"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Monday, September 26, 2011

SSRN: Weekly Round up of Articles on Constitutional Law

Hungary: The New Basic Law

Marton Varju

European Public Law Journal, Forthcoming


The birth of a new constitution is an exceptional event in contemporary Europe and an outstanding opportunity for public lawyers to make the best use of the richness of models, experiences and requirements European constitutionalism offers. The pleasant difficulties the drafters face come from the profusion of transplantable solutions available in other European jurisdictions and from the external constraints placed on national constitutions by European constitutional law, most notably the law of the European Convention on Human Rights. Selecting the right constitutional ingredients from other jurisdictions and establishing an appropriate response to European obligations requires care and expertise. The European elements only add to the already complex task of producing a constitutional document suitable for a state in 21st century Europe.

A new constitution would need to acknowledge and express the developments in how the state interacts with its environment. The shift from hierarchical modes of government to more complex structures and activities of governance, the transformation from a provider and owner state to a regulatory state and the gradual decrement in the European Union of the state's autonomy in regulating the market should have an impact on the definition of basic constitutional concepts, such as sovereignty, power, accountability and citizenship. The evolution of new forms of accountability should be expressed in the constitution along the traditional modes of democratic and legal accountability. Open government and the transparency of governance should be elevated to the position of basic constitutional principles. The language of fundamental rights in the constitution should be able to express the relationship between the state and the individual and the state and the market in an open and pluralistic society.

The process of constitution-making and some of the content of the new constitution attracted severe criticism from politicians, NGOs, intellectuals and experts. In particular, the opinions of the Venice Commission condemned the new Basic Law. The Commission pointed out that the constitution-making process lacked transparency and social dialogue, and received some substantive changes, such as the limitations of the competences of the Hungarian Constitutional Court, the new catalogue of fundamental rights and the regulation of certain substantive issues, in particular the role and powers of the judiciary, with reservations. The government responded by observing that the solutions adopted in the new Basic Law were all inspired by one or another constitution of EU Member States. Whether shopping around among European constitutions was an appropriate method of constitution-making was not considered by the government.

The Idea of the Constitution as Hard Law

William W. Van Alstyne

Journal of Legal Education, Vol. 37, No. 174, 1987


This article explores the idea of the Constitution as actual law rather than a simple statement of ideals. Although the Framers completed their original goal of correcting the Articles of Confederation by laying out a simple structure of government, the overly functional nature of the checks and balances included in the Constitution signals that it serves the greater purpose of a functional guide and by extension, acts as law itself.

Nepal's Constitution Writing Process: Rebuilding the Ship While at Sea

Andreas Follesdal

International Journal of Minority and Group Rights, Vol. 18, No. 3, pp. 287-291, 2011


In order to understand the recent political and constitutional events of Nepal, and to discern feasible and fair ways to move forward, it is essential to consider the complex composition, circumstances and potential for conflicts by and among the many groups and minorities that constitute the people of Nepal.

The future inclusion of marginalized groups requires the drafters of the constitution to attend closely to various models and mechanisms for managing group claims and conflicts. They include a federal Nepal, various group rights, and a voting system of proportional representation. Closer scrutiny reveals that these demands may be interpreted and institutionalized in several ways consistent with the objectives and needs of the population, especially the desire to prevent domination by a predatory centre, and to bolster local autonomy. To understand and facilitate these developments, the present special issue explores several perspectives and analyses.

A Constitution for Everyone

Bruce Ledewitz

Duquesne University School of Law Research Paper No. 2011-20


Our Constitution is for everyone, but perhaps not in the way people assume. Our federal constitution protects everyone in the sense that all citizens may rely upon it in court, if necessary. But the Constitution is also for everyone in the sense that constitutional interpretation itself is a public and popular responsibility – and ought to be such.

The Person’s Right to Integrity in the Light of the Treaty Establishing a Constitution for Europe

Carmen Todica

Law Annals of Titu Maiorescu University, 2004


Incorporated in Part II of the Draft Treaty on the establishment of an European Constitution, The Chart Of Fundamental Rights of the European Union is the elaborated statement of the civil, political, economical and social rights recognized by the EU member states. It does not only contain a series of fundamental and classic rights, but also a series of rights on the current preoccupations of European citizens.

Without creating new rights, which is a fact supported by its content, the Chart aims at valuating the current rights of the domestic legislation.

From this point of view, the Chart can be qualified as a product of these traditions, an undertaking to synthesize the values, rights and principles shared by the member states.

Interpreting This Constitution: The Unhelpful Contributions of Special Theories of Judicial Review

William W. Van Alstyne

University of Florida Law Review, Vol. 35, No. 209, 1983


This paper examines several different theories surrounding judicial review and finds many of these theories lacking. Modern trends of literal interpretations and precise language have removed the optimistic nature of Constitutional language and is largely responsible for the hesitancy of other nations to adopt a supreme constitution.

