Draft Constitution Research Articles

The sounds of silence: The Supreme Constitutional Court of Egypt, constitutional crisis, and constitutional silence

The Egyptian Supreme Constitutional Court (SCC) issued a series of decisive decisions during the transition period following Hosni Mubarak’s resignation and the military coup of July 3, 2013. During the transition the SCC treated various “constitutional declarations” of the military as binding commands of a “constitutional lawgiver” which pre-empted the commands of all inferior lawgivers, including the military, when acting as a legislator. This hierarchical conception of law as a series of commands issuing from a hierarchy of superior and inferior lawgivers means that legality is determined solely by reference to a particular law’s place in this hierarchy, without regard to the content of the command. In this conception of law, there is no place for constitutional silence inasmuch as the legislature and courts are seen simply as carrying out instructions of the constitutional lawgiver. The denial of constitutional silence in turns leads to judicial rhetoric that overdetermines the outcome of particular cases, and fails to tie outcomes of cases to any shared conception of legality between the sovereign and the citizens. This approach to deciding cases negates the possibility that “silence” may be filled by other lawgivers through a deliberative political process. By refusing to accept a place for constitutional silence, the SCC’s jurisprudence enshrines a kind of “constitutional despotism” which exacerbates constitutional conflict, rather than mitigating it, by creating incentives for constitutional drafters to write ever more specific constitutional rules to enshrine particular outcomes rather than creating a framework for shared governance.

The General Data Protection Regulation and its Violation of EU Treaties

While the EU General Data Protection Regulation, which entered force on 25 May, is generally good and necessary in its vigorous protection of the fundamental rights of self‑determination and identity of European people, the article identifies a core issue that has gone unnoticed: the GDPR violates EU treaties. It is, at base, a ‘European law’, yet European laws are banned under the TEU and TFEU. The article examines the background for this conflict. The ambitious plan for ratification of 2003’s draft treaty establishing a constitution for Europe fell at the first hurdle in 2005. The draft Constitution envisaged a legislative innovation: the European law and European framework law, directly applicable in the Member States and superior to them. These legal instruments, envisaged as replacing EU regulations, could readily be cited as a major federalist pillar of the draft. Yet there would be no European laws – they were rejected with the draft constitution in the 2005 referenda, and the current treaties do not foresee any law-like European legislation. The author outlines the GDPR’s nature as a European law thus: the regulation 1) potentially concerns all residents of Europe, albeit by adding to the rights of individuals and protecting their freedoms; 2) addresses virtually all legal entities and undertakings acting, physically or through a network, in the European judicial area; 3) addresses the Member States and the EU itself; 4) and has cross-border applicability and covers the whole EU. Furthermore, its reach extends to service providers outside the EU if their service targets EU data subjects. There are substantial impacts on subjects on whom obligations are substantial. Hence, the author concludes that the GDPR’s scope, depth, and impacts exceed all the limits that the EU treaties permit for regulations. Furthermore, the treaties do not even know the term ‘general regulation’. Since the GDPR possesses the characteristics of a ‘European law’ – and even is ‘seamlessly’ positioned in a place reserved by the draft EU Constitution for the ‘European law on data protection’ – while such laws have been rejected, a key issue is highlighted: how deep an EU-level political integration and relinquishment of the individual European nations’ sovereignty do the Member States actually want? For instance, most analyses of the causes of Brexit cite loss of sovereignty of the UK as one of the main factors in the decision. The author concludes that, since the GDPR is with us to stay, amendment of the EU treaties can no longer be avoided. Noble objectives cannot justify infringements of the present ‘European Constitution’ and the constitutions of the Member States.

