Constitutional Bill Of Rights Research Articles

The Court of Justice of the European Union: A Human Rights Institution?

Abstract While the original basic treaties establishing the European Communities were more or less silent on the need to respect human rights or fundamental rights, the Court of Justice of the European Communities (now the European Court of Justice) gradually came to the understanding that the principle of primacy of Community law could not in the long run be imposed against national constitutional bills of rights unless Community law itself provided some guarantees for the protection of fundamental rights. Today, fundamental rights have become part and parcel of the day-to-day work of the Court and there are even people who seem to think that the Court takes fundamental rights all too seriously. Recapitulating the general development of fundamental rights in EU law and the EU’s accession to the European Convention on Human Rights, as well as comparing Luxembourg’s and the European Court of Human Rights’ case law and legal regimes, this article argues that the European Court of Justice is not a human rights court. It is but a judicial body charged with the task of ensuring that the law—which includes a vast and heterogeneous set of rules adopted and applied within a constitutional order which is quite different from the ECHR system—is observed, as required by Article 19(1) TEU.

The judicialisation of discrimination in the Indonesian constitutional court

Following the post-Soeharto constitutional reform from 1999 to 2002, the Indonesian Constitutional Court was established with powers, inter alia, to review the constitutionality of national legislation. The constitutional amendments also incorporated a constitutional Bill of Rights, which includes the right to be free from discrimination on any ground and the right to protection against discrimination under Article 28I(2) and the right to equality before the law under Article 28D(1). However, the Constitution does not specify an enumerated list of grounds against which discrimination is prohibited. This article examines a body of constitutional jurisprudence in Indonesia, an Asian civil law country with no formal system of precedent. It seeks to determine the extent to which the Indonesian Constitutional Court has protected the citizens' fundamental rights of equality and against discrimination. Through describing and analysing three court decisions on the principles of equality and non-discrimination, this article argues that the Indonesian Constitutional Court, in its early years of operation, took these principles seriously. Nevertheless, in its later decisions, the Court departed, albeit not explicitly, from its earlier ruling by relying on ‘the belief in One God’ and ‘the religious values consideration’ under Articles 29(1) and 28J of the Constitution to restrict the fundamental rights of equality and non-discrimination. Consequently, the Court has unjustifiably held that discrimination is not prohibited insofar as it is in accord with religious orthodoxy.

Constitutional bills of rights and democratic transformation in post-authoritarian scenarios

ABSTRACT This article discusses the relation between bills of rights and democratic transformation processes in post-authoritarian scenarios. For that purpose, it uses as an empirical basis the post-2000 sub-Saharan and post-2005 Arab constitutional bills of rights. Their linguistic verbosity is identified as a likely predictor variable, with possible correlations tested statistically, and potential causalities (as well as epiphenomenal, non-causal relations) explored by means of a case study. The bills of rights’ specificity has been found to be inversely correlated with an effective democratic consolidation. A causal link has been identified: an excessive linguistic verbosity makes the democratic consolidation scenario more unlikely. Finally, generalising research arguments are offered, explaining the paradox of longer bills of rights leading to poor democratic transformation.

The New Arab Bills of Rights: a Study on the Constitutions of Egypt, Morocco and Tunisia

This article analyses the changes effected by the new constitutional bills of rights of Egypt, Morocco and Tunisia. In the Introduction, the conceptual and empirical framework is presented, enunciating four descriptive hypotheses: (1) the new Arab bills of rights are longer and denser, (2) they take up the most recent catalogues of rights as expressed in the globalized constitutional models, (3) they recognize the international human rights law as a binding legal category, and (4) they grant a special importance to women, children and minorities’ rights. The testing of these hypotheses, by means of a descriptive statistical analysis and the study of the novelties introduced, constitutes the second section. The third section analyzes the evolution and functional rationale of these new constitutional provisions. Finally, a conclusion is provided, arguing that the new Arab bills of rights are situated within globalized constitutional trends, adjusted with certain regional particularities.

Consent, custom and international law in South Africa: What Australian lawmakers could learn

This article summarises a recent South African case, Baleni v Minister of Mineral Resources. It also analyses the Court’s reasoning to explore how a non-Australian common law state protects a traditional community’s customary laws and practices through legislation, a Constitutional Bill of Rights, and international law. Although a South African case, Baleni demonstrates how similar common law countries have adopted distinct approaches to protecting and treating traditional communities, from which Australian lawmakers could learn.

