Vienna Journal on International Constitutional Law
ISSN 1995-5855 (Online)
The Enigma of the Hong Kong Injunction Cases – A Perspective on Political Question Doctrine, Separation of Powers, Rule of Law and Universal Suffrage
Abstract: On 31 August 2014, disputes over Beijing’s plans to retain control over the political reform relating to the Chief Executive elections in Hong Kong led to the eruption of a mass civil disobedience campaign and the occupation of public places. In response to the aforesaid movement, pro-government groups approached the courts of Hong Kong for an injunction as a strategy to clear those public places (the Injunction Cases) and thereby put an end to the civil disobedience campaign. The courts heard the Injunction Cases and ruled in favour of the plaintiffs by upholding findings of public nuisance. The primary objective of this article is to demystify the enigma of the Injunction Cases by reviewing them from the perspective of justiciability, acts of state, rule of law and separation of powers. This article also seeks to map the dialectical disconnect between accepted practices in Hong Kong on matters of justiciability and how the courts of Hong Kong dealt with it in the Injunction Cases. It is argued that the courts should have first determined whether the Injunction Cases were justiciable from common law perspective and constitutional doctrines before proceeding to hear such cases. For the purpose of facilitating a more complete discussion, notable cases in relation to the doctrine of justiciability will be discussed. Other issues within the framework of the rule of law, separation of powers and right to democracy will also be reflected upon.
Due Process Prior to Administrative Decisions and Effective Judicial Protection in Brazil: A New Perspective?
Abstract: In view of the increasing number of repetitive judicial actions in public law issues, this text proposes reconsidering the guarantees of administrative due process of law – enshrined in the Brazilian Constitution of 1988 –, among them the effective independence of the administrative authorities, based on a comparative perspective between the Anglo-Saxon and Continental-European models concerning judicial protection of individual rights. The author is visibly concerned with searching for a better understanding of topics that are considered to be established dogmas in Brazilian law, such as the contradiction between the self-enforceability of administrative decisions and the need for the public authorities to initiate judicial actions against individuals; the distinction between the administrative procedure and the (judicial and non-judicial) administrative proceeding and their implications for individuals in court proceedings; impartiality without independence of the authorities in conducting a non-judicial administrative proceeding; scope of judicial review of the utilization of the margin of appreciation of factual/scientific matters in decisions made by public administrative authorities.
Abstract: This paper argues that what has happened with and led to the 4th amendment to the Fundamental Law of Hungary adopted in 2013 (and to the 5th amendment of the same year) is a reasonable and simple consequence of the technique of the political power that has been exercised in Hungary since 2010 in the course of amending the former Constitution and of the preparation and adoption of the new one. In order to understand why the change is so drastic and radical, it is inevitable to assess constitutional politics between 1989 and 2010 from a perspective of the constitution-changing and -making powers and the methods and techniques employed. The outcomes of constitutional politics between 1989 and 2010 gave rise to political criticism and the developments related to the Constitution (Act XX of 1949) were also surrounded by evident dissatisfaction. Yet, what has been happening since 2010 is far more problematic in the light of constitutionalism and democratic values.
Abstract: This article sheds light on the relationship between politicians and the voting public to establish the grounds on which the electorate build their legitimate expectations that both members of the legislative authorities and government ministers should act in the public interest in order to fulfill their fiduciary duty. Both members of parliaments and ministers in government are expected to promote the interests of their constituents in parliaments and to serve the political interests of their parties when joining the government. They should comply with the principles of ‘Public Duty’ and ‘Duty as a Representative’, that is, they should act on behalf of their electorate and also in accordance with the public trust placed in them. This underlying duty could be elevated to a ‘fiduciary duty’ on elected members and ministers to act in the interests of their constituents, the beneficiaries, as an underscore of all models of representation, and as an emphasis of the ethical decision-making, which includes impartiality, accountability and integrity.
The Indiscriminate Ban on the Collection and Use of Data from Genetic Analyses Violates the Principle of Equality
The Constitutional Court partly repealed § 67 of the Act on Genetic Engineering (hereinafter: GTG) and § 11a para 1 Insurance Contract Act (hereinafter: VersVG) which codified a total ban on the use of genetic analyses by private insurers. Thus the Constitutional Court upheld the individual application of several insurance companies. Nevertheless, the prohibition of the use of such analyses is still valid for the most part.
Unconditional Right to Object to the Inclusion of Data in a Publicly Available Data Application Violates Art 10 ECHR
The internet portal www.docfinder.at contains information about doctors practising in Austria. In addition, logged-in users can evaluate individual doctors and write about their experiences. § 28 para 2 Data Protection Act (hereinafter: DSG 2000) – which was applied in this case – grants the right to object if the inclusion of data in a data application open to inspection by public is not mandated by law. This right can be exercised at any time and without mentioning any reasons. As a result, it was not possible to weigh differing interests which led to the conclusion of the Constitutional Court that § 28 para 2 DSG 2000 violates Art 10 ECHR.
Constitutional Court of Bosnia and Herzegovina: Adjudication of Power-Sharing Arrangements in Sub-State Constitutions
The Constitutional Court reviewed the constitutionality of the provisions regulating the election of the presidents and vice-presidents in the constitutions of the Republika Srpska and Federation of Bosnia and Herzegovina, the two federal units in Bosnia and Herzegovina, as well as the accompanying provisions of the Electoral Law of Bosnia and Herzegovina. The Court partially adopted the request for constitutionality finding the relevant provisions to be discriminatory, and thus unconstitutional, but without invalidating them or ordering the relevant legislatures of the entities to harmonise the contested provisions with the Constitution of Bosnia and Herzegovina. This presents an important decision not only for the evolution of the Court’s approach to the adjudication of consociational power-sharing mechanisms in the country, but also for the apparent introduction of a novel type of constitutional review.
Hungarian Constitutional Court: The Unconstitutionality of Contracts and Amending Contracts via Legislative Measures
In this decision the Constitutional Court of Hungary interpreted the Fundamental Law and ruled on several questions relating to the unconstitutionality of consumer loan contracts when loans are granted in foreign exchange (hereinafter: ‘FX loans’). The Government, as petitioner, inter alia raised the questions, if private law contracts can be declared unconstitutional, and what the constitutional requirements for the legislator to change the contents of existing contracts via legislative measures are.