Constitutionalizing abortion in Brazil

Brazil has been constitutionalizing disputes on women’s right to terminate unwanted pregnancy. This paper explains how this process started with the drafting of the new constitution in 1986-87, and evolved in different arenas, the legislative, the executive and in the public sphere. Most recently, it moved to the Supreme Court, primarily in its anencephalic pregnancy decision, brought as a Claim of Non Compliance with Fundamental Precept (ADPF 54). Decided in 2012, it was the first time since the adoption of the Penal Code in 1940 that the Brazilian Supreme Court moved the criminal boundaries to enable women to decide whether to terminate anencephalic pregnancies. The purpose of this article is to examine how the ADPF 54 decision contributed to the constitutionalization of abortion. First, it established the right to life as a non-absolute right, granting constitutional legitimacy to the system of legal exceptions. Second, it signaled the balancing of constitutional rights as the reasoning paradigm for this issue. Third, in framing the controversy as a matter of balancing constitutionally protected rights, the positions established in the Court ultimately recognized crucial understandings of women’s rights.

A representação politica no constitucionalismo monárquico conservador: O projeto eleitoral de 1823-1824

Recovering political representation in the Cortes might have been the greatest achievement of the liberal revolution of August 24, 1820, in Oporto. But the new times required deep reforms in the traditional parliamentary representation and a new electoral system. After the democratic experience of the elections of 1820 and 1822, conservative monarchic constitutionalism will prepare a new constitutional draft and, simultaneously, a new electoral draft law. In this article we will analyze this conservative electoral law of 1823/24, promoted by John VI, through a “constituent junta” appointed ad hoc. Although it was abandoned, even before being adopted, this electoral project will have an influence on the Chartist constitutionalism, which followed in 1826. It is therefore a relevant element in the history of Portuguese electoral constitutionalism.Fecha de envío / Submission date: 23/11/2018Fecha de aceptación / Acceptance date: 12/01/2019

Textual Anxiety: Reading (and Misreading) the Draft Constitution in China, 1954

This article uses comments, questions, and conversations about the PRC's draft constitution of 1954 to assess state legitimacy and how people felt more generally about the Communist regime. Taking advantage of untapped archival sources in Hong Kong and the mainland—including classified intraparty reports and transcripts from meetings in factories, police stations, universities, and villages—this article challenges the conventional view that the constitution bolstered support for the Chinese Communist Party (CCP). Instead, the document generated a great deal of anxiety among ordinary citizens, as well as among CCP officials and the regime's favored classes. This “text-based” cause of emotional turmoil was a supplement to the classic forms of political terror that dominate the literature on Communist dictatorships. Despite widespread confusion, people's identification of problematic sections of the constitution turned out to be remarkably prescient in light of political disasters in the 1950s and 1960s and ongoing constitutional controversies in the era after Mao Zedong.

‘The Torment of Our Powerlessness’: Addressing Indigenous Constitutional Vulnerability through the Uluru Statement’s Call for a First Nations Voice in Their Affairs

This article analyses and explores the Uluru Statement from the Heart’s call for a constitutionally guaranteed First Nations voice in their affairs, as constitutional reform intended to address the ongoing problem of Indigenous constitutional vulnerability and powerlessness. It contends that a First Nations voice is a suitable solution: it coheres and aligns with Australian constitutional culture and design which recognises, represents and gives voice to the preexisting political communities, or constitutional constituencies. The article evaluates, compares and attempts to refine drafting options to give effect to a First Nations constitutional voice, by reference to principles of constitutional suitability, responsiveness to concerns about parliamentary supremacy and legal uncertainty, and assessment of political viability. The article concludes that the proposal for a constitutionally enshrined First Nations voice strikes the right conceptual balance between pragmatism and ambition, for viable yet worthwhile constitutional change. With appropriate constitutional drafting and legislative design, such a proposal offers a ‘modest yet profound’ way of meaningfully addressing Indigenous constitutional vulnerability, by empowering the First Nations with a voice in their affairs.

The Activities of the UN Temporary Commission on Korea and the Perception of the U.S. Government and Koreans on the 5·10 General Election of 1948