The Uncertain Power of the President to Execute the Laws

Bruce Ledewitz

Duquesne University School of Law Research Paper No. 2011-19


Among the many grants of power to the President, none is more significant nor more controversial than the power of the President over execution of the laws. Constitutional battles have taken place over the extent to which the power to execute the laws implies power to go beyond statutes enacted by Congress. While arguments over the definition and scope of the power to execute the laws will continue, a potentially more significant question is being ignored. Under the Constitution, who executes

Sexual Orientations, Rights, and the Body: Immutability, Essentialism, and Nativism

Edward Stein

Social Research: An International Quarterly, Vol. 78, No. 2, pp. 633-658, Summer 2011


Many people, on both sides of the issue, believe that understanding how sexual orientations develop is legally, ethically, and politically relevant to LGB rights. This article examines two “arguments from etiology,” which the author calls the “born that way” and the “not a choice” arguments, ultimately concluding that how sexual orientations develop is neither relevant nor useful in legal, political, or social contexts. These arguments connect to the role of the “immutability factor” in the context of the Equal Protection Clause of the 14th Amendment to the U.S. Constitution and in similar clauses in state constitutions. The article begins with a review of the conceptual landscape related to sexual orientation and immutability. Setting aside the strength of their empirical premises, some ethical and pragmatic criticisms of these etiological arguments are then discussed. Finally, the article examines how immutability has been discussed in recent court cases about same-sex marriage. In these cases, courts are divided on the meaning of immutability, its relevance, and how to determine whether sexual orientations are immutable. The article concludes that rather than focusing on scientific issues about how sexual orientations are embodied, the better strategy for LGB advocates is to focus on arguments based in justice, equality, and fairness.

Why the EU Does Not Need a Uniform Approach to Human Rights

Andreas Follesdal

NEW SPACES OF EUROPEAN GOVERNANCE, J. Melchior, Vienna, Facultas, eds., Forthcoming


Human rights and Europeanisation raise at least three sets of research questions for political science: To explain the emergence and maintenance of European human rights regimes, to explain the implementation and compliance with particular European human rights policies; and thirdly: issues of political theory: Which human rights should be secured in Europe, by whom, and how, taking due account of what roles human rights should play in multilevel political orders, and the Principle of Subsidiarity.

Critics accuse the EU of double standards between its internal and external human rights policies: between how the human rights of EU residents are secured, and to how human rights affect EU foreign policies in a broad sense. I argue that there are multiple roles of human rights within multi-level political orders, and that these give rise to different standards for various actions. In particular, while the EU does need a consistent set of human rights policies, we may accept stricter standards against Member States than against other states, yet be more restrictive concerning the appropriate kinds of intervention to correct violations. A ‘uniform’ policy is thus not required. The mechanisms of the Treaty establishing a Constitution for Europe that increase subsidiarity and human rights do enhance the legitimacy of the EU, and promote much needed trustworthiness. But they are incompletely developed and operationalised in the document; they stand in some internal tension; and seem partly at odds with standard normative theory.

Constitutionalizing an Enforceable Right to Food: A New Tool for Combating Hunger

Michael J. McDermott

Boston College International and Comparative Law Review, Vol. 35, No. 2, 2012


"When millions of people die in a famine, it is hard to avoid the thought that something terribly criminal is going on. The law, which defines and protects our rights as citizens, must somehow be compromised by these dreadful events. In seeking a remedy to this problem of terrible vulnerability, it is natural to turn towards a reform of the legal system, so that rights of social security can be made to stand as guarantees of minimal protection and survival."

Without enforcement mechanisms within the national legal system, the international right to food fails to serve as an effective tool for combating hunger. This Note is the first to compare effective national right to food efforts and identify essential elements underlying a justiciable, national right to food. Part I of this Note provides historical background of the internationally recognized right to food and an overview of national responses to this right. Part II discusses the right to food as a constitutional provision and details how the right has been created, defined, and enforced in South Africa, India, and Brazil. Finally, Part III applies the insight from South Africa, India, and Brazil to Mexico’s efforts to ensure the right to food through national policies and grassroots social movements. This Note identifies the essential foundational elements required for establishing a national right to food and concludes that the right to food is most effective when national constitutions provide justiciable means for legal redress.

Civil Disobedience, Injunctions, and the First Amendment

Bruce Ledewitz

Hofstra Law Review, Vol. 19, p. 67, 1990


Classic First Amendment law divides the world of expressive conduct into two parts: that which is protected by the Constitution and that which is not. Expressive conduct protected by the First Amendment generally cannot be prohibited by the government, though it may be regulated with reference to what is called time, place and manner. Expressive conduct that is not protected by the First Amendment can be prohibited by the government to precisely the same extent as any other kind of conduct. Indeed, the Supreme Court has upheld severe penalties for non-protected expressive conduct.

