Assortment of SSRN articles on Constitutional Law in the month of April

1. Do Laws Have a Constitutional Shelf Life? By Alli Orr Larsen, Posted on April 20, 2015.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2596646.

An interesting question is posed about the future of law that was relevant and rational when written but lost its value as time and circumstances change by. Relying on a decided case, it is assessed whether constitution gives the leeway to hold a law as expired, which was constitutional when enacted.


2. Free Exercise by Moonlight, By Marc O. DeGirolami , Posted on March 30, 2015,

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2587216

Issue of religious accommodation and free exercise is the discussion in the background of two decided cases. Judicial decisions are analyzed reflecting its impact on later judgments and current day socio-political context.

3. New Institutional Mechanisms for Making Constitutional Law, By Mark Tushnet , Posted on April 2, 2015.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2589178

This paper searches new modes of constitution making beyond the traditional Constituent Assemblies and Interpretation.

4. Constitutional Amendment by Stealth, By Richard Albert , Posted on April 2, 2015.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2589255

In the context of Canada, the author argues a method of constitutional amendment that is calculated and surreptitious. This arguably is through a process of consciously creating new practices which successors are forced to follow that eventually settles into constitutional conventions. This leads to amend constitution without amending the text through established procedure.


5. Constitutional Law: Critical and Comparative, By Mark Tushnet, Posted on April 4, 2015.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2589181

An introduction essay to a volume of studies by Latin American scholars of constitutional law and theory. The scholars are reflecting on Tushnet’s works.


6. Elite Institutionalism and Judicial Assertiveness in the Supreme Court of India, By Manoj Mate, Posted on April 19, 2015.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2595688

“This article examines judicial challenges to central government power in the Supreme Court of India by analyzing activism and assertiveness in fundamental rights decisions from 1977 to 2007. Based on field research and contextual analysis of politically significant decisions, the article traces patterns of judicial assertiveness in politically significant fundamental rights decisions.”


7. Enabling Resistance: How Courts Facilitate Departures from the Law and Why This May Not Be a Bad Thing, By Adam Shinar , Posted on, April 1, 2015.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2588326

The paper looks at constitutional interpretation by administrative officers. Argues that departing from strict letter of law for meeting certain contingencies is not all that bad.


8. The Supreme Court’s Power of Judicial Review in Bangladesh: A Critical Evaluation, By Kawser Ahmed , April 16, 2015.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2595364

9. Global Standards of Constitutional Law: Epistemology and Methodology, By Maxime St-Hilaire , Posted on  April 24, 2015.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2598489

Author is on a pursuit to identify ‘global standards for constitutional law’. The globalization of constitutional law has oriented development of constitutional law towards best practices and setting standards. Author calls this phase as “second order of legal positivity”.


10. Ethnic Rights and Constitutional Change: The Constitutional Recognition of Ethnic Nationalities in Myanmar/Burma, By Melissa Crouch , Posted on March 30, 2015.


http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2592474

11. But Names Will Never Hurt Me: Extending Hate Speech Legislation to Protect Gender and Sexual Minorities in New Zealand, By Vanessa Haggie, Posted on April 30, 2015.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2598455

The need to harmonize censoring of expression to curb hate speech is the highlight of the paper.

12. Same Sex Marriage in Hong Kong: The Case for a Constitutional Right, By Michael Ramsden  and Luke Marsh , Posted on April 3, 2015.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2589499

Earthquakes and Surrogacy

Nepal is hurt. The people of Nepal deserve efficient administration, swift as well as responsive relief measures and empathy. Gestures of world reaching out to Nepal are heartening, though geographical, structural and administrative challenges makes the relief measures deficient. Among the news of support pouring in from various nations, one news item caught my attention, an operation of airlifting to Israel a sizeable number infants born to surrogate mothers of Nepal. (See here, here, here for the news). Israeli military and an Insurance Company apparently were involved in the evacuation.

In the background of a shattered and traumatized nation, issues of surrogacy might sound relatively insignificant.  The images of parents stepping out of aircrafts with bundles of joy revealed another impact zone of earthquake and an intersection of law. 