1947년 유엔한국임시위원단이 구성되었으나 캐나다는 유엔의 권위와 미국 중심의 운영에 문제를 제기하며 위원단에서 탈퇴를 통고했다. 캐나다는 미국정부의 설득과 압박에 의해 재합류했지만, 임시위원단을 둘러싼 대립은 이미 시작되었다. 유엔한국임시위원단의 입북 요청을 소련이 거부함에 따라 이남의 정치인들은 총선거 필요성을 강하게 주장했다. 1948년 2월부터 극좌진영의 본격적인 파업과 테러가 시작 됐고, 미군정은 이북정부의 전국적 정당성 확보를 위해 2.7파업과 이북의 열병식, 헌법초안 발표가 소련의 일정한 설계에 의해서 진행되고 있다고 보았다. 유엔한국임시위원단 내에 중국, 프랑스, 필리핀, 엘살바도르와 호주, 캐나다, 인도, 시리아가 대립했고, 미군정은 남북협상을 지지하는 호주와 캐나다 대표가 급진적이고 공산주의자들을 대변하고 있다고 판단했다. 결국 유엔소총회에서 이남 총선이 확정되었고, 1948년 5월 10일 “자유로운 분위기에서” 선거가 치러졌다. 하지만 선거결과의 범위 가 전국적 지위로 해석되는 것에 대한 논쟁이 나타났고, 호주와 캐나다는 ‘전국적’이나 ‘대표자’라고 표현하는 것에 반대했다. 하지만 미국 은 1947년 11월 14일 결의, 유엔소총회의 결의 그리고 전한국의 3분의 2가 거주하는 지역이라는 판단에 의해 신생 정부는 전국적 정부로 인정되어야 할 것이라는 입장을 견지했다. 이러한 미국의 신생 한국정부의 ‘중앙정부’로 대한 인식은 1947년 12월에 김구와 김규식이 나타낸 인식과 유사했다.While the United Nations Temporary Commission on Korea (UNTCOK) was formed in 1947, member state Canada withdrew from the commission, questioning the United Nations authority and the US-centered decision-making process. Canada eventually returned by consistent persuasion and pressure from the U.S. Government. Nonetheless, the tension within the UN Temporary Commission was manifest. When the UN Temporary Commission on Korea requested to enter north of the 38th parallel to negotiate, the Soviet Union refused the commission entrance. Many Koreans strongly argued the necessity of a separate general election in the south. On February 7th, 1948, leftist parties began a series of full-scale strikes and terrorist attacks against the establishment of a separate government. The U.S. Military Government in Korea identified the strikes to be planned as a part of the North’s many efforts, including its draft constitution and military parade, to justify the legitimacy of its government. The consensus of the United Nations Temporary Commission on Korea was polarized into two groups-one group composed of China, France, the Philippines and El Salvador; the other comprised of Australia, Canada, India, and Syria. Furthermore, the U.S. Military Government considered Australia and Canada’s support for North-South negotiation to be leftist and even communist. Eventually, the UN interim committee decided to hold a general election in the south and as such, on May 10th, 1948, the election was held in an “free atmosphere.” Yet debate ensued on how to interpret the ‘national’ jurisdiction of the election results as Australia and Canada opposed the expressions ‘national’ and ‘representative.’ However, the U.S. military government maintained that the newly established government should be recognized as a ‘national’ government based on the UN General Assembly’s resolution on November 14, 1947, as well as the conclusion of two-thirds of Korea’s population. The U.S. perception of the newly formed government as a central government was similar to that of Kim Koo and Kim Kyu-sik in December 1947.

Blog wars in Fiji: Soft power in a South Pacific dictatorship

Abstract Authoritarian governments have increasingly hired US-based public relations companies to improve their image in the twenty-first century. These services were pioneered by Hill+Knowlton and Burson-Marsteller in the 1950s and the 1960s, but recently Washington-based Qorvis Communications has emerged as a popular choice. From its initial client base at the millennium of mostly oil-rich Middle Eastern dictatorships, Qorvis has branched out, including to the South Pacific. It was hired in 2011 by the military dictatorship in Fiji in advance of a constitutional review and elections there in 2014. Following a 2006 coup by military commander Voreqe ‘Frank’ Bainimarama, the regime suppressed domestic media with the threat of fines and prison terms contained in a repressive 2010 Media Decree. Blogs thus emerged as an underground press, and under Qorvis a pair of pro-regime blogs began to attack regime critics in an attempt to silence them. This case study examines their discourse involving three parties. Bruce Hill of the Radio Australia programme Pacific Beat came under regular criticism for his reporting on the regime by Fijiborn Australian blogger Graham Davis and retired New Zealand professor Crosbie Walsh. Constitutional Commission chair Yash Ghai was discredited in a smear campaign on these blogs and in the pro-regime Fiji Sun newspaper after delivering a draft constitution that would have restored human rights and reduced the role of the military. The author, who was then head of journalism at the University of the South Pacific, was forced to resign at the end of 2012 following similar attacks after he criticized the regime.