Capital Punishment Jurisprudence: A Critical Assessment of the Supreme Court of Uganda's Judgment in Attorney General v Susan Kigula and 417 Others

Barrie Sander

Journal of African Law, Vol. 55, pp 261-279, 2011


The Ugandan Supreme Court's decision in Attorney General v Susan Kigula & 417 Others ended a ten year constitutional challenge against capital punishment. The attorney general was appealing the Constitutional Court's declarations that a mandatory death penalty and a delay on death row of more than three years violate Uganda's Constitution. The respondents cross-appealed the Constitutional Court's declarations that the death penalty is constitutional and that hanging is an appropriate and therefore constitutional method of execution. The Supreme Court dismissed both the appeals and cross-appeals. This article summarizes the Supreme Court's findings and analyses the court's reasoning. It demonstrates that, while the court's reasoning is generally in line with the interpretations offered by international courts and human rights bodies, the court arguably missed an opportunity to take a bolder approach regarding the relationship between the death penalty and the prohibition on cruel, inhuman and degrading treatment, particularly in light of recent international trends.

International Arbitration: A New Mechanism to Settle Intra-State Territorial Disputes? The Divorce of Sudan and South Sudan and the Abyei Question

Cindy Daase

August 19, 2011


In 2008, the Government of Sudan (GoS) and the Sudan People's Liberation Movement/Army (SPLM/A) submitted an arbitration agreement with the Permanent Court of Arbitration (PCA) in The Hague. In a unique fast track procedure, an international arbitration tribunal had to determine in accordance with the Comprehensive Peace Agreement (CAP) of 2005, in particular the Abyei Protocol and Abyei Appendix, the Interim National Constitution (INC) and general principles of law, whether the Abyei Border Commission (ABC) exceeded its mandate, which was to define and demarcate the area of the nine Ngok Dinka chiefdoms transferred to Kordofan in 1905. In case of excess, the parties entrusted the tribunal with redefining the boundaries of the disputed territory based on the parties’ submissions. To guarantee the transparency of the procedure and to generate acceptance by all stakeholders on the ground, all hearings and documents were made publically available. The procedure and the more than 200-pages-long final Award from July 2009 constitute an illustrative example of an international dispute settlement procedure dealing with an intra-state (territorial) dispute between a state and a secessionist movement. The paper evaluates the still disputed status of the Abyei Region and the record of the parties’ (non-)compliance with the Abyei Award in the ongoing status-negotiations between Sudan and the newly independent South Sudan. By inter alia taking a comparative perspective with other international dispute settlement mechanisms the paper critically discusses the legal-political implications of the Abyei Arbitration and whether it could serve as a model or lesson learned when it comes to the effectiveness and success of international arbitration and its potential contribution to the settlement of intra-state (territorial) disputes.

Sunday, September 25, 2011

Intl. Arbitral Tribunal asks India to Stop the Kishanganga Project

Pakistani media has reported that the Seven member International Arbitral tribunal -constituted by India and Pakistan to decide on whether construction of the Kishanganga Hydro Project by India amounted to violation of the Indus Water Treaty, 1960- has issued an unanimous order asking India not to continue with the construction of the Kishanganga Project. It may be noted that Pakistan had applied to the Tribunal only in July for an interim injunction attracting severe criticism from Pakistani media for the delay in applying. Considering the belated stage at which interim injunction was sought, Pakistani media was pessimistic about Pakistan's chances in obtaining an interim order in its favour. In fact, in our last post, we had cited news reports in the Pakistani media reporting that the application for injunction was refused by the tribunal. Nevertheless, the Tribunal seems to have asked India to take the said interim measure.

Interim Injunction of this sort is generally issued only if there is a prima facie case, according to well settled principles of law. It remains to be seen how the tribunal will decide the dispute. More on this once the Indian news reports come in.

Added After Posting: The Hindu has a news report that seems to describe the the interim order issued by the seven member Arbitral Tribunal at the Hague in further detail. According to the news report, the Tribunal has injuncted India from constructing any permanent structure on the river bed that may inhibit the river's full flow. It appears from the news report that this order was only a sort of a conservatory measure. Building of a permanent structure might permanently inhibit the river flow even if the award is ruled in Pakistan's favour. Therefore, the interim order is probably aimed at preventing such a situation. It is important to note that the interim order does not prohibit India from undertaking works in the project which do not permanently inhibit the river flow. According to the order, India is free "to continue with all works relating to the Kishenganga Hydro-Electric Project” barring “any permanent works on or above the Kishenganga-Neelum riverbed at the Gurez site that may inhibit the restoration of the full flow of that river to its natural channel”such as "construction of the sub-surface foundations”, erecting temporary cofferdams, operating the by-pass tunnel, temporarily drying out the riverbed of the Kishenganga-Neelum at the Gurez valley, excavating the riverbed, etc. The news report states that the Tribunal intended to give its final award by the end of 2012 or by early 2013.

