Suchergebnisse

Constitutions serve to delineate state powers and enshrine basic rights. Such matters are hardly uncontroversial, but perhaps even more controversial are the questions of who (should) uphold(s) the Constitution and how constitutional review is organised. These two questions are the subject of this book by Maartje de Visser, which offers a comprehensive, comparative analysis of how 11 representative European countries answer these questions, as well as a critical appraisal of the EU legal order in light of these national experiences. Where possible, the book endeavours to identify Europe's comm

At the same time she announced her withdrawal from public life in 2018, former US Supreme Court Justice Sandra Day O'Connor made a passionate plea for "all citizens to understand our Constitution and unique system of government, and participate actively in their communities."441 The timing coincided with the halfway mark of Donald Trump's term in presidency, a president who has very publicly declared his knowledge of the US Constitution, but whose understanding of it has regularly been called into question.442 At its foundation, the democratic legitimacy of a government arguably presupposes a working familiarity with the constitution qua social contract. How can a constitutional system claim to be based on popular sovereignty if its populace is ignorant of the source and scope of its government's powers and responsibilities? Only when citizens are aware of the rights they have can they vindicate perceived violations thereof. Familiarity with the scope of State powers and inter-institutional balance allows us individuals to perform our collective role as constitutional guardians and to do so responsibly, be it at the ballot box, by challenging unlawful State actions or by effectively using freedom of information laws.

There is a steadily growing interest among academics and policymakers alike in the role of constitutional law in fostering socio-economic development. This attention ties in, at a practical level, with the latest wave of law and development thinking, which conceives of rule-of-law institutions and democracy as existing in a symbiotic relationship with economic growth that together will propel countries to achieve higher levels of foreign investment and overall prosperity. The idea that public law, and the constitution more specifically, has potential in spurring development has for instance found expression across a range of the Sustainable Development Goals formulated under the auspices of the United Nations in 2016. By way of example, a concern with human rights protection – a classic function associated with constitutions – is evident in goals 3, 5 and 6, dedicated to, respectively, protection of individuals' health, ensuring gender equality and access to clean water, including for sanitary purposes. Goals 11 (safe, inclusive and liveable cities) and 16 (strong justice institutions) create expectations for institutional refinement or innovation on the part of States, which are similarly likely to implicate the constitution, for instance in improving the constitutional guarantees for judicial independence or through the grant of greater constitutional autonomy to cities.

This Article explores how constitutional judges can become agents for development and how they may wish to go about performing this role. Due to the high politico-economic stakes involved and the inevitability of trade-offs between competing interests, judicial review of developmental questions is liable to expose judges to negative fall-outs. At the same time, it is fairly common for Asian constitutions to expressly set out the parameters or objectives for economic development that the State is expected to realize, while simultaneously recognizing a suite of (socio-)economic rights, thereby providing textual ammunition to query the validity of a government's chosen implementation in court. Against this reality, the Article suggest a range of coping mechanisms that can mitigate risks to judicial legitimacy. In terms of institutional design, the decentralized model of review facilitates access to constitutional justice for affected individuals and communities in remote and rural areas, making this the preferred option in large developing countries. When deciding on the merits of developmental claims, courts should combine a strong presumption of constitutionality as far as the substance of the law is concerned with robust scrutiny of compliance with procedural guarantees. Additionally, courts should be better equipped with knowledge about the methodologies used by and insights from other social sciences to enable them to better evaluate extra-legal evidence submitted and anticipate the likely economic consequences of particular judicial findings, possibly with a view to tailoring their remedies accordingly.

AbstractThis article critically evaluates the interplay among courts with constitutional jurisdiction in Asia. This is done in the specific context of the Association of Asian Constitutional Courts and Equivalent Institutions (AACC). The article finds that the AACC has to date made only a nominal contribution to cultivating inter-court relations in furtherance of common goals and advances the claim that its members ought to rectify this state of affairs. On the one hand, transnational judicial alliances have instrumental value for participating courts in the discharge of their mandate. On the other hand, the AACC can be a useful conduit in nurturing an Asian perspective to the global judicial discourse on constitutional issues. In that vein, the article identifies the most suitable means to enable the AACC to optimally discharge its role to help advance respect for democracy, the rule of law, and human rights in the region.

This article critically evaluates the interplay among courts with constitutional jurisdiction in Asia. This is done in the specific context of the Association of Asian Constitutional Courts and Equivalent Institutions (AACC). The article finds that the AACC has to date made only a nominal contribution to cultivating inter-court relations in furtherance of common goals and advances the claim that its members ought to rectify this state of affairs. On the one hand, transnational judicial alliances have instrumental value for participating courts in the discharge of their mandate. On the other hand, the AACC can be a useful conduit in nurturing an Asian perspective to the global judicial discourse on constitutional issues. In that vein, the article identifies the most suitable means to enable the AACC to optimally discharge its role to help advance respect for democracy, the rule of law, and human rights in the region.

Two proposals are currently pending before the Dutch Parliament that purport to enhance its role in managing the relationship between domestic law and international agreements. Both were introduced as private-member bills by MP Taverne, a member of the liberal party (VVD) that is in coalition government with Labour (PvdA).

On January 26, 2014, an overwhelming majority of the National Constituent Assembly of Tunisia approved the country's new constitution. Drafted in the aftermath of the Tunisian revolution, the constitution received considerable international critical acclaim, regarding the manner in which the text had been drafted and adopted as well as its content, notably the entrenchment of a host of fundamental rights and liberties. Comparisons have inevitably been drawn with Egypt's new constitution and those of other Arab nations, with the Tunisian text hailed as one of the most progressive in the region, providing the foundations for a modern and credible democracy. In accomplishing this feat, the constitution's drafters were assisted by the European Commission for Democracy Through Law, better known as the Venice Commission - something that has, however, not been widely recognized. And the Tunisians are not alone. Since the Venice Commission's inception in 1990, its services to advise and assist on constitutional reform projects have been engaged with a growing frequency, by both European and non-European states. This development means that the Venice Commission is rapidly becoming an actor of significance in constitutional engineering and, further, that its involvement in processes of constitutional change across different jurisdictions may generate convergence in national constitutional designs and approaches. Somewhat surprisingly, however, the work of the Commission appears to have largely escaped academic notice. This neglect is all the more stark given that formal changes to constitutional arrangements are generally on the rise.