Yesterday’s Law: Terrorist Group Listing in Canada

ABSTRACTCanada’s approach to proscription differs from that of other Westminster democracies. After the negative example of listing in the October Crisis, 1970 and with the subsequent advent of a constitutional bill of rights, Canada does not ban organizations; instead it penalizes certain forms of conduct, above mere membership, with terrorist groups. “Terrorist groups” include entities listed proactively by the executive, but also entities that meet a functional definition in Canadian criminal law. In practice, the latter, functionally-defined terrorist groups have figured in most terrorism prosecutions—only a few cases have involved listed groups. With the new focus on Daesh (a listed group), that may begin to change. However, executive listing raises unresolved constitutional doubts in Canada, prompting concerns that reliance on proscription may be more trouble than it is worth. Listing has also been used with respect to individuals, but such listings in Canada have already produced false positives, perhaps because of the due process deficits of listing by the executive. In many respects, therefore, terrorist group listing is yesterday’s law, problematic and of marginal utility. There may be reasons of administrative expediency to preserve listing, but the tool is more doubtful when used as a precursor to criminal prosecutions.

Introduction Legislated Rights: Securing Human Rights Through Legislation

This article is reprinted from the Introduction to Legislated Rights: Securing Human Rights through Legislation, jointly authored by Gregoire Webber, Paul Yowell, Richard Ekins, Maris Kopcke, Bradley W. Miller, and Francisco J. Urbina, published by Cambridge University Press in 2018. The important aspects of human well-being outlined in human rights instruments and constitutional bills of rights can only be adequately secured as and when they are rendered the object of specific rights and corresponding duties. It is often assumed that the main responsibility for specifying the content of such genuine rights lies with courts. The book argues against this assumption, by showing how legislatures can and should be at the centre of the practice of human rights. It explores how and why legislatures, being strategically placed within a system of positive law, can help realise human rights through modes of protection that courts cannot provide by way of judicial review. This introductory chapter by Gregoire Webber and Paul Yowell introduces four theses animating human rights law and scholarship. It defends four counter-theses that motivate the book’s main arguments and explores the deep interconnectedness between human rights and positive law, before

Constitutional Comparisons by A Supranational Court in Flux: The Privy Council and Caribbean Bills of Rights

This article examines how the Judicial Committee of the Privy Council makes constitutional comparisons between ‘related’ constitutions that are or were within its jurisdiction, deploying its own precedents, as a pragmatic method of resolving idiosyncratic questions that arise across multiple constitutions. In particular, it considers the Committee's approach to the longstanding question of the interpretation of the opening section of Caribbean constitutional bills of rights, which has far reaching implications for the scope of constitutional protection of human rights. The JCPC's answer over time to this question reveals the fault lines for this supranational constitutional court as its jurisdiction peters out yet remains. The gaze of comparativism is very harsh as older constitutions are evaluated in light of newer ones and also as fossilised constitutional interpretations presented in earlier JCPC cases where the Committee no longer has jurisdiction are given new life in contemporary cases.

Automated Facial Recognition Technology: Recent Developments and Approaches to Oversight

Introduction There has been a rapid expansion in the type and volume of information collected for security purposes following the terrorist attacks on the United States of America (‘US’) on 11 September 2001. This event has been described as precipitating a program of ‘globalized surveillance’. New technology, biometric identification and other developments such as metadata retention can provide governments with an increasingly comprehensive picture of citizens’ lives. This has resulted in a rapidly expanding use of human biometric information in law enforcement investigations and other applications. The first part of this article describes Automated Facial Recognition Technology (‘AFRT’) and its law enforcement and border security applications, as well as integration with image sources such as closed circuit television (‘CCTV’), social media and big data. Recent developments including biometric identification documents (licences and passports) and information sharing arrangements that promote searching between state, territory and national government databases to facilitate a national facial recognition system will be discussed. These developments are reviewed against the backdrop of tension between individual privacy rights and collective security objectives. The second part of the article examines existing privacy protections, law enforcement exemptions, and regulatory options based on an international review of current oversight models. As is often the case in relation to technological advancements, government regulation and the legal system have lagged behind, and potential regulatory approaches have not been adequately discussed in either public debate or the academic literature. In the absence of a constitutional bill of rights or a cause of action for serious invasion of privacy in Australia, there are limited protections in relation to biometric information, and those that do exist, such as protections provided by the Privacy Act 1988 (Cth), are subject to exemptions. This has led to a significant governance gap. In order to align with international regulatory practices, the functions and funding of the Office of the Australian Information Commissioner (‘OAIC’) should be strengthened or, alternatively, a Biometrics Commissioner should be introduced.