Thursday, September 22, 2011

Investment Arbitration against India under the Bilateral Investment Treaty between India and Australia

The Times of India has reported in today’s paper that a claim has been filed against India under the Bilateral Investment Treaty between India and Australia by White Industries Australia Limited. Dispute pertaining to White Industries’ entitlement for bonuses arose between White Industries and Coal India under a 1989 Agreement in regard to the supply of equipment and development of a coal mine in Piparwar, (now in) Jharkhand. The 1989 Agreement provided that the arbitration would be conducted as per the ICC Rules and it apparently excluded the applicability of the Arbitration Act, 1940. An arbitral tribunal was constituted and the award for Australian dollars 4,085,180, passed in 2002, was in favour of White Industries. The award was sought to be enforced in India and the matter is currently pending before the Supreme Court of India.

In the meanwhile, the Australian company has invoked arbitration against the Republic of India under the Agreement between the Government of Australia and the Government of the Republic of India on the Promotion and Protection of Investments dated 29 February 1999.

Article 12 of the said Treaty, inter alia, provides for reference of a dispute to an ad hoc tribunal in accordance with the UNCITRAL Arbitration Rules, 1976, with certain modifications. White Industries has reported claimed that the action of the Indian courts and of Coal India Limited had led White Industries to suffer loss and damages, which are claimed in the arbitration. The hearings in the matter began on September 19 and would reportedly continue up to September 23.

Vivek Tankha, Additional Solicitor General of India has been appointed to represent India in the arbitration proceedings.

From the news report, we guess that White Industries would primarily base its claim on the decision by the ICSID Tribunal in Saipem v. Bangladesh, where the ICSID Tribunal seems to have concluded that the action of the courts in Bangladesh had the effect of denying Saipem from reaping the “benefits” of the ICC award and it amounted to unlawful expropriation. See this recent post in the Kluwer Arbitration Blog on the said decision.

Check out the Times of India news report from here.

We’ll keep readers posted on the developments in the case. We’ll deal with the decision of the ICSID Tribunal in a future post.

Added After Posting: It appears from this site that White Industries applied to the Delhi High Court for enforcement of the ICC award in 2002. However, Coal India Limited applied to the Calcutta High Court to set aside the arbitral award.  

Wednesday, September 21, 2011

Transmission of Arbitral Awards for Enforcement: Madras HC Clarifies

Case: C.R.P.(NPD) No.574 of 2011
Bench: Justice V. Ramasubramanian
Date: 26.08.2011


Disputes arose between the Petitioner (Kotak) and the Respondent (Sundari) which were referred to an arbitrator. The sole arbitrator passed an award in January 2010. Kotak thereafter filed an execution petition before the X Assistant Judge, City Civil Court, Chennai for executing the award as Sundari resided within the limits of the said court. The X Assistant Judge returned the execution petition asking the petitioner to the grounds for filing the petition even without transmitting the award through proper channel. After hearing the petitioner, the X Assistant Judge, relying on a judgement of the Karnataka High Court, dismissed the petition on the ground that the award was not transmitted through the proper court. Kotak filed a CRP in the High Court against the order of the X Assistant Judge.

The Single Judge of the High Court found that the law regarding transmission of awards was uncertain. This uncertainty has resulted in about 2362 execution petitions filed in the first half of 2011 requesting transmission of awards to various courts, either within or outside the State of Tamil Nadu.

Relevant Provisions:

Code of Civil Procedure, 1908:

"37. Definition of Court which passed a decree— The expression "Court which passed a decree", or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include,—

(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and

(b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.

Explanation.—The Court of first instance does not cease to have jurisdiction to execute a decree merely on the ground that after the institution of the suit wherein the decree was passed or after the passing of the decree, any area has been transferred from the jurisdiction of that Court to the jurisdiction of any other Court; but in every such case, such other Court shall also have jurisdiction to execute the decree, if at the time of making the application for execution of the decree it would have jurisdiction to try the said suit.

38. Court by which decree may be executed— A decree may be executed either by the court which passed it, or by the Court to which it is sent for execution.

39. Transfer of decree— (1) The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court of competent jurisdiction,—

(a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or

(b) if such person has not property with in the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or

(c) if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or

(d) if the Court which passed the decree considers for any other reason, which it shall record in wiring, that the decree should be executed by such other Court.

(2) The Court which passed the decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction.

