Constitutional Bill Research Articles

A Modification or an Upheaval of the Parliamentary Form of Government? An Analysis of the Meloni Government's Constitutional Bill

A Modification or an Upheaval of the Parliamentary Form of Government? An Analysis of the Meloni Government's Constitutional Bill

The right to a clean, healthy and sustainable environment: how to make it operational and effective

In the last year, the United Nations General Assembly has adopted, and New York State's Constitution Bill of Rights has been amended to include, a right to a healthy environment. This continues a trend of adoption of a constitutional or statutory right to a healthy environment. The right to a healthy environment is constitutionally recognised in 110 countries. The article explores what a right to a healthy environment entails and how it can be made operational and effective. It is presented in three parts: first, what the right to a healthy environment involves; second, the correlative duties to uphold and protect the right; and third, the systematic and structural change to law and governance needed to uphold the right and discharge the duties.

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.

Amendment or Abrogation? The Zimbabwe Constitutional Amendment Bill Number 2 and its Implications to Democracy, Judicial Independence and Separation of Powers

Amendment or Abrogation? The Zimbabwe Constitutional Amendment Bill Number 2 and its Implications to Democracy, Judicial Independence and Separation of Powers

THE HEALTHY INTEGRATION: MODERN ECONOMICS AND CHANAKYA’S ARTHASASHTRA

Economic Evolution is a gradual process. It takes ages to develop and convert any country into meaningful and sustainable growth engines. The Indian Economy is no exception to this evolutionary process. In spite of the successful completion of the Five-Year Plans from 1951 to the Twelfth Five-year plan ( 2012-2017) , Indian Economy has still been reeling with challenges like Population Growth, Crumbling Infrastructure, Terrorism, Corruption, Inadequate Taxation and Unemployment. However, there is a shift in the economy post Liberalization. Since 1991, the economy has been transformed from a closely held inward looking economy to a driving force of global growth. Recently there has been a concentrated effort to reform the cobweb of taxes across the Indian Economy which is reflected in the Constitutional Amendment Bill for GST and its implementation, Demonetization of High Denomination Bank Notes, enactment of Insolvency and Bankruptcy Code, enactment of Aadhaar Bill for disbursement of financial subsidies and benefits. There has been an overall complex- security development matrix in India. The sudden economic upheavals intrigue one to think if there exists any root or connection of the various economic strategies and their origin in India, or they are simply borrowed from the western economic theories. Arthashastra, by Chanakya, being a very famous Indian treatise on politics, economics, military strategy, state function and social organization of ancient India, an attempt is made to relate the contemporary economic scenario with those mentioned in the Arthashastra. The paper shall try to reflect the connectivity of various functional roots from Kautilya to kalyug.

Constitution (Amendment) Bill No. 10: A Fundamental Perspective

This article examines the administrative actions and constitutional changes which have brought about the proposed Constitution (Amendment) Bill No.10 of 2019. This lays the foundation for examining the legal and political implications of the possible passage of the Bill on the Constitutional presumption of equality before the law. I will argue that there is nothing as detrimental to this presumption as the enactment of laws and or the governmental exercise of power that has the effect of prescribing the religious practices of its citizens or in any way elevating one practice over another. This fundamental aspect has been missing from the discourse surrounding the creation and possible enactment of the Bill. This paper is therefore an attempt to fill that intellectual vacuum and bring public awareness of the need for an inclusive and open society as a fundamental democratic tenet.

Kodanikuõiguste peatükk Eesti 1919. aasta ajutises põhiseaduses [Abstract: Civil Rights Chapter in Estonia’s 1919 Preliminary Constitution

Kodanikuõiguste peatükk Eesti 1919. aasta ajutises põhiseaduses [Abstract: Civil Rights Chapter in Estonia’s 1919 Preliminary Constitution

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.

Women Representation in Parliament as Envisaged in the Constitution 2010. Is the Building Bridges Initiative Constitutional Bill the Answer to the Gender Parity Issue?

Patriarchal system of governance and leadership has been deeply entrenched in our politics. Thus there is no adequate representation of both genders in parliament. This discourse seeks to ascertain the Constitutional provision on two thirds gender rule and if it has been attained 10 years after promulgation of the Constitution. Moreover it seeks to interrogate the provisions in the Constitutional amendment bill to ascertain whether it will solve the gender Parity issue.