La organización territorial de España. Una reflexión sobre el estado de la cuestión y claves para la reforma constitucional

La organización territorial de España. Una reflexión sobre el estado de la cuestión y claves para la reforma constitucional

Polska Konstytucja z 1997 roku jako element europejskiego dziedzictwa konstytucyjnego

Przedmiotem niniejszego artykułu jest przedstawienie poszukiwań aksjologicznych w okresie prac na konstytucją polską w początkach transformacji. Jedną z zasadniczych dyskusji na początkowym etapie prac nad konstytucją była dyskusja przybierająca niejednokrotnie formę sporu o wartości, a jednym z jej elementów były problemy dotyczące zależności ius i lex. W tym kontekście poszukiwano i odwoływano się do europejskiego dziedzictwa prawnego, do takich pojęć, jak tożsamość europejska, wspólne europejskie dziedzictwo prawne. Głównym zatem wyzwaniem dla wszystkich państw postsocjalistycznych stała się potrzeba „odkodowania”, przybliżania pojęcia „wspólne dziedzictwo prawne”, co stało się swoistym mitem założycielskim w nowych demokracjach Europy Środkowej. W tym kontekście niezwykle ważną rolę odgrywała Komisja Wenecka (utworzona w 1990 r.), która pomagała państwom odkrywać to, co wyrastając ze wspólnej europejskiej tradycji prawnej, stawało się europejskim standardem, a więc wzorcem dla podejmowanych konkretnych rozwiązań prawnych. W sferze zatem kategorii ogólnej tzw. standard europejski postrzegany był jako wartość centralna, a odwoływanie się do niego było ważnym weryfikatorem w procesie dokonywania zmian w wewnętrznym systemie prawnym, a zwłaszcza w procesie zmian konstytucji, zwłaszcza w takich kwestiach, jak zasada państwa prawnego, podział władz, niezależność sądownictwa czy sądowa kontrola konstytucyjności prawa. Pomimo sporów dotyczących konkretnych regulacji ustrojowych istniała zgoda co do tego, że zasady odwołujące się do „aksjologii” poprzedniego systemy nie mogły pretendować do bycia elementem europejskiego dziedzictwa prawnego i tym samym nie mogły stanowić podstawy dla tworzenia nowej konstytucji polskiej.

Constitutional Innovation and Animal Protection in Egypt

This article examines constitutional innovation through the case study of the emergence of animal protection in Egypt's 2014 Constitution. Egypt's provision, which is a state obligation to provide al-rifq bi-l-hayawan (kindness to animals), was adopted in Article 45 as part of the country's second constitution following the 2011 revolution that ousted President Hosni Mubarak. Three aspects proved crucial to the adoption of the provision: a decision by animal protection activists to influence the constitutional process; the ability of citizens to convey their ideas to the constitutional drafters, albeit in a limited way; and, most importantly, the use of frame bridging. The activists and then the constitutional drafters presented the new cause of constitutional animal protection in terms of well-established areas of social, and constitutional, concern in the country, including Islamic law, women's rights, human rights, and the protection of the environment.