(3) For the purposes of this section, a Court shall be deemed to be a Court of competent jurisdiction if, at the time of making the application for the transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed."
Order XXI
5 . Mode of transfer— Where a decree is to be sent for execution to another Court, the Court which passed such decree shall send the decree directly to such other Court whether or not such Court is situated in the same State, but the Court to which the decree is sent for execution shall, if it has no jurisdiction to execute the decree, send it to the Court having such jurisdiction.
6 . Procedure where Court desires that its own decree shall be executed by another Court— The Court sending a decree for execution shall send—

(a) a copy of the decree;

(b) a certificate setting forth that satisfaction of the decree has not been obtained by execution within the jurisdiction of the Court by which it was passed, or, where the decree has been executed in part, the extent to which satisfaction has been obtained and what part of the decree remains unsatisfied; and

(c) a copy of any order for the execution of the decree, or, if no such order has been made, a certificate to that effect.

10 Application for execution— Where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree or to the officer (if any) appointed in this behalf, or if the decree has been sent under the provisions hereinbefore contained to another Court then to such Court or to the proper officer thereof."
Arbitration and Conciliation Act, 1996:

Section 2(e)
"Court" means the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any civil court of a grade inferior to such principal Civil Court, or any Court of Small Causes;

"36. Enforcement.- Where the time for making an application to set aside the arbitral award under award shall be endorsed under the Code of Civil Procedure, 1908 (5 of 1908) in the same manner as if it were a decree of the Court."

The decision of the court is summarized below:

1. A decree is to be executed, primarily, by the court which passed that decree (Decree Court).

2. Provisions for sending the decree to another court (Transmission) exists only in those instances where it is not possible for the Decree Court to execute it.

3. An award under the Arbitration and Conciliation Act, 1996 is deemed to be a decree of a civil court for the purposes of execution. However, the arbitral tribunal is not equivalent in status to that of a civil court. The arbitral tribunal does not have the power to execute a decree. Consequently, it does not have the power to transfer the decree to a competent court.

4. There is a misconception that the execution petition must be filed in the court within whose jurisdiction the award was passed. This has led to filing of numerous (at least 2362) award execution applications for transfer to other courts. There is no such provision of law.

5. In Daelim Industrial Co. Ltd. v. Numaligarh Refinery [EA 105/2009 in EP 242/ 2008 decided on 13.03.2009], an award that was passed by an arbitral tribunal in Calcutta. The award was set aside by the District Court of Assam but the High Court at Guwahati partly upheld the award. The Supreme Court, on appeal, party modified the High Court’s judgement. Question arose before the Delhi High Court as to whether it had the territorial jurisdiction to entertain the execution petition. The Delhi High Court held that in the absence of mandate under Section 38 of the Code of Civil Procedure, the court having territorial jurisdiction over the place in which the properties of the judgement debtor would have jurisdiction.

6. Consequently, there is no single court where the execution petition must be necessarily filed for executing an award.

7. The 1996 Act does not necessitate that parties must arbitrate in a particular place. Therefore, parties may choose to arbitrate in any place according to their convenience. Even the tribunal can conduct arbitration proceedings in a place different from the place chosen by the parties, if any, for convenience. Therefore, it cannot be insisted that the award be enforced in the place chosen by the parties or in a place where the arbitral tribunal conducted hearings for the sake of convenience.

8. If the misconceived practice as is currently adopted is the rule, then, by logical extension, an award passed in London could only be enforced in London and not in India.

9. A connected misconceived practice is for the decree holder to get a certificate from the High Court that the award has not been satisfied by the judgement debtor. Only the court which actually passed the decree can give such a certificate.

10. In fact, courts do not insist on such a transmission of an award passed by the Registrar of Chits under Section 69 of the Tamil Nadu Chit Funds Act, 1982.

Consequently, the court concluded:

"In the absence of any provision in the 1996 Act, requiring a Court to pass a decree in terms of the award (except in terms of Section 34) and in the absence of any provision in the 1996 Act making the Arbitral Tribunal a Court which passed the decree and in the absence of any provision anywhere making the court within whose jurisdiction an award was passed as the court which passed the decree, it is not open for any [Court executing an arbitral award] (i) either to demand transmission from any other Court; (ii) or to order transmission to any other Court."
The court directed the petitioner to present the execution petition once again in the court of the X Additional Judge.

Thanks to this news report in the Business Line for bringing to our attention the above decision.

Sunday, September 18, 2011

SSRN: Weekly Round up of Articles on Constitutional Law

The Jurisprudence of Dignity

Leslie Meltzer Henry
University of Pennsylvania Law Review, Vol. 160, 2011
U of Maryland Legal Studies Research Paper No. 2011-42

Few words play a more central role in modern constitutional law without appearing in the Constitution than dignity. The term appears in nearly one thousand Supreme Court opinions, but despite its popularity, dignity is a concept in disarray. Its meanings and functions are commonly presupposed, but rarely articulated. The result is a cacophony of uses so confusing that some critics argue the word ought to be abandoned altogether.

