Vienna Journal on International Constitutional Law

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

Abstract: Parliamentary sovereignty in the British constitutional context is expressive of the utilitarian philosophy which dictates that government is there to gratify the wishes and interests of the majority to the greatest extent possible. This approach, at times cast in more moderate terms as ‘democratic legitimacy’, arguably reflects the majoritarian underpinnings of British parliamentarism. A close look on the workings of ‘parliamentary sovereignty’ reveals, however, that its discrete constitutional relevance is not great. Courts in the English legal system retain their full-fledged law-making power, and are entitled to balance the legislation-backed public utility by common law constitutional considerations. The examination of the relevant aspects of English law shows that parliamentary sovereignty is neither sufficient nor necessary for properly articulating and giving effect to the demands of public utility.

Abstract: This Article will examine an important – but largely ignored – approach to constitution-making: The use of restored constitutional orders as the basis for the creation of a new constitutional order. Looking at this ‘restoration constitution-making’ in post-communist constitutional transition, it will describe how restoration held both advantages and disadvantages. On one hand, restoration improved the politics of constitution-making by helping to avoid the elite manipulation of extraordinary institutions during constitutional drafting. On the other hand, the restoration of decades-old constitutions also led to restored laws that privileged past generations and undermined broad popular participation. Finally, restoration was an important part of gaining international recognition for independence. This international component suggests that constitution-making is about more than just domestic politics. These findings are an important first step in understanding the potential of restoration to ensure a successful constitutional transition.

Abstract: Can one square the invariably raucous natures of demonstrations and gatherings, and the fundamental right to assembly, with the imposition of strict liability upon the organizers for any harm to person or damage to property caused by an assembly, demonstration and gathering? The South African Constitutional Court in Garvis South African Transport & Allied Workers Union & Congress of South African Trade Unions v Jacqueline Garvis [2012] ZACC 13. suggests that one can. This article contends that a court cannot.

Abstract: In its landmark decision in Obergefell v Hodges a five-Justice majority of the United States Supreme Court held that state laws depriving same-sex couples of the right to marry violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Four dissenting Justices – Chief Justice John G Roberts, Jr and Justices Antonin Scalia, Clarence Thomas, and Samuel Anthony Alito, Jr – criticized the majority’s ruling and analysis. Calling for judicial self-restraint and deference to the outcomes of democratic decision-making, the dissenters argued that same-sex marriage bans enacted by state legislatures did not violate the Constitution. This essay argues and demonstrates that the Obergefell dissenters have not restrained themselves in other cases in which they voted to strike down legislative enactments and did not defer to democratic decision-making. This selective restraint reveals that the dissenters have not been unwaveringly committed to judicial self-restraint, and raises the central question of when should the Court defer to legislatures in cases presenting constitutional challenges to state or federal laws.

Abstract: Justice Roberts’s dissent in Obergefell v Hodges – the case in which the US Supreme Court found a constitutional right for same sex couples to marry – rested on the premise the Court cannot invoke the right to marry as a basis for changing the definition of marriage. But his argument works only if the Court has no obligation to find a constitutional meaning for the term. I argue here that it has such an obligation. I argue further that an analogy with the concept of ‘person’ throws light on how that obligation should work. And finally, I argue that the most plausible constitutional definition would include same sex couples.

The Constitutional Court had to decide on some of the measures taken with the Hypo Reorganization Act in order to restructure and wind-down ‘Hypo Alpe-Adria – Bank International AG’. The Court found that the right to property under Art 5 StGG and Art 1 Protocol No 1 ECHR was violated because the HaaSanG differentiated within the group of subordinate creditors by declaring only those claims expired that matured before 30 June 2019. Another violation of the right to property was seen in the fact that the HaaSanG declared all securities (and among them statutory guarantees) expired together with the respective claims.

The Austrian Administrative Court (Verwaltungsgerichtshof) repealed a decision of the Federal Court of Administration (Bundesverwaltungsgericht) regarding the imposition of detention pending deportation, because the relevant provisions did not fulfil the requirement (defining ‘risk of absconding’ by law) demanded by the Dublin-III-Regulation. Thus, the imposition of detention pending deportation in the present case was unlawful.

The Constitutional Court repealed provisions which did not state clearly enough procedural circumstances for appeals against arrest, custody and detention pending deportation. They do not correspond to Art 18 (principle of legality) and Art 83 para 2 Federal Constitutional Law (right to lawful judge). Additionally, the Court refers in this decision to the concept of the habeas corpus ideas.

The limitation of the exercise of personal rights with regard to certain specific collective rights and public interests related to cybersecurity breaks the right balance that should exist between individual interests and rights, on the one hand, and those of the society, on the other hand, as the impugned law does not regulate sufficient guarantees to ensure an efficient protection of personal data against risks of abuse, as well as against any illegal access and usage thereof. The lack of any provision within the law ensuring the possibility of the person whose rights, freedoms or legitimate interests have been affected by acts or facts based on the provisions of the Law on the cybersecurity of Romania to address an independent and impartial court is contrary to the provisions of Article 1 para 3 and 5 and Article 21 of the Romanian Constitution, as well as of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

The Constitutional Court of Romania declared unconstitutional the provisions of Article 19 para 3 of the Political Parties Act No 14/2003, which covered one of the formal conditions for fulfilling the legal procedure for the registration of a political party, namely the requirement of a minimum of 25.000 founding members residing in at least 18 counties and in Bucharest, but not less than 700 persons for each of these counties and Bucharest. The Court held that this requirement is excessive, disproportionate in the current socio-political context of the country and to the measures in force targeting public funding of political parties and election campaigns and parliamentary representation of the electorate.