Dr Ambedkar: Architect of the Indian Constitution

Due to his seminal role in the framing of the Indian constitution; Dr. Bhimrao Ambedkar is popularly known allover India as the Chief Architects of the Indian Constitution.His efforts to eradicate social evils were remarkable and that is why he is called the “messiah” of dalits and downtrodden in India. Dr. Ambedkar was appointed as the Chairman of the Drafting Committee. The text prepared by Ambedkar provided constitutional guarantees and protections for a wide range of civil liberties for individual citizens, including freedom of religion, the abolition of untouchability and outlawing all forms of discrimination. Ambedkar argued for extensive economic and social rights for women, and also won the Assembly’s support for introducing a system of reservations of jobs for the member of the SC and ST. Ambedkar has kept the clauses of the Constitution flexible so that amendments could be made as and when situation demanded. Dr. Ambedkar provided an inspiring preamble ensuring justice, social, economic and political, liberty, equality and fraternity. The creation of an egalitarian social order still remains an unfulfilled wishful thinking. The most important thing for which Dr. Bhimrao Ambedkar is popularly known allover India is that he was the Chief Architects of the Indian Constitution.He was not only a learned scholar and an eminent jurist but also a revolutionary against social evils like untouchability and caste restrictions. His efforts to eradicate social evils were remarkable and that is why he is called the “messiah” of dalits and downtrodden in India. Throughout his life, he fought against social discrimination and for the rights of the dalits and other socially backward classes.He was not only a great national leader but also a distinguish scholar of international repute. He not only led various social movements for the upliftment of the depressed sections of the Indian Society but also contributed to the understanding of the Socio-Economic and Political problems of India through his scholarly works on caste, religion, culture, constitutional law and economic development. As a matter of fact he was an economist and his various scholarly works and speeches indicates his deep understanding of the problems faced by Indian Society. He was appointed as the nation’s first Law Minister and was posthumously awarded the Bharat Ratna in 1990. [i] On 29 August1947Dr.Ambedkar was appointed as the Chairman of the Drafting Committee that was constituted by Constituent Assembly to draft a constitution for the independent India. The draft constitution was the result of the collective efforts of a galaxy of great leaders and legal scholars in the Constituent Assembly such as Jawahar Lal Nehru’ Rajendra Prasad, B. R. Ambedkar, Sardar Patel, B. N. Rao, Alladi Krishnaswamy Ayyar etc.The purpose of this paper is to examine the contribution of Dr. Ambedkar only to the Indian Constitution. [i] Dr. BR. Ambedkar Biography-Life and Profile,http://www.culturalindia.net, accessed on 5 February, 2015.

Проект Конституції УНР 1917 р.: передумови появи, зміст, сучасні оцінки

The Draft Constitution of the Ukrainian People’s Republic (UNR), was prepared by the Commission of the Central Council of Ukraine in December 1917, had almost not been reflected in contemporary Ukrainian historiography. The subject of the research is the results of the work of the Legal Document Preparation Commission, which gave a legitimacy to the restoration of the Ukrainian statehood and were embodied in the Draft Constitution of the UNR. The methodology of the article is determined by the requirements of historical and legal research. The method of comparative legal analysis of legislative acts and normative documents allows comparing the Draft Constitution of the UNR with the Statute on the State System, Rights and Freedoms of the UNR, worked out on the basis of the above mentioned Draft. The analysis of the constitutional draft was carried out taking into account the specific historical conditions and circumstances of its emergence, according to the historical method of the interpretation of law. The method of qualitative analysis of legal documents was used to scrutinize the norms enshrined in the Draft Constitution of the UNR. The usage of various research methods allows following the evolution of the constitutional entrenchment of the restoration of Ukrainian statehood in the Universals of the Central Council of Ukraine, in laws and constitutional documents, as well as presenting Mychailo grushevsky’s vision of components of the future constitution, his confidence in the democratic character of the Ukrainian state, giving an opportunity to analyze the draft Constitution of the UNR, published in December 1917, and comparing it with the Statute on the State System, Rights and Freedoms of the UNR, which was approved by the Small Council in April 1918. According to the constitutional draft, the UNR, consisting of 10 provinces, should become an autonomous part of the Russian Federal Republic. The Draft Constitution included also the principles of popular sovereignty, democratic system, the division of powers, the creation of check-and-balance system in the functioning of the authorities, judicial guarantees of the sovereignty of the Ukrainian republic, decentralization and development of self-government, protection of the citizen rights and the rights of national minorities.