Nepal, like India, has progressively become a preferred destination for surrogacy for obvious reasons. A casual net search on Nepal’s surrogacy will pop up ample amount of options catering to the need of affluent communities. The irony is that, there is yet to be a law regulating surrogacy, though it has become an accepted million-dollar industry (estimated $2 billion in India) in both the nations. India has tabled a Bill and Nepal is contemplating one.

Israel’s surrogacy law does not permit same sex couples to benefit from surrogacy services. India denying Visas to same sex couples makes Nepal the best choice for Israelis who look for inexpensive options. The quake has mooted a renewed discourse in Israel on the need to amend the surrogacy law to include same sex couples and single parents desirous of offspring within its net. The media report highlight how the natural disasters that occur in 'third world countries' pose risk to Israelis who are 'reluctant presence in such nations' but for the discriminatory practices back home. Hope on revision of law is also expressed in Times of Israel, titled Nepal quake gives birth to hopes of Israeli surrogacy reform.

It is intriguing to find how natural calamity and a remote aspect of law like surrogacy interact.  Nepal will be focusing on rebuilding in the coming days. Attention should equally be paid to build a sound legal infrastructure that is also the rightful due of its people.

Kill intelligence to make slaves : Silencing dissent

Fresh incidences to silence dissent and opinions, especially in South Asia are a matter of critical concern. Attempts to silence have acquired multiple faces ranging from antics of sending Dahi Misal to murder. Gruesome firing and death of Sabeen Mahmud in Pakistan followed the murder in cold blood of two bloggers in Bangladesh. In the same nation, court punishes a journalist for contempt of court for reporting and 23 others for supporting the journalist. In neighbouring Sri Lanka, poet Sharmila Seyyid is “raped and killed online” by religious fundamentalists. Back home, in India, Kamal Hassan got a reprieve from the court of law to release his film Uthama Villain, but yet to see whether the zealots will clear their censure. Perumal Murugan, a noted writer folded pen, as it was too much for him to endure the wrath of the mercenaries of faith. The number of books banned pan India and in various states since independence make an “impressive” list.

Silencing dissent is the method of the fascist and the ones with monistic worldview. History is replete with characters and movements that have attempted to quell differences. Authoritarian regimes and religious sects have always tried to control intellect and limit modes of expressions. Free expressions, opinions and thoughts are greatest enemies of religious fundamentalists and totalitarians as they set individuals free.

Every regime, be it democratic or otherwise, tries to regulate the sphere of expression and speech. The scale of control may vary according to the weightage each society accord to the value of free expression and public space. Non-governmental bodies flex their muscles to quiet voices that do not appease their programme. Governments more often stand mute spectator to violations of the rights of citizens by these thugs to carry out their agenda with impunity.

Free speech and expression is a desideratum of Indian constitution for meaningful life and an environment required for robust democracy. Having said that, Indian legal culture is replete with experiences of censor and ban. The volatile communal fault lines give the government a justification to step in at every perceived threat to communal harmony and use the tools to suit their agenda. The FIRs registered under the decommissioned Section 66A of IT Act are examples. S. 66A has been invoked for causing ‘annoyance, inconvenience etc.’ to persons like Mamata  Banerjee, Narendra Modi, Mulayam Singh, Akhilesh Yadav, Azam Khan, Karti Chidambaram to cite few.

In the judgment that annulled S. 66A of IT Act, the court discussed in detail the need of space for free speech and expression that is the foundation of a healthy democracy and a sound society.  The parochial political, sectarian and religious bigots on the other hand is turning the society into intolerant short fused mass that is self-destructive. The art of deliberation and maturity to understand others opinion, even when one might not agree to is fast loosing to our communities if not already lost.

In such communities it is easy to spread fear, distrust, make people fight someone else’s war without them realizing it. Best way to make slaves is to kill intelligence. To kill intelligence; limit thought, speech and expression. It is therefore necessary to react to provincial leaders, support voices of dissent and be the voices of difference.