This Article fills a void in the literature by offering the first empirical study of Supreme Court opinions that invoke dignity, and then proposing a typology of dignity based on a Wittgensteinian analysis of those opinions. The dataset reveals three important findings. First, the Court’s reliance on dignity is increasing, and the Roberts Court is accelerating that trend. Second, in contrast to its past use, the more conservative Justices on the Court are now as likely to invoke dignity as their more liberal counterparts. Finally, the dataset demonstrates that dignity is not one concept, as other scholars have theorized, but rather that dignity admits of five related conceptions.

The typology refers to these conceptions of dignity as: institutional status as dignity, liberty as dignity, equality as dignity, personal integrity as dignity, and collective virtue as dignity. This Article traces each type of dignity to its epistemic origins and describes the substantive dignitary interests each protects. Importantly, the typology offers more than a clarification of the conceptual chaos surrounding dignity. It provides tools to track the Court’s use of different types of dignity over time. This permits us to detect doctrinally transformative moments, in such areas as state sovereign immunity and abortion jurisprudence, which arise from shifting conceptions of dignity.

The Constitutional Infiltration of Public and Private Workplace Privacy Law

Paul M. Secunda
University of Wisconsin Law School; Marquette University - Law School


One of the more pressing questions in this age of workplace technological innovation concerns how much privacy employees should have in physical and electronic locations in the workplace. An important related question is whether public sector and private sector employees, who have different legal status under the federal constitution’s state action doctrine, should enjoy the same level of workplace privacy rights. Recently, in the Fourth Amendment workplace privacy case of City of Ontario v. Quon, the United States Supreme Court considered both of these questions. Quon involved alleged privacy violations by a city police department when it conducted an audit of text messages on an officer’s city-issued pager.

In a cryptic decision, Justice Kennedy held for a unanimous court that assuming, without deciding, the employee had a reasonable expectation of privacy in the pager, the city's search of the pager was reasonable under two possible legal tests. First, under the plurality test enunciated in O’Connor v. Ortega, it was reasonable because it was motivated by a legitimate work-related purpose and was not excessive in scope. Second, under the test outlined by Justice Scalia in his concurring opinion in that same case, it was reasonable because it would be considered “reasonable and normal” in the private sector workplace. To varying degrees, both of these analyses suggest that workplace privacy in the public and private sectors should be treated the same.

Rather than elevating private-sector privacy rights to the public-sector level, however, Quon suggests that public employee workplace privacy rights should be reduced to the level of employees in the private sector. In this manner, the Court has employed constitutional concepts counter-intuitively to decrease the level of privacy protections for public sector workers. Maintaining that public sector workers are entitled to greater levels of privacy protections based on the text of the constitution, the power of the government as employer, and the critical oversight role public employees play in American democracy, this article argues for a two-step workplace privacy analysis which first focuses on the purpose of the search and then applies presumptively he Fourth Amendment’s warrant requirement to those searches undertaken for investigatory purposes.

Witchcraft and the Constitution

Nelson Tebbe

Witchcraft beliefs and related practices are complex social phenomena that present difficult challenges for South African lawmakers who are bound by their constitution and committed to upholding its values. In this chapter of an edited volume from the University of Cape Town Press, the author focus on certain constitutional questions raised by existing policies and current proposals. In some respects, the constitutional issues are easier than might be supposed. For example, Parliament may punish violence against suspected witches, even with laws that specifically address religiously motivated murder and assault. Also, citizens may believe that occult forces exist, and that those forces are being manipulated by jealous or malevolent neighbours. More constitutionally problematic are calls for educational campaigns that would "demystify" witchcraft beliefs, or proposals for laws that would prohibit certain rituals related to witch naming. Regardless of the resolutions, these sorts of constitutional issues deserve a place in the public debate.

A Universalist History of the 1987 Philippine Constitution (I)'

Diane Alferez Desierto
Historia Constitucional/Electronic Journal of Constitucional History, Vol. 10, pp. 383-444, 2009

This paper traces universalism - the vision of international public order built upon rights and values shared by all individuals and peoples - as a purposely-embedded ideology in the history and evolution of the Philippine Constitution. As the postcolonial and post-dictatorship founding document of the post-modern Philippine polity, the paper contends that 1987 Philippine Constitution enshrines nearly a century of constitutional text and practice which has led towards the present institutionalization of universalist rights-democratic theory in the Philippines’ constitutional interpretive canon.

Quintessential Elements of Meaningful Constitutions in Post-Conflict States

William W. Van Alstyne
William & Mary Law Review, Vol. 49, p.1497, 2008
William & Mary Law School Research Paper No. 09-115

This examination compares several successful constitutions formulated to govern countries just formed from the conclusion of armed conflicts (including the U.S.). Some of the most important elements gleaned from these successful constitutions include an independent court before which one may appeal to the new constitution because such a constitution adequately secures the integrity of the court itself.