Debate on the Modernisation of the Constitutional Bill of Rights in Europe. General overview

How do or could European States envisage their constitutional catalogues of human rights today? This article addresses that question in the broader framework of a reflection on the contribution of the Constitution to the protection of human rights. It argues that the ageing of constitutional catalogues of human rights is not a fatality and that the people can always decide to update and revitalize its fundamental text through a democratic revision process - even though this may prove difficult. The analysis tackles the relevant legal aspects of the issue in an interdisciplinary perspective.

Democracy in decline: steps in the wrong direction

A lament on the inroads that over-powerful judges and international law are making into democratic decision-making.Part lament, part provocative call-to-action, Democracy in Decline charts how democracy is being diluted and restricted in five of the world's oldest democracies - the United States, Canada, the United Kingdom, Australia, and New Zealand.James Allan targets four main, interconnected causes of decline - judicial activism, the transformation and growth of international law, the development of supranational organizations, and the presence of undemocratic elites. He presents a convincing argument that the same trends are occurring whether the country has a constitutional bill of rights (United States and Canada), a statutory bill of rights (the United Kingdom and New Zealand), or no bill of rights at all (Australia). Identifying tactics used by lawyers, judges, and international bureaucrats to deny that any decline has occurred, Allan looks ahead to further deterioration caused by attacks on free speech, intolerant worldviews, internationalization through treaties and conventions, and illegal immigration.Social and political decisions, Allan argues, must be based on counting every adult in a nation state as equal. An essential book for anyone concerned with majority rule and fairness in numbers, Democracy in Decline presents a clear, well-stated account of trends that have been undermining democracy over three decades.

Constitutional Design and Australian Exceptionalism in the Adoption of National Bills of Rights

AbstractWhy has Australia not followed Canada, New Zealand and the United Kingdom in adopting a formal bill of rights at the national level? We argue that the Australian Constitution has made the difference. The Constitution has underpinned a comparatively strong parliamentary check on the executive, weakening the rationale for a bill of rights and impeding legislative initiatives towards this end; thwarted the drive for a constitutional bill of rights; and helped delegitimize statutory approaches to a bill of rights in general and the “dialogue model” in particular. The article ultimately questions the notion that a common approach to rights protection can apply across Westminster democracies.

James Wilson versus the Bill of Rights

Americans today may take the Bill of Rights for granted, but its inclusion in the U.S. Constitution originally was controversial. To understand why, I turn to James Wilson, a leading statesman of the founding era and the chief opponent of the Bill of Rights. Among other things, Wilson thought a bill of rights would bind future generations to an incomplete list of rights and deprive them of the right to define individual rights over time. His arguments against a constitutional bill of rights also offer a useful view of the complexity and diversity of American founding era thought.

Does Australia Need a Constitutional Bill of Rights ?

Does Australia Need a Constitutional Bill of Rights ?

Counterterrorism, Dignity, and the Rule of Law

Counterterrorism, Dignity, and the Rule of Law

Perceptions of Policy Duty Bearers on the Inclusive Education Policy for Pregnant Teenagers in South Africa

Post-apa rtheid, South Africa democratised access to education as enshrined in the country's Constitutional Bill of Rights of 1996. This also includes making education accessible to pregnant teenagers as provided for by other post-apartheid legal provisions that prohibit discrimination in education. This study explored the perceptions of education policy duty bearers on the inclusion of pregnant learners in formal schools. The sample of the study comprised teachers, community representatives in school governing bodies (SGB), and parents of pregnant teenagers at two schools that mainstreamed pregnant learners. Data were analysed using Atlas ti computer package which was programmed to code and quote participants' views. Results of the study revealed that socio-cultural gender ideologies were the more influential variables on participants' negative perceptions towards the inclusion of pregnant learners in regular schools. From the findings, we recommend that comprehensive struc- tures and procedures for policy dialogue and advocacy be established in schools.

