity. However, it had provided little clarity as an gives to the State a support without 7 This may have implications for other issues, including the question of the extent to which certain rights may or may not be reserved to citizens. 2018 Global Review of Constitutional Law | 161 which the common good cannot be reports) have generated significant, if not achieved. unprecedented tensions between the political and legal branches. They also remain gov- 2° The State shall, therefore, endeav- ernment policy and, perhaps more relevant- our to ensure that mothers shall not be ly, a particular priority of a party on whose obliged by economic necessity to en- support the minority government is depen- gage in labour to the neglect of their du- dent. There is likely to be further controver- ties in the home. sy if the Judicial Appointments Bill proceeds without amendment in 2019. The provision has had little, if any, impact on constitutional litigation in Ireland but has V. FURTHER READING long been criticized for its symbolic anach- ronism. However, the Government’s initial * +RJDQ * :K\WH ' .HQQ\ 5 proposal to abolish the Article encountered :DOVK .HOO\ The Irish Constitution (5th some opposition in Parliament from some edition, Bloomsbury, 2018): The first update members who argued in favour of re-draft- in over 15 years of the constitutional text- ing it to make it gender neutral, or otherwise book relied on by generations of Irish practi- recognize the value of caring to society. This tioners. Running to over 2,500 pages, this is led to the postponement of the referendum the most comprehensive work available on from 2018 to 2019 in order to further con- the Constitution of Ireland. sider the issue. 2. F. de Londras & M. Enright, Repealing In terms of the courts, the most anticipated the 8th: Reforming Irish Abortion Law (with judgment(s) of 2019 (so far) is the Supreme postscript) (Policy, 2018): A commentary on Court’s ruling in the linked cases of Kerins as well as a contribution to the major event in 8 v McGuiness and O’Brien v Clerk of Dail Irish constitutional politics in 2018. Eireann.9 These were heard in March 2018 and judgment is expected in the first quar- 3. O. Doyle, The Constitution of Ireland ter of 2019. The first concerns a claim by a (Bloomsbury, 2018): The Irish entry in witness that her constitutional rights were +DUW¶V&RQVWLWXWLRQDO6\VWHPVRIWKH:RUOG infringed by the manner in which she was series, this work provides a contextual anal- treated by a parliamentary committee. The ysis of constitutional governance in Ireland. second relates to a complaint that the Dáil’s (lower house) omission to sanction a TD 4. D. Coffey, Drafting the Irish Constitution, (member of parliament) who had revealed 1935–1937 (Palgrave, 2018): Pioneering a information which was the subject of an in- new method of draft sequencing, this tracks junction breached the constitutional rights of the comparative constitutional influence on the party who had obtained the injunction. the process of drafting the 1937 Constitution. The previous case law on the scope, extent and justiciability of parliamentary privileges 5. E. Carolan (ed), Judicial Power in Ire- under the Constitution is less than clear— land (IPA, 2018): A collection of essays on something it is hoped the decisions will ad- the theory and practice of judicial power in dress. Ireland with a particular focus on recent con- troversies over judicial independence and The other issue of note in the judicial domain appointments. is whether there is any further progress on the Government’s controversial proposals for reform of judicial appointments. These proposals (which were discussed in previous 8 An appeal from [2017] IEHC 34. 9 An appeal from [2017] IEHC 179. 162 | I•CONnect-Clough Center Israel Justice Salim Joubran, Deputy President (ret.) of the Supreme Court of Israel Dr. Yaniv Roznai, Senior Lecturer, Harry Radzyner Law School, Interdisciplinary Center (IDC) Herzliya Tal Habas, LLB Student, Harry Radzyner Law School, IDC Yuval Geva, LLB Student, Harry Radzyner Law School, IDC I. INTRODUCTION judge, and Prof. Stein has been a professor of law in the US since 2004 and taught at Cardozo, Yeshiva University’s Law School, ISRAEL ,VUDHO¶V6XSUHPH&RXUWLVDPDMRULQÀXHQWLDO until moving to Brooklyn Law School in SOD\HULQWKH¿HOGRIMXGLFLDOSROLWLFV1 After 2016. The two new justices replaced retiring PDUNHGD\HDUZLWKVLJQL¿FDQWMXGLFLDO Justice Yoram Danziger, who was appoint- decisions, inter alia, invalidating a law based ed as a full professor at Tel-Aviv Universi- XSRQSURFHGXUDOÀDZVDQGLVVXLQJDQRWLFH ty, Faculty of Law, and Justice Uri Shoham, of invalidation to a basic law concerning the who was appointed Ombudsman of the Is- biennial budget,2 2018 was a relatively mod- raeli Judiciary on November 2018. erate year with not a single invalidation of a primary law or part thereof. II. MAJOR CONSTITUTIONAL In this report, we highlight major constitu- DEVELOPMENTS tional developments, mainly the enactment of a new chapter in the Israeli constitution— The most important development in Israeli Basic Law: Israel as the Nation State of the constitutional law in 2018 was probably the Jewish People—and amendments to Basic enactment of the Basic Law: Israel as the Law: The Government on waging war. Fur- Nation State of the Jewish People.3 On July thermore, we summarize the central consti- 19, 2018, in the very last day of the Knes- tutional cases dealing with security, law and set’s summer session, it passed a new Basic religion, delegation of authority and judicial Law stating that Israel is the Nation State review of basic laws. of the Jewish people by a majority of 62-55 members. As the Israeli constitution-mak- One additional notable development within ing process is an incremental one, conduct- the judiciary is the appointment, by the Ju- ed in stages through the enactment of Basic dicial Appointments Committee, of two new Laws,4 this new Basic Law is a new ‘chap- justices to the Supreme Court—Prof. Alex ter’ in Israel’s constitution, dealing with the Stein and Prof. Ofer Grosskopf. Prof. Gross- identity of the State. kopf was previously a central district court 1 On the Supreme Court’s legacy, see Pnina Lahav ‘Israel’s Supreme Court’, in Robert O. Freedman (ed), Contemporary Israel - Domestic Politics, Foreign Policy, and Security Challenges (Routledge, 2008). 2 See Justice Uzi Vogelman, Yaniv Roznai, Ron Goldstein, Maya Gazit and Michael Herscovici, ‘Israel’, in Richard Albert, David Landau, Pietro Faraguna and Simon Drugda (eds), .SVIHS9L]PL^VM*VU- stitutional Law (I·CONnect-Clough Center, 2018) 151-155; Yaniv Roznai, ‘Constitutional Paternalism: The Israeli Supreme Court as Guardian of the Knesset’ (2019) 51(4) Verfassung und Recht in Übersee (forthcoming). 3 For a translation of the Basic Law, see https://knesset.gov.il/laws/special/eng/BasicLawNationState.pdf 4 We elaborate on this feature in Israeli constitutional law in our 2016 report. See Justice Uzi Vogelman, Nadiv Mordechay, Yaniv Roznai, and Tehilla Schwartz, ‘Developments in Israeli Constitutional Law’, in .SVIHS9L]PL^VM*VUZ[P[\[PVUHS3H^ (Richard Albert, David Landau, Pietro Faraguna and Simon Drugda (eds.), I·CONnect-Clough Center, 2017), 105-109. 2018 Global Review of Constitutional Law | 163 The Nation-State Basic Law states that Israel Another important constitutional change ers, a grassroots organization of families on is the ‘national home of the Jewish people’, dealt with war powers. On May 2, 2018, ERWKVLGHVRIWKH,VUDHOL3DOHVWLQLDQFRQÀLFW stating that ‘The exercise of the right to na- Basic Law: The Government was amended who have lost immediate family members in tional self-determination in the State of Isra- to allow the transfer of authority to launch hostilities. The ceremony has been held an- el is unique to the Jewish People.’ It includes military operations and declare war from the nually for the last 12 years with the purpose eleven clauses, anchoring the State’s sym- government to the smaller Security Cabinet. of joining together bereaved families who EROVVXFKDVLWVQDPHÀDJQDWLRQDODQWKHP The amendment also included a provision believe in reconciliation. It is attended by DQG HPEOHP DQWKHP RI¿FLDO ODQJXDJH DQG according to which a decision in the Securi- several thousand Israelis and takes place on national holidays. It states that ‘Jerusalem, ty Cabinet would be adopted with a quorum the same day as the national Israeli Memo- complete and united, is the capital of Israel’, of half of the Cabinet’s members. However, rial Day, which commemorates Israel’s fall- that ‘Hebrew is the State language’ and that in extreme and urgent conditions, the Prime en soldiers and victims of terrorism. For the Arabic, which had a formal status, now has Minister and Minister of Defense can decide past 12 years, except for one year in which ‘a special status in the State… Nothing in to adopt such a decision with a narrower the permit was denied for security reasons, this article shall affect the status given to the quorum.7 the Minister of Defense allowed the entry Arabic language before this law came into of Palestinians into Israel so that they could force.’ Thus, Hebrew is now Israel’s sole of- The constitutional provision that allowed take part in the ceremony. ¿FLDOODQJXDJH7KH%DVLF/DZIXUWKHUVWDWHV the Prime Minister and Minister of Defense that ‘The State shall be open for Jewish to decide, in extreme conditions, on war or The Petitioners argued that the Defense Min- immigration, and for the Ingathering of the on a substantive military operation on their ister’s decision was unreasonable, based on Exiles’, and elaborates on the connection of own—without the approval of the Cabinet— extraneous considerations, and would consti- the State with the Jewish People. It also pro- was abolished only two months later, in July tute a violation of the freedom of expression vides that ‘The State views the development 2018. The rationale behind the abolishment of both the organizers and the participants. of Jewish settlement as a national value, and was that ‘It is appropriate that a decision of They also noted the worthy, altruistic and shall act to encourage and promote its the Ministerial Committee regarding starting positive values behind the ceremony and that establishment and strengthening.’ It further DZDURUWDNLQJVLJQL¿FDQWPLOLWDU\DFWLRQWKDW without the participation of Israelis and Pal- LQFOXGHV SURYLVLRQV UHJDUGLQJ WKH RI¿FLDO may at a high level of certainty lead to war estinians side by side, the ceremony would calendar, Independence Day and Memorial be adopted by as wide a panel as possible.’8 be meaningless. On their part, the respon- Days, Days of Rest and Statutory Holidays. The question of war powers is extremely im- dents argued that the Defense Minister has This Basic Law is formally entrenched and portant in Israel, which has been in a state of a wide discretion, including consideration of may be altered or repealed by a majority of emergency since its establishment in 1948.9 the anticipated harm to the public’s feelings 61 members (out of 120) as opposed to a reg- and bereaved Israeli families who were out- ular majority of members present, as is the III. CONSTITUTIONAL CASES spoken in their opposition to the ceremony. case for ordinary laws.5 In addition, it was argued that non-citizens of Israel have no vested right to enter the coun- 1. HCJ 2964/18 Parents Circle – Families Fo- The Basic Law was at the center of public try and that the petitioners have a reasonable rum, Bereaved Families for Peace v. Minister debates,6 and various petitions against its alternative and can conduct the ceremony in of Defense (April 17, 2018): Entry of Palestin- constitutionality were submitted to the High WKH:HVW%DQN ians to Israel for a Memory Ceremony Court of Justice (HCJ). The President of the Supreme Court, Honorable Justice Esther The Court accepted the petition, ruling that This petition was directed against the deci- Hayut, has announced that a panel of 11 jus- the Defense Ministers’ discretion is not un- sion of the Minister of Defense not to allow tices will hear the petitions, which are cur- limited and must be exercised in a reasonable 3DOHVWLQLDQUHVLGHQWVRIWKH:HVW%DQNWRHQ- rently pending. manner and in accordance with the rules of ter Israel in order to participate in a private administrative law. In its decision, the Court memorial service organized by the petition- 5 For the full text of the Basic Law, see: https://m.knesset.gov.il/EN/News/PressReleases/pages/Pr13978_pg.aspx 6 6U[OL)HZPJ3H^ZLLLN:\aPL5H]V[º(UL^JOHW[LYPU0ZYHLS»Z¸JVUZ[P[\[PVU¹!0ZYHLSHZ[OL5H[PVU:[H[LVM[OL1L^PZO7LVWSL»=LYM)SVN O[[WZ! verfassungsblog.de/a-new-chapter-in-israels-constitution-israel-as-the-nation-state-of-the-jewish-people/, DOI: https://doi.org/10.17176/20180727-124823-0; Tamar Hostovsky Brandes, ‘Israel’s Nation-State Law – What Now for Equality, Self-Determination, and Social Solidarity?’ (October 1, 2018), https://ssrn.com/ abstract=3270476; and especially this collection of essays: Simon Rabinovitch (ed.), +LÄUPUN0ZYHLS¶;OL1L^PZO:[H[L+LTVJYHJ`HUK[OL3H^(Hebrew Union College Press, 2018). 7 Amichai Cohen, ‘Who Can Declare War on Behalf of the Israeli People?’ IDI (May 06, 2018), https://en.idi.org.il/articles/23444 8 ‘Knesset rescinds law allowing PM, DM to declare war’ (July 17, 2018), http://www.israelnationalnews.com/News/News.aspx/249082 9 See generally, Suzie Navot, ‘Emergency as a State of Mind—the Case of Israel’ in Pierre Auriel, Olivier Beaud, and Carl Wellman (eds.), ;OL9\SLVM*YPZPZ! ;LYYVYPZT,TLYNLUJ`3LNPZSH[PVUHUK[OL9\SLVM3H^ (Springer, 2018), 185-212. 164 | I•CONnect-Clough Center took into consideration, among other things, cratic principles, including the right to vote A seven-justice bench held an additional that entry permits had been issued in the past. and to be elected, the right to equality and hearing on an amendment to the Municipal The Court pointed out that the respondents freedom of political expression. According- By-Law of the City of Tel Aviv-Jaffa that au- had not explained why the Defense Minister ly, its adoption constitutes a misuse of the thorizes the opening of minimarkets in the had decided to deviate and adopt a different Knesset’s constituent powers. On the other city on the Sabbath (Friday evenings and policy. The Court also found that while the hand, the respondents argued that the peti- Saturdays). In 2014, the Minister of the In- Defense Minister had considered the feel- tion was not yet ripe, as the powers invested terior exercised his authority and halted the ings of certain bereaved Israeli families and in the Knesset by the amendments had yet publication and execution of the amendment. part of the Israeli public who were against to be exercised. Moreover, these were not After the minister’s resignation, the decision the ceremony, he had failed to consider the exceptional circumstances that could justify on the matter by his successors was deferred feelings of the bereaved families and the Is- the Court’s intervention in a Basic Law, in- again. The municipality appealed the sus- raeli public that did wish to conduct the cer- ter alia, since the amendment was consistent pension of the by-laws and the Court accept- emony and who identify with its goals. As an with restrictions that apply to banning polit- ed its petition. This current request for an additional consideration, the Court took into ical parties and nominees, and in light of the additional hearing was accepted as the Court account the position of the professional ech- mechanism’s internal checks and balances. held that the matter has broad implications, elon in the Ministry of Defense, who were mainly the nature of the Sabbath in the pub- of the opinion that the bereaved Palestinian All justices on the bench agreed that the lic sphere. In his decision, the minister had families should be issued temporary entry petitions should be dismissed, but for dif- concluded that the amendments should not permits in order to attend the ceremony. fering reasons. According to the main opin- be adopted considering the scope of damage ion, written by the President of the Supreme they would purportedly cause to the social 2. HCJ 5744/16 Adv. Shachar Ben Meir v. Court, Honorable Justice Esther Hayut, the and religious-national values that underlie The Knesset (May 27, 2018): An Unconstitu- law unavoidably violates fundamental dem- the Sabbath. WLRQDO$PHQGPHQWWRD%DVLF/DZ" ocratic principles and constitutional rights, a matter which can be determined even be- The Court held by a majority opinion that These petitions, which were discussed in an fore the law is applied. As an amendment to the subject of the additional hearing should expanded bench of nine justices, were direct- a Basic Law, it is clear that the manner of not be interfered with. Despite the grounds ed against amendments to the Basic Law: reviewing its constitutionality is not equal to for dismissing the petition in limine, all the The Knesset that allows the removal from WKDW RI D UHJXODU ODZ:KHUHDV LQ VRPH OH- justices discussed the questions that arose the legislature of lawmakers whose actions gal systems the doctrine of ‘Unconstitutional on their merits. According to the Honorable constitute incitement to racism or support for Constitutional Amendments’ exists, in the President (ret.) Justice Miriam Naor, who an armed struggle against the State of Israel. context of the ‘Removal Law’, there is no wrote the main opinion of the Court, the Pursuant to the amendments, the process of need yet to address and decide the question minister’s position is unreasonable in the UHPRYDOIURPRI¿FHLQFOXGHVVHYHUDOVWDJHV of the applicability of this doctrine in Israel, absence of proper weighting for the auton- 7KHSURSRVDOWRUHPRYHDQ0.IURPRI¿FH considering that the constituent body has not omous status of the municipality. According must enjoy the support of 70 MKs, of whom yet completed its constitution-making pro- to the interpretation of the relevant legisla- at least 10 must belong to a Party which is cess, and that the law does not negate the ba- tion, the minister’s authority cannot replace not a member of the coalition government. sic principles of the Israeli legal system. This the municipality’s discretion, which stems It must then be approved by the Knesset is also in view of the checks and balances IURPWKHQHHGWREDODQFHFRQÀLFWLQJLQWHUHVWV Committee and then adopted by the Knesset contained therein and the legitimate purpose in a diverse society. According to the minori- plenum by a majority of 90 of the 120 MKs. of the law—preventing the use of democrat- ty opinion, the minister’s decision should not As an additional precaution, an MK whose ic tools to advance anti-democratic goals.10 be interfered with. service has been terminated may appeal to the Supreme Court. 3. FHHCJ 3660/17 General Association of In January 2018, in response to the Court’s Merchants and Self-Employers v. Minister ruling, amendments were made to the or- According to the petitioners, the amend- of the Interior (October 26, 2017): Legali- ders authorizing the municipalities to enact ment, commonly referred to as the ‘Remov- ty of a Municipal By-Law Authorizing the by-laws. These amendments, commonly re- DO/DZ¶VLJQL¿FDQWO\YLRODWHVWKHSULQFLSOH Opening of Minimarkets on the Sabbath ferred to as the ‘Minimarket Law’, include of separation of powers and basic demo- a demand for the consent of the Minister of 10 On the applicability of the ‘Unconstitutional Constitutional Amendment’ in Israel, see Aharon Barak, ‘Unconstitutional Constitutional Amendments’ (2011) 44(3) Israel Law Review 321; Yaniv Roznai, ‘Constitutional Unamendability in Israel: Remarks Following Professors Baxi, Hoque and Singh’ (2018) 0UKPHU1V\YUHSVM *VUZ[P[\[PVUHS (KTPUPZ[YH[P]L3H^ (2018) 33; Mazen Masri, ‘Unamendability in Israel – A Critical Perspective’, in Richard Albert and Bertil Emrah Oder (eds.), An 2018 Global Review of Constitutional Law | 165 the Interior as a condition for the validity of ‘together or in partnership’ with other par- IV. LOOKING AHEAD by-laws regarding the opening and closing ties, but this provision does not justify the of businesses on days of rest. At the time of transfer of discretion to those entities. In or- There are several questions awaiting Israel this writing, petitions submitted by a number der not to ‘shock’ the existing systems and both in constitutional law and constitutional of municipalities against the new authority allow the respondents reasonable additional politics. As for the latter, this year is an elec- of the minister are pending. time to advance the legislative process, the tion year. Elections for the 21st Knesset will HCJ gave a period of a year to complete leg- be on April 9, 2019. 4. HCJ 4113/13 The Coordinating Bureau islation regulating the status of the collection of the Economic Organizations v. The Min- companies, if the Knesset so wishes. As for constitutional law, there are 14 chal- ister of the Interior (March 26, 2018): The lenges submitted to the HCJ concerning the Legality of Municipalities to Delegate the 5. HCJ 3003/18 Yesh Din et al. v. IDF Chief above-mentioned ‘nation state law’, which Collection of Municipal Taxes to Private of Staff et al (May 24, 2018): Lawfulness of will be heard this year and which have in- Companies the IDF’s Rules of Engagement During the stigated a public debate on the authority of Recent Events on the Gaza border the HCJ to review basic laws, i.e., laws of a The basis of this petition questions whether constitutional status. municipalities have the authority to delegate Since Palestinian ‘Land Day’ on March 30, the collection of municipal taxes and other 2018, thousands of Palestinians staged large- compulsory payments to private companies scale, violent demonstrations in the area of V. FURTHER READING LQ WKH DEVHQFH RI VSHFL¿F VWDWXWRU\ OHJLVOD- the security perimeter between Israel and the tion’s explicit authorization. During the dis- Gaza Strip. The petition challenged the rules Yoav Dotan, ‘Impeachment by Judicial Re- cussion, the justices examined the actions of engagement governing the use of force view: Israel’s Odd System of Checks and taken by the private collection companies by the Israeli security forces in the violent Balances’ (2018) 19(2), Theoretical Inqui- in order to decide whether this is a techni- clashes in the area of the security fence be- ries in Law, 705-744 cal action or an action requiring discretion. tween Israel and the Gaza Strip. The current petition was submitted in 2013, Gideon Sapir, The Israeli Constitution: From and for several years no decision was giv- The petitions argued that the rules of engage- Evolution to Revolution (OUP, 2018) en in light of the State’s announcement that ment allowing the Israeli security forces to the matter at hand was just before legislative use lethal force against persons deemed ‘pri- Adam Shinar, ‘Israel’s External Constitu- regulation. However, the legislative process mary inciters’ even when such persons did tion: Friends, Enemies, and the Constitution- did not progress for many years, and thus the not present an imminent, actual threat to hu- al/Administrative Law Distinction’ (2018) time came for a decision to be made upon man life, are prohibited. The respondents ar- 57(3), Virginia Journal of International Law the matter. gued that the rules of engagement are consis- ,735-767 tent with Israeli and international law as well The HCJ accepted the petition, stating that as with the case law of the Supreme Court. Yaniv Roznai and Liana Volach, ‘Law Re- local municipalities should not be allowed to form in Israel’ (2018) 6(2), The Theory and delegate their authority to collect taxes and A three-justice panel unanimously dismissed Practice of Legislation (2018), 291-320 other payments to private companies without the petition. According to Justice Melcer, being regulated by an authorized legislation. deputy president of the Supreme Court, who 5LYND :HLOO µ7KH 6WUDWHJLF &RPPRQODZ The Court ruled that private collection com- wrote the primary judgment, the HCJ could Court of Aharon Barak and its Aftermath: panies carry out actions that cannot solely be not examine the means employed by the IDF On Judicially-led Constitutional Revolutions regarded as ‘technical matters’. The Court in response to the events, both because of the and Democratic Backsliding’ (December 5, concluded that in accordance with the ex- great restraint required in judicial review of 2018), https://ssrn.com/abstract=3296578 isting law, performing collection actions military operations that are not prima facie through private companies is a forbidden unlawful, and particularly in circumstances delegated authority using discretion, and is in which the requested review is of the im- not merely technical assistance. The Court plementation of operational policy occurring stated that according to Section 249(31) of in real time. the Municipalities Ordinance, the munici- pality is entitled to carry out its functions 166 | I•CONnect-Clough Center Italy Pietro Faraguna, Assistant Professor of Constitutional – Law University of Trieste Michele Massa, Associate Professor of Public Law – Catholic University of the Sacred Heart, Milano Diletta Tega, Associate Professor of Constitutional Law – University of Bologna Coordinated by Marta Cartabia, Vice President – Constitutional Court of Italy I. INTRODUCTION II. MAJOR CONSTITUTIONAL ITALY DEVELOPMENTS The Italian Constitutional Court (hereafter ICC or “the Court”) has long characterized The ICC’s activism on rights manifested its position within the constitutional system itself on many fronts, and along many di- by exercising a significant effort in coordi- mensions. The three rulings selected here nating its powers both with other constitu- share two traits: they all concern delicate tional institutions (“horizontal relationality”) substantive issues; they also present some and with international and supranational law long-standing problems connected to the (“vertical relationality”). Accordingly, our limits of judicial review.2 report on constitutional developments in 2016 primarily focused on aspects of vertical The ICC’s judicial review “excludes any relationality, while our 2017 report focused consideration of a political nature as well on horizontal relationality. These dimensions as any control on the discretionary powers remained crucial in 2018: in particular, the of the Parliament”: each ruling should rest Court intensified its capacity of relationality on purely legal grounds; no choices should with civil society by organizing an unprec- be made if they entail political assessments. edented number of visits by constitutional Moreover, the Court is bound to the specific judges to public schools and prisons.1 Last LVVXHVUDLVHGEHIRUHLW:KHQLWDQQXOVDODZ year’s case law also stands out for an ap- the ICC has some room for manipulation, parent judicial engagement on fundamental but only to a limited extent. These circum- rights. The Court reasserted its crucial role in stances—by no means exclusive to the Ital- one of the most classical and characterizing ian model—can hinder the judicial enforce- ILHOGV RI FRQVWLWXWLRQDO DGMXGLFDWLRQ :KLOH ment of constitutional rights, as the cases this concern emerges more clearly in crucial here demonstrate. developments concerning limits to the judi- cial enforcement of rights (and focusing in The cases are in order of increasing diffi- particular on significant decisions reported culty of the relevant problems as well as in- in Part II concerning the mitigation of cor- creasing boldness of the ICC in dealing with rectional harshness, alternatives to mandato- them. ry sentences, and end-of-life choices), it runs through many other segments of the 2018 The first judgment3 concerned life sentences ICC’s case law (Part III). for persons convicted of kidnapping victims for a ransom and causing their death. Due 1 :LL[OLVɉJPHS^LIZP[L^^^JVY[LJVZ[P[\aPVUHSLP[PU[OLZLJ[PVU¸=PHNNPVPU0[HSPH¶3H*VY[LJVZ[P[\aPV- UHSLULSSLJHYJLYP¶3H*VY[LJVZ[P[\aPVUHSLULSSLZJ\VSL¹;OLPUP[PH[P]LPZVUNVPUN"HUL^YV\UKVM]PZP[ZPU schools was announced on 4 February 2019. 2 For a general outline, see Vittoria Barsotti, Paolo G Carozza, Marta Cartabia and Andrea Simoncini, Italian *VUZ[P[\[PVUHS1\Z[PJLPU.SVIHS*VU[L_[6<7<:( Ɉ Ɉ 3 Corte costituzionale, Judgment of 11 July 2018, No. 149. 2018 Global Review of Constitutional Law | 167 to the extreme seriousness of the offence this but feels unable to extend the scope of its sanctions. It is unbecoming to wait any lon- (normally connected with organized crime), ruling, which is bound to the specific ques- ger. Now, according to the ICC, it is neces- this sentence precludes most of the benefits tion raised. sary, but also sufficient, to seek within the (leaves, work-release, day-release) which existing legal system a plausible alternative usually reward the convicts’ gradual prog- And yet the Court is undeterred: an annul- to the 10-year fixed term6. In this case, the ress towards rehabilitation. The benefits be- ment shall not be denied only because it cre- alternative is the “up to 10 years” duration come accessible only after 26 years of prison ates abstract inconsistencies within the legal established for the same punishment in dif- time; but at that point, if not earlier (thanks order. It is for the legislator to address and ferent but comparable economic crimes. This to cooperation with justice), inmates may be resolve these problems. Of course, one may gives the judge enough discretion to make entitled already to conditional liberation (pa- add, nothing prevents a similar constitution- the punishment fit the crime and to preserve role), which is far more favorable. And yet, al question from also being raised before the the distinctive dissuasive effect of this type as an additional paradox, liberation (as well ICC on fixed-term sentences, in separate of additional sanction. The Court eventually as day-release) might be denied precisely be- proceedings. notes that the Parliament may still amend the cause of the lack of previous, more limited, law if it seems appropriate. and successful release experiments. The second judgment4 concerned the punish- ment for bankruptcy; not the main sanction Arguably, the most surprising novelty of the According to the ICC, this regulatory frame- (prison time), but the additional sanction, year came in the third case, concerning the work is unconstitutional. The Court put three namely the prohibition from owning any criminal indictment of assistance to suicide.7 main arguments at the basis of its decision: commercial enterprise (and holding manag- For the ICC, the prohibition of such assis- ing offices within one). This prohibition is tance is constitutionally sound, in general. 1) The Constitution requires correctional mandatory and always lasts 10 years. But a distinction must be made when specif- flexibility, i.e., rewarding social rehabilita- ic conditions are met: the relevant illness is tion with a progressive pattern through time; In principle, all punishments should have a irreversible and causes intolerable physical duration comprised between a minimum and or psychological suffering or the patient sur- 2) The offenders’ commitment to rehabili- a maximum, to be calibrated by the judge in vives only due to life support but is still capa- tation should not be discouraged by putting each single case. Only exceptionally may the ble of free and fully conscious decisions. In rewards beyond a very distant horizon; term be directly and precisely fixed by law, these tragic instances, patients already have and only if it reasonably fits the whole scope a statutory right to refuse life support (and 3) Such harshness is due only to the offence of behaviors which the criminal provision obtain continuous deep sedation); therefore, committed, without any regard for the of- aims at punishing. This is not the case with for the ICC, it is unreasonable to deny them fenders’ personality, behavior, and social bankruptcy; it has several legal variants, the right to request assistance in anticipating dangerousness (or lack thereof). The Italian each of them applicable to a wide range of their own death when they find this option Constitution assumes that the offender’s per- situations. However, a further issue emerges: more dignified and more merciful for their sonality is never irreversibly marred, how- what should be the duration of these addi- loved ones. ever heinous a crime may be. The offender tional sanctions, if the fixed 10-year duration has the responsibility to engage on a path LVXQZDUUDQWHG"1HLWKHUODZQRUORJLFJLYHV Here a serious problem arises. The option towards critical revision and rehabilitation; “one right answer.” A whole range of options for assisted suicide should be exercised only society, on its side, must allow and stimulate is theoretically available. within a specific and carefully crafted legal such progress. Therefore, the ICC removed framework. The issues in need of regulation the rigid legal barrier. In these situations in the past, the ICC would include the relevant preliminary assessments; issue an inadmissibility ruling: there is a uni- the medical enactment of the assistance, pos- There is an inconvenient issue here: because vocal constitutional problem, but no equal- sibly only in public hospitals; and the consci- of the effect of the decision, benefits be- ly univocal constitutional solution (no “set entious objection of doctors and paramedics. come accessible for life sentences, but not rhymes” for replacing the wrong “verse” in Also, every patient must have effective access for fixed-term sentences (e.g., 30 years) for the law); only the Parliament may choose to palliative care before alternatives are even similar offences (e.g., kidnapping for ransom one. Here, the ICC takes a less deferential considered. All these issues have substantial which does not cause the victim’s death). In stance. It notes that the Parliament has not political implications and, therefore, should a sense, the former sentences become more heeded the ICC’s own call (in a judgment be settled by the Parliament. flexible than the latter. The ICC is aware of of 20125) for a general reform of additional 4 Corte costituzionale, Judgment of 5 December 2018, No. 222. 5 Corte costituzionale, Judgment of 31 May 2012, n. 134, Giur. cost., 2012, III, 1850 (It.). 6 The ICC also builds on its Judgment of 10 November 2016, No. 236, Foro it. 2017, I, 97 (It.), in our 2017 report (p. 158, fn. 10). 7 Corte costituzionale, Order of 16 November 2018, No. 207. 168 | I•CONnect-Clough Center In the past, when this kind of problem arose, tion of a certificate of vaccination. Noncom- effectiveness of such protection. Howev- normally the question would be dismissed pliance could also result in administrative er, the Court held that the identification of as inadmissible, in deference to the legisla- fines. The Court ruled that urgent provisions national minorities is an exclusive compe- tive discretion of the Parliament; if the latter were appropriate given the preventive nature tence of the State legislator. Regions may would not intervene, and the same question of vaccinations and the declining level of not classify their own population as such and happened to be raised again at a later point, coverage in Italy. Second, the Court clarified automatically as “national minorities.” This the ICC might abandon its self-restraint and that the choice of tightening up legislation to would undermine the unity and indivisibility lay hands on the relevant legislation (see also compel vaccinations was not unreasonable, of the Republic, as safeguarded in Article 5 above). This time, the ICC took a different as, in medical practice, recommendation of the Constitution. stance: it still refused to immediately take and obligation are conjoined concepts, and action and strike down or manipulate the law a shift from the latter to the former is jus- In the second case, the Court decided on a as things stood (allo stato); but it did not con- tified by the growing concerns on vaccina- constitutional issue concerning another re- clude the judgment (with an inadmissibility tion coverage. Third, it stated that requiring gional legislation adopted in Veneto. This ruling) and instead postponed it to a later a certificate to enroll in school and imposing regional law required State bodies and enti- date (24.09.2019) to see if the law would be fines was reasonable, not least because the ties to display certain regional flags outside amended through a political process. This legislator had provided for initial steps that of buildings and on certain vessels within was an attempt at imitating techniques em- included one-on-one meetings with parents the regional territory. The Court struck down ployed by other constitutional tribunals: the and guardians to inform them about vaccine these provisions as unconstitutional, and decision explicitly quotes the Supreme Court efficacy. Finally, it noted that epidemiologi- held that “the contested legislation encroach- of Canada in Carter v Canada;8 and a study cal conditions must be constantly monitored es upon the exclusive legislative competence by the ICC’s Research Office (Comparative and that in the future, depending on the rel- of the State over the legal and administrative Law Unit) refers to similar practices by the evant findings, it could be possible to exper- organisation of the State and of national pub- Austrian and German constitutional tribu- iment with downgrading certain vaccines lic bodies.” Interestingly, the Court drew a nals.9 There is a fundamental difference: the from mandatory to suggested status. parallel between State-region relations and ICC neither struck down a legal provision the EU-Member State relations. As Member while suspending the ruling’s effects nor 2. Judgment Nos. 81 and 183 of 2018: Sub- States display the EU flag on governmental set a binding term for the legislator; it sim- national minorities and symbols buildings but may not impose the display of ply delayed its judgment, keeping it entirely Member States’ flags on EU governmental open in its outcome, albeit on grounds that These decisions deal with two separate re- buildings, regions are required to display na- might support a final annulment. gional legislative initiatives originating from tional symbols, but may not require national the Veneto region (which has recently been authorities to display regional symbols. III. CONSTITUTIONAL CASES particularly active in constitutional litiga- tion). 3. Judgment No. 115 of 2018: Taricco saga 1. Judgment No. 5 of 2018: Mandatory vac- (final episode) cination imposed by law In the first case, the Court considered a di- rect application from the President of the :LWKWKLVMXGJPHQWWKH,&&ZURWHWKHODVW In this case, the Court considered two appli- Council of Ministers challenging a Veneto chapter of an important saga that called the cations from the Veneto region contesting a regional law classifying the “Veneto people” ICC and the Court of Justice of the European decree-law laying down urgent provisions as a national minority under the international Union into a historical judicial dialogue. concerning mandatory vaccinations imposed Framework Convention for the Protection of by national law. The provisions listed 10 National Minorities. The Court struck down The stake at issue derives from the so-called mandatory vaccines for all minor children the whole regional law as unconstitutional. “Taricco case” of the CJEU (Case C-105/14, under the age of 16, four of which were The Court’s main argument was based on the Taricco and others), originating a saga con- 10 already mandatory, and six of which were fact that protection of minorities, as an ex- sisting of multiple decisions. :LWKWKLVODVW elevated from recommended to mandatory pression of the principle of pluralism, is to episode, the ICC ruled on the applicabili- status. Under the decree-law, the mandato- be included among the supreme principles of ty of the so-called “Taricco rule” within the ry vaccines were a requirement for access to WKHFRQVWLWXWLRQDOV\VWHP:LWKLQWKLVIUDPH- Italian legal system. This rule—interpreta- early childhood educational services, mak- work, both regional and State legislation are tively drawn by the CJEU from Article 325 ing enrollment contingent upon the presenta- called to ensure the objective of the concrete TFEU—implied for national courts the obli- 8 Carter v Canada (AG), 2015 SCC 5. 9 Maria Theresa Rörig (ed.), ‘Le pronunce di incostituzionalità e di incompatibilità costituzionale nella giurisprudenza costituzionale tedesca e austriaca’, October 2018, Comp. 242, in https://www.cortecostituzionale.it/documenti/convegni_seminari/242_incompatibilita_Germania_Austria.pdf 10 For an overview of the preceding episodes of this saga, see our 2016 and 2017 reports. 2018 Global Review of Constitutional Law | 169 gation to set aside national legislation on the 4. Judgment No. 120 of 2018: Legal status welfare. As a matter of principle, situations limitation of offences, which, in the situations of the ECtHR and European Social Charter of need or hardship, directly related to the and under the circumstances described by the human person as such, are the foremost pre- CJEU, compromises the efficacy of the pen- In this case, the Court heard referral orders requisite for enjoying social benefits: when alty. This consequence was particularly prob- challenging the constitutionality of legis- legal immigrants incur such a situation, they lematic in the Italian legal system, as statute lation that prohibited the establishment of should not be discriminated against. In the- of limitation is considered an institution of trade unions by members of the armed forc- ory, some benefits could require a stronger substantive criminal law, and falls therefore es with reference to ECtHR case law and and more stable integration in the local terri- within the scope of the principle of legality in the European Social Charter. As a matter of tory and community. This might happen for criminal matters. Thus, some Italian judges, sources of law, the ICC held that decisions social housing, as frequent changes in tenan- when called to apply the “Taricco rule” after of the European Committee of Social Rights cy would aggravate and hamper administra- the CJEU decision, claimed that by disapply- do not entail the same status as ECtHR case tive action. But such limiting choices must ing the national legislation concerning the law in the Italian legal system. On the con- not be arbitrary or unreasonable. The ICC limitation they would have violated Italian trary, as the Charter is to be labeled under the also relied on anti-discriminatory EU law as constitutional identity, and in particular the general umbrella of international law under a significant complement in the judicial en- principle of legality in criminal matters. The Article 117(1) of the Italian Constitution, the forcement of equality. Two of the three rul- ICC, called to decide on these constitutional European Committee decisions are merely ings concerned access to, respectively, social questions, made a reference for a prelimi- “authoritative.” However, the Court found housing and kindergartens; non-EU citizens nary ruling to the Court of Justice, substan- that the contested legislation—in the part in were entitled only if they had been legal res- tially sharing the referring judges concerns, which it prohibits, independently and in gen- idents in the region for a long time (respec- but giving a chance to the CJEU to settle the eral, the trade union freedom of the Italian tively, 10 and 15 years).11 The third judgment issue by means of (re-)interpretation of the military—was incompatible with the ECHR struck down analogous national provisions “Taricco rule.” The CJEU accommodated the and the European Social Charter, but that concerning support for housing expenses.12 ICC’s concerns and revised its previous de- these instruments allowed for the imposition Indeed, in this field, the ICC’s scrutiny was cision: national courts were given the chance of restrictions in relation to certain special far from deferential towards both regional to scrutinise the level of determination in the categories, such as the armed forces. The and national laws. individual case in order to avoid any possible Court also held that Italian constitutional clash with the higher level of protection that law required the regulation of these restric- 6. Judgment Nos. 174 and 186 of 2018: Pris- is ensured to the principle of legality in crim- tions—and the restrictions’ limitations—by oners’ rights inal matters in the Italian legal order, and in law. Therefore, the Court instructed the leg- particular by safeguarding the prohibition of islature to adopt suitable legislation, balanc- Judgment No. 149 (see above) was not the UHWURDFWLYHDSSOLFDWLRQRIFULPLQDOODZ:LWK ing all constitutional interests involved. In only one in the year dealing with prisoners’ its Judgment no. 115 of 2018, the ICC closed the meantime, considering the utmost impor- rights, even when they are convicted of seri- the saga by acknowledging the CJEU’s re-in- tance of the constitutional rights in discus- ous offenses. In another instance, a mother of terpretation. Moreover, the ICC held that in sion, the Court held that their effectiveness three (two 5-year-old twins and one 3-year- no case could the “Taricco rule” apply in the could not be conditioned to legislative action old child) was serving a sentence for drug Italian legal order, even if the application of (or inaction), and therefore found that certain trafficking. Several law provisions allow the rule turned out to be not retroactive, as the provisions regulating military bodies, al- mothers of young children to avoid detention “Taricco rule” violated the constitutional prin- ready in force, could be applied pending the in prisons, but only one provision, concerning ciple of legal certainty in criminal matters. In enactment of a new legislative framework. prison leaves, was applicable in the specific fact, the Court held that the rule was overly situation. Yet the sentence for the relevant vague and indeterminate. However, because 5. Judgment Nos. 106, 107 and 166: Social offence was among those precluding leaves, the violation of the principle of legal certain- rights of legal immigrants both for working and taking care of young ty in criminal matters served as an absolute children, until one-third of the prison time bar on the introduction of the “Taricco rule” In three judgments, the ICC reiterated its had been served. For the ICC, this violated into the Italian legal system, the Court held long-established finding that Article 3 (prin- Article 31 of the Italian Constitution: the chil- that the Italian legal provisions that would ciple of equality) of the Italian Constitution dren’s interests have a special constitutional otherwise work to incorporate the rule into is a bulwark against policies that rely on con- status and deserve a distinct protection; there- the legal system did not do so; therefore, the tinued presence in a territory as a requisite for fore, care-leaves cannot be equalized with questions raised by the referring courts were accessing social benefits, in a thinly veiled work-leaves, where only the offender’s right unfounded. attempt at excluding recent immigrants from to resocialization is at stake. It is true that 11 Corte costituzionale, Judgment of 24 May 2018, No. 106, and of 25 May 2018, No. 107. 12 Corte costituzionale, Judgment of 20 July 2018, No. 166. 170 | I•CONnect-Clough Center convicted parents may still obtain leaves if ICC struck down those norms that automati- on the relationship with the Court of Justice they cooperate with justice (or if cooperation cally tied the amount of compensation to the of the European Union remain open after the is proved to be impossible, irrelevant, etc.) length of service of the dismissed employ- evolutions in 2017. and that this condition is not, in principle, an ee. The Court ruled that, in treating different unreasonable measure for fighting organized situations identically, the criterion in ques- V. FURTHER READING crime. But no rule should rigidly sacrifice tion violated the principle of equality: “the children’s best interests in the name of social detriment caused in various cases by unfair Antonia Baraggia and others, ‘I·CONnect defense. Therefore, again, the ICC removed dismissal depends upon a variety of factors. Symposium–The Italian Constitutional Court the rigid legal barrier and allowed each case :KLOVWOHQJWKRIVHUYLFHLVFHUWDLQO\UHOHYDQW on Assisted Suicide’ 2018 Global Review of Constitutional Law | 171 Japan* Masahiko Kinoshita, Associate Professor – Kobe University Tokujin Matsudaira, Professor – Kanagawa University Mayu Terada, Associate Professor – International Christian University I. INTRODUCTION 10, 2016, in the regular election of members of the House of Councillors (the upper house In 2018, the project of authoritarian constitu- of the Diet), the LDP and other pro-amend- tionalism pushed by the Abe administration ment parties gained a supermajority. Subse- was frustrated by unexpected domestic and quently, in the general election of members international events. Even so, Abe was eager of the House of Representatives (the lower to challenge the status quo of both “large-c” house of the Diet) on October 22, 2017, the governing coalition of the LDP and Komeito JAPAN Constitution and “small-c” constitution. In this situation, the judicial branch in the 2018 retained a supermajority. term did not play a leading role. Rather, the 2018 term showed how important public Soon after the general election in 2017, the opinion and the extra-judicial system were LDP released a paper setting out four items as guardians of the Constitution. In the end, for amendment: (1) clarification of constitu- Abe’s attempt towards constitutional amend- tionality of the Self-Defense Force (SDF), ment came to a standstill because of a failure (2) introduction of emergency powers, (3) to get broad public support. Furthermore, fixing prefectures as fundamental districts the governmental action to introduce a web- for House of Councillor elections and (4) site-blocking system also suffered a setback enhancement of education. Concerning the in the pre-legislative process. On the other first point, the government has repeatedly hand, the controversy between Okinawa and made statements that the SDF is not uncon- the central government over relocation of the stitutional even under the current Article 9 of US military base is entering into a new stage the Constitution. Nevertheless, Abe claims of Ackermanian constitutional politics. that the amendment of Article 9 is required in order to eradicate views regarding the SDF as unconstitutional. The paper present- II. MAJOR CONSTITUTIONAL ed two options to clarify the constitutionality DEVELOPMENTS of the SDF. The first option was to keep all of the present Article 9 and just add word- 1. Movement towards constitutional ing stipulating the status of the SDF. The amendment second option was to delete Article 9 (2) as well as add the stipulation wording. Of these The Constitution of Japan has never expe- two options, Abe has placed the first as the rienced any amendment since its creation most workable alternative. Based on this pa- on May 3, 1947. Prime Minister and Presi- per, the LDP aimed to present a draft of the dent of the Liberal Democratic Party (LDP) amendment to the Diet in 2018. Shinzo Abe has nonetheless shown a strong desire to amend it. For amendment, the Con- However, the movement toward the amend- stitution requires the support of two-thirds ment began to lose momentum at the begin- (a supermajority) of both houses of the Diet ning of 2018. In February 2017, a scandal and a simple majority of voters of the Jap- broke out when media reported that Abe and anese people. However, this hasn’t become his wife might have been involved in the much of a great obstacle for Abe. On July * We thank Professor Yasuo Hasebe (Waseda University) for valuable advice and Professor Keith Carpenter (Kobe University) for language editing. 172 | I•CONnect-Clough Center improper disposal of state-owned land to a communicators corresponds to a “violation” tual Property Strategy Headquarters, head- school operated by an acquaintance of theirs. prohibited by Article 21(2) and that even if ed by Prime Minister Abe, issued an opin- Abe strongly denied their involvement in ses- the information is acquired legitimately, “us- ion without sufficient discussion that ISPs sions at the Diet. However, in March 2018, ing” it or “leaking” it to others against the should block access to three specified piracy a further scandal broke when media reported will of communicators is also regarded as a websites as “emergency action.” Although that the Finance Ministry had tampered with “violation.” It is not clear whether this con- the legal characteristic of this opinion is ob- official documents submitted to the Diet to stitutional protection of the secrecy of com- scure, NTT (the largest telecommunications make their content consistent with Abe’s re- munication has horizontal effect. However, operator in Japan) immediately introduced a sponses in the Diet. After this new scandal because Article 4 (1) of the Telecommunica- policy to block access to the websites men- broke out, discussion at the Diet on amend- tions Business Act (TBA) also provides “The tioned by the April 13 opinion. ment stopped, and the approval rating of the secrecy of communications being handled Abe administration dropped to nearly 30 by a telecommunications carrier shall not This sequence of events was fraught with percent. In addition to this, the détente cre- be violated,” ISPs as telecommunications serious problems from the perspectives of ated by the North Korea–United States Sin- carriers are prohibited by law from violating the separation of powers and the rule of law gapore Summit on June 12 extinguished the the secrecy of communications. A violator of because while the Diet has protected the se- intense feeling of anxiety people had for na- this prohibition incurs criminal sanction. crecy of communications of individuals by tional security. Finally, the LDP was forced legislating the TBA, the April 13 opinion to abandon their initial plan to present a draft Under the above legal rule, Japanese law re- undermined this right significantly without amendment to the Diet in 2018. gards website blocking as an infringement of due legal process. Critics argued that if this the secrecy of communications for the fol- approach applied to other targets like defama- 2. Website-blocking controversy lowing reason. Generally, ISPs cannot carry tion, false rumor and terrorism, freedom of out their Internet connection service without communication on the Internet will disappear. There was a heated argument over the pros “acquiring” and “using” information such and cons of legislation on website blocking as the hostname, IP address and URL of the However, the direction drastically changed in 2018. Piracy websites offering manga website to which their customer wants access. in the second phase, which is a move to- and anime for free inflicted serious damage This “acquiring” and “using” in itself does wards legislation on blocking. Soon after re- on the content industries. Although copy- not correspond to a “violation” of the secrecy leasing the April 13 opinion, the government right holders could seek legal remedies of communications insofar as it is conducted HVWDEOLVKHG D WDVN IRUFH $QWL3LUDF\ :HE- such as injunctions and compensation from only to the extent necessary for legitimate sites Task Force) to determine the appropri- infringers, the industries argued that these business activity. In the case of blocking, ate direction of legislation on blocking. The remedies were not enough because opera- however, the ISPs use the information from members of the task force consisted of stake- tors of the piracy websites were anonymous the communications not for a website con- holders, lawyers and legal academics but no and the online locations of these websites nection which the customer requests but for politicians. It is noteworthy that the members were outside Japan. They requested the gov- blocking access to the website against their included not only those who support block- ernment to introduce legal measures that will. Even if the process of blocking proceeds ing but also many others who oppose it. It oblige Internet Service Providers (ISPs) to automatically based on an algorithm, such can be inferred that the government needed block access to the piracy websites by an usage is regarded as “using without permis- to include members who oppose blocking executive or judicial order. sion,” which the TBA prohibits. because the legislation on it requires pro- fessional knowledge, which such opponents In EU law, arguments against website block- The development of blocking disputes in have, and the government was unable to ig- ing are based on human rights; in particular, 2018 can be divided into two stages. The nore public opinion against blocking. freedom of expression and free access to in- first stage was a move leading up to an ex- formation. On the other hand, in Japan, the ecutive opinion issued on April 13. As de- Under the Constitution of Japan, the consti- arguments on blocking are based on not only scribed above, voluntary blocking by ISPs tutionality of blocking by executive order these rights but also the secrecy of commu- is prohibited by the TBA. However, block- is suspect on the grounds of being “cen- nications. However, the underlying logic is ing child pornography websites has been sorship,” which is prohibited. On the other somewhat complex. considered a justifiable “emergency action” hand, a blocking injunction by judicial order (Kinkyu-hinan) permitted under the Crim- is considered to be constitutional provided Article 21(2) of the Constitution provides inal Code to protect the personal rights of there are no alternative means. However, “the secrecy of any means of communication children. Although conventional wisdom has many members of the task force pointed out [shall not] be violated.” Traditional interpre- considered that blocking justified as “emer- that there are effective measures other than tation of this article has been that the “acqui- gency action” can only be applied against blocking, e.g., advertising regulation, to sition” of information without consent of the child pornography, on April 13, the Intellec- cope with piracy websites. As a result, the 2018 Global Review of Constitutional Law | 173 task force could not produce a report within :KLOHWKHGLVFLSOLQDU\DFWLRQLVRQO\D³UHS- took care of it as a pet. Then three months the scheduled deadline. The legislation on rimand” (Kaikoku) or a “non-penal fine” of later, the original owner appeared and said, blocking stumbled at the entry stage, and its not more than 10,000 yen, for a judge such ³µ3OHDVHJLYHLWEDFNWRPH¶´³:KDW" 1 The Grand Bench decision of October 17, 2018, 72 4PUZO\ (forthcoming). 