Constitution, Ethos and Change of Life in Common: Some Introductive Reflections on the Example of Icelandic Constitutional Project

AbstractThe Icelandic constitutional movement was created to address and develop a new constitutional form based upon transparency, responsibility and participation. Taking into consideration the events, which took place in 2008 this expectation appeared more than legitimate. Furthermore, the quality of the debate, which took place within the civil society and in the cooperation between civil society and Constitutional Council, are very meaningful elements supporting a genuine possibility of change. The aim of implementing a participation-based constitution may lead to the diversification of the Icelandic project with respect to the typology of the existing constitution. This may produce as a result the development of new checks and balances. For this reason the development of public local services may be an opportunity to develop a social balance with respect of the constitution in force, as well as a living constitution starting from below. In this way the values purported by civil society may lead to higher levels of political freedom and finally to the approval of a new constitution. To keep the Icelandic process communicatively open in a transnational perspective may thus permit other persons to contribute to the development of Icelandic democracy. It may furthermore offer the Icelandic example as a useful tool that could be used by many world societies aiming to implement transparency, responsibility and participation in their public life. Indeed, even though the Constitutional Bill of 2011 will not finally be validly approved as the Icelandic constitution, the problems that it posed, and the possibilities that we see are stemming from them, have in our opinion a general importance for constitutional reflections.

혼인과 가족생활에 관한 소고 - 헌법재판소 결정과 헌법 개정 논의를 중심으로 -

혼인과 가족생활에 관한 소고 - 헌법재판소 결정과 헌법 개정 논의를 중심으로 -

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.

Performance or performativity? Australia’s membership of the United Nations Human Rights Council

ABSTRACTScholarship to date has analysed the politics surrounding the United Nations Human Rights Council (the Council) and examined the Universal Periodic Review. Less has been uncovered about what states are doing as Council members. Is their human rights ‘performance’, namely their behaviour, enhanced by Council membership? Or is Council membership more about ‘performativity’ – that is, the use of language as a form of action with the intention of effecting changes in the performance of other actors? This paper introduces these questions in the context of Australia’s 2018–2020 Council membership term. The potential impacts of membership for Australia are salient given its lack of a constitutional or statutory Bill of Rights and the lack of any regional human rights mechanism in the Asia-Pacific. Australia’s bid for a seat on the Council had five pillars: gender equality, good governance, freedom of expression, rights of Indigenous peoples, and strong national human rights institutions and capacity building. The paper assesses Australia’s performance and performativity in relation to a selection of its voluntary pledges as a Council member. We reflect on the challenges inherent in holding states to their human rights obligations when international institutions struggle to require accountability, transparency and verifiability of commitments.

“Dished like a dinner” by the Victorians? The 1899 Seat of Government Compact and its Repercussions in the early Australian Commonwealth

At a “secret” conference in January‐February 1899, the premiers of the Australian colonies agreed on an amendment to the draft Commonwealth Constitution Bill to grant New South Wales the permanent seat of government in the Australian federation. One of the conditions placed on that concession, however, was that Melbourne would initially host the Commonwealth parliament. Spanning the decade from that agreement to the Commonwealth parliament's selection in 1908 of Canberra as the site for the permanent federal capital, this paper shows that the compact on the seat of government provoked powerful resentments in New South Wales and especially Sydney because of the political and material advantages it was seen to have conferred on Melbourne. While the paper argues that resentment was actuated by residual anti‐federal sentiment and regional chauvinism, it also suggests that hosting the legislature did promote Victoria's pre‐eminence in the early Commonwealth and had enduring effects on the nation. In doing so, it speaks to the shaping influence of place and distance in Australian history.

Expansion plan of Local goverment’s sovereignty of tax — Focused on the constitutional amendment bill of the government —

Expansion plan of Local goverment’s sovereignty of tax — Focused on the constitutional amendment bill of the government —

Proces konstytucyjny na Ukrainie w latach 2014-2016

The article presents the constitutional process that took place in Ukraine in 2014–2016. The regulations of the constitutional acts passed by the Supreme Council of Ukraine (Verkhovna Rada) have been outlined as well as bills of acts assuming the introduction of further changes to the Constitution of Ukraine. Norms of the act “On reinstating the effectiveness of some provisions of the Constitution of Ukraine” of February 21, 2014, and of the act “On introducing changes to the Constitution of Ukraine (in the scope of judiciary)” of June 2, 2016, have been analyzed. Moreover, the author focused on three constitutional bills registered in the parliament and assuming amending the Constitution of Ukraine in the field of powers of the state organs and of the local governments, immunity of Ukrainian MPs and judges as well as in the field of decentralization of power.

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