The nutrition transition and the human right to adequate food for adolescents in the Cape Town metropolitan area: Implications for nutrition policy

Changes in diet and nutrition, along with other lifestyle changes during the last decades, have affected the nutrition-related disease profile in many developing countries. This phenomenon, or process, is known as ‘The Nutrition Transition’. Several studies on adolescents in South Africa have shown that overweight and obesity are increasing, possibly due to this process. The aim of the present study was to extend our knowledge on the nutrition transition and the factors that influence adolescents’ choice of food in South Africa, and to develop policy recommendations that could facilitate the adolescents’ right to adequate food as laid down in the South African Constitutional Bill of Rights. The data were collected through focus groups with 25 female learners (grade 10, 14–16years) from urban public schools in Cape Town and key informant interviews with 10 school staff members. The most important nutritional concerns that emerged from the analyses, included skipping breakfast and the consumption of unhealthy tuck shop food. In terms of the human right to adequate food, these findings reflected lack of availability and access to adequate food within the household, at schools, and in the community. In addition, the study showed that there were no or few opportunities for physical activity for adolescents during and after school hours. Social factors, including social norms and a need to conform to peer group pressure, appeared to affect the behaviour of learners considerably. Traditional foods appeared to have lost their importance, while learners preferred to consume fast foods and to adopt a more westernised diet connected to affluence and social acceptance. Traditional and more “Western” body perceptions co-existed among the study participants. The nutrition transition in South Africa is of a complex nature because of large differences that exist amongst different ethnic and socioeconomic groups. Policy decisions should be based on an understanding of these diverse factors. The media and the food industry should be encouraged to work with government in influencing adolescents to make healthy food choices. Cultural perceptions which may lead to unhealthy choices and lifestyle need to be addressed while at the same time respecting people’s cultural pride and human dignity. It is recommended that human rights principles are used purposively in the future in policy formulations, interventions, evaluation and monitoring.

Navigating the “Unchartered” Waters of Victorian Mental Health Law Reform

With the Charter of Human Rights and Responsibilities Act 2006 (Vic) due for Parliamentary review by 1 October 2011, it is timely to reflect on its impact on Victorian mental health law between 2008 and 2011. From controversial origins, the Charter has been both praised and criticised. Based on the International Covenant for Civil and Political Rights, it protects 20 basic rights. Critics argue that the Charter is politically driven and is largely impotent because it creates no new remedies. Proponents see it as an important and symbolic first step in the eventual enactment of a Constitutional Bill of Rights. Nevertheless, in its current form, it has been used in a number of cases to promote the human rights of patients receiving involuntary treatment under the Mental Health Act 1986 (Vic) and has therefore created important jurisprudential commentary on the interplay between mental health and human rights law in Victoria. The Charter has also provided a much needed impetus to comprehensively review Victoria's out-dated Mental Health Act 1986 (Vic), with the aim of making it compatible with the rights enunciated in the Charter. In November 2010, Victorians elected a new Coalition Government which is less supportive of the Charter. As this article will demonstrate, while the future of the Charter may be uncertain, its legacy to date is not.

Panacea or Pathetic Fallacy? the Swiss Ban on Minarets

On November 29, 2009, Swiss voters adopted a ballot initiative introducing a constitutional ban on the construction of minarets. The supporters of the initiative had argued that minarets were not a religious symbol, but a token of power and conquest: banning them would halt the creeping Islamisation of Switzerland. The ban’s opponents had warned that the ballot initiative violated national and international provisions on non-discrimination and the free exercise of religion. This article provides a thick description of the context in which the minaret vote took place. First, a legal analysis addresses the implications of the ban under national, regional and international normative frameworks. It is argued that the ban is irreconcilable with the constitutional bill of rights and several international human right provisions. However, in contrast to state ballots in the United States, there is no judicial review of initiatives in Switzerland; respect for the vox populi trumps any concern over conflicting international obligations. A historical analysis will help to explain how, through its excessive emphasis on popular sovereignty, the peculiar myth-system underlying modern-time Switzerland has facilitated the banning of minarets. Mosques and minarets, however, also cause controversies elsewhere. The fears that fueled the prohibition of minarets in Switzerland are widespread in Europe. I set out how hostility to Islam is partly rooted in historical traditions, partly due to disagreement over how to integrate newcomers into Western society, and I suggest an approach that carefully balances expectations of Muslim adaption with a less exclusive construction of European identity.

The Politics of Rights Protection in Western Democracies

This article examines two contentious rights debates – prisoner voting and gay marriage – in five Western democracies in order to assess the impact of different methods of rights protection. The five countries share similar political and legal histories, but two of them (the United States and Canada) have constitutional bills of rights, two (New Zealand and the United Kingdom) have legislative bills of rights, and one (Australia) has no national bill of rights. The article examines whether the existence of bills of rights has affected the outcome of debates on prisoner voting and gay marriage in the countries in question. The article concludes that, although, in general, the existence of a bill of rights has tended to correlate to the improved position of marginalised groups in these particular debates, that has not uniformly been the case. Moreover, even when bills of rights appear to have been relevant, their connection to the outcomes has not always been a linear one.