2 Second Petty Bench Judgment of December 7, 2010, 66 2LPZO\ 1337. 3 Grand Bench Judgment of November 6, 1974, 28 2LPZO\ 393; see also Yasuo Hasebe, ‘The Supreme Court of Japan, One Step Forward (But Only Discreetly)’ (2018), 16 ICON 672. 174 | I•CONnect-Clough Center undermines public confidence in judges or general election of members of the House of (this is generally called “a state of unconsti- invokes doubts of a fair trial.” Subsequently, Representatives on October 22, 2017, based tutionality”), such a state is not in violation the Grand Bench denounced Judge Okagu- on the grounds that the demarcation of con- of the Constitution (this is literally called chi on the basis that he conveyed to the pub- stituencies for this election created inequali- “unconstitutionality”) as long as the Diet lic without adequate explanation a unilateral ty in the value of votes between districts and does not fail to take corrective action within evaluation that the filing of suit by the plain- was therefore unconstitutional.4 “a reasonable period of time.” Furthermore, tiff was unjust; that such behavior gave rise even in the case that an election system was to public suspicion that judges make judg- In Japan, constant population movement has “unconstitutional,” the Supreme Court has ments based only on superficial information; caused disparity in the value of votes be- only declared that the election based on such and that such behavior also wounded the tween rural and urban districts. Such mal-ap- a system was illegal, without invalidating the sensibility of a private citizen guaranteed the portionment is a chronic disease of the Jap- election. right of access to the courts. In conclusion, anese election system. However, the LDP the court declared that Judge Okaguchi’s had been reluctant to resolve the mal-appor- Since 1994, what had been employed as a behavior should be regarded as having “de- tionment, which would entail a reduction criterion for the demarcation of single-seat graded himself” as prescribed in Article 49 in the number of seats in rural areas where constituencies for members of the House of and issued him a reprimand as disciplinary the LDP is stronger. Therefore, whenever a Representatives was the so-called “rule of action. Although the Grand Bench touched general election is carried out, voters have reserving one seat per prefecture,” which ap- upon the problem of free expression, the challenged the election and election system, portioned at least one constituency to each reference was surprisingly short. After it as in this case. prefecture regardless of its population. It was held “each judge enjoys the constitutional clear that this rule had increased the dispar- guarantee of free expression and is entitled Since a 1976 Grand Bench judgment, the Su- ity between constituencies in terms of the to free expression as an ordinary citizen,” it preme Court has understood that the Consti- value of votes. A 2011 Grand Bench judg- left only one sentence: “Judge Okaguchi’s tution requires equality in the value of votes ment found this rule to be unconstitutional.7 behavior overstepped the permitted limit of notwithstanding a lack of provision that ex- Following this judgment, in 2012, the Diet judges’ freedom of expression.” plicitly requires it.5 However, at the same enacted the 2012 Amendment Act, which time, the Supreme Court has not regarded abolished the “rule of reserving one seat per Because this decision was entirely based on equality in the value of votes as the abso- prefecture.” However, the determination of the specific facts of the case, the range where lute criterion for determining the design of new alternative criteria for demarcation was it functions as a precedent will be very small. DQHOHFWLRQV\VWHP:KHQHVWDEOLVKLQJVSH- postponed. For a while, without clear crite- On the other hand, the Supreme Court failed cific constituencies, the Diet is allowed to ria, the Diet had made ad hoc revisions of to show clearly the scope of application of take into account various factors, including the demarcation towards satisfying the con- Article 49. Therefore, from now on, there is the size, population density, composition of stitutional requirement in relation to the dis- a possibility that such ambiguity will make residents, transportation conditions and geo- SDULW\LQWKHYDOXHRIYRWHV:KLOHDYRLGLQJD judges hesitate to express their views, and graphical situations of the respective areas in declaration of unconstitutionality, both 2013 will invite political intervention when they addition to equality in terms of the value of and 2015 Grand Bench judgments continued do. However, it may be evaluated positively votes as long as it is “reasonable.” to conclude that demarcation was in “a state that the Grand Bench did not rely on the old of unconstitutionality.”8 Sarufutsu paradigm in spite of being able to Moreover, even when the Diet considered do so. factors to be “unreasonable,” the Supreme :LWKWKLVEDFNJURXQGLQ-DQXDU\WKH Court has not immediately held that an Research Commission on the Election Sys- 2. 2017 General Election of the House of election system is unconstitutional or that tem, established by the House of Representa- Representatives Case: equality in terms of the election following the election system tives, submitted a report suggesting the “Ad- the value of a vote should be invalidated. Thus, according to the ams’ Method” as the best criterion to achieve Supreme Court, even if unreasonable dispar- both the principles of proportion to popu- The second Grand Bench case in 2018 was ity in terms of the value of votes is in a state lation and consideration to rural areas.9 Al- a suit by voters to seek invalidation of the contrary to the constitutional requirement though the opposition parties argued that this 4 Grand Bench Decision of December 19, 2018, 4PUZO\ (forthcoming). 5 Grand Bench Judgment of April 14, 1976, 30 4PUZO\ 223. 6 Grand Bench Judgment of November 6, 1974, 28 2LPZO\ 393; see also Yasuo Hasebe, ‘The Supreme Court of Japan, One Step Forward (But Only Discreetly)’ (2018), 16 ICON 672. 7 Grand Bench Judgment of March 23, 2011, 65 4PUZO\ 755. 8 Grand Bench Judgment of November 20, 2013, 674PUZO\ 1503; Grand Bench Judgment of November 25, 2015, 69 4PUZO\ 2035. 9 Adams’ Method is a method of apportionment that US President John Adams once proposed. 2018 Global Review of Constitutional Law | 175 Adams’ Method should be adopted immedi- Shinto religion, will be performed by the ately, reflecting the strong preferences of the new Emperor. Public money is to be used LDP, the Diet enacted the 2016 Amendment for the Daijo-sai, and it is likely to stir some Act prescribing the introduction of the Ad- controversy because it violates the principle ams’ Method after the 2020 national census. of separation of state and religion prescribed in the Constitution. The demarcation of the 2017 general elec- tion challenged in this case was not based In the judicial field, there is a pending case on this new Adams’ Method. However, there that challenges the current civil law re- was no constituency in which the maximum striction on marriage to heterosexuals. In a disparity exceeded 1:2 and the maximum judgment on January 23, 2019, the Second disparity between constituencies had been Bench upheld the constitutionality of the law reduced to 1:1.979 as a result of the gradual requiring the removal of gonads to change reforms. In this case, following the tradition- gender based on a sexual identity disorder. al framework, the Grand Bench held that the The grounds of the decision were the unde- demarcation was not in “a state of unconsti- sirability of sudden changes to gender dis- tutionality” for the first time since the 2011 tinction. This case reinforces the expectation Grand Bench judgment. The main factors that the courts will avoid a judgment that al- that this 2018 Grand Bench judgment took ters the conservative concepts of family and into consideration were that the introduction gender in a pending case on the status of a of the Adams’ Method is scheduled to be im- same-sex marriage. plemented after 2020 and the disparity had been reduced to 1:1.979. There are criticisms Furthermore, development of friction sur- of this judgment in that it is logically impos- rounding American military bases in Oki- sible to include a future plan as a factor of nawa will be unmissable as Constitutional judgment on whether a current demarcation Politics. The central government is planning is in “a state of unconstitutionality” or not construction of a new military base for the and that disparity still exists even if it is United States in Henoko Bay in Okinawa. below 1:2. Anyway, the 2018 Grand Bench Although the prefecture has challenged this judgment showed the incremental approach plan in lawsuits, it has lost every case. How- of the Supreme Court. The Court does not try ever, Denny Tamaki, who has opposed the to impose the constitutional ideal as long as central government’s plan, won the 2018 the Diet continues to make gradual reforms. Okinawa gubernatorial election and has scheduled a referendum in 2019 by the peo- IV. LOOKING AHEAD TO 2019 ple of Okinawa concerning the central gov- ernment’s plan. In 2019, the abdication of Emperor Akihi- to and the enthronement of Crown Prince V. FURTHER READING Naruhito are scheduled events that are con- stitutionally and socially important. Under Yasuo Hasebe, ‘The Supreme Court of Ja- prevailing legislation, the emperor was not pan: A Judicial Court, Not Necessarily a allowed to abdicate, but in 2016, Akihito, at Constitutional Court’, in Albert H. Y. Chen the age of 82, appealed to the public, citing and Andrew Harding (eds.), Constitutional the difficulties of performing his duties due Courts in Asia: A Comparative Perspective to being elderly. Accordingly, in 2017, a re- (Cambridge University Press, 2018) vision of the law that would allow Akihito to abdicate was been made. Under the terms of Yukiko Nishikawa, Political Sociology of the Constitution, the Emperor has no politi- Japanese Pacifism (Routledge, 2019) cal authority, but the social influence of the imperial succession is great. For example, Robert J. Pekkanen, Steven R. Reed, Ethan the Japanese era name (Gengo) will change Scheiner and Daniel M. Smith, Japan De- from Heisei to a new one. In addition, a re- cides 2017: The Japanese General Election ligious ritual called Daijo-sai, based on the (Palgrave Macmillan, 2018) 176 | I•CONnect-Clough Center Kenya Jill Cottrell Ghai and Yash Ghai Both of Katiba Institute, Nairobi I. INTRODUCTION Meanwhile, though sometimes in response to these broader political currents, the pro- 2017 was an election year. Kenya begins to cess of giving meaning and life to the Con- fight one election the moment the previous stitution continues, especially the system one is ended, so 2022 dominated headlines of devolution reintroduced in 2013. Some in 2018—but not this paper. county governors seem to be making genu- ine efforts to make use of the possibilities for development it offers. But massive corrup- KENYA A dominant theme in politics is a continued struggle to maximise the opportunities for tion at that level has continued. power that the constitution presents: gover- nors pitted against county assemblies, Na- This paper does not go into the many elec- tional Assembly against the other house of tion petitions from the 2017 elections. But Parliament, the Senate, and a general unwill- issues of human rights and executive over- ingness on the part of the President to accept reach are prominent in the cases. the constraints of office, and on the part of the national government to give full rein to II. MAJOR CONSTITUTIONAL the counties. Some of these issues are re- DEVELOPMENTS flected in the cases considered here. Raila Odinga, the candidate who had been 2018’s major constitution-related devel- announced as the main loser in the 2017 opments (elaborated below) included the presidential election and, when that election “swearing-in” of an opposition leader as was declared constitutionally defective and “People’s President” and a curious rapproche- rerun in October 2017, boycotted the rerun, ment a few months later between him and the was “sworn in” as the “People’s President” President. The constitutional ramifications of (January 30, 2018).1 (Three major television this are most likely to be felt in 2019. stations were taken off air by the government in an attempt to prevent the event from get- Another issue, still rumbling on, is the fail- ting media coverage.2 At the end of 2018, the ure to achieve the constitutionally promised constitutionality of this action was before “no more than two-thirds of either gender” the courts.) The swearing-in was part of an among members of public bodies, especially opposition campaign to undermine the gov- those elected. ernment. Negative impacts on the economy and elsewhere of this campaign may explain And the President’s apparent desire to be the later development: “After months of in- seen as combatting corruption has had var- sults during a divisive and deadly election, ious constitutional spin-offs. these two heirs of Kenya’s most powerful political dynasties stood side by side, shook 1 See retrospective, Standard newspaper, January 30, 2019, at https://www.standardmedia.co.ke/ureport/ article/2001311339/on-this-day-last-year-raila-odinga-was-sworn-in-as-people-s-president 2 ))*º2LU`H;=Z[H[PVUZ[VYLTHPUVɈHPYHM[LY6KPUNH¸PUH\N\YH[PVU»¹H[O[[WZ!^^^IIJJVTUL^Z world-africa-42888904 2018 Global Review of Constitutional Law | 177 hands and pledged reconciliation”3 (the to try to exceed constitutional powers or un- no Supreme Court cases are discussed here. “handshake”). Opinions on this event were dermine constitutional safeguards. One or 1. Miguna Miguna v Fred Okengo Ma- still divided, and its implications unclear. two of the cases in Section III touch on these. tiang’i, Cabinet Secretary, Ministry of In- For various individuals, including Kenyatta One example of presidential behaviour that terior and Coordination of National Gov- (in his last possible term as President) and in our view undermines the independence of ernment; Kenya National Commission on Odinga (who has long aimed at the presi- constitutional offices but which has not been Human Rights (Interested Party) [2018] dency), the possible implications are central. challenged in court, and would probably not eKLR: Citizenship; abuse of office4 The reconciliation generated an inadequate be held technically improper, relates to the debate on constitutional change, especially appointment of constitutional office holders The petitioner is a lawyer who “officiated” from a presidential to a parliamentary sys- to non-protected posts. In August, the Pres- at Odinga’s “swearing in” (above). He also tem for the purpose of “inclusion” on the ident appointed a Cabinet Secretary (Minis- claimed to lead the “National Resistance basis that such a system (with a number of ter) as the Director of Public Prosecutions Movement”, an amorphous and largely hy- senior posts available) would prevent the (DPP). The DPP had only about one year pothetical opposition movement that had tension and even violence of most Kenyan of his independent, but time-limited office been declared a prohibited organisation. elections. Also aired was altering the system left. At the same time, the President of the The government tried to deport him on the of devolution to introduce a middle govern- Court of Appeal was appointed as Attorney basis that he was no longer Kenyan, having ment tier, between the national government General. Both the DPP and superior court automatically lost his citizenship when he and that of the 47 counties. judges are posts in which the incumbents became Canadian under the previous consti- are supposed to be unaffected by concerns tution, which did not permit dual nationality. The other development (or non-develop- about how the political leaders perceive their He resisted deportation and was detained for ment) was the constitutional amendment that work. Yet, especially for the DPP, who does some days at the airport in deplorable condi- did not happen. The Constitution requires not have life tenure, the way is now open for tions. Before that, the government arrested that no more than two-thirds of the members these office holders to be appointed to polit- him after attacking his house with force, and of any elected or appointed body be of the ical or quasi-political office—but only if the then took him from court to court, trying to same gender. In 2012, the Supreme Court President is pleased with them. avoid High Court orders. He was eventually directed that this be legislatively achieved deported. by 2015. By the end of 2018 it had not been These appointments are linked to a new done. Unable to agree on any method with- presidential commitment to deal with the The court held first that he remained a Ken- in the framework of the Constitution, MPs grave problem of corruption (in addition to yan citizen, under the former constitution, have focussed on changing it. Their pre- his “Big Four” of water, housing, food se- section 97: ferred method is one that adds enough wom- curity and industrialisation). Among the con- en to both houses of Parliament to achieve stitutional spin-offs of this is some tension (3) A citizen of Kenya shall, … cease to the two-thirds rule. This method is used for between the DPP, the police and the courts. be such a citizen if - the county-level legislatures. MPs have re- Constitutional provisions on the right to bail (a) having attained the age of twen- peatedly failed even to muster a quorum to (Article 49(1)(h)) unless there are compel- ty-one years, he acquires the citi- pass the amending legislation. In 2018 this ling reasons, and their application by the zenship of some country other than happened again, complicated by the reluc- courts, and prosecutorial competence are in- Kenya by voluntary act (other than tance of MPs to go along with the change volved in the “blame game”, to use the Chief marriage) …. despite pressure from the President, because Justice’s phrase. the President indicated he would not sign a The court held that this applied only to citi- bill, even if passed, that would unconstitu- III. CONSTITUTIONAL CASES zens other than by birth. Citizenship by birth tionally allow MPs to fix their own allow- was inalienable. Alternatively, the court held ances. There is a likelihood that 2019 will The Supreme Court (the final court of appeal) that Miguna’s acquisition of a Canadian see a resurrection of litigation designed to ended 2017 on a high note with its decision passport was not voluntary because he was have Parliament dissolved for failure to do declaring the mandatory death penalty un- compelled to do it by the refusal of the Ken- something demanded by the Constitution. constitutional. 2018 was largely concerned yan government to issue him one. with election petitions, and cases on when There are frequent complaints of tendencies the Court’s jurisdiction can be invoked. Thus Miguna was held entitled to compensa- tion for his abusive treatment. The judge 3 Nic Cheeseman, ‘With a handshake, Kenya leaves behind divisive poll’, 5H[PVU, April 10, 2018, at https://www.nation.co.ke/news/politics/Uhuru-Kenyat- ta-and-Raila-Odinga-handshake/1064-4379964-os1fhtz/index.html 4 http://kenyalaw.org/caselaw/cases/view/163893/ (Justice Chacha Mwita) 178 | I•CONnect-Clough Center REVHUYHG WKDW ³:KHUH RYHU]HDORXV SXEOLF (based on the judges’ own site visit). standard of health, including reproductive servants commit a wanton violation of the In the court’s view, traditional fishermen had health. The court also invoked, albeit brief- Constitution and the law, any awards arising a right to continue to fish that had the status ly, international instruments, including the from such violations should not be vested of a fundamental right—building on Articles International Covenant on Economic, Social >VFLPSRVHG"@RQWKHSXEOLF´+HDZDUGHG 26 (right to life), 28 (dignity), 40 (property), and Cultural Rights and the African Charter considerable damages against the Cabinet 43 (economic, social and cultural rights) and on Human and People’s Rights, which, by Secretary (Minister), Director of Immigra- 70 (environmental rights). It could be limit- virtue of Article 2(6) of the Constitution, are tion, the head of the police and three other ed only if permitted via Article 24, and even part of Kenyan law. senior police officers personally. then compensation must be paid. As indige- nous people, their rights must be given sensi- Interestingly, the judge who wrote the opin- :HKDYHJUDYHGRXEWVDERXWWKHFRUUHFWQHVV tive and priority consideration. Yet, they had ion held that governments, at both the na- of the first decision on citizenship. The other been discriminated against in compensation tional and county (devolved) level, were in decision on liability is interesting, but may arrangements. violation of the right to health by a failure leave untouched those who were most deter- to establish policy guidelines to ensure ef- mined to clamp down on the opposition and The scheme’s implementers had not used fective implementation of national (actual- Miguna specifically. the “due diligence required to consult the ly presidential) directives on free maternal indigenous residents of Lamu Island on the care, or to monitor performance. 2. Mohamed Ali Baadi and others v Attorney impacts of the Project on their culture. This General & 11 others [2018] eKLR: Rights to lack of consultation led to an inadequate cul- This is one of the few cases to even address environment, culture5 tural impact assessment, and equally insuffi- issues about the allocation of resources, and cient cultural impact mitigation measures”, the promotion and fulfilment of an economic A huge government infrastructure project thus the right to enjoy their culture (Article or social right, as opposed to the failure to is having major impact on a world heritage 44) had been violated. respect those rights. However, the analysis site, local fishermen and local communities, lacks depth, including in the judge’s use of including indigenous people. Despite its be- The court ordered that an elaborate plan the concept “maximum available resources”, ing a constitutional petition (usually decided be drawn up to rectify these various flaws which is not clear in the Constitution. on the basis of law), the court did receive a DQG WR HQVXUH WKH GHYHORSPHQW RI D :RUOG great deal of evidence, including expert evi- Heritage Management Plan, and required 4. Okiya Omtatah Okoiti v Communication dence, and even conducted a site visit. a report back within six months. The court Authority of Kenya [2018] eKLR and Kenya also ordered that compensation of roughly Human Rights Commission v Communications The court decided [para. 221] that public US$17,600,000 be paid to the fishermen, Authority of Kenya [2018] eKLR: Privacy7 participation in environmental issues was and awarded costs to the petitioners for ex- not only something required by the Constitu- pert witness expenses, which is unusual in These cases, decided the same day, con- tion, but was a rule of customary internation- public interest litigation cases. cerned the first respondent’s plan to install a al law, making it part of Kenyan law under device management system on mobile phone Article 2(6). It also pointed out [para. 225] 3. JOO (also known as JM) v Attorney networks, ostensibly to detect stolen, coun- that sustainable development is a value of General [2018] eKLR): Rights to health and terfeit and unapproved types of phones. the Constitution, and spelled out its gener- dignity6 ally accepted elements. The court concluded The main legal issues were whether the pe- that the public had not been adequately in- The petitioner complained of poor treatment tition was premature, because the system volved. Interestingly, they indicated that to at a local public hospital when giving birth. was not yet in operation, and whether any limit public involvement would require jus- The court identified three forms of violation infringement of users’ privacy was justified tification in terms of Article 24 (on limiting of her rights. One was the inexcusably abu- by Article 24 of the Constitution (essentially human rights) [para. 238], though participa- sive treatment. The second was by the un- a proportionality issue). tion is not explicitly included as a recognised availability of the most basic equipment. The human right. The right to information (Arti- third was by a failure of care. The first was The judge decided that Article 22(1), allow- cle 35) had also been violated to some extent dealt with mainly as a violation of the peti- ing actions for the protection of human rights in the Strategic Environmental Assessment tioner’s dignity (Article 28). The others were even if a violation is “threatened”, made process, and the right to a clean environment treated as violations of Article 43, which concerns about the “ripeness” of the action was in imminent danger of being violated recognizes the right to the highest attainable irrelevant, and in fact was intended to do so. 5 O[[W!RLU`HSH^VYNJHZLSH^JHZLZ]PL^ /PNO*V\Y["Ä]LQ\KNLILUJO 6 http://kenyalaw.org/caselaw/cases/view/150953/ (High Court; Justice Abida Ali-Aroni 7 Respectively, http://kenyalaw.org/caselaw/cases/view/151117/ and http://kenyalaw.org/caselaw/cases/view/151191/ High Court; Justice John Mativo) 2018 Global Review of Constitutional Law | 179 The evidence was that the system would al- 6. Simeon Kioko Kitheka v County Govern- The court held the statute unconstitutional low the identification not only of the phone ment of Machakos [2018] eKLR9 in that it made the office a “statutory head” and whether it was counterfeit, etc., but also (while being a constitutional office); sub- of the subscriber’s identity, phone number This is one of a growing number of cases jected any issue of appointment of staff to and the number called, date and time and du- giving some specificity to the constitutional the Public Service Commission; allowed ration of the call. requirement that the public be able to par- appointment of an Acting Au-G; allowed ticipate in the work of legislative bodies. It for secondment of Au-G staff to other public The judge held that this went further than related to a charge for sand harvesting, in the bodies, which would be audited by the Au- necessary for identifying counterfeit phones. form of a fee-per-lorry trip. The County As- G; set up an audit advisory board to advise He observed that laws and institutions on im- sembly bill had proposed KShs (Kenya shil- the Au-G, including heads of public bodies portation, on counterfeit goods, on standards, lings) 1,300 per trip while the bill as passed that are audited by the Au-G; and provided on taxing and police and customs “have not imposed KShs5000 per trip. The judge said that the Au-G should not question the merits been shown to be insufficient”. Another ob- that “by introducing new and substantial of a policy objective of a government or any jection to the decision was the absence of amendments to the Act which were not in public entity. Another provision would have public participation and involvement of sub- the Bill, the Assembly not only set out to restricted the power to audit the security scribers. There was thus also a violation of circumvent the constitutional requirements forces. It required the Au-G to meet national Article 10 on national values and principles, of public participation but, with due respect, security organs to agree on areas that might one of which is public participation. mischievously short-circuited and circum- touch on national security and on how to en- vented the letter and the spirit of the Consti- sure confidentiality of the information. All or 5. Law Society of Kenya v National Assembly of tution” [para. 120]. part of nine sections of the Public Audit Act the Republic of Kenya [2018] eKLR: Judicial were held unconstitutional. Service Commission8 This was the only formal decision, and the judge ordered that any money paid over and A very different point failed. The Consti- The Constitution (Article 171) provides that above KShs1300 per trip be refunded. His tution (Article 115) allows the President to six members of the Judicial Service Com- further observations included, “To inform refer a bill back to Parliament for reconsid- mission (JSC), which selects most superior the public to air their views on a Bill whose eration, noting any presidential reservations. court judges, be elected by various bodies of contents are not disclosed without informing Parliament may then (using normal legisla- judges or lawyers while the Public Service them how and where to access the Bill, and tive procedure) amend the bill adopting the Commission nominates one. Two non-law- proceeding to limit the period for transmis- President’s views, or pass it again without yers are appointed by the President (with sion of the views to two days in respect of a adopting them, and if it does so by a two- National Assembly approval) to represent Bill so crucial to the public ordinarily can- thirds majority, the President must assent. the public. Most commission appointments not, in my view, amount to reasonable op- Parliament has always passed a new version must be approved by the National Assembly portunity for the public to participate in the with the President’s reservations accommo- (Article 250). The decision focussed on the process of enactment of the Bill in question”. dated. The practice has been for the Presi- appointment of the Court of Appeal’s elect- dent to return bills with language that he HG PHPEHU -XVWLFH :DUVDPH 7KH 3UHVL- 7. Transparency International (TI Kenya) wished to see enacted. The judge held that dent had forwarded his name to the National v Attorney General [2018] eKLR: Audi- this was not unconstitutional. He did add that Assembly. The court held that Article 171 WRU*HQHUDO 3UHVLGHQWDVDODZPDNHU"10 “… should the President make substantial applied, not 250, and no approval by the recommendations that significantly alter the National Assembly was required. The court The Constitution has fairly standard provi- character of the Bill as earlier passed, [he] stressed the need to take a holistic view of sions on the Auditor-General (Au-G). There has to consider whether public participation the Constitution. is particular emphasis on the independence will be necessary before passing those rec- of the office: Article 249 stresses that it is an ommendations”. This case has significance because of some independent office not subject to any direc- perceived hostility between the judiciary and tion. The Kenyan branch of an international The Kenyan provision on assent is treated as other arms of government, and attempts by NGO challenged legislation that diminished meaning that Parliament has only two choic- the latter to control the former. In January the separateness of the office from control by es: to accept the President’s view or insist on WKHVDPHMXGJHKHOGWKDW:DUVDPH ZKR the Public Service Commission, and in vari- its own by a two-thirds vote. In other words, had still not been sworn in) neither needed to ous other ways seemed to limit its powers or the reference back does not mean that the bill be formally appointed nor sworn in. independence. otherwise lapses. The authors, on reflection, are not sure this is right. In the US, the use 8 http://kenyalaw.org/caselaw/cases/view/157657/ (Justice Chacha Mwita) 9 http://kenyalaw.org/caselaw/cases/view/157582/ (High Court: Justice Odunga) 10 http://kenyalaw.org/caselaw/cases/view/147941/ (High Court: Justice Chacha Mwita) 180 | I•CONnect-Clough Center of the presidential veto kills a bill. A recog- This is the first time that national legislation The other theme will be constitutional nition of this possibility might prompt earli- has been held unconstitutional for want of amendment, with an increasing number of er addressing of disagreements and improve participation. It is unfortunate that the State issues being raised for debate, but with no the legislative process. Law Office did not see fit to take the issue clear process. One party is about to submit seriously. There was a bit of an “own goal” proposals with one million signatures sup- 8. Kenya Human Rights Commission v At- for the KHRC: the judge also held that a porting amendments to trigger a popular ini- torney General [2018] eKLR: High Court: strict liability offence for publications about tiative (Article 257). legislation restricting courts’ contempt pow- proceedings actively before a court, which er; public participation11 created a “substantial risk” of seriously prej- V. FURTHER READING udicing the course of justice, was justifiable. The petitioner NGO (KHRC – not the offi- The general public might be influenced, and -LOO &RWWUHOO *KDL ³:DQMLNX¶V &RQVWLWXWLRQ cial commission on human rights) argued that could prejudice the right to a fair trial :RPHQ¶V SDUWLFLSDWLRQ DQG WKHLU LPSDFW LQ that the 2016 Contempt of Court Act includ- (though Kenya does not have juries or lay Kenya’s constitution building processes”, in ed provisions limiting the power of the courts justices trying cases). The Act also enshrined Tania Abbiate, Markus Böckenförde and Ve- to punish for contempt. The court held that the “scandalising the court” form of con- ronica Federico, eds., Public Participation such a power was derived from the Consti- tempt, done away with in many countries. in African Constitutionalism (Routledge, tution and indeed it went as far as casting its 2018) pp. 220-242 power as inherent, not even constitutionally 9. Wanuri Kahiu v CEO Kenya Film Classi- 12 derived. It invoked Articles 2(1) (suprem- fication Board (High Court; Justice Okwa- Jill Cottrell Ghai and Yash Ghai, “The Con- acy of Constitution), 159 (judicial authority ny): Censorship tribution of the South African Constitution is derived from the people) and 160 (judicial to Kenya’s Constitution”, in Rosalind Dix- independence). The courts could, therefore, This has so far involved only an interim on and Theunis Roux, eds., Constitutional hold unconstitutional provisions that limit order. The Film Classification Board had Triumphs, Constitutional Disappointments: 13 their contempt power. This court held that banned a film because of its lesbian content. A Critical Assessment of the 1996 South Af- provisions that made it procedurally harder The application was for a temporary lifting rican Constitution’s Local and Internation- to prosecute public officers for contempt and of the ban pending the final resolution of the al Influence (Cambridge University Press, imposed a more lenient maximum sentence case so it could be shown briefly in order to 2018) pp. 254-293 were both discriminatory and shackled the be an eligible candidate for the Oscars. courts’ contempt power. This included “no Rose Macharia and Yash Ghai, “The role state officer [senior elected and appoint- The application was successful. The judge of participation in the two Kenyan consti- ed officers] shall be convicted of contempt said, “One of the reasons for artistic creativ- tution-building processes of 2000-2005 and of court for execution of his duties in good ity is to stir the society’s conscience even on /HVVRQVOHDUQW"´LQ7DQLD$EELDWHHW faith”. The same was true of a section that very vexing topics such as homosexuality”. al, Public Participation in African Constitu- barred contempt proceedings against a The film was shown at various venues for tionalism (Routledge, 2017), pp. 86-99 Speaker of a House of Parliament for any seven days (but not picked as an Oscar nom- decision or directions in the performance of inee). his official role. IV. LOOKING AHEAD However, the court then held that the en- tire Act was unconstitutional on the basis Two themes are likely to be prominent in of lack of public participation (specifically 2019. One is the continuing tension between required for the work of Parliament by Arti- the executive/legislature and the judiciary. cle 118(1)). In fact, it seems that the respon- Already, two of the judges whose decisions dent mounted no defence to this—the judge “against” government featured here have found there was “no attempt on the part of been moved from the Constitutional and the respondent to show that there was any Human Rights Division. The Chief Justice semblance of public participation in the leg- is being accused of having given in to presi- islative process”. dential pressure. 11 http://kenyalaw.org/caselaw/cases/view/162352/ (Justice Chacha Mwita) 12 Citing ,X\P[`)HUR3PTP[LK]>LZ[3UR4IV3PTP[LK[2013] eKLR. 13 Citing the Indian Supreme Court cases of )HY(ZZVJPH[PVU]Z 2018 Global Review of Constitutional Law | 181 Latvia Alla Spale, Head of Legal Department – Constitutional Court of the Republic of Latvia Laila JurFƝQD)RUPHU$GYLVHUWRWKH3UHVLGHQWRIWKH&RQVWLWXWLRQDO&RXUWRIWKH5HSXEOLF of Latvia; Key-expert in constitutional law, The Rule of Law Programme in the Kyrgyz Republic – 2nd Phase (ROLPRO2) Coordinated by Ineta Ziemele, Professor of Public International Law and Human Rights Law at the Riga Graduate School of Law, President of the Constitutional Court of the Republic of Latvia I. INTRODUCTION processes. The report provides an overview (Part III) of the main cases decided by the LATVIA On 18 November 2018, the State of Latvia CC of the Republic of Latvia in the past year celebrated its centenary. This celebration that may be of interest to an international served as a long-term investment into audience. strengthening the loyalty towards the modern Latvian state and for the further Finally, an overview looks ahead to integration of the single political nation, some developments and most important based upon shared constitutional values constitutional issues expected to unfold in and common social memory. At the same 2019 related to the elections and pending time, this anniversary helped to present constitutional court cases (Part IV). Latvia to the world as a modern European state of the 21st century. The international II. MAJOR CONSTITUTIONAL conference organised by the Constitutional DEVELOPMENTS Court (hereinafter also CC, the Court) on “The Role of the Constitutional Courts in The year 2018 witnessed a few notable WKH *OREDOLVHG :RUOG RI WKH VW &HQWXU\´ constitutional developments and court attested to the CC that Latvia is part of decisions. A general election to the Saeima a global debate on the increasing impact (Parliament) took place. Regretfully, this of rulings of constitutional courts beyond election was characterised by the lowest national borders. Also this year, main activity of voters in the recent history of developments in the area of constitutional the state. As a result, seven parties and law were triggered by the legislator (the associations thereof were elected to the Saeima) and the CC. Saeima. Less than 30% of all voters expressed their support for the parties represented In Part II of this report, we reflect upon general in the government. The former major constitutional developments, examining government parties of the Saeima—“Unity” amendments to regulatory enactments, the and “Union of Greens and Farmers”— relevant trends in political processes and the became the minority. Three new, centre-right development of the judicial system as well as political forces entered the Saeima. Against the work of the CC in 2018 and the impact the background of elections in a number of of its case law on further development and EU Member States, the results of the Saeima change within the legal system. All these elections look nevertheless positive. The new activities can be considered important players represent conservative and liberal steps towards strengthening the rule of law; values, and none of them has questioned however, in general, we can speak about the Latvia’s Euroatlantic identity. The process continuity and stability of the democratic of forming the government was the longest 182 | I•CONnect-Clough Center in Latvia’s history. The government was Judiciary not only will appoint to the office Due to restrictions on length, only some approved only 109 days after the election of the chairpersons of the district (municipal) issues will be examined in this report the 13th Saeima, with 61 MPs among 100 and regional courts but will also establish the (separate cases will be reviewed in the voting in favour of it. procedure for proposing candidates for the following part of the report). The case law chairperson’s office and for appointing them of the CC of 2018 can be found in the Report On 4 October 2018, the Saeima adopted to office. The competence of the Minister for RQ WKH:RUNRI WKH && RI WKH 5HSXEOLF RI amendments to the Constitution (the Justice to transfer a judge to an open vacancy Latvia in 2018.2 Satversme). These amendments entered into also has been deleted from the law. The work force on 1 January 2019. The procedure of of the Judicial Qualification Board has been As in previous years, the CC confronted electing the President was altered, providing made more effective, and the process for questions on the quality of the legislative that the Saeima elects the President (similar assessing judges’ professional activities has process. In a case on an enforced lease,3 the to other highest officials of the state) by been improved. The territorial reform of legislator’s obligation to duly assess and an open vote instead of the secret ballot as courts has been completed. substantiate the established restriction on a formerly. The vote for the President of the person’s fundamental rights as well as the State was the only secret ballot left in the This year, five out of seven elected members obligation to abide by the previous findings Saeima. Discussions on the procedure of of the Council for the Judiciary were re- made by the CC was examined. In several electing the President continue. A draft law elected (together with ex officio members, cases, the CC focused on the legislator’s regarding the President elected by the people the Council for the Judiciary comprises 15 discretion. has been submitted to the Saeima. members). In 2018, the CC delivered four judgments As for the system in force, a draft law has In 2018, the Saeima, responding to the in the field of taxes and budget.4 In two been adopted by the Saeima in the first CC’s judgment by which the norms that cases, it examined the compliance of taxes reading, extending the period between regulated judges’ remuneration were not only with the Satversme but also the proposing candidates for the President’s recognised as incompatible with the relevant European Union law. The issue of office and the voting at the Saeima on Satversme, introduced changes to the system the constitutionality of legal acts issued by these candidates.1 A longer period between of judges’ remuneration. It remains to be local governments had an important role in the proposing of candidates and the vote seen how successful and compatible with the Court’s work in 2018. Legal acts issued would ensure the possibility of holding open the Satversme this regulation will be. As by local governments were examined in four discussions, where members of the Saeima the case law of the CC thus far shows, the judgments.5 In the case regarding restrictions would have the opportunity to also hear enforcement of previous judgments by the on standing for Saeima elections (examined public opinion. Likewise, debates between CC in cases regarding judges’ salaries has in the following part), the CC expressed the proposed candidates in the public space not been successful. important findings regarding the principle could be held. of militant democracy and the intertemporal The CC’s judgments illustrate topical social application of the law.6 The work to strengthen the effectiveness processes in Latvia and also the extent to of the judiciary and judicial independence which the legislator, the executive and the The CC is an active participant in a European continues, although slowly. By introducing local governments, by regulating these judicial dialogue. In more than one-third of amendments to the law “On Judicial Power”, processes, comply with the constitutional the judgments delivered in 2018, the CC the legislator has diminished the influence of framework. Compared to 2017, the number made references to case law of the ECtHR, executive power on the organisation of courts’ of judgments delivered by the CC increased and in several of them noted that the standard work and expanded the competence of the by 13% in 2018, whereas the number of of human rights protection in an area at Council for the Judiciary in appointing the examined legal norms (acts) remained issue was higher in Latvia compared to that chairpersons of the courts and in determining unchanged. established by the European Convention a judge’s career. The Council for the for the Protection of Human Rights and 1 ;OLPU[LUKLKHTLUKTLU[ZWYV]PKL[OH[JHUKPKHJPLZMVY[OL7YLZPKLU[»ZVɉJLT\Z[ILZ\ITP[[LK[V[OL7YLZPKP\TVM[OL:HLPTHUVZVVULY[OHU KH`ZHUKUV SH[LY[OHU KH`ZILMVYL[OL[LYTVMVɉJLVM[OLPUJ\TILU[7YLZPKLU[L_WPYLZ*\YYLU[S`[OLSH^WYV]PKLZ[OH[[OLJHUKPKHJPLZT\Z[ILZ\ITP[[LKUVZVVULY[OHU HUKUVSH[LY[OHU KH`ZILMVYL[OL[LYTVMVɉJLVM[OLPUJ\TILU[7YLZPKLU[L_WPYLZ 2 Annual Report 2018 http://www.satv.tiesa.gov.lv/en/ 3 CCRL 12.04.2018, 2017-17-01 - Note: Unless indicated otherwise, all Judgments and Decisions referred to in the footnotes are by the Constitutional Court of the 9LW\ISPJVM3H[]PH**93;OLM\SS[L_[ZPU,UNSPZOHYLH]HPSHISLOLYL#O[[W!^^^ZH[][PLZHNV]S]LUJHZLZ% 4 CCRL 11.04.2018, 20017-12-01; 29.06.2018, 2017-28-0306; 18.10.2018, 2017-35-03; 18.10.2018, 2018-04-01 5 CCRL 29.06.2018, 2017-28-0306; 29.06.2018, 2017-32-05; 18.10.2018, 2017-35-03; 15.11.2018, 2018-07-05 6 CCRL 29.06.2018, 2017-25-01 2018 Global Review of Constitutional Law | 183 Fundamental Freedoms. The ECtHR, in turn, III. CONSTITUTIONAL CASES judgments by the CC. The legislator must addressed the CC in two of its judgments in monitor, to the extent possible, whether a 2018. Firstly, in its decisions of 22 May 2018 1. Case No. 2017-17-01: Compulsory land proportionate balance exists in this legal 7 in the case 6RURþLQVNLVY/DWYLD the ECtHR lease case17 relationship throughout its existence, and noted that, in certain cases, the CC had to should avoid adopting a regulation that is be regarded as an effective legal remedy that The regulation restricting landowners’ right aimed at protecting the interests of one party. had to be used prior to turning to the ECtHR. to receive a freely agreed-upon lease on In particular, in such cases where the CC has Secondly, in the decision of 4 September their land where, during Soviet occupation, examined the constitutionality of the norms 2018 in the case .YDVƼHYVNLVDQGRWKHUVY apartment buildings were built was examined that regulate this legal relationship already, 8 Latvia, the ECtHR referred to the case law in this case. the legislator must ensure such process of of the CC in the “rent ceiling” cases.9 legislation that builds towards the conviction The case was initiated by a number of that the chosen solution is fair. Thus, in In 2018, the CC concluded the first case in its constitutional complaints. It was noted in planning to include in legislation a new history in which the procedure of preliminary the complaints that the applicants owned restriction on the amount of the compulsory ruling in the Court of Justice of the European land plots on which apartment buildings lease payment, the legislator had to ensure Union had to be used. The CC received the owned by other persons were located. The proper analysis and substantiation of the preliminary ruling on 7 August 2018 from relationship of compulsory lease existed constitutionality of such possible regulation, the Court of Justice of the European Union between the applicants and the owners of the inter alia, also in the context of the in case C120/17, by which it answered the respective buildings or apartments therein. established case law of the CC in the matters questions referred to it by the CC in case It was alleged that the contested norms of the compulsory lease. No. 2016-04-03 regarding inheritance of considerably lowered the amount of lease farmers’ early retirement benefit paid by the and, thus, disproportionately restricted the Thirdly, the CC found that the Saeima had EU by heirs. applicants’ right to property. not examined the impact of the restriction on fundamental rights of the landowners In 2018, the CC examined the compliance of Firstly, the CC recognised that the right to properly and had not substantiated the legal norms with various fundamental rights: property also comprised a person’s right to compliance of the intended solution with 10 the right to stand for election, the right to lease his immovable property as he deemed the CC’s case law on this legal relationship. 11 12 a fair trial, the right to private life, the it necessary. However, this right could Hence, the contested norms had not been 13 right to property, the right to the freedom be restricted, in particular, in the field of adopted in proper legislative procedure and 14 of religious conviction and association, the housing, which is an important element of thus were incompatible with Article 105 15 right to the protection for a family and the social and economic policy in contemporary (right to property) of the Satversme. 16 right to equality. society. Setting the maximum amount of lease payment in the legal relationship Fourthly, the CC recognised that a legal To ensure that everyone can effectively of a compulsory lease is one among such norm that has not been adopted in the proper defend his or her rights before the CC, restrictions. legislative procedure is ultra vires. However, amendments to “State Legal Aid Law” were in exceptional cases, where recognising the adopted in 2018 and have been in force since Secondly, the CC noted that in adopting the contested norm as void ab initio would create 1 January 2019, providing the possibility legal regulation in the area of compulsory a situation that was even more incompatible to receive legal aid, paid for by the state, to leasing, the legislator had to balance the with the Satversme, another date for the submit a constitutional complaint to the CC. opposite interests of persons and ensure norm to become void could be set. If in the justice, abiding by the findings made in particular case the CC were to rule that the contested norms should be recognised as 7 :VYVȏPUZRPZ]3H[]PH(WWUV ,*/94H` 8 2]HZȪL]ZRPZHUKV[OLYZ]3H[]PH(WWUV ,*/9:LW[LTILY 9 Ibid., Para 54. 10 CCRL 29.06.2018, 2017-25-01 11 CCRL 15.03.2018, 2017-16-01, 14.06.2018, 2017-23-01, 23.05.2018, 2017-20-0103 12 CCRL 11.10.2018, 2017-30-01 13 CCRL 11.04.2018, 2017-12-01, 12.04.2018, 2017-17-01, 06.06.2018, 2017-21-01, 18.10.2018, 2018-04-01, 23.05.2018, 2017-20-0103 14 CCRL 26.04.2018, 2017-18-01 15 CCRL 15.02.2018, 2017-09-01 16 CCRL 15.05.2018, 2017-15-01, 29.06.2018, 2017-25-01, 18.10.2018, 2017-35-03, 29.06.2018, 2017-28-0306. 17 **93 #O[[W!^^^ZH[][PLZHNV]S]LUJHZLZ&WHNL$% 184 | I•CONnect-Clough Center being void as of the moment of their adoption of higher legal force had been examined foreign policy threats decrease, the legislator or any other past date, then the amount of already in 2000 and 2006. However, the has an obligation to review the restriction compulsory lease fee would not be defined claims included in the application cannot be included in the contested norm and to decide in regulatory enactments altogether. A ruling deemed as already adjudicated because the on amendments to the Saeima Election Law. like this could create a significant threat to interpretation of the contested norm evolves In view of these findings, the CC recognised the rights and lawful interests of the parties over time with the evolution of social that the contested norm, if appropriately to the legal relationship of the compulsory relations it is aimed to regulate. Moreover, interpreted, complied with Article 1 and lease rather than ensure legal stability, such arguments that had not been examined Article 9 of the Satversme. clarity and peace in society. Therefore, the in the previous judgments were included in contested norms were recognised as void as the application. Moreover, the aforementioned norm was of 1 May 2019. recognised as being compatible also with Thirdly, the CC recognised that the exercise Article 91 (right to equality) of the Satversme 2. Case No. 2017-25-01: Restriction to be of a person’s rights and freedoms was most since the Court concluded that persons elected in the Parliament18 efficient in a democracy. However, such referred to in the application were not in exercise may not be directed against the similar and comparable circumstances. The prohibition of persons who, after independence of the state and the principles 13 January 1991, had been active in of a democratic state governed by the rule 3. Case No. 2017-18-01: Restriction to estab- the Communist Party of Latvia or of law. Hence, it may be necessary for the lish a religious community (e.g., a church)19 other organisations directed against the state to take special defencive measures to independence and democratic state order guarantee the stability and effectiveness of The prohibition for newly founded of Latvia to run in Saeima elections was its democratic system. Moreover, loyalty congregations20 to establish a religious examined in this case. to statehood and democracy has not yet association (a church) prior to the expiry become sufficiently consolidated in Latvian of the re-registration period of ten years, as A constitutional complaint initiated the society—democracy is far from being well as the restriction to establish more than case. It was noted in the application that the considered self-evident. one religious association (a church) in one applicant had been active in the Communist denomination, were examined in this case. Party of Latvia after 13 January 1991. Thus, Fourthly, the CC noted that the internal It was initiated by an application by the the contested norm deprives her of the right to and external threats to the state should be Supreme Court. run for the Saeima. The applicant argued that taken into consideration in examining the the restriction on election rights determined proportionality of the restriction on election Firstly, the CC recognised that the right to a long time ago is no longer legitimate rights. The fact that persons who previously religious freedom is closely linked to the and is incompatible with the principles of were active in the organisations referred right to freedom of association and thus must proportionality and equality. to in the contested norm, and continue to be interpreted with a view to their systemic express opinions and take actions that can relationship. Secondly, the CC noted that the Firstly, the CC established that the restriction be seen as contrary to the national security re-registration requirement had been set to aims to protect the democratic state order, and interests, ought to be considered as a newly established congregations to prevent national security and the territorial unity threat to democracy. The most significant abuse of the status of a religious association. of Latvia. This norm should be interpreted external threat, in turn, is caused by Russia’s Hence, this requirement was directed to mean that it prohibited to stand as a aggressive foreign policy. These threats are a towards protecting other persons’ rights candidate for the Saeima a person who, by significant factor that justifies the retention and public order. However, these legitimate being active in the prohibited organisations of the restriction on fundamental rights aims of the restriction on fundamental after 13 January 1991, by her actions posed included in the contested norm. rights could be reached, at least by the same a threat and continued to pose a threat to the quality, by measures that are less restrictive independence of the Latvian State and the Fifthly, the CC found that the benefit to upon a person’s rights. I.e., law enforcement principles of a democratic state governed by society provided by the restriction included institutions are supervising the compliance the rule of law. in the contested norm outweighed the of the activities conducted by religious adverse consequences that a person incurred organisations. This measure is an alternative Secondly, the CC found that the compliance as a result of this restriction. However, if the to the obligation of annual re-registration; of the contested norm with the legal norms political situation in the state changes and moreover, it is individualised and applicable 18 **93 #O[[W!^^^ZH[][PLZHNV]S]LUJHZLZ&WHNL$% 19 **93 #O[[W!