The Japanese Constitution as Law and the Legitimacy of the Supreme Court's Constitutional Decisions: A Response to Matsui

Craig Martin
Washington University Law Review, Vol. 88, No. 6, 2011

This article, from a conference at the Washington University School of Law on the Supreme Court of Japan, responds to an article by Shigenori Matsui, “Why is the Japanese Supreme Court is so conservative?” Professor Matsui’s article makes the argument that a significant factor is the extent to which the judges fail to view the Constitution as positive law requiring judicial enforcement. It is novel in its emphasis on an explanation grounded in law, and the decision-making process, rather than the political, institutional, and cultural explanations that are so often offered.

In this article, the author, suggest that rather than framing the question in terms of the Court’s “conservatism”, Matsui’s argument would be that much more powerful by asking whether the Court’s constitutional decision-making is “legitimate”. The article explores why the term “conservative” can have various different meanings and is ultimately not a very useful basis for evaluating a court. It examines how the concept of legitimacy might be more meaningful, and explores how such legitimacy might be analyzed under various approaches to constitutional interpretation and theories of judicial review. The article employs two very different but well established analytical models, from the proportionality principle approach and from process theory, to analyze the 2006 Tokyo Metropolitan Government case for the purposes of illustrating how the court’s reasoning might be assessed for legitimacy. The exercise demonstrates that the judgment would not meet the legitimacy requirements under either approach, and indeed the reasons provide some compelling evidence to support Matsui’s central claim.

The point is not, of course, that all of the Court’s constitutional jurisprudence is illegitimate, but that a systematic examination of the Court’s decisions from this perspective could provide powerful evidence in support of Matsui’s argument that many of the judges do not view the Constitution as positive law requiring judicial enforcement. Given that Matsui’s argument focuses on the operation of the Court as a legal institution, rather than as a political entity engaged in competition with the other branches of government, reframing the inquiry to examine the legitimacy of the decision-making process of judges would enhance the normative power of his claims.

What Sortition Can and Cannot Do

Keith Sutherland
University of Exeter, Department of Politics

In recent years a number of writers have argued that sortition (the random selection of citizens for public office by lot) should augment the institutions of electoral democracy, but there is little agreement on the precise role that it should play. At one end of the spectrum James Fishkin (Fishkin, 2009) has argued that sortive bodies should be limited to an advisory or educative role; whereas radical democrats have argued that sortive bodies can do anything an elected chamber currently does (Callenbach & Phillips, 2008; O'Leary, 2006). In this paper the author argue that sortition could only serve an aggregative judgment role and could therefore only ever be one element in a mixed constitution. Any attempt to extend its use beyond this aggregate judgment function undermines any claim that sortition may have to democratic legitimacy. My case is based on fundamental conceptual distinctions derived from (Griffiths & Wollheim, 1960; Pitkin, 1967). The paper concludes with a brief discussion of two additional supposed functions of sortition: the ‘sanitization’ of the political process from corruption and partisanship, and the ‘epistemic’ benefits of a diverse decision-making base.

At the Origins of Constitutional Review: Sieyès’ Constitutional Jury and the Taming of Constituent Power

Marco Goldoni
University of Antwerp - Centre for Law and Cosmopolitan Values

This paper reconstructs the main tenets of Sieyès proposal, puts them in the larger context of his constitutional theory, and then assesses its institutional nature and its constitutional functions. The end result is mixed: as an organ, the constitutional jury is a hybrid institution, neither a third chamber nor a full-fledged constitutional court; its functions, on the other side, concern not only the control of constitutionality, but also the taming of constituent power. By cumulating several functions in one institution, Sieyès hoped to solve both the problem of the tension between constituent power and constitutional form and the issue of how to secure a balanced organization of powers.

Constitutional Review of EU Law after Honeywell: Contextualizing the Relationship between the German Constitutional Court and the EU Court of Justice

Mehrdad Payandeh
Common Market Law Review, Vol. 48, No. 1, 2011


The relationship between the German Constitutional Court and the Court of Justice of the European Union is defined by the German Court’s controversial claim to review whether EU legal acts are compatible with fundamental rights, whether they stay within the limits of EU competences (ultra vires review), or violate the identity of the German Constitution. While the German Court has developed these three review functions in different ways, the recent decision in the case of Honeywell indicates that the three lines of jurisprudence are deeply interrelated. In Honeywell, the Court developed a remarkably restrictive approach to ultra vires review, thereby following a similar path as in its famous Solange jurisprudence with regard to fundamental rights review. Against this background, Honeywell allows to put the different lines of case law into context in a way that reveals parallel patterns as well as differences in the developments. Evaluating Honeywell in this context illustrates that the Court can also be understood as a political actor that tries to maintain and define its role in the process of European integration and in the European system of multi-level governance.

