Vienna Journal on International Constitutional Law
ISSN 1995-5855 (Online)
Erosion of Constitutional Rights in EU Law: A Call for ‘Substantive Co-operative Constitutionalism’
Abstract: This two-part paper seeks to invite discussion on a deeply embedded narrative in the European scholarly and public discourse that reduces the protection of national constitutions to Eurosceptic, old-fashioned reluctance to relinquish sovereignty. The paper argues that because of the simplistic ‘Eurosceptic’-‘Euro-friendly’ looking glass, the discourse has broadly been oblivious of, and given scholarly legitimacy to, the erosion of a range of classic constitutional rights and rule of law safeguards in EU law. Part 1 of the paper, documenting comparative case law in seven areas, posits an emergence at the EU level of the adoption of measures which, if attempted at national level without the constraints of EU law, would in a significant number of national legal orders prompt constitutional courts to voice serious concerns about core European constitutional values. The case studies start with some past criticisms regarding rights protection in the single market, moving then to EU measures that have affected core constitutional values, such as secret anti-terrorist measures, the Data Retention Directive, the European Arrest Warrant system with its numerous Kafkaesque elements, the broader move towards imposition of criminal and administrative sanctions on the basis of teleological interpretation and without a law, and the ESM Treaty. The paper also queries the reduced access to courts, the changing role of courts and an emerging gap in constitutional review. Against this background, Part 2 of the paper calls for recalibrating the discourse towards ‘substantive co-operative constitutionalism’. The aim is to explore how to better uphold the standards of protection developed by national constitutional and supreme courts for classic, substantive constitutional values, in a context where EU constitutional law has brought about a shift towards a thin, weak, procedural version of constitutionalism, the rule of law and judicial review, with priority given to effectiveness, uniformity, trust and, after Melloni, supremacy over constitutional rights.
Religious Symbols and Garments in Public Places – a Theory for the Understanding of S.A.S. v France
Abstract: This article analyses the ECtHR’s case law on Article 9 ECHR, with an emphasis on displaying religious symbols and garments in public places. It provides a theory for the better understanding of the ECtHR’s poor protection of individual believers and its deference to the member states in the light of a wide margin of appreciation, the lack of a European consensus regarding the role of religion in society in the member states and the absence of an in-depth analysis of proportionality in these cases. With the exception of Ahmet Arslan v Turkey no violation was ever found in the context of religious dresses in public places. Therefore, the article offers an explanation for the Grand Chamber’s judgment of S.A.S. v France according to the theory of religion as an ‘adjudication stopper’ for the ECtHR and it argues that this latest judgment was not surprising but in line with the Court’s rather cautious approach.
Abstract: Despite a rich history of judicial review, the activism witnessed during the tenure of former Chief Justice of Pakistan Iftikhar Muhammad Chaudhry (2005-2013 This tenure is calculated in accordance with the Supreme Court’s July 2009 judgment. In Sindh High Court Bar Association versus Federation of Pakistan PLD 2009 SC 879, a 14-member bench of the Supreme Court of Pakistan declared the Emergency imposed by General Pervez Musharraf unconstitutional and held all orders in pursuance thereof were void ab initio. Accordingly, the court held that the office of the Chief Justice of Pakistan was never vacant and Chief Justice Iftikhar Muhammad Chaudhry was the de jure chief justice even when he was ostensibly ‘deposed’ between 2007 and 2009. ‘Important Judgements of the Supreme Court rendered between 24 March, 2009 and 31 March, 2010’ <http://www.supremecourt.gov.pk/Annual_rpt_ap09mar10/10.pdf> accessed 18 May 2015. was generally seen as unprecedented in Pakistan and eventually led to the court being accused of politicization, judicial overreach and even ‘judicial terrorism’. Staff report, ‘IHC judge committed judicial terrorism against Musharraf: APML’ Pakistan Today (Lahore, 20 April 2013) <http://www.pakistantoday.com.pk/2013/04/20/national/ihc-judge-committed-judicial-terrorism-against-musharraf-apml> accessed 18 May 2015. This paper examines the calls for ‘strategic judicial restraint’ in the sphere of economic decision-making within Pakistan’s broader socio-political context. The Chaudhry court’s activism is mapped against the historic trajectory of judicial review in Pakistan, particularly the cases pertaining to military takeovers and administrative law. It is contended that the seeming expansion of the frontiers of judicial review merely mark the renegotiation of political power between the judiciary, the military as well as political and economic elite. Further, it is argued that the economy was the most convenient amphitheatre for this battle for greater political relevance by and among the political actors in contemporary Pakistan and not, as alleged, what was actually being fought over.