^^^ZH[][PLZHNV]S]LUJHZLZ&WHNL$% 20 *VUNYLNH[PVUZ[OH[JVTTLUJL[OLPYHJ[P]P[PLZMVY[OLÄYZ[[PTLPU[OL9LW\ISPJVM3H[]PHHUK[OH[KVUV[ILSVUN[VHU`YLSPNPV\ZHZZVJPH[PVUJO\YJOLZ[OH[HSYLHK` OH]LILLUYLNPZ[LYLKPU[OLZ[H[LPUHJJVYKHUJL^P[O[OL[LYTPUVSVN`\ZLKPU:LJ[PVU VM[OLSH^¸6U9LSPNPV\Z6YNHUPZH[PVUZ¹ 2018 Global Review of Constitutional Law | 185 exactly to those religious organisations that 4. Case No 2017-28-0306: Real estate tax differences on the basis of citizenship status endanger the rights of other persons and rate applied to foreigners21 as such could be justified in certain cases. public order. Hence, the contested norms, which envisage re-registration of the newly A procedure by which reduced tax rates Secondly, the CC recognised that the established congregations, were incompatible were applied to the payers of real estate tax requirement included in the contested norm with the principle of proportionality, and in Riga if the place of residence was of a differentiates in a comparable situation thus also with the Satversme. foreigner22 had been declared in the city, and between EU citizens23 and the citizens and was examined in this case. non-citizens of Latvia. This requirement is Thirdly, the CC found that the restriction that incompatible with the essence of the right prohibited congregations from registering The case was initiated with regards to an to free movement in the EU and violates the more than one religious association within application submitted by the Ombudsman. principle of the prohibition of discrimination. the framework of one denomination had It is noted in the application that the been established to decrease the schism Binding Regulation of the Riga City Thirdly, the CC found that the differential within religious organisations. However, Council envisages different rates of the treatment established by the contested in a democratic society, it is not necessary real estate tax, inter alia, the basic rate and norm had no legitimate aim. The Riga City for the state to take measures to ensure the reduced rate. Pursuant to the contested Council had not substantiated the existence that religious communities are subject to norm, if a foreigner’s place of residence has of such an aim, nor the objective differences united leadership. In the case of a schism been declared on the property, the reduced between the taxpayers that would require within a religious community, the state has tax rates are allegedly applied only if the different tax rates. Likewise, the Court was an obligation to remain neutral and refrain foreigner’s place of residence in Latvia had not provided with a reasonable explanation from any measures that would give priority been declared on 1 January seven years prior on how the requirement of a prolonged to one or another religious leader, and its aim the respective taxation year. However, if and permanent link of the aforementioned should be forcing the religious community, the place of residence of a citizen or a non- foreigners to Latvia ensured or facilitated contrary to its wishes, to be subject to one citizen of Latvia is declared in the respective the performance of those functions and leadership. Therefore, the state does not have taxation object, an additional requirement tasks of the municipality, the fulfilment of the right to refuse registration of a religious like this is not set. Thus, the reduced tax which being the reason the real estate tax association to a religious community that rate is applied to the payer of the real estate was collected. In view of these findings, identifies itself with a denomination, in the tax in whose property the place of residence the CC recognised the contested norm as framework of which a religious association of a citizen or a non-citizen of Latvia or a being incompatible with Article 91 of the as the legal person of private law already foreigner who meets the requirement set Satversme. has been registered in the state. Moreover, in the contested norm has been declared. the legislator has ensured that a religious :KHUHDV WKH EDVLF UHDO HVWDWH WD[ UDWH LV IV. LOOKING AHEAD organisation, upon registration, may not applied to the payer of the real estate tax in deceive society as to its affiliation with whose property the place of residence of a Two important elections will take place another religious organisation, inter alia, foreigner who does not meet the requirement in 2019. First, in May, Latvia is going to by providing that the name of the religious set in the contested norm has been declared. elect its representatives to the European organisation must differ from the names of Allegedly, this legal regulation violates the Parliament, and later in the summer, the other religious organisations. Hence, the principle of the prohibition of discrimination. Saeima will have to appoint the President of contested norm that envisages the restriction the Republic. allowing the establishment of only one Firstly, the CC noted that in accordance religious association within the framework with the EU Treaty, EU citizenship was In 2019, the CC will have to decide on of one denomination lacks a legitimate aim one of the criteria included in Article 91 the constitutionality of education reform and is incompatible with the Satversme. of the Satversme as prohibited grounds affecting the use of minority languages in for discrimination. However, establishing public and private schools. Another case 21 **93 #O[[W!^^^ZH[][PLZHNV]S]LUJHZLZ&WHNL$% 22 A foreigner is a citizen of another Member State of the European Union, a state of the European Economic Area or the Confederation of Switzerland, or a person who has received a permanent residence permit in Latvia. 23 Citizen of another Member State of the European Union, a state of the European Economic Area or the Confederation of Switzerland, or a person who has received a permanent residence permit in Latvia. 186 | I•CONnect-Clough Center to be noted is the dispute whether making public the salaries of all employees in public law institutions is compatible with the EU General Data Protection Regulation and the constitutional right to privacy. One more case involving EU law concerns the question whether universities may employ academic personnel on the basis of fixed-term contracts, which need to be renewed every six years. The last case which merits attention is a case involving the constitutional right to know one’s rights in criminal proceedings for illegal possession of a dual-use device. V. FURTHER READING 5HSRUW RQ WKH :RUN RI WKH &RQVWLWXWLRQDO Court of the Republic of Latvia in 2018 Selected Case-Law of the Constitutional Court of the Republic of Latvia: 1996-2017 (The Constitutional Court of the Republic of Latvia, 2018) http://www.satv.tiesa.gov.lv/other/2018-ST- Zelta-gala%20versija.pdf Ineta Ziemele, “Constitutional Courts as Lock-Gates in the World of International- National Tension” (Humboldt-Reden zu Europa, Berlin, 1 February 2018) KWWSV ZZZ\RXWXEHFRPZDWFK"Y S-I O Fqv84 Sanita Osipova, “The borders of the legislator’s freedom in the legislative SURFHVV´ :DUVDZ6HSWHPEHU http://www.satv.tiesa.gov.lv/en/articles/ speech-by-the-vice-president-sanita- osipova-of-the-constitutional-court-sanita- osipova-at-the-fontes-conference-in-poland/ Sanita Osipova “The Financial Security of Judges in the Context of the Principle of the Separation of Powers” (Andorra, 12 July 2018) http://www.satv.tiesa.gov.lv/en/articles/ speech-by-the-vice-president-of-the- constitutional-court-sanita-osipova-at-the- international-conference-in-andorra/ 2018 Global Review of Constitutional Law | 187 Liechtenstein Peter Bußjäger, Univ.-Prof. Dr. – University of Innsbruck/State Court of Liechtenstein Anna Gamper, Univ.-Prof. Dr. – University of Innsbruck Mirella Maria Johler, BA – University of Innsbruck I. INTRODUCTION The Splitting of a Political Party Liechtenstein took advantage of the 40th In summer 2018, one Member of Parliament LIECHTENSTEIN anniversary of its Council of Europe (MP) of the party “The Independents” (Die membership in autumn 2018 to hold a well- Unabhängigen) lost their membership in it attended event on the European Court of after having discussed the best method of Human Rights (ECHR). Throughout their party organization. As a consequence, two speeches, judges and academics emphasized other MPs joined him and left the party the importance of the ECHR and its on their own. After the summer break, the jurisprudence.1 Liechtenstein’s respect for parliamentary group of the The Independents human rights is also reflected by the fact that consisted of only two MPs. The by-law of several delegations of the Council of Europe the Parliament (Geschäftsordnung für den visited the country during the last few years.2 Landtag) demands three MPs to form a The country takes their recommendations parliamentary group. As the Constitution and seriously and implements them, whether the laws do not contain any special regulation through legislative amendments3 or for this new situation, the President of alterations of the administrative process. Parliament proposed an accord—in touch with all the political parties. The accord was In 2018, no amendments of the Constitution voted for unanimously by Parliament on were voted for by Parliament. Yet, one 5 September 2018. Among other things, it amendment was discussed and will be voted stated that the The Independents would lose on in early 2019.4 their status as a parliamentary group. On the other side, the three dissidents (who have meanwhile founded a new political party II. MAJOR CONSTITUTIONAL named “Democrats in Favor of Liechtenstein” DEVELOPMENTS (Demokraten pro Liechtenstein) would form another parliamentary group. One Throughout 2018, the Parliament was of them would take a seat on the board preoccupied with a number of questions of Parliament while the member of The concerning its own organization. Independents would have to leave the board. The Independents would continue to 1 The third issue of the Liechtensteinische Juristen Zeitung has been devoted to the ECHR membership anniversary: LJZ 3 [2018] 103-156. 2 See for 2018: European Commission against Racism and Intolerance (ECRI): Fifth report on Liech- tenstein (adopted on 22 March 2018, published on 15 May 2018), ECRI(2018)18. Group of States against Corruption (GRECO): Third evaluation round, Compliance Report, published on 30 May 2018, .YLJV9* (J[PVUHNHPUZ[;YHɉJRPUNPU/\THU)LPUNZ.9,;(!*VTIPULKZ[UK,]HS\H[PVU Round, Government’s Reply to GRETA’s Questionnaire, submitted 28 August 2018, GRETA(2018)24. 3 See chapter II (Implementation of the GRECO-Recommendations). 4 See chapter II (Abolition of the principle of rotation). 188 | I•CONnect-Clough Center receive public funding, as the financing of joint body for the selection of Judges. The the Parliament decided to require a second Liechtenstein’s political parties is based on Reigning Prince shall chair this body and expert opinion to answer the questions of the results of the elections and not on their have the casting vote. He may appoint as the Hereditary Prince. The second expert constitution as a parliamentary group. The many members to this body as the number did not follow the first one’s opinion. On Parliament then nominated six members to of representatives delegated by Parliament. 4 June 2018, Johannes Kaiser declared his build a special commission. The commission Parliament shall delegate one of its Members resignation as a member of the Joint Body. was tasked to propose amendments to the for each electoral group represented in Constitution and to parliamentary laws to Parliament (…).” Even if the situation seems to be resolved, the regulate the consequences of party splitting question of how to deal with crossbenchers and MPs dissenting prior to the next The Constitution itself does not use the as members of commissions remains to parliamentary elections. words “political party”. Instead, the term be discussed and hopefully answered by “electoral group” is used (similar to Art 96 of the Special Commission formed after the To be precise: It is the first time in history the Constitution), which refers to the statute splitting of the The Independents. that members of five political parties are regulating the elections (Volksrechtegesetz). represented in Parliament. The Independents In this statute, 30 persons signing an Implementation of the GRECO-Recommen- had run for election in 2013 for the first electoral list are labelled as “electoral dations Concerning Party Funding time and immediately won four seats out of group”. For the running members of a 25, and five seats in 2017. Until 1993, only political party, the representatives of the An amendment to the statute regulating two political parties had sent members to the respective political parties are supposed to public funding of political parties5 will be Parliament. Up to 2018, no political party that sign the electoral list. Given that the concept voted upon by Parliament in spring 2019. had made it into Parliament was dropped. of the Volksrechtegesetz theoretically The amendment is not linked to the splitting allows a group of 30 friends to sign a list of The Independents, but rather motivated The Composition of the Joint Body for the without possessing a party-like structured by the recommendations made by GRECO Selection of Judges organization (membership fees, board), the in 20166 and 20187 during their third term “electoral group” does not function as a evaluation round “transparency of party After the elections in March 2017, the synonym for “political party”. Furthermore, funding”. Parliament nominated four members of Liechtenstein law does not provide a legal the Joint Body for the Selection of Judges basis on which MPs sitting in commissions The sum spent on political parties will not (Richterauswahlgremium), regulated by can be recalled. be changed. Political parties will have to Art 96 of the Constitution. Each of the four publish their accounts (to show all their political parties represented in the Parliament The President of the Parliament then asked sources of income). Receiving anonymous made a proposal for one MP. Johannes Kaiser a Liechtenstein lawyer to provide an expert donations will no longer be legal, but the was elected for the “Progressive Party of opinion. The answer remains unpublished, parties will not be required to publish the Citizens” (Fortschrittliche Bürgerpartei). but clear: Nobody may force an MP to leave names and addresses of their donors.8 After a disagreement with the Prime the Joint Body or any commission before the Minister (who happened to be a member end of their term. Immediately thereafter, the Abolition of the Principle of Rotation from of the same party) and with the board of Hereditary Prince informed the Parliament Case to Case for the Alternate Judges of the the party, Johannes Kaiser quit the party in about his fear that the composition of the Constitutional Court and the Administrative March 2018. Joint Body for the Selection of Judges might Court be unconstitutional if the Progressive Party But he did not accept leaving the Joint Body. of Citizens continues to be unrepresented Art 102 para 4 of the Constitution and the Therefore, the question arose as to whether in the Joint Body, but rather an independent Constitutional Court Statute (Gesetz über the Joint Body was properly composed. MP makes part of it. For this reason, the den Staatsgerichtshof, StGHG) will be The wording of Art 96 of the Constitution Parliament voted on 2 May 2018, for an amended in 2019.9 In September 2018, the provides that: “The Reigning Prince and MP of the Progressive Party of Citizens to Parliament passed the amendments without Parliament shall avail themselves of a re-join the Joint Body. At the same time, any further discussion during the first 5 LGBl 1984 Nr 31 LR 162, https://www.gesetze.li/konso/1984.31. 6 Group of States against Corruption (GRECO): Third evaluation round, Evaluation Report, published on 2 June 2016), GrecoEval3Rep(2016)2Theme II. 7 Group of States against Corruption (GRECO): Third evaluation round, Compliance Report, published on 30 May 2018), GrecoRC3(2018)3. 8.V]LYUTLU[VM3PLJO[LUZ[LPUº)LYPJO[\UK(U[YHN»)\(5Y 1\S` #O[[W!I\HNTNIPa)\(&I\HUY$ I\HQHOY$ %HJJLZZLK -LIY\HY` 9 .V]LYUTLU[VM3PLJO[LUZ[LPUº)LYPJO[\UK(U[YHN»)\(5Y 1\UL #O[[W!I\HNTNIPa)\(&I\HUY$ I\HQHOY$ %HJJLZZLK -LIY\HY` HUK)\(5Y 6J[VILY #O[[W!I\HNTNIPa)\(&I\HUY$ I\HQHOY$ %HJJLZZLK -LIY\HY` 2018 Global Review of Constitutional Law | 189 reading. As a consequence, one may expect control but not the entire administration. his decisions of 24 April 2017 and 24 May new rules on the call for alternate judges of References to Art 7 of the Swiss Parliament 2017. Against these decisions, the applicants the Constitutional and Administrative Courts Statute left the government unimpressed, made a writ to the Head of the Administrative to be passed in early 2019. given that information rights provided by Court, including an application for legal aid. Liechtenstein’s Constitution could not be In his orders from 27 June 2017 and 28 June The new wording of Art 102 obliges the two compared with its Swiss counterpart.11 2017, the Head of the Administrative Court Courts to adopt their own rules of procedure. qualified these writs as formal complaints, In them, they will have to describe the On 1 March 2018, 13 out of 25 MPs decided confirmed the member of government’s selection mechanisms of alternate judges. to consider the initiative as constitutional. decision and dismissed the applications for Until now, Art 102 para 4 stated that the However, 15 out of 25 MPs decided—during legal aid. substitution shall be undertaken “by the the same session—to refer the initiative to principle of rotation from case to case”. a special parliamentary commission. The In a constitutional complaint, the applicants latter has not yet reported on the issue and alleged that the qualification of the writs as The previous rule resulted in a situation as a result, one might expect a prolonged and formal complaints constituted a violation of in which alternate judges were called lingering conflict between the Parliament their right to legal aid and the prohibition up alphabetically without respect to and the government. of arbitrary. Only by mentioning the their special skills or their disposability, intention on making a complaint in the writ, thereby provoking delays. The amendment III. CONSTITUTIONAL CASES the writing cannot be qualified as such. will make proceedings in front of the The applicants argued that under these Constitutional Court and Administrative 1. StGH 2017/82 and StGH 2017/83 circumstances they would be deprived of Court resemble those in front of ordinary the possibility of submitting a complaint courts. Therewith, the amendment is part In their 2017 report, the authors Bußjäger/ meeting all legal requirements. Under the of a series of adaptations inspired by the Gamper referred to several judgments of law of the Principality of Liechtenstein, government’s search for more efficiency and the Liechtenstein Constitutional Court12 there would be no possibility to get access standardisation. concerning the access to law. They mentioned to aid for the comprehensive conduction that the Constitutional Court on 4 December of a complaint against the decision of the Dispute on Parliament’s Right to Informa- 2017 examined the constitutionality of Art member of government, especially not for tion vis-à-vis the Government 83 para 1a Asylum Act13 on this provision. the formulation of the complaint itself. The Constitutional Court then asked the In December 2017, a number of MPs government explicitly how a complainant Under the amended Art 83 para 1a Asylum raised an initiative to extend their right who was not assisted by a lawyer could be Act, the application for legal aid could to information vis-à-vis the government. expected to lodge a complaint in line with the be made the earliest together with the The proposal to amend the Administrative necessary legal requirements if the remedy introductory writ (i.e., the application for Control Statue (Geschäftsverkehrs und could only be expected to be effective if asylum) or the complaint (against a negative Verwaltungskontrollgesetz) was modelled it had been given sufficient legal aid (as decision), and the application for legal aid 10 after Art 7 of the Swiss Parliament Statute. according to Art 43 Constitution). would be treated during deciding on the principle cause. The decisive proposal was contained by Art On 27 March 2018, the Constitutional Court 20 Sec 1, suggesting that all MPs should issued its decision. The facts of the case are The Constitutional Court acknowledged obtain the right to request the government summarized below. the intention of the lawmaker to accelerate and the state administration to provide asylum proceedings and pointed out them with any information and documents The applicants, asylum seekers from the that restrictions to the right to legal aid necessary to perform their parliamentary Republic of Macedonia and the Republic are permissible as long and as far as the mandates. The government considered of Serbia, had made an application for constitutional right to an effective complaint the proposal as unconstitutional given asylum in the Principality of Liechtenstein. will be maintained. Yet, the Constitutional that Art 63 of the Constitution would only The member of government in charge then Court maintained that this is the case only subject the government to parliamentary declared these applications inadmissible in if the applicant is rightfully represented by a 10 7HYSPHTLU[VM3PLJO[LUZ[LPUº.LZL[aLZPUP[PH[P]L0UMVYTH[PVUZYLJO[»+LJLTILY #O[[WZ!^^^SHUK[HNSPÄSLZTLKPLUHYJOP].LZL[aLZPUP[PH[P]LF0UMVYTH[PVU- ZYLJO[WKM%HJJLZZLK -LIY\HY` 11 .V]LYUTLU[VM3PLJO[LUZ[LPUº)LYPJO[\UK(U[YHN»)\(5Y 1HU\HY` #O[[W!I\HNTNIPa)\(&I\HUY$ I\HQHOY$ %HJJLZZLK -LIY\HY` 12 Peter Bussjäger, Anna Gamper, .SVIHS9L]PL^VM*VUZ[P[\[PVUHS3H^ #O[[WZ!WHWLYZZZYUJVTZVSWHWLYZJMT&HIZ[YHJ[FPK$ %HJJLZZLK February 2019. 13 LGBl. 2016 Nr. 411, https://www.gesetze.li/chrono/2016.411. 190 | I•CONnect-Clough Center lawyer while filing the introductory writ or :LWKWKHDPHQGPHQWRIWKH$V\OXP$FWRI though the dismissal of the applicant was the complaint including the application for 5 October 2018,14 the lawmaker introduced part of a civil law dispute and there was no legal aid. the unprecedented right of asylum seekers to general grounding for third-party effects of not only require translations of the decisions fundamental rights in the ECHR, the right of However, the primary objections of the of their cases but also information and freedom of expression reaches beyond the Constitutional Court concerned more consultations on the applicable law and the classic understanding as a protective right common cases in which a lawyer does not changes of success of judicial remedies. against the state. Thus, by implying effects rightfully represent the applicants. Before on third parties in civil law, a dismissal on the Art 83 para 1a Asylum Act had entered into 2. StGH 2018/074 grounds of the exercise of one’s constitutional force, the treatment of the application for right is unlawful. In consequence, the state legal aid before the introductory writ could In this case, the Constitutional Court had also needs to guarantee the freedom of be guaranteed the right to complaint, since to deal with the question of the indirect expression in employment relationships, a positive decision on the question of legal application of fundamental rights in disputes which in this case means interpreting labour aid beforehand ensured the payment for under private law. The applicant, a deputy laws in favour of the freedom of expression, legal representation. Under the current legal senior medicinal officer of the department of especially Sec 1173a Art 53 and Art 4 of the situation, the applicant faces the risk of not internal medicine, claimed that the appellee Civil Rights Code. finding a lawyer filling out his complaint had dismissed him unlawfully after he had because payment cannot be guaranteed. made a criminal charge against a senior The Constitutional Court further medical officer based on the suspicion that acknowledged the applicant’s perspective According to the Constitutional Court’s the latter had conducted active euthanasia on to see himself as a whistle-blower and thus constant jurisdiction, the right to legal aid VHYHUDOSDWLHQWV:KHUHDVWKH&RXUWRI)LUVW akin to the constitutional protection of the (which derives from the constitutional right Instance had dismissed the applicant’s action, freedom of expression. The Constitutional to complain and the principle of equality) is the Court of Second Instance followed the Court has pointed out that a whistle-blower not only of procedural but also of substantive applicant’s complaint. The Court stated that is understood as an employee who reveals character. This substantive character cannot given that the freedom of expression protects serious misconduct in his work environment EH XQGHUPLQHG :KLOH UHVWULFWLRQV WR WKH the reporting of grievances, there was no out of mostly altruistic reasons. right of complaint can be permissible if they such misfeasance found that could justify are of public interest and in accordance with a dismissal without prior notice. However, Even though freedom of expression is the principle of proportionality, Art 83 para the Supreme Court varied this decision and affected in this case, and even though Sec 1a Asylum Act restricts the right excessively. found the dismissal legal. 1173a Art 53 and Art 4 of the Civil Rights The prevention of the possibility to first Code thus need to be interpreted according to decide on the question of legal aid and In a constitutional complaint, the applicant the Constitution, further considerations need only afterwards on the principal question alleged that the Supreme Court’s decision to be taken into account, namely the public undermines the right to legal aid in asylum constituted a violation of his constitutional interest, duties and responsibilities of the cases. As a result, this legal allegation would right of freedom of expression, the principle whistle-blower as well as possible damages. make a positive decision on the granting of equality and prohibition of arbitrary The Constitutional Court did not doubt the of legal aid ineffectual, since the principal decision-making. By reporting sincere public interest of the information released. claim has already been decided. grievances to the state attorney, he saw However, it remains questionable whether himself in the role of a whistle-blower. the conduct of the applicant fulfilled the Therefore, the Constitutional Court Therefore, the qualification of his conduct high demands that come along with the revoked Art 83 para 1a Asylum Act as as a constitutive ground for dismissal would severity and sensitivity of the accusations unconstitutional. Nevertheless, it noted, that infringe the above-mentioned constitutional and consequences for those involved. By not the aim behind this legal allegation would rights. The freedom of expression, taking all reasonable measures for validating be justifiable if the lawmaker would abolish guaranteed by Art 40 of the Constitution and the reliability of the accusations (in this case the obligation to a concurrent decision on the Art 10 of the ECHR, implies the freedom of additionally looking at the paper patient file application for legal aid and the complaint communication as well as (political) opinion when knowing about the incompleteness of (Art 83 para 1a phrase 1). Thereupon, after making. the electronic version), the Constitutional a final positive decision on the granting of Court had followed the Supreme Court’s legal aid, an appointed legal representative First of all, the Constitutional Court opinion that in such context, the applicant can complement the complaint within a analysed if the freedom of expression acted recklessly. newly set time limit. could have been affected in the case. Even 14 LGBl 2018 Nr 270, https://www.gesetze.li/chrono/2018.270. 2018 Global Review of Constitutional Law | 191 As a consequence, the Constitutional V. FURTHER READING Court declared that there had not been any violation of the freedom of expression. Janine Bürzle, Das Legalitätsprinzip im Additionally, the Constitutional Court found Spannungsfeld zwischen Politik und Recht: that no violation of the principle of equality Eine Untersuchung der höchstgerichtlichen had taken place. The Supreme Court had Judikatur in Liechtenstein, Schriftenreihe declared that the noticing period can depend 8)/(GLWLRQV:HEODZ%HUQ exemplarily on the sensibility of the manner and can therefore vary among different cases. Liechtenstein-Institut (ed.), Kommentar Correspondingly, this special case must not zur Liechtensteinischen Verfassung. be compared with other dismissals with a Online-Kommentar, Bendern 2016, www. shorter noticing period, hence not harming verfassung.li (notes on more Articles of the the principle of treating equal things equally Constitution have been put online) and unequal things unequally. Patricia M. Schiess Rütimann, ‘Die Freiheiten IV. LOOKING AHEAD des liechtensteinischen Gesetzgebers beim Einfügen der EMRK in die nationale On Sunday, 24 March 2019, elections will be Rechtsordnung’, LJZ 3/2018, 143 held in all of the 11 municipalities. The citizens have to elect mayors and six to 12 members of Patricia M. Schiess Rütimann, ‘Juristische the municipal councils. The big question is if Gutachten im Gesetzgebungsprozess,’ LJZ more women will be voted for than in 2015, 2/2018, 69 when 85 men were elected as members of municipal councils, but only 19 women. If not, 6HEDVWLDQ:ROI3HWHU%XVVMlJHUDQG3DWULFLD women’s organizations can be expected to re- M. Schiess Rütimann, ‘Law, small state voice claims for a women’s quota.15 theory and the case of Liechtenstein’, Small States & Territories, Vol. 1, No. 2, 2018, 183 15 7L[LY)\ZZQpNLY (UUH.HTWLYº3PLJO[LUZ[LPU»PU9PJOHYK(SILY[+H]PK3HUKH\7PL[YV-HYHN\UHHUK:PTVU+Y\NKHLKZ;OL 0*65ULJ[*SV\NO*LU[LY .SVIHS9L]PL^VM*VUZ[P[\[PVUHS3H^(2018) 177, 181.0. 192 | I•CONnect-Clough Center Malaysia Andrew James Harding, Professor - Faculty of Law, National University of Singapore Jaclyn Ling Chien Neo, Associate Professor - Faculty of Law, National University of Singapore Dian A. H. Shah, Assistant Professor – Faculty of Law, National University of Singapore :LOVRQ7D\7]H9HUQ5HVHDUFK)HOORZu±&HQWUHIRU$VLDQ/HJDO6WXGLHV)DFXOW\RI Law, National University of Singapore I. INTRODUCTION with significant issues including the under- mining of the judiciary, authoritarian-style For the first time since independence in 1957, politics, and the entrenchment of crony Malaysia experienced a change of govern- capitalism. This time, however, Dr Maha- MALAYSIA ment at the federal level following the 14th thir leads a very different political coalition, General Election (GE14) on 9 May 2018. with his Cabinet comprising some leaders The Pakatan Harapan (‘Pact of Hope’, or who were previously his bitter adversaries, PH) alliance of parties successfully unseated as well as more conservative elements who the Barisan Nasional (‘National Front’, or defected from BN on the eve of GE14. Giv- BN) coalition in a peaceful transition that re- en this eccentric mix of new and old, the ex- affirmed Malaysia’s commitment to consti- tent to which Malaysia can and will reform tutionalism and democracy. This presented a itself following the watershed of May 2018 unique opportunity for Malaysia to forge a remains an open question. new direction following a particularly scan- dal-ridden period epitomized by allegations II. MAJOR CONSTITUTIONAL of massive corruption surrounding state in- DEVELOPMENTS vestment fund 1Malaysia Development Ber- had (1MDB) and its dealings worldwide.1 The change of government is particular- ly significant because, although there have The change of political leadership heralded previously been changes of prime minister the opportunity to reform the country’s laws within the ruling party, essentially the same and institutions, which was indeed a central coalition had governed for 61 years since feature of the incoming coalition’s promise to independence, first as the Alliance and later an electorate fatigued by decades of corrup- as the BN. During this time, numerous re- tion and mismanagement at state institutions.2 pressive laws—particularly on sedition and internal security—were enacted, granting An interesting—if somewhat ironic—fea- the executive branch very wide powers to in- ture of the aftermath of GE14 was the return terfere with fundamental liberties guaranteed of 93-year-old Tun Dr Mahathir Mohamad by the Federal Constitution. The office of the as Prime Minister. This is the second time Dr Prime Minister also became a powerful in- Mahathir has held this position, following stitution, encompassing control over no less his first premiership from 1981 to 2003 at than 42 federal departments and agencies. the head of BN—a period that was also beset The lack of effective checks and balances 1 See, e.g., Hannah Ellis-Petersen, ‘1MDB Scandal Explained: A Tale of Malaysia’s Missing Billions’ (;OL Guardian, 25 October 2018) 2018 Global Review of Constitutional Law | 193 was further aggravated by the recent prac- the 1MDB saga despite mounting evidence News Act 2017 in September failed: the bill tice of the Prime Minister also concurrently to the contrary.5 The appointment of the new to abolish the Act was passed in the popular- holding the position of Finance Minister. Attorney-General, however, was delayed for ly elected lower house of Parliament but it weeks amidst rumours that the new appoin- was rejected in the Senate—the upper house This situation facilitated opaque dealings and tee—a double minority (i.e., a non-Malay of Malaysia’s bicameral legislature—where alleged abuses of power by the ruling par- and non-Muslim)—was not acceptable to the appointees of the previous government still ty, most notably the recent 1MDB scandal, then King, whose position still commands held a majority. This rejection—unprece- which attracted worldwide regulatory inves- significant deference in Malaysia’s political dented in the history of Malaysia—means tigations.3 The previous government’s control culture.6 that pursuant to the Federal Constitution, over the levers of power—including Parlia- the repealing bill is now on hold for at least PHQWJLYHQWKH:HVWPLQVWHUPRGHOµIXVLRQRI Highlighting its commitment to reform, the a year before the Senate’s rejection can be powers’ practised in Malaysia—was also used new government established an Institutional bypassed, if the lower house re-enacts the to stymie local attempts at securing account- Reforms Committee (IRC), which was com- measure.10 PH will eventually gain a ma- ability, and to gerrymander electoral boundar- prised of eminent personalities and tasked jority in the Senate under the appointments ies in an (ultimately unsuccessful) attempt to with providing recommendations for the re- system, and the Senate is not constitutional- shore up the ruling coalition’s position prior IRUPRINH\QDWLRQDOLQVWLWXWLRQV:LWKLQ ly empowered to block money bills.11 None- to GE14 (see last year’s Review). days of the change of government, the IRC theless, this episode amply illustrates the reported back with a set of recommendations obstacles that remain—at least for the short Against this backdrop, the PH coalition based on the pledges made in the PH’s elec- term—in the path of reform measures that do campaigned on a promise to repeal repres- toral manifesto for the Cabinet’s consider- not enjoy bipartisan support. Another issue is sive laws, reform the government by decen- ation and approval; this report, however, has the new administration’s lack of a two-thirds tralizing power from the Prime Minister’s yet to be made public.7 Also, in a landmark majority in either house to amend Malaysia’s Department (PMD), strengthen parliamen- move, the new government announced its in- Federal Constitution, which will be required tary checks-and-balances, and enhance the tention to abolish the death penalty and im- if some of the coalition’s promises, such credibility of the judiciary. Indeed, soon posed a moratorium on pending executions as the separation of the Attorney-General’s after the election, the new PH government until changes to the legal framework were functions from that of the Public Prosecutor appeared to have consolidated its agenda by implemented.8 Furthermore, in July, the new and the reform of the judicial appointments securing the resignation of the country’s top government announced plans to devolve process, are to be realized. two judges, the Chief Justice and the Presi- power from the PMD by placing several crit- dent of the Court of Appeal, who had been ical bodies, such as the Election Commis- A deeper undercurrent of resistance to the appointed by the previous administration in sion, the Public Services Commission, and new administration’s reform agenda was il- 2017 under highly dubious circumstances.4 the Judicial Appointments Commission¬ lustrated by the failed proposal for Malaysia These justices were swiftly replaced by the under the oversight of Parliament, and trans- to ratify the International Convention on the next most senior judges in the judicial hier- ferring certain agencies to other ministries.9 Elimination of All Forms of Racial Discrim- archy. The new government also appointed ination (ICERD) in 2018. Following an in- a new Attorney-General, replacing the in- The government has, however, faced seri- spiring speech at the United Nations in which cumbent who had infamously absolved the ous difficulties in implementing its reform Dr Mahathir pledged to ‘ratify all remaining previous government of any wrongdoing in agenda. Its attempt to repeal the Anti-Fake core UN instruments relating to the protec- 3 Malaysia’s 1MDB Scandal’ (:V\[O*OPUH4VYUPUN7VZ[ -LIY\HY` #^^^ZJTWJVT[VWPJZTHSH`ZPHTKIZJHUKHS%HJJLZZLK -LIY\HY` 4 See the case discussion in Part III(4) below; see also George Varughese, ‘Legal Action Filed to Seek Declarations that the Appointments of the Chief Justice and the President of the Court of Appeal are Unconstitutional and Void’ (Malaysian Bar, 17 October 2017) 194 | I•CONnect-Clough Center tion of human rights’,12 attention turned to This invocation of the ‘basic structure doc- the issue of ratifying ICERD, which could Under Article 12(4) of the Federal Constitu- trine’, which follows the Federal Court’s have raised questions regarding Malaysia’s tion, the religion of a person under the age acceptance of the doctrine in Semenyih Jaya long-standing affirmative action policy in of eighteen years ‘shall be determined by his Sdn Bhd v Pentadbir Tanah Daerah Hulu support of the Malay and other indigenous parent or guardian’. The High Court had in- Langat & Others13 in 2017, means that de- communities, who form a significant ma- terpreted this provision to mean ‘parents’ in spite the constitutional amendment to the jority in the country. Amidst coordinated the plural, not least to avoid the absurd sit- power-vesting clause of the Federal Consti- protests from the (now opposition) United uation whereby one parent could convert a tution, the judicial power of the Malaysian Malay National Organization (UMNO) and child to a particular religion on one day, only courts did not—and could not—become sub- the Islamic Party of Malaysia (PAS), a mam- for the other to convert the child to another ordinated to legislative diktat. In contrast, moth gathering galvanizing the Malay ma- religion on a later day. Conversely, the Court the Syariah courts are creatures of state leg- jority was scheduled for 9 December in Kua- of Appeal adopted a literal interpretation of islatures as permitted by the Federal Consti- la Lumpur. The increasing tension, which Article 12(4) and allowed the father’s con- tution, and they do not have inherent judicial had begun to take on ominous ethnic under- version of the children to the Islamic faith. If powers. Their jurisdiction must be expressly tones, was only defused by the new govern- that conversion was valid, however, it would conferred by state legislation, and cannot be ment’s announcement that it would not ratify be difficult for the applicant to convert the expanded by implication. ICERD after all, and the rally (which turned children back to the Hindu faith, since con- into a ‘celebratory’ event) passed without in- versions out of Islam require the prior ap- Thus, the Federal Court held that Article cident. This episode, which leaves Malaysia proval of the Syariah (Islamic law) courts 121(1A) does not oust the jurisdiction of as one of only 14 countries in the world that in Malaysia. The validity of the purported the civil courts in interpreting the Consti- have not signed or ratified the Convention, conversion of the children thus assumed par- tution and reviewing the lawfulness of state illustrates the precarious nature of the new amount importance—and the question was action (here, the conversion of the minor administration’s reform agenda, particularly whether the civil courts or the Syariah courts children by the State of Perak Registrar of when ethnic and/or religious considerations had jurisdiction to determine this. This ques- Converts) and that there was no express stat- enter the fray. tion also engaged Article 121(1A) of the utory provision conferring jurisdiction on Federal Constitution, an amendment inserted the Syariah courts to determine the validity III. CONSTITUTIONAL CASES in 1988 which provides that the civil courts of conversions to Islam. The Court found ‘shall have no jurisdiction in respect of any that the action of the Registrar of Converts matter within the jurisdiction of the Syariah in converting the minor children without the 1. Indira Gandhi a/p Mutho v Pengarah Ja- courts.’ This provision had been cited by nu- knowledge or consent of their mother was batan Agama Islam Negeri Perak & Ors: merous cases since 1988 to justify repeated unlawful and in contravention of the moth- Basic Structure Doctrine and the Judicial instances of the civil courts deferring to the er’s constitutional right to determine the reli- Power of the Courts Syariah courts on questions involving the gion of her children. Accordingly, the Court status of Muslim converts. quashed the certificates of conversion, which In Indira Gandhi, the Federal Court exam- was the basis upon which the Syariah courts ined the legality of the conversion of three The Federal Court held that the civil courts had proceeded to issue ancillary orders, such minor children by their father without the had jurisdiction to rule on the legality of the as those granting custody of the children to knowledge or consent of their non-Mus- purported conversions in this case. In the their father. lim mother. The father had converted to first place, the Court stridently asserted that Islam and become estranged from his Hin- the amendment of the Federal Constitution The Indira Gandhi judgment has been hailed du spouse, the applicant in this case. Apart in 1988 that removed ‘the judicial power of as a ‘restoration of the proper hierarchy be- from the issue of the claimant’s constitu- the Federation’ from Article 121(1), the pro- tween the civil and Syariah courts’.14 This is tional right to determine the religion of her vision establishing the judiciary in Malaysia, an important development in the ‘jurisdic- offspring, this case also raised the important does not have the effect of ousting the power tional imbroglio’ between the civil and Sya- question of whether the civil (or ordinary) of judicial review, which is ‘essential to the riah courts that has dogged Malaysia since courts have jurisdiction to determine legal constitutional role of the courts, and inher- the constitutional amendments of 1988, and questions concerning the religious status of ent in the basic structure of the Constitution.’ it provides some vindication for non-Muslim Muslim converts. 12 ‘Dr M addresses UN General Assembly’ (;OL:[HY :LW[LTILY #^^^[OLZ[HYJVTT`UL^ZUH[PVU KYTHKKYLZZLZ\UNLULYHSHZZLTIS`% accessed 16 February 2019. 13 [2017] 5 CLJ 526 (Federal Court). 14 Jaclyn Neo, ‘Return of Judicial Power: Religious Freedom and the Tussle over Jurisdictional Boundaries in Malaysia’ (I·CONnect, 15 March 2018) 2018 Global Review of Constitutional Law | 195 spouses who have often found themselves which can be limited by laws passed by Par- damental liberty guaranteed under the Feder- without legal recourse as a result of civ- liament under Article 10(2). Indeed, Article al Constitution.18 Hence, the award of exem- il courts routinely declining jurisdiction to 10(2) refers specifically to the ability of Par- plary damages was not only maintained but hear their applications for relief.15 liament to legislate restrictions on the free- also enhanced. Hassan bin Marsom’s case dom of speech in order to provide against thus marked an important vindication of the Importantly, the Indira Gandhi decision also defamation. Thus, the Federal Court ruled right not to be deprived of liberty without reaffirmed the application of the ‘basic struc- that the Derbyshire principle must give way due process of law by the apex court. ture doctrine’ in Malaysia, whereby Parlia- to the provisions of the domestic statute—in ment cannot amend certain basic, fundamen- this case the GPA—which allows public au- 4. Malaysian Bar & Others v Government of tal characteristics of the Constitution even if thorities to institute defamation suits.17 Malaysia: Controversial Extension of Chief the stipulated constitutional amendment pro- Justice’s Tenure cedure is complied with. This brings Malay- 3. Hassan bin Marsom & Others v Mohd sia in line with Commonwealth jurisdictions Hady bin Ya’akop: Irregularly Obtained Re- On 24 September, the Federal Court decided such as India, Bangladesh, and Pakistan, mand Order Is a Violation of Constitutional the suit brought by the Malaysian Bar and where the doctrine has been judicially recog- Rights and Occasions Damages for False the Advocates Associations of Sabah and nized and applied. Imprisonment Sarawak seeking to invalidate the appoint- ments of Justice Raus Sharif and Tan Sri 2. Chong Chieng Jen v Government of the In Hassan bin Marsom the Federal Court dis- Zulkefli Ahmad Makinudin as Chief Justice State of Sarawak & Anor: State Govern- missed an attempt by a group of policemen, and President of the Court of Appeal, the two ments Can Sue Individuals for Defamation who had assaulted a detainee in custody, to highest-ranking positions in the Malaysian challenge an award of exemplary damages judicial hierarchy, respectively. The duo had In Chong Chieng Jen’s case, the Federal against them on the basis that a magistrate been controversially appointed to these posi- Court affirmed that the principle propound- had lawfully ordered the detention. It was tions by the previous administration in 2017, ed by the UK House of Lords in Derbyshire asserted on their behalf that the act of the despite both having passed the retirement County Council v Times Newspapers Ltd16 magistrate in issuing the remand order was age stipulated in the Federal Constitution. does not apply to state governments and a judicial act that could not of itself give rise This was achieved via the unprecedented similar public authorities in Malaysia. The to a claim for damages under the Courts of and constitutionally doubtful route of first so-called Derbyshire principle provides, as a Judicature Act 1964. Alternatively, it was as- appointing both as ‘Additional Judges’ of the matter of common law, that although public serted that even if the remand order had been apex court. Apart from the Bar Associations, authorities can sue and be sued, this does not improperly obtained (which indeed it had), Dr Mahathir (then a ‘former Prime Minis- extend to the ability to sue for defamation. the remand order remained valid once issued ter’) and a component party of the PH coali- Conversely, the Federal Court held that pub- and it had never been set aside. tion had also challenged the legality of these lic authorities such as the State Government appointments (both ultimately unsuccessful; of Sarawak (the plaintiff in this case) are reg- The Federal Court held that because the ev- see last year’s Review). ulated by the Government Proceedings Act idence showed that the remand order had 1956 (GPA), section 3, which provides for been issued without complying with the re- Following the change of government in May, the power of these authorities to sue without quirements of the Criminal Procedure Code however, both appointees resigned in July— qualification. Therefore, public authorities (specifically section 117) and the Chief though not before both had been controver- can institute suits for defamation, as the Sar- Justice’s Practice Direction No. 3 of 2003, sially ‘summoned’ to meet the chairman of awak Government did in this case against a the detention was unlawful ab initio and in the advisory Council of Eminent Persons leader of the state-level opposition, who had violation of the constitutional right to lib- (CEP), set up by the new administration.19 A insinuated corruption and mismanagement erty secured by Article 5(1) of the Federal new Chief Justice and President of the Court of state funds on the part of the Sarawak Constitution. The Federal Court observed of Appeal were swiftly sworn into office Government. In so holding, the Federal that the courts’ constitutional role is to be through the regular appointment process. Court also made reference to the limited na- the ultimate bulwark against excesses in ad- ture of the freedom of speech secured under ministrative action, and that assault in police Given these developments, the Federal Article 10(1) of the Federal Constitution, custody is a clear violation of the most fun- Court declined to provide the much-awaited 15;OPV3PHUUº1\YPZKPJ[PVUHS0TIYVNSPV!*P]PSHUK9LSPNPV\Z*V\Y[Z;\YM>HYZHUK(Y[PJSL(VM[OL-LKLYHS*VUZ[P[\[PVU»PU(UKYL^/HYKPUN /73LLLKZ Constitutional Landmarks in Malaysia: The First Fifty Years 1957-2007 (LexisNexis, 2007) p.197.16 [1993] AC 534. 17 [2018] MLJU 1649. 18 [2018] MLJU 1294, para 121. 19 ‘Lawyers express concern over meeting between top judges and Daim’ (;OL:[HY, 10 June 2018) 196 | I•CONnect-Clough Center answer to the question of whether Raus and between the ordinary ‘civil’ law and ‘Islamic consent judgment before the Federal Court Zulkefli’s appointments had been validly law’, which co-exist somewhat uneasily in whereby the case would be remitted to the made. Holding that the matter had become the Malaysian legal system. High Court for all issues, including the ques- ‘academic’ now that the judges in question tion of jurisdiction, to be ventilated and ad- had resigned, the Federal Court sidestepped On appeal by the NRD and a coalition of judicated upon.24 This case will once again the questions of constitutionality posed by Muslim organizations, the Federal Court ul- invite Malaysia’s judicial authorities to deal the applicants, reiterating that ‘it is not the timately reserved the judgment it had been with the difficult question of the overlapping function of the courts to decide hypothetical scheduled to deliver, agreeing with the gov- authorities of secular and religious bodies in questions which do not impact on the par- ernment’s counsel that the matter required the country.25 ties before them.’20 This was an unfortunate a careful solution from the legislative and decision that spurned an unprecedented op- executive branches.23 This was a curious po- IV. LOOKING AHEAD portunity to rule on the legality of using the sition given that no legislative or executive ‘Additional Judge’ mechanism to appoint proposal to resolve the impasse is currently Apart from the question of whether, and to top judicial office-holders and thereby estab- in the public domain, and the matter raises what extent, the new government will deliv- lish guidance on the issue in case a future the issue of the primacy of one source of law er the promised reforms, a major uncertainty government is tempted to repeat this maneu- over the other, which is an issue of substan- on the horizon is how the numerous corrup- 21 ver. The decision also failed to address the tial public interest. tion cases against former prime minister Na- uncertainty surrounding the legality of the jib Razak and his associates will be handled. duo’s actions and decisions during their dis- 6. Sisters in Islam v Selangor Fatwa Com- In view of the election result, public opinion puted tenure in these positions. mittee & Others: Courts’ Jurisdiction to Re- clearly demands that those responsible for view Religious Fatwa the 1MDB scandal be brought to justice as 5. A Child and Others v Jabatan Pendaft- soon as possible; however, the reality is that aran Negara & Others: Religion and Ad- This judicial review application by the these complex cases will take at least another ministrative Power non-governmental organization ‘Sisters in year to conclude. Islam’ (SIS) against a fatwa by the Fatwa In November, the Federal Court deferred its Committee of the State of Selangor, which The ability of the new PH government to decision on the appeal arising out of the ju- had proclaimed SIS a deviant organization maintain public support for its reform agen- dicial review action to compel the National due to its close association with the ideolo- da will also be tested as anti-incumbent fa- Registration Department (NRD) to change gies of ‘liberalism’ and ‘pluralism’, raised the tigue and global economic factors beyond the surname of ‘bin Abdullah’, appended important—albeit extremely sensitive—issue its control begin to chip away at its popu- as a matter of procedure to a child born to a of whether the civil courts enforcing ordinary larity. This will be an important determinant Muslim family who was illegitimate under :HVWPLQVWHUPRGHOSULQFLSOHVRIFRQVWLWXWLRQ- of whether Malaysia continues on its current Islamic law (see last year’s Review). Last alism could judicially review proclamations trajectory of reform or reverts to a version of year, the Court of Appeal had held against of an Islamic religious body purporting to rule the ancien regime. the NRD, affirming that the agency is not on questions of Islamic law. entitled to rely on a fatwa (religious decree) The promised handover of power from to defeat the provisions of ordinary law (in Previously, the Court of Appeal had over- current Prime Minister Dr Mahathir to the this case the Births and Deaths Registration ruled a High Court decision that it had no ‘prime minister-in-waiting’, Anwar Ibrahim, Act 1957), which permit other ways of deter- jurisdiction to perform such judicial review LVDOVRDQHYHQWWRZDWFKIRU:KLOHWKLVZDV 22 mining the child’s surname. This is an im- (see last year’s Review). On appeal by the a central plank of the incoming adminis- portant ruling which affects the relationship Fatwa Committee, the parties reached a tration’s promise to the electorate, there is 20 ‘Court: It’s purely academic now’ (;OL:[HY 25 September 2018) 2018 Global Review of Constitutional Law | 197 undoubtedly no love lost between the two 2. Andrew Harding, ‘Malaysian Reform Dy- leaders, not least because of the dismissal namics’ (East Asia Forum, 6 December 2018) and jailing of the latter by Dr Mahathir in www.eastasiaforum.org/2018/12/06/malay- the 90s. VLDQUHIRUPG\QDPLFV"IEFOLG ,Z$5G- kexY9ErDsAZ-gtmzZIBwokEx5CPw2oy- In the courts, the ability—and willingness— fmwsvRYRiRwT7mfUO1XUSLRo. of the Federal Court to maintain the ‘ba- sic structure doctrine’ articulated in Indira -DFO\Q/1HR :LOVRQ7D\µ5HVWRULQJ Gandhi and earlier cases will determine the the Independence and Integrity of Malay- trajectory of constitutional adjudication in sia’s Judiciary: Proposals for Reform and Malaysia. The eventual resolution of the bin Challenges Ahead’ (ConstitutionNet, 14 Abdullah and Sisters in Islam cases will also November 2018) www.constitutionnet. reflect on the courts’ willingness to exercise org/news/restoring-independence-and-in- judicial oversight in matters involving an el- tegrity-malaysias-judiciary-proposals-re- ement of religious law. form-and-challenges-ahead. On a wider canvas, cases involving an Islam- 4. Jaclyn L Neo, ‘Definitional Imbroglios: ic law element, particularly those engaging A Critique of the Definition of Religion and the freedom of religion, are likely to take on Essential Practice Tests in Religious Free- even greater significance in the coming years dom Adjudication’ [2018] 16 International with the resurgence in political fortunes of Journal of Constitutional Law 574. the Islamic Party of Malaysia (PAS), which won control of two state administrations in 5. Richard Foo & Amber Tan, ‘Separation of GE14. The enthusiasm of the new PAS-led Powers in “New Malaysia”: Hope and Ex- governments for an uncompromising appli- pectations’ [2018] 5 Journal of International cation of Syariah was underlined by the pub- and Comparative Law 529. lic caning of two women in the northeastern state of Terengganu in September for the of- fence of ‘attempting to have lesbian sex’.26 This trend may also portend future conflict between the PAS-led state governments and the PH-led federal administration, given that the administration of Syariah law falls pri- marily within state jurisdiction. V. FURTHER READING 1. Andrew Harding, ‘Prospects for Malay- sia Baru: Constitutional Change without Changing the Constitution’, Public Lecture delivered at the Jeffrey Cheah Distinguished Speaker Series, Sunway University, Ma- laysia, 3 September 2018) www.andrew- jharding.com/2018/10/prospects-for-malay- sia-baru.html. 26 Yiswaree Palansamy, ‘Terengganu duo publicly caned six times over lesbian sex attempt’ (Malay Mail, 3 September 2018), 198 | I•CONnect-Clough Center Mexico Alfonso Herrera García, Professor of Constitutional Law at the Pan-American University Group of Constitutional Justice at the Konrad Adenauer Foundation for Latin America Roberto Niembro Ortega, Professor of Constitutional Law, ITAM Co-president of the ICON-S Mexican Chapter Irene Spigno, Director of the Centre of Comparative Constitutional Studies Inter-American Academy of Human Rights I. INTRODUCTION II. MAJOR CONSTITUTIONAL DEVELOPMENTS 2018 witnessed important developments and MEXICO advances in constitutional law. Among the In 2018 there were two major developments most significant ones, we must include the in Constitutional Law. The first one was the entry into force of the Constitution of Mex- entry into force of the Constitution of Mex- ico City and the declaration of unconstitu- ico City on 17 September 2018. The second tionality of the Internal Security Law. one started on December 2017 with the pub- lication of the Internal Security Law and Important changes in constitutional law culminated with its declaration of unconsti- have also been registered in terms of human tutionality by the Supreme Court of Justice rights, one of the main issues on the political on November 2018. and legal agenda. In this sense, 2018 was the year in which the Mexican Supreme Court of The call for a Constitution of Mexico City Justice (hereinafter the Court or the Supreme was long-standing, and its publication on 5 Court) recognized the right of homosexual February 2017 has been regarded as a demo- couples to become parents through assisted cratic and federalist exercise. However, there reproduction, facilitated gender reassign- are two main reasons why this is debatable. ment proceedings in public administration First, it is worth noticing that the Constituent and annulled the internal legislation that fa- Assembly was made up of 100 representa- vored the militarization of public security. tives, 60% of whom were elected and 40% Laws and judgments on women’s rights also appointed by political elites. Of the 40 ap- deserve special mention. pointed representatives, 6 were appointed by the former President (from the Partido 2018 saw outstanding judgments that pro- Revolucionario Institucional - PRI), 6 were tected those who work double days, both at appointed by the former Head of Govern- a job and at home. The Supreme Court also ment of Mexico City (from the Partido de la reinforced laws on femicide and ratified the Revolución Democrática - PRD), and 28 by