Interpreting Rights Globally: Courts and Constitutional Rights in Emerging Democracies

Nsongurua J. Udombana
African Human Rights Law Journal, Vol. 5, p. 47, 2005


Democracy has spread over Africa and with it new constitutions with justiciable bills of rights have been accepted. The main focus of the Article is on how a constitution should be interpreted in view of the fact that a constitution, and especially the bill of rights, is not only made up of clear-cut rules, but also of ideals and principles. Purposive and creative interpretations are particularly needed in Africa's emerging democracies. Creative constitutional interpretations are further enhanced when courts engage in comparative constitutional analysis. The Article gives examples of how courts around the world have used comparative case law, but it further defends the approach of comparative constitutionalism in the light of the objections that have been raised against it.

The Governmental-Naxal-Tribal Conflict: Looking at Rights Through the Lens of Cultural Relativism
Journal of Indian Law and Society, Vol. 2, p. 27, Winter 2010

This paper examines the growing foothold of Naxalism in the country today by analysing the varying perspectives in which rights are viewed. The main argument is that apart from an implementation gap in the government’s policies, governmental conflict with Naxalism exists because of the difference in the value structure of the government and Naxal ideology, so that what appear as indispensable rights to one, are not so much of consequence for the other. The implications of the justiceability of Fundamental Rights, while Part IV remains non-enforceable under express provisions of the Constitution, is discussed in this context- arguing that while the present State setup emphasises upon individual rights, the Naxal vision of State puts economic and social rights at the fore. Further, the paper differentiates between the Naxal and tribal understandings of rights, aiming to enlighten upon that Naxalism is not exactly a representative of tribal vision of rights, because like the present system, Naxalism also envisions a State, whereas tribal imagination functions outside the boundaries of the State. Thus, a distinction has been attempted between the elite and subaltern version of rights the fundamental point being that mere extermination of Naxalism is not a worthy enough goal if one desires peace in light of an inclusive regime. To resolve the conflict between different cultural understandings of rights, the mechanism of Capability Approach is suggested, while examining how far the present legal system is conducive for the same.

Friday, September 16, 2011

Article Review: Fali S Nariman, Ten Steps to Salvage Arbitration in India: The First LCIA-India Arbitration Lecture

Fali S Nariman, Ten Steps to Salvage Arbitration in India: The First LCIA-India Arbitration Lecture, Volume 27, Issue 2, Arbitration International (2011)

It’s a joy to read the writings of Fali S Nariman (Nariman) on arbitration. His articles contain several never- -appeared-before information apart from insightful analysis and critique. In the First LCIA-India Arbitration Lecture, published in Arbitration International, Nariman’s complaint is that “we have not yet achieved what we initially set out to do when we enacted the Arbitration and Conciliation Act, 1996, which was to establish an efficient, competent and credible system of international commercial arbitration.” To remedy this situation and “salvage” Indian arbitration from the current mess it is in, Nariman suggests ten remedial measures, which are as follows:
  1. Parties must develop the spirit of arbitration and should learn to honour an arbitral award.
  2. Supreme Court should be the exclusive forum for enforcing foreign awards in India
  3. Parties should try to resolve their disputes by mediation
  4. To discourage frivolous petitions in India, the costs must not be ordinary costs but must be fixed on the basis of indemnity.
  5. Establishment of an Arbitration bar
  6. Necessity of good arbitrators.
  7. Amendments suggested in the Arbitration Amendment Bill, 2003 regarding less strict scrutiny of international commercial arbitration awards and other suggestions should be re-introduced.
  8. Bhatia International, Saw Pipes and Venture Global must be reversed.
  9. Foreign parties must expressly exclude Part I
  10. A new law of arbitration or the amendment of the existing one must incorporate principles like the one contained in the French arbitration law (2010) characterizing the  role of the courts as one supporting the arbitral process (juge d’appui)
The measures suggested by Nariman are broad and are meritorious as they do not only address the Legislature but also the other stakeholders such as the parties, courts etc. However, there is nothing phenomenally new in these recommendations. Several of these were already covered in Nariman's article in the George Washington International Law Review.

The suggestion that foreign parties should exclude Part I in its entirety may not be fully correct. If parties exclude Part I completely, there are chances they might not get any interim relief under Section 9 of the Arbitration and Conciliation Act, 1996. Therefore, it might be better to expressly exclude Part I, except for Section 9 and 27. This has been recognized even in Bhatia International  (“It must immediately be clarified that the arbitration not having taken place in India, all or some of the provisions of Part I may also get excluded by an express or implied agreement of parties.”).

Nariman's anecdote about Lord Denning’s speech habit was great and we quote it here:
A great judge, Lord Denning, always began a pre-prandial speech with the reflection that a convivial evening fulfilled three distinct pleasures: first, the pleasure of eating with nice people; next, the pleasure of drinking with nice people; and third, the pleasure of sleeping with-complete peace of mind!