The Eternity Clause in the Czech Constitution as Limit to European Integration
Abstract: The article raises one principle question: Does the Czech Eternity Clause pose a possible threat to a further integration of the European Union? In a concise introductory part, the article analyses the concept of the Eternity Clause of the Czech Constitution from both the substantive and procedural point of view. Afterwards, the article goes on to evaluate whether certain aspects of the Eternity Clause (as interpreted by the Czech Constitutional Court) might indeed create practical problems for the EU. The opinion of the author is that the ‘danger’ is quite negligible. This is mostly due to the fact that the Czech Constitutional Court generally (with an exception that is not to be overestimated) adheres to euro-friendly interpretation and it has even interpreted the Eternity Clause itself (especially concepts like democracy or sovereignty) with respect to the logic and nature of European integration. The euro-friendliness of the Czech Constitutional Court is further complemented by the respect that the EU law pays to national (especially constitutional) identity of the member states.
Drafting the Preamble for the Satversme: A New Approach to one of the Oldest Still-Functioning Republican Basic Laws
Abstract: The Constitution of the Republic of Latvia (the Satversme) is the oldest East Central European constitution still in force and the sixth oldest still-functioning specimen of republican basic laws in the world. Unlike other Baltic states, Latvia did not have to adopt a new constitution after re-establishing its constitution previously in force before the Soviet occupation. Laconic wording, sufficiency and precision of norms and yet substantial regulatory coverage, on the one hand, and holding to the established légistique tradition, on the other hand, made it possible for the Satversme to step into the 21st century. Along with its longevity and precise drafting, there is a further aspect which makes the Satversme special. In drafting the Satversme, the Constitutional Assembly followed the constitutional trends of the time, with direct popular participation being one of them. Replicating traditions of the 1919 German Constitution, it provides multiple forms of direct popular participation. Moreover, there are some limitations with respect to the subjects of referenda and the timing for organising referenda. Nonetheless, these prove to be few. While designed to empower citizenry engagement within the process of legal framing, these limitations have recently been associated with problems related to the misuse of popular will. Though the legal system of Latvia provides several ways to prevent the misuse of popular will through administrative measures, judicature, constitutional justice and legislation, neither of these were effectively used to solve ‘constitutional strokes’. Similarly, the quest of legal scholars for a cure for the misuse of popular will within the prevailing ‘dogma on perfection of the Satversme’ reached a deadlock. Thus, the cure for the strokes has been sought within constitutional theory, in particular by defining ‘the core of the Satversme’ in the preamble of the Satversme. This article discusses the preamble of the Satversme, its historical background and its travaux préparatoires.
Until December 2014 the Austrian Constitutonal Court did not explictly quash a provision or decision in contradiction with Article 1 Federal Constitutional Act concerning the Rights of the Child which is in force since 2011 and enshrines the consideration of the child’s best interests. This article gives a short overview of the legal situation in Austria and the previous case-law of the Constitutional Court.
The Austrian Constitutional Court repealed a provision under which an adoptive parent needed to be at least sixteen years of age older than the adoptive child. The Court stated that such a rigid age restriction results in a violation of the child’s best interest and the child’s right to the best possible development and deployment, as a slight shortfall of the age difference is not possible; not even with judicial discretion. The child’s right to the best possible development and deployment exhibits the essential content of a social right. Hence, the present judgment needs to be seen in view of the general discussion concerning constitutionally granted social rights in Austria.
Exclusion of registered Partners from Adoption Rights found to be discriminatory
In Austria marriage is not open to couples of the same sex, though same-sex couples may officially register their partnership. In contrast to married couples, however, registered partners were ineligible to adopt a child jointly. The Austrian Constitutional Court could not find an objective justification for such unequal treatment, especially with regards to Article 1 Federal Constitutional Law on the Rights of the Child. Therefore, the Constitutional Court rescinded the exclusion of registered partners from adoption based on violation of Article 14 ECHR taken in conjunction with Article 8 ECHR and Article 7 B-VG.