implementation of gender perspective in the the Mexican Congress. investigation of crimes. Additionally, several proposals that limited the rights of women The two parties that benefitted the most by to freely decide over their bodies were de- this arrangement were the PRI and the PRD. feated, and others that fought for equal pay Apart from their 5 representatives elected by between men and women were approved by popular vote, the PRI—Mexico City’s fourth broad majorities. political force prior to the formation of the Constituent Assembly—got 10 additional 2018 Global Review of Constitutional Law | 199 representatives appointed by the Congress referendum. Moreover, we should rethink terpretation by the circuit court was uncon- and 6 more by the former President. For its which matters would be better served to have stitutional, since the purpose of the compen- part, the PRD got 4 representatives appoint- a Constitution of detail and which where a sation was to mitigate the inequity suffered ed by the Congress and 6 representatives Constitution of principles would be more ad- by a spouse as a result of her dedication to appointed by Mexico City’s former Head equate. housework and to the care of the children. of Government apart from its 19 represen- Therefore, double shifts of work (that is, un- tatives that were elected by popular vote. In The second major development in Consti- dertaking family responsibilities in addition this sense, since the very beginning, the Con- tutional Law that we want to mention is the to paid employment) cannot be an obstacle stituent Assembly was not a place for popu- publication of the Internal Security Law in to access to such compensatory mechanisms. lar deliberation in a full sense, but rather an December 2017, which was declared uncon- agreement among political elites. stitutional by the Supreme Court in November 2. Amparo Directo en Revisión 6181/2016 2018. This law militarized public security in and Amparo Directo en Revisión 5490/2016: The second reason for debate concerns the Mexico and authorized the Executive branch Domestic violence content of Article 122 of the Mexican Feder- to use the military as a regular force for public al Constitution, which was last reformed in security instead of the police, in contravention In its decision of 7 March 2018, in the Ampa- January 2016. Said disposition regulates in to what Articles 21 and 129 of the Mexican ro Directo en Revisión 6181/2016, the First great detail the Constitution of Mexico City. Constitution currently prescribe. Chamber of the Court ruled that judges must Our Federal Constitution is one of detail, take into account the context of violence and Article 122 is no exception. The body of Nowadays, perhaps the most important de- suffered and judge them under a gender per- federal constitutional reform strongly limit- bate going on in Mexico concerns the use spective paradigm in cases where women ed the content of the Constitution of Mexico of armed forces as a public security body. who had suffered domestic violence faced City by deliberately providing its scope in Fortunately, a lot of citizens, NGOs, the gov- criminal charges for assaulting their perpe- said article. ernment and the Federal Congress are taking trators. In this case, the appellant pointed the implications of using armed forces as a out on several occasions that she suffered Indeed, Article 122 of the Mexican Constitu- VHFXULW\ERG\VHULRXVO\:H¶OOKDYHWRZDLW domestic violence. However, the authorities tion establishes rules related to the Legisla- and see what happens. never considered such allegations. tive, Executive and Judiciary Powers, which involve the election of their holders as well III. CONSTITUTIONAL CASES The application of gender perspective on this as their duties, attributions and more. It also kind of case implies an imposition on judges describes the process for approval of amend- 1. Amparo Directo en Revisión 4883/2017: to identify whether a case involving a pos- ments to the Constitution of Mexico City. Double shift of working hours sible context of power based on gender is Besides, it provides guidelines for real estate able to generate a situation of prejudice and taxes, exemptions and subsidies, among other The First Chamber of the Supreme Court disadvantage for the appellant. Judges must financial matters. Likewise, Article 122 en- decided a case in which a woman sued her order the obtainment of whatever evidence shrines the characteristics and attributions of ex-husband for compensation for half of the is necessary for discarding any gender ste- municipalities, Mexico City’s public admin- assets that were acquired during their mar- reotype or prejudice as well as for visual- istration, the city’s public finance and auton- riage. In the procedure, it was determined izing any situations of disadvantage caused omous constitutional organs such as the Tri- that such compensation was not due, since by sex or gender conditions. Evidence may bunal of Administrative Justice, etc. Finally, the plaintiff failed to prove that throughout include expert opinions of the psychological said disposition dictates how labor relations her marriage she had dedicated herself ex- and physical condition of the affected person between Mexico City and its workers must clusively to housework and the care of their as well as expert evaluations of her psycho- be regulated and the functions of the federal children, while it was shown that, in addi- social environment, experiences and circum- branches of government in Mexico City. tion to domestic work, she was employed at stances. a workplace. In this way, Article 122 limited substantively The gender perspective approach was also the Constituent Assembly’s field of action. A federal circuit court which reviewed the adopted in the Amparo Directo en Revisión Maybe there won’t be another Constituent previous judgement stated—based on Article 5490/2016, which recognized the capacity of Power in the short run, but we should learn 267, section VI, of the Civil Code of Mexico a woman and her son to sue for reparation of from the experience of the Constitution City, valid until June 2011—that the woman damages from their aggressor as victims of of Mexico City that to get the citizenry in- should have proven that she dedicated her- domestic violence. According to the Court, YROYHGLQFRQVWLWXWLRQDOPDWWHUV:HVKRXOG self exclusively to the care of their children pecuniary and moral damages suffered by take care also of the way in which represen- and home during their whole marriage. victims of domestic violence must be re- tatives are elected and stress the necessity The Supreme Court determined that the in- paired economically by the perpetrator in a to obtain the direct approval of citizens by fair and proportional manner. In this sense, 200 | I•CONnect-Clough Center the judgement established that domestic vi- being filed by the entitled party; Article 155, could prevent the correct exercise of this olence constitutes an unlawful act that gen- section XIII, of the CNPP on home securi- right (since the reply is more effective when erates civil liability, given its harmful effects ty as a precautionary measure, establishing published closer to the time of the original on the physical, emotional or psychic sphere that while this precautionary measure is not publication), Acciónes de Inconstituciona- of a family member. It is a transgression of expressly provided for in the Constitution, it lidad was dismissed on this point for not the right to live in a family environment free is consistent with the principles that pervade reaching the minimum of eight votes neces- of violence, which derives from the rights to the criminal process. The first paragraph of sary for a qualified vote. life, health, the dignity of people, equality Article 153 of the CNPP, on the duration of and to the establishment of conditions for precautionary measures, refers to “the ab- 5. Acción de Inconstitucionalidad 15/2017: personal development. sence of a term or temporary catalog for the The Constitution of Mexico City imposition of a precautionary measure does 3. Acciones de Inconstitucionalidad 10/2014 not imply establishing or granting arbitrary The Supreme Court upheld large parts of the and 11/2014: National Code of Criminal or excessively discretionary powers to the Constitution of Mexico City’s provisions, Procedures control judge”; and the last paragraph of Ar- the first in its political history. The relevance ticle 434 of the CNPP on international legal of this case constrains not only the capital’s The Supreme Court resolved the Acciones de assistance at the request of the defendant, legal system but this abstract judicial action Inconstitucionalidad 10/2014 and 11/2014 in particular the part establishing that legal represents a leading precedent in defining with a decision issued on 22 March 2018, on assistance can only be invoked in order to the relationship between the federal govern- the constitutionality of the provided faculties obtain evidence through an order of an in- ment and the states’ powers on fundamental of the police and public prosecutor in the in- vestigating or judicial authority, and not for rights law. vestigation of crimes. In 2014, the Nation- evidence offered by the defense. al Human Rights Commission (hereinafter The first important point addressed in this CNDH from its name in Spanish, Comisión 4. Acciones de Inconstitucionalidad case was Mexico City’s recognition as a po- Nacional de Derechos Humanos) and the 122/2015, 124/2015 and 125/2015: Right of litical entity enabled to extend human rights then Federal Institute of Access to Public reply beyond the Federal Constitution and interna- Information and Data Protection presented tional treaties. In fact, some of the rights rec- an action of unconstitutionality, demanding On 1 February 2018, after six sessions of ognized therein were completely new and, the invalidation of 13 articles of the Nation- discussion, the Pleno of the Supreme Court consequently, different from those enshrined al Code of Criminal Procedures (hereinafter resolved the Acciones de Inconstitucionali- at the federal constitutional level. CNPP, from its name in Spanish, Código Na- dad 122/2015, 124/2015 and 125/2015 filed cional de Procedimientos Penales), enacted on the Law of the Right of Reply, published Such was the case of the right to medical and that same year in the framework of the re- in the Official Gazette of the Federation in therapeutic use of marijuana in the capital’s form to the criminal justice system. November 2015, declaring unconstitutional territory. The Court found this provision its Article 10. This provision established a compatible with the federal legislative com- The action of unconstitutionality was based period of no more than five business days petence in public health matters and with the on the alleged ambiguity and vagueness of following the day of publication or com- federation reserved powers on drug regula- the contested articles, which would allow for munication of information for an interested tion. The legitimate mention to that right in authorities to apply them according to their party to rectify or respond to it. Additionally, the local Constitution does not imply a reg- own discretion and subjective judgement. the Court recognized the constitutionality of ulation but merely a recognition of use with- Among the various provisions challenged, the rules requiring that those interested in re- out interfering with federal laws. the core of the issue in the Court’s discussion questing a reply must prove the existence of was the constitutionality of the competence the respective disseminated information. Another outstanding discussion was the right of the police to carry out inspections on peo- to die with dignity. The disposition under ple and vehicles in the context of a criminal According to the Court, the deadline set by analysis literally provides that: “The right investigation without requiring any form of the Congress for requesting a reply could to a life with dignity implicitly contains the judicial control.1 make this right nugatory, mainly because right to a death with dignity”. This right was some of the media cannot be consulted daily, considered part of the freedom of self-indi- Likewise, the Court declared the constitu- which would force the interested person to vidual autonomy. This provision does not tionality of several provisions: Article 148 of be aware of all media disseminating infor- necessarily mean euthanasia or assisted sui- the CNPP, which establishes a limit of up to mation. Although a majority of seven judges cide. Instead, it is understood to provide the 24 hours of detention for persons detained in considered that the possibility of appealing possibility of taking care of patients with flagrante delicto without a formal complaint the ruling of a judge in relation to a reply terminal diseases, or the development or im- 1 This competence is provided in Articles 132, section VII, 147, 251, sections III and V, 266 and 268 from the CNPP. 2018 Global Review of Constitutional Law | 201 provement of the quality standards of medi- lowed not only by the constitutional order responsibility coming from that condition. cal care and psychological support in the last but by international human rights law. Also, stages of a terminal life. some judges considered that the Federal 8. Amparo en Revisión 1049/2017: Right to Congress was not constitutionally able to life and health of a child vs. parents’ reli- Another right declared constitutional by the legislate in matters regarding so-called “in- gious beliefs ruling was the inalienable right of access to ternal security”. water and sanitation for personal and domes- A six-year-old girl with leukemia was hos- tic use. According to the Court, this provision 7. AAmparo en Revisión 533/2018: Same pitalized in emergency conditions. The doc- didn’t violate an exclusive federal competence. sex-couples’ right to assisted reproduction tors indicated urgent blood transfusions. Her parents denied the treatment because of their The Court also upheld sexual and reproduc- Through a subrogated maternity technique, a religious beliefs. A family prosecution office tive rights in the City’s Constitution. The same sex-marriage achieved the procreation started a guardianship procedure in order to legislative competence to recognize those of a child. They intended to officially register provisionally authorize the transfusions. kinds of rights has a concurring basis in the him as their biological son. A governmental Mexican political system: at a federal level, office in Yucatán state denied the registration The parents reclaimed their right to free- the legal system must provide rules for sci- on the basis of local civil legislation. The law ly decide about their daughter’s health. A entific and technical criteria, but that doesn’t did not provide such possibility, given that it federal judge recognized, on one hand, that imply a prohibition on the states to recognize could only be applied to an existing relation- right. On the other hand, he decided that the these rights and to provide public services ship by consanguinity. family prosecutor must respect the parents’ regarding family planification. conviction about alternative medical treat- In the case, a federal judge ruled that it was ments. Additionally, the judge ordered blood 6. Acción de Inconstitucionalidad 6/2018: impossible to recognize the filial link be- transfusions only in urgent cases. Internal Security Law tween the child and the couple. According to the judge, there was no proof of minimal le- The Court revoked that decision on the basis For many reasons, this case could be one gal requirements of a subrogated maternity. that the Constitution protects children’s rights of the most important judgments since the The civil registration of the child must pre- to life and health. Both rights are considered 2011 constitutional reform. Such reform viously be supported by a judicial authoriza- as a “preponderant constitutional interest”. created a powerful constitutional basis for tion and an adoption procedure. Thus, this interest means a restriction to the human rights law.2 The Court ruled that the parents’ autonomy to decide about their chil- entire so-called “Internal Security Law” was The Court’s First Chamber ruled that the child dren’s rights. The state can intervene in the unconstitutional. In doing so, the judiciary must be registered as the couple’s son on the parents’ autonomy in certain cases. struck down a statute that was promoted by basis of his right to a family name and to a civil Enrique Peña Nieto’s government and ap- personality. Also, both parents have the right There are two cases in which an alternative proved by both federal chambers to face a to a private life, to no discrimination based on medical treatment can risk the health or the profound Mexican social crisis: organized sexual preference and to access to assisted re- life of a child: when there is an emergency crime in matters of drug trafficking and other production techniques. Finally, the biological or urgent situation and when the alternative serious crimes. mother also has a right to privacy and a free treatment is not equally effective to recover development of her own personality. the child’s health. Basically, the statute regulated the inter- vention of armed forces to combat “internal The Court decided that, under assisted repro- In this sense, firstly, the Court ordered the security” threats. The law allowed the Pres- duction technique circumstances, the child’s duty of giving a child protection procedure. ident to declare the existence of such threats filiation does not need a proved biological Secondly, the Court ruled that the public in state territories or determined regions of link. His official recognition by civil author- authority could authorize successive blood the country. This declaration would have ities through paternity or maternity presump- transfusions in case there is a medical in- generated federal forces action, including tions was legally possible. The biological dication for them. It also indicated that in military operations. mother’s explicit consent was also important such supervision, public authorities must in this case, and her recognition of the bio- provide a fair and respectful treatment to The Court ruled that the use of military force logical father and his partner as legal parents. the girl’s parents. to intervene in public security was not al- Therefore, there were no doubts about their 2 The constitutional reform published on June 10, 2011, recognized that international treaties on human rights law have the same hierarchy as the Constitution itself within the Mexican legal system. See: Herrera García, Alfonso, La interpretación de los derechos humanos y sus garantías por la Suprema Corte de Justicia. Una aproximación jurisprudencial, México, CNDH, 2015, pp. 27-39. 202 | I•CONnect-Clough Center 9. Amparo Directo en Revisión 9/2018: rights over fighting birds and the freedom of V. FURTHER READING Non-discrimination of domestic women labor of the people involved in those activi- workers ties. Also, the sentence settled that the right A M Alterio and R Niembro, ‘Constitutional of equality before the Law does not protect culture and democracy in Mexico. A critical The Social Insurance Law provided that the claim to include cockfights in a list of view of the 100-Year-Old Mexican Consti- employers had no obligation to include do- permitted activities that also imply animal tution’, in M Tushnet, S Levinson and M mestic workers in the social security sys- mistreatment, such as bullfights, because Graber (eds.), Constitutional Democracy in tem. The Supreme Court’s Second Chamber plaintiffs cannot benefit from the fact that Crisis? (OUP, 2018) declared that this legal exclusion violated the legislator was incongruous to include the right to non-discrimination in terms of one activity and not the other. E Ferrer Mac-Gregor and A Herrera García social insurance. (eds.), El juicio de amparo en el centenario IV. LOOKING AHEAD de la Constitución mexicana de 1917. Pasa- The Court concluded that there was no rea- do, presente y futuro (México, UNAM - In- sonable justification to exclude domestic 2019 is an important year for the Mexican stituto de Investigaciones Jurídicas, 2017) workers from a mandatory social security judiciary. From 1 December 2018, there regime. This circumstance mostly affects has been a new federal government headed A Herrera García and E Caballero González women workers in a disproportional way, by Andrés Manuel López Obrador, who ran (eds.), Controversias constitucionales y ac- since statistically nine out of ten domestic for the third time and won with over 53% of ciones de inconstitucionalidad. Ley Reglam- workers are female. The Court explained the vote. During the campaign and after the entaria del Artículo 105 constitucional con that domestic work has been traditional- elections, he presented himself as an agent jurisprudencia (México, Tirant Lo Blanch, ly exposed to inadequate labor conditions, of economic, political and social change. 2017) long working days and low salaries. Nowa- During his six-year presidential period, days, this historical discrimination prevails, President López Obrador has the responsi- L E Ríos Vega and I Spigno (dirs.), Estudios which is quite far from the concept of work- bility of appointing three new justices to the de casos líderes nacionales. Vol. V. ‘Los ing with dignity. Supreme Court. Last December, the Sen- derechos humanos en la jurisprudencia de ate confirmed Justice Juan Luis González la Suprema Corte de Justicia de la Nación’ The Court ordered the Mexican Social Secu- Alcántara Carrancá, replacing Justice José (México, Tirant Lo Blanch, 2019) rity Institute to implement a complete social Ramón Cossío Díaz, and in January 2019, insurance system program, providing both Justice Arturo Zaldívar Lelo de Larrea was L E Ríos Vega and I Spigno (dirs.), Vademe- guarantees to domestic workers and correl- elected by his colleagues as the new Presi- cum de derechos humanos (México, Tirant ative employers’ obligations. dent of the Supreme Court and the Federal Lo Blanch, 2019) Judiciary Council. It is expected that during 10. Amparo en Revisión 163/2018: Prohibi- February 2019 the Senate will confirm one tion of cockfights female justice. The next vacancy will take place in 2021. On 31 October 2018, the First Chamber of the Supreme Court issued the Amparo en Re- This year, the Supreme Court will solve an visión 163/2018, in which it determined that important lawsuit against a controversial stat- Articles 2, second paragraph, 3 and 28 and ute: the Public Servants’ Salaries Law. This fractions V, VIII and X of the Animal Pro- statute, promoted by the new major political tection Law of the State of Veracruz were party, reduces public salaries, including those constitutional because they provided an ap- applied to the judiciary. One of the main ar- propriate and necessary measure to guaran- guments against this statute is the violation of tee animal welfare, which is the prohibition judicial independence. of cockfights. In said resolution, the First Chamber established that no practice that en- Another central public issue that will take tails unnecessary suffering and ill-treatment place throughout 2019 is the expected consti- of animals can be considered as a cultural tutional reform that will create the so-called expression protected by the Constitution. “National Guard”. Given the apparent mili- tary elements that underlie this public security Hereof, the Chamber underlined that the body, the debate will again put on the judicial achievement of the purpose of said Articles table a fascinating topic: the possible uncon- compensates the infringement of property stitutionality of a constitutional reform. 2018 Global Review of Constitutional Law | 203 Moldova Dr. Anna Fruhstorfer, Humboldt University Berlin and University of Göttingen I. INTRODUCTION by the President’s refusal to sign laws de- spite his constitutional obligation to do so. Analysis of the developments in the Consti- To break this deadlock, the Constitutional tutional Law of Moldova in 2018 illustrates Court started to temporarily suspend the Pre- the trans-formation the political system has si-dent from his duties for several minutes gone through over recent years, both sub- until the Interim President signed the laws or stantively as well as procedurally.1 It also rep- appointed the ministers. This has happened MOLDOVA resents the complex and economically diffi- five times so far, most recently in November cult social reality of the country with a torn 2018. The indi-vidual laws that were blocked QDWLRQDOLGHQWLW\EHWZHHQ(DVWDQG:HVW7KH by President Dodon will be discussed below. complicated separation of power, involving I give preference to these decisions over oth- the rising power of the Constitutional Court er activities of the Court. to mediate between the President and the Parliament to enforce their duties, is analyt- The conflict between the core institutions ically fascinating but highly problematic for of the political system overshadowed other the country’s future. The level of democracy important political and constitutional devel- of the Republic of Moldova has been on a opments. One such development involved negative trajectory for some years now. The EU financial assis-tance. Despite the claim year 2018 was no different and concerned all that the temporary suspension of the Presi- aspects of the political system. Any consti- dent was done to foster the relationship with tutional development that could have had a the European Union, this relationship sig- positive effect on the level of democracy was nificantly deteriorated to a point where EU strangled by an inter-institutional deadlock financial assistance was blocked or signifi- 3 between the President, Prime Minister and cantly reduced. parliamentary majority. Each of the sections below details how the This deadlock, starting in 2017, became one substantive issues continue to grow: identity of the dominant stories in Moldovan poli- conflict, procedural issues and role enforce- tics and remains a big constitutional crisis. ment. The new judicial activism is colliding It started with the refusal of President Igor with presidential interests, and the decisions Dodon from the Socialist Party of the Re- by the Constitutional Court in the inter-insti- public of Moldova (PSRM)2 to confirm the tutional conflict will sub-stantively alter the new Minister of Defense. This was followed political process in the coming years. 1 The Constitutional Court of the Republic of Moldova (CCM) provides important information on the Court in Eng-lish, including a comprehensive documentation of current and past cases and a description of the WYVJLLKPUNZ;OPZJHUILMV\UKVU[OL*V\Y[»Z^LIZP[L#O[[W!^^^JVUZ[JV\Y[TK%(JVTWSL[LKVJ\- mentation of all decisions and the applications for judicial review is available here, 204 | I•CONnect-Clough Center II. MAJOR CONSTITUTIONAL Moldovan ruling elite relying on the Consti- issued by the Court and was in force until tutional Court to help solve inter-institution- the acting President (the head of Parliament) DEVELOPMENTS al conflicts, and preserve its hegemonic sta- appointed the new minister. Yet the consti- tus.8 However, this was a new direction for tutional procedure stipulated by Article 89 Constitutional development in the Republic the Court. The country had experienced an would have been entirely different, requiring of Moldova often centers around two topics: intense inter-institutional im-pass before, in a 2/3 majority in Parlia-ment. A temporary the role of the President of the republic and a 900-day deadlock from 2009-2012 during suspension was thus an invention of the Con- the tension arising from a torn national iden- which the Parliament could not elect a Presi- stitutional Court that set a dan-gerous prece- WLW\EHWZHHQ(DVWDQG:HVW:LWKLQWKHVHWZR dent,9 but the Court was not involved. At that dent. But we should not forget that the Presi- areas, different constitutional developments time, it refrained from substantial activism, dent was in clear violation of his duties when FDQEHREVHUYHGLQWKHODVW\HDUV:KDWLV instead asking the Venice Commission for he refused to promulgate laws. The constitu- so special about 2018 is that in this year, the an opinion on the relevant provisions of the tion only stipulates a suspensive veto right two areas start to overlap strongly. constitu-tion.10 But that changed. ac-cording to Article 93. The role of President in the constitutional In more recent years, the activism of the Court This newly found instrument of temporarily system of Moldova is one of intense strug- has often targeted the presidency, yet the sus- getting rid of the President as a veto player gles. The 1994 constitution failed to estab- pen-sion of the President in October 2017 and has pro-found institutional and legal ram- lish a clear separation of power, with the role again in January and November of 2018 add- ifications, and questions the power of the of President a re-curring theme of constitu- ed a whole new chapter to the already compli- directly elected Presi-dent (Dodon’s direct tional amendments and Constitutional Court cated relations between the President, govern- election is an argument he frequently uses to decisions. As a result, the political discus- ment and parlia-mentary majority. justify his refusal to sign laws he deems un- sion takes on the style of a ping-pong game,4 constitutional). The October 2017 decision going back and forth between a par-liamen- In October 2017, the Moldovan Constitu- also proved not to be a unique occurren-ce— tary and semi-presidential system. In 2016, tional Court suspended the President tempo- the government, as well as members of Par- the game moved back to a semi-presidential rarily. The reason was Dodon’s refusal to ap- liament, started to use this method to handle system.5 This change was not based on a point Eugen Sturza as Minister of Defense, an the disadvantages of so-called cohabitation constitutional amendment but a decision of appointment process that had already started and to pursue their interests. the Consti-tutional Court to declare the 2000 in December 2016. Early in 2017, the Con- amendments unconstitutional.6 At a time stitutional Court had issued an interpretation when the country was reeling from massive III. CONSTITUTIONAL CASES of Article 98 of the constitution, whereby the protests after a corruption scandal and bank President can only reject the nomination of heist in the course of which the country lost Temporarily suspending the President: Im- a cabinet member once.11 Thus, the repeated approximately 1 billion USD,7 the Constitu- mediately following the first presidential refusal to appoint Sturza led the government tional Court showed an un-precedented level election un-der the reinstated constitutional to appeal to the Constitutional Court again. of judicial activism. This activism became order that took place in November 2016, it The Court first decided that the refusal to apparent when the Court decided to declare was unclear how con-frontational the rela- confirm a cabinet nomination is considered a a 16-year-old amendment unconstitutional, tionship between the President, parliamen- violation of the constitution and can lead to a and as we have seen throughout 2018, no tary majority and Prime Minister might be. temporary suspension. This suspension was iso-lated case. It was the start of parts of the Since then, we have seen an “inter-institu- 4 With thanks to Nicole Gallina, who described a similar process in Ukraine as a ping-pong game (see Fruhstor-fer/Hein 2016). Anna Fruhstorfer, ‘Moldova’, in Anna Fruhstorfer and Michael Hein (eds), *VUZ[P[\[PVUHS7VSP[PJZPU*LU[YHSHUK,HZ[LYU,\YVWL-YVT7VZ[:VJPHSPZ[;YHUZP[PVU[V[OL9LMVYTVM7VSP[PJHS:`Z[LTZ (Springer VS, 2016). 5(UUH-Y\OZ[VYMLYº*VUZPZ[LUJ`PU*VUZ[P[\[PVUHS+LZPNUHUK0[Z,ɈLJ[VU+LTVJYHJ`»B MVY[OJVTPUND+LTVJYH[PaH[PVUMVY[OJVTPUN 6 /V[ȋYoYLno.7 (CCM Judgement) of 4 March 2016. 7+HUPLS)YL[[,SSPL2UV[[HUK4POHP7VWZVPº;OL¸IPSSPVUKVSSHYWYV[LZ[Z¹PU4VSKV]HHYL[OYLH[LUPUN[OLZ\Y]P]HSVM[OLJV\U[Y`»ZWVSP[PJHSLSP[L»;OL3VUKVU:JOVVSVM Economics and Political Science, 21 September 2015) 2018 Global Review of Constitutional Law | 205 tional deadlock”12 that has culminated in complaint with the Constitu-tional Court and ties and the Speaker of Parliament, Andrian five temporary suspensions of the President asked it to determine the justifiable circum- Candu, signed the bill into law.17 in the course of a little more than a year be- stances to temporarily release the President cause of the laws described in the follow- and allow the Interim President to do the Every hope of political observers of this be- ing section. These temporary suspensions signing. The President’s refusal was not in ing a unique or at least sparse occurrence were used in 2018 when the President did coherence with the provision of Articles 73 was shat-tered right away. The day after, the not confirm new members of the cabinet and 93, which stipulate his suspensory legis- government appealed to the Court to again and also refused to sign various laws. These lative veto. In its opinion, the Court argued: temporarily sus-pend the President from laws are not necessarily the most important office, because he refused to appoint seven law cases in the jurisdiction, but as they are “that given the imperative nature of Article new ministers. The Constitu-tional Court the key pawn in an intense power struggle 93 of the Constitution, in the case the Par- sided with the government and the Interim between the President, Parliament and the lia-ment repeatedly votes a particular law, President appointed the new ministers.18 Court, it seems only useful to discuss their the President is under the obligation to pro- content briefly. mulgate it, de-spite any doubts in respect of 2. The Carabinieri Troops in November the constitutionality of the adopted law (JCC 2018 1. The amendment to the audio-visual code No. 9 of 14 February 2014). The possibility in January 2018 to submit a complaint to the Constitutional Related to the competences of the presiden- Court to carry out the constitu-tionality re- cy in the area of national security, President On January 4, 2018, the Court decided to view of the law prior to its publication has Dodon asked the Court to review the consti- temporarily release the President of his duties no direct impact on the promulgation pro-ce- tutionality of two laws voted in Parliament when Dodon refused to sign an amendment dures. Thus, in the event of promulgation of regarding reform within the institution of to the broadcasting code of the Republic of the contested law until the delivery by the the “Carabinieri Troops”; namely, their inte- Moldova.13 It was confirmed in Parliament Consti-tutional Court of a ruling in regard gration into the professional police system, on December 22, 2017, after the President thereof, the procedure of a priori control of resulting in a dual police system in Moldo- vetoed it, citing concerns over the constitu- the constitutional-ity of the law continues in va.19 The so-called “Carabinieri Troops” are tionality of the law, in particular with regard the framework of a posteriori control.”16 a group with military character. The Presi- to the freedom of the press.14 The law as such dent initially vetoed the law. He suggest- was not unique in the region, as several coun- This was an important argument the Court ed changes to it, in particular making the tries moved to limit the influence of Russian made, signifying that the President cannot President (not the Prime Minister), on the news broadcasts (arguably limiting disin- actually veto legislation either on procedural recommendation of the Minister of the Inte- formation and pro-Russian propaganda).15 or substantive grounds but can only force an- rior, responsible for the appointment of the But the content of the law was obviously a other debate. In addition, the application for Commander for the General Inspectorate of contentious policy as it targeted the tension judicial review of legislation to the Court by the Carabinieri Troops.20 In his application between the self-proclaimed European-ori- the President—according to this opinion— to the Constitutional Court, President Dodon ented government and the Russian-friendly had no impact on the promulgation proce- referred to Articles 87 and 108 of the Consti- President. Upon Presi-dent Dodon’s refusal GXUH :LWK WKLV WKH &RQVWLWXWLRQDO &RXUW tution as well Law no. 345/2003 on nation- to sign the law, Deputy Serghei Sârbu filed a temporarily relieved the President of his du- al defense (in particular Article 9, Articles 124POHP7VWȵVPº4VSKV]HU7YLZPKLU[0NVY+VKVU:\ZWLUKLKI`[OL*VUZ[P[\[PVUHS*V\Y[»4VSKH]PHU7VSP[PJZ 6J[VILY #O[[WZ!TVSKV]HUWVSP[PJZ JVT TVSKV]HUWYLZPKLU[PNVYKVKVUZ\ZWLUKLKI`[OLJVUZ[P[\[PVUHSJV\Y[%HJJLZZLK 1HU\HY` 13 Avizul (CCM Opinion) no. 2 and Sesizarea (Referral by Deputy) 1f concerning Law 257 [2018]. 14 .HIYPLS3Lȴº94VSKV]H!+VKVUH[YPTPZSH*\Y[LH*VUZ[P[\[PVUHSHSLNLHHU[PWYVWHNHUKHWLJHYLHYÄ[YLI\P[ZHVWYVT\SNL»/V[5L^ZYV (4 January 2018) #O[[WZ!^^^OV[UL^ZYVZ[PYPLZLU[PHS TVSKV]HKVKVU[YPTPZJ\Y[LHJVUZ[P[\[PVUHSHSLNLHHU[PWYVWHNHUKHJHYL[YLI\P[WYVT\SNLO[T%HJJLZZLK February 19. 15 Georgia, Ukraine, Lithuania, Latvia, and Estonia are among those countries that pursued a similar restriction of state-backed broadcasting from Russia. Liliana Barbarosie and Robert Coalson, ‘Banning Russian TV, Moldova Is Latest Hot Spot Fighting Kremlin Disinformation’, 9-,935L^Z (1 February 2018) 206 | I•CONnect-Clough Center 24-25 and Article 29), which stipulate the 4. Land transfer to build the U.S. Embassy portant for the constitutional development in presidential role in matters of national de- in November 2018 the country, yet did not receive widespread fense. As expected, the Constitutional Court attention—not even in the local media, and declared the applica-tion for judicial review Parliament repeatedly sent a law regarding certainly not beyond Moldova. One exam- inadmissible. In its reasoning, the Constitu- the transferal of real estate property (the ple is the application for judicial review no. tional Court emphasized that Article 87 of former Re-publican Stadium) to the U.S. to 108. In it, President Dodon asked to assess the constitution does not give the President build their new embassy. President Dodon the constitutionality of several articles re- unlimited power to declare war or gen-eral asked the Constitu-tional Court to declare garding which institutions share/have the re- mobilization but that he/she can only do so this law unconstitutional. Aside from the sponsibility of national security, and deemed upon prior confirmation of Parliament. Thus, misappropriation of Republican Stadium, unconstitutional the parliamentary decision the appointment power with regard to the the President also referred to problems with from June 19, 2018, on the National Securi- Carabinieri Troops was not automatically a several private property constructions within ty Strategy and Action Plans for 2018-2022. presidential competence.21 the designated area. In its decision no. 148, In its judge-ment no. 33 on December 21, the Court declared the application for judi- 2018, the Court explicitly defined the rele- 3. Amendment of the labor code in Novem- cial review inadmissible.24 vant competences.27 It ruled that Parliament ber 2018 has an exclusive legislative competency over 5. New audio-visual code in November 2018 matters of national defense, national securi- At the same time, the President asked the ty policies, strategies and plans, while the Court to declare an amendment to the Labor After amending the audio-visual code in Jan- President does not have any responsi-bilities Code un-constitutional. Law no. 203 to amend uary 2018, Parliament also prepared a new on these matters and can only take actions Article 111 of the Labor Code establishes a law on the audio-visual code that was sup- and measures according to the laws. The “Europe Day” on May 9 alongside (not in- ported by the Council of Europe and draft- deci-sion furthermore declared the strategy stead of) Great Victory Day.22 But the Pres- ed with the assis-tance of the Joint EU-CoE adopted by Parliament on June 19, 2018, ident claimed that Great Victory Day should Project “Promoting Media Freedom and Plu- constitutional.28 already represent the Moldavian State and cit- ralism in the Republic of Moldova”.25 But the izens—which are not part of the EU—and that President deemed the law unconstitutional. 7. Minorities and Russian as an interethnic the introduction of paragraph g1 to the Labor It states similar provisions as the amendment communication language Code was unconstitutional. In his application to the code in January 2018. After he vetoed Disputes over the identity of the polity are for judicial review, the President listed several the law and it was confirmed in Parlia-ment, one of the most important issues in the Mol- reasons for this, primarily appealing to cultural he referred it to the Constitutional Court for dovan po-litical discourse. The ideologized differences and wanting to avoid tarnishing or an abstract constitutional review.26 In its de- approach towards topics such as the official somehow reducing the existing re-membrance ci-sion, the Court declared the application language drives the political debate. The het- day. In a legal sense, the addition to the Labor for judicial review inadmissible. As part of a erogeneity and its resulting disunity of the Code was not necessarily important; it also five-law package, this new audio-visual code different population groups already became did not change the fact that May 9 is an of- was signed by the Interim President after the apparent before Moldovan independence. ficial holiday. But it was another pawn in the decision of the Court. But the variety of language laws and the in-stitutional crisis between the self-declared politically supported strengthening of iden- EU-friendly government and parliamentary 6. Judicial review on national security tification with the Romanian language and majority and the Russian-oriented President. Romania resulted in a substantive ethnic Again, the Constitutional Court declared the Next to the decisions and application for polarization. This was only exacerbated by a application for judicial review filed by the judicial review described earlier, the Court so-called frozen conflict, namely in Transn- President inadmissible.23 also decided on different issues that were im- istria.29 These “competing local identities”30 21 Decizia (Decision) no. 146 [2018]. 22 3HIVY*VKL 4HYJO#O[[W!SL_Q\Z[PJLTKTK %HJJLZZLK 1HU\HY` 23 Sesizarea (application for judicial review) no. 178a, Decizia (Decision) no. 147 [2018]. 24 Sesizarea (application for judicial review) no. 179a, Decizia (Decision) no. 148 [2018]. 25 Council of Europe, ‘New audiovisual legislation elaborated with support of the Council of Europe, adopted by Moldovan Parliament’ (Council of Europe Portal 18 October 2018) 2018 Global Review of Constitutional Law | 207 are repre-sented by an ongoing constitution- IV. LOOKING AHEAD looms large over the upcoming parliamenta- al struggle on the official language. Article ry elections and the ensuing formation of a 37 13, para 1 of the 1994 constitution stipulates In 2019, the elections to the national Parlia- new government. the official language to be Moldovan with ment will become an important litmus test a Latin alphabet (distin-guishing it from for Moldo-van democracy. The widespread V. FURTHER READING Romanian). Article 13, para 2 specifies the frustration among Moldovan citizens with recognition and guarantee of the pro-tection, its political leader-ship extends to all sides of Vladimír Baar and Daniel Jakubek, ‘Divided preservation and freedom of use of Russian the political spectrum. The decision between National Identity in Moldova’ [2017] JN- and other languages. This issue has remained DQRULHQWDWLRQWRZDUGVWKH:HVWRUWKH(DVW MLP 11.1 important up until today, for example with will again be a big part of the election cam- the 2013 decision of the Constitutional Court paigns, but will be of little conse-quence. 1DGMD 'RXJODV DQG 6WHIDQ :ROII µ(FR- giving the text of the independence declara- :LWK WKH 5XVVLDQ SUHVHQFH LQ 7UDQVQLVWULD nomic confidence-building measures and tion in which Romanian is described as the and the increasing frustration of the Europe- conflict settle-ment: The case of Transn- national language primacy over the Consti- an Union and other international actors with LVWULD¶ =2,6 :RUNLQ3URJUHVV tution.31 Despite several attempts to change the stalled reforms, this friend-or-foe mind- https://en.zois-berlin.de/fileadmin/media/ the Constitution, Article 13 was not suc- set seems like a distraction from the substan- 'DWHLHQ:RUNLQ3URJUHVV:RUNBLQB3UR- cessfully amended until 2018. Reviving this tial challenges Moldova faces. gress_1b_2018.pdf > ac-cessed 15 February discussion, six parliamentary deputies asked 2019 the Constitutional Court to assess the consti- Probably the most important challenge tutionality of several individual laws. Their ahead of the country is the need for judicial Judithanne McLauchlan Scourfiled, ‘The reasoning stated that all the phrases mention- reform. This long-overdue reform stagnated impact of the European Court of Human ing Russian as an interethnic communication in 2017. In 2018, the European Union For- Rights on Jus-tice Sector Reform in the Re- lan-guage, and as a language for the official eign Affairs Council prepared a draft rec- public of Moldova’ [2018] JLIA 4 documents, were unconstitutional and that ommendation urging the Moldovan Govern- the individual provisions in the five differ- ment to increase its fight against corruption 'DZQ :DOVK µ0ROGRYD :HDN $XWRQRP\ ent laws ranging from 1989 to 2001 had to and, in particular, to restore public trust in Central Government Neglect, and Mixed be changed.32 In their ap-plication for judi- the judicial system by increasing judicial ,QWHUQDWLRQDO,PSDFW¶LQ'DZQ:DOVK HG cial review, they also argued that all nation- autonomy.35 The process of seating a judge Territorial Self-Government as a Conflict al minorities should have the right to speak (appointment) and the President’s involve- Management Tool (Palgrave Macmillan, their own languages (Bulgarian, Ukrainian, ment and ability to unseat or remove a judge 2018) Gagauz, etc.) and not Russian. Although this (tenure) are vulnerable and have in the past is provided for with the Moldovan Language been misused. This lack of any substantive Law, Russian still maintains its status as the reform when it comes to the judiciary and official language of communication within the fight against corrup-tion even led the Eu- public services and official documents.33 In ropean Union to reduce its financial support its judgement, the Court declared the law re- for judicial reforms.36 This combination of a garding the use of languages obsolete, and crippled rule of law, a stalled process for re- two other articles unconsti-tutional.34 form of the judiciary and increasing inter-in- stitutional conflict is curbing democracy. It 29 Zabarah (n 28) 184183, 184. 30 Roper (n 29), 513. 31 Ria Novosti (n 30), accessed 15 February 2019. 32 Sesizsrea (application for judicial review) 9a, /V[ȋYoYLH (Judgement) no. 17 [2018]. 33 /V[ȋYoYLH(Judgement) no. 17 [2018]. 34 /V[ȋYoYLH (Judgement) no. 17 [2018]. 35 -VYLPNU(ɈHPYZ*V\UJPSº,\YVWLHU1VPU[+L]LSVWTLU[*VVWLYH[PVU:[YH[LN`1VPU[7YVNYHTTPUN+VJ\TLU[MVY[OL9LW\ISPJVM4VSKV]H»5V]LTILY #O[[WZ!JKULLHZMWÄZ[LJOLJL\YVWHL\JKUMHYM\[\YL52WK?4 ]9M?)1 208 | I•CONnect-Clough Center New Zealand Andrew Geddis, Professor – Faculty of Law, University of Otago MB Rodriguez Ferrere, Senior Lecturer – Faculty of Law, University of Otago I. INTRODUCTION beyond the bounds of competence accorded to the Parliament, or for trenching on funda- Following the election in November 2017 mental individual rights guarantees. Ortho- of a new Labour-New Zealand First Gov- dox constitutional understandings simply do ernment supported by the Green Party, 2018 not permit New Zealand’s courts such a role. was something of a consolidating year in Instead, tensions emerge over the form that “comity” between the branches should take; NEW ZEALAND New Zealand’s parliamentary democracy. This new Government spent much of the in particular, the degree to which judicial de- year coming to terms with the fact that it cision-making should avoid matters that are had (somewhat unexpectedly) won office more properly “parliamentary” in nature. while the now-opposition National Party also grappled with its new status. As such, In 2018, variants of this question were ad- constitutional developments largely came dressed in three rulings from the Supreme via the judiciary, with some important (albeit Court regarding the courts’ jurisdiction to restrained in their reach) decisions handed grant relief. As these cases’ details are dis- down by the nation’s Supreme Court. These cussed in the following section, only a brief decisions touched on what are the two main summary of each is necessary here. 1JƗWL 1 issues in New Zealand’s contemporary con- :KƗWXD ƿUƗNHL 7UXVW Y $WWRUQH\ *HQHUDO stitutional discussions: the relationship of held that courts may issue declarations re- the judicial and legislative branches and the garding the Crown’s actions during Treaty of ULJKWVRIWKHLQGLJHQRXV0ƗRULSHRSOHXQGHU :DLWDQJLVHWWOHPHQWQHJRWLDWLRQVZLWK0DRUL WKH7UHDW\RI:DLWDQJL tribes, despite such settlements invariably being recorded in parliamentary enactments upon being finalised. This decision reversed II. MAJOR CONSTITUTIONAL previous rulings that any judicial interven- DEVELOPMENTS tion in such settlement discussions is con- stitutionally inappropriate due to their close Any constitutional arrangement involving connection with the legislative process. some form of separation of powers inevita- Attorney-General v Taylor2 affirmed that a bly will generate inter-institutional tensions. judicial “declaration of inconsistency” is an In New Zealand, such tensions commonly available remedy under the New Zealand emerge through an ongoing negotiation of Bill of Rights Act 1990 (NZBORA) with the relationship between a Parliament that re- respect to legislation that unjustifiably lim- mains theoretically sovereign in its command its guaranteed rights. Although such a dec- over the nation’s laws, and courts that uphold laration cannot affect the ongoing validity rule of law values. Unlike systems deriving or application of the legislation in question, from a higher law constitutional document, it represents an express curial judgment on this relationship does not involve questions the substance of Parliament’s enacted pol- of whether and when the judiciary will in- icy. And Ngaranoa v Attorney-General3 validate legislative enactments for straying 1 [2018] NZSC 84. 2 [2018] NZSC 104. 3 [2018] NZSC 123. 2018 Global Review of Constitutional Law | 209 cautiously indicated, albeit without finally of the rule of law has a somewhat fragile foot- cording his own view that “I now give much deciding, that legislation passed other than ing in New Zealand’s predominantly political less weight to the absolute sovereignty of Par- in accordance with relevant procedural re- constitutional culture. Consequently, when the liament, and … believe there needs to be a quirements contained in a statute (a “man- courts expand their jurisdictional remit they VWURQJHUFKHFNDQGEDODQFHRQLW´:KHWKHULW ner and form” provision) would be invalid. face real legitimacy problems. In the absence marks a longer-term shift in inter-institutional This hint that the judiciary will enforce such of strong societal consensus that legal forms relationships remains to be seen.10 provisions involves the courts determining of accountability ought to trump political pro- the necessary prerequisites for Parliament to cesses, what authorises such assertions of the III. CONSTITUTIONAL CASES properly enact “law”. MXGLFLDOUROHLQWRDUHDVSUHYLRXVO\FORVHGWRLW" 1. Attorney-General v Taylor: Declarations Two points may be made about this trium- Nevertheless, the second notable point about of Inconsistency virate of cases. First, the Court’s approach these three decisions is the political branch- in each was only cautiously expansionist. es’ sanguine response to them. Previous In 2015, Mr Taylor successfully obtained a :KLOHWKHPDMRULW\LQ1JƗWL:KƗWXDƿUƗNHL extensions of judicial oversight sometimes declaration from the High Court11 that New Trust found declarations could be made on have provoked sharp rebuke by members Zealand’s legislative ban on all prisoners some matters before it, it refused to do so of the executive and legislature. So when in voting is inconsistent with the NZBORA, s on others it regarded as being too closely 2003 the Chief Justice cautiously suggest- 12 right to vote. The Court of Appeal upheld related to legislative proceedings. Thus, the ed that parliamentary sovereignty may be granting this declaration.12:KLOHWKHOHJLV- 6 Court recalibrated the line between those subject to some limits of competency, the lation’s ongoing validity or application was 7UHDW\ RI :DLWDQJL VHWWOHPHQW PDWWHUV WKDW then-Attorney-General responded with an unaffected by the declaration, the Crown are solely for parliamentary consideration orthodox Diceyan defence and warning that nevertheless chose to appeal its issuance to and those that remain amenable to judicial unelected judges should avoid politicising the Supreme Court. scrutiny rather than obliterating it complete- their role.7 And in 2014, Parliament legislat- ly. Equal-y, the majority in Taylor found the ed to expressly reverse the holdings of two That appeal was not based on any disagree- jurisdic-tion to grant declarations of incon- judicial decisions that narrowed the ambit of ment with the lower courts’ substantive con- 8 sistency on a narrowly defined extension of parliamentary privilege. In contrast, the po- clusion on the rights question. The Crown the courts’ general power to provide a reme- litical branches expressed no disquiet at all conceded from the outset that a blanket ban dy in the case of rights infringements.. And in relation to 2018’s Court rulings. Indeed, on prisoner voting imposes an unjustifiable Ngaranoa only noted that “the pendulum has the Government announced even before the limit on the s 12 right. Rather, the Crown swung” towards the position that a parlia- Supreme Court handed down its Taylor deci- argued that as the NZBORA contains no mentary failure to comply with manner and sion that it intends legislating to “provide a express power to grant a “declaration of in- form requirements will result in invalid leg- statutory power for the senior courts to make consistency”, it simply is not an available 4 islation without finally deciding the matter. declarations of inconsistency under the Bill judicial remedy.13 Consequently, the appeal of Rights Act, and to require Parliament to required the Court to consider both whether 9 :HPD\XQGHUVWDQGWKLVFDXWLRQDVUHIOHFWLQJ respond”. This apparently relaxed attitude a declaration of inconsistency represents a the somewhat unstable constitutional ground towards an expanded judicial role perhaps real remedy for a rights breach and if grant- being trod. Each decision may be justified reflects the new Justice Minister’s claim that ing such a remedy is consistent with the ju- through a systemic need to ensure adequate “The Attorney-General … and I resolved dicial function. rule of law mechanisms exist to police public some time ago that we are determined that power and respond to its improper use. How- ours will be a government that respects the Two members of the Court, Susan Glaze- 5 ever, as Matthew Palmer suggests, the concept rule of law, and will not over-reach” while re- brook and Ellen France JJ, traversed earlier 4 5NHYVUVH]([[VYUL`.LULYHS [2018] NZSC 123 [70]. 5 Matthew Palmer, ‘New Zealand’s Constitutional Culture’ (2007) 22 NZULR 565, 588-589. 6 Dame Sian Elias, ‘Sovereignty in the 21st Century: Another Spin on the Merry-Go-Round’ (2003) 14 PLR 148. 7 Hon Michael Cullen, ‘Parliamentary Sovereignty and the Courts’ [2004] NZLJ 243. 87HYSPHTLU[HY`7YP]PSLNL(J[ZZJ K 9 Hon Andrew Little and Hon David Parker, ‘Government to provide greater protection of rights under the NZ Bill of Rights Act 1990’, 26 February 2018 210 | I•CONnect-Clough Center Court decisions that emphasised the impor- dissented on the basis that “it is … problem- electors or to vote”. The High Court20 and tance of having some form of effective ju- atic whether a declaration of inconsistency is Court of Appeal21 found that this provision dicial response available when confronted really a remedy and, if it is, whether it is an only encompasses the age at which people with NZBORA inconsistent exercises of effective remedy”.18 Its grant does not vin- may enroll to vote and none of s 74’s oth- public power.14 For their honours, nothing dicate a rights breach as “a declaration binds er qualifications to vote. On further appeal, in the NZBORA then gainsays this general no-one in relation to future actions and has four members of the Supreme Court agreed “no right without a remedy” approach when no impact on the victim’s position”.19 And with this conclusion, with Elias CJ issuing a it comes to issuing a formal declaration of for their honours, the courts should not in- strong dissent. inconsistency.15 Doing so also is compatible vent a jurisdiction for themselves to give with the judicial function, as it “is a formal such an ineffective non-remedy. The majority did so having regard to the natu- declaration of the law and, in particular, of ral interpretation of the statutory provision,22 the effect of the 2010 Amendment on the re- 2. Ngaranoa v Attorney-General: Manner its legislative history23 and the purpose for spondents’ rights and status. It provides for- and Form Provision its enactment.24 In a nutshell, the majority mal confirmation that they are persons who believed the entrenchment provision could are disqualified to vote by a provision incon- In a separate challenge, Mr Taylor and sever- be read only one way, with Parliament quite sistent with their rights”.16 al other prisoners also claimed that the 2010 clearly intending that it attach to but one nar- legislation was invalidly enacted because of row aspect of voter qualifications. Given that Consequently, their honours presented the a failure to comply with the Electoral Act context, there was no room for the NZBO- declaratory power as little more than the nat- 1993 (NZ), s 268. This manner and form RA s 6 interpretative mandate25 to operate ural extension of the ratio of existing case provision identifies various statutory provi- in order to expand the protection afforded law. Glazebrook and France JJ also express- sions governing aspects of New Zealand’s to the right to vote. Nor did the fundamen- ly distanced themselves from the Court of electoral process (the “reserved provisions”) tal importance of that right otherwise justify Appeal’s quite expansive discussion of the and states that they may only be altered by an expansionary reading of s 268’s ambit in basis for such declarations, which had:17 either a vote of 75 percent of all MPs, or a order to safeguard rights from majoritari- majority vote at a referendum. The immedi- an interference. Therefore, as the 2010 law canvassed the relationship between the ate question for the courts was whether the change did not amend a reserved provision, political and judicial branches of gov- 2010 legislation had amended one of these no question as to its validity arose. ernment and the role of the higher courts reserved provisions. If so, the prisoner chal- under the New Zealand constitution. As lengers alleged the amendment was invalid Furthermore, the majority refused to even is apparent, we have not found it neces- as the necessary parliamentary majority had fully commit to the consequences that would VDU\WRXQGHUWDNHDVLPLODUH[HUFLVH:H not been obtained. follow from a failure to comply with s 268. are accordingly not to be taken as en- It noted only that:26 dorsing the Court of Appeal’s approach Central to the case was the interpretation of towards these matters. s 268(1)(e), which reserves: “section 74, and The enforceability of entrenchment pro- the definition of the term adult in section visions like s 268 has been the subject Elias CJ wrote separately, largely concurring 3(1), and section 60(f) so far as those pro- of debate over a number of years both with Glazebrook and France JJ’s reasoning. visions prescribe 18 years as the minimum in New Zealand and in comparable ju- ,QFRQWUDVW:LOOLDP 14 Taylor v Attorney General [2018] NZSC 104 [29]-[39]. 