From Manshiya to Alexandria: Re-Examning the Process of Constitutionlizing and Normalizing the Emergency Status in Egypt

Recent political and legal developments within the Arab region have resurrected previously dormant historical debates and endowed them with a new life and vitality. The theory of exceptionality has been prominent within these debates, being repeatedly reasserted in different constitutional drafts, and even celebrated, as a means through which political authority maintain and secure ‘the public order’. Over the course of the 20th century, the debates about the state of emergency being a ‘profoundly elusive and ambivalent concept’ have been analyzed in as an act of political governance. Egypt long lasting rule relying on an emergency context has provided a worthy manifestation of how emergency rule have been installed in political and legal settings; and become presented as an only way to govern; in which it had been incorporated in different constitutions and manifested into a political exercise. We dedicate this article to witness these overlapping challenges to analyze why post-revolutionary regimes have failed to deliver a meaningful transformative constitutionalism that is based upon the principle of the rule of Law and continued to rely on the emergency status as module of governance. In this matter, we try to feature that this failure is related to three arguments; the first is that the exceptional ruling has been institutionalized in most of the political and legal settings since Nasserism; in which the revolution wasn’t able to change, nor did new constitutions introduce substantive changes to these dynamics. Second, that postrevolution regime used the exceptional status as way to legitimize their ruling through the political rhetoric of securitization, and thirdly the state of exception became normalized in the everyday political and legal settings. To illustrate this, we engage first in the colonial roots of the emergency rule dated back to the British era and Nasserism. Historically, Egypt has been thriving upon the emergency status dating back to the post-colonial era. The Law no. 16 of 1958 was introduced in the Gamal Abdel-Nasser era as way to constitute and construct a military rule that envisages the colonial exceptionality rule. This Law has been considered a prominent document to base and construct continuous regimes and affirm them with exceptional power to control both the public and private sphere of citizens. We dedicated section II to illustrate the continuous institutionalization process of the emergency status in the legal and political realm in Egypt in the era of Sadat and Mubarak. The reason is an attempt to feature a certain pattern that have been repeatedly re-asserted in different rulings and eventually shared similar characteristics; a continuous declaration of the emergency status without reasonable nor real grounds; establishing a parallel judicial military system, a production of legislative acts that maintain the settings of the emergency status, a reliance on a political rhetoric that fears either Islamists or Israel, and a continuous repression of other political actors. The last section, we track the practices that occurred after the revolution. We argue that post-revolutionary changing regimes engaged in a process to ‘re-constitutionalize’ and normalize the exceptionality rule either through constitutional and legal texts, or through political practices, leading in this manner to oppress the demands of the revolutionists.

MERIT VS. RESERVATION: PROS AND CONS

Reservation is currently the most contentious issue in the country. The vast majority of people agree with it, Despite the fact that the concept of reservations was mentioned in Dr B.R. Ambedkar's original draft of the Indian constitution, they are now unaddressed. In a variety of ways, he attempted to empower and uplift the poorer parts of society. He also set a ten-year deadline, although political intervention in the constitutional amendment has continued to this day. The reserve is largely responsible for the differences in our society today. As a result, competition for each position grew, increasing the number of unemployed persons. Politicians that support reservation laws do so in order to increase their popularity and gain more votes. They achieve this by leveraging their people's caste identities. The legislators benefit from the booking, while the average public does not. They are unaware of our difficulties because they are only concerned with retaining their power. Reservations must be accepted by the general public, but they are not a universal platform. The government of this country should prioritize ensuring that all citizens have equal access to opportunities. Reservations based on caste, religion, or minority status, as well as other forms of bias, should be removed from the system.

Gesetzgebungsbefugnisse der Exekutive im Verfassungsstaat. Notverordnungsrechte im Kaisertum Österreich von 1848 bis 1867

The following contribution deals with procedures which allow executive powers instead of the parliament to issue provisional laws in cases of a national emergency. The first such provisions were made during Austria’s first constitutional period (1848–1851). In the following neoabsolutistic period (1851–1860) – when there was no parliament – it was not necessary to provide for such instruments. With the first step back towards a parliamentary political system in 1861, executive powers were for the second time authorised to issue emergency decrees. Following the restauration of a constitutional political system in the shape of the Cisleithanian December Constitution in 1867, restrictions relating to formal prerequisites and substantial barriers in dealing with emergency decrees were created, following the models provided by the Austrian Constitution of 1849 as well as the Draft Constitution of the Imperial Diet at Kremsier in 1848.

