Vienna Journal on International Constitutional Law
ISSN 1995-5855 (Online)
Principles of National Constitutionalism limiting Individual Claims in Human Rights Law
Abstract: The scope of the fundamental right to freedom of religion has been broadly discussed in recent jurisprudence and doctrine. Doctrine has however paid little attention to the role of constitutionalism and its principles such as this of the separation of church and state and the division of power. These principles are often not mentioned as such in international human rights treaties. Does this mean that they are irrelevant in human rights adjudication? This article addresses the proper function of constitutionalism in human rights jurisprudence and in settling religious conflicts more in general. The Lautsi judgment of the European Court of Human Rights is used as a trigger to look at the relationship between religion, constitutionalism and human rights, and at the legitimacy of supranational courts. The article argues that international human rights jurisprudence must take national constitutionalism and its principles into account when dealing with the freedom of religion, even when those principles are not explicitly enshrined in human rights treaties. For this the use of the margin of appreciation seems to be appropriate.
Abstract: We have now been through two decades since the onset of what has been deemed the ‘second liberation’ of Africa. In these two decades, interest in the study of constitutionalism has been gaining momentum and an increasing body of scholarly literature is being produced on constitutionalism and multi-party democracy in African states. Though an exhaustive treatment of this literature in a single paper is impossible, in this paper an attempt will be made to identify and highlight some of the major themes in the comparative constitutional law and democratization scholarship focused on Africa. Specifically, four themes will be identified and discussed. These are: i) autochthony and cultural contextualization of constitutionalism, ii) executive hegemony and imperial presidencies, iii) economic critiques and discontents with the liberal democratic model and iv) the effects and accommodation of ethnicity.
Abstract: In a period of less than a year, two decisions of the newly established Constitutional Court of the Republic of Kosovo resulted in the resignation of two Presidents of the new State. Ruling on the unconstitutionality of the act of simultaneously holding the position of the head of State and that of his political party, in one case; and ruling on the unconstitutionality of his election due to procedural irregularities in the other, the Court prompted fundamental changes to the political landscape of Kosovo that in the first case led to new and extraordinary elections, whereas in the second to a political arrangement that would ultimately lead to constitutional reforms. Following the Court’s decisions, both Presidents (Sejdiu and Pacolli) resigned from their posts. This article offers a textual analysis of the merits and controversies surrounding both decisions, which will be situated in the broader context of the seemingly powerful role of Constitutional Courts in certain societies in transition. The overall analysis demonstrates the weaknesses inherent to the initial stages of State formation, and to the foundational constitutional instrument, indicating the importance of the Constitution’s clarity for political stability. In an environment characterized by a dominant perception of a politicized judiciary, the Court’s decisions testify to the judicial activism of the Constitutional Court and, in terms of the substance and consequences of its key decisions, also to judicial supremacy. The Court’s decisions have also had some significance for testing the country’s political culture, a test that has been met in both cases eventually with compliance by those most affected.
Focus: The Charter of Fundamental Rights of the European Union in the Austrian Constitutional Court’s case law
Failure to refer a preliminary question to the ECJ and the right to a lawful Judge
The Charter of Fundamental Rights of the European Union to be treated like Constitutional Law
The Charter of Fundamental Rights of the European Union as review standard in proceedings before the Constitutional Court
Rights of the Charter of Fundamental Rights as constitutionally guaranteed rights – VfSlg 14.886/1997 revisited?
Can the constitutionality of omitting a public hearing in the Austrian Constitutional Court’s CFREU decision legitimately be based on thejurisdiction on Art 6 ECHR?
Hungarian Constitutional Court: New Media Regulation partly under Constitutional Scrutiny
The Hungarian Constitutional Court published the results of a review regarding the constitutionality (of certain elements) of the new media regulation which entered into force as of January 1st 2011. The Court repealed in this decision some rules on the press and online content and on the procedure of the media authority. The decision established significant changes in the media acts even if it did not deal with other important media freedom questions raised in these laws.
Croatian Constitutional Court: The electoral procedure for voters/members of national minorities for representatives to the Croatian Parliament
The Croatian Constitutional Court repealed Article 1 paras 2 and 3 of the Constitutional Act on Amendments to the Constitutional Act on the Rights of National Minorities.