15 Taylor v Attorney General [2018] NZSC 104 [40]-[51]. 16 Taylor v Attorney General [2018] NZSC 104 [53]. 17 Taylor v Attorney General [2018] NZSC 104 [66]. 18 Taylor v Attorney General [2018] NZSC 104 [134]. 19 Taylor v Attorney General [2018] NZSC 104 [139]. 20 Taylor v Attorney-General [2016] NZHC 355, [2016] 3 NZLR 111 (HC). 21 5NHYVUVH]([[VYUL`.LULYHS [2017] NZCA 351, [2017] 3 NZLR 643 (CA). See Andrew Geddis, ‘Judicial enforcement of New Zealand’s reserved provisions’ (2017) 28 PLR 289. 22 5NHYVUVH]([[VYUL`.LULYHS[2018] NZSC 123 [36]-[48]. 23 5NHYVUVH]([[VYUL`.LULYHS[2018] NZSC 123 [49]-[58]. 24 5NHYVUVH]([[VYUL`.LULYHS[2018] NZSC 123 [59]-[64]. 25 This reads: “Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be WYLMLYYLK[VHU`V[OLYTLHUPUN¹ 26 5NHYVUVH]([[VYUL`.LULYHS[2018] NZSC 123 [70]. 2018 Global Review of Constitutional Law | 211 the pendulum has swung in favour of 1JƗWL :KƗWXD ƿUƗNHL DSSOLHG IRU MXGLFLDO power when making future decisions.30 The enforceability but we would prefer that review of the decisions to transfer proper- PDMRULW\ UHLQVWDWHG WKH KDSnj¶V VWDWHPHQW RI the issue to be resolved after argument ty, seeking declarations from the Court that claim to the extent that it focused on its rights on the point. they were contrary to its legal rights arising qua these future issues (and not specifically from the 2006 agreement, the 2012 settle- with 2015-2016 decisions), and remitted it to The problem is that, in keeping with the ment legislation, customary law and the the High Court for a substantive hearing.31 “pendulum [swing] in favour of enforceabil- Treaty itself, and thus beyond scope of the ity”, the Crown expressly had conceded that Crown’s power. The High Court struck out In a long, largely concurring decision, Elias a failure to comply with s 268 renders legis- 1JƗWL:KƗWXDƿUƗNHL¶VFODLPDQGWKH&RXUW CJ was far more bullish, holding that “recent lation invalid. As such, it is difficult to see of Appeal dismissed an appeal against that restatements of the principle [of non-inter- where “argument on the point” is going to ruling. Both lower courts agreed that the ference with Parliamentary proceedings] come from in this or any future case. Crown’s decisions were non-justiciable; are unacceptably broad”.32 Indeed, the Chief since the proposal was to enact them into Justice went as far as rejecting the proposi- 1JƗWL:KƗWXDƿUƗNHL7UXVWY$WWRUQH\ IRUFH 1JƗWL :KƗWXD ƿUƗNHL¶V FODLP HVVHQ- tion that “matters contemporaneously before General: 5HYLHZLQJ7UHDW\RI:DLWDQJL6HW- tially challenged proposed legislation and Parliament are non-justiciable”,33 and held tlements thus the principle of non-interference with as long as the Court does not preclude Par- Parliamentary proceedings was engaged. liament’s consideration of a matter, it may 1JƗWL :KƗWXD ƿUƗNHL LV D KDSnj VXEWULEH consider that same matter and the impact on LQ 7ƗPDNL 0DNDXUDX RU $XFNODQG 1HZ The question for the Supreme Court was the present rights of claimants. Such consid- Zealand’s largest city. In 2006, as part of its ZKHWKHU 1JƗWL :KƗWXD ƿUƗNHL¶V FODLP GLG eration is not an interference with parliamen- negotiations to settle its claims for historical challenge proposed legislation or instead tary proceedings, nor is it an enlargement of EUHDFKHV RI WKH 7UHDW\ RI :DLWDQJL 1JƗWL seek clarification and recognition of its the Court’s constitutional function.34 In the :KƗWXDƿUƗNHLHQWHUHGLQWRDQDJUHHPHQWLQ rights.27 Since settlements between iwi and FDVH DW KDQG 1JƗWL :KƗWXD ƿUƗNHL KDG D principle with the Crown. The terms of that KDSnjLQYDULDEO\OHDGWROHJLVODWLRQVXFKLV- continuing interest in how the Crown should agreement raised the ire of other iwi (tribes) sues have come before the courts before. conduct itself; it was not attempting to in- DQGKDSnjZKRKDGRYHUODSSLQJFODLPVRYHU The difficulty is determining the point where junct Parliament, and thus the lower courts the area in question, and so the Crown en- a (permissible) challenge to the Crown’s de- had mischaracterised its claim: she would tered into another series of agreements which cision to enter into a settlement becomes a have allowed the appeal in its entirety.35 provided a process for addressing their con- (impermissible) challenge to Parliament’s FHUQV HYHQWXDOO\ LPSOHPHQWHG E\ WKH 1JƗ right to enact the terms of that settlement So while not entirely clarifying the limits 0DQD:KHQXDR7ƗPDNL0DNDXUDX&ROOHF- as legislation. After traversing past cases on of its power to consider matters engaged WLYH 5HGUHVV $FW 0HDQZKLOH 1JƗWL this issue, the Supreme Court demurred from by proposed legislation, the Supreme Court :KƗWXD ƿUƗNHL KDG VHWWOHG LWV FODLPV ZLWK “resolving the exact metes and bounds” of confirmed the principle that even where leg- the Crown and that agreement was imple- the principle of non-interference in parlia- islation proposes to alter the rights of a par- PHQWHGE\WKH1JƗWL:KƗWXDƿUƗNHL&ODLPV mentary proceedings.28 Crucially, however, ty, the judiciary is not necessarily prevented Settlement Act 2012. Against that legislative they did limit the principle’s effect in the IURPFRQVLGHULQJWKRVHULJKWV:KLOHWKHGH- background, in 2015 and 2016 the Crown present proceedings: just because a decision cision ought to have impact beyond Treaty made decisions to transfer property to two of the executive can be predicted to result jurisprudence, it has particular pertinence KDSnjFRYHUHGE\WKH&ROOHFWLYH5HGUHVV$FW in future legislation did not oust the Court’s IRU WKLV DUHD :LWKRXW WKH FRPSOHWH DELOLW\ with a view to settling Treaty claims with jurisdiction.29 The potential for future settle- to shield its decisions from review by stat- WKRVHKDSnj7KHWUDQVIHURIWKHSURSHUW\UH- PHQWVZLWKRWKHULZLDQGKDSnjPHDQWLWZDV ing they are subject to future parliamentary quired authorising legislation. LPSRUWDQWWRFODULI\1JƗWL:KƗWXDƿUƗNHL¶V approval, the Crown’s approach to “over- rights and the constraints on the Crown’s lapping claims”—already the subject of an 27 5NȊ[P>OȊ[\HǰYȊRLP;Y\Z[]([[VYUL`.LULYHS[2018] NZSC 84 [34]. 28 5NȊ[P>OȊ[\HǰYȊRLP;Y\Z[]([[VYUL`.LULYHS [2018] NZSC 84 [46]. 29 5NȊ[P>OȊ[\HǰYȊRLP;Y\Z[]([[VYUL`.LULYHS [2018] NZSC 84 [46]. 30 5NȊ[P>OȊ[\HǰYȊRLP;Y\Z[]([[VYUL`.LULYHS [2018] NZSC 84 [53]. 31 5NȊ[P>OȊ[\HǰYȊRLP;Y\Z[]([[VYUL`.LULYHS[2018] NZSC 84 [50]-[66]. 32 5NȊ[P>OȊ[\HǰYȊRLP;Y\Z[]([[VYUL`.LULYHS[2018] NZSC 84 [113]. 33 5NȊ[P>OȊ[\HǰYȊRLP;Y\Z[]([[VYUL`.LULYHS[2018] NZSC 84 [113]. 34 5NȊ[P>OȊ[\HǰYȊRLP;Y\Z[]([[VYUL`.LULYHS[2018] NZSC 84 [116]. 35 5NȊ[P>OȊ[\HǰYȊRLP;Y\Z[]([[VYUL`.LULYHS[2018] NZSC 84 [127]. 212 | I•CONnect-Clough Center XUJHQW KHDULQJ EHIRUH WKH :DLWDQJL7ULEX- The High Court held that the Department had restatement of the potential power of Treaty nal36 —likely will come under even greater committed an error of law, but the Court of principles, and may force decision-makers scrutiny. Appeal reversed that finding. The Supreme bound by similar statutory obligations to al- Court agreed with the High Court: the De- ter their processes in order to properly give 1JƗL7DLNL7ƗPDNL7ULEDO7UXVWY0LQLVWHU partment’s refusal to consider the econom- effect to those principles. of Conservation: Interpreting the Principles ic benefit to an iwi with mana whenua ran RIWKH7UHDW\RI:DLWDQJL contrary to previous case law and the prin- IV. LOOKING AHEAD ciple of active protection under the Treaty This decision of the Supreme Court also in- RI:DLWDQJL:KLOHVRIWKH&RQVHUYDWLRQ Perhaps the most interesting development YROYHG 7ƗPDNL 0DNDXUDX MXGLFLDO UHYLHZ Act did not operate in a vacuum and there in 2019 will be the announcement of the de- DQGWKH7UHDW\RI:DLWDQJLEXWLQVWHDGIR- were many factors to take into account when tails of the Government’s proposal to amend cused on the application of the Treaty’s prin- making such concession decisions, the De- the NZBORA to “provide a statutory power ciples. The focus of the case was a decision partment failed to give it proper consider- for the senior courts to make declarations by the Department of Conservation to grant ation and was thus in breach of its statutory of inconsistency under the Act, and to re- 39 concessions to two commercial operators obligations. The Court went on to reject the TXLUH 3DUOLDPHQW WR UHVSRQG´ :KLOH LQIRU- to run tours to and on two motu (islands) in argument that this breach was not material mal consultation has taken place throughout Auckland’s Hauraki Gulf, which are part of to the outcome: while the Court held that s 4 2018, there is no firm indication as to what the Crown-owned conservation estate. The GLGQRWSURYLGHDYHWRWR1JƗL7DLLQFRP- the Government has in mind. In particular, Department made those concessions using mitting the breach, the Department did not it is not clear how Parliament might be “re- its powers under Conservation Act 1987, s put itself in the position to properly consider quired” to respond to a judicial ruling that 4, of which states: “This Act shall so be in- the iwi’s submission, and thus it ought to re- does not affect the validity of the relevant 40 terpreted and administered as to give effect consider its decision. In a dissenting judg- piece of legislation. Nevertheless, the pro- WRWKHSULQFLSOHVRIWKH7UHDW\RI:DLWDQJL´ PHQW:LOOLDP 36 ‘Overlapping claims probed at urgent Waitangi inquiry’ (9HKPV5L^ALHSHUK, 13 November 2018) 2018 Global Review of Constitutional Law | 213 Nigeria Solomon Ukhuegbe, Director – Supreme Court of Nigeria Project, Nigeria $*%$.:$6//37RURQWR&DQDGD Gabriel O. Arishe, Associate Professor – University of Benin, Nigeria I. INTRODUCTION Given the initial hype about the ascension of the APC in consolidating democratic prac- The ascension of the major opposition par- tices, the reverse experienced in 2018, in- ty, the All Progressives Congress (APC), dicative of a desperation to hold onto power, 3 into government in 2015 was considered an reminisces “democratisation backwards”. improvement in the key indicators of liberal An election, or the mere existence of elect- democracy. Early manifestations of dictator- ed government, critical as it is, is merely NIGERIA ship were excused because the government the starting point in the quest for democ- 4 was new. But recent developments point to a racy. :KHUHWKHLPSRUWDQWYDULDEOHVOLNHD populist authoritarianism to the detriment of free press, free and fair elections, respect for democracy and the citizens.1 The violations freedom of thought, freedom of association of the minimum requirements for the con- and opposition rights, and equality before duct of transparent governorship elections the law are not improved upon, democra- in the states of Ekiti and Osun do not only cy loses essence and soon authoritarianism UHÀHFWDJURZLQJµJDSEHWZHHQHOHFWRUDODQG takes hold of the polity. A fact that the recent liberal democracy’2 but also a possible re- FRQVWLWXWLRQDOGHYHORSPHQWV FRQ¿UP LV WKDW lapse into dictatorship. opposition success at the polls does not by itself lead to the entrenchment of democracy. :KLOH WKH QXPEHU RI UHJLVWHUHG SROLWLFDO Rather, opposition parties when in govern- parties grew to ninety-one, transparent elec- ment are susceptible to the allures of abuse toral process, separation of powers, rule of of power and political dominance. Since law, judicial independence, and other mech- democracy in its simplest form is a system anisms necessary to secure the continuing of institutions, rules, and procedures for the popular control and public accountability exercise of power based on the consent of of government suffered reverses. The insti- the people, a consolidated democracy is one tutional protection of democracy, such as in which these arrangements develop into the legislature, the courts, and civil society autonomous institutions governed by jus- 5 groups, was intimidated, and procedural ticiable rules. It is increasingly becoming safeguards such as restraint in the exercise indisputable that democracies become con- of public power, political tolerance, and due VROLGDWHGRQO\ZKHQDOOVLJQL¿FDQWHOLWHVZKR process of law weakened. are major players and an overwhelming pro- portion of citizens abide by stipulated rules.6 1 Michael Wahman, ‘Opposition Coalitions and Democratisation by Elections’ (2013) 48 .V]LYUTLU[ Opposition 3. 2 Larry Diamond, Developing Democracy: Toward Consolidation (Johns Hopkins University Press, 1999) 10. 3 Richard Rose and Doh Chull Shin, ‘Democratisation Backwards: The Problem of Third-Wave Democra- cies’ (2001) 31 )YP[PZO1V\YUHSVM7VSP[PJHS:JPLUJL 331-354, 332. 4 Terry Karl, ‘Imposing Consent: Electoralism versus Democratisation in El Salvador’, in Paul W. Drake and Eduardo Silva (eds.), ,SLJ[PVUZHUK+LTVJYH[PZH[PVUPU3H[PU(TLYPJH *LU[YLMVY0ILYPHU 3H[PU (TLYPJHU:[\KPLZ 214 | I•CONnect-Clough Center II. MAJOR CONSTITUTIONAL There were a series of events which sug- a previous review, the futility of both a con- gested interference and intimidation of the stitutional proscription and judicial sanction DEVELOPMENTS National Assembly in the year under review. against the practice was explained.13 This is The National Assembly comprises the Senate SULQFLSDOO\EHFDXVHÀRRUFURVVLQJUHPDLQVD 1. Autonomy of the National Assembly (109 members, selected three per state) and mechanism for consolidating, and recently, the House of Representatives (comprising ascending to power in Nigeria. The ruling Separation of powers is an essential ele- 360 members elected by electoral districts APC ascended to power partly because of ment in constitutional thought and a useful delineated by population). On April 18, the the defection of lawmakers and governors guide for institutional design.7 From Locke plenary session of the Senate was disrupted from the then-ruling PDP into its fold. In to Montesquieu, separation of powers is nec- by invaders who seized and took away the like manner, on July 24, 2018, fourteen sen- essary for the promotion of political liberty mace but it was subsequently recovered by ators and thirty-seven members of the House and the prevention of autocracy. Locke’s the police. However, no arrest has been made of Representatives crossed from the ruling three characteristic innovations in institu- even though the entire event was captured on APC to the main opposition PDP. In what tion-planning are “civil” government, a su- camera and Senator Ovie Omo-Agege, who may have been an extension of the defection preme “legislative” power coupled with a was on suspension, was widely suspected to of leaders of the legislature experienced in responsible executive, and a vigilant “major- have organized the invasion. 2013, in addition to the Speaker of the House ity”; that is, a virile civil populace that elects of Representatives, the Senate President also a government and can also rebel against ,QZKDWVHHPHGWREHDFRQ¿UPDWLRQRIWKH FKDQJHG SDUW\ DI¿OLDWLRQ WR WKH RSSRVLWLRQ any non-popular government.8 This division plot of the executive to surreptitiously effect 3'3/LNHLQZKHQ¿YHJRYHUQRUVRI of power is constitutionalized in sections 4 a leadership change in the Senate, on July the then-ruling PDP moved to the opposition (legislative), 5 (executive), and 6 (judicial) 24, policemen barricaded the exit road of the APC, in 2018, three governors abandoned of the Constitution of 1999 in the style of the residence of the Senate President and that of the current ruling party to join the opposi- U.S. Constitution. The Nigerian courts have his deputy. However, the Senate President tion PDP. Against the current trend of party emphasized the importance of separation beat the ambush and was able to reach the change, the leader of the opposition PDP par- of powers as a constitutional doctrine un- National Assembly for a plenary session. ty in the Senate, Godswill Akpabio, crossed der the various constitutional arrangements Perhaps due to the failure of earlier attempts to the ruling APC. Consistent with the earli- in Nigeria.9 The combination of separation to convene a session in the absence of the er trend, the ruling party has responded by of powers with the concept of checks and Senate President or his deputy, on August offering patronage to attract legislators from balances provides an effective, stable polit- 7, operatives of the Department of State WKHRSSRVLWLRQLQWRLWVIROG:LWKWKHJHQHUDO ical system that controls abuse of power.10 Service (the secret police) barricaded the HOHFWLRQVRI¿FLDOO\VFKHGXOHGWREHKHOGRQ The institutional arrangement of separation entrance of the National Assembly, initial- February 16 and March 2, 2019, it is expect- of powers suggests that no one branch of ly allowing only legislators from the ruling ed that these defections will have an impact government should dominate the other, nor party into the legislative building. Two days on the outcome of the polls. should one branch be undermined by others. before this blockade, the Senate President Executive dominance over the legislature had announced his defection from the ruling 3. Decline in Credibility of Elections makes the latter weak and less effective. A party to the main opposition People’s Demo- less effective legislature is an empirically cratic Party (PDP). As was hinted in the 2017 review, elections proven explanation for the failure to consol- for governor were held in two southwestern idate democracy.11 A legislature is effective 2. Floor Crossing states, Ekiti and Osun. Contrary to expecta- if it is independent of executive interference tions, the elections were a regression from and intimidation in the choice of leadership, In spite of the constitutional ban and judicial the pattern that was established in 2015. the planning of its agenda, and the discharge GLVSURYDORIÀRRUFURVVLQJWKHSKHQRPHQRQ The Ekiti election, held on July 14, 2018, of its functions.12 is growing in political practice in Nigeria. In was a straight contest between the APC and 7 See Christoph Möllers, ;OL;OYLL)YHUJOLZ!(*VTWHYH[P]L4VKLSVM:LWHYH[PVUVM7V^LYZ(Oxford University Press, 2013). 8 Robert Faulkner, ‘The First Liberal Democrat: Locke’s Popular Government’ (2001) 63 Review of Politics 5. 9 3HRHUTP 6YZ]([[VYUL`.LULYHS>LZ[LYU9LNPVU [1971] 1 UILR 20 at 218; 2018 Global Review of Constitutional Law | 215 the PDP, the former being the ruling party at ers of the opposition party”.17 It was against to govern the process”.22 The last refusal the centre. The APC won the election. Lo- this background that the candidate of the VHHPVWRFRQ¿UPWKDWWKH3UHVLGHQWZDVQRW cal and international observer groups dep- APC was declared winner of the election. committed to any electoral reforms. Unfortu- recated the election as being below global nately, the legislature did not have the num- standards, and one that should not be used The results of the elections in both states bers to override the President’s veto. The as a template for the general elections due were challenged at the post-election tribunal, 2015 law will be used for the 2019 elections. in 2019.14 Observers reported incidences of with that of Ekiti decided in favour of the de- ballot box-snatching, sporadic shootings, clared winner, the APC candidate.18 An ap- 4. Freedom of the Press and the dispersal of some party agents as peal is expected. Although past electoral ex- well as intimidation, oppression, and undue periences in Nigeria teach us that perversion The Nigerian Constitution of 1999 guaran- LQÀXHQFH 7KH PDVV GHSOR\PHQW RI RYHU WKURXJKIDOVL¿FDWLRQRIUHVXOWVULJJLQJDQG tees freedom of the press and the dissemi- 30,000 security personnel to the state was violence is widespread, judicial reversal of nation of information.23 The Court has inter- ostensibly to ensure peaceful polling but results of fraudulent polls is relatively com- preted this right as extending to barring the was also used for voter intimidation and the mon.19 However, after 2015, there has been a harassment of journalists because of their arrest of opposition party agents.15 noticeable decline in the number of election news reporting.24 There are public-owned SHWLWLRQV E\ GLVVDWLV¿HG FDQGLGDWHV RU WKHLU media organisations and privately controlled The Osun governorship election was held on parties as well as the number of successful ones in Nigeria. The privately controlled me- September 22, 2018, and was also a straight Court challenges of election results. dia expectedly are quite intrusive in covering ¿JKWEHWZHHQWKHUXOLQJ$3&DQGWKHPDLQ government activities and have been helpful opposition PDP. The election recorded better The Electoral Act (amendment) Bill, which in unravelling alleged breaches of rights. transparency than that of Ekiti but was de- proposed far-reaching reforms, including an These have exposed them to harassment clared inconclusive because the margin that electronic format for documentation, placing E\ JRYHUQPHQW DJHQFLHV /DWHO\ WKH ¿JKW put the PDP ahead of the APC (353 votes) legislative elections before the presidential against terrorist groups has caused friction was less than the number of registered vot- poll, stricter regulation of the nomination between journalists and security agencies as ers (3,498) in the seven polling units where process for candidates, and so on,20 was re- to permissible limits of information dissem- elections were cancelled for malpractices fused assent thrice in a space of less than ten ination when weighed against national secu- RU WHFKQLFDO GLI¿FXOWLHV16 A supplementary months by President Buhari, citing drafting rity considerations. election for the affected areas was held on errors.21 On the fourth occasion, however, he September 27. This election was marred by refused ostensibly because assenting to a bill :KDWDSSHDUVWREHUHSUHVVLRQRIWKHSUHVV reported “widespread misconduct by secu- to change electoral law so close to the elec- began on January 1, 2018, when three jour- rity agencies, including intimidation of ac- tion (December 2018) could cause “some nalists were arrested and detained for at least credited journalists, observers, and even vot- uncertainty about the applicable legislation two days by operatives of the Special An- 14 Emmanuel Ani, ‘Ekiti Election: Observers discredit Poll, say large deployment of Security Operatives marred Exercise’ Daily Post (17 July 2018) #O[[W!KHPS`WVZ[UN LRP[PLSLJ[PVUVIZLY]LYZKPZJYLKP[WVSSZH`SHYNLKLWSV`TLU[ZLJ\YP[`VWLYH[P]LZTHYYLKL_LYJPZL%HJJLZZLK 15 Kamarudeen Ogundele, ‘Ekiti: Election Fell Short of Global Standards, Say US Observer Group, Others’ 7\UJO (18 July 2018) #O[[WZ!W\UJOUNJVTLSLJ[PVUMLSSZOVY[VMNSVIHSZ[HUKHYKZZH`\ZVIZLY]LYNYV\WV[OLYZ%HJJLZZLK 16 Jide Ojo, ‘An Observer’s Intimate View of Osun Governorship Election’ 7\UJO (26 September 2018) 216 | I•CONnect-Clough Center ti-Robbery Squad unit of the Nigerian Police the building in Ibadan housing Fresh FM, a court order against the re-arrest of Mr. Da- for allegedly criticising the Inspector Gener- private radio station, on the pretext that the suki. On March 2, 2018, the Supreme Court al of Police.25 In February 2018, Tony Ezi- building contravened physical planning law, aligned itself with the two courts below it, makor, a senior editor with the Daily Inde- though an independent report stated that the DI¿UPLQJ WKDW 0U 'DVXNL FRXOG EH UHDU- pendent newspaper, was detained for about government’s actions were based on political rested by the same or different agency of a week without charge by the DSS for what differences with the station proprietor.29 The government on suspicion of committing any the security agency considered an offensive management of the media house claimed crime, and ordered an accelerated trial.31 Un- report on the missing Chibok girls. that it obtained all necessary government ap- fortunately, since then, the trial of Mr. Da- provals before it built the radio house.30 In VXNLKDVQRWSURJUHVVHGVLJQL¿FDQWO\ZKLFK ,QWKH:RUOG3UHVV)UHHGRP,QGH[1L- contempt for the rule of law, the government is in breach of the right to personal liberty geria was placed 119th (on the global rank- EURXJKWGRZQWKHEXLOGLQJLQGH¿DQFHRID and fair trial protected by the Constitution of ing of 180 countries), sandwiched between court order restraining it from doing so. 1999.32 The comment of President Muham- Afghanistan and Maldives.26 Nigeria’s latest madu Buhari that national security and the ranking is a marginal improvement from the There has not been much improvement in the nation’s interest are superior to the rule of 122nd position it had in 2017. The accom- way private media organisations have been law is a pointer to perhaps a deliberate policy panying report to the ranking published by treated by the government. The importance of clamping down on freedom.33 Reporters without Borders (RSF) regretted of the press to the consolidation of democra- that in Nigeria, journalists are often harassed cy means that repressive acts against private Saraki v FRN: Accountability of Public by authorities when covering subjects with media as recorded last year diminishes the Officials QDWLRQDO VHFXULW\ UDPL¿FDWLRQV 7KH UHSRUW prospect of strengthening democracy. also raised concerns that “the all-powerful The Constitution of 1999 prescribes a code regional governors are often the media’s III. CONSTITUTIONAL CASES RI FRQGXFW IRU SXEOLF RI¿FLDOV UHTXLULQJ most determined persecutors and act with them to declare their assets on assumption 27 34 complete impunity”. This concern may not Dasuki v FRN: Unlawful Detention DV ZHOO DV RQ H[LW IURP SXEOLF RI¿FH An be unrelated to the March 13, 2018 arrest of RI¿FLDO LQ EUHDFK RI WKH FRGH LV WULHG E\ Musa Kirshi, a correspondent with the Daily Mr. Sambo Dasuki, the former National Se- the Code of Conduct Tribunal (CCT). The Trust, in the National Assembly premises for curity Adviser, challenged his continued de- Senate President, Dr. Bukola Saraki, was allegedly facilitating an advertorial against tention in spite of an order of an Abuja High charged in 2015 to the CCT for non-decla- the interest of the governor of Jigawa State, Court on December 18, 2015, which granted ration and anticipatory declaration of assets Abubakar Badaru. On March 12, 2018, at him bail after his arraignment by the Eco- from 2003 to 2011, when he was governor OHDVW¿YHSULYDWHO\RZQHGQHZVSDSHUVZLWK nomic and Financial Crimes Commission of Kwara State. The CCT ruled on June 14, nation-wide coverage were prevented from (EFCC). He was released on December 29, 2017 that the prosecution failed to prove its covering President Buhari’s visit to Benue 2015 in obedience to the order of the High case and acquitted Dr. Saraki. In the federal State in the aftermath of suspected herdsmen Court but immediately re-arrested by oper- government’s appeal against his acquittal, 28 killing unarmed villagers. atives of the DSS and kept in custody. The the Court of Appeal, on December 12, 2017, High Court and the Court of Appeal ruled reversed the ruling of the CCT but reduced 35 In another show of might, on August 19, separately that the government was not in the charges from eighteen to three. On ap- 2018, the Oyo State Government demolished breach by its action because there was no peal, the Supreme Court, on July 6, 2018, 25 Wole Elegbede, ‘Threat to Press Freedom and Democracy’ Thisday (9 January 2019) < https://www.thisdaylive.com/index.php/2019/01/09/threat-to-press-free- KVTHUKKLTVJYHJ`%HJJLZZLK 26 9LWVY[LYZ^P[OV\[)VYKLYZº >VYSK7YLZZ-YLLKVT0UKL_»#O[[WZ!YZMVYNLUYHURPUN %HJJLZZLK 27 (IK\SSH[LLM:HSH\º>VYSK7YLZZ-YLLKVT+H`!5PNLYPH\WWLKPU7YLZZ-YLLKVT0UKL_I\[ZVTLZ\IQLJ[ZZ[PSSVɈSPTP[Z»Daily Trust (3 May 2018) < https://www. KHPS`[Y\Z[JVTUN^VYSKWYLZZMYLLKVTKH`UPNLYPH\WWLKPUWYLZZMYLLKVTPUKL_I\[ZVTLZ\IQLJ[ZZ[PSSVɈSPTP[ZO[TS%HJJLZZLK 28 Editorial, ‘Police, SSS Unwarranted Media Crackdown’7\UJO4HYJO #O[[WZ!W\UJOUNJVTWVSPJLZZZ\U^HYYHU[LKTLKPHJYHJRKV^U%HJJLZZLK 11/02/2019. 29 Chijioke Jannah, ‘Real Reason Yinka Ayefele’s Radio Station was marked for demolition – Ajiboye’ +HPS`7VZ[18 August 2018) < http://dailypost.ng/2018/08/18/ YLHSYLHZVU`PURHH`LMLSLZYHKPVZ[H[PVUTHYRLKKLTVSP[PVUHQPIV`L%HJJLZZLK 30 Olufemi Atoyebi and Peter Dada, ‘Outrage as Oyo demolishes Ayefele’s N800m Radio Station, Studio’ 7\UJO(20 August 2018) < https://punchng.com/out- YHNLHZV`VKLTVSPZOLZH`LMLSLZU TYHKPVZ[H[PVUZ[\KPV%HJJLZZLK 31 +HZ\RP]-952018) LPELR-43897 (SC). 32 Sections 35 and 36(1), respectively. 33 Ikechukwu Nnochiri, ‘Rule of Law must be subjected to National Interest, Buhari insists’ Vanguard (27 August 2018) 2018 Global Review of Constitutional Law | 217 DI¿UPHGWKHGHFLVLRQRIWKH&&77KH&RXUW legally because the offences alleged were not The outcome of the ongoing investigation ruled that the decision of the Court of Appeal actions carried in the course of performing and trial of the Chief Justice of Nigeria, Jus- to agree with the CCT in one breath yet or- a judicial function. Rather, they were vio- WLFH:DOWHU2QQRJKHQIRUVXVSLFLRXVDVVHWV der Dr Saraki to return to the CCT in anoth- ODWLRQV RI H[WDQW ¿QDQFLDO UHJXODWLRQV DQG ZLOO GH¿QLWHO\ UHGH¿QH MXGLFLDO LQGHSHQ- er amounted to a “judicial summersault”.36 HWKLFDO VWDQGDUGV UHTXLUHG IRU SXEOLF RI¿- dence and the relevance of the NJC. It is also The trial of Saraki at the CCT may have had cers generally under the code of conduct possible that should the opposition emerge a political undertone than simply a quest to contained in the Constitution. The decision victorious in the presidential election, upon punish corrupt enrichment. of the CCT is especially hard to support be- DVVXPLQJRI¿FHWKHWULDOZLOOEHWHUPLQDWHG cause it is the body that has exclusive juris- and all prior actions taken by President Bu- Hon. Justice Sylvester Ngwuta v FRN: diction over a breach of the code of conduct hari voided. Judicial Independence IRU SXEOLF RI¿FHUV FRQWDLQHG LQ WKH &RQVWL- tution. Relying on a judicial pronouncement One vacancy was created in the Supreme Justice Sylvester Ngwuta of the Supreme to create a prerequisite for carrying out a Court in 2018 when Justice Clara Ogunbiyi Court was arraigned separately before the constitutional duty is merely evasive. As- retired mandatorily at seventy. The vacancy Federal High Court (Abuja) for money laun- suming the reasoning in Nganjiwa’s case is ZDV ¿OOHG ZLWK WKH DSSRLQWPHQW RI DQRWKHU dering and at the CCT for false and non-dec- tenable, of what use is it if the Attorney-Gen- woman, Justice Uwani Musa Abba-Aji. She laration of assets. On May 15, 2018, the CCT eral prefers the charge after the retirement of formally took her seat in January 2019. Until threw out the charges against Justice Ngwu- the judge, as was the case against the Senate her appointment, she was one of the senior ta in deference to a recent Court of Appeal’s 3UHVLGHQWGLVFXVVHGDERYH"7KH&&7¶VH[FL- justices on the Court of Appeal, Nigeria’s in- precedent that the criminal prosecution of a VLRQRIMXGLFLDORI¿FHUVIURPLWVMXULVGLFWLRQ termediate appellate court. This appointment serving judge for any offence bordering on using the pretext of Nganjiwa’s case is an IROORZVWKHHVWDEOLVKHGSDWWHUQRI¿OOLQJ6X- professional misconduct can take place only unwarranted abdication of its constitutional preme Court vacancies with Justices of the after the National Judicial Council (NJC) responsibility.42 Court of Appeal, and restores the number has investigated and applied or recommend- of women on the Supreme Court to four, a ed appropriate disciplinary actions.37 Barely IV. LOOKING AHEAD quarter of the bench. One vacancy by retire- two months before this time, on March 23 ment is expected in 2019 (Justice Akaahs). 2018, the Federal High Court struck out the The conduct of the February 16/March 2, Barring the resignation of the Chief Justice, charges against Justice Ngwuta relying on 2019 general elections, especially the presi- no other vacancy is anticipated. 38 the same judicial authority. dential election, will have a huge impact on political developments in Nigeria in 2019. The Nigerian Constitution is consistent with The European Union and United States as international principles on judicial indepen- well as several others have sent election mon- dence, such as the United Nations’ Basic itors. Political campaigns have been acrimo- 39 Principles on Judicial Independence and nious, in some instances raising serious con- the International Bar Association’s (IBA) cerns about possible pre- and post-election Minimum Standards of Judicial Indepen- violence. The test elections in Ekiti and Osun 40 dence, that require judicial self-governance have also cast a dark cloud on the sincerity of in matters of appointment and discipline of the government, the capacity of the elector- 41 MXGLFLDORI¿FHUV Notwithstanding the con- al commission, and the neutrality of security stitutional guarantee of tenure, however, the agencies regarding the 2019 elections. two decisions above are hard to rationalize 36 Evelyn Okakwu, ‘Updated: Supreme Court Dismisses Saraki’s False Asset Charge’ Premium Times (6 July 2018) 218 | I•CONnect-Clough Center Norway Anine Kierulf, Research Director – Norwegian National Human Rights Institution Marius Mikkel Kjølstad, LLM candidate – Goethe-Universität Frankfurt am Main I. INTRODUCTION in which the spotlight turned to the Christian Democratic Party, holding the key to a major- :HGHVFULEHGDVD\HDURIFRQVWLWXWLRQDO ity Government. It had been set to exit from status quo in Norway.1 2018 has been more the political no man’s land following terri- eventful, at least on the political scene. Here, ble results in the 2017 general elections. In developments have unfolded like a drama in September, the party leader proposed a new NORWAY three acts (fortunately not of Shakespearean center-left coalition, thus further threatening dimensions; rather, with the subdued intrigues the Government’s position. After a weeklong characteristic of many of Ibsen’s plays). thriller of a national congress, the party de- cided instead to look right, towards a possible In act one, the protagonist—Prime Minister entry into the sitting coalition Government. Erna Solberg (Conservatives)—came one The party became part of the Government in step closer to her goal of uniting all the cen- January 2019. ter-right parties in a majority coalition, as the Liberal Party joined the Government in Jan- Paradoxically, then, Solberg ended up with uary. In the second act, however, Minister of a majority coalition and a strengthened po- Justice Sylvi Listhaug,(Progress Party), the sition after a dramatic year. An impressive main antagonist, entered the scene. In March, achievement and certainly a personal victory Listhaug, a controversial right-wing popu- for her. It remains to be seen how historians list, published a much-criticized Facebook will judge her and the process; a rather sad- post chiding the Labour Party for siding with dening episode was when Solberg, during the terrorists because they wanted courts, not ad- debates within the Christian Democratic Par- ministrative bodies, to make decisions about ty, threw out the possibility of adjustments deprivation of citizenship in cases of national in the Abortion Act as bait for the conserva- 2 security. Facing the outcry of the opposition tive camp. The episode illustrates Solberg’s and position parties alike, she showed no re- postmodern conservatism, where the only morse. This example of Listhaug’s unwaver- “principle” that seems to apply firmly is that ing rhetoric was the final straw. The opposi- of pragmatism. tion submitted a parliamentary proposal for a vote of no confidence, a possible threat to the :LWKWKLVRYHUYLHZRIWKHSROLWLFDOGHYHORS- entire Government. The crisis was averted as ments as a backdrop, we go on to consider Listhaug stepped down, grudgingly. This turn significant legal constitutional developments was but a prelude to the surprising final act, in 2018. 1 Anine Kierulf and Marius Mikkel Kjølstad, ‘Norway. The State of Liberal Democracy’ in Richard Albert, Da- vid Landau, Pietro Faraguna and Simon Drugda (eds), ;OL0Ç*65ULJ[*SV\NO*LU[LY .SVIHS9L]PL^ of Constitutional Law, 2018 pp. 209–214. 2 See Alex Matthews-King, ‘Abortion demonstrations draw thousands across Norway after prime minister proposes tightening laws’ (;OL0UKLWLUKLU[, 17 November 2018) 2018 Global Review of Constitutional Law | 219 II. MAJOR CONSTITUTIONAL section, international influence on the na- criminal investigation and one the removal tional legal system is substantial. Here, some of parental responsibility and adoption with- DEVELOPMENTS important developments pertaining to the out the parent’s consent, the Court found no ECtHR at the regional level are worth men- violations.6 In a third case, also in the field In November 2018, the Government pro- tioning below. of family life and the Norwegian child wel- posed a new Intelligence Service Act. The fare system, the Court held that the refusal most significant part of the proposal is the Institutionally, the Copenhagen Declaration to allow a mother contact with her daughter, establishment of a bulk interception scheme. was a reminder of how diverging views of who had been taken into public care, violat- If this scheme is enacted, considerable multilateral institutions pave way for pro- ed her right to family life.7 In this field, the amounts of border-crossing communications cesses wanting in careful regional ground- Court also held Grand Chamber hearings in data may lawfully be collected by the intelli- work. For analyzes of the Declaration, and November in the case of Strand Lobben v. gence services. Case law from the European the process leading up to it, we refer to writ- Norway.8 The decision in this case is still Court of Human Rights (ECtHR) indicates ings elsewhere.5 The Norwegian process was pending, as are the hearings of five other cas- that bulk interception schemes aimed at most notable for its complete silence—the es in the same field. Child welfare cases raise protecting national security fall within the Government offered its comments to the extremely complex and sensitive issues, and margin of appreciation of the Member States Draft Declaration without consulting or even the dissent in the Chamber judgment in under the privacy protection ensured by Ar- informing Parliament or the public—until Strand Lobben indicates that there are fun- ticle 8, given that the regime offers sufficient some commentators and MPs raised their damentally diverging views within the Court procedural safeguards. Two cases decided voices. Only towards the very end of the as to the proper level of subsidiarity and the in 2018 are now pending before the Grand process before the Declaration did the Gov- margin of appreciation. The total outcome of Chamber.3 In any case, even if legally per- ernment clarify that it would not support the these cases will influence ongoing reforms mitted, the desirability of such an arrange- paragraph that had come to be a central point of the Norwegian child welfare system. ment is a different question. The proposed in the critique against the Draft Declaration, regime will seriously compromise privacy namely the one telling the ECtHR to stop rights, and the proposal is already under crit- III. CONSTITUTIONAL CASES meddling in asylum cases. icism from parts of civil society in the public consultation process. 1. The Contraception case: Freedom of Norwegian Supreme Court Justice Arnfinn Conscience Bårdsen was appointed as the new Norwe- Of legislation that was enacted, a ban on gian judge to the ECtHR, beginning 1 Jan- wearing garments that conceal the face—for The Contraception case received substantial uary 2019. Bårdsen’s profound knowledge 9 all practical purposes niqab and burqa—in public attention in 2018. It concerned a gen- of human rights law is witnessed both by his educational institutions is worth mentioning. eral practitioner who in 2015 was dismissed judicial decisions and extensive legal writ- The new legislation became particularly in- by the municipality employing her because ing on the subject. He has been one of the teresting when the United Nations Human for reasons of conscience, she refused to in- justices most ready to use international legal Rights Committee later concluded that a sert copper IUDs (a contraception device). sources in his reasoning, thus facilitating the general niqab and burqa ban in France vio- :KHQVKHZDVKLUHGLQWKHSDUWLHVKDG judicial dialogue with the ECtHR. lates the right to freedom of religion.4 made an agreement that she could refuse to insert IUDs. Following heated debates in On the substantial level, the ECtHR deliv- International bodies and their jurisprudence 2015 over the issue of general practitioners’ ered three judgments against Norway. In the are of considerable importance for human right to reservation, in which a strong pub- two first cases, one concerning collection of rights in Norway. As we explain in the next lic demand to protect women’s sexual and a lawyer’s confidential communication in a reproductive health and rights was predom- 3 *LU[Y\TMY9p[[]PZH]:^LKLUApp no 35252/08 (19 June 2018) and Big Brother Watch and Others v. the United Kingdom App no. 58170/13, 62322/13, and 24960/15 (13 September 2018). 4 :VUPH@HRLY]-YHUJL Communication no 2747/2016 (decided 17 July 2018, published 7 December 2018). The ECtHR has, conversely, accepted such bans, see :(:]-YHUJL App no 43835/11 (1 July 2014) and +HRPY])LSNP\T App no 4619/12 (11 July 2017). 5 :LLLN1HUULRL.LYHYKZHUK:HYHO3HTIYLJO[º;OLÄUHS*VWLUOHNLU+LJSHYH[PVU!M\UKHTLU[HSS`PTWYV]LK^P[OHML^YLTHPUPUNJH]LH[Z»:[YHZIV\YN6I- servers Blog (WYPS #O[[WZ!Z[YHZIV\YNVIZLY]LYZJVT [OLÄUHSJVWLUOHNLUKLJSHYH[PVUM\UKHTLU[HSS`PTWYV]LK^P[OHML^YLTHPUPUNJH]L- H[Z%HJJLZZLK 1HU\HY` 6 >VSSHUK]5VY^H`App no 39731/12 (17 May 2018) and Mohamed Hasan v. Norway App no 27496/15 (26 April 2018). 71HUZLU]5VY^H` App no 2822/16 (6 September 2018). 8 App no 37283/13, decided by the Fifth Section on 30 November 2017. 9 HR-2018-1958-A. Summaries of all of the Supreme Court’s rulings from 2018 are available in English at 220 | I•CONnect-Clough Center inant, a provision banning such reservation 2. The Nesseby and the Femund sitje cases: and several liability is more extensive than clauses was introduced. Rights of Indigenous Peoples when damages are caused by other kinds of grazing animals. The Court underlined For the Supreme Court, the case could be The rights of the indigenous Sami people are the importance of Sami culture in assessing solved by the law of contracts: the general protected by Article 108 of the Norwegian the question of alleged discriminatory effect practitioner had a contractual right to make Constitution and several international human but argued it would be very difficult for the reservations, and the 2015 amendments did rights documents, most importantly Article plaintiff to identify what animal(s) in a large not retroactively void such a clause. As the 27 of the CCPR and no. 169 of the ILO Con- reindeer herd had caused damages, and that public (and legislative) interest was in the vention, concerning Indigenous and Tribal this circumstance justified the difference in more principled question of whether the pro- Peoples in Independent Countries. As in the regulation in this specific case. The Court hibition against reservation clauses conforms previous year, the Supreme Court decided did, however, signal to the legislator that in with the right to freedom of conscience, two cases concerning Sami rights in 2018.11 other cases, this form of liability might be as enshrined in Article 9 of the ECHR, the too extensive. It pointed out that ten years Court commented generally also on this is- The Nesseby case, heard in plenary, con- ago, a commission had recommended leg- sue in a rather extensive obiter dictum. cerned land rights.12 Based on immemorial islative reforms, and that the UN Human usage, a regional society had rights of use to Rights Committee has criticized Norway for The Court, relying to a certain extent on the a large part of a municipality in Finnmark, inadequate implementation of these recom- Eweida case from the ECtHR,10 went far in the northernmost county in Norway. The so- mendations. accepting such prohibitions on a general level. ciety claimed these rights also included the It found the purpose of it, ensuring women’s entitlement to manage the renewable natu- The Court has decided a total of five “Sami sexual and reproductive health and rights, to ral resources in the area, i.e., fish and game, cases” over the last three years, all of them be a legitimate concern. Courts should thus timber, etc. The Court disagreed. Based on rejecting claims based on the rights of indig- be cautious about substituting their view on relevant legislation, it found the compe- enous peoples. One possible consequence the balancing of legitimate interests for that of tence of resource management belonged to of this—well-founded or not—is that Sami political authorities. However, the Court indi- the landowner, the Finnmark Estate Agency rights are perceived to be inadequately pro- cated that if, in specific cases, a woman can (FeFo). This led to the question of whether tected. Another factor contributing to this, is be guaranteed adequate health assistance by such a solution violated the requirements in that the Parliament voted down proposals to alternative means, the local authorities must ILO convention no. 169 Articles 6, 7, 14, and revise the wording of Constitution Article undertake a more nuanced assessment, where 15, pertaining to indigenous peoples’ control 108 to clarify (on a constitutional level) the the underlying values behind Article 9 must over the rights of use and participation in the recognition of the Sami people as an indige- be balanced in the concrete. decision-making processes. The Court dis- nous people.14 missed this claim, holding first that the Sami The judgment and its rather vague wording people were considerably represented in the 3. HR-2018-1909-A: Interpretation of indicate that the Court was caught between board of the FeFo and, second, that the Sami Constitutional Rights the ambition of being a court of precedent Parliament had been involved in the drafting that ensures clarification of the law and the of the relevant legislation and that it had not In 2014, the Norwegian Constitution was fact that there is no tradition for abstract ju- objected to the framework. amended with a full-fledged chapter on hu- dicial review of legislation in Norway. From man rights.15 The new provisions were mod- a human rights law perspective, however, the The Femund sitje case considered wheth- eled on international conventions, and courts Court’s message of defiance to the political er the legal provisions on strict liability for and scholars have since struggled to develop balancing of interest, while also reminding damages caused by reindeer were discrim- a workable approach to the dual and some- that specific circumstances might tip the inatory.13 The alleged discriminatory ele- times triple rights protection that exists under scales in concrete cases, seems sound. ment was that the stipulated form of joint resembling, but different provisions. A central 10 ,^LPKHHUK6[OLYZ][OL 2018 Global Review of Constitutional Law | 221 normative issue is whether courts should tie At first glance, this might seem like a small that seems to imply that the privacy rights their reasoning to the Constitution or to in- detail. But the devil often lies in the (proce- do not extend beyond the case against the ternational instruments, or both, and if so, in dural) details. The Court’s invention plays minor. Accordingly, so the Court reasoned, what order. A doctrinal issue, among several, into a broader debate about whether separate the provision does not apply at all in later is whether an interpretation by the Supreme claims to have human rights violations de- cases when the minor has become an adult. Court based almost exclusively on case law clared are directly actionable. The Civil Pro- On the other hand, the Committee stated ex- from typically the ECtHR, but where the cedure Act travaux préparatoires and sev- plicitly in paragraphs 66 and 67 that records constitutional provision is mentioned en pas- eral authors have been reluctant about such of child offenders should not be used in adult sant, should be considered as a binding inter- an opening, whereas the Supreme Court at proceedings and that the records should be pretation of the Constitution with the effect least in some cases has seemed more open.18 automatically deleted when the minor turned of requiring a constitutional amendment for An interesting question is whether this judg- 18 years old. But as these were mere recom- legislative alterations. This would also have ment indicates more of a general legal evo- mendations, the Court disregarded them and potential implications where the ECtHR later lution, and whether we might eventually end fell back on the interpretations in paragraph departs from its jurisprudence. up with the possibility of bringing separate 64. Thus, the Court concluded that Article claims for violations of the Constitution be- 40 did not prevent it from considering earlier One decision illustrative of some of these fore the courts. convictions in its sentencing. questions of constitutional interpretation is HR-2018-1909-A. Due to different rules of 4. HR-2018-2096-A: UN Committees’ 5. HR-2018-2133-A: Right to Private Life for evidence in criminal and civil cases, a de- Jurisprudence as Source of Law Refugees fendant had been acquitted by the Court of Appeal for an indictment for sexual offences, Another methodological issue that has puz- HR-2018-2133-A considered whether a de- but at the same time been ordered to pay civil zled Norwegian courts and scholars over the cision to withdraw the temporary residence redress. The Supreme Court held that the low- last decade is the more precise legal signif- permit of an Afghan woman and her daughter er court had violated the right to be presumed icance impact of materials from UN com- violated their right to respect for their private innocent because of statements made under mittees in national legal reasoning. Through life. They had been granted refugee status the assessment of civil liability that could cast several decisions, the Supreme Court has and a three-year temporary residence per- doubt on the criminal acquittal. clarified that even though the committees’ mit upon arrival in Norway in October 2011. jurisprudence is not strictly binding under The basis for the refugee status was that the The Court exclusively considered the case as international law, their interpretations of the mother was a single woman without a male a violation of the presumption of innocence conventions shall have considerable weight QHWZRUNLQ$IJKDQLVWDQ:KHQKHUKXVEDQG under the Constitution, Article 96. It has con- as a legal source under national law. One later arrived in Norway, the grounds for the sidered similar previous cases under ECHR, must, however, distinguish between the decision ceased to exist, and the residence Article 6, alternatively both the ECHR and committees’ (legal) interpretations and their permit was withdrawn in March 2014. The the Constitution.16 It gave no further reasons more concrete recommendations. withdrawal was upheld in January 2016, and for its approach. Speculation ensued whether the Court had to decide whether the mother this indicates a new direction from the Court HR-2018-2096-A illustrates how this may and her daughter at this point of time had es- or a phalanx of the Court, a question that re- turn out in practice. At the age of 20, a man tablished a protected private life in Norway. mains to be answered. Another interesting was convicted for sexual offences. The dis- aspect of the decision is what was for sure puted question was whether the courts, in The ECtHR’s case law under ECHR Article a new “invention” by the Court: in previous their sentencing assessment, were prevented 8 stipulates that primarily “settled migrants” cases, it has usually confined itself to state from considering previous sexual offences have a protected right to respect for their pri- a violation as part of the decision premises, committed when he was a minor under his vate life. The Supreme Court held that as a something that has been affirmed as a suffi- right to privacy in Article 40 (2) (b) (vii) of main rule, temporary residence permits do cient remedy under Article 13 of the ECHR.17 the Convention on the Rights of the Child. not establish a protected right, even when In this decision, however, the Court chose to The Court referred to the CRC Committee’s they are prolonged consecutively. There is, formulate a separate holding in the conclu- General Comment (GC) no. 10 (2007). In however, an exception where the stay be- sion where it formally acknowledged that paragraph 64 of the GC, the Committee inter- comes long-lasting, but the Court did not there had been a violation, but that this was prets the scope of the provision—it concerns indicate any time frame for what constitutes now remedied by the Court’s conclusion. “all stages of the proceedings”—in a way “long-lasting”. Normally, only where a per- 16 In Rt. 2014 p. 1292, the Court even held that there had been a violation of Article 14 of the CCPR. 17 (]5VY^H` No. 65170/14 (ECtHR, decision, 29 May 2018). 18 Cfr. Rt. 2015 p. 93 and HR-2016-2178-U. 222 | I•CONnect-Clough Center manent residence permit is granted will the Court reasoned: methodologically, the or- V. FURTHER READING person be regarded as a “settled migrant”. ders are model decisions. The Court, when deciding matters that are not settled by the $UQILQQ %nUGVHQ µ'HFLGLQJ :KDW WR 'H- Under Norwegian migration law, one may legislator, bases its reasoning on the underly- cide: The Filtering Mechanism in the Nor- apply for a permanent residence permit only ing principles behind the protection of priv- wegian Supreme Court’, lecture held before after three years of legal stay. In addition, ileged correspondence. It emphasizes how the Icelandic Bar Association, Reykjavik, the migrant must have had his or her own everyone seeking legal advice should be able 16 February 2018. Available at In two court orders from January and April, On the international scene, the ECtHR’s the Supreme Court elaborated on details of Grand Chamber decision in the Strand Lob- 20 the procedure in these cases. The interest- ben case will be followed closely. ing part of these decisions is not the rather technical issues discussed but the way the 19 See footnote 6 above. 20 HR-2018-104-A and HR-2018-699-A. The former is available in English at 2018 Global Review of Constitutional Law | 223 Palestine Yasmin Khamis, LL.M, Member of the Junior Palestinian Legal Experts Network – Birzeit University Asem Khalil, H.H. Shaikh Hamad Bin Khalifa Al-Thani Professor of Constitutional and International Law –Birzeit University INTRODUCTION the role of the President, who, under the pre- vious version of the BL, had presided over a This review briefly introduces the Palestin- Council of Ministers. A further amendment ian constitutional system. It then assesses was added in 2005 to enable elections to take place every four years. The 2003 BL, includ- PALESTINE key and significant constitutional devel- opments that have taken place in Palestine ing the 2005 amendment, is now established 1 since the endorsement of the institution of as the PA’s valid constitution. constitutional review and seeks to refract the status of liberalism and democracy through II. MAJOR CONSTITUTIONAL historical and political experiences. DEVELOPMENTS The idea of drafting a constitution for the The year 2012 was a turning point for Pal- ‘Palestinian state’ was initially floated af- estine when it was recognized as a state by ter the Palestinian National Council (PNC) the United Nations General Assembly. In passed the Declaration of Independence in addition to other privileges, this meant that Algiers in 1988. However, initial drafts were the Palestinian state could establish a con- only circulated after the Oslo Agreements stitution and was, within the context of in- between the government of Israel and the ternational agreements, considered to be a Palestine Liberation Organization (PLO). participating member state. The delay reflected both the intrinsic limita- tions of these agreements and the continued After membership was established, a com- influence of external impediments, most mittee worked together to create a draft con- notably the weak status of the Palestinian stitution with 273 articles, and this was com- Authority (PA) and its limited jurisdiction pleted by the end of 2015. The committee during an interim period that was originally was established with the intention of build- planned to last from 1994 until 1999. ing on all preceding work, and with com- pleting a modern Palestinian constitutional In 1997, the Palestinian Legislative Council project. It included members of the national (PLC), the PA’s parliamentary body, decided and central council, in addition to parliamen- one year after its members were elected to tarians and jurists, who were tasked with adopt the Basic Law (BL). This decision was addressing problematic or unresolved issues only endorsed by Yasser Arafat, the former that had arisen during the BL’s lifespan. But PA president, in 2002, three years after the at the time of this writing, no constitution has conclusion of the five-year Interim Period. been put in place that establishes sovereignty The BL was amended in 2003, and its main and the pillars of statehood. change included the establishment of an Of- fice of Prime Minister, and this in turn altered 1 All of this chapter’s references to the BL relate to the 2003 version, unless otherwise stated. 