When Does Public Participation Make a Difference? Evidence From Iceland's Crowdsourced Constitution

Iceland's 2011 draft constitution is reputed to be the world's first crowdsourced constitution. Careful study of this case can therefore inform our understanding of how public participation in lawmaking may be supported by new technology. This article seeks to measure and explain the impact that comments and proposals from the Icelandic public had on the development of the draft constitution. The analysis shows that almost 10 percent of the proposals submitted by the public generated a change in the draft text, with public participation having a particular impact in the area of rights. This remarkably high impact is likely explained by the unique, apolitical context in which the constitution was drafted. Although on the face of it an example of successful public crowdsourcing, the new constitution drafted through this process ultimately failed to be ratified by the parliament. Iceland's experiment with participatory constitution drafting thus demonstrates both the possibility of impactful online public engagement, and the potential pitfalls of such a politically disconnected process.

Designing Constitutions in Britain’s Mid-Nineteenth Century Empire – Indigenous Territorial Government in New Zealand and Retrieving Constitutional Histories

ABSTRACTFocusing on the striking instance of colonial New Zealand, this article examines constitutional design for colonies of European settlement, arguing about such design in two key respects. First, this article examines the proposals of so-called ‘colonial reformers’ endeavouring to influence constitutional framing, including how their notions on ‘local self-government’ or ‘municipal government’ were reflected or not, while also illuminating their concepts of how to accommodate indigenous territorial governance and indirect administration of indigenous territories in the late 1840s and early 1850s. Second, recovering traces of these disputes and ways of thought from the archives, and how they were operationalised in grounded constitutional drafting or design, rather than resorting to analysing abstract canonical, high-level texts, such as those of Henry Maine and John Stuart Mill, is ultimately more rewarding for evaluating constitutional emergence and design. It reveals tensions within ‘colonial liberalism’, as characterised by Edward Gibbon Wakefield. How putative settler interests informed these metropolitan-Westminster constitutional enactments or not, assessed through cabinet-level discussions, in Colonial Office deliberations on settler agitation, illustrates missteps and failures as well as the particular ways in which diverse features of imperial constitutional design emerged. Examining these points is timely given Linda Colley’s focus on a ‘contagion of constitutions’ in the late eighteenth and early to mid-nineteenth centuries.

Constitutional Design Two Ways: Constitutional Drafters as Judges

Constitutional scholarship often assumes a strict separation between processes of constitutional drafting and interpretation. Yet on constitutional courts around the world, the judges charged with interpreting a constitution’s text are often the same people who helped write or ratify that text only a few years before. This Article examines the phenomenon of constitutional drafters as judges and the insights to be gained from a study of such judges about the nature of democratic constitution-making — i.e., the degree to which constitution making inevitably takes place over an extended time period, involves processes of constitutional interpretation as well as drafting, and combines forms of legal and political judgment. It further suggests that insights of this kind may invite closer attention to the virtues of certain kinds of judges as agents of democratic constitutional change — i.e., judges who resemble a majority of democratic constitutional drafters by possessing both legal and political relationships, skills, and commitments, or who resemble many actual drafter-judges in that they are lawyer-politicians.

Ecuador’s 2017 Termination of Treaties: How Not to Exit the International Investment Regime

On 16 May 2017, Ecuador terminated all of the 16 Ecuadorian Bilateral Investment Treaties (BITs) still remaining in force. This decision was the end of a longer process that aimed to disengage the South American state from the international investment regime, a process begun nearly a decade earlier, with the drafting of a new constitution in 2008, one that contained an article prohibiting the state from giving consent to investment arbitration. The article argues that it was not the 2017 decision itself, but the different erratic legal steps, including the poor drafting of the constitutional provision, the confusing reasons given for a series of constitutional judgements, the timing involved in re-evaluating the constitutional decision so many years later, and in general the lack of a pre-established course of action during this process that led to Ecuador’s poor performance in terms of its FDI policy. In this light, the article further claims that an analysis of the Ecuadorian experience can contribute to a better understanding of how the constitutional sphere can best interact with international investment law, potentially by applying specific principles of investment rather than prohibitions on constitutional texts.