Vienna Journal on International Constitutional Law

ISSN 2306-3734 (Print)
ISSN 1995-5855 (Online)

Abstract: Judicial reliance on foreign law has been hotly debated since the early 2000s, with commentators staking out competing positions on the role of foreign sources in constitutional interpretation. While the literature has been normative in focus, authors frequently incorporate empirical assumptions about how judges have used foreign law in practice. Yet scholars have done little empirical work to ground the debate and have focused so predominantly on the Supreme Court that the US Courts of Appeals have been largely ignored. This study analyzes findings from a newly created database containing Courts of Appeals decisions relying on foreign law in deciding constitutional rights issues from the earliest cases to the present day. The surprising results include the low number of overall cases, the dearth of cases using foreign law to challenge accepted principles, and the absence of cases engaging the reasoning behind foreign judicial determinations. The findings serve as a jumping off point for the examination of normative concerns, including the risk of arbitrariness in judges’ decisions to rely on foreign law in particular cases.

Abstract: When interpreting the fundamental liberties in the Singapore Constitution, courts presently do not engage in a proportionality analysis – that is, a consideration of whether limitations on rights imposed by executive or legislative action bear a rational relation with the object of the action, and, if so, whether the limitations restrict rights as minimally as possible. The main reason for this appears to be the expansive manner in which exceptions to the fundamental liberties are phrased, and the courts’ deferential attitude towards the political branches of government. This paper considers how the rejection of proportionality has affected the rights to freedom of expression and assembly, and freedom of religion, and argues that although proportionality was originally a European legal doctrine, its use in Singapore is not only desirable but necessary if the Constitution is to be regarded as guaranteeing fundamental liberties instead of merely setting out privileges that may be abridged at will by the Government.

Abstract: Free Exercise of Religion is a protected constitutional right under the democratic constitutions of both the biggest democracy in the world ie India and the most powerful democracy in the world ie United States of America. Despite textual similarities in the freeexercise clauses of Constitutions of both of these democracies, there is a big difference in the standards of review whereby free exercise claims are judicially reviewed by their respective Supreme Courts. Whereas the US Supreme Court does not give much weight to the sincerity of the religious belief and employs the ‘religion-neutral’ test, the Supreme Court of India gives due weight to the sincerity of the religious belief and employs a ‘religion-central’ test known in Indian free-exercise jurisprudence as the Doctrine of Essential Practices. However, a closer examination of judicial opinions on the point discloses that sincerity of religious belief is not entirely unimportant in US free-exercise jurisprudence but still is not given the kind of importance that it is given in India – a nation that is and has historically been religiously diverse. This paper closely examines the free-exercise jurisprudence as developed by the respective Supreme Courts and argues that in view of the changing religious diversity in the United States perhaps time has come to re-examine the reluctance of the American courts to give its due weightage to the sincerity of religious belief while judicially reviewing freeexercise claims. Relying on several judicial opinions of the US Supreme Court and its subordinate courts in the US and by demonstrating their factual and doctrinal equivalents in the Supreme Court of India, this paper argues that free-exercise clauses of both the US and Indian Constitutions protect not just the right to believe in whichever religion an individual chooses but also acts in pursuit of religion. The belief-act distinction – an idea at the core of much of US free-exercise jurisprudence is not what is truly protected by the freeexercise clause. What is protected indeed are the acts done in pursuance of religious belief. A line has to be drawn between the acts that are sincerely done in pursuance of religion and those that are not. This line has to be drawn by the Courts on a case to case basis. And that is where US free-exercise jurisprudence would be well assisted in examining Indian free-exercise jurisprudence on the point.

The Austrian Broadcasting Corporation must be allowed to act within existing social networks. After having quashed the legal provision explicitly prohibiting the Austrian Broadcasting Corporation from interacting within social networks in an earlier ruling, the Constitutional Court now held that activities of the Austrian Broadcasting Corporation on the social platform ‘ Facebook’ do not fall under the legal provision banning the Austrian Broadcasting Corporation from providing ‘forums, chats and other services for the publication of content by users’.

The Constitutional Court dismissed the claim of a homosexual couple which had been married in the Netherlands that Art 21 para 1 CFREU (non-discrimination) had been violated as their application to repeat their marriage in Austria was rejected by Austrian authorities. The Court stated that Art 21 para 1 CFREU is not applicable in this case as there is no sufficient link to EU law; even if EU law was applicable there would be no case of discrimination as the member states may rely on a comprehensive margin of appreciation in this regard.