224 | I•CONnect-Clough Center In 2014, Palestine acceded to a number of this, Constitutional Court tasks were en- WRROLQWKH:HVW%DQNVLQFHDSHULRG international conventions and human rights trusted to the Supreme Court (Art. 101 of when effective parliamentary oversight or treaties without making any reservations.2 the BL). The appointment of SCC judges is scrutiny has, as a consequence of the PLC’s It had been difficult for the state to uphold a recurrent issue, and this reflects the fact operations being suspended, been entirely its domestic and international obligations, that the power to appoint judges is absolute- absent. Art. 43 establishes: and this issue was in turn raised in court on ly limited to the President. This institutes an multiple occasions because the BL does not arrangement in which the authority of the The President of the National Authority clarify the status of international law within executive is pre-eminent over the judiciary, shall have the right, in cases of necessi- the Palestinian domestic legal system. The with the consequence that it can influence ty that cannot be delayed, and when the only reference in the BL is Art. 10(2), which its decisions while manipulating its (de jure) Legislative Council is not in session, to calls on the PA to accede, without delay, to independence. issue decrees that have the power of law. international declarations and covenants that These decrees shall be presented to the protect human rights. From November 2005 until the time of this Legislative Council in the first session writing, 58 constitutional decisions have been convened after their issuance; other- 1. The Constitutional Court made, of which almost half (27) have been wise they will cease to have the power made by the Supreme Court taking on the of law. If these decrees are presented to The BL called for the establishment of a Su- function of a constitutional court in the afore- the Legislative Council, as mentioned preme Constitutional Court (SCC), but left mentioned manner. Here it should also be above, but are not approved by the lat- the issue to be determined by a law (Art. noted that the Court preemptively dismissed ter, then they shall cease to have the 103). Law no. 3 (2006) subsequently estab- many cases upon the basis of a technicality power of law.4 lished an SCC and was later amended by or formality, and therefore did not proceed to Decree Law no. 19 (2017). Both the BL and enquire into its substantive content. The legitimacy of presidential decrees Law no. 3 establish the basis for a central- passed by the President after the expira- ized ‘judicial’ body that is independent of 2. Violations of the Basic Law tion of his term in 2010 continues to create the judicial branch. The Constitutional Court heated disagreement, as presidential and would mainly be tasked with constitutional There have been several violations of the legislative elections have not been held in review and interpretation. BL, which are often attributed to alternative the State of Palestine since 2006. Very few interpretations or the lack of a provision in of the decree-laws that have passed can be Constitutional Review the first instance, occurring, for example, legitimately argued to meet the requirement in relation to disagreement over the cir- of necessity that demands they be approved There are various ways in which the Court cumstances concerning when an election or ‘without delay’. Elections have not been can be engaged; firstly, by original and di- referendum can be called or circumstances held since 2007 because of ongoing political rect action by the aggrieved; secondly, in- when the President or government can legiti- +DPDV)DWDK DQGJHRSROLWLFDO :HVW%DQN direct review of constitutionality after the PDWHO\LQYRNHHPHUJHQF\SRZHUV:KHQWKH and Gaza Strip) divisions. Government au- request is, against the backdrop of concrete President’s emergency powers are discussed, thority, functions, and the legislature have litigation, transferred by a court; thirdly, by further disagreements arise in relation to the become divided as a consequence. Since the the litigants themselves if certain conditions relative privilege that should be accorded to Legislative Council has been unable to con- are met; and finally, by the Court itself if it is the letter and spirit of the BL. The level of vene since 2007, Art. 43 was activated. persuaded that an unconstitutional provision factional consensus required to amend ex- is linked to the dispute. isting constitutional arrangements has also Although it is possible to invoke legal rea- created disputes.3 soning in support of such authorization, it is The President—authorized by law to pro- clear that the state must work to overcome pose the SCC’s first panel—nominated the One of the main concerns is that Art. 43 of these exceptional circumstances and main- Court’s nine judges in April 2016. Before the BL has been overused as a law-making tain a separation of power. Evidence pro- 2 The agreements signed in December 2014 are as follows: The Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), The Inter- national Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR), Convention on the Recognition and Enforcement of Foreign Arbitral Awards; Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal; Protocol (KKP[PVUHS[V[OL.LUL]H*VU]LU[PVUZVM(\N\Z[ HUK9LSH[PUN[V[OL7YV[LJ[PVUVM=PJ[PTZVM5VU0U[LYUH[PVUHS(YTLK*VUÅPJ[Z7YV[VJVS00"7YV[VJVS(K- ditional to the Geneva Conventions of 12 August 1949; Convention on the Law of Non-Navigational Uses of International Watercourses; Protocol on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents; The Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons; Convention in Cluster Munitions; United Nations Convention on the Law of the Sea; and The Treaty on the Non-Proliferation of Nuclear Weapons. 3 Khalil, Asem. ‘Beyond the written constitution: Constitutional crisis of, and the institutional deadlock in, the Palestinian political system as entrenched in the basic law’. 0U[LYUH[PVUHS1V\YUHSVM*VUZ[P[\[PVUHS3H^ 11.1 (2013): 36. 4 ;OL\UVɉJPHS[YHUZSH[PVUPZH]HPSHISLH[!O[[W!T\X[HÄIPYaLP[LK\LU3LNPZSH[PVU.L[3LN-;HZW_&3LN7H[O$ 40+$ 2018 Global Review of Constitutional Law | 225 duced to date suggests that the state of neces- exception is if it contradicts Palestinian re- national laws. Here it should also be noted sity has been an essential tool in the hands of OLJLRXVSROLWLFDODQGFXOWXUDOPRUDOV:KLOH that the decision further clarified that the the executive and, for this reason, there is no none of the treaties ratified by Palestine have declaration of independence (issued by the reason to believe it will be dissolved in the yet been published, the state must nonethe- Palestinian National Council of the PLO in near future. less honor related obligations to the interna- Algiers in 1988) enjoys primacy over the tional community. In addition to concluding written BL adopted by the Palestinian Leg- III. CONSTITUTIONAL CASES that international treaties supersede domestic islative Council. laws, the decision also affirmed they are ‘in- 1. Judgment 5/2017, March 12, 2018, Consti- fra-constitutional’ and, in so doing, added a 2. Judgment 2/2018, July 12, 2018: The Con- tutional Court’s Interpretation of Art. 10 of new constitutional provision. In addition to stitutional Court’s Interpretation of the Term the BL highlighting the hierarchical status of inter- ‘Military issue’ and the Nature of the Police national treaties within the Palestinian legal Force and the Prosecution of Its Members The minister of justice requested an an- system, this decision also provided insight swer for four major questions that the into the incorporation of international trea- It should first be noted that the Court, in BL fails to answer: ties into the Palestinian legal system along exercising its jurisdiction to respond to re- with Palestine’s human rights obligations quests of interpretation, exceeds its scope :KRKDVWKHSRZHUWRVLJQDQGUDWLI\ and responsibilities. by allowing itself to constitutionally review LQWHUQDWLRQDO DJUHHPHQWV" :KDW LV WKH legislation before declaring it to be uncon- process of joining and how will it come The decision surpassed the limitations of the stitutional. The interpretation request was LQWRHIIHFW" BL by clarifying how to sign or ratify con- submitted to the Constitutional Court by :KDWKDSSHQVZKHQDQLQWHUQDWLRQDO ventions and treaties. Practice provides fur- the Minister of Justice. In its 12 September WUHDW\FRQWUDGLFWVDGRPHVWLFODZ" ther clarification by establishing that com- 2018 decision, the Palestinian SCC issued an 3. How does the State maintain and pro- missions that have been delegated the right interpretation decision relating to the provi- PRWHKXPDQULJKWV" to negotiate by the executive (in effect, the sions set out in Art. 84 and 102 of the BL and :KDWDUHWKHPHFKDQLVPVXVHGWRLQ- President) also have the authority to sign Art. 53 of Law No. 23. It thereby indicated tegrate the international agreement and accession decisions. In so doing they do not its interpretation of the legal character of the WKHOHJDOVWDWXVLWRFFXSLHV" prejudice the rights of the President, Prime terms ‘military issue’ and ‘police’, along Minister, and Minister of Foreign Affairs in with the importance that it ascribed to de- In order to reach a clearer understanding, de- this regard. Ratification is normally the re- termining the competent court when trying cision (04/2017) must be briefly introduced. sponsibility of the head of state who, in veri- police officers. In November 2017, the SCC issued a short fying the treaty, ensures that it, and its imple- and vague decision that established interna- mentation, is consistent with the interests of In the decision under review, the Court con- tional treaties were pre-eminent over nation- the state of Palestine. tradicted its previous interpretative decision al laws. The issue of the hierarchy of inter- (most notably 01/2017), which held that national treaties came before the SCC after a In establishing the obligations of the state in the police were a regular force of a special court of first instance referred a case in which relation to human rights, the decision estab- nature who exercised civil jurisdiction. In- 815:$ 8QLWHG1DWLRQV5HOLHIDQG:RUNV lished that treaties must be incorporated do- stead, the Court now argued that the police Agency for Palestine) was a party. The agen- mestically in a way that takes religious and are a predominantly military apparatus with cy pleaded immunity before the lower court cultural identity into account. In the event of the capacity to specialize in civil cases. In by citing a headquarters agreement with the a conflict, it would not be enforced, even if referring to penal provisions, it further ex- PA. The court was forced to ask if its recog- a reservation were added to the treaty at the panded its interpretation of ‘military issue’ nition of this immunity breached Art. 30 of time of ratification. and sought to make the military judiciary the the Palestinian BL, which prohibits admin- rule rather than the exception. istrative decisions from being immunized In addressing the integration mechanism, the from judicial review. Court maintained that treaties are enforced The Court relied on the 1979 penal code of by incorporation within domestic laws, the PLO, and the Revolutionary Penal Code The decision in this case did not explicitly which clearly contradicted its previous asser- in particular, to determine the criteria (per- confirm if international law takes precedence tion that international treaties enjoy primacy sonal, venue, and objective) that needed to over the Palestinian BL, and instead only in relation to domestic laws. Once Art. 27 of be present for the military court to exercise established that international law should be the Vienna Convention on the Law of Trea- jurisdiction. These laws are, however, con- accorded primacy over domestic law. This ties is considered, this becomes problematic, troversial and have been accused of being applies even if the proposed item is not pub- as it establishes that states, in seeking to jus- unconstitutional. Critics note, for example, lished in the official Gazette, and the only tify non-compliance with their international that they are not published in the Official obligations, are prohibited from citing their Gazette, as required by Art. 116 of the BL. 226 | I•CONnect-Clough Center They also observe that these laws do not situation in the absence of general elections - The legitimacy of the existence of the Leg- distinguish between civilians and the mili- violates the provisions of the BL and the law islative Council lies in the exercise of legis- tary as they were enacted in exceptional cir- of general elections (and related laws), and lative powers and control; since this has not cumstances, when the PLO was establishing also prejudices public and national interests. been held since 2007, it lost its legislative authority and exercising sovereignty over its It also violates the basic right, held by all authority and, as a consequence, its Legisla- territory by activating the jurisdiction of the Palestinians of voting age, to periodically tive Council status. Revolutionary Judiciary. elect representatives. - Art. 47 (bis) shall not apply if the regular In the case at hand, the Court decided that In 2005, an amendment (Clause Three) was elections of the Legislative Council are not the criteria must be met, without clarifying added to Art. 47 that established ‘[t]he term held every four years. This means that Art. if one or all needed to be met. The decision of the Legislative Council shall be four 47 only applies in the presence of two Coun- was issued by a weak majority (four out of years from the date of it being elected and cils, a Council that has finished its mandate seven judges) and it led to Law No. 23 being the elections shall be conducted once each and a newly elected Council. revoked on the ground that it was unconsti- four years in a regular manner’. Art. 47 (bis) tutional to consider the police as a military also establishes that ‘[t]he term of the current - Taking the text of Art. 55 into account, the rather than a civilian apparatus. It was held Legislative Council shall terminate when the SCC considers that there are no valid rea- that the Court, in issuing this interpretation, members of the new elected Council take the sons for continued benefits to be provided had erred by considering the police as a mil- constitutional oath’. to members, including financial entitlements itary organ and by giving military courts the and bonuses due from the date when the de- competence to prosecute its members. In do- This decision clarifies that the Legislative cision was issued. ing so, it had overlooked the fact that these Council is the elected legislative authority courts must be subject to their natural judge, and establishes that the Legislative Council - The Legislative Council is entirely absent who is always the regular, and not the mili- is not just individuals or individuals who and has not convened a session since 5-7- tary, judge. won the special elections; rather, it is one of 2007; its last term expired on 25/1/2010 and three authorities entrusted with constitution- it remains inoperative; as such, the national This ruling sparked a subsequent lengthy al tasks and is, by virtue of this fact, one of interest requires the dissolution of the Legis- debate, which was enriched by contributions the most important authorities in the country. lative Council. from various civil society actors and special- The Legislative Council, elected on ists in the fields of public law and human 25/1/2006, held only one session, on - The Council called on the President of the rights. It ultimately forced the president of 5/7/2007. The Court, in registering this fact, State to announce legislative elections with- the Court to issue a statement that clarified proceeded to argue that the Council had ‘re- in six months of the decision being published the decision and negated the Court’s stated fused’ to carry out the role entrusted to it as a in the Official Gazette. intention to place civilians under the juris- legislative authority and had refused to abide diction of military courts. by the laws and regulations governing its :KLOHWKHGHFLVLRQKDVDVROLGIDFWXDOIRXQ- work, including the second regular session dation, it cannot be claimed that the BL did 3. Judgment 10/2018, December 12, 2018: In- convened by His Excellency the President not touch on the issue of the dissolution of terpreted Art. 47, 47 )bis( and 55 of the BL to in accordance with the law and their oath. the Legislative Council. This is established clarify if the Legislative Council is inopera- As a result, it lost its status as a legislative by Art. 113 of the BL, which clarifies that ‘[t] tive, with the intention of establishing if Leg- authority and thus the status of Legislative he Palestinian Legislative Council may not be islative Council members should still receive Council. It finally observed that, although dissolved or its work hindered during a state salaries and benefits sessions have not been held, representatives of emergency, nor shall the provisions of this still receive their salaries and benefits in ac- title be suspended’. Taking into account the The Minister of Justice requested this inter- cordance with Art. 55 (‘A Member of the fact that the constitutional legislature prohib- pretation from the SCC after a request from Legislative Council shall receive a monthly ited the dissolution of the Legislative Council the President of the Judicial Council, the salary determined by law’), which places during a state of emergency, it is questionable President of the Supreme Court. The request a further burden on the state of Palestine’s if the decision of the SCC that dissolved the highlighted that the Legislative Council had budget. Legislative Council is itself constitutional. failed because it had not convened from the But Art. 47 (bis) provides clear evidence that end of its first session on July 5, 2007 up un- In its interpretation, the Court decided on the term of the Legislative Council may be ex- til the end of its legal and constitutional term five main points, which are as follows: tended under exceptional circumstances. This on January 25, 2010. The continuation of this issue was raised in 2016 when the Supreme 2018 Global Review of Constitutional Law | 227 Court, acting in its constitutional capacity, IV. LOOKING AHEAD addressed itself to the termination of Moham- mad Dahlan’s official and private immunity, The BL must not be burdened with the stig- which derived from his status as a Legislative ma of failure for these violations, as it was 5 Council member. The Court decided on this enacted as an interim constitutional alter- specific matter and did not extend its decision native that was created within a particular of the dissolution of the whole Council. The framework and specific political, cultural Court ruled that the President has the full au- and national circumstances. The constitu- thority to cancel the immunity of any Parlia- tional court, however, is not entrusted with ment member when the Legislative Council fulfilling the public’s wishes, but is instead is not convened. It also decided that the Pres- tasked with ensuring compliance with the ident’s decree was consistent with his legal constitution. authority. The Modern Palestinian constitution is ex- The Court’s decision is however contrary to pected to be revived and put back on the the Amended Basic Law and Electoral Law, table, and the same applies to the various is- which establishes that presidential and legis- sues and gaps that this review has addressed. lative elections should be held concurrently. It is anticipated that the constitution will put In fact, there is no need to dissolve the Leg- in place a pluralistic parliamentary democ- islative Council because the elections have racy that fully conforms with International been due since 2010; hence the real constitu- Law and Human rights. tional violation is the fact that the president is not calling for presidential or legislative V. FURTHER READING elections! Asem Khalil, ‘Impulses from the Arab The dissolution of the Legislative Council Spring on the Palestinian State-Building has been implemented as a consequence of Process’ in Rainer Grote and Tilmann Röder political will, but it is not expected that the (eds): Constitutionalism, Human Rights and elections will be implemented – if elections Islam after the Arab Spring (OUP, 2016) do take place, there are no signs that this will be done in accordance with to the Basic Law $VHP.KDOLOµ%H\RQGWKH:ULWWHQ&RQVWLWX- and the Electoral Law (i.e. that presidential tion: Constitutional Crisis of, and the Insti- and legislative elections will be concurrent). tutional Deadlock in, the Palestinian Politi- The decisions of the Constitutional Court, cal System as Entrenched in the Basic Law’ if anything, envisage the restoration of the (2013) 11 International Journal of Constitu- PLO’s powers in all its councils. tional Law 34-73 5 Supreme Court, Rammallah, 06/2012, 26/04/2016. 228 | I•CONnect-Clough Center Peru Maria Bertel 'U(OLVH5LFKWHU)HOORZ ):) 5HVHDUFK)HOORZ&(8– University of Innsbruck and Central European University, Budapest1 César Landa Dr., former Head of the Peruvian Constitutional Court 3URIHVVRU3RQWL¿FLD8QLYHUVLGDG&DWyOLFDGHO3HU~ Luis A. López Zamora Doctoral Researcher –:DOWKHU6FKFNLQJ,QVWLWXWIU,QWHUQDWLRQDOHV5HFKW Christian Albrechts Universität zu Kiel, Kiel, Germany PERU I. INTRODUCTION Peruano (APRA). Thus, Vizcarra could not (and cannot) rely on a majority in Congress. The year 2018 was marked by two serious This led to a situation where the executive corruption cases in Peru. The first one was and the legislative were confrontational right the Odebrecht case, even though this was a from the beginning, and the majority in Con- topical case already in 2017. It forced Presi- JUHVVZRUNHGDJDLQVWWKHH[HFXWLYH:KHUHDV 2 dent Kuzcynski, the winner of the 2016 pres- according to opinion polls Vizcarra main- idential election, to step down from office. tains strong popular support, Congress uses its law-making powers and the means of par- The second corruption case regarded the liamentary procedure in abusive ways, lead- judiciary. Journalists unmasked a broad net- ing to its decreasing public support (which work of corruption on the national level, was reflected in a referendum). Therefore, it which involved the top echelon of the judi- does not come as a surprise that 2018 was ciary (public prosecutors, judges, business- a rather turbulent year for Peruvian politics. men, parliamentary members). This is also reflected in the developments in constitutional law and in the case law of the Since March 23, 2018, former first Vice-Pres- Constitutional Court. ident Martín Vizcarra has served as Presi- dent, and has chosen to play an active role. II. MAJOR CONSTITUTIONAL He positioned himself as willing to push the DEVELOPMENTS necessary reforms forward against the cor- ruption in the judiciary and political system, The Brazilian company Odebrecht admit- although he found himself in a weak posi- ted corrupting the government of Pedro tion. Congress was (and still is) dominated Kuczynski. This was only the tip of the ice- by the Popular Force (Fuerza Popular), the berg. Former Presidents Alejandro Toledo, party of Keiko Fujimori, who is the daughter Alan García and Ollanta Humala, as well as of the condemned former President Alberto Keiko Fujimori, had also received money Fujimori, with the support of Partido Aprista from Odebrecht. These events highlight the 1 ;OLYLZLHYJOMVY[OPZYLWVY[^HZWHY[S`ÄUHUJLKI`*LU[YHS,\YVWLHU 2018 Global Review of Constitutional Law | 229 vulnerability of the Peruvian political and political negotiations with Congressman :LWKRXW WKH FRQVHQW RI SXEOLF RSLQLRQ WKH democratic system. The reasons lie with the Kenyi Fujimori, who is the son of Alberto referendum would have been doomed to strong role of the President and the influence Fujimori (a former authoritarian president) failure. The only option left would have been of factual economic powers. The neo-liberal and the brother of Keiko Fujimori (the head the collection of signatures of citizens. To economic Constitution of 1993 (PC) rein- of the Popular Force Party). The negotiations avoid this, President Vizcarra chose anoth- forces the problem. resulted in a presidential pardon for Alberto er option. He asked Congress for its support Fujimori on December 24, 2017, and show through a motion of confidence (cuestión de Apart from the international Odebrecht that the Fujimori family is still very much confianza). According to Article 133 PC, the case, a national corruption scandal became involved in Peruvian politics. Soon after, the President of the Council of Ministers (Exec- public. The leakage of wiretaps showed the Odebrecht case emerged in the news again. utive Power) can present a vote of no confi- weakness of the judicial branch and the pub- The Popular Force leadership put pressure dence to Congress. Congress can then accept lic prosecuting service. The scandal put in on Kuczynski. The President resigned on or deny the vote of no confidence. The Presi- doubt the effectivity of investigations of cor- March 21, 2018. dent can dissolve Congress and convoke new ruption cases in the past and increased public elections when the Congress expresses its pressure on the streets. First Vice-President Martín Vizcarra as- mistrust twice. Congress had already denied sumed the presidency on March 23, 2018. confidence in the cabinet of former President 2018 was furthermore marked by the polit- Another serious corruption crisis, which in- Kuzcinsky once. Thus, a second approval of ical conflict between Congress and the ex- volved the heads of the judicial branch and the vote of no confidence would have led to ecutive branch. It all started when the leader members of the Popular Forces, led to pro- its dissolution. The dissolution of Congress of the Popular Force Party, Keiko Fujimori, tests in the streets. President Vizcarra then would have led to new elections. Opinion did not accept her 2016 electoral defeat proposed a referendum in order to reform polls predicted disastrous results for Popu- against Pedro Pablo Kuczynski (50.12% to the Constitution. lar Force if there were new elections. It does :LWK RI WKH YRWHV IRU &RQ- not, therefore, come as a surprise, given the gress, the Public Forces Party obtained an The Constitution offers two possibilities for circumstances, that the Parliament approved absolute parliamentary majority of 56%. The complete or partial reform (Articles 32 PC all constitutional amendments, even though confrontation between the executive and the and 206 PC). The first one consists of the by amending the original amendments. This legislative led to the excessive use of legis- approval of the reform by the Parliament allowed for the referendum to take place on lative instruments. Congress aimed not only and the population. This requires an absolute December 9. to control but also hassle the executive. This majority of votes of the members of Parlia- culminated in a call for the President to re- ment. The vote has to be confirmed by a ref- Yet, the approval had its price when Con- sign before his first year was over. erendum. The second possibility requires the gress modified the proposed reforms. approval of the constitutional reform without Among other amendments of the constitu- The Peruvian President enjoys immunity a referendum, but two positive votes of Par- tional amendment proposal, the Parliament from criminal jurisdiction. Impeachment is liament instead. The votes have to take place was turned again into a bicameral one, and only possible when the President commits in two successive ordinary legislatures. Each this allowed congressmen in office to stand infractions set forth in Article 117 PC, and vote requires a majority of more than two- for elections to the new Senate. Moreover, even then only by extraordinary means. thirds of Congress. Citizens can also ask for the Congress eliminated the planned gender These are determined by Article 113 PC a referendum when they have initiated a bill distribution of the members of the chambers. (permanent moral incapacity). and Congress modifies or rejects it. The basis And, it increased the number of representa- for such a request is the Law on Participation tives in both chambers. Modifications were The Parliament installed an investigative and Citizens Control.3 If citizens call for con- so remarkable, that President Vizcarra felt commission against President Kuczinsky for stitutional reform, the support of 0.3 percent compelled to ask the nation to vote against the purpose of investigating the Odebrecht of the electoral population suffices. In that his own proposal on the return to a bicameral case. The President did not disclose his deal- case, citizens do not call for a referendum. Parliament. He continued to support the oth- ings with Odebrecht before the commission. They initiate the process of constitutional re- er constitutional amendments in spite of the As a consequence, the Parliament discussed form in Congress. As laid down above, this modifications. a request for presidential vacancy (based on usually leads to a referendum. Article 113 PC). On December 9, 2018, the referendum took Since President Vizcarra could not rely on a place. Four questions were raised: 1. Do you The vote carried out by the Plenum of Con- majority in Congress, he had to convince the approve the constitutional reform on the con- gress on December 21, 2017 was not suc- Congress, with the support of public opinion, formation and functions of the National Board cessful. This was thanks to the government’s to approve the constitutional amendments. RI-XVWLFH" IRUPHUO\WKH1DWLRQDO&RXQFLORI 3 Ley de los Derechos de Participación y Control Ciudadanos, Ley Nº 26300, Articles 38, 41. 230 | I•CONnect-Clough Center the Magistracy); 2. Do you approve the con- The Court also pointed out that the refusal to TC) on the so-called Anti-Transfer Law, stitutional reform regulating the financing of assess the evidence provided by the defense which the Court found to be partly uncon- SROLWLFDORUJDQL]DWLRQV" 'R\RXDSSURYH OHGWRDODFNRIUHDVRQLQJ:KHUHDVWKHGH- stitutional. This decision dates back to 2017 the constitutional reform that prohibits the cision whether a conviction was justified is and was then followed by another decision immediate re-election of parliamentarians of a matter of ordinary jurisdiction, the control in 2018 (Exp. 0001-2018-PI/TC) on a tight- WKH5HSXEOLF" 'R\RXDSSURYHWKHFRQVWL- whether fundamental rights were violated ly connected case; therefore, these cases are tutional reform establishing bicameralism in falls into constitutional jurisdiction. presented together. WKH&RQJUHVVRIWKH5HSXEOLF"%\DPDVVLYH majority of more than three quarters (85%), The Constitutional Court laid down rules for The 2017 decision entails an interesting anal- Peruvians voted in favor of the first three criminal judges when evaluating new ele- ysis of the nature of representative democra- reforms while rejecting the proposal on the ments in the context of a request of pretrial cy. It concerns the scope of the representa- establishment of a bicameral Parliament. detention. According to the Constitutional tive mandate of parliamentarians. The case Court, the judges had to assess all presented dealt with some modifications of the rules of III. CONSTITUTIONAL CASES elements. These included not only the argu- procedure of Congress (Legislative resolu- ments presented by the Public Prosecutor’s tion N° 007-2016-2017-CR). The Fujimori 1. Ollanta Moisés Humala Tasso y Nadine Office but also by the defense of the suspect- parliamentary majority that approved them Heredia Alarcón: Arrest of former President ed person. At this stage, the competent crim- would have directly drawn benefits from Humala and First Lady Heredia inal judge had to assess only whether there their application. The main modifications were elements that linked the accused with consisted of the prohibition of members of In 2017, former President Ollanta Humala the crime. According to the Constitution- Congress who resigned from their parlia- and his wife Nadine Heredia were arrested, al Court, its rules for criminal judges when mentary group to form a new group. These accused of money laundering related to the evaluating new elements regarding a pretrial modifications restricted the fundamental Odebrecht scandal. By a majority, the Con- detention helped to safeguard the presump- rights of politically dissident congressmen. stitutional Court declared the habeas corpus tion of innocence. In the opinion of the Court, this measure was lawsuit of the Humalas founded and or- arbitrary and violated several fundamental dered their release (Exp. No. 04780-2017- The Court noted that the presumption of rights, entailing the freedom of conscience, PHC/TC and Exp. No. 00502-2018-PHC/ innocence also required another general the freedom of association, and the right to TC, accumulated). rule. This rule was that any person subject participation. Thus, the Court found that the to criminal proceedings had to be tried in changes to the rules of procedure which pro- The Court held that when pretrial detention is freedom. Pretrial detention as the depriva- hibited the formation of new parliamentary discussed, no evidence can be analyzed with tion of freedom could be the only exception. groups through dissident congressmen were the aim of punishment. In fact, this would be This had been expressed already in Article 9, unconstitutional. incompatible with the constitutional princi- paragraph 3 of the International Covenant on ple of the presumption of innocence. Yet the Civil and Political Rights: “The pretrial de- Given the public debate, the Fujimori bench Court stated that it was a very different mat- tention of persons who are to be tried should quickly presented and processed a new ter to consider that the discharge evidence not be the general rule....The Inter-American bill. This new bill modified the regulation, was not worthy of assessment at this stage. Court of Human Rights has also stated that even before the Court issued its ruling (P.L. :KHQ DVVHVVLQJ WKH MXVWLILFDWLRQ RI SUHWULDO the principle of the presumption of inno- 1874/2017-CR). An interregnum was the detention, all the elements, those of charge cence gives rise to the State obligation not consequence. The ruling was published in and those of discharge, had to be valued. The to restrict the liberty of the detainee beyond the official newspaper, El Peruano on Sep- aim of the evaluation was not to decide about what is strictly necessary and proportionate tember 13. Four days later, Congress did the guilt or innocence, but to determine if there to ensure that it will not impede the efficient same with Legislative Resolution No. 003- was a plausible link between the investigated conduct of investigations and that it will not 2017-2018-CR. In the meanwhile, dissidents persons and the criminal act. evade justice.” The Constitutional Court did of the leftist parliamentary group Frente not only quote the Inter-American Court of Amplio created a new group, named Nuevo The Constitutional Court found a violation Human Rights, it also referred to the Euro- Perú. of various fundamental rights. This encom- pean Court of Human Rights in that respect. passed the fundamental right to proof (as an An action of unconstitutionality was filed implicit manifestation of due process (Ar- 2. Modification of Article 37 on the rules of against the new legislative resolution. The ticle 139, paragraph 3 PC), the right to de- procedure of Congress on the regulation of problem was that the previous ruling of the fense, and the fundamental right to personal parliamentary groups Constitutional Court (Exp. No. 0001-2018- liberty (Article 2, paragraph 24 PC). PI/TC) was not fully respected. This time the On August 29, 2017, the Constitutional Court did not declare the resolution uncon- Court issued a ruling (Exp. 0006-2017-PI/ stitutional. It issued an interpretive ruling 2018 Global Review of Constitutional Law | 231 regarding Article 1 of Legislative Resolution 133, and 134 PC). The claimants argued that fore, exceeded the scope of the normación 003-2017-2018-CR, which changed Article the modification affected the principle of di- autónoma, affecting the faculty of the Cabi- 37 of the Rules of Procedure of Congress. vision of power, the principle of balance of net of Ministers to put forward a vote of no Article 37 must be interpreted as follows. powers, and the political regime established confidence. in the Constitution because it incorporated The resignation of members of Congress three rules altering them. Those new rules Additionally, the Court noted that the prin- from political groups in the event of dissent foresaw that: a) If the Parliament rejected a ciple of division of power limits any consti- for reasons of conscience is not prohibited. confidence motion (requested by the Presi- tutional reform, as it forms part of the “hard The Court stated (para 50), that the prohibi- dent of the Council of Ministers), the new core” of the Constitution. The Court also tion on forming a new parliamentary group ministerial cabinet should be composed of argued that the confidence motion was de- or joining an existing one is not applicable in completely new ministers; b) If this rule signed as a counterbalance to the mechanism all cases. If a congressman resigns because was not followed by the executive (i.e., the of the censure of ministers (attribution given of infringement of due process of rights con- new cabinet was composed of old and new to the Parliament). Consequently, the Court tained in the rules of procedure of the respec- ministers), the rejection of the motion should found, that Article 86 literal e) and three spe- tive group, the rule cannot apply. It weighs not be counted when the above-mentioned cific rules included in the modification were even stronger when it is the parliamentary condition of two denials of passed motions unconstitutional. group that is undergoing an ideological shift. of no confidence were to be verified for the :KHQ WKH FRQJUHVVPDQ UHVLJQV EHFDXVH RI dissolution of the Parliament; and c) The 4. “Ley Mulder”: law regulating state ad- that shift, the rule cannot apply either. Many President of the Council of Ministers should vertising expenditure internal rules of parliamentary groups do not not be able to include the approval of laws or foresee norms for those cases. This does not the approval of proceedings of parliamentary An example of a law with a positive back- mean that congressmen can be deprived of control in a vote of no confidence. ground at first sight, but then leaving a stale their fundamental rights. Consequently, the aftertaste, is the so-called “Law Mulder”.4 Court upheld Articles 1 and 2 of legislative According to the defense of the Parliament, (The name derives from the APRA congress- resolution 003-2017-2018-CR if interpreted Legislative Resolution 007-2017-2018-CR man who had proposed the bill, Mauricio consistently with the Constitutional Court established a valid and reasonable limitation Mulder.) This law aimed at reducing public decision. to the vote of no confidence. The defense ar- spending on state publicity. This should have gued that a restriction applying to the Coun- been achieved through the prohibition of 3. Vote of no confidence and total cabinet cil of Ministers, or a ministry, regarding its state publicity in private means of communi- crisis: Changes to the rules of procedure of possibility to request a vote of no confi- cation. All state entities, including state busi- Congress dence, connected with the approval of a leg- nesses, were bound by the prohibition. State islative act, was reasonable since the approv- publicity, including information campaigns, This decision of the Constitutional Court al of laws was an exclusive competence of was thus limited to state media. (Exp. 0006-2018-P1/TC) originated from the Parliament. At the same time, the defense another change of the rules of procedure of the Parliament added that it was unreason- Yet, state media cannot cover the whole ter- of Congress. The Popular Forces Party and able that a minister subject to an interpella- ritory of Peru. The consequence is that send- Partido Aprista Peruano (APRA) wanted to tion could introduce the interpellation as a ing information to the population is only change the rules on votes of no confidence. matter of a vote of no confidence. possible to a limited extent. This means that If the Constitutional Court had upheld the people in remote areas cannot receive infor- new regulations, the Parliament would have The Constitutional Court pointed out that mation about public interest matters. obtained a stronger position vis-à-vis the ex- the Constitution confers the competence of ecutive in case a no confidence vote was re- the normación autónoma (autonomous reg- Members of Congress and the executive jected. This would have mainly favored the ulation) to Congress. This allowed Congress challenged the law before the Constitution- Popular Forces Party and the APRA. to establish independently its own rules of al Court, which decided the case in October procedure; in that sense, the Congress is able (Exp. 0012-2018-PI/TC and 0013-2018-PI/ In March 2018, more than 25% of Congress to regulate its activities and its relationship TC). filed an action of unconstitutionality against with other institutions. However, the Court Legislative Resolution 007-2017-2018-CR concluded that the modification of Article The main concerns pointed at the reduction (i.e., the norm approved by Parliament mod- 86, literal e) of the Rules of Procedure (mod- of channels of information for the popu- ifying Article 86, literal e) of its procedural ifying the relationship between the executive lation, because the term “publicity” in the rules) because it violated several articles of and the Parliament) entered into matters that context of Law Mulder also encompasses the Constitution (Articles 43, 103, 105, 132, were not parliamentary in nature and, there- “institutional publicity”. In fact, institutional 4 Ley que regula el gasto de publicidad del estado peruano, Ley Nº 30793. 232 | I•CONnect-Clough Center publicity is advertising by the state to inform (Ley que establece la ejecución humanitar- the population. It serves to disseminate in- ia de la pena, Ley N° 3533). It is aimed at formation on matters of public interest. establishing the possibility of house arrest instead of a prison sentence for vulnerable Moreover, the claimants stated that the Inter- people. It was passed in accelerated proceed- net as a means of information could not yet ings, just in time to be applied to Alberto Fu- serve as such. Access to the Internet, espe- jimori, whose pardon had been lifted a few cially in remote areas, is not yet guaranteed. days earlier. President Vizcarra, however, The Court found a violation of the principle chose not to sign the bill and to send it back of proportionality with regard to the liberty to Congress, where the parliamentary Com- of information. It held that there would have mission on Justice and Human Rights had to been other means to regulate publicity, such issue a report taking into consideration the as more effective tools of public spending in President’s concerns. this area. Instead of a complete prohibition, more proportionate solutions were available. IV. LOOKING AHEAD Moreover, the Court found a violation of the freedom of contract and of the principle of One does not have to be a fortune teller to criminal legality. predict that the severe corruption cases will continue to hold the Peruvian people in sus- Thus, the Court struck down the law because pense in 2019. People involved in corruption of its content. Yet, it also examined formal cases have usually been influential. This in- arguments raised by the claimants. Congress cludes the leader of the Popular Force Party, had passed the bill using an accelerated proce- Keiko Fujimori, who is currently in custo- dure; therefore, the claimants argued that the dy, and former Presidents Toledo, García, bill had lacked proper discussion in Congress. Humala, and Kuczynski, who are currently subject to judicial measures of restriction of Relying on an earlier decision, the Court em- liberties. phasized the importance of public debate for Apart from that, challenges arise from the democracy. According to the Court, this im- further implementation of constitutional plies that the “decision making must be based changes following the referendum. New leg- on a constant and rich exchange of argu- islation has to follow the amended Constitu- ments, which requires that all those involved tion. Like in the past, one question will prob- have the necessary data to enable them to ably have to be discussed once again: should give an informed opinion that is geared to 3HUXJREDFNWRDELFDPHUDOV\VWHPRUQRW" the needs of the community” (p. 25, para 19). The Court tested the law against this V. FURTHER READING background but found no violation. Yet, the fact that it discussed the formal arguments in Maria Bertel, ‘Does the President have the detail is a signal. It can be seen as a warning Power to call a Constitutional Referendum directed to Congress of the importance of LQ 3HUX"¶ ICONnect Blog of the Interna- taking public debates there seriously. tional Journal of Constitutional Law, 6 Sep- tember 2018) 2018 Global Review of Constitutional Law | 233 Philippines Dante Gatmaytan, Professor – University of the Philippines I. INTRODUCTION complicity of the judicial branch in demo- cratic erosion. Rodrigo Duterte was elected in 2016, riding on a “law and order” campaign that exploit- A majority of Filipinos reject the shift to a ed popular anxieties about social disorder. federal system of government now. Only two Duterte promised to restore law and order out of ten agree that the 1987 Constitution PHILIPPINES in three to six months largely through the should be revised at this time. Nevertheless, extrajudicial killing of criminals. Besides shortly after assuming power, Duterte signed promising a quick fix to the growing crime an executive order (Exec. Ord. No. 10, Cre- problem, he also pledged to rebuild crum- ating a Consultative Committee to Review bling infrastructure and to end corruption. the 1987 Constitution [Dec. 7, 2016]) creat- This helps explain why his support was mid- ing a 25-member panel to propose specific dle-class driven, particularly strong among amendments to the Constitution. On July taxi drivers, small shop owners, and over- 3, 2018, the Consultative Committee an- seas workers who were worried their fragile nounced that it had accomplished its task and economic gains after years of growth would completed a draft constitution for a federal be threatened unless order was restored by form of government. The draft was submit- any means necessary. ted to Congress supposedly to guide its work on constitutional changes. Duterte is a new kind of politician who promises to use violence and strong-arm tac- The House of Representatives approved on tics in the quest to solve social and politi- the third and final reading its version of a cal problems; a platform known as “voting federal constitution. This draft removes the against disorder.” Voting against disorder term limits for House members and other entails the emergence, within a democratic local officials in the present Constitution. system, of support for a political platform Unlike the draft commissioned by President that either implicitly or explicitly promises Duterte, the House version does not have to undermine the rule of law—and with it, any provisions on the regulation on politi- democracy itself. cal dynasties, barely cloaking the attempt to keep themselves in power. Duterte and his allies have been brought be- fore the Supreme Court, but they have never In the judiciary, the Duterte administration’s lost a single case. Rather than operate as the campaign to remove constitutional checks guardian of the Constitution, the Supreme continues to gain traction. Two Supreme Court rules in favor of the President, imper- Court decisions stand out: The first, Lagman iling the separation of powers and consoli- v. Pimentel III, G.R. No. 235935, February dating power in the Executive Branch. 6, 2018, upheld the power of the President to extend the implementation of martial law for an entire year. This case continues II. MAJOR CONSTITUTIONAL the Court’s consistent crusade to undermine DEVELOPMENTS checks on the President’s power to declare martial law. The second case is Republic of Philippine politics is presently dominated by the Philippines v. Sereno, G.R. No. 237428, two themes: constitutional change and the 234 | I•CONnect-Clough Center May 11, 2018. In this case, a majority of the telling, and betray a vision of a judicial role ers.1 The Court does not see itself as an insti- Court granted a petition for quo warranto that supports the imposition of martial law: tution that checks constitutional powers but and removed the Chief Justice ostensibly on as a partner in the campaign against enemies the ground that she had failed to submit com- The imperative necessity of Martial Law as a of the State. The Supreme Court, in its own plete statements of assets and liabilities. tool of the government for self-preservation words “cannot afford to emasculate, dilute is enshrined in the 1935, 1973 and 1987 Con- or diminish the powers of government if in The “Philippines” case is astonishing be- stitutions. It earned a bad reputation during the end it would lead to the destruction of cause the damage to the judiciary is self-in- the Marcos era and apprehensions still lin- the State and place the safety of our citizens IOLFWHG :LWKRXW DQ\ RYHUW WKUHDW WKH 6X- ger in the minds of doubtful and suspicious in peril and their interest in harm’s way.” It preme Court has been ruling consistently for individuals. Mindful of its importance and misconstrues the purpose behind judicial re- the President. necessity, the Constitution has provided for view of the exercise of emergency powers. safeguards against its abuses. III. CONSTITUTIONAL CASES On February 19, 2019, the Court, in the case Martial law is a constitutional weapon of Lagman v Medialdea, G.R. No. 243522, 1. Lagman v. Senate President, G.R. No. against enemies of the State. Thus, Mar- upheld the third extension of martial law in 2 235935, February 6, 2018 tial law is not designed to oppress or abuse Mindanao for another year. law abiding citizens of this country. This case questioned the constitutional- 2. Republic of the Philippines v. Sereno, G.R. ity of the extension of the proclamation of Unfortunately, the enemies of the State No. 237428, May 11, 2018 martial law and suspension of the privilege have employed devious, cunning and of habeas corpus in the entire Mindanao for calculating means to destabilize the gov- On May 11, 2018, the Supreme Court of the an entire year, from January 1, 2018, to De- ernment. They are engaged in an uncon- Republic of the Philippines promulgated a cember 31, 2018. The Supreme Court once ventional, clandestine and protracted war historic ruling. In an 8-7 decision, the ma- more ruled in favor of the government and to topple the government. The enemies of jority removed Chief Justice Lourdes Sereno held that the only limitations to the exercise the State are not always quantifiable, not from office, abandoning in the process case of these powers are that the extension should always identifiable and not visible at all law that had limited removal of justices of be at the President’s initiative; that there is times. They have mingled with ordinary the Supreme Court to impeachment. an invasion or rebellion; that it is required citizens in the community and have un- by public safety; and that it is subject to the wittingly utilized them in the recruitment, Article XI, section 2 of the Constitution Court’s review of the factual bases. surveillance and attack against govern- states: ment forces. Inevitably, government forc- The Supreme Court has dismantled the con- es have arrested, injured and even killed SECTION 2. The President, the stitutional checks on the President’s power these ordinary citizens complicit with the Vice-President, the Members of the Su- to declare martial law, many of which were enemies. preme Court, the Members of the Consti- placed in the 1987 Constitution as a response tutional Commissions, and the Ombuds- to the Philippine experience under Ferdinand Admittedly, innocent civilians have also man may be removed from office, on Marcos. Under the new jurisprudence and been victimized in the cross fire as unin- impeachment for, and conviction of, cul- quite contrary to the intent of the framers, tended casualties of this continuing war. pable violation of the Constitution, trea- the Supreme Court can review the factual son, bribery, graft and corruption, other basis of the declaration of martial law based These incidents, however, should not high crimes, or betrayal of public trust. only on the President’s report, which does weaken our resolve to defeat the enemies All other public officers and employees not need to be either complete or accurate. of the State. In these exigencies, we cannot may be removed from office as provided Congress does not have to convene to check afford to emasculate, dilute or diminish by law, but not by impeachment. the President’s decision to impose martial the powers of government if in the end it law unless it will revoke the declaration. would lead to the destruction of the State The Supreme Court has always interpreted The President can extend the declaration of and place the safety of our citizens in peril the Constitution to mean that the public offi- martial law for any length of time. The Court and their interest in harm’s way. cials listed (which include the Chief Justice) has facilitated this, oblivious to the coun- can be removed only by impeachment. try’s horrific experiences during the time of It is no wonder then that there are barely any Ferdinand Marcos. Its concluding words are checks on the President’s emergency pow- 1 See Dante Gatmaytan, ‘Duterte, judicial deference, and democratic decay in the Philippines’ (2018) 28 Zeitschrift für Politikwissenschaft 553. 2 Lian Buan, ‘Supreme Court upholds 3rd extension of Mindanao martial law’ (Rappler, 19 February 2019) 2018 Global Review of Constitutional Law | 235 An impeachment complaint against the Chief stay in the office. An action for quo war- ranto, the cause of action lies on the Justice was filed in the House of Representa- ranto involves a judicial determination of usurping, intruding or unlawfully hold- tives but it was not gaining any ground. The the eligibility or validity of the election ing or exercising of a public office, case was so weak that incumbent and retired or appointment of a public official based while in impeachment, it is the com- Supreme Court justices queued in the House on predetermined rules. mission of an impeachable offense. of Representatives’ committee hearings to shore up the case against the Chief Jus- • The Court held that quo warranto and • The controversy in quo warranto pro- tice. The justices raised personal and some impeachment may proceed independent- ceedings is the determination of wheth- administrative issues but nothing remotely ly of each other as these remedies are dis- er respondent legally holding the Chief constituting an impeachable offense. tinct as to (1) jurisdiction (2) grounds (3) Justice position is to be considered an applicable rules pertaining to initiation, impeachable officer in the first place. The Duterte administration then decided to filing and dismissal, and (4) limitations. On the other hand, impeachment is try a different track: file a petition for quo for respondent’s prosecution for cer- warranto to skirt impeachment and trial at • A quo warranto proceeding is the proper tain impeachable offenses. Respon- the Senate. legal remedy to determine the right or ti- dent is not being prosecuted herein for tle to the contested public office or to oust such impeachable offenses enumer- This strategy should have been disallowed the holder from its enjoyment. In case of ated in the Articles of Impeachment. as well. The Court has decades-old case law usurpation of a public office, when the that barred the Solicitor-General from filing respondent is found guilty of usurping, • Impeachment is not an exclusive rem- a quo warranto case against public officers intruding into or unlawfully holding or edy by which an invalidly appointed or a year beyond the time they took office. The exercising a public office, position or invalidly elected impeachable official Supreme Court has always held that in ac- franchise, the judgment shall include the may be removed from office. Section 2, tions of quo warranto involving the right following: Article XI of the Constitution does not to an office, the action must be instituted foreclose a quo warranto action against within the period of one year from the time the respondent shall be ousted and ex- impeachable officers. The provision uses the cause of action arose. Sereno had been cluded from the office; the permissive term “may,” which, in appointed six years before Duterte launched statutory construction, denotes discre- the campaign to remove her from office. the petitioner or relator, as the case tion and cannot be construed as having may be, shall recover his costs; and a mandatory effect. An option to re- The justices who appeared before the House move by impeachment admits of an al- of Representatives refused to recuse them- such further judgment determining the ternative mode of effecting the removal. selves, contributing five of the eight votes respective rights in and to the public towards removing the Chief Justice. office, position or franchise of all the • The courts should be able to inquire into parties to the action as justice requires. the validity of appointments even of im- The Supreme Court’s ruling was that an peachable officers. To hold otherwise is impeachment is not necessary because the • The remedies available in a quo warranto to allow an absurd situation where the Chief Justice’s appointment was defective. judgment do not include correction or re- appointment of an impeachable officer It was defective because she did not posses versal of acts taken under the ostensible au- cannot be questioned even when, for “integrity”—a qualification for appointment thority of an office or franchise. Judgment instance, he or she has been determined to the Supreme Court. She did not possess is limited to ouster or forfeiture and may to be of foreign nationality or, in offic- integrity because she did not file a complete not be imposed retroactively upon prior ex- es where Bar membership is a quali- set of Statement of Assets and Liabilities. ercise of official or corporate duties. fication, when he or she fraudulently The Court held as follows: represented to be a member of the Bar. • Quo warranto and impeachment are not To construe Section 2, Article XI of the • The Court distinguished between im- mutually exclusive remedies and may Constitution as proscribing a quo war- peachment and an action for quo war- even proceed simultaneously. The ex- ranto petition is to deprive the State of a ranto. Impeachment is a proceeding istence of other remedies against the remedy to correct a “public wrong” aris- exercised by the legislature, as represen- usurper does not prevent the State from ing from defective or void appointments. tatives of the sovereign, to vindicate the commencing a quo warranto proceeding. breach of the trust reposed by the people • An action quo warranto is not barred in the hands of the public officer by de- • The causes of action in the two pro- by prescription. “A quo warranto ac- termining the public officer’s fitness to ceedings are different. In quo war- tion is a governmental function and not 236 | I•CONnect-Clough Center a propriety function, and therefore the propriety of acts of their colleagues, a lamation 572 and voided the amnesty grant- GRFWULQHRIODFKHVGRHVQRWDSSO\:KHQ scenario which can undermine the inde- ed to Senator Antonio Trillanes IV, his most the government is the real party in inter- pendence of each of the members of the outspoken critic in the Senate. Trillanes os- est, and is proceeding mainly to assert High Court. tensibly failed to comply with the require- its rights, there can be no defense on ments for a valid amnesty after he participat- the ground of laches or prescription.” The Supreme Court, instead of protecting its ed in a mutiny to protest corruption in the independence, crafted another avenue for the military in 2003. • The Court held that a member of the removal of a member of the Court. Despite Judiciary must be a person of proven its previous rulings on the use of impeach- In issuing Proclamation No. 572, Duterte competence, integrity, probity and inde- ment as an exclusive remedy to remove a assumed judicial functions by declaring the pendence. Having filed an incomplete set member of the Court; despite its previous amnesty void and then ordering Trillanes’s of Statements of Assets and Liabilities rulings on the temporal limitations on the arrest. This case is already working its way (which is required by the Constitution), use of an action for quo warranto; despite up to the Supreme Court. she could not rightfully claim to be a per- its rulings on protecting impeachable offi- son of integrity. cials from collateral attacks (disbarment, for On February 13, 2019, the Philippine Na- example); and despite the fact that the Chief tional Police arrested the CEO of Rappler, Chief Justice Sereno filed a motion for jus- Justice’s qualifications had been assessed a news organization critical of the Duterte tices who appeared at the House of Repre- and not found defective by the Judicial and administration, for cyberlibel, a crime she sentatives impeachment hearings to inhibit Bar Council (the body that vets appointees allegedly committed in May 2012, even themselves from the case, claiming that they to the judiciary), the Supreme Court still though the crime was not defined until Sep- were biased. The majority opinion denied decided to hand over its Chief to the Chief tember that year. The CEO, Maria Ressa, has the motion, holding that: Executive. a pending case for tax evasion, and Rappler is under investigation for allegedly being :H GHHP LW EDVHOHVV QRW WR PHQWLRQ The Court denied a motion for reconsider- foreign controlled.4 problematic, the respondent’s prayer ation on June 19, 2018. that the matter of inhibition of the six V. FURTHER READING Associate Justices be decided by the The implications of the Court’s ruling are remaining members of the Court En dire: Such logic could be applied to any gov- Dante Gatmaytan, ‘Duterte, judicial defer- Banc. The respondent herself was cog- ernment appointee, regardless of how long ence, and democratic decay in the Philip- nizant that the prevailing rule allows they have served. The ruling could even be pines’ (2018) 28 Zeitschrift für Politikwis- challenged Justices to participate in the applied to a President. senschaft 553 deliberations on the matter of their dis- qualification. Moreover, exclusion from IV. LOOKING AHEAD Dante Gatmaytan, ‘Abusive judicial review the deliberations due to delicadeza, or in the Philippines’ (New Mandala, 24 August sense of decency, partakes of a ground The Supreme Court already held oral argu- 2018) 3 +HOSPH:PTHUNHUº0Z[OL7OPSPWWPUL¸>HYVU+Y\NZ¹HU(J[VM.LUVJPKL&» 1V\YUHSVM.LUVJPKL9LZLHYJO 68. 4 Aie Balagtas See and Matthew Reysio-Cruz, ‘Rappler CEO arrested; no bail recommended’ (7OPSPWWPUL+HPS`0UX\PYLY, 14 February 2019) 2018 Global Review of Constitutional Law | 237 Poland Tomasz Tadeusz Koncewicz, Professor of European and Comparative Law; Director of WKH'HSDUWPHQWRI(XURSHDQDQG&RPSDUDWLYH/DZ8QLYHUVLW\RI*GDĔVN %UDXGHO Senior Fellow, European University Institute, Florence Anna Podolska, Assistant Professor; Department of Human Rights and Legal Ethics, 8QLYHUVLW\RI*GDĔVN ;OL(\[OVYZHJRUV^SLKNLM\UKPUNYLJLP]LKMYVT[OL,\YVWLHU I. INTRODUCTION have not only been sitting on the cases heard by the Court in 2018 (see infra) but they have POLAND In the case of the Polish Constitutional Court also validated ex post facto their selection to (“the Court”), analysis of constitutional de- the Court; and iii) the statutory scheme of in- velopments in 2018 must start with a recap tricate legislative provisions adopted by the of the period 2015-2017 to set the context.1 majority brought the Court to heel and para- 3 One cannot simply go about analysing the lysed its day-to-day functioning. case law of the Court in 2018 as if nothing had previously happened. Just as 2017 was, In 2018, this sad state of affairs not only con- so 2018 continued to deliver on the promise tinued but also further aggravated the health of the capture of state and institutions that of liberal democracy in Poland. 2018 added has been in full swing in Poland since 2015.2 new plots, themes and manifestations. Last This legacy of the capture lives on, rede- but not least, it invited us to step back for fines the Court and its role, exerts perturbing a moment and ask a more general question: effects on the judicial review and dramati- how does the capture of the Polish Constitu- cally decreases the efficiency of the Court. tional Court affect the tenets of liberal con- :ULWLQJIRUWKHHGLWLRQRIWKHSUHVHQW VWLWXWLRQDOLVPEH\RQG3RODQG" book, it was remarked that the Polish Con- stitutional Court, “once a proud institution, II. MAJOR CONSTITUTIONAL and an effective check on the will of the ma- DEVELOPMENTS jority, entered 2017 as a shell of its former self with constitutional scars. The latter af- The combined effect of the changes intro- fect not only the legitimacy of the institution duced in 2015-2016, the management of the but also the very constitutionality of the ‘de- Court’s workload by the (irregular) President cisions’ rendered by the new court in 2017 RIWKH&RXUW-XGJH-XOLD3U]\áĊEVNDDQGWKH […]”. 2017 analysis identified scars that had continued adjudication by “irregular judges” transformed the constitutional identity of the marginalized the significance of the jurispru- Court: i) unconstitutional composition, both dence of the Court in the Polish legal order. at the level of the judges and the President Its overall institutional efficiency took a hit. and Vice President; ii) the “irregular judges” The Court lacks in staff, the proceedings 1 T. T. Koncewicz, ‘Understanding the Politics of Resentment. Of the Principles, Institutions, Counter-Strate- gies and ... the Habits of Heart’ (2019) 26(2)0UKPHUH1V\YUHSVM.SVIHS3LNHS:[\KPLZ 501. 2 W. Sadurski, ‘How Democracy Dies (in Poland): A Case Study of Anti-Constitutional Populist Backsliding’, Sydney Law School Research Paper 18/01 at http://ssrn.com/abstract=3103491. 3 T. T. Koncewicz, -HYL^LSS[V[OL7VSPZO*VUZ[P[\[PVUHS*V\Y[, at http://verfassungsblog.de/fare- well-to-the-polish-constitutional-court/. At the time of this writing, the ruling political majority in Poland has total control of the Court, as 9 out of 15 judges have been elected by the new Sejm after the parliamentary elections in November 2015. Three judges have been elected unconstitutionally since there was no vacancy on the Court at the moment of their appointment. 238 | I•CONnect-Clough Center last longer and there is a problem with the positions of the panels in an unprecedented III. CONSTITUTIONAL CASES execution of the judgments.4 The number of 49 cases (53 orders). To make things even cases filed with the Court, as well as those it worse, the President acted contra legem: in :KLOH LQ WKH &RXUW GHFLGHG IHZ decided, decreased significantly. Before the all 49 cases, there was no statutory legal ba- non-controversial cases,10 for the most part, constitutional crisis, the Court accepted about sis for making the changes to the adjudicat- it was a forum for political scuffles and “rub- 500-600 cases annually. In 2016, this number ing panel. In 21 cases, decisions were made ber-stamping” the illegal actions of the rul- 8 decreased to 360 cases, and in 2017 to 282 without providing any grounds. In one case, ing party. cases. The Court that was once known for its it was indicated by one of the irregular judg- efficiency (in 2014 alone the Court rendered es that it is possible to change the composi- Case K 1/1811 shows the operation of the 119 judgments; and 173 decisions in the year tion of the panels by, for example, “changing legislative process in Poland under the right- 2015) has become an institution in slow mo- the rapporteur for the case as a result of the wing government. The allegations concerned tion: in 2016 and 2017, the Court issued 99 lack of acceptance of the composition of the the course of legislative procedure followed 5 9 and 89 judgments, respectively. In 2018, the presented draft judgment”. As a result of all by the Parliament. The deadline for consul- number dropped to an all-time low of 65 deci- this, the Court steered from within to mini- tations with representative organizations of 6 sions (36 judgments and 29 orders). This is a mise the uncertainty of a result and deliver employers, employees and the Social Dia- picture of an institution in decline. on the expectations of the powers that be. logue Council has been shortened, but the The judges rushed to the bench by the ruling Sejm (lower house of Parliament) adopted The practice of configuring adjudicating party were treated with preference. In 2018, the act before the end of the designated pe- panels raises serious concerns. In general, in the judges (both regular and irregular) elect- riod. The Court (irregular judges sat on this 2017, in 18 out of 36 cases, the Court con- ed by the current Parliament acted as rappor- case) supported the position presented by the sisted of unconstitutionally elected judges. teurs and presided over 41 cases. Add to all Prosecutor General (who is also the Minister In 2018, this situation occurred in 28 out this the personal attacks by irregular judges of Justice) and the Speaker of the Sejm. It 7 of 65 cases. In addition, the composition on the independent institutions still in exis- was stated that failure to complete the opin- of the judicial panels has been anything but tence in Poland, like the Ombudsman. ion-making procedure was a violation of the predictable. In January and February 2017, law, but not of a constitutional intensity. Vio- the President of the Court changed the com- lation of statutory provisions did not exclude 4 ++é\NVZaº;HR7P:ZWHYHSPǏV^Hé;Y`I\UHé2VUZ[`[\J`QU`»;OPZPZOV^70:WHYHS`ZLK[OL*VUZ[P[\[PVUHS*V\Y[5L^Z^LLR, 13 February 2019, at https://www. newsweek.pl/polska/tak-pis-sparalizowal-trybunal-konstytucyjny/xf4shpr. 5 /LSZPljZRH-\UKHJQH7YH^*aéV^PLRHº7YHJ\QL[HRQHRWV^PUPLU&;Y`I\UHé2VUZ[`[\J`QU`^ YVR\»WH[O[[WZ!^^^OMOYWS^WJVU[LU[\WSVHKZ HFPC-Pracuje-tak-jak-powinien-raport-TK-2017.pdf. 6 The statistics come from the website: http://trybunal.gov.pl/. 7 The question of the legality of the election of persons sitting on the Court was raised in a few cases and happened by way of dissenting opinions. Every time she ZH[VU[OLILUJO^P[O[OLQ\KNLHWWVPU[LK^P[OV\[SLNHSIHZPZ1\KNL7YVMLZZVY:éH^VTPYH>YVURV^ZRH1HNjRPL^PJaZPNULKHZLWHYH[LVWPUPVUPU^OPJOZOLWVPU[LK out the procedural irregularity of the decision as a result of the defective composition of the Court. For example, see her dissents in case P 3/16, OTK ZU A/2018, P[LT HUKJHZL2 6;2A<( P[LT0U[\YU\UJVUZ[P[\[PVUHSQ\KNLHUK\UJVUZ[P[\[PVUHS=PJL7YLZPKLU[VM[OL*V\Y[4HYP\Za4\Za`ljZRPYL[VY[LK I`HSSLNPUN[OH[1\KNL>YVURV^ZRH1HNjRPL^PJaOLYZLSM^HZZ^VYUPUHU\UJVUZ[P[\[PVUHSTHUULY-PYZ[OLHYN\LK[OH[OLYZLSLJ[PVU^HZJVU[YHY`[V[OL9\SLZVM Procedure of the Sejm. Secondly, he questioned the validity of her oath given before the Speaker of the Sejm, who at that time performed presidential duties. It is to ILUV[LKOLYL[OH[[OL:WLHRLYVM[OL:LQTWLYMVYTLK[OLZLK\[PLZPUHJJVYKHUJL^P[O[OL*VUZ[P[\[PVUHM[LY[OLWYLZPKLU[PHSWSHULJYHZOPU:TVSLljZR[OH[JSHPTLK [OLSPMLVM7YLZPKLU[32HJa`ljZRP:LL4\Za`ljZRP»ZKPZZLU[ZPUJHZL< 6;2A<( P[LTHUKPU7 6;2A<( P[LT 8 -VYTVYLKL[HPSZ!è>VǍUPJRPº9HWVY[a\WHKR\;Y`I\UHé\:[H[`Z[`RPUHQNVYZaLVKSH[»9LWVY[VU[OLJVSSHWZLVM[OL*V\Y[>VYZ[Z[H[PZ[PJZPU`LHYZ.HaL[H >`IVYJaH -LIY\HY` "º-\URJQVUV^HUPL;Y`I\UHé\2VUZ[`[\J`QULNV^SH[HJO¶ »9HWVY[ALZWVé\,RZWLY[}^7YH^U`JO-\UKHJQPPT:[LMHUH)H- torego>HYZaH^H H[O[[W!^^^IH[VY`VYNWS\WSVHKÄSLZ7YVNYHT` VWLYHJ`QUL-VY\T 0KLP-\URJQVUV^HUPL ;Y`I\UHS\ 2VUZ[`[\J`QULNV WKM:LLHSZV4.VZ[RPL^PJaº3PJaI`UPLRéHTPǃ7VWYaLQLJJP\WYaLa7P:;Y`I\UHé2VUZ[`[\J`QU`WYHJ\QLNVYaLQ»5\TILYZKVUV[SPL(M[LY[OL7P:HJX\PZP[PVU[OL Constitutional Tribunal works worse), at http://weekend.gazeta.pl/weekend/1,152121,22239134,pol-roku-dobrej-zmiany-w-trybunale-konstytucyjnym-duzo-spot- RHUO[TSHUK47HURV^ZRHº¸7HéHJ5V^VZPSJV^H¹;21\SPP7Ya`éLJIZRPLQSLUP\JO\QLPSHUZ\QLLSP[`7P:+^HSH[H;Y`I\UHé\»;^V`LHYZPU[OLSPMLVM[OL*V\Y[!;OL *V\Y[VM1\SPH7Ya`éLJIZRHPZSHa`HUKWYVTV[LZ[OLLSP[LZ7P:H[O[[WZ!VRVWYLZZWHSHJUV^VZPSJV^H[RQ\SPPWYa`SLIZRPLQVKKHSHZPLVKVI`^H[LSPPSHUZ\QLLSP[` pis-dwa-lata-trybunalu/. 9 Case K 9/16, OTK ZU A/2018, item 48. 10 By non-controversial cases, we mean cases of no political salience that take a backseat to political controversy. Every time the Court is called upon to adjudi- JH[LHUVUJVU[YV]LYZPHSJHZLP[PZYLÅLJ[LKPUP[ZJVTWVZP[PVU(ZHYLZ\S[YLN\SHYQ\KNLZJHUIL[Y\Z[LKHUKZP[VUZ\JOJHZLZ0[PZHS^H`ZQ\KNL7Ya`éLJIZRH^OV OHZHÄUHSZH`PUL]HS\H[PUN[OLJHZLZSVKNLKHUK[OLPYPTWVY[HUJLMYVT[OLWLYZWLJ[P]LVM[OLWV^LYZ[OH[IL-VYHUL_HTWSLVMHUVUJVU[YV]LYZPHSJHZLZLL SK 25/15. The Court decided that a minimal attorney’s fee in the amount of 60 PLN (ca. 15 EUR) is consistent with the right to a fair trial, but regulation interfered inadmissibly in the right of property. In another case (K 2/17), the Court stated that a two-month limitation period for compensation claims was irreconcilable with the right of property. In turn, in case SK 18/17, the Court was called on to decide the constitutionality of the limitation period for bringing an action for denial of WH[LYUP[`7VSPZOSH^WYLJS\KLZHJOPSK»ZJSHPTHM[LY[OYLL`LHYZMYVTYLHJOPUN[OLHNLVMJVUZLU[YLNHYKSLZZVM^OLUZOLVYOLMV\UKV\[HIV\[HKPɈLYLU[VYPNPU0U the Court’s opinion, this regulation was unconstitutional. 11 OTK ZU A/2019, item. 4. 2018 Global Review of Constitutional Law | 239 compliance with legislative procedure at the that the omission of the individual abolition have nothing to do with the Ombudsman’s constitutional level. The Court took issue from the list of negative prerequisites of the systemic role of protecting constitutional with the procedure followed by the Senate, proceedings is inconsistent with the Consti- rights and freedoms. His dissent was a thinly though. Doubts were raised whether Parlia- tution. The presidential prerogative of par- veiled incitement addressed to the Sejm to ment adopted the act because some basic don covers only the repeal or reduction of capture such recalcitrant offices still roam- technical irregularities vitiated the act of vot- a penalty made by way of a judgment that ing free in the space of an otherwise captured ing. The Court had doubts as to whether the has become final. As long as the proceedings state. challenged act was adopted at all. It proved have not been completed, there is a presump- enough to find the act incompatible with Art. tion of innocence. This excludes the use of IV. LOOKING AHEAD (AND 7 of the Constitution. Three judges (elected individual abolition. Otherwise, the juris- BEYOND POLAND) after 2015) submitted a dissenting opinion. diction of an ordinary court deciding a case They pointed out that the Court violated the would be rendered. He argued that individu- The picture painted here is one of a com- principle of ne ultra petita. They argued that al abolition may violate the dignity of an ac- promised institution that lost the ethos of the application did not concern voting irreg- cused person and limit his right to a fair trial. inde-pendent and impartial constitutional ularities, and as a result, the Court did not The accused has a right to a final judicial de- DGMXGLFDWLRQ:KDW1:DONHUFDOOHGWKHVHF- have jurisdiction to go beyond its scope. cision in his case. Undeterred discretion of ond lock of the control of the political sys- the President to resort to individual abolition tem - the independence of the constitutional Case K 9/17 provides the best example of the upsets the equilibrium between the judiciary court - has been irreparably broken.14 Cases use of the courtroom as a shield by the major- and the executive. are decided in camera, and the assignment ity as an extension of the political process.12 of cases to individual judges is opaque and It was a direct consequence of the 2015 par- The significant development of 2018 was the depends on the whim and caprice of an un- dons granted by the President to the Head escalating warfare between one of the irregu- constitutionally elected President who tailors of Special Forces and a high-level politician ODUMXGJHV0DUFLQ0XV]\ĔVNLDQGWKH3ROLVK the composition of the bench to the political of the ruling party. The President decided to Ombudsman. The Ombudsman kept point- importance of cases. The more important use his prerogative before a final conviction ing out the lack of a legal basis to change the the case from the perspective of the politi- by the competent court. The District Court adjudicating panel (see analysis supra) and cal majority, the more likely it will be heard LQ :DUVDZ GLVFRQWLQXHG WKH SURFHHGLQJV consequently kept lodging applications for exclusively by judges elected by the new The Supreme Court, however, disagreed and the irregular judges to be excluded from the Parliament. The Court decides less and few- recognized that “the application of the right panels.13 Case K 9/1614 is only one example. er cases, as the cloud of unconstitutionality to pardon before the date of the judgment’s In this case, his application was rejected and hangs over its decisions. The transparency validity does not create procedural effects”. as a result was withdrawn by the Ombuds- of the proceedings has reduced to zero. Most The Court, for its part, pointed out that the man. In his opinion, decisions made by irreg- important decisions are made by the one- right to grant pardons could take the shape ular judges are illegal and as such would lead PDQWHDPRI-XGJH3U]\áĊEVNDZKRDORQJ of an individual amnesty (applied to a person to the non-existence of all judicial decisions ZLWKLUUHJXODU-XGJH0XV]\ĔVNLKDVEHFRPH who has been convicted) or individual abo- taken afterwards. That would in turn deep- the most trusted guardian of the new uncon- lition (applied to a person who has not yet HQ OHJDO FKDRV LQ 3RODQG:LWK QR SHQGLQJ stitutional order. been convicted). The Court interpreted the and valid application, the Court was no lon- Constitution as granting the President large ger seised of the case, and as a result decid- Granted, these are all momentous develop- discretion to apply individual abolition and ed to discontinue the proceedings. Mariusz ments, and yet to stop here would be like interfere with the pending cases. The deci- 0XV]\ĔVNL VXEPLWWHG D VFDWKLQJ GLVVHQWLQJ focusing on the means while missing out sion was made by a majority of votes. Im- opinion. He considered the Ombudsman’s on the journey. 2018 in the life of the Polish portantly, but purely symbolically, one of the decision to be unfavourable and incompre- Constitutional Court corroborated that there judges (regular judge elected before 2015) hensible to society; that the Ombudsman’s was more to the destruction of judicial re- filed a separate opinion. He considered that requests to exclude persons from the panel view, as the new authoritarians engaged to proceedings had to be dismissed as inadmis- were a manifestation of a “judicial barratry” an increasing extent in constitutionalism and sible. There were no grounds to conclude that disturbs the functioning of the Court and constitutional reform.16 Constitutional talk 12 OTK ZU A/2018, item 48. Judgment of the Court of July 17, 2018. 130U [^LU[`HWWSPJH[PVUZ^LYLÄSLKMVY[OLL_JS\ZPVUVMHQ\KNL;OLTHQVYP[`JVUJLYULKPYYLN\SHYQ\KNLZ5VULVM[OLT^LYLNYHU[LK0U[OYLLZ\JO cases, the members of the panels were themselves unconstitutionally sworn. 14 Decision of the Court of March 22, 2018 in case K 9/16. 15 ‘Populism and Constitutional Tension’, New York School of Law, Jean Monnet Working Paper 15/17, p. 9. 16 P. Blokker, Populist Constitutionalism and Meaningful Popular Engagement (The Foundation for Law, Justice and Society, 2018). 240 | I•CONnect-Clough Center was used and abused to cloak the illiberal stitutionalism. This new emerging doctrine So understood political justice is the domain agenda with the veneer of constitutionalism. includes the following, often interrelated, el- of populist constitutionalism and chimes in A new constitutional doctrine of the politics ements: (i) a new understanding of the role well with the avowed objective of constitu- of resentment, still on the rise in 2017, be- of the Constitution, no longer as protecting tional capture: taking over institutions and came entrenched in Poland in 2018. A core against the state, but as safeguarding the making them “our institutions”. Political concept of the politics of resentment and uniqueness of the state; (ii) the Constitution justice that is intuitive and plays on emo- populism is constitutional capture. Constitu- ceases to be the supreme law of the land; (iii) tions and fleeting grievances along the lines tional capture is a generic and novel concept. the Constitutional Court is not only incapac- of “we the righteous” will now go after the It connotes a systemic weakening of checks itated but also “weaponized” to be used as a corrupt and rotten elites that have been op- and balances and the entrenchment of power tool against political enemies; (iv) the polit- pressing the silent majority. The normal by making future changes in control diffi- ical dominates the legal; (v) the rule of law course of proceedings, following the rules, cult. Constitutional capture has an inherent is seen as an obstacle to protecting the col- is derided as a ritual devoid of meaning, one spillover effect, and as such seemingly iso- lectivity; (vi) the rule of law is to facilitate that strips the popular sense of justice of its lated constitutional capture in Poland and the expression of the will of the people; (vii) essence. People neither understand nor care. elsewhere risks the potential of adverse con- political power is no longer subject to checks :KDWPDWWHUVLVWKHYLVXDO WKHJXLOW\PXVW sequences throughout the entire continent.17 and balances; (viii) supranational institutions be found and punished, and it must be in the It travels in time and space, and, just like the are dismissed as enemies of the people; (ix) public eye with pomp and circumstance. The politics of resentment, it has its trajectory. As collectivity is trumpeted above individual contact between the political power and the there is simply no place for a veto emanat- citizens; and (x) human rights evolve from people must be direct, immediate, instan- ing from within the government other than a dignitary conception to that of community. taneous. Planned justice understood as fol- from majoritarian parliaments, the “politics lowing the rules is tainted by its uncertainty of resentment” target institutions that other- 2018 in the life of the Polish Constitutional and slowness, both held in low esteem by the wise might be seen as a brake on the power Court evoked the dark legacies of what O. politics of resentment as mere legal techni- of the people’s representatives. Institutions Kirchheimer famously called “political jus- calities that deceive the public and serve the are only accepted as long as they are seen tice”. Political justice aims to enlarge the area wealthy. as “their” institutions and translate only mes- of political action by enlisting the services sages that the controlling parties believe to of courts on behalf of political goals.20 It is In the trajectory of constitutional develop- deserve to be in the public sphere. Such an only half true. Courts apply laws, so with- ments, 2018 in Poland was about much more understanding leads to an important tweak out carefully crafted legislative schemes, the than cases that were decided. It was as much to the established narrative: institutions that courts would be like craftsmen without tools. about dangerous processes launched and have been channelling (for populists, “dis- Law must be adapted to enable the judges to snowballing abuse of judicial review. The torting”) the rule of law must be dealt with mete out political justice. The correct law Court accepted its new role to act as an ex- DV H[SHGLWLRXVO\ DV SRVVLEOH :LWK H[WUHPH both circumscribes and empowers the judges tension of the will of the Parliament, whose majoritarianism as one of the cornerstones in their mission. On the other hand, the law main role is to minimise uncertainty and of the new doctrine, disabling constitutional that traces its roots to, and espouses ideolo- deliver decisions that are swift and predict- courts and judicial review is the first order gies of, the old regime cannot be trusted. As able from the vantage point of the political of the day for constitutional capture.18 All political always prevails over the legal, law majority. The most important and ominous institutions, domestic and supranational, must reflect the political at all times, not the constitutional takeaway from Poland in 2018 stand in the way and are not part of the new other way around. The resort to court thus is that judicial institutions do indeed become populist constitutionalism.19 Gaining power becomes a mere technical device for dispos- increasingly relevant to political life in au- thus does not soften populist animus. Quite ing of a vanquished rebel. It may signify a thoritarian polities.22 The Polish Constitu- the contrary, once elected, populist leaders more or less concerted effort to rid the com- tional Court is the prime example of how are ready to deliver on their promises, and munity of its stock of political foes, or it may courts matter to authoritarian regimes. The they do so through a constitutional doctrine be directed towards creating effective polit- Court is now gripped by, and fully at the ser- that competes with the dominant liberal con- ical images.21 vice of, political justice and the politics of 17 T. T. Koncewicz, ‘The Politics of Resentment and First Principles in the European Court of Justice’, in in: F. Bignami, (ed.,), ,<3H^PU7VW\SPZ[;PTLZ*YPZLZHUK Prospects, (Cambridge University Press, 2019). 18 K. L. Scheppele, ‘Autocratic Legalism’ (2018) 85;OL 2018 Global Review of Constitutional Law | 241 resentment. And 2019 shapes up already as a continuation of these dark dynamics and processes. Therefore, and unfortunately so, “Polish capture story to be continued” … V. FURTHER READING T. T. Koncewicz, ‘The Democratic Backslid- ing in the European Union and the Challenge of Constitutional Design’, in: X. Contiades, A. Fotiadou, (eds.,), Routledge Handbook of Constitutional Change, (Routledge, forth- coming) T. T. Koncewicz, ‘Understanding the Poli- tics of Resentment. Of the Principles, Insti- tutions, Counter-Strategies and ... the Habits of Heart’ (2019) 26(2) Indiana Journal of Global Legal Studies 501 T. T. Koncewicz, ‘The Politics of Resent- ment and First Principles in the European Court of Justice’, in F. Binghami (ed.), EU in Populist Times. Crises and Prospects, (Cam- bridge University Press, 2019) T. T. Koncewicz, ‘“Existential Judicial Re- view” in Retrospect, “Subversive Jurispru- dence” in Prospect. The Polish Constitu- tional Court Then, Now and…Tomorrow,’ Verfassungsblog, October 7, 2018, https:// verfassungsblog.de/existential-judicial-re- view-in-retrospect-subversive-jurispru- dence-in-prospect-the-polish-constitution- al-court-then-now-and-tomorrow/ /3HFK./6FKHSSHOH,OOLEHUDOLVP:LWK- in: Rule of Law Backsliding in the EU, (2017) 19 Cambridge Yearbook of European Legal Studies 3 242 | I•CONnect-Clough Center Portugal Catarina Santos Botelho1, Assistant Professor and Department Chair of Constitutional Law, Porto Faculty of Law, Universidade Católica Portuguesa I. INTRODUCTION voters and their representatives within con- stituencies. Yet, the recent rejection of a ZDVDVLJQL¿FDQW\HDUDVWKH3RUWXJXHVH popular initiative to reform the Portuguese Constitutional Court (PCC) repositioned it- electoral system shows that the main political self as a non-deferent Court and as a faith- parties are still strongly divided over the right ful guardian of constitutional fundamental path towards achieving that goal. rights and liberties. As Jorge Pereira da Silva PORTUGAL provocatively stated, “the Portuguese Consti- II. MAJOR CONSTITUTIONAL tutional Court is back!”2 After years of what DEVELOPMENTS some labelled the “judicial activism” of the jurisprudence of crisis—during and after the 1. Surrogacy 2011-2014 bailout—that, for better or worse, hit the news and scholarship internation- Ruling no. 225/2018—“surrogacy”/“gesta- ally, the PCC seemed more silent and cau- tion by substitution”—can be considered a WLRXVWRZDUGVWKHOHJLVODWRU:LWK5XOLQJQR landmark in the Portuguese Constitutional 225/2018, the Court declared that the legisla- Court’s jurisprudence.3 The rapporteur was tive power can change the legal framework of Justice Pedro Machete, and out of the twelve assisted reproductive techniques if protection remaining Justices, only one did not sub- to the most vulnerable parties to a contract of PLW D FRQFXUULQJ RSLQLRQ UHJDUGLQJ VSHFL¿F gestation by substitution—the children and grounds of the decision. This comes as no the surrogate mother—is granted. surprise at all when a Constitutional Court faces very problematic subjects, since it is :HFDQWUXO\VWDWHWKDWZDVWKH\HDURI not immune to societal, religious, ethical and family rights, since many rulings consisted of ideological worldviews. major constitutional developments regarding the subjects of family life, development of The ruling, in tune with the PCC’s ex post one’s personality, right to personal identity abstract review, is exhaustive (almost 100 and human dignity. SDJHVLQWKHSXEOLFDWLRQRIWKHRI¿FLDOMRXUQDO ³'LiULRGD5HS~EOLFD´RULQDQRUPDO:RUG It was foreseeable that 2018 would be the document, around 200 pages4) and very well year of a much-awaited electoral system JURXQGHGZLWKVLJQL¿FDQW&RPSDUDWLYH&RQ- reform that would create more favourable stitutional (case) Law references.5 conditions for a closer relationship between 1 I am grateful to Justice Gonçalo Almeida Ribeiro (Portuguese Constitutional Court) for his helpful sugges- tions. The usual disclaimers apply. 2 < https://www.publico.pt/2018/05/06/sociedade/opiniao/barrigas-de-aluguer-o-constitucional-es- [HKL]VS[H %HJJLZZLK-LIY\HY` 3 [OVM(WYPS #O[[W!^^^[YPI\UHSJVUZ[P[\JPVUHSW[[JLUHJVYKHVZ ZO[TS%HJJLZZLK February 2019. 4 #O[[WZ!KYLW[HWWSPJH[PVUÄSLH %HJJLZZLK-LIY\HY` 5 See Catarina Santos Botelho, ‘Is there a middle ground between constitutional patriotism and constitutional cosmopolitanism? The Portuguese Constitutional Court and the use of foreign (case) law’, in G. F. Ferrari (ed.), 2018 Global Review of Constitutional Law | 243 From 2006 onwards, any woman (regardless 2QWKH¿UVWWRSLFWKH3&&KDGWRGHFLGHRQ interpreted in accordance with the principle of her civil status or sexual orientation) could the admissibility of the right to start a family of the dignity of the human person, and of access assisted reproductive techniques, ex- with recourse to surrogate gestation in cases the right to start a family;14 (c) as the legal cept surrogacy.6 Ten years later, the new Law where becoming a parent could not otherwise regime did not allow for a consolidation of on Medically Assisted Procreation (hereinaf- occur due to clinical grounds that were an legal positions of persons as a result of a sur- ter Law on MAP)7 evolved from conceiving impediment to pregnancy. In other words, the rogate gestation agreement being declared assisted reproduction as “a subsidiary con- Court had to stand either in favour or against null and void—as parents, as son/daughter— ceiving mechanism” to “an alternative meth- surrogate gestation. The PCC held that sur- nor differentiate according to the time or od of procreation for women.”8 rogate gestation did not violate the “dignity seriousness of the grounds invoked in order of the pregnant woman, of the child born as for the agreement to be declared invalid, it 7KH¿UVWYHWRRIWKH3RUWXJXHVH3UHVLGHQWRI a result of this method or the obligations of violated the right to personal identity and the the Republic, Marcelo Rebelo de Sousa, was the State towards the protection of children”, principle of legal certainty arising from the precisely the veto on the introduction of sur- since surrogacy is legalised as “an excep- principle of democratic rule of law.15 rogacy, grounded on the opinions of the Na- tional method of procreation, subject to the tional Council of Ethics for the Life Sciences autonomous consent of the interested parties The Court therefore stated that the right to re- DQGRQWKHLQVXI¿FLHQF\RIWKHSURWHFWLRQRI and decided upon by means of an altruistic gret needed to be granted. If not, the surrogate children’s rights. After the veto, the President agreement, subject to the prior authorisation PRWKHUZRXOGEHVKDGRZHGDQGREMHFWL¿HGWR sent the law back to the Parliament for revi- of an administrative authority.” More blunt- a mere live “incubator”. This would degrade sion. However, many of the President’s con- ly, surrogacy, which shares some similarities women’s dignity as inferior to men’s and cerns were not fully taken into consideration. ZLWKWKHDGRSWLRQ¿JXUH EHLQJLQWKLVFDVH therefore violate the equality principle.16 It :KHQWKHODZZDVVHQWEDFNWRWKH3UHVLGHQW a “scheduled adoption”) was considered con- is worth mentioning that besides sanctioning for promulgation, he neither vetoed the law stitutionally valid.12 the fact that the Law on MAP did not foresee nor did he start a preventive abstract review a right to regret, the PCC also provided some of constitutionality.9 Nevertheless, although surrogacy per se was guidelines for future legislative amendments not considered unconstitutional, the PCC that would be in tune with the Portuguese It was instead a Group of Parliament Deputies invalidated several norms of MAP: (a) the Constitution. If the separation of powers is from centre-right (PSD) and right (CDS) par- norms that established the limits for the au- the bulwark of democratic and balanced so- ties that requested an ex post abstract review tonomy of the parties as well as the restric- cieties, it is not at stake when constitutional of the constitutionality of the Law on MAP.10 tions that could be imposed on the behaviour courts interact with sovereign organs (such In question were the following issues: “(i) the of the surrogate mother in the surrogate ges- as the legislator) in order to offer (and not insertion in the Law on MAP of a number of tation agreement were too indeterminate, to impose), in a cooperative dialogue, some norms with regard to surrogate gestation; (ii) therefore violating the principle of determin- guidelines or even a “guiding compass”17 for the rule of anonymity of donors and that of ability of the law, which is a corollary of the hard cases. the surrogate mother vis-à-vis those born as principle of the democratic rule of law;13 (b) a result of MAP methods; and (iii) the rule the norm that did not allow for the revoking As I have written elsewhere: “It is quite an that waives the H[RI¿FLR investigation of the of the consent of the surrogate mother from illusion or a fallacy to separate, with a per- paternity of a child whose mother, regardless the beginning of MAP therapeutic proce- IHFWGLYLGLQJOLQHODZIURPSROLWLFV:HFDQ of her marital status and sexual orientation, dures until the child was delivered to the ben- perform conceptual divisions and undertake has resorted to MAP techniques.”11 H¿FLDULHVZDVLQEUHDFKRIWKHfundamental complex line-drawing manoeuvres, but in right to the development of one’s personality, the end there will always be some kind of in- 6 Law 17/2006, of 20 June. 7 Law 32/2006, of 26 July. 8 Teresa Violante, ‘(Not) Striking Down Surrogate Motherhood in Portugal’ (=LYMHZZ\UNZISVN, 2018), < https://verfassungsblog.de/not-striking-down-surrogate-moth- LYOVVKPUWVY[\NHS%HJJLZZLK-LIY\HY` 9 That could be possible through Articles 278 and 279 of the Portuguese Constitution. 10 In accordance with Articles 281 and 282 of the Portuguese Constitution. 11 #(]HPSHISLH[!O[[W!^^^[YPI\UHSJVUZ[P[\JPVUHSW[[JLUHJVYKHVZ ZO[TS%HJJLZZLK-LIY\HY` 12 Paras. 12 to 17. 13 Articles 8 (4), (10) and (11) and, therefore, Article 8 (2) and (3) of the MAP. 14 Article 8 (8) in conjunction with Article 14 (5). 15 Article 8 (12). 16 See the articles of Paulo Otero and João Carlos Loureiro cited in the PCC ruling. 17 Fernando Alves Correia, 1\Z[PsH*VUZ[P[\JPVUHS (Almedina, 2019) 414. 244 | I•CONnect-Clough Center tersection.18 Notwithstanding areas of signif- constitutional principles and rights invoked HGWRWKHFLWL]HQV¶ODFNRILGHQWL¿FDWLRQZLWK icant blurriness, the reign of politics should (principle of the dignity of the human per- the current party system.21 refrain from overpowering the reign of law. son, principle of equality and right to per- Macro-economic decision-making pertains VRQDO LGHQWLW\ ,W KHOG WKDW ³LQ WKH VSHFL¿F The debate over electoral system reform has to democratic deliberation and popular sov- circumstances where it was envisaged, such gone on since the Portuguese transition to de- ereignty, albeit fertile exchanges of ideas investigation would be pointless since the mocracy (1976/78), but it has become more amongst state powers is always welcome”.19 donor could not legally become the father intense over the last two decades. Portugal of the born child even in the case where his has a “proportional representation system”, Regarding the rule of donor/surrogate moth- identity was known”. and this proportional representation system er anonymity, the PCC found no violation of is also found in an entrenchment clause, as the dignity of the human person. However, It is very important to stress that the elimi- stated in Article 288, h).22 and in contrast with the position it had de- nation of the norms deemed unconstitution- fended in Ruling no. 101/2009 and in tune al with a general binding force (Article 282 Although the constitutional amendment of with the dissenting opinion of Justice Ben- (1) of the Portuguese Constitution) would 1997 allowed proposals for a closer relation- jamim Rodrigues,20 the PCC highlighted the imply that all surrogate gestation agree- ship between constituents and their repre- growing importance attributed to the right ments already authorised by the National sentatives within constituencies that would to know one’s origins. In this sense, it ruled Council for Medically Assisted Procreation change a stricto sensu proportional system that “the legislator’s option for the rule of (NCMAP) would have to be subsequently to a mixed one (with single-member dis- the anonymity of the donors in the case of overruled. Nevertheless, using the possi- tricts and a national constituency as compen- heterologous procreation, as well as that of bility of restriction of effects given by the sation), there seems to be an obstacle. The the surrogate mother (...) although not abso- following paragraphs of Article 282, the main critique is the closed list system and lute, imposed an unnecessary limitation on PCC unanimously decided, on grounds of the fact that some districts return a very large the fundamental rights to personal identity legal certainty and in compliance with the number of deputies. and to the development of the personality of State’s obligation to protect children, that persons born as a result of MAP techniques “the effects of the declaration of unconsti- The major political parties agree that the using donated gametes or embryos, namely tutionality would not apply to the surrogate system must change, but in the end, they in cases of surrogate gestation.” In my per- gestation agreements authorised by the NC- cannot reach consensus on the appropriate spective, this ruling should be praised for not MAP in execution of which the medically electoral reform path: A mixed-member sys- ignoring children’s right to their identity in assisted procreation procedures referred to tem with some single member districts or a order to protect donors or surrogates’ ano- in Article 14 (4) of Law 32/2006, of July 26 multiple-tier system with small multimem- nymity. Furthermore, several North Europe- had already been initiated.” EHUFRQVWLWXHQFLHVDWWKHORZHUWLHU"5HGXFH an states (except Denmark) and Anglo-Sax- the number of Deputies or maintain it (180 on states have either already reversed their This confusion could have been avoided if WR'HSXWLHV "6WXGLHVVKRZWKDWWKHSHU- legislation on donors/surrogates anonymity the President of the Republic had exercised sonalization of the vote raises political fears, or altered it, adopting dual systems with the his right to ask for a preventive constitution- such as “parochialism, clientelism and par- SRVVLELOLW\RILGHQWL¿FDWLRQ al review before the Law on MAP entered ty-political polarization”; the fear of “losing into force, in accordance with Articles 278 control of the selection of candidates”; “in- :LWK UHJDUG WR WKH IRXUWK DQG ODVW WRSLF and 279 of the Portuguese Constitution. tra-party divisions”; and the ‘fear of the un- the waiver of the H[RI¿FLR investigation known’”. As any constitutional amendment of paternity in respect of a child born to a 2. Failed electoral reform in Portugal must be approved by “a majority of two- woman who has engaged in MAP individ- thirds of the Members of the Assembly of the ually (outside the context of a marriage or The increasing level of electoral abstention 5HSXEOLFLQIXOOH[HUFLVHRIWKHLURI¿FH´ $U- of a non-marital partnership) in order to get DQGWKHGHFOLQLQJOHYHOVRIFRQ¿GHQFHLQWKH ticle 286/1 of the Portuguese Constitution), a pregnant, the PCC found no violation of the political system and political actors are relat- wide political consensus is needed.23 18 Jutta Limbach, ‘The Law-Making Power of the Legislature and Judicial Review’, 3H^4HRPUN3H^-PUKPUNHUK3H^:OHWPUN!;OL+P]LYZL0UÅ\LUJLZ 174 (Oxford University Press, 1997). 19 Catarina Santos Botelho, ‘Aspirational constitutionalism, social rights prolixity and judicial activism: trilogy or trinity?’ (2017) 3 (4) CALQ 87. 20 #O[[W!^^^[YPI\UHSJVUZ[P[\JPVUHSW[[JLUHJVYKHVZ ZO[TS%HJJLZZLK-LIY\HY` ;OL*V\Y[Z[H[LK[OH[¸[OLVW[PVU^OPJO[OLSLNPZSH[P]LH\[OVYP- [PLZJOVZL^OLU[OL`LZ[HISPZOLKHTP[PNH[LKYLNPTLNV]LYUPUNKVUVYHUVU`TP[`JHUUV[ILJYP[PJPZLKMYVTHJVUZ[P[\[PVUHSWVPU[VM]PL^¹ 21 The think-action tank ‘Portugal Talks’ theme for 2018 was ‘Voter Turnout in Portugal: diagnosis and possible solutions’. See < https://www.pttalks.pt/en/homep- HNL%HJJLZZLK-LIY\HY` 22 For a deeper understanding of the Portuguese entrenchment clauses, see Catarina Santos Botelho, ‘Constitutional Narcissism on the Couch of Psychoanalysis: Constitutional Unamendability in Portugal and Spain’ ((2019) 21 (3) EJLR 346) ,\YVWLHU1V\YUHSVM3H^9LMVYT. < https://papers.ssrn.com/sol3/papers.cfm?ab- Z[YHJ[FPK$%HJJLZZLK-LIY\HY` 2018 Global Review of Constitutional Law | 245 In 2018, the Association for Economic and If, previously, the PCC had excluded for-prof- with the principle of proportionality (Article Social Development and the Association for it legal persons from the scope of protection 2 of the Constitution).29 a Quality Democracy presented a popular ini- of Article 20 (1) solely on the basis of their tiative to reform the electoral system.24 This legal nature,28 the PCC reversed its jurispru- The Court considered that Article 131 (1) new channel of political participation must dence and applied the EU law and interna- treats “all psychic anomalies radically and be praised. A concrete avenue of change, it tional regional law (European Convention LQ WKH VDPH ZD\ UHJDUGOHVV RI WKH VSHFL¿F also had a major advantage: all the electoral on Human Rights) as more than obiter dicta. and concrete degree of their respective ca- reform proposals were designed to not re- In fact, the PPC stated that “nothing in the pacity to testify on any event in criminal pro- quire a constitutional amendment. In other case-law of the European Court of Human FHHGLQJVZKLFKLVQRWVXEMHFWWRYHUL¿FDWLRQ words, the proposals were conceived with- Rights (ECHR) precludes the granting of le- VSHFL¿HG LQ WKH LQWHUGLFWLRQ SURFHVV « ,W in the Portuguese constitutional framework. JDODLGWRIRUSUR¿WOHJDOSHUVRQV´DQGWKHQ happens, however, that in many situations, Not surprisingly, though, the Parliament just interpreted the Portuguese Constitution in the mental health of the person, and the re- recently rejected it and delayed this discus- consonance with the Charter of Fundamental spective degree of affection of cognition or sion until after the legislative elections.25 Rights of the European Union, in particular volition, taken into account in the evaluation “the latest developments in the interpretation of the presuppositions of judicial interdic- III. CONSTITUTIONAL CASES of Article 47 (1) of the Charter of Funda- tion, do not project relevantly on the capaci- mental Rights of the European Union (here- ty (…) to understand and respond with truth 1. Ruling 242/2018: Right of for-profit (or lim- inafter Charter), on the right to an effective to the questions put to him, in order to obtain ited liability) legal persons to legal aid remedy and to a fair trial”. In this sense, “the a reliable account of facts that he observed right to effective judicial protection guaran- RU H[SHULHQFHG « :H DUH WKHUHIRUH IDFHG At the request of the Public Prosecutor, the teed by Article 47 of the Charter may require with a legislative measure which not only vi- Constitutional Court declared Article 7(3) of WKHJUDQWLQJRIOHJDODLGWRIRUSUR¿WOH- olates the principle of proportionality, in its the Law on Access to the Law and the Courts gal persons, without this being considered as ¿UVW WZR WHVWV²VXLWDELOLW\ DQG QHFHVVLW\² unconstitutional.26 The norm under appreci- dysfunctional in relation to the competition but also proves to be discriminatory in re- ation denies legal protection, which encom- UXOHVLQDQHI¿FLHQWPDUNHW´ lation to a category of persons—the victims SDVVHVOHJDODGYLFHDQGOHJDODLGWRIRUSUR¿W of research crimes declared to be prohibited (or limited liability) legal persons regardless 2. Ruling 242/2018: Mental disabilities and by psychic anomalies—showing as we have RIWKHLUVSHFL¿FHFRQRPLFVLWXDWLRQ27 No in- equality principle VHHQODFNLQJVXI¿FLHQWJURXQGVIRUWKHGLI- 30 quiry is done in order to understand if they ferent treatment that operates”. objectively are in a condition to pay the pro- In a concrete review case, the PCC decided ceedings costs in a timely manner. that the rule of Article 131 (1) of the Code 3. Ruling 488/2018: Dismissal of paternity of Criminal Procedure, which establishes proceedings Article 20 (1) of the Portuguese Constitution the absolute incapacity to testify of a person grants all subjects of law the right of access with mental disability, even as a victim or of- In its Ruling no. 23/2006, the PCC ruled that to the courts. A fundamental dimension of fender of a crime, infringes the principle of the previous text of Article 1817 § 1 of the 31 this right is, therefore, the prohibition of the equality (Article 13 of the Constitution) with Civil Code, which established a two-year GHQLDORIMXVWLFHRQDFFRXQWRIRQH¶VLQVXI¿- regard to the prohibition of discrimination time limit from the date of reaching the age FLHQW¿QDQFLDOUHVRXUFHV and the right to a fair trial, enshrined in Arti- of majority or the date of emancipation of cle 20 (4) of the Constitution in conjunction the minor for the exercise of his or her right 23 André Freire and Manuel Meirinho, ‘Institutional Reform in Portugal: From the Perspective of Deputies and Voters Perspectives’ (2012) Pôle Sud 107-125. 24 #O[[WZ!^^^KUW[S\ZHPU[LYPVYHZZVJPHJVLZZLKLZLHWKXSHUJHTPUPJPH[P]HKLJPKHKHVZLWL[PJHVWHYHYLMVYTHLSLP[VYHS O[TS%HJJLZZLK February 2019. 25 #O[[WZ!^^^KUW[LKPJHVKVKPH ML] PU[LYPVYWZLWZKJO\TIHTYLMVYTHKVZPZ[LTHLSLP[VYHS O[TS%HJJLZZLK-LIY\HY` 26 Law 34/2004 of July 29, amended with the wording of conferred by Law 47/2007 of 28 August. 27 4H` #O[[W!^^^[YPI\UHSJVUZ[P[\JPVUHSW[[JLUHJVYKHVZ ZO[TS%HJJLZZLK-LIY\HY` 28 9\SPUN #O[[W!^^^[YPI\UHSJVUZ[P[\JPVUHSW[[JHJVYKHVZ O[TS%HJJLZZLK-LIY\HY` 29 #O[[W!^^^[YPI\UHSJVUZ[P[\JPVUHSW[[JHJVYKHVZ O[TS%HJJLZZLK-LIY\HY` 30 Para. 7. 31 Adopted by Decree-law no. 496/77 of 25 November 1977. 32 #O[[W!^^^[YPI\UHSJVUZ[P[\JPVUHSW[[JHJVYKHVZ O[TS%HJJLZZLK-LIY\HY` 246 | I•CONnect-Clough Center to start paternity proceedings, violated the found no violation of the right to respect for regarding the following issues: (a) access to right to family and to know one’s biological their private and family life under Article metadata (data about data) by information parents (Articles 26 § 1 and 36 § 1 of the 8 of the Convention, “given the margin of services of the Portuguese Republic; (b) le- Constitution).32 Articles 1873 and 1817 § 1 appreciation afforded to States in respect of galisation of cannabis; and (c) legalisation of of the Civil Code now determine that a claim paternity proceedings legislation, the non prostitution. for establishing paternity can be brought at absolute nature of Article 1817 § 1 of the any time until the child reaches the age of Portuguese Civil Court, and the case-law of V. FURTHER READING majority.33 However, the right to seek pater- the Portuguese Constitutional Court”. nity recognition by judicial decision lapses Catarina Santos Botelho, ‘O Lugar do Tri- ten years after the person has attained the age In the recent Ruling 488/2018, the PCC, in bunal Constitucional no século XXI: os 34 of majority. a concrete review case, stated that Articles limites funcionais da justiça constitucional 1873 and 1817 § 1 of the Civil Code violated na relação com os demais tribunais e com o After the legislative amendment of the pre- Articles 18 § 2, 26 § 1 and 36 § 1 of the Con- legislador’ (2018) JULGAR 111 vious short-time limit (the two-year time stitution on the grounds that the requirement limit was upgraded to a ten-year time limit), for protection of the interests pertaining to Gonçalo Almeida Ribeiro, ‘Constituição’ the PCC was again called upon to rule on the investigating party should not be limited, (2018) 'LFLRQiULR GH )LORVR¿D 0RUDO H whether Article 1817 § 1 of the Civil Code and that even if it were, such limitation was Política was compatible with the Constitution.35 The QRWMXVWL¿HGZKHQWKHSURSRUWLRQDOLW\RIWKH 38 Court ruled (by seven votes to six) that the YDULRXVFRQÀLFWLQJLQWHUHVWVZDVZHLJKHG Jorge Miranda, Direito Eleitoral (Almedina, provision in question was not disproportion- 2018) ate in that it did not violate the constitutional According to Article 79 § 1 of the Law of the right to know one’s biological parents. The Constitutional Court, since in this concrete Jorge Pereira da Silva, Direitos Fundamen- Court argued that “there was a public inter- review ruling the Court decided “there has tais – Teoria Geral (Universidade Católica est in having both biological and legal pa- been unconstitutionality (…) in a manner Editora, 2018) ternity established as soon as possible” and different to what was previously adopted for that “there was an interest in ensuring legal the same rule by any of the Court’s sections” Jorge Reis Novais, Direitos Fundamentais certainty in respect of the putative father and (in the case, contrary to Ruling 401/2011), nas Relações entre Particulares – do dever his family due to the personal and patrimonial “an appeal can be made on this decision GH SURWHFomR j SURLELomR GR Gp¿FH (Alme- consequences of the recognition of paternity”. before the Court’s plenary, compulsory for dina, 2018) the State Attorney when he intervenes in the In the case of Silva and Mondim Correia case as appellant or respondent”.39 v. Portugal, the applicants alleged that the dismissal of the paternity proceedings con- IV. LOOKING AHEAD stituted a breach of their rights under Ar- 36 ticle 8 of the Convention. The European In 2019, there will be three main elections: Court of Human Rights ruled that the ap- the European Parliament elections (in May), SOLFDQWV ³KDG VKRZQ DQ XQMXVWL¿DEOH ODFN the regional elections for the Parliament of of diligence in instituting paternity pro- Madeira (in September), and the elections FHHGLQJV LQ WKDW WKH\ KDG ZDLWHG ¿IW\ DQG for the Parliament of the Portuguese Repub- twenty-six years, respectively, since reach- lic (in October). Also, the Portuguese Con- ing the age of majority to seek to have their stitutional Court will most likely decide on 37 paternity legally established”. The Court recent legislation (or legislative projects) 33 Law no. 14/2009 of 1 April 2009, which amended the text of Article 1817 § 1 to its current version. 34 Article 1817 § 3 of the Civil Code adds a supplementary three-year period in addition to the general ten-year time limit within which paternity proceedings can be instituted. 35 9\SPUNUVVM:LW[LTILY#O[[W!^^^[YPI\UHSJVUZ[P[\JPVUHSW[[JHJVYKHVZO[TS%HJJLZZLK-LIY\HY` 36 6J[VILY (WWSPJH[PVUZUVZ HUK #O[[WZ!O\KVJLJOYJVLPU[%HJJLZZLK-LIY\HY` 37 Para. 68. 38 #O[[W!^^^[YPI\UHSJVUZ[P[\JPVUHSW[[JHJVYKHVZ O[TS%HJJLZZLK-LIY\HY` 39 #O[[W!^^^[YPI\UHSJVUZ[P[\JPVUHSW[[JLU[JSH^O[TS%HJJLZZLK-LIY\HY` 2018 Global Review of Constitutional Law | 247 Romania %LDQFD6HOHMDQ*X܊DQ3K'3URIHVVRU– Lucian Blaga University of Sibiu (OHQD6LPLQD7ăQăVHVFX3K'3URIHVVRU– University of Bucharest I. INTRODUCTION rity of the total number of members of each chamber, the draft law went ex officio to the In Romania, the 2018 constitutional year Constitutional Court, a compulsory step in came with a failed attempt to revise the Con- the constitutional amendment procedure. In stitution. The trend of conflicts between the Decision no. 539/2018, the Constitutional President and the Government we noted in Court maintained its opinion on the subs- tantive issues as expressed in Decision no. ROMANIA 2017 experienced a dramatic escalation and resulted in further limitations to the powers 580/2016, and stated that the new definition of the President, while controversies related of the family is not contrary to the substan- to the changes in the laws on the judiciary tive limit of the revision of the Constitution and to the case law of the Constitutional set forth by Article 152 (2), which says that Court continued. Significantly more often no amendment can be proposed if it sup- than during previous years, the Constitution- presses fundamental rights and freedoms or al Court went beyond the limits of its juris- their guarantees. Restricting the right of mar- diction, overstepping the realm of ordinary riage to only heterosexual couples, excluding courts or replacing self-regulatory tools pro- the same right for homosexual couples, was vided by the constitutional system and get- not considered by the majority of the Court ting involved in political questions. as a “suppression” of a fundamental right or one of its guarantees, but declared a “mere precision” regarding the original intent of II. MAJOR CONSTITUTIONAL the constituent power. This last decision was DEVELOPMENTS accompanied by a separate opinion, in which a dissenting judge (Daniel Marius Morar) 1. Failed attempt to amend the Constitution stated that “by replacing the gender-neutral through a popular initiative expression ‘between spouses’ with ‘between a man and a woman’, [the text] is not only The popular initiative to amend the Consti- making a precision as regards the exercise tution started in 2016 and ended through a of the fundamental right to marriage, as the failed referendum in 2018. Indeed, 2,6 mil- majority claims. The express entrenchment lion citizens had signed an initiative to mo- of the condition of biologically different sex dify Article 48 of the Constitution as regards removes any other interpretation, by restrai- the definition of family to: “Family is based ning in an impermissible manner the sphere on the free consented marriage between a of incidence of the institution of marriage man and a woman” instead of the current and thus suppressing the right to marriage of formulation, “Family is based on the freely same-sex couples”. consented marriage between spouses”. Par- liamentary debates took place in 2017 and Following the Constitutional Court’s de- 2018 and encountered some procedural cision, the last step of the constitutional hurdles, including a misinterpretation of amendment procedure was organised, i.e., parliamentary standing orders duly noted the compulsory referendum provided by Ar- by the Constitutional Court in Decision no. ticle 151(3) of the Constitution. The Govern- 431/2017. Following the adoption of the ment decided to convene the voters on two popular initiative with a two-thirds majo- days—6 and 7 October 2018—but, despite 248 | I•CONnect-Clough Center that, only 21% of the voters participated. In decision no. 875/2018, the Constitutio- red lines: it accepted being notified by an As the turnout quorum of 30%, required by nal Court declared that a legal conflict of a authority that is not enabled by the Consti- Referendum Law no. 3/2000, had not been constitutional nature did occur when the Pre- tution to alert it with regard to legal conflicts reached, the referendum was invalidated and sident refused to agree with the reshuffling of a constitutional nature; it interfered with the draft law amending the Constitution was of the Government proposed by the Prime and blocked powers of administrative courts not approved. Minister. Considering Article 85(2) of the which, according to the law, are the only Romanian Constitution, which provides that jurisdictions able to decide upon presiden- The general approach of the Constitutio- “In the event of government reshuffle or va- tial decrees; it established that a minister nal Court on this constitutional amendment cancy of office, the President shall dismiss in an appointed Government enjoys greater seems to place the jurisdiction on the conser- and appoint, on the proposal of the Prime discretionary powers than a directly elected vative side regarding same-sex couples’ Minister, some members of the Govern- President of the republic; and it further dimi- rights. However, it is important to stress that ment”, the Court declared that the President nished the powers of the President by expli- in 2018, on the same matter, the Court issued does not enjoy discretionary powers in this citly limiting his attributions to only a check another decision which focused on the reco- respect and has to limit his evaluation only of legality over the proposal of the Minister gnition in Romania of some effects (freedom to legal considerations that might impede of Justice and expressly declaring that the of circulation within EU) of same-sex mar- upon the reshuffle, otherwise s/he is obliged President cannot perform his own evaluation riages concluded abroad and of a derived to follow the proposal made by the Prime of the activity of the said prosecutor. This de- right of residence (see below III.3.). The out- Minister. Therefore, it ordered the President cision of the Constitutional Court has been a come of this decision was heavily influenced to immediately issue decrees for the vacancy turning point in the functioning of the poli- by the ECJ case law and did not formally of the respective positions of ministers and tical regime in Romania: while the guardian block the constitutional amendment proce- to provide the Government with written and of the Constitution has, apparently, trespassed dure, although it brought substantial changes argued answers as to why he is refusing to its boundaries, the President of Romania re- in the interpretation of the right to private appoint the minister/s proposed by the Prime mained compliant with the principles of the and family life protected by the Constitution. Minister. Thus, rather than being a complex rule of law and did issue the requested decree. political and strategic decision framed by 2. Conflicts between the President and the constitutional provisions, the reshuffle of 3. The saga of the new laws on the judiciary Government the Government has been transformed by the Court into a merely legal issue. The major debate on the revision of laws The Romanian Constitution has provided for pertaining to the judiciary that started in the a directly elected President and a Govern- In decision no. 358/2018, the President was second half of 2017 unfolded all along 2018 ment invested by the Parliament upon the ordered to dismiss a specific person from the and resulted in no less than 18 decisions of proposal made by the candidate for the posi- position of head of a prosecutor’s office. In the Constitutional Court (spread between Ja- tion of Prime Minister designated by the Pre- a procedure which, according to the law, is nuary and October), a debate in the European sident (Article 85 of the Constitution). This initiated by the Minister of Justice, has to Parliament on the threats to the rule of law in requires cooperation between the two heads receive an advisory opinion of the Superior Romania in February 2018 (https://multime- of the executive power while allowing for Council of Magistracy and is ended through dia.europarl.europa.eu/en/threats-to-rule-of- cohabitation in case they are not on the same the decision of the President of Romania, law-by-romanian-justice-debate_I150531- side in political terms. A rather conflictual the proposal made by the Minister of Justice V_v), the first Ad-hoc report on Romania cohabitation has been taking place since the to revoke the incumbent of the position of (Rule 34) adopted by GRECO at its 79th Ple- parliamentary elections of 2016, and in 2018 Head of the National Anticorruption De- nary Meeting on 19-23 March 2018 (http:// it reached a new peak. This is reflected not partment faced a negative advisory opinion www.just.ro/wp-content/uploads/2015/09/ only in the statistics pertaining to the case of the Superior Council of Magistracy and Greco-AdHocRep20182-Final-eng-Ro- law of the Constitutional Court referring to a rejection from the President. The Minister mania.pdf), and Preliminary Opinion no. laws in 2018 (43 decisions on a priori ju- of Justice asked the Constitutional Court to 924/2018 of the Venice Commission on the dicial review against 9 in 2017) but also in decide whether the motivated refusal of the draft amendments to Law no. 303/2004 on the area of decisions on legal conflicts of a President to accept his order triggered a le- the statute of judges and prosecutors, Law constitutional nature. Out of the six (com- gal conflict of a constitutional nature able no. 304/2004 on judicial organization and pared to four in 2017) such decisions issued to create a blockage in the functioning of Law no. 317/2004 on the Superior Coun- in 2018 at least two bear serious conse- concerned public authorities. By declaring cil of Magistracy (https://www.venice.coe. quences on the functioning of the political that such a conflict did exist and obliging LQWZHEIRUPVGRFXPHQWVGHIDXOWDVS["SGI- regime in Romania. the President to issue the revocation decree, file=CDL-PI(2018)007-e). the Constitutional Court trespassed several 2018 Global Review of Constitutional Law | 249 All these internal and external evaluations unit within the General Prosecutor’s Office fifth appointed ex officio according to a de- of the controversial reform of the judicial for the investigation of deeds of magistrates cision from 2014 of the HCCJ Ruling Board. sector concluded that the measures intended was created while a huge haemorrhage of The designation of the panels is made at the would represent an important setback for the magistrates retiring or simply switching po- beginning of each calendar year by a draw rule of law in Romania. At the European le- sitions with barristers started to severely im- made by the president of the HCCJ. This rule vel, comparisons with the current situation pair the functioning of the judicial system. was maintained in 2018 despite the entry in Hungary and particularly in Poland have Thorough effects of this reform are to be into force of the new laws on the judiciary. been made, to no effect. Indeed, some solu- evaluated in the years to come. The Prime Minister addressed the Constitu- tions promoted by the Romanian package of tional Court with a request to solve a “legal laws pertaining to the reform of the judicia- In the process of discussing the package conflict of a constitutional nature” between ry resembled ideas promoted by Polish laws of laws on the reform of the judiciary, the the Parliament and the HCCJ on grounds adopted in 2017, particularly that of the an- Constitutional Court took the opportunity to that the Supreme Court refused to immedia- ticipated retirement of an important number further limit the powers of the President. In tely apply a provision of a new law. The case of magistrates and the creation of a special an attempt to limit the number of notifica- UDLVHVVRPHSUHOLPLQDU\TXHVWLRQV :K\GLG unit within the General Prosecutor’s Office tions it would receive on these controver- the Government decide to address the Court for the investigation of deeds of magistrates. sial drafts, the Court created what it called on a procedural matter that should and could a “hypothetical deadline” for the President be invoked and solved by the judiciary it- An impressive number of decisions issued to notify the Court with a draft law before VHOI":K\KDVWKH&RQVWLWXWLRQDO&RXUWEHHQ by the Constitutional Court found many pro- its promulgation. Thus, if before Decision seized by the Prime Minister and not by the visions of these laws non-compliant with no. 67/2018 the President could wait for the Parliament, since the so-called “conflict” the Constitution. Thus, notified iteratively draft to actually reach his office and only ZDVRQHEHWZHHQWKHODWWHUDQGWKH+&&-" to the Court by the President of Romania, then calculate the deadline of 20 days, res- This is not an inadmissibility cause per se, the High Court of Cassation and Justice and pectively 10 days within which he could no- but the answer to these questions may be lin- parliamentary opposition, Law no. 303/2004 tify the Constitutional Court for an a priori ked to some of the corruption cases pending on the statute of judges and prosecutors has control of constitutionality (according to Ar- at the 5-judge panels, one of which regards been checked through Decision nos. 45/2018, ticle 77 of the Constitution), after the afore- the president of the Chamber of Deputies. 66/2018, 252/2018, 417/2018, 533/2018 and mentioned decision the President has to act 583/2018 and found wanting in most of them. within 20 days, respectively 10 days after In its attempt to evaluate the legal or consti- The same happened with Law no. 304/2004 the Parliament ended the legislative proce- tutional nature of the conflict (and establish on judicial organization through Decision dure (“hypothetical deadline”), irrespective its competence to solve it), the Constitutional nos. 33/2018, 67/2018, 250/2018, 357/2018, of the fact that the opposition might have Court declared that, by solving this conflict, 457/2018 and 483/2018 and, respectively, deferred the law to the Constitutional Court, it practically substituted ordinary citizens, with Law no. 317/2004 on the Superior thus preventing it from reaching the office of who would otherwise be compelled to seek Council of Magistracy through Decision the President. justice in courts due to allegedly unlawful nos. 61/2018, 65/2018, 251/2018, 385/2018, FRQGXFWRIWKH6XSUHPH&RXUW:KHWKHUWKLV 530/2018 and 562/2018. In a nutshell, the 4. The saga of the 5-judge panels of the Su- is the role of a constitutional court in a rule Constitutional Court considered that the in- preme Court of law and separation-of-powers-based state dependence of magistrates was jeopardized, remains to be debated. The Court grounded e.g., via provisions enhancing their profes- One of the consequences of the controver- its decision of acknowledging a constitutional sional responsibility and patrimonial liability; sial changes of the judiciary laws was the conflict on the fact that “when an authority, that the functioning of the judicial system was “saga” of the 5-judge panels in the criminal by its concrete actions, opposes the legislative in peril, e.g., between the potential mass reti- law section of the High Court of Cassation policy of the Parliament, it institutionally po- ring of magistrates with only 20 years of se- and Justice (HCCJ), which are competent to sitions itself against the constitutional order, niority and 45 years of age and the new rules rule on appeals against the Supreme Court’s whose reestablishment can be achieved either pertaining to becoming a magistrate; and that decisions pronounced as first instance. The by ordinary courts or by the Constitutional the constitutional guarantees of the judicial matter at stake was the composition of the Court. (…) In the present case, potential indi- authority were endangered through the syste- panels, a procedural step which could in- vidual actions before ordinary courts, besides mic weakening and segregation of the Supe- fluence, if irregular, the outcome of impor- being a disproportionate burden for ordinary rior Council of Magistracy. tant high-level corruption criminal cases citizens, impose that such requests be sol- against politicians. The changes brought in ved by the same instance that generated the None of these stopped the laws from coming 2018 to the law on the organization of the conflict, namely the HCCJ”. This was the jus- into force, albeit slightly changed in compa- judiciary required the draw of all members tification of the Constitutional Court’s inter- rison to the initial intentions of their promo- of the panels, whereas the current practice vention and final decision that there existed ters. Towards the end of 2018, the special was the draw of only four members, with the a conflict between the HCCJ and the Parlia- 250 | I•CONnect-Clough Center ment and that the Supreme Court should im- in 2017, which was done in Official Journal that the legal regime of incompatibilities is mediately proceed to draw all members of the no. 1002/27 in November 2018. The issue regulated in several laws that are not clear or new 5-judge panels (Decision no. 685/2018). made it to the Venice Commission’s Re- coherent and therefore the proposed change The story of this decision will continue in port on Separate Opinions of Constitutional contravenes to the “quality of the law” re- 2019, as there were voices that claimed that Courts, adopted at the 117th Plenary Session quirements indirectly set by the Constitution all cases decided by the 5-judge panels, inclu- on 14-15 December 2018. (https://www.ve- when it provides the principle of the rule of ding those solved by final judgments, should nice.coe.int/webforms/documents/default. law. A similar reasoning was developed in be reopened by means of new legislation with DVS["SGIILOH &'/$' H Decision no. 682/2018, which declared the retroactive effects. unconstitutionality of the changes to Law no. 2. Organisation and functioning of state 176/2010 of the National Integrity Agency. III. OTHER CONSTITUTIONAL institutions The impugned changes aimed at decreasing the statute of limitations period for actions CASES From the rich case law related to the func- against the incompatibility and conflict of tioning of state institutions we have selected interest offences committed by public offi- 1. The annulment of the Internal Ruling of cases regarding the term of office of consti- cers when exercising their functions. Howe- the Constitutional Court on separate & con- tutional judges and incompatibilities and in- ver, the Court did not base its decision on the current opinions by the Bucharest Court of tegrity rules for public officers. situation itself but on the erroneous wording Appeal used by the legislator. In Decision no. 136/2018, the Court declared Last year’s report mentioned a controver- unconstitutional the provision of a draft law These two latter decisions are worth mentio- sial Internal Ruling of the Constitutional aimed at modifying its own organic Law ning also for the Court’s interesting remarks Court which was meant to draw “the limits no. 47/1992. Despite the express provision on the “constitutional identity” of Romania in which a constitutional judge may exer- of Article 142(2) of the Constitution, which in the context of EU membership. The crea- cise his/her legal right to write a dissenting states that the nine-year term of office of tion of the National Integrity Agency and the or concurring opinion”. The Constitutional judges at the Constitutional Court “cannot reinforcement of integrity legislation and Court took the precaution to declare this In- be prolonged or renewed”, the impugned anti-corruption measures were conditions ternal Ruling of a jurisdictional nature, thus provision of the law allowed a person who imposed on Romania for its accession to the insulating it from potential administrative replaces a constitutional judge that ends his/ European Union, with progress to be moni- review. However, an administrative court in her term of office before nine years to be tored via the Cooperation and Verification Bucharest took a different view. Based on a reappointed for a full-term office. The Court Mechanism created by Decision 2006/98/ claim made by a young lawyer who argued stated that such a possibility given by the law CE of the European Commission. In the that for the professional training of barris- contravenes to the imperative prohibition of mentioned cases, the author of the uncons- ters, dissenting or concurring opinions of extension and renewal of the term of office titutionality complaints—in both cases, the judges of the Constitutional Court are highly of the members of the Constitutional Court. President of Romania—invoked the fact relevant and have to be published in the Of- Another set of cases regarded the rules of in- that by mitigating disciplinary sanctions and ficial Journal at the same time as the deci- tegrity for public officers and dignitaries, in- rules against conflicts of interest and other sion they refer to, the administrative section cluding parliamentarians. Thus, Parliament corruption offences as well as by reducing of the Bucharest Court of Appeal proceeded changed Law no. 161/2003 on transparency the realm of incompatibilities, the Romanian to an in-depth analysis of the legal nature of in the exercise of public offices and dignita- legislator would be in breach of the obliga- the Internal Ruling and declared it to be an ries and on the prevention and punishment tions assumed through the act of accession. administrative act that contradicts impera- of corruption, also known as the “law on in- The Constitutional Court answered that tive provisions on the procedure of judicial tegrity”, by abrogating the incompatibility “since the meaning of Decision 2006/928/ review. Therefore, the Bucharest Court of between the quality of an individual trade- CE establishing a Cooperation and Verifica- Appeal annulled the Internal Ruling of the owner and that of a public officer. This pro- tion Mechanism has not been clarified by the Constitutional Court on 20 June 2018 and posed change was declared unconstitutional Court of Justice of the European Union as obliged the constitutional jurisdiction to pu- on grounds of lack of clarity and predictabi- regards its content, character and temporal blish in the Official Journal of Romania the lity of the law, not on substantive grounds, limit and whether all these are circumscri- dissenting opinion that had been censored in Decision no. 104/2018. The Court held bed to the provisions of the Treaty of acces- 1 The relevant provisions of Article 148 CR read as follows: ‘(1) Romania’s accession to the constituent treaties of the European Union, with a view to transferring certain powers to community institutions, as well as to exercising in common with the other member states the abilities stipulated in such treaties, shall be carried out by means of a law adopted in joint sitting of the Chamber of Deputies and the Senate, with a majority of two-thirds of the number of deputies and senators. (2) As a result of the accession, the provisions of the constituent treaties of the European Union, as well as the other mandatory community regulations, shall take WYLJLKLUJLV]LY[OLVWWVZP[LWYV]PZPVUZVM[OLUH[PVUHSSH^ZPUJVTWSPHUJL^P[O[OLWYV]PZPVUZVM[OLHJJLZZPVUHJ[»ZV\YJL!VɉJPHS[YHUZSH[PVUH]HPSHISLVU[OL ZP[LVM[OL*OHTILYVM+LW\[PLZH[O[[W!^^^JKLWYVWSZKPJZP[LWHNL&KLU$HJ[F WHY$ [ JZZIH 2018 Global Review of Constitutional Law | 251 sion (...), the Decision cannot be considered the same-sex spouse of a Union citizen” (see Relations within the executive will most pro- as a reference norm within judicial review by CJEU, Case C 673/16, Coman & Hamilton, bably remain tense, and this will also be no- virtue of Article 148 of the Constitution”.1 It Judgment of the Court, available at http:// ticed at the European Union since Romania therefore refused to interpret extensively the curia.europa.eu/juris/document/document. will take over the rotating presidency of the notion of “provisions of the act of accession” MVI"WH[W GRFLG GRFODQJ (1 EU Council as of 1 January 2019. stipulated by the aforementioned constitutio- nal text. As a result, the Court stated that when Following the positive answer of the Euro- In addition, in June 2019 the Constitutional changing the “law on integrity”, save for total pean Court, which stated that “Article 21(1) Court will see its composition renewed with abrogation, the legislator is within its margin of TFEU is to be interpreted as meaning that, three judges, one to be appointed by the Pre- appreciation given by the “constitutional iden- in circumstances such as those of the main sident and two to be appointed by the two tity” corroborated with national sovereignty proceedings, a third-country national of the houses of Parliament. and with the international obligations assumed same sex as a Union citizen whose marriage under the Constitution. to that citizen was concluded in a Member Presidential elections are scheduled for De- State in accordance with the law of that state cember 2019, and the incumbent President 3. Highlights of the Rights-based Review has the right to reside in the territory of the has already announced his intention to run Member State of which the Union citizen is for office. According to most polls, he is fa- The law on national security was analysed a national for more than three months. That voured by the majority of voters. by the Court from the point of view of the derived right of residence cannot be made clarity of the provisions restricting the fun- subject to stricter conditions than those laid V. FURTHER READING damental right to privacy through communi- down in Article 7 of Directive 2004/38”. The cation surveillance and interceptions. Thus, Romanian Constitutional Court rendered its %LDQFD6HOHMDQ*X܊DQµ5RPDQLD 3HULOVRID the provision that such interceptions can own decision (no. 534/2018) and held that “Perfect Euro-Model” of Judicial Council’, be made against any person, provided they “the relationship of a same-sex couple is in (2018) 19 (7) German Law Journal 1707- are suspected of crimes that “seriously vio- included in the meaning of the notions of 40, http://www.germanlawjournal.com late the rights and freedoms of Romanian ‘private life’ and ‘family life’, just like the citizens”, was deemed unconstitutional for relationship of a heterosexual couple, which %LDQFD 6HOHMDQ*X܊DQ µ7KH 7DPLQJ RI WKH lack of clarity and predictability and for makes applicable the fundamental right to &RXUW ± :KHQ 3ROLWLFV 2YHUFRPH /DZ LQ being too extensive by reference to the res- private and family life protected by Article 7 the Romanian Constitutional Court’, Ver- tricted rights: “Given the fact that the law of the Charter of Fundamental Rights of the fassungsblog.de, 6 June 2018, https://ver- does not make any distinction, but refers EU, by Article 8 of the European Conven- fassungsblog.de/the-taming-of-the-court- generally to serious violations of rights and tion on Human Rights and by Article 26 of when-politics-overcome-law-in-the-roma- freedoms of Romanian citizens, regardless the Romanian Constitution”. Thus, the right nian-constitutional-court/ their quality as individual or collective vic- of these persons to have their marriages tim, leads to the idea that any offence, with concluded abroad be recognised for the pur- 6LPLQD7ăQăVHVFXµ,QWHJULW\LQWKHH[HUFLVH or without criminal connotation, can be cir- pose of granting permanent residence cannot of public office as a guarantee’, Constitutio- cumscribed to such a violation” (Decision be restricted by Romanian authorities, and nal Justice and Evolution of Individual Rights no. 91/2018). the Court interpreted the impugned Civil (eds.) Rainer Arnold, Alexandru Tanase (Ti- Code article to be constitutional only inso- SRJUDILD $UF &KLúLQăX S A very important decision for the protection far as it allows the right of residence on Ro- (ISBN 978-9975-0-3-C), http://constcourt. of fundamental rights concerned the recogni- manian territory to the spouses in same-sex md/public/files/file/Publicatii/2018/Consti- tion of same-sex marriages concluded abroad marriages concluded in a EU Member State. tutional_Justice_Conference.pdf in conjunction with the freedom of residence on Romanian territory of EU citizens and IV. LOOKING AHEAD TO 2019 6LPLQD 7ăQăVHVFX µ/D 5RXPDQLH &KUR- their family members. The case had started nique d’un référendum échoué’, partie I in 2015, but in 2016 the Constitutional Court Some of the evolutions presented in 2018 https://blog-iacl-aidc.org/blog/2018/10/17/ decided to address a preliminary question to will remain on the agenda during 2019 as partie-i-la-roumanie-chronique-dun-rfren- the Court of Justice of the European Union in well, particularly the large-scale reform of GXPFKRX"SDUWLH,, order to clarify, inter alia, the term “spouse” the judicial system, which goes well beyond within the meaning of Directive 2004/38, the three laws on its organisation and func- https://blog-iacl-aidc.org/blog/2018/10/18/ read in the light of Articles 7, 9, 21 and 45 of tioning or criminal codes, and encompasses partie-ii-la-roumanie-chronique-dun-rfren- the EU Charter of Fundamental Rights, and the still ongoing saga of the 5-judge panels at GXPFKRX" to answer if the Member States are required the Supreme Court and the recurrent issue of “to grant the right of residence in its territo- amnesty meant to absolve some politicians ry for a period longer than three months to of criminal responsibility. 252 | I•CONnect-Clough Center Russia Angela Di Gregorio, Full professor of public comparative law – University of Milan, Italy I. INTRODUCTION we can observe the ‘extraneousness’ to the Russian legal system of a more considered The 25th anniversary of the Russian Consti- approach to constitutional justice, working tution was celebrated in December 2018. This as a counterbalance to political power. This is an opportunity to reflect both on the charac- is evidenced by the supportive (or silent) behaviour of this institution when facing po- RUSSIA teristics and ‘solidity’ of the Russian constitu- tional system and the role of its Constitutional litically sensitive issues. At the same time, Court, originally introduced on December other courts and public authorities continue 15, 1990. Between 1991 and 1993, the Con- to ignore the constitutional case law. The stitutional Court acted within a constitutional overall authority of the Court is not compa- framework and with competences that were UDEOHZLWKWKDWRILWVFRXQWHUSDUWVLQ:HVWHUQ different from its current ones. Furthermore, countries. Despite this, or perhaps precisely it demonstrated a more respectful attitude because of it, it was decided to place on this towards parliament. The role it plays within Court the burden of responsibility to ‘defuse’ the context of the 1993 Constitution is differ- the rulings of the European Court of Human ent, especially in the new political era which Rights that are unacceptable to the Russian started between the end of the 1990s and the executive. beginning of the 2000s. II. MAJOR CONSTITUTIONAL Since then, the Constitutional Court has ex- DEVELOPMENTS perienced a not entirely positive evolution, considering both legislative limitations and :LWKUHJDUGWRFRQVWLWXWLRQDOGHYHORSPHQWV trends in jurisprudence. In this regard, the the situation fluctuates between constitution- Court has shown a rather obsequious attitude al ‘stagnation’ and political calls for limited towards the policies of the executive, such constitutional changes. Vyacheslav Volodin, as its legitimizing the Chechen war and the the speaker of the State Duma and a prom- incorporation of Crimea, and its favouring inent exponent of the party ‘United Rus- the clash with the Court of Strasbourg in po- sia’, has recommended a few constitutional litically sensitive matters affecting important changes.1 He did not specify the content, but public interests, e.g., the Yukos case. A simi- it is assumed that they are to legitimize the lar tendency can be observed in the case law immediate re-election of the incumbent pres- on political rights, where the Court upheld ident at the end of his fourth non-consecutive the legislative restrictions on freedom of term. Putin pretends indifference towards assembly and association while adopting a these initiatives, accepting that the modifica- more assertive stance in economic and social tion of the fundamental law is not taboo and rights, especially given the reduction of the should be widely discussed within society.2 latter as the Soviet welfare state disappeared. In this climate, Valery Zorkin, President of the Constitutional Court, in a long interview In evaluating the context in which the Court given in October to the government newspa- has been operating over the past 25 years, per Rossijskaya Gazeta,3 put forward his po- 1 Speech delivered at the December 25, 2018, celebration of the 25th anniversary of the Russian Constitution. 2 Press conference, 20 December 2018: www.kremlin.ru/events/president/news/59455. 2018 Global Review of Constitutional Law | 253 sition on the subject, admitting the possibil- ties, it is necessary to reconcile the liberal-in- gional’ identity); in fact, however, it goes ity of minor or very specific changes to the dividualistic legal approach ‘today dominant against a pan-European vision of shared Constitution. Zorkin made a number of phil- in theory and in world practice’ with that of legal values. At government level, Russian osophical observations around the concept social solidarity. This legal approach ‘to the identity is the attempt to counter the erosion of constitutional identity and the values un- maximum extent corresponds to the mental- of national sovereignty and strengthen the derlying the Russian Constitution, which in ity of the people of Russia, to its legal and constitutional identity of the state. Accord- his mind counterbalance the ‘moral degener- moral conscience’. According to Zorkin, the ing to Zorkin, citizens of the nation states ation’ being brought about by globalization. best solution would be ‘to merge the popular are intolerant of supranational regulations as This is a trend that has been emerging from collectivism with a competitive economic the democratic deficit of supranational bod- his speeches in the last few years, one which and political environment’. ies becomes increasingly evident. In this, he urges a ‘nationalist’ and conservative stance included international organizations for the DJDLQVW:HVWHUQFULWLFLVPRI5XVVLD1HYHU- As inferred from the petitions to the Con- protection of rights to which Russia adheres: theless, in the interview there were critical stitutional Court, citizens are very worried ‘we need to highlight the democratic deficit references to the current configuration of about socio-economic problems, in particu- of supranational bodies for the protection of power in Russia. lar the precarious protection of social rights. human rights, including the European Court They were and are deeply concerned by of Human Rights’. Firstly, Zorkin advised caution regarding social inequalities, and fatigued from three the many calls from all sides for ‘cardinal’ decades of reform much exacerbated by This last statement brings to mind the fact constitutional changes. At the same time, :HVWHUQVDQFWLRQV7KLVLVDQLPSRUWDQWDV- that the clash between the Russian Consti- he recognized the flaws of the Constitution: pect that cannot be ignored: many of today’s tutional Court and the European Court of ‘the absence of appropriate checks and bal- socio-economic difficulties derive from the Human Rights began as far back as 2010. ances, a preference for executive power, unbalanced privatization of state assets in From that point on, the Russian Constitu- lack of clarity over distribution of powers of the 1990s, thus leading to an unequal dis- tional Court and parliament have repeatedly the President and the Government, as well tribution of wealth. Given Russian cultural refused to adhere to the requirements of the as over the competences of the presidential traditions (the ‘community’ peasant and the European Court of Human Rights in terms administration and the powers of attorney’. Soviet communist past), it is understandable of both individual and general measures to How such significant defects of the power why 30 years following market reforms there be adopted (famous examples are the Mar- architecture could be remedied with limited is an overwhelming desire to reject the indi- kin, Anchugov & Gladkov and Yukos cas- but specific changes is not clear, but this is vidualistic idea of a lawless market as well es). Over time, the scenario changed from a what Zorkin has proposed. The president of as the inequalities caused by the concentra- ‘simple’ controversy about the relationship the Court also suggested using the ‘living tion of public goods in the hands of very few. between the jurisprudence of the two courts Constitution’ doctrine to interpret the text The same Constitutional Court is vigorous in (and therefore between the national consti- in terms of the socio-political realities of the protecting social and economic rights, espe- tution and international treaties on human day. The Constitutional Court uses this doc- cially those excluded from the privatization rights) and became a very complex debate trine in its interpretation of the Constitution, of assets of the former Soviet state. about ‘sovereign’ countries, where the term thus avoiding subjecting the text to disrup- sovereignism has become synonymous with tive changes that would undermine its poten- In the last part of the interview, Zorkin fo- ‘authoritarianism’. WLDOIRUµVRFLDOLQWHJUDWLRQ¶:LWKLQWKHLQWHU- cused on another subject that has become national context, the Constitution is a very very popular in Russian legal doctrine in The position of the Constitutional Court is important factor ‘to support and strengthen recent years, namely that of ‘constitutional clear in asserting the unenforceability of national identity, justified by the historical, identity’, which according to the judge is the judgments of the ECtHR by resorting to socio-cultural and geopolitical peculiarities represented by the feeling the citizens expe- rather convoluted legal reasoning. In fact, it of Russia’s development’. rience by belonging to the same plurination- does not challenge the European Convention al people who are united by ‘the common itself, but rather its ‘evolutionary’ interpre- Speaking on behalf of the Court, Zorkin sup- destiny on their own land’ (…preamble from tation by the Court of Strasbourg. The Trea- ported a proposition that had been gaining the Constitution). ty was considered to be consistent with the popularity among Russian intellectuals as Russian Constitution at the time of its sign- well as the political elite. The idea was that In some respects, this identity can also in- ing and ratification. in highlighting traditional national peculiari- clude a European dimension (a sort of ‘re- 3 )\R]HPK\RO2VUZ[P[\[ZPPThe letter and the spirit of the Constitution), 9.10.2018, www.rg.ru/2018/10/09/zorkin-nedostatki-v-konstitucii-mozhno-ustranit-to- chechnymi-izmeneniiami.html. 254 | I•CONnect-Clough Center III. CONSTITUTIONAL CASES legitimacy of the agreement, reached fol- The Constitutional Court of Ingushetia had lowing 26 years of negotiations between declared on October 30, 2018, at the request 1. General trends the (internal) Republics of Ingushetia and of a group of local deputies, that the agree- Chechnya,4 that established an administra- ment was not consistent with the Constitution As highlighted above, in recent years the tive border. During the Soviet period (from of the Republic, arguing that it should have Russian Constitutional Court has not ad- 1934), Chechnya and Ingushetia were part been subject to a referendum. Furthermore, dressed significant political issues, focusing of a single ‘Chechen-Ingush autonomous the standing orders of the regional assembly instead on the protection of individual rights, Soviet Socialist Republic’. Since their birth would have been violated. The Russian Con- especially in social and economic spheres. In as two separate republics, which occured in stitutional Court instead issued a rather Sol- 5 fact, individual citizen petitions are predomi- 1992, the administrative border has never omonian decision. Although this was neces- nant. In 2018, the Court issued 47 judgments been formally agreed to until the recent ac- sary to put an end to long and complex nego- and 3,489 ordinances. The majority of ap- cord of 26 September 2018, promptly rati- tiations, there are many contradictory aspects plicants were private citizens (including one fied by the parliaments of both republics. from the point of view of legal reasoning. First foreigner from Vietnam). Other applicants The agreement provoked many tensions of all, the Court underlined a difference be- included an association, a regional section of and protests in Inguscetia, whose popula- tween the initial ‘contours’ of the border and a political party, joint stock or limited liabil- tion felt itself disadvantaged. In fact they its ‘modification’. In the modifications to the ity companies and some courts. On only two claimed that the agreement implied not a border, both the Federation and its subjects 6 occasions have regional public institutions simple exchange of land but instead meant should have been involved, especially the resorted to the Court. The laws challenged the transfer to Chechnya of significant an- Council of the Federation and the local popu- were mostly federal (the most disputed be- cestral burial sites. There are political and lation. However, in this discussion, according ing the statute on the status of the military) economic motivations behind these ancestral to the Court, the main question was the defini- and there were only two cases that examined claims, which are deeply felt by the Russian tion of the ‘original’ border. Consequently, the the laws of subnational units. In 18 cases, the Caucasus, itself a powder keg on the verge of procedures followed to ratify the agreement, disputed provisions were declared totally or conflict. Among them are firstly that the ter- i.e., a simple parliamentary majority, were partially unconstitutional. The most contro- ritories ceded to Chechnya include oil fields legitimate. There had been no modification versial case in 2018 was that of the internal (which should not be an economic advantage of the municipalities’ contours, therefore no border between the Republics of Inguscetia for Chechnya since natural resources fall un- referendum was required. Furthermore, the and Chechnya. The remaining cases con- der federal ownership), and secondly and subject of the contours was a federal constitu- cerned social rights (employment, pensions, most importantly, that the population of In- tional competence, not a regional or local one. assistance to victims of Chernobyl), eco- gushetia does not lose its administrative au- nomic rights (taxes), the status of the mili- tonomy by being reabsorbed by the Chechen The emphasis on distinguishing between tary and foreigners. Republic, whose leader Kadyrov is a loyalist tracing the original contours and modify- ally of the Kremlin. ing them seems to be based on weak legal 2. Review of the constitutionality of the Law arguments and is clearly aimed at avoiding of the Republic of Ingushetia: ‘On Approval of Regarding the legal aspects of the matter, the breaking a fragile agreement. In fact, the the Agreement on Establishment of a Border Constitutional Court trivialized the dispute border had existed for the last 26 years pri- between the Republic of Ingushetia and the by claiming that the agreement was purely or to the 2018 agreement, which de facto Chechen Republic and the Agreement on Es- formal and did not change the existing bor- changed it, partly seeking to recover territory tablishment of a Border between the Republic der. However, the issue is more complex, that had been taken from Chechnya. Further- of Ingushetia and the Chechen Republic’ and the Court’s decision was both superficial more, the procedure for tracing the border from the point of view of legal arguments as was not clear and the deadlines indicated by In its judgment of December 6, 2018, the well as hasty in that it ruled in record time, federal legislation had long since expired. It Russian Constitutional Court was asked to no doubt responding to civic unrest. also seems quite ironic that the procedure for resolve a rather thorny issue, namely the the modification of the border ended up be- 4 ([[OLYLX\LZ[VM[OL/LHKVM[OL9LW\ISPJVM0UN\ZJL[PH;OLHWWSPJHU[HZRLKMVYJVUÄYTH[PVUVM[OLSLNP[PTHJ`VM[OLHJ[KLZWP[L[OLKLJPZPVUVM[OL*VUZ[P[\[PVUHS Court of Ingushetia. 5 +\YPUN[OL[^V*OLJOLU^HYZPU[OL Z0UN\ZOL[PHJOVZL[VYLTHPUWHY[VM9\ZZPH^OPSL*OLJOU`HZV\NO[PUKLWLUKLUJL-VSSV^PUN[OLZLWVZ[:V]PL[JVUÅPJ[Z the leaders of the two republics signed agreements about the contours of the border that provided for the attribution of those areas that are currently being disputed [V0UN\ZOL[PH;OLHIZLUJLVMYH[PÄJH[PVUVM[OPZHNYLLTLU[I`LP[OLYWHY[`MVZ[LYLKHJSPTH[LVM[LUZPVUJH\ZLKI`YLJPWYVJHSJSHPTZ;OLSH[LZ[WYV[LZ[ZVM0UN\ZOL[PH follow another historical case involving their nation, namely the war between Ingushetia and North Ossetia for the control of some border territories. Also in this case, Ingushetia had to renounce the reassignment of its historical territory in addition to seeing the local Ingush population subject to a real ethnic cleansing. 6 The agreement reassigned a mountainous and uninhabited area on the border, the Chechen district of Nadterechnyj, to Ingushetia. In exchange, an area of the Ingush district of Malgobyeksky was ceded to Chechnya (Chechnya acquired about 26,000 hectares of land while ceding only 1,000 to Inguschetia). www.eng.kavkaz-uzel.eu/ articles/44880. 2018 Global Review of Constitutional Law | 255 ing far more draconian than the one used for The regional party list failed to be registered :KDW LV DVWRQLVKLQJ LQ WKLV GHFLVLRQ LV WKH its original creation. due to gross misconduct by a member of the reference to an international act concerning electoral commission. This gross and crimi- electoral rights that was outside the frame- :LWK UHJDUG WR WKH LQFRQVLVWHQF\ RI WKH UH- nally prosecutable misconduct, forgiven by work of the Council of Europe or OSCE, of public’s laws with its Constitution, the Rus- subsequent amnesty, amounted to the appel- which Russia is also a signatory, but with- sian Constitutional Court, while admitting lant being delayed beyond the deadline for in that of the Community of Independent that it was not competent to settle this con- registering the party list and thus from taking States: the CIS Convention on the Standards flict, considered that the judgment of the part in the elections. of Democratic Elections. Court of the Republic was not executable. It cited two reasons: first, the aforementioned The challenged provisions allow an admin- IV. LOOKING AHEAD features of federal constitutional law, and istrative appeal against the decisions of elec- second, the inadmissibility of the appeal by toral commissions for a long series of appli- Constitutional challenges in the coming local deputies for failing to meet the mini- cants excluding unregistered candidates. Po- years could include, as stated above, ‘lim- mum number required. litical parties can only appeal a formal deci- ited’ constitutional amendments very likely sion by an electoral commission that refuses related to the mandates of the head of state. Among the most obscure points of the de- a party’s registration, which was not the case But the risk of further ‘sovereign’ closures cision is one concerning the violation of the in this event. at a political and constitutional level are far standing orders of the republican assembly. more worrying. Such attitudes, endorsed by Given the considerations made around the The electoral legislation and the Code of the Constitutional Court, may lead Russia adoption of federal laws, the Russian Con- Administrative Judicial Proceedings of the even further away from the standards of the stitutional Court judged as legitimate a law Russian Federation do not provide a judicial rest of Europe. adopted when ‘fundamental procedural pro- remedy against the behavior of the mem- visions are respected’, notwithstanding ‘mi- bers of electoral commissions who commit The failure of the Constitutional Court is a nor’ violations of parliamentary standing or- crimes and are subsequently forgiven by product of the environment in which it op- ders (three readings, secret vote, etc.). amnesty. The Court enabled political parties erates, characterized by a general weakening to challenge electoral commission decisions of the judiciary as evidenced by the elimina- Finally, the federal Constitutional Court detrimental to the electoral rights of the par- WLRQRIWKH+LJKHU&RXUWRI$UELWUDWLRQ:H claimed that the regional Constitutional ty and its unregistered candidates on whose would not be astonished either by the possi- Court could not examine a law ratifying an behalf the party must appeal. The Court ble suppression of the Constitutional Court agreement since its proper role was to exam- therefore considered that ‘The termination and the transfer of its competences to a Su- ine agreements before they enter into force, of the criminal prosecution of the official of preme Court chamber (as proposed in some not to ajudicate on those already in force. the electoral commission for rehabilitation of the constitutional projects in 1993) or by However, it is worth noting that this is pre- reasons makes unresolved the question (dis- Russia’s exit from the ECHR (as suggested cisely what the federal Court did in 2015 pute) concerning whether the candidates or by prominent Russian politicians). Howev- when it examined the constitutionality of the lists presented by the electoral associations er, despite the difficulties encountered by the law of ratification of the ECHR, and there- were not registered precisely following the Constitutional Court in gaining authority in fore the ECHR itself, at a time when the Ac- unlawful action of this official. In this case, the country and the increasing tensions be- cession Treaty was already in force. the electoral association must be granted the tween Russia and the Council of Europe, it right to appeal, even after the expiry of the would be inappropriate to give up on such 3. Review of the constitutionality of Section deadline provided for by Article 240, Section important defenders of the rule of law. Such 15 of Article 239 of the Code of Administra- 3 of the Code of Administrative Judicial Pro- a move would signify a departure from the tive Judicial Proceedings of the Russian Fed- ceedings. This would be an administrative European culture of fundamental rights in eration in connection with a complaint of the appeal asking to repeal the election commis- favour of a conservative Russian-style iden- regional section of the political party ‘Fair sion’s certification of the election results’. tity, one which hides liberal and popular (as Russia’ in the city of Saint Petersburg According to the Court, this is the best way opposed to populist) roots that are still pres- to assess how violations of electoral legisla- ent in the culture of Russia and whose citi- In its judgment of November 15, 2018, the tion affected the free expression of the will zens feel European. Court granted the regional section of a polit- of voters and the objective evaluation of the ical party, but not its individual candidates, vote’s results. At the same time, compen- the right to challenge the violation of the sation mechanisms to reinstate the violated right to register and participate in elections. rights could be enforced. 256 | I•CONnect-Clough Center V. FURTHER READING Alexander Blankenagel, ‘The ghost haunting decisions of European constitutional courts: ZKDW WR GR ZLWK FRQVWLWXWLRQDO LGHQWLW\"¶ (2018) 5 (126), Sravnitel’noe konstitutsion- noe obozrenie Angela Di Gregorio, ‘La giurisprudenza costituzionale della Russia nel biennio 2016- 2017’ (2018) 5 Giurisprudenza costituzio- nale Jane Henderson, ‘Russia’s Recent Dealings with the Council of Europe and European Court of Human Rights’ (2018) 24 (3) Euro- pean Public Law :LOOLDP 3RPHUDQ] Law and the Russian State. Russia’s Legal Evolution from Peter the Great to Vladimir Putin (The Blooms- bury History of Modern Russia Series, Bloomsbury Academic, 2018) 2018 Global Review of Constitutional Law | 257 Serbia 8URãûHPDORYLü3K'6HQLRU$VVRFLDWHIRU/DZ*RYHUQPHQWDQG,QWHUQDWLRQDO$IIDLUV Research and Evaluation International I. INTRODUCTION decisions, the majority of which (670) con- cerned constitutional complaints regarding In 2018, Serbia kept its proclamatory EU issues such as the violation of the right to a membership-oriented policy, but only four trial in a reasonable time or the violation of negotiation chapters were opened (vs. six in the right to freedom and security. The Court 2017): Chapter 13–Fisheries; Chapter 17– also examined the constitutionality and/or Economic and Monetary Policy; Chapter legality of a certain number of legislative SERBIA 18–Statistics; and Chapter 33–Financial and and regulatory acts. Some exemplary con- Budgetary Provisions. As was the case in stitutional cases will be examined in Chap- numerous previous reports, the latest Euro- ter III. Finally, it is not difficult to estimate pean Commission’s Report on Serbia (April that the most important issues in 2019 will 2018) most often used the expressions ‘is remain modifications to the Constitution and moderately prepared’ (for example, in the strengthening the independence of the judi- area of public administration reform) and ciary. ‘has some level of preparation’ (indicated mostly for the judicial system), phrases of II. MAJOR CONSTITUTIONAL the EU bureaucratic jargon most often used DEVELOPMENTS when a country’s progress is not satisfactory. One of the most positive developments was As was the case in 2017,1 the ongoing the November 2018 adoption of the Law on procedure for the adoption of constitutional Free Legal Aid, but it remains to be seen how amendments represented the quintessence it will be implemented. In November, the of constitutional developments during the Government also submitted to the National entire year 2018. On November 30, the Go- Assembly the proposition (initiative) for the vernment finally submitted to the National adoption of constitutional changes, based on Assembly (NA) the proposition (initiative) the amendments to the Constitution (fourth for the adoption of constitutional changes.2 draft version) previously elaborated by the This proposition was the result of the fourth Ministry of Justice. Numerous controversies draft version of constitutional amendments,3 remain regarding the content of these draft which, according to the Ministry of justice amendments, and they will be more thor- (MJ), were improved by the comments of oughly examined in Chapter II. In 2018, the legal experts and practitioners. In any case, Constitutional Court adopted 708 various the next procedural step4 should be the ap- 1 See .SVIHS9L]PL^VM*VUZ[P[\[PVUHS3H^ I-CONnect-Clough Center 2018, Report on Serbia, p. 240-243. 2 The term ‘constitutional changes’ is used because the Serbian Constitution makes no mention of the term ‘amendment’, but only the proposition (initiative) for constitutional changes (Art. 203-1). However, the entity submitting the initiative (according to Art. 203-1, it can be one-third of the MPs, the President of the Republic, the Government or 150.000 citizens) is entitled to motivate its initiative, therefore suggesting the content of the proposed changes. 3 For the fourth and latest version of the constitutional amendments elaborated by the Ministry of Justice (in ,UNSPZO#O[[WZ!^^^TWYH]KLNV]YZÄSLZ7YL * +P * ( * LU ÄUHSUP [LRZ[ HTHUKTHUH UH LUNSLZRVT KVJ_%HJJLZZLK 1HU\HY` 4 Art. 203 of the Constitution provides a complex procedure for the adoption of constitutional changes; this WYVJLK\YLPUJS\KLZÄ]LTHQVYWOHZLZ!HKVW[PVUVM[OLPUP[PH[P]LMVYJVUZ[P[\[PVUHSJOHUNLZ"LSHIVYH[PVU of the act on constitutional changes; 3) adoption of this act in the NA by 2/3 majority, potentially followed by 4) referendum (obligatory or not) and 5) proclamation of the act on constitutional changes. 258 | I•CONnect-Clough Center proval of the NA, necessitating a two-thirds cal appointments, a situation that initial- that should lead to their separation. Fi- majority, regarding adoption of the initiative ly was one of the main motives of the in- nally, some experts8 have also noticed for constitutional changes. The NA is not tended constitutional changes. As some that this term only appeared in the four- formally tied by the content of the proposed independent associations of judges have th draft version of the constitutional amendments, given that it is formally entitled pointed out, it is possible that one half amendments and was not submitted to to autonomously elaborate the act compri- of the HJC would be ‘an interconnected the Venice Commission, as was the case sing constitutional amendments (Art. 203-5 group of like-minded people under the of previous versions. In conclusion, one of the Constitution) once it adopts the initia- influence of the ruling majority’.6 Ter- can only reiterate the assessment given tive for constitutional changes (Art. 203-3). tio, even the provisions related to the in our report for 2017—the path before However, the stable governmental majority election of the members of the HJC do the initiated constitutional changes in in the NA and the strong control of the ruling not guarantee the independence of the Serbia is still long and unpredictable. political party over parliamentary processes, judiciary—if two-thirds majority in the as well as the overall absence of the political NA is not obtained, a five-member com- III. CONSTITUTIONAL CASES culture favourable to the independence of mittee elects the members of the HJC. the parliament and the separation of powers, Three members of this committee are not In 2018, the Constitutional Court of Ser- would, most probably, lead to the NA’s de- judges: the president of the NA, Chief bia (CCS) adopted 708 various decisions, cision to follow the fourth draft version of Public Prosecutor and Ombudsman. out of which the overwhelming majority constitutional amendments elaborated by the (670) concerned constitutional complaints, MJ, at least when it comes to the most im- 2) According to draft constitutional while other decisions treated the issues of portant provisions. Consequently, the focus amendment VII, a person to be elected the constitutionality and/or legality of laws of this chapter will be on draft constitutional as a judge for the first time ‘may be and general acts adopted by the National amendments as they were formulated by the elected only if he or she has completed Assembly (11) and the constitutionality or MJ. Numerous controversies remain regar- training at the Judicial Academy’. In the legality of other general acts (27), either by- ding the content of these draft amendments, context of weak constitutional and legal laws or acts adopted by the authorities of out of which the following three are giving guarantees of the independence of the ORFDO VHOIJRYHUQDQFH :LWKLQ WKH JURXS RI rise to major concerns: 1) the composition of Judicial Academy, this well-intended constitutional complaints, numerous deci- the High Judicial Council; 2) conditions for provision—officially aimed at rai- sions were taken regarding the violation of the first appointment of judges; and 3) pro- sing the competences of newly elected the right to a trial in a reasonable time (Art. visions on the relations of the three branches judges—could jeopardize the indepen- 32 of the Constitution), while some CCS of power. dence of the judiciary. decisions treated the issue of violation of 3) Finally, the draft constitutional other rights, including the right on freedom 1) According to draft constitutional amendments, in some important aspects, and security (Art. 27 of the Constitution). amendment XIV, the High Judicial contain unclear and potentially worrying Concerning the issue of the constitutionality Council (HJC) ‘shall be composed of provisions regarding the relationship of laws, in one of its most interesting deci- ten members: five judges elected by between the three branches of power. sions, the CCS examined the amendments to the judges and five prominent lawyers For example, the first draft amendment the Law on Copyright and Related Rights. 5 elected by the National Assembly’. provides that this relationship be based Finally, within the group of CCS decisions Primo, this provision allows the subs- on ‘mutual control’ (proveravanje in on the constitutionality or legality of other tantial influence of the NA on the HJC Serbian) while the English translation is general acts, 17 out of 27 rulings concerned 7 and, consequently, on the appointment ‘checks and balances’. Apart from the various legal acts of cities and municipali- of judges, diminishing the existing le- fact that the translation is inadequate, ties. In this chapter analysis will be made on vel of guarantees for the independence the noun (in Serbian) used in the draft the CCS decisions regarding 1) two consti- of the judiciary. Secundo, the criteria for amendment is very unusual in national tutional complaints, 2) the constitutionality ‘a prominent lawyer’ are inexistent and constitutional terminology and inap- of one law and 3) the constitutionality and leave considerable room for interpreta- propriate to describe the relationship legality of one act adopted by the authorities tion, potentially leading to purely politi